G.R. No.

131457 April 24, 1998

HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON.

REY B. BAULA, MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR
MANAGEMENT AND DEVELOPMENT CORPORATION, petitioners,
vs.
HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY, HON. ERNESTO
D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN REFORM,
respondents.

MARTINEZ, J.:

The dramatic and well-publicized hunger strike staged by some alleged farmer-beneficiaries in
front of the Department of Agrarian Reform compound in Quezon City on October 9, 1997
commanded nationwide attention that even church leaders and some presidential candidates tried
to intervene for the strikers' "cause."

The strikers protested the March 29, 1996 Decision 1 of the Office of the President (OP), issued
through then Executive Secretary Ruben D. Torres in OP Case No. 96-C-6424, which approved
the conversion of a one hundred forty-four (144)-hectare land from agricultural to agro-
industrial/institutional area. This led the Office of the President, through then Deputy Executive
Secretary Renato C. Corona, to issue the so-called "Win-Win" Resolution 2 on November 7,
1997, substantially modifying its earlier Decision after it had already become final and
executory. The said Resolution modified the approval of the land conversion to agro-industrial
area only to the extent of forty-four (44) hectares, and ordered the remaining one hundred (100)
hectares to be distributed to qualified farmer-beneficiaries.

But, did the "Win-Win" Resolution culminate in victory for all the contending parties?

The above-named petitioners cried foul. They have come to this Court urging us to annul and set
aside the "Win-Win" Resolution and to enjoin respondent Secretary Ernesto D. Garilao of the
Department of Agrarian Reform from implementing the said Resolution.

Thus, the crucial issue to be resolved in this case is: What is the legal effect of the "Win-Win"
Resolution issued by the Office of the President on its earlier Decision involving the same
subject matter, which had already become final and executory?

The antecedent facts of this controversy, as culled from the pleadings, may be stated as follows:

1. This case involves a 144-hectare land located at San Vicente, Sumilao, Bukidnon, owned by
the Norberto Quisumbing, Sr. Management and Development Corporation (NQSRMDC), one of
the petitioners. The property is covered by a Transfer Certificate of Title No. 143713 of the
Registry of Deeds of the Province of Bukidnon.
2. In 1984, the land was leased as a pineapple plantation to the Philippine Packing Corporation,
now Del Monte Philippines, Inc. (DMPI), a multinational corporation, for a period of ten (10)
years under the Crop Producer and Grower's Agreement duly annotated in the certificate of title.
The lease expired in April, 1994.

3. In October, 1991, during the existence of the lease, the Department of Agrarian Reform
(DAR) placed the entire 144-hectare property under compulsory acquisition and assessed the
land value at P2.38 million.4

4. NQSRMDC resisted the DAR's action. In February, 1992, it sought and was granted by the
DAR Adjudication Board (DARAB), through its Provincial Agrarian Reform Adjudicator
(PARAD) in DARAB Case No. X-576, a writ of prohibition with preliminary injunction which
ordered the DAR Region X Director, the Provincial Agrarian Reform Officer (PARO) of
Bukidnon, the Municipal Agrarian Reform Office (MARO) of Sumilao, Bukidnon, the Land
Bank of the Philippines (Land Bank), and their authorized representatives "to desist from
pursuing any activity or activities" concerning the subject land "until further orders."5

5. Despite the DARAB order of March 31, 1992, the DAR Regional Director issued a
memorandum, dated May 21, 1992, directing the Land Bank to open a trust account for P2.38
million in the name of NQSRMDC and to conduct summary proceedings to determine the just
compensation of the subject property. NQSRMDC objected to these moves and filed on June 9,
1992 an Omnibus Motion to enforce the DARAB order of March 31, 1992 and to nullify the
summary proceedings undertaken by the DAR Regional Director and Land Bank on the
valuation of the subject property.

6. The DARAB, on October 22, 1992, acted favorably on the Omnibus Motion by (a) ordering
the DAR Regional Director and Land Bank "to seriously comply with the terms of the order
dated March 31, 1992;" (b) nullifying the DAR Regional Director's memorandum, dated May 21,
1992, and the summary proceedings conducted pursuant thereto; and (c) directing the Land Bank
"to return the claim folder of Petitioner NQSRMDC's subject Property to the DAR until further
orders."6

7. The Land Bank complied with the DARAB order and cancelled the trust account it opened in
the name of petitioner NQSRMDC. 7

8. In the meantime, the Provincial Development Council (PDC) of Bukidnon, headed by

Governor Carlos O. Fortich, passed Resolution No. 6,8 dated January 7, 1993, designating
certain areas along Bukidnon-Sayre Highway as part of the Bukidnon Agro-Industrial Zones
where the subject property is situated.

9. What happened thereafter is well-narrated in the OP (TORRES) Decision of March 29, 1996,
pertinent portions of which we quote:

Pursuant to Section 20 of R.A. No. 7160, otherwise known as the Local

Government Code, the Sangguniang Bayan of Sumilao, Bukidnon, on March 4,
1993, enacted Ordinance No. 24 converting or re-classifying 144 hectares of land
in Bgy. San Vicente, said Municipality, from agricultural to industrial/institutional
with a view of providing an opportunity to attract investors who can inject new
economic vitality, provide more jobs and raise the income of its people.

Parenthetically, under said section, 4th to 5th class municipalities may authorize
the classification of five percent (5%) of their agricultural land area and provide
for the manner of their utilization or disposition.

On 12 October 1993, the Bukidnon Provincial Land Use Committee approved the
said Ordinance. Accordingly, on 11 December 1993, the instant application for
conversion was filed by Mr. Gaudencio Beduya in behalf of NQSRMDC/BAIDA
(Bukidnon Agro-Industrial Development Association).

Expressing support for the proposed project, the Bukidnon Provincial Board, on
the basis of a Joint Committee Report submitted by its Committee on Laws,
Committee on Agrarian Reform and Socio-Economic Committee approved, on 1
February 1994, the said Ordinance now docketed as Resolution No. 94-95. The
said industrial area, as conceived by NQSRMDC (project proponent) is supposed
to have the following components:

1. Development Academy of Mindanao which constitutes following: Institute for

Continuing Higher Education; Institute for Livelihood Science (Vocational and
Technical School); Institute for Agribusiness Research; Museum, Library,
Cultural Center, and Mindanao Sports Development Complex which covers an
area of 24 hectares;

2. Bukidnon Agro-Industrial Park which consists of corn processing for corn oil,
corn starch, various corn products; rice processing for wine, rice-based snacks,
exportable rice; cassava processing for starch, alcohol and food delicacies;
processing plants, fruits and fruit products such as juices; processing plants for
vegetables processed and prepared for market; cold storage and ice plant; cannery
system; commercial stores; public market; and abattoir needing about 67 hectares;

3. Forest development which includes open spaces and parks for recreation,
horse-back riding, memorial and mini-zoo estimated to cover 33 hectares; and

4. Support facilities which comprise the construction of a 360-room hotel,

restaurants, dormitories and a housing project covering an area of 20 hectares.

The said NQSRMDC Proposal was, per Certification dated January 4, 1995,
adopted by the Department of Trade and Industry, Bukidnon Provincial Office, as
one of its flagship projects. The same was likewise favorably recommended by
the Provincial Development Council of Bukidnon; the municipal, provincial and
regional office of the DAR; the Regional Office (Region X) of the DENR (which
issued an Environmental Compliance Certificate on June 5, 1995); the Executive
Director, signing "By Authority of PAUL G. DOMINGUEZ," Office of the
President — Mindanao; the Secretary of DILG; and Undersecretary of DECS
Wilfredo D. Clemente.

In the same vein, the National Irrigation Administration, Provincial Irrigation

Office, Bagontaas Valencia, Bukidnon, thru Mr. Julius S. Maquiling, Chief,
Provincial Irrigation Office, interposed NO. OBJECTION to the proposed
conversion "as long as the development cost of the irrigation systems thereat
which is P2,377.00 per hectare be replenished by the developer . . . ." Also, the
Kisolon-San Vicente Irrigators Multi Purpose Cooperative, San Vicente, Sumilao,
Bukidnon, interposed no objection to the proposed conversion of the land in
question "as it will provide more economic benefits to the community in terms of
outside investments that will come and employment opportunities that will be
generated by the projects to be put up . . . .

On the same score, it is represented that during the public consultation held at the
Kisolan Elementary School on 18 March 1995 with Director Jose Macalindong of
DAR Central Office and DECS Undersecretary Clemente, the people of the
affected barangay rallied behind their respective officials in endorsing the project.

Notwithstanding the foregoing favorable recommendation, however, on

November 14, 1994, the DAR, thru Secretary Garilao, invoking its powers to
approve conversion of lands under Section 65 of R.A. No. 6657, issued an Order
denying the instant application for the conversion of the subject land from
agricultural to agro-industrial and, instead, placed the same under the compulsory
coverage of CARP and directed the distribution thereof to all qualified
beneficiaries on the following grounds:

1. The area is considered as a prime agricultural land with irrigation facility;

2. The land has long been covered by a Notice of Compulsory Acquisition

(NCA);

3. The existing policy on withdrawal or lifting on areas covered by NCA is not

applicable;

4. There is no clear and tangible compensation package arrangements for the

beneficiaries;

5. The procedures on how the area was identified and reclassified for agro-
industrial project has no reference to Memo Circular No. 54, Series of 1993, E.O.
No. 72, Series of 1993, and E.O. No. 124, Series of 1993.

A Motion for Reconsideration of the aforesaid Order was filed on January 9, 1995
by applicant but the same was denied (in an Order dated June 7, 1995). 9
10. Thus, the DAR Secretary ordered the DAR Regional Director "to proceed with the
compulsory acquisition and distribution of the property." 10

11. Governor Carlos O. Fortich of Bukidnon appealed" the order of denial to the Office of the
President and prayed for the conversion/reclassification of the subject land as the same would be
more beneficial to the people of Bukidnon.

12. To prevent the enforcement of the DAR Secretary's order, NQSRMDC, on June 29, 1995,
filed with the Court of Appeals a petition for certiorari, prohibition with preliminary injunction,
12 docketed as CA-G.R. SP No. 37614.

13. Meanwhile, on July 25, 1995, the Honorable Paul G. Dominguez, then Presidential Assistant
for Mindanao, after conducting an evaluation of the proposed project, sent a memorandum 13 to
the President favorably endorsing the project with a recommendation that the DAR Secretary
reconsider his decision in denying the application of the province for the conversion of the land.

14. Also, in a memorandum 14 to the President dated August 23, 1995, the Honorable Rafael
Alunan III, then Secretary of the Department of the Interior and Local Government (DILG),
recommended the conversion of the subject land to industrial/institutional use with a request that
the President "hold the implementation of the DAR order to distribute the land in question."

15. On October 23, 1995, the Court of Appeals, in CA-G.R. SP No. 37614, issued a Resolution
15 ordering the parties to observe status quo pending resolution of the petition. At the hearing
held in said case on October 5, 1995, the DAR, through the Solicitor General, manifested before
the said court that the DAR was merely "in the processing stage of the applications of farmers-
claimants" and has agreed to respect status quo pending the resolution of the petition. 16

16. In resolving the appeal, the Office of the President, through then Executive Secretary Ruben
D. Torres, issued a Decision in OP Case No. 96-C-6424, dated March 29, 1996, reversing the
DAR Secretary's decision, the pertinent portions of which read:

After a careful evaluation of the petition vis-a-vis the grounds upon which the
denial thereof by Secretary Garilao was based, we find that the instant application
for conversion by the Municipality of Sumilao, Bukidnon is impressed with merit.
To be sure, converting the land in question from agricultural to agro-industrial
would open great opportunities for employment and bring about real development
in the area towards a sustained economic growth of the municipality. On the other
hand, distributing the land to would-be beneficiaries (who are not even tenants, as
there are none) does not guarantee such benefits.

Nevertheless, on the issue that the land is considered a prime agricultural land
with irrigation facility it maybe appropriate to mention that, as claimed by
petitioner, while it is true that there is, indeed, an irrigation facility in the area, the
same merely passes thru the property (as a right of way) to provide water to the
ricelands located on the lower portion thereof. The land itself, subject of the
 instant petition, is not irrigated as the same was, for several years, planted with
pineapple by the Philippine Packing Corporation.

On the issue that the land has long been covered by a Notice of Compulsory
Acquisition (NCA) and that the existing policy on withdrawal or lifting on areas
covered by NCA is not applicable, suffice it to state that the said NCA was
declared null and void by the Department of Agrarian Reform Adjudication Board
(DARAB) as early as March 1, 1992. Deciding in favor of NQSRMDC, the
DARAB correctly pointed out that under Section 8 of R.A. No. 6657, the subject
property could not validly be the subject of compulsory acquisition until after the
expiration of the lease contract with Del Monte Philippines, a Multi-National
Company, or until April 1994, and ordered the DAR Regional Office and the
Land Bank of the Philippines, both in Butuan City, to "desist from pursuing any
activity or activities covering petitioner's land.

On this score, we take special notice of the fact that the Quisumbing family has
already contributed substantially to the land reform program of the government,
as follows: 300 hectares of rice land in Nueva Ecija in the 70's and another 400
hectares in the nearby Municipality of Impasugong, Bukidnon, ten(10) years ago,
for which they have not received "just compensation" up to this time.

Neither can the assertion that "there is no clear and tangible compensation
package arrangements for the beneficiaries' hold water as, in the first place, there
are no beneficiaries to speak about, for the land is not tenanted as already stated.

Nor can procedural lapses in the manner of identifying/reclassifying the subject

property for agro-industrial purposes be allowed to defeat the very purpose of the
law granting autonomy to local government units in the management of their local
affairs. Stated more simply, the language of Section 20 of R.A. No. 7160, supra,
is clear and affords no room for any other interpretation. By unequivocal legal
mandate, it grants local government units autonomy in their local affairs including
the power to convert portions of their agricultural lands and provide for the
manner of their utilization and disposition to enable them to attain their fullest
development as self-reliant communities.

WHEREFORE, in pursuance of the spirit and intent of the said legal mandate and
in view of the favorable recommendations of the various government agencies
abovementioned, the subject Order, dated November 14, 1994 of the Hon.
Secretary, Department of Agrarian Reform, is hereby SET ASIDE and the instant
application of NQSRMDC/BAIDA is hereby APPROVED. 17

17. On May 20, 1996, DAR filed a motion for reconsideration of the OP decision.

18. On September 11, 1996, in compliance with the OP decision of March 29, 1996, NQSRMDC
and the Department of Education, Culture and Sports (DECS) executed a Memorandum of
Agreement whereby the former donated four (4) hectares from the subject land to DECS for the
establishment of the NQSR High School. 18

When NQSRMDC was about to transfer the title over the 4-hectare donated to DECS, it
discovered that the title over the subject property was no longer in its name. It soon found out
that during the pendency of both the Petition for Certiorari, Prohibition, with Preliminary
Injunction it filed against DAR in the Court of Appeals and the appeal to the President filed by
Governor Carlos O. Fortich, the DAR, without giving just compensation, caused the cancellation
of NQSRMDC's title on August 11, 1995 and had it transferred in the name of the Republic of
the Philippines under TCT No. T-50264 19 of the Registry of Deeds of Bukidnon. Thereafter, on
September 25, 1995, DAR caused the issuance of Certificates of Land Ownership Award
(CLOA) No. 00240227 and had it registered in the name of 137 farmer-beneficiaries under TCT
No. AT-3536 20 of the Registry of Deeds of Bukidnon.

19. Thus, on April 10, 1997, NQSRMDC filed a complaint 21 with the Regional Trial Court
(RTC) of Malaybalay, Bukidnon (Branch 9), docketed as Civil Case No. 2687-97, for annulment
and cancellation of title, damages and injunction against DAR and 141 others. The RTC then
issued a Temporary Restraining Order on April 30, 1997 22 and a Writ of Preliminary Injunction
on May 19, 1997, 23 restraining the DAR and 141 others from entering, occupying and/or
wresting from NQSRMDC the possession of the subject land.

20. Meanwhile, on June 23, 1997, an Order 24 was issued by then Executive Secretary Ruben D.
Torres denying DAR's motion for reconsideration for having been filed beyond the reglementary
period of fifteen (15) days. The said order further declared that the March 29, 1996 OP decision
had already become final and executory.

21. The DAR filed on July 11, 1997 a second motion for reconsideration of the June 23, 1997
Order of the President.

22. On August 12, 1997, the said writ of preliminary injunction issued by the RTC was
challenged by some alleged farmers before the Court of Appeals through a petition for certiorari
and prohibition, docketed as CA-G.R. SP No. 44905, praying for the lifting of the injunction and
for the issuance of a writ of prohibition from further trying the RTC case.

23. On October 9, 1997, some alleged farmer-beneficiaries began their hunger strike in front of
the DAR Compound in Quezon City to protest the OP Decision of March 29, 1996. On October
10, 1997, some persons claiming to be farmer-beneficiaries of the NQSRMDC property filed a
motion for intervention (styled as Memorandum In Intervention) in O.P. Case No. 96-C-6424,
asking that the OP Decision allowing the conversion of the entire 144-hectare property be set
aside. 25

24. President Fidel V. Ramos then held a dialogue with the strikers and promised to resolve their
grievance within the framework of the law. He created an eight (8)-man Fact Finding Task Force
(FFTF) chaired by Agriculture Secretary Salvador Escudero to look into the controversy and
recommend possible solutions to the problem. 26
25. On November 7, 1997, the Office of the President resolved the strikers' protest by issuing the
so-called "Win/Win" Resolution penned by then Deputy Executive Secretary Renato C. Corona,
the dispositive portion of which reads:

WHEREFORE, premises considered, the decision of the Office of the President,

through Executive Secretary Ruben Torres, dated March 29, 1996, is hereby
MODIFIED as follows:

1. NQSRMDC's application for conversion is APPROVED only with respect to

the approximately forty-four (44) hectare portion of the land adjacent to the
highway, as recommended by the Department of Agriculture.

2. The remaining approximately one hundred (100) hectares traversed by an

irrigation canal and found to be suitable for agriculture shall be distributed to
qualified farmer-beneficiaries in accordance with RA 6657 or the Comprehensive
Agrarian Reform Law with a right of way to said portion from the highway
provided in the portion fronting the highway. For this purpose, the DAR and other
concerned government agencies are directed to immediately conduct the
segregation survey of the area, valuation of the property and generation of titles in
the name of the identified farmer-beneficiaries.

3. The Department of Agrarian Reform is hereby directed to carefully and

meticulously determine who among the claimants are qualified farmer-
beneficiaries.

4. The Department of Agrarian Reform is hereby further directed to expedite

payment of just compensation to NQSRMDC for the portion of the land to be
covered by the CARP, including other lands previously surrendered by
NQSRMDC for CARP coverage.

5. The Philippine National Police is hereby directed to render full assistance to the
Department of Agrarian Reform in the implementation of this Order.

We take note of the Memorandum in Intervention filed by 113 farmers on

October 10, 1997 without ruling on the propriety or merits thereof since it is
unnecessary to pass upon it at this time.

SO ORDERED. 27

A copy of the "Win-Win" Resolution was received by Governor Carlos O. Fortich of Bukidnon,
Mayor Rey B. Baula of Sumilao, Bukidnon, and NQSRMDC on November 24, 1997 28 and, on
December 4, 1997, they filed the present petition for certiorari, prohibition (under Rule 65 of the
Revised Rules of Court) and injunction with urgent prayer for a temporary restraining order
and/or writ of preliminary injunction (under Rule 58, ibid.), against then Deputy Executive
Secretary Renato C. Corona and DAR Secretary Ernesto D. Garilao.
On December 12, 1997, a Motion For Leave To Intervene 29 was filed by alleged farmer-
beneficiaries, through counsel, claiming that they are real parties in interest as they were
"previously identified by respondent DAR as agrarian reform beneficiaries on the 144-hectare"
property subject of this case. The motion was vehemently opposed 30 by the petitioners.

In seeking the nullification of the "Win-Win" Resolution, the petitioners claim that the Office of
the President was prompted to issue the said resolution "after a very well-managed hunger strike
led by fake farmer-beneficiary Linda Ligmon succeeded in pressuring and/or politically
blackmailing the Office of the President to come up with this purely political decision to appease
the 'farmers,' by reviving and modifying the Decision of 29 March 1996 which has been declared
final and executory in an Order of 23 June 1997. . . ."31 Thus, petitioners further allege,
respondent then Deputy Executive Secretary Renato C. Corona "committed grave abuse of
discretion and acted beyond his jurisdiction when he issued the questioned Resolution of 7
November 1997. . . ." 32 They availed of this extraordinary writ of certiorari "because there is
no other plain, speedy and adequate remedy in the ordinary course of law."33 They never filed a
motion for reconsideration of the subject Resolution "because (it) is patently illegal or contrary
to law and it would be a futile exercise to seek a reconsideration. . . ." 34

The respondents, through the Solicitor General, opposed the petition and prayed that it be
dismissed outright on the following grounds:

(1) The proper remedy of petitioners should have been to file a petition for review directly with
the Court of Appeals in accordance with Rule 43 of the Revised Rules of Court;

(2) The petitioners failed to file a motion for reconsideration of the assailed "Win-Win"
Resolution before filing the present petition; and

(3) Petitioner NQSRMDC is guilty of forum-shopping.

These are the preliminary issues which must first be resolved, including the incident on the
motion for intervention filed by the alleged farmer-beneficiaries.

Anent the first issue, in order to determine whether the recourse of petitioners is proper or not, it
is necessary to draw a line between an error of judgment and an error of jurisdiction. An error of
judgment is one which the court may commit in the exercise of its jurisdiction, and which error is
reviewable only by an appeal. 35 On the other hand, an error of jurisdiction is one where the act
complained of was issued by the court, officer or a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of
jurisdiction. 36 This error is correctable only by the extraordinary writ of certiorari. 37

It is true that under Rule 43, appeals from awards, judgments, final orders or resolutions of any
quasi-judicial agency exercising quasi-judicial functions, 38 including the Office of the
President, 39 may be taken to the Court of Appeals by filing a verified petition for review 40
within fifteen (15) days from notice of the said judgment, final order or resolution, 41 whether
the appeal involves questions of fact, of law, or mixed questions of fact and law. 42
However, we hold that, in this particular case, the remedy prescribed in Rule 43 is inapplicable
considering that the present petition contains an allegation that the challenged resolution is
"patently illegal" 43 and was issued with "grave abuse of discretion" and "beyond his
(respondent Secretary Renato C. Corona's) jurisdiction" 44 when said resolution substantially
modified the earlier OP Decision of March 29, 1996 which had long become final and executory.
In other words, the crucial issue raised here involves an error of jurisdiction, not an error of
judgment which is reviewable by an appeal under Rule 43. Thus, the appropriate remedy to
annul and set aside the assailed resolution is an original special civil action for certiorari under
Rule 65, as what the petitioners have correctly done. The pertinent portion of Section 1 thereof
provides:

Sec. 1. Petition for certiorari. — When any tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of
jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in
the ordinary course of law, a person aggrieved thereby may file a verified petition
in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or
officer, and granting such incidental reliefs as law and justice may require.

xxx xxx xxx

The office of a writ of certiorari is restricted to truly extraordinary cases — cases in

which the act of the lower court or quasi-judicial body is wholly void. 45

The aforequoted Section 1 of Rule 65 mandates that the person aggrieved by the assailed illegal
act "may file a verified petition (for certiorari) in the proper court." The proper court where the
petition must be filed is stated in Section 4 of the same Rule 65 which reads:

Sec. 4. Where petition filed. — The petition may be filed not later than sixty (60)
days from notice of the judgment, order or resolution sought to be assailed in the
Supreme Court or, if it relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also
be filed in the Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves
the acts or omissions of a quasi-judicial agency, and unless otherwise provided by
law or these Rules, the petition shall be filed in and cognizable only by the Court
of Appeals. (4a)

Under the above-qouted Section 4, the Supreme Court, Court of Appeals and Regional Trial
Court have original concurrent jurisdiction to issue a writ of certiorari, 46 prohibition 47 and
mandamus. 48 But the jurisdiction of these three (3) courts are also delineated in that, if the
challenged act relates to acts or omissions of a lower court or of a corporation, board, officer or
person, the petition must be filed with the Regional Trial Court which exercises jurisdiction over
the territorial area as defined by the Supreme Court. And if it involves the act or omission of a
quasi-judicial agency, the petition shall be filed only with the Court of Appeals, unless otherwise
provided by law or the Rules of Court. We have clearly discussed this matter of concurrence of
jurisdiction in People vs. Cuaresma, et. al.,49 through now Chief Justice Andres R. Narvasa,
thus:

. . . . This Court's original jurisdiction to issue writs of certiorari (as well as

prohibition, mandamus, quo warranto, habeas corpus and injunction) is not
exclusive. It is shared by this Court with Regional Trial Courts (formerly Courts
of First Instance), which may issue the writ, enforceable in any part of their
respective regions. It is also shared by this Court, and by the Regional Trial Court,
with the Court of Appeals (formerly, Intermediate Appellate Court), although
prior to the effectivity of Batas Pambansa Bilang 129 on August 14, 1981, the
latter's competence to issue the extraordinary writs was restricted to those "in aid
of its appellate jurisdiction." This concurrence of jurisdiction is not, however, to
be taken as according to parties seeking any of the writs an absolute, unrestrained
freedom of choice of the court to which application therefor will be directed.
There is after all a hierarchy of courts. That hierarchy is determinative of the
venue of appeals, and should also serve as a general determinant of the
appropriate forum for petitions for the extraordinary writs. A becoming regard for
that judicial hierarchy most certainly indicates that petitions for the issuance of
extraordinary writs against first level ("inferior") courts should be filed with the
Regional Trial Court, and those against the latter, with the Court of Appeals.
(Citations omitted)

But the Supreme Court has the full discretionary power to take cognizance of the petition filed
directly to it if compelling reasons, or the nature and importance of the issues raised, warrant.
This has been the judicial policy to be observed and which has been reiterated in subsequent
cases, namely: 50 Uy vs. Contreras, et. al., 51 Torres vs. Arranz, 52 Bercero vs. De Guzman, 53
and Advincula vs. Legaspi, et. al. 54 As we have further stated in Cuaresma:

. . . . A direct invocation of the Supreme Court's original jurisdiction to issue these

writs should be allowed only when there are special and important reasons
therefor, clearly and specifically set out in the petition. This is established policy.
It is a policy that is necessary to prevent inordinate demands upon the Court's
time and attention which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Court's docket.

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition
in the interest of speedy justice 55 and to avoid future litigations so as to promptly put an end to
the present controversy which, as correctly observed by petitioners, has sparked national interest
because of the magnitude of the problem created by the issuance of the assailed resolution.
Moreover, as will be discussed later, we find the assailed resolution wholly void and requiring
the petitioners to file their petition first with the Court of Appeals would only result in a waste of
time and money.
That the Court has the power to set aside its own rules in the higher interests of justice is well-
entrenched, in our jurisprudence. We reiterate what we said in Piczon vs. Court of Appeals: 56

Be it remembered that rules of procedure are but mere tools designed to facilitate
the attainment of justice. Their strict and rigid application, which would result in
technicalities that tend to frustrate rather than promote substantial justice, must
always be avoided. Time and again, this Court has suspended its own rules and
excepted a particular case from their operation whenever the higher interests of
justice so require. In the instant petition, we forego a lengthy disquisition of the
proper procedure that should have been taken by the parties involved and proceed
directly to the merits of the case.

As to the second issue of whether the petitioners committed a fatal procedural lapse when they
failed to file a motion for reconsideration of the assailed resolution before seeking judicial
recourse, suffice it to state that the said motion is not necessary when the questioned resolution is
a patent nullity, 57 as will be taken up later.

With respect to the third issue, the respondents claim that the filing by the petitioners of: (a) a
petition for certiorari, prohibition with preliminary injunction (CA-G.R. SP No. 37614) with the
Court of Appeals; (b) a complaint for annulment and cancellation of title, damages and
injunction against DAR and 141 others (Civil Case No. 2687-97) with the Regional Trial Court
of Malaybalay, Bukidnon; and (c) the present petition, constitute forum shopping.

We disagree.

The rule is that:

There is forum-shopping whenever, as a result of an adverse opinion in one

forum, a party seeks a favorable opinion (other than by appeal or certiorari) in
another. The principle applies not only with respect to suits filed in the courts but
also in connection with litigation commenced in the courts while an
administrative proceeding is pending, as in this case, in order to defeat
administrative processes and in anticipation of an unfavorable administrative
ruling and a favorable court ruling. This specially so, as in this case, where the
court in which the second suit was brought, has no jurisdiction (citations omitted).

The test for determining whether a party violated the rule against forum shopping
has been laid down in the 1986 case of Buan vs. Lopez (145 SCRA 34), . . . and
that is, forum shopping exists where the elements of litis pendentia are present or
where a final judgment in one case will amount to res judicata in the other, as
follows:

There thus exists between the action before this Court and RTC
Case No. 86-36563 identity of parties, or at least such parties as
represent the same interests in both actions, as well as identity of
rights asserted and relief prayed for, the relief being founded on the
 same facts, and the identity on the two preceding particulars is
such that any judgment rendered in the other action, will,
regardless of which party is successful, amount to res adjudicata in
the action under consideration: all the requisites, in fine, of auter
action pendant. 58

It is clear from the above-quoted rule that the petitioners are not guilty of forum shopping. The
test for determining whether a party has violated the rule against forum shopping is where a final
judgment in one case will amount to res adjudicata in the action under consideration. A cursory
examination of the cases filed by the petitioners does not show that the said cases are similar
with each other. The petition for certiorari in the Court of Appeals sought the nullification of the
DAR Secretary's order to proceed with the compulsory acquisition and distribution of the subject
property. On the other hand, the civil case in RTC of Malaybalay, Bukidnon for the annulment
and cancellation of title issued in the name of the Republic of the Philippines, with damages, was
based on the following grounds: (1) the DAR, in applying for cancellation of petitioner
NQSRMDC's title, used documents which were earlier declared null and void by the DARAB;
(2) the cancellation of NQSRMDC's title was made without payment of just compensation; and
(3) without notice to NQSRMDC for the surrender of its title. The present petition is entirely
different from the said two cases as it seeks the nullification of the assailed "Win-Win"
Resolution of the Office of the President dated November 7, 1997, which resolution was issued
long after the previous two cases were instituted.

The fourth and final preliminary issue to be resolved is the motion for intervention filed by
alleged farmer-beneficiaries, which we have to deny for lack of merit. In their motion, movants
contend that they are the farmer-beneficiaries of the land in question, hence, are real parties in
interest. To prove this, they attached as Annex "I" in their motion a Master List of Farmer-
Beneficiaries. Apparently, the alleged master list was made pursuant to the directive in the
dispositive portion of the assailed "Win-Win" Resolution which directs the DAR "to carefully
and meticulously determine who among the claimants are qualified farmer-beneficiaries."
However, a perusal of the said document reveals that movants are those purportedly "Found
Qualified and Recommended for Approval." In other words, movants are merely recommendee
farmer-beneficiaries.

The rule in this jurisdiction is that a real party in interest is a party who would be benefited or
injured by the judgment or is the party entitled to the avails of the suit. Real interest means a
present substantial interest, as distinguished from a mere expectancy or a future, contingent,
subordinate or consequential interest. 59 Undoubtedly, movants' interest over the land in
question is a mere expectancy. Ergo, they are not real parties in interest.

Furthermore, the challenged resolution upon which movants based their motion is, as intimated
earlier, null and void. Hence, their motion for intervention has no leg to stand on.

Now to the main issue of whether the final and executory Decision dated March 29, 1996 can
still be substantially modified by the "Win-Win" Resolution.

We rule in the negative.

The rules and regulations governing appeals to the Office of the President of the Philippines are
embodied in Administrative Order No. 18. Section 7 thereof provides:

Sec. 7. Decisions/resolutions/orders of the Office of the President shall, except as

otherwise provided for by special laws, become final after the lapse of fifteen (15)
days from receipt of a copy thereof by the parties, unless a motion for
reconsideration thereof is filed within such period.

Only one motion for reconsideration by any one party shall be allowed and
entertained, save in exceptionally meritorious cases. (Emphasis ours).

It is further provided for in Section 9 that "The Rules of Court shall apply in a suppletory
character whenever practicable.

When the Office of the President issued the Order dated June 23, 1997 declaring the Decision of
March 29, 1996 final and executory, as no one has seasonably filed a motion for reconsideration
thereto, the said Office had lost its jurisdiction to re-open the case, more so modify its Decision.
Having lost its jurisdiction, the Office of the President has no more authority to entertain the
second motion for reconsideration filed by respondent DAR Secretary, which second motion
became the basis of the assailed "Win-Win" Resolution. Section 7 of Administrative Order No.
18 and Section 4, Rule 43 of the Revised Rules of Court mandate that only one (1) motion for
reconsideration is allowed to be taken from the Decision of March 29, 1996. And even if a
second motion for reconsideration was permitted to be filed in "exceptionally meritorious cases,"
as provided in the second paragraph of Section 7 of AO 18, still the said motion should not have
been entertained considering that the first motion for reconsideration was not seasonably filed,
thereby allowing the Decision of March 29, 1996 to lapse into finality. Thus, the act of the Office
of the President in re-opening the case and substantially modifying its March 29, 1996 Decision
which had already become final and executory, was in gross disregard of the rules and basic
legal precept that accord finality to administrative determinations.

In San Luis, et al. vs. Court of Appeals, et al. 60 we held:

Since the decisions of both the Civil Service Commission and the Office of the
President had long become final and executory, the same can no longer be
reviewed by the courts. It is well-established in our jurisprudence that the
decisions and orders of administrative agencies, rendered pursuant to their quasi-
judicial authority, have upon their finality, the force and binding effect of a final
judgment within the purview of the doctrine of res judicata [Brillantes v. Castro,
99 Phil. 497 (1956), Ipekdijna Merchandizing Co., Inc. v. Court of Tax Appeals,
G.R. No. L-15430, September 30, 1963, 9 SCRA 72.] The rule of res judicata
which forbids the reopening of a matter once judicially determined by competent
authority applies as well to the judicial and quasi-judicial acts of public, executive
or administrative officers and boards acting within their jurisdiction as to the
judgments of courts having general judicial powers [Brillantes v. Castro, supra at
503].
The orderly administration of justice requires that the judgments/resolutions of a court or quasi-
judicial body must reach a point of finality set by the law, rules and regulations. The noble
purpose is to write finis to disputes once and for all. 61 This is a fundamental principle in our
justice system, without which there would no end to litigations. Utmost respect and adherence to
this principle must always be maintained by those who wield the power of adjudication. Any act
which violates such principle must immediately be struck down.

Therefore, the assailed "Win-Win" Resolution which substantially modified the Decision of
March 29, 1996 after it has attained finality, is utterly void. Such void resolution, as aptly
stressed by Justice Thomas A. Street 62 in a 1918 case, 63 is "a lawless thing, which can be
treated as an outlaw and slain at sight, or ignored wherever and whenever it exhibits its head." 64

WHEREFORE, the present petition is hereby GRANTED. The challenged Resolution dated
November 7, 1997, issued by the Office of the President in OP Case No. 96-C-6424, is hereby
NULLIFIED and SET ASIDE. The Motion For Leave To Intervene filed by alleged farmer-
beneficiaries is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

Fortich vs. Corona

G.R. No. 131457. April 24, 1998

HON. CARLOS O. FORTICH, PROVINCIAL GOVERNOR OF BUKIDNON, HON. REY B. BAULA,

MUNICIPAL MAYOR OF SUMILAO, BUKIDNON, NQSR MANAGEMENT AND DEVELOPMENT
CORPORATION,petitioners, vs. HON. RENATO C. CORONA, DEPUTY EXECUTIVE SECRETARY,
HON. ERNESTO D. GARILAO, SECRETARY OF THE DEPARTMENT OF AGRARIAN
REFORM, respondents.

This case involves a land located at San Vicente, Sumilao, Bukidnon, owned by the Norberto
Quisumbing, Sr. Management and Development Corporation (NQSRMDC), one of the petitioners. The
property is covered by a Transfer Certificate of Title No. 14371 of the Registry of Deeds of the Province of
Bukidnon.

In 1984, the land was leased as a pineapple plantation to the Philippine Packing Corporation, now Del
Monte Philippines, Inc. (DMPI), a multinational corporation, for a period of ten (10) years under the Crop
Producer and Growers Agreement duly annotated in the certificate of title. The lease expired in April,
1994.

In October, 1991, during the existence of the lease, the Department of Agrarian Reform (DAR) placed
the entire 144-hectare property under compulsory acquisition and assessed the land value at P2.38
million.

When NQSRMDC was about to transfer the title over the 4-hectare donated to DECS, it discovered that
the title over the subject property was no longer in its name. It soon found out that during the pendency of
both the Petition for Certiorari, Prohibition, with Preliminary Injunction it filed against DAR in the Court of
Appeals and the appeal to the President filed by Governor Carlos O. Fortich, the DAR, without giving just
compensation, caused the cancellation of NQSRMDCs title on August 11, 1995 and had it transferred in
the name of the Republic of the Philippines under TCT No. T-50264 of the Registry of Deeds of Bukidnon.
Thereafter, on September 25, 1995, DAR caused the issuance of Certificates of Land Ownership Award
(CLOA) No. 00240227 and had it registered in the name of 137 farmer-beneficiaries under TCT No. AT-
3536 of the Registry of Deeds of Bukidnon.

NQSRMDC filed a complaint with the Regional Trial Court (RTC) of Malaybalay, Bukidnon docketed as
Civil Case No. 2687-97, for annulment and cancellation of title, damages and injunction against DAR and
141 others. The RTC then issued a Temporary Restraining Order and a Writ of Preliminary Injunction on
May 19, 1997, restraining the DAR and 141 others from entering, occupying and/or wresting from
NQSRMDC the possession of the subject land.

Meanwhile, an Order was issued by then Executive Secretary Ruben D. Torres denying DARs motion for
reconsideration for having been filed beyond the reglementary period of fifteen (15) days. The said order
further declared that the March 29, 1996 OP decision had already become final and executory.

On December 12, 1997, a Motion For Leave To Intervene was filed by alleged farmer-beneficiaries,
through counsel, claiming that they are real parties in interest as they were previously identified by
respondent DAR as agrarian reform beneficiaries on the 144-hectare property subject of this case. The
motion was vehemently opposed by the petitioners.

In seeking the nullification of the Win-Win Resolution, the petitioners claim that the Office of the President
was prompted to issue the said resolution after a very well-managed hunger strike led by fake farmer-
beneficiary Linda Ligmon succeeded in pressuring and/or politically blackmailing the Office of the
President to come up with this purely political decision to appease the farmers, by reviving and modifying
the Decision of 29 March 1996 which has been declared final and executory in an Order
of 23 June 1997. Thus, petitioners further allege, respondent then Deputy Executive Secretary
Renato C. Corona committed grave abuse of discretion and acted beyond his jurisdiction when he issued
the questioned Resolution of 7 November 1997. They availed of this extraordinary writ of certiorari
because there is no other plain, speedy and adequate remedy in the ordinary course of law. They never
filed a motion for reconsideration of the subject Resolution because (it) is patently illegal or contrary to
law and it would be a futile exercise to seek reconsideration.

Issue:
1) Whether or not the proper remedy of petitioners should have been to file a petition for review directly
with the Court of Appeals in accordance with Rule 43 of the Revised Rules of Court;

(2) Whether or not the petitioners failed to file a motion for reconsideration of the assailed Win-Win
Resolution before filing the present petition; and

(3) Whether or not Petitioner NQSRMDC is guilty of forum-shopping.

Held:
1. In order to determine whether the recourse of petitioners is proper or not, it is necessary to draw a line
between an error of judgment and an error of jurisdiction.

An error of judgment is one which the court may commit in the exercise of its jurisdiction, and
which error is reviewable only by an appeal. On the other hand, an error of jurisdiction is one where
the act complained of was issued by the court, officer or a quasi-judicial body without or in excess of
jurisdiction, or with grave abuse of discretion which is tantamount to lack or in excess of
jurisdiction. This error is correctable only by the extraordinary writ of certiorari.
It is true that under Rule 43, appeals from awards, judgments, final orders or resolutions of any quasi-
judicial agency exercising quasi-judicial functions, including the Office of the President, may be
taken to the Court of Appeals by filing a verified petition for review within fifteen (15) days from notice of
the said judgment, final order or resolution, whether the appeal involves questions of fact, of law, or mixed
questions of fact and law.

However, in this particular case, the remedy prescribed in Rule 43 is inapplicable considering that the
present petition contains an allegation that the challenged resolution is patently illegal and was issued
with grave abuse of discretion and beyond his (respondent Secretary Renato C. Coronas)
jurisdiction when said resolution substantially modified the earlier OP Decision of March 29, 1996 which
had long become final and executory. In other words, the crucial issue raised here involves an error of
jurisdiction, not an error of judgment which is reviewable by an appeal under Rule 43. Thus, the
appropriate remedy to annul and set aside the assailed resolution is an original special civil action for
certiorari under Rule 65, as what the petitioners have correctly done. The pertinent portion of Section 1
thereof provides:

SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-
judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate
remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper
court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the
proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may
require.

The office of a writ of certiorari is restricted to truly extraordinary cases in which the act of the lower court
or quasi-judicial body is wholly void.

The aforequoted Section 1 of Rule 65 mandates that the person aggrieved by the assailed illegal act may
file a verified petition (for certiorari) in the proper court. The proper court where the petition must be
filed is stated in Section 4 of the same Rule 65 which reads:

SEC. 4. Where petition filed.- The petition may be filed not later than sixty (60) days from notice of the
judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or
omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court
exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if
it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless
otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of
Appeals.

Under the above-quoted Section 4, the Supreme Court, Court of Appeals and Regional Trial Court have
original concurrent jurisdiction to issue a writ of certiorari, prohibition and mandamus. But the jurisdiction
of these three (3) courts are also delineated in that, if the challenged act relates to acts or omissions of a
lower court or of a corporation, board, officer or person, the petition must be filed with the Regional Trial
Court which exercises jurisdiction over the territorial area as defined by the Supreme Court. And if it
involves the act or omission of a quasi-judicial agency, the petition shall be filed only with the Court of
Appeals, unless otherwise provided by law or the Rules of Court. We have clearly discussed this matter of
concurrence of jurisdiction in People vs. Cuaresma, et. al., through now Chief Justice Andres R.
Narvasa, thus:

This Courts original jurisdiction to issue writs of certiorari (as well as prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive. It is shared by this Court with Regional
Trial Courts , which may issue the writ, enforceable in any part of their respective regions. It is also
shared by this Court, and by the Regional Trial Court, with the Court of Appeals, although prior to the
effectivity of Batas Pambansa Bilang 129, the latters competence to issue the extraordinary writs
was restricted to those in aid of its appellate jurisdiction. This concurrence of jurisdiction is not, however,
to be taken as according to parties seeking any of the writs an absolute, unrestrained freedom of choice
of the court to which application therefor will be directed.

But the Supreme Court has the full discretionary power to take cognizance of the petition filed directly to it
if compelling reasons, or the nature and importance of the issues rose, warrant. This has been the judicial
policy to be observed.

Pursuant to said judicial policy, we resolve to take primary jurisdiction over the present petition in the
interest of speedy justice and to avoid future litigations so as to promptly put an end to the present
controversy which, as correctly observed by petitioners, has sparked national interest because of the
magnitude of the problem created by the issuance of the assailed resolution. Moreover, as will be
discussed later, we find the assailed resolution wholly void and requiring the petitioners to file their
petition first with the Court of Appeals would only result in a waste of time and money.

2. The rules and regulations governing appeals to the Office of the President of the Philippines are
embodied in Administrative Order No. 18. Section 7 thereof provides:

SEC. 7. Decisions/resolutions/orders of the Office of the President shall, except as otherwise provided for
by special laws, become final after the lapse of fifteen (15) days from receipt of a
copy thereof by the parties, unless a motion for reconsideration thereof is filed within
such period.

Only one motion for reconsideration by any one party shall be allowed and
entertained, save in exceptionally meritorious cases.

It is further provided for in Section 9 that The Rules of Court shall apply in a suppletory character
whenever practicable.

When the Office of the President issued the Order dated June 23,1997 declaring the Decision of March
29, 1996 final and executory, as no one has seasonably filed a motion for reconsideration thereto, the
said Office had lost its jurisdiction to re-open the case, more so modify its Decision. Having lost its
jurisdiction, the Office of the President has no more authority to entertain the second motion for
reconsideration filed by respondent DAR Secretary, which second motion became the basis of the
assailed Win-Win Resolution. Section 7 of Administrative Order No. 18 and Section 4, Rule 43 of the
Revised Rules of Court mandate that only one (1) motion for reconsideration is allowed to be taken from
the Decision of March 29, 1996. And even if a second motion for reconsideration was permitted to be filed
in exceptionally meritorious cases, as provided in the second paragraph of Section 7 of AO 18, still the
said motion should not have been entertained considering that the first motion for reconsideration was not
seasonably filed, thereby allowing the Decision of March 29, 1996 to lapse into finality. Thus, the act of
the Office of the President in re-opening the case and substantially modifying its March 29,1996 Decision
which had already become final and executory, was in gross disregard of the rules and basic legal
precept that accord finality to administrative determinations.

In San Luis, et al. vs. Court of Appeals, et al. we held:

Since the decisions of both the Civil Service Commission and the Office of the President had long
become final and executory, the same can no longer be reviewed by the courts. It is well-established in
our jurisprudence that the decisions and orders of administrative agencies, rendered pursuant to their
quasi-judicial authority, have upon their finality, the force and binding effect of a final judgment within the
purview of the doctrine of res judicata The rule of res judicata which forbids the reopening of a matter
once judicially determined by competent authority applies as well to the judicial and quasi-judicial acts of
public, executive or administrative officers and boards acting within their jurisdiction as to the judgments
of courts having general judicial powers.
The orderly administration of justice requires that the judgments/resolutions of a court or quasi-judicial
body must reach a point of finality set by the law, rules and regulations. The noble purpose is to write finis
to disputes once and for all. This is a fundamental principle in our justice system, without which there
would be no end to litigations. Utmost respect and adherence to this principle must always be maintained
by those who wield the power of adjudication. Any act which violates such principle must immediately be
struck down.

3. There is forum-shopping whenever, as a result of an adverse opinion in one forum, a party seeks a
favorable opinion (other than by appeal or certiorari) in another. The principle applies not only with
respect to suits filed in the courts but also in connection with litigation commenced in the courts while an
administrative proceeding is pending, as in this case, in order to defeat administrative processes and in
anticipation of an unfavorable administrative ruling and a favorable court ruling. This specially so, as in
this case, where the court in which the second suit was brought, has no jurisdiction.

The test for determining whether a party violated the rule against forum shopping has been laid down in
the 1986 case of Buan vs. Lopez and that is, forum shopping exists where the elements
of litis pendentia are present or where a final judgment in one case will amount
to res judicata in the other, as follows:
There thus exists between the action before this Court and RTC Case No. 86-36563 identity of parties, or
at least such parties as represent the same interests in both actions, as well as identity of rights
asserted and relief prayed for, the relief being founded on the same facts, and the identity on the
two preceding particulars is such that any judgment rendered in the other action, will,
regardless of which party is successful, amount to res adjudicata in the action
under consideration: all the requisites, in fine, of auter action pendant.
It is clear from the above-quoted rule that the petitioners are not guilty of forum shopping. The test for
determining whether a party has violated the rule against forum shopping is where a final judgment in one
case will amount to res adjudicata in the action under consideration. A cursory examination of the
cases filed by the petitioners does not show that the said cases are similar with each other. The petition
for certiorari in the Court of Appeals sought the nullification of the DAR Secretarys order to proceed with
the compulsory acquisition and distribution of the subject property. On the other hand, the civil case in
RTC of Malaybalay, Bukidnon for the annulment and cancellation of title issued in the name of the
Republic of the Philippines, with damages, was based on the following grounds: (1) the DAR, in applying
for cancellation of petitioner NQSRMDCs title, used documents which were earlier declared null and void
by the DARAB; (2) the cancellation of NQSRMDCs title was made without payment of just compensation;
and (3) without notice to NQSRMDC for the surrender of its title. The present petition is entirely different
from the said two cases as it seeks the nullification of the assailed Win-Win Resolution of the Office of the
President dated November 7, 1997, which resolution was issued long after the previous two cases were
instituted.

Posted by Lerie Rose at 7:00:00 AM

G.R. No. 97764 August 10, 1992

LEVY D. MACASIANO, Brigadier General/PNP Superintendent, Metropolitan Traffic Command, petitioner,

vs.
HONORABLE ROBERTO C. DIOKNO, Presiding Judge, Branch 62, Regional Trial Court of Makati, Metro Manila, MUNICIPALITY OF
PARAÑAQUE, METRO MANILA, PALANYAG KILUSANG BAYAN FOR SERVICE, respondents.

Ceferino, Padua Law Office for Palanyag Kilusang Bayan for service.

Manuel de Guia for Municipality of Parañaque.

MEDIALDEA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking the annulment of the decision of the Regional Trial Court of
Makati, Branch 62, which granted the writ of preliminary injunction applied for by respondents Municipality of Parañaque and Palanyag
Kilusang Bayan for Service (Palanyag for brevity) against petitioner herein.

The antecedent facts are as follows:

On June 13, 1990, the respondent municipality passed Ordinance No. 86, Series of 1990 which authorized the closure of J. Gabriel, G.G.
Cruz, Bayanihan, Lt. Garcia Extension and Opena Streets located at Baclaran, Parañaque, Metro Manila and the establishment of a flea
market thereon. The said ordinance was approved by the municipal council pursuant to MMC Ordinance No. 2, Series of 1979, authorizing
and regulating the use of certain city and/or municipal streets, roads and open spaces within Metropolitan Manila as sites for flea market
and/or vending areas, under certain terms and conditions.

On July 20, 1990, the Metropolitan Manila Authority approved Ordinance No. 86, s. 1990 of the municipal council of respondent municipality
subject to the following conditions:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do not oppose
the establishment of the flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2
meters on both sides of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly designated;

4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed
and donated by the Public Estate Authority.

On June 20, 1990, the municipal council of Parañaque issued a resolution authorizing Parañaque Mayor Walfrido N. Ferrer to enter into
contract with any service cooperative for the establishment, operation, maintenance and management of flea markets and/or vending areas.

On August 8, 1990, respondent municipality and respondent Palanyag, a service cooperative, entered into an agreement whereby the latter
shall operate, maintain and manage the flea market in the aforementioned streets with the obligation to remit dues to the treasury of the
municipal government of Parañaque. Consequently, market stalls were put up by respondent Palanyag on the said streets.

On September 13, 1990, petitioner Brig. Gen. Macasiano, PNP Superintendent of the Metropolitan Traffic Command, ordered the destruction
and confiscation of stalls along G.G. Cruz and J. Gabriel St. in Baclaran. These stalls were later returned to respondent Palanyag.

On October 16, 1990, petitioner Brig. General Macasiano wrote a letter to respondent Palanyag giving the latter ten (10) days to discontinue
the flea market; otherwise, the market stalls shall be dismantled.

Hence, on October 23, 1990, respondents municipality and Palanyag filed with the trial court a joint petition for prohibition and mandamus
with damages and prayer for preliminary injunction, to which the petitioner filed his memorandum/opposition to the issuance of the writ of
preliminary injunction.

On October 24, 1990, the trial court issued a temporary restraining order to enjoin petitioner from enforcing his letter-order of October 16,
1990 pending the hearing on the motion for writ of preliminary injunction.

On December 17, 1990, the trial court issued an order upholding the validity of Ordinance No. 86 s. 1990 of the Municipality' of Parañaque
and enjoining petitioner Brig. Gen. Macasiano from enforcing his letter-order against respondent Palanyag.

Hence, this petition was filed by the petitioner thru the Office of the Solicitor General alleging grave abuse of discretion tantamount to lack or
excess of jurisdiction on the part of the trial judge in issuing the assailed order.

The sole issue to be resolved in this case is whether or not an ordinance or resolution issued by the municipal council of Parañaque
authorizing the lease and use of public streets or thoroughfares as sites for flea markets is valid.

The Solicitor General, in behalf of petitioner, contends that municipal roads are used for public service and are therefore public properties;
that as such, they cannot be subject to private appropriation or private contract by any person, even by the respondent Municipality of
Parañaque. Petitioner submits that a property already dedicated to public use cannot be used for another public purpose and that absent a
clear showing that the Municipality of Parañaque has been granted by the legislature specific authority to convert a property already in public
use to another public use, respondent municipality is, therefore, bereft of any authority to close municipal roads for the establishment of a
flea market. Petitioner also submits that assuming that the respondent municipality is authorized to close streets, it failed to comply with the
conditions set forth by the Metropolitan Manila Authority for the approval of the ordinance providing for the establishment of flea markets on
public streets. Lastly, petitioner contends that by allowing the municipal streets to be used by market vendors the municipal council of
respondent municipality violated its duty under the Local Government Code to promote the general welfare of the residents of the
municipality.

In upholding the legality of the disputed ordinance, the trial court ruled:

. . . that Chanter II Section 10 of the Local Government Code is a statutory grant of power given to local government
units, the Municipality of Parañaque as such, is empowered under that law to close its roads, streets or alley subject to
limitations stated therein (i.e., that it is in accordance with existing laws and the provisions of this code).

xxx xxx xxx

The actuation of the respondent Brig. Gen. Levi Macasiano, though apparently within its power is in fact an
encroachment of power legally vested to the municipality, precisely because when the municipality enacted the
ordinance in question — the authority of the respondent as Police Superintendent ceases to be operative on the
ground that the streets covered by the ordinance ceases to be a public thoroughfare. (pp. 33-34, Rollo)

We find the petition meritorious. In resolving the question of whether the disputed municipal ordinance authorizing the flea market on the
public streets is valid, it is necessary to examine the laws in force during the time the said ordinance was enacted, namely, Batas Pambansa
Blg. 337, otherwise known as Local Government Code, in connection with established principles embodied in the Civil Code an property and
settled jurisprudence on the matter.

The property of provinces, cities and municipalities is divided into property for public use and patrimonial property (Art. 423, Civil Code). As to
what consists of property for public use, Article 424 of Civil Code states:

Art. 424. Property for public use, in the provinces, cities and municipalities, consists of the provincial roads, city streets,
the squares, fountains, public waters, promenades, and public works for public service paid for by said provinces, cities
or municipalities.

All other property possessed by any of them is patrimonial and shall be governed by this Code, without prejudice to the
provisions of special laws.

Based on the foregoing, J. Gabriel G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets are local roads used for public service and
are therefore considered public properties of respondent municipality. Properties of the local government which are devoted to public service
are deemed public and are under the absolute control of Congress (Province of Zamboanga del Norte v. City of Zamboanga, L-24440, March
28, 1968, 22 SCRA 1334). Hence, local governments have no authority whatsoever to control or regulate the use of public properties unless
specific authority is vested upon them by Congress. One such example of this authority given by Congress to the local governments is the
power to close roads as provided in Section 10, Chapter II of the Local Government Code, which states:

Sec. 10. Closure of roads. — A local government unit may likewise, through its head acting pursuant to a resolution of
its sangguniang and in accordance with existing law and the provisions of this Code, close any barangay, municipal,
city or provincial road, street, alley, park or square. No such way or place or any part of thereof shall be close without
indemnifying any person prejudiced thereby. A property thus withdrawn from public use may be used or conveyed for
any purpose for which other real property belonging to the local unit concerned might be lawfully used or conveyed.
(Emphasis ours).

However, the aforestated legal provision which gives authority to local government units to close roads and other similar public places should
be read and interpreted in accordance with basic principles already established by law. These basic principles have the effect of limiting such
authority of the province, city or municipality to close a public street or thoroughfare. Article 424 of the Civil Code lays down the basic
principle that properties of public dominion devoted to public use and made available to the public in general are outside the commerce of
man and cannot be disposed of or leased by the local government unit to private persons. Aside from the requirement of due process which
should be complied with before closing a road, street or park, the closure should be for the sole purpose of withdrawing the road or other
public property from public use when circumstances show that such property is no longer intended or necessary for public use or public
service. When it is already withdrawn from public use, the property then becomes patrimonial property of the local government unit
concerned (Article 422, Civil Code; Cebu Oxygen, etc. et al. v. Bercilles, et al., G.R. No. L-40474, August 29, 1975, 66 SCRA 481). It is only
then that the respondent municipality can "use or convey them for any purpose for which other real property belonging to the local unit
concerned might be lawfully used or conveyed" in accordance with the last sentence of Section 10, Chapter II of Blg. 337, known as Local
Government Code. In one case, the City Council of Cebu, through a resolution, declared the terminal road of M. Borces Street, Mabolo,
Cebu City as an abandoned road, the same not being included in the City Development Plan. Thereafter, the City Council passes another
resolution authorizing the sale of the said abandoned road through public bidding. We held therein that the City of Cebu is empowered to
close a city street and to vacate or withdraw the same from public use. Such withdrawn portion becomes patrimonial property which can be
the object of an ordinary contract (Cebu Oxygen and Acetylene Co., Inc. v. Bercilles, et al., G.R. No.
L-40474, August 29, 1975, 66 SCRA 481). However, those roads and streets which are available to the public in general and ordinarily used
for vehicular traffic are still considered public property devoted to public use. In such case, the local government has no power to use it for
another purpose or to dispose of or lease it to private persons. This limitation on the authority of the local government over public properties
has been discussed and settled by this Court en banc in "Francisco V. Dacanay, petitioner v. Mayor Macaria Asistio, Jr., et al., respondents,
G.R. No. 93654, May 6, 1992." This Court ruled:

There is no doubt that the disputed areas from which the private respondents' market stalls are sought to be evicted
are public streets, as found by the trial court in Civil Case No. C-12921. A public street is property for public use hence
outside the commerce of man (Arts. 420, 424, Civil Code). Being outside the commerce of man, it may not be the
subject of lease or others contract (Villanueva, et al. v. Castañeda and Macalino, 15 SCRA 142 citing the Municipality
of Cavite v. Rojas, 30 SCRA 602; Espiritu v. Municipal Council of Pozorrubio, 102 Phil. 869; And Muyot v. De la
Fuente, 48 O.G. 4860).

As the stallholders pay fees to the City Government for the right to occupy portions of the public street, the City
Government, contrary to law, has been leasing portions of the streets to them. Such leases or licenses are null and
void for being contrary to law. The right of the public to use the city streets may not be bargained away through
contract. The interests of a few should not prevail over the good of the greater number in the community whose health,
peace, safety, good order and general welfare, the respondent city officials are under legal obligation to protect.

The Executive Order issued by acting Mayor Robles authorizing the use of Heroes del '96 Street as a vending area for
stallholders who were granted licenses by the city government contravenes the general law that reserves city streets
and roads for public use. Mayor Robles' Executive Order may not infringe upon the vested right of the public to use city
streets for the purpose they were intended to serve: i.e., as arteries of travel for vehicles and pedestrians.

Even assuming, in gratia argumenti, that respondent municipality has the authority to pass the disputed ordinance, the same cannot be
validly implemented because it cannot be considered approved by the Metropolitan Manila Authority due to non-compliance by respondent
municipality of the conditions imposed by the former for the approval of the ordinance, to wit:

1. That the aforenamed streets are not used for vehicular traffic, and that the majority of the residents do(es) not
oppose the establishment of the flea market/vending areas thereon;

2. That the 2-meter middle road to be used as flea market/vending area shall be marked distinctly, and that the 2
meters on both sides of the road shall be used by pedestrians;

3. That the time during which the vending area is to be used shall be clearly designated;

4. That the use of the vending areas shall be temporary and shall be closed once the reclaimed areas are developed
and donated by the Public Estate Authority. (p. 38, Rollo)

Respondent municipality has not shown any iota of proof that it has complied with the foregoing conditions precedent to the approval of the
ordinance. The allegations of respondent municipality that the closed streets were not used for vehicular traffic and that the majority of the
residents do not oppose the establishment of a flea market on said streets are unsupported by any evidence that will show that this first
condition has been met. Likewise, the designation by respondents of a time schedule during which the flea market shall operate is absent.

Further, it is of public notice that the streets along Baclaran area are congested with people, houses and traffic brought about by the
proliferation of vendors occupying the streets. To license and allow the establishment of a flea market along J. Gabriel, G.G. Cruz,
Bayanihan, Lt. Garcia Extension and Opena streets in Baclaran would not help in solving the problem of congestion. We take note of the
other observations of the Solicitor General when he said:

. . . There have been many instances of emergencies and fires where ambulances and fire engines, instead of using
the roads for a more direct access to the fire area, have to maneuver and look for other streets which are not occupied
by stalls and vendors thereby losing valuable time which could, otherwise, have been spent in saving properties and
lives.

Along G.G. Cruz Street is a hospital, the St. Rita Hospital. However, its ambulances and the people rushing their
patients to the hospital cannot pass through G.G. Cruz because of the stalls and the vendors. One can only imagine
the tragedy of losing a life just because of a few seconds delay brought about by the inaccessibility of the streets
leading to the hospital.

The children, too, suffer. In view of the occupancy of the roads by stalls and vendors, normal transportation flow is
disrupted and school children have to get off at a distance still far from their schools and walk, rain or shine.

Indeed one can only imagine the garbage and litter left by vendors on the streets at the end of the day. Needless to
say, these cause further pollution, sickness and deterioration of health of the residents therein. (pp. 21-22, Rollo)

Respondents do not refute the truth of the foregoing findings and observations of petitioners. Instead, respondents want this Court to focus
its attention solely on the argument that the use of public spaces for the establishment of a flea market is well within the powers granted by
law to a local government which should not be interfered with by the courts.
Verily, the powers of a local government unit are not absolute. They are subject to limitations laid down by toe Constitution and the laws such
as our Civil Code. Moreover, the exercise of such powers should be subservient to paramount considerations of health and well-being of the
members of the community. Every local government unit has the sworn obligation to enact measures that will enhance the public health,
safety and convenience, maintain peace and order, and promote the general prosperity of the inhabitants of the local units. Based on this
objective, the local government should refrain from acting towards that which might prejudice or adversely affect the general welfare.

As what we have said in the Dacanay case, the general public have a legal right to demand the demolition of the illegally constructed stalls in
public roads and streets and the officials of respondent municipality have the corresponding duty arising from public office to clear the city
streets and restore them to their specific public purpose.

The instant case as well as the Dacanay case, involves an ordinance which is void and illegal for lack of basis and authority in laws
applicable during its time. However, at this point, We find it worthy to note that Batas Pambansa Blg. 337, known as Local Government Lode,
has already been repealed by Republic Act No. 7160 known as Local Government Code of 1991 which took effect on January 1, 1992.
Section 5(d) of the new Code provides that rights and obligations existing on the date of effectivity of the new Code and arising out of
contracts or any other source of prestation involving a local government unit shall be governed by the original terms and conditions of the
said contracts or the law in force at the time such rights were vested.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent Regional Trial Court dated December 17, 1990 which granted
the writ of preliminary injunction enjoining petitioner as PNP Superintendent, Metropolitan Traffic Command from enforcing the demolition of
market stalls along J. Gabriel, G.G. Cruz, Bayanihan, Lt. Garcia Extension and Opena streets is hereby RESERVED and SET ASIDE.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur.

EVY D. MACASIANO VS. HONORABLE ROBERTO C.

DIOKNO,MUNICIPALITY OF PARANAQUE,METRO MANILA,
PALANYAG KILUSANG BAYAN FOR SERVICE GR No. 97764 August 10,
1992

Facts: On June 13, 1990, the municipality of Paranaque passed an

ordinance authorizing the closure of some streets located at Baclaran,
Paranaque, Metro Manila and the establishment of a flea market thereon. By
virtue of this Paranaque Mayor Ferrer was authorized to enter into a contract
to any service cooperative for the establishment, operation, maintenance and
management of flea market and/or vending areas. Because of this purpose,
respondent Palanyag entered into an agreement with the municipality of
Paranaque with the obligation to remit dues to the treasury. Consequently,
market stalls were put up by respondent Palanyag on the said streets.

On September 30, 1990, Brig. Gen Macasiano, PNP Superintendent of

Metropolitan Traffic Command ordered the destruction and confiscation of
the stalls. These stalls were later returned to Palanyag. Petitioner then sent a
letter to Palanyag giving the latter 10 days to discontinue the flea market
otherwise the market stalls shall be dismantled. Hence, respondents filed
with the court a joint petition for prohibition and mandamus with damages
and prayer for preliminary injunction, to which the petitioner filed his
memorandum/opposition to the issuance of the writ of preliminary
injunction. The court issued a temporary restraining order to enjoin
petitioner from enforcing his letter pending the hearing on the motion for
writ of preliminary injunction.

Issue: Whether an ordinance issued by the municipality of Paranaque

authorizing the lease and use of public streets or thoroughfares as sites for
flea market is valid?

Held: Article 424 lays down the basic principle that properties of public
domain devoted to public use and made available to the public in general are
outside the commerce of man and cannot be disposed or leased by the local
government unit to private persons. Aside from the requirement of due
process, the closure of the road should be for the sole purpose of
withdrawing the road or other public property from public use when
circumstances show that such property is no longer intended or necessary
for public use or public service. When it is already withdrawn from public
use, the property becomes patrimonial property of the local government unit
concerned. It is only then that respondent municipality can use or convey
them for any purpose for which other real property belonging to the local
unit concerned might lawfully used or conveyed.

Those roads and streets which are available to the public in general
and ordinarily used for vehicular traffic are still considered public property
devoted to public use. In such case, the local government has no power to
use it for another purpose or to dispose of or lease it to private persons.
Hence the ordinance is null and void.
Posted by rsb at 1:17 AM
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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.

PANGANIBAN, J.:

Who has the legal authority to represent a municipality in law-suits? 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 Decision1 of public
respondent2 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 Resolution3 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 with: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, 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
proceeding 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:

"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."

Petitioner's 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 re-
taking 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 as been "legally remedied" by its formal adoption
upon motion of the Provincial Attorney (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 counsel of (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.

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 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 . . . (Thus,) what petitioners had sought to (be) achieve(d) in their said motion was in fact what Atty.
Romanillos had sought . . . 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, absurd (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 be the proceedings be validated by a
provincial attorney's 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

. . . 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:

Sec. 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
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 of Alinsug 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 cited Enriquez, 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 municipal
attorney and the fiscal, as such representations 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. (Emphasis 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 expanded 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 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 lawyers 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 Wee see it, to declare the said proceedings null and void
— notwithstanding the formal adoption thereof by Atty. Regalado as Provincial Attorney of Bulacan 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.

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 adoptions 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 it 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 lawyers work cannot bind the municipality.

Third Issue: "Joint Motion" Need Not Comply with Rule 15

We also agree with the justification of public respondent than a motion to withdraw the appearance of an unauthorized lawyer is a non-
adversarial motion that need not comply with Section 4 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 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 . . . (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 are AFFIRMED. No costs.

SO ORDERED.

Narvasa, C.J., Davide, Melo and Francisco, JJ., concur.

Footnotes

1 Rollo, pp. 28-35.

2 Eight Division composed of Justice Lorna S. Lombos-De La Fuente, ponente, and Justices Alfredo M. Marigomen
and Jainal D. Rasul, concurring.

3 Rollo, p. 37.

4 Ibid., pp. 28-31.

5 Ibid., p. 212.

6 Ibid., pp. 10-11.

7 Ibid., p. 31.

8 Ibid., pp. 33-34.

9 Ibid., p. 34.

10 Ibid.

11 Ibid., pp. 166-167.

12 "Sec. 4. Notice. — Notice of a motion shall be served by the applicant to all parties concerned, at least three (3)
days before the hearing thereof, together with a copy of the motion, and of any affidavits and other papers
accompanying it. The court, however, for good cause may hear a motion on shorter notice, specially on matter which
the court may dispose of on its own motion."

"Sec. 5. Contents of notice. — The notice shall be directed to the parties concerned, and shall state the time and place
for the hearing of the motion."

13 233 SCRA 484, June 28, 1994.

14 at pp. 490-491.

15 108 SCRA 728, October 30, 1981.

16 147 SCRA 447, January 29, 1987.

17 The Administrative Code of 1987 (E.O. No. 292) provides:

"Sec. 9. Provincial/City Prosecution Offices. — The Provincial and City Fiscals Office established in each of the
provinces and cities pursuant to law, is retained and renamed Provincial/City Prosecution Office. It shall be headed by
a Provincial Prosecutor or City Prosecutor, as the case may be, assisted by such number of Assistant Provincial/City
Prosecutors as fixed and/or authorized by law. The position titles of Provincial and City Fiscal and of Assistant
Provincial and City Fiscal are hereby abolished.

All the provincial/city prosecution offices shall continue to discharge their functions under existing law.

All provincial and city prosecutors and their assistants shall be appointed by the President upon the recommendation of
the Secretary."

18 This section states that the municipal attorney, as the head of the legal division or office of a municipality, "shall act
as legal counsel of the municipality and perform such duties and exercise such powers as may be assigned to him by
the council."

19 Municipality of Bocaue, et al. vs. Monotok, 93 Phil. 173 (1953); Enriquez, Sr. vs. Gimenez, etc., 107 Phil. 932
(1960); De Guia vs. The Auditor General, et al., 44 SCRA 169, March 29, 1972.
 20 De Guia vs. The Auditor General, et al., ante.

21 Section 19 of RA 5185, provides:

"Sec. 19. Creation of positions of Provincial Attorney and City Legal Officer. — To enable the provincial and city
governments to avail themselves of the full time and trusted services of legal officers, the positions of provincial
attorney and city legal officer, the positions of provincial attorney and city legal officer may be created and such officer
shall be appointed in such manner as is provided for such under Section four of this Act. For this purpose the functions
hitherto performed by the provincial and city fiscals in serving as legal adviser and officer for civil cases of the province
and city shall be transferred to the provincial attorney and city legal officer, respectively."

22 225 SCRA 553, August 23, 1993.

23 at pp. 557-559.

24 Rollo, p. 30.

25 Ramos vs. Court of Appeals, supra, at p. 733.

26 Supra.

27 at p. 492.

28 Province of Cebu vs. Intermediate Appellate Court, 147 SCRA 447, 458, January 29, 1987.

29 Ibid., p. 34.

30 Rollo, p. 17. Actually, the "joint motion" included a notice of hearing (see rollo, p. 97). The records do not show
whether the motion was served three (3) days prior to the hearing. However, the presumption of regularity in the
performance of official duty (Section 3 [m] of Rule 131 of the Rules of Court) causes us to assume it was served on
time. The apparent defect in the motion is its failure to state the "time" of hearing as required be Section 5, Rule 15 of
the Rules of Court.

31 255 SCRA 238, 247-248, March 28, 1996.

32 Buan vs. Court of Appeals, 235 SCRA 424, 431, August 17, 1994; citing cases.

The Lawphil Project - Arellano Law Foundation

CITY OF QUEZON, petitioner, vs. LEXBER INCORPORATED, respondent.

DECISION

YNARES-SANTIAGO, J.:

Before us is a petition for review on certiorari assailing the October 18, 1999 decision of the
Court of Appeals in CA-G.R. CV No. 59541i[1] which affirmed in toto the January 26, 1998
decision of the Regional Trial Court of Quezon City in Civil Case No. Q-94-19405.ii[2]

Briefly stated, the facts are as follows

On August 27, 1990, a Tri-Partite Memorandum of Agreementiii[3] was drawn between
petitioner City of Quezon, represented by its then Mayor Brigido R. Simon, Jr., respondent
Lexber, Inc. and the then Municipality of Antipolo, whereby a 26,010 square meter parcel of
land located in Antipoloiv[4] was to be used as a garbage dumping site by petitioner and other
Metro Manila cities or municipalities authorized by the latter, for a 5-year period commencing in
January 1991 to December 1995. Part of the agreement was that the landowner, represented by
respondent Lexber, shall be hired as the exclusive supplier of manpower, heavy equipment and
engineering services for the dumpsite and shall also have the right of first refusal for contracting
such services.

This led to the drawing of the first negotiated contractv[5] between petitioner, represented by
Mayor Simon, and respondent Lexber on September 10, 1990, whereby the latter was engaged to
construct the necessary infrastructure at the dumpsite, designated as the Quezon City Sanitary
Landfill, for the contract price of P4,381,069.00. Construction of said infrastructure was
completed by respondent Lexber on November 25, 1991, and the contract price agreed upon was
accordingly paid to it by petitioner.

Meanwhile, on November 8, 1990, a second negotiated contractvi[6] was entered into by

respondent Lexber with petitioner, again represented by Mayor Simon, whereby it was agreed
that respondent Lexber shall provide maintenance services in the form of manpower, equipment
and engineering operations for the dumpsite for the contract price of P1,536,796.00 monthly. It
was further agreed that petitioner shall pay respondent Lexber a reduced fee of fifty percent
(50%) of the monthly contract price, or P768,493.00, in the event petitioner fails to dump the
agreed volume of 54,000 cubic meters of garbage for any given month. On December 11, 1991,
respondent was notified by petitioner, through the City Engineer, Alfredo Macapugay, Project
Manager, Rene Lazaro and Mayor Simon to commence maintenance and dumping operations at
the site starting on December 15, 1991.vii[7]

Respondent Lexber alleged that petitioner immediately commenced dumping garbage on the
landfill site continuously from December 1991 until May 1992. Thereafter, petitioner ceased to
dump garbage on the said site for reasons not made known to respondent Lexber. Consequently,
even while the dumpsite remained unused, respondent Lexber claimed it was entitled to payment
for its services as stipulated in the second negotiated contract.

On December 12, 1992, respondents counsel sent a demand letter to petitioner demanding the
payment of at least 50% of its service fee under the said contract, in the total amount of
P9,989,174.00. In view of the idle state of the dumpsite for more than a year, respondent also
sought a clarification from petitioner regarding its intention on the dumpsite project, considering
the waste of equipment and manpower in the meantime, as well as its loss of opportunity for the
property.

Petitioner, this time acting through Mayor Ismael A. Mathay, Jr. who succeeded Mayor Simon in
the interim, denied any liability under the contract on the ground that the same was invalid and
unenforceable. According to Mayor Mathay, the subject contract was signed only by Mayor
Simon and had neither the approval nor ratification of the City Council, and it lacked the
required budget appropriation.
Thus, a complaint for Breach of Contract, Specific Performance or Rescission of Contract and
Damages was filed by respondent Lexber against petitioner on February 21, 1994 before the
Regional Trial Court of Quezon City. Respondent Lexber averred that because petitioner stopped
dumping garbage on the dumpsite after May 1992, Lexbers equipment and personnel were idle
to its damage and prejudice. Respondent prayed that petitioner be ordered to comply with its
obligations under the subject contract or, in the alternative, that the said contract be rescinded
and petitioner be ordered to pay damages.

On January 26, 1998, after trial on the merits, the lower court rendered judgment in favor of
respondent, the dispositive portion of which states:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and
against the defendant:

1. Ordering the defendant to pay the plaintiff the amount of SEVEN HUNDRED SIXTY
EIGHT THOUSAND FOUR HUNDRED NINETY THREE PESOS (P768,493.00) per month
starting December 15, 1991 until December 31, 1995 with legal interest starting December 16,
1992, the date defendant received plaintiffs extra-judicial demand, until defendant finally pays
the entire amount;

2. Ordering defendant to pay costs of suit.

The claims for attorneys fees and other damages are hereby denied for lack of merit.

SO ORDERED.viii[8]

On appeal to the Court of Appeals, the said Judgment was affirmed in toto. With the denial of its
Motion for Reconsideration on January 26, 2000, petitioner now comes to this Court with the
instant petition arguing that the Court of Appeals gravely erred:

(a) When it refused to hold that the second Negotiated Contract of November 8, 1990 is null
and void ab initio, notwithstanding that the execution thereof was in violation of Secs. 85, 86 and
87 of the Auditing Code of the Philippines (PD 1445) and LOI 968.

(b) When it refused to categorically hold that the said Negotiated Contract of November 8,
1990 required the prior approval of the City Council, notwithstanding the fact that the said
contract would require the expenditure of public funds in the amount of P18,817,920.00 for one-
year dumping operation, or the total amount of P94,089,600.00 for five years, and that it is the
City Council that is vested by the Local Government Code (BP Blg. 337) with the power to
appropriate city funds to cover expenses of the City Government.

(c) When it held that Petitioner started to dump garbage at the dumpsite and paid for such
service, despite the fact that Respondents evidence proved otherwise; furthermore, the Court of
Appeals failed to cite any specific evidence to support said conclusions of fact.
(d) When it held that the said Negotiated Contract of November 8, 1990 was ratified by the
Petitioner by the aforesaid initial dumping of garbage and payment of services, overlooking the
elementary doctrine that a void contract cannot be ratified.

(e) When it wrongly applied an Executive Order and administrative resolution as the
applicable law to govern the aforesaid contract, notwithstanding that the Auditing Code of the
Philippines (PD 1445) and the Local Government Code (BP 337) then had not been repealed by
any legislative enactment, nor could the said executive issuances repeal them.

(f) When it held that the equities of the case should lean in favor of the respondent and thus
failed to apply the doctrine that Government is not estopped to question the illegal acts of its
officials.

(g) When it wrongly applied the Imus case, not the Osmea case, to the present case.ix[9]

Petitioners remonstrations can be reduced to two (2) essential arguments:

First. That the second negotiated contract is null and void ab initio because its
execution was done in violation of existing laws, more particularly Sections 85,
86 and 87 of Presidential Decree No. 1445 (otherwise known as the Auditing
Code of the Philippines) and Section 177 (b) of Batas Pambansa Blg. 337 (also
known as the Local Government Code of 1983); and

Second. That the facts and evidence do not support the Court of Appeals conclusion that,
notwithstanding the lack of appropriation, subsequent acts of the petitioner
constituted a ratification of the subject negotiated contract.

The issue of whether or not the subject negotiated contract is null and void ab initio will be
discussed first.

Petitioner insists that the subject contract failed to comply with the mandatory requirements of
Presidential Decree No. 1445, otherwise known as the Auditing Code of the Philippines.

Section 85 thereof provides:

Section 85. Appropriation before entering into contract. (1) No contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor, the
unexpected balance of which, free of other obligations, is sufficient to cover the proposed
expenditure; (2) Notwithstanding this provision, contracts for the procurement of supplies and
materials to be carried in stock may be entered into under regulations of the Commission
provided that when issued, the supplies and materials shall be charged to the proper
appropriation account. (Underscoring ours)

Section 86 of PD 1445 also provides as follows:

Section 86. Certificate showing appropriation to meet contract. Except in a case of a contract for
personal service, for supplies for current consumption or to be carried in stock not exceeding the
estimated consumption for three months, or banking transactions of government-owned or
controlled banks, no contract involving the expenditure of public funds by any government
agency shall be entered into or authorized unless the proper accounting official or the agency
concerned shall have certified to the officer entering into the obligation that funds have been
duly appropriated for the purpose and that the amount necessary to cover the proposed contract
for the current fiscal year is available for expenditure on account thereof, subject to verification
by the auditor concerned. The certification signed by the proper accounting official and the
auditor who verified it, shall be attached to and become an integral part of the proposed contract,
and the sum so certified shall not thereafter be available for expenditure for any other purpose
until the obligation of the government agency concerned under the contract is fully extinguished.
(Underscoring ours)

Petitioner stresses that failure to comply with the requirements underlined in Sections 85 and 86
of PD 1445 rendered the subject contract void, invoking Section 87 of PD 1445 which provides:

Section 87. Void contract and liability of officer. Any contract entered into contrary to the
requirements of the two immediately preceding sections shall be void, and the officer or officers
entering into the contract shall be liable to the government or other contracting party for any
consequent damage to the same extent as if the transaction had been wholly between private
parties.

Is a contract entered into by the city mayor involving the expenditure of public funds by the local
government without prior appropriation by the city council valid and binding? Petitioner insists
that the answer is in the negative, arguing that there is no escaping the stringent and mandatory
requirement of a prior appropriation, as well as a certification that funds are available therefor.

If we are to limit our disquisition to the cited provisions of Presidential Decree No. 1445, or the
Auditing Code of the Philippines, in conjunction with Section 177 (b) of Batas Pambansa Blg.
337, or the Local Government Code of 1983, which empowered the Sangguniang Panlungsod to
appropriate funds for expenses of the city government, and fix the salaries of its officers and
employees according to law, there would be no debate that prior appropriation by the city council
and a certification that funds are available therefor is indeed mandatorily required.

There is no denying that Sections 85 and 86 of P.D. 1445 (Auditing Code of the Philippines)
provide that contracts involving expenditure of public funds:

1) can be entered into only when there is an appropriation therefor; and

2) must be certified by the proper accounting official/agency that funds have been duly
appropriated for the purpose, which certification shall be attached to and become an integral part
of the proposed contact.

However, the very same Presidential Decree No. 1445, which is the cornerstone of petitioners
arguments, does not provide that the absence of an appropriation law ipso facto makes a contract
entered into by a local government unit null and void. Section 84 of the statute specifically
provides:

Revenue funds shall not be paid out of any public treasury or depository except in pursuance of
an appropriation law or other specific statutory authority. (Underscoring ours)

Consequently, public funds may be disbursed not only pursuant to an appropriation law, but also
in pursuance of other specific statutory authority, i.e., Section 84 of PD 1445. Thus, when a
contract is entered into by a city mayor pursuant to specific statutory authority, the law, i.e., PD
1445 allows the disbursement of funds from any public treasury or depository therefor. It can
thus be plainly seen that the law invoked by petitioner Quezon City itself provides that an
appropriation law is not the only authority upon which public funds shall be disbursed.

Furthermore, then Mayor Brigido Simon, Jr. did not enter into the subject contract without legal
authority. The Local Government Code of 1983, or B.P. Blg. 337, which was then in force,
specifically and exclusively empowered the city mayor to represent the city in its business
transactions, and sign all warrants drawn on the city treasury and all bonds, contracts and
obligations of the city.x[10] Such power granted to the city mayor by B.P. Blg. 337 was not
qualified nor restricted by any prior action or authority of the city council. We note that while the
subsequent Local Government Code of 1991,xi[11] which took effect after the execution of the
subject contracts, provides that the mayors representation must be upon authority of the
sangguniang panlungsod or pursuant to law or ordinance,xii[12] there was no such qualification
under the old code.

We must differentiate the provisions of the old Local Government Code of 1983, B.P. Blg. 337,
which was then in force, from that of the Local Government Code of 1991, R.A. No. 7160,
which now requires that the mayors representation of the city in its business transactions must be
upon authority of the sangguniang panlungsod or pursuant to law or ordinance (Section 455 [vi]).
No such prior authority was required under B.P. Blg. 337. This restriction, therefore, cannot be
imposed on the city mayor then since the two contracts were entered into before R.A. No. 7160
was even enacted.

Under B.P. Blg. 337, while the city mayor has no power to appropriate funds to support the
contracts, neither does said law prohibit him from entering into contracts unless and until funds
are appropriated therefor. In fact, it is his bounden duty to so represent the city in all its business
transactions. On the other hand, the city council must provide for the depositing, leaving or
throwing of garbagexiii[13] and to appropriate funds for such expenses.xiv[14] (Section 177 [b]). It
cannot refuse to so provide and appropriate public funds for such services which are very vital to
the maintenance of cleanliness of the city and the good health of its inhabitants.

By entering into the two contracts, Mayor Simon did not usurp the city councils power to
provide for the proper disposal of garbage and to appropriate funds therefor. The execution of
contracts to address such a need is his statutory duty, just as it is the city councils duty to provide
for said services. There is no provision in B.P. Blg. 337, however, that prohibits the city mayor
from entering into contracts for the public welfare, unless and until there is prior authority from
the city council. This requirement was imposed much later by R.A. No. 7160, long after the
contracts had already been executed and implemented.

Even the very Charter of Quezon City,xv[15] more particularly Section 9(f), Section 12(a) and
Section 12(m) thereof, simply provide that the mayor shall exercise general powers and duties,
such as signing all warrants drawn on the city treasurer and all bonds, contracts, and obligations
of the city,xvi[16] even as it grants the City Council the power, by ordinance or resolution, to
make all appropriations for the expenses of the government of the city,xvii[17] as well as to
prohibit the throwing or depositing of offal, garbage, refuse, or other offensive matter in the
same, and to provide for its collection and disposition x x x.xviii[18]

While the powers and duties of the Mayor and the City Council are clearly delineated, there is
nothing in the cited provisions, nor even in the statute itself, that requires prior authorization by
the city council by proper enactment of an ordinance before the City Mayor can enter into
contracts.

Private respondent Lexber asserts that the subject contract was entered into by Mayor Simon in
behalf of the Quezon City government pursuant to specific statutory authority, more particularly
the provisions of Executive Order No. 392. In accordance with Article XVIII, Section 8 of the
1987 Constitution, then President Corazon C. Aquino issued E.O. No. 392 constituting the
Metropolitan Manila Authority (or MMA) to be composed of the heads of the four (4) cities and
thirteen (13) municipalities comprising the Metropolitan Manila area. The said Executive Order
empowered the MMA to have jurisdiction over the delivery of basic urban services requiring
coordination in the Metropolitan area, including sanitation and waste management.xix[19]

To fulfill this mandate, the MMA, through Resolution No. 17, Series of 1990, resolved that
pursuant to Section 2 of E.O. No. 392, the:

x x x LGUs remitting their contributions to the MMA within the prescribed period shall be
entitled to a financial assistance in an amount equivalent to 20% of their remittances provided
that the amount is used exclusively to augment the effective delivery of basic urban services
requiring coordination.

The Metropolitan Manila Council (or MMC) also issued Resolution No. 15, Series of 1991,
authorizing the Chairman of the MMC to enter into a memorandum of agreement or (MOA) with
any local chief executive in Metropolitan Manila for the purpose of managing garbage collection
and disposal, among other basic urban services. Taking their cue from Executive Order No. 392
and the pertinent resolutions of the MMA and MMC, the then Mayors of Quezon City and the
Municipality of Antipolo entered into a tripartite MOA with respondent Lexber, towards the
establishment of the proposed Quezon City Landfill Disposal System.

It is true that the first negotiated contract between Mayor Simon, Jr. and respondent Lexber,
which provided for the necessary infrastructure of the dumpsite, was executed without prior
authority or appropriation by the city council. Nevertheless, recognizing the necessity, if not the
urgency, of the project, petitioner honored the said contract and paid respondent Lexber the
contract price of P4,381,069.00.xx[20]
Respondent Lexber avers that immediately following the completion of the project in December
1991, petitioner in fact availed of the facilities by delivering and dumping garbage at the site in
accordance with the stipulations in the second negotiated contract. And yet, after having spent
millions of public funds to build the necessary infrastructure, as well as for site development of
the sanitary landfill, petitioner, under the newly-installed administration of Mayor Ismael
Mathay, Jr., refused to honor the second negotiated contract by: (1) discontinuing the citys use of
the sanitary landfill; (2) refusing to pay respondent Lexber for services already rendered from
December of 1991 to May of 1992; and (3) denying any liability under the second negotiated
contract, on the grounds that the same was without prior authority of the city council, and that it
was neither approved nor ratified by the said body. Moreover, Mayor Mathay, Jr. refused to pay
its obligation to respondent Lexber since no provision therefor was made in the 1992/1993
annual city budget.

The trial court ruled that while there may not have been prior authority or appropriation to enter
into and implement the second negotiated contract, the project denominated as Quezon City
Landfill Disposal System was duly supported by a Certificate of Availability of Funds dated
April 4, 1991 signed by the Quezon City Auditor, Reynaldo P. Ventura, and Treasurer, Montano
L. Diaz, stating as follows:

Pursuant to the provisions of Section 86 of P.D. No. 1445, LOI 968 and Section 46 of P.D. No.
177, I hereby certify that funds have been duly appropriated and alloted under Advice of
Allotment No. 1 and 2 dated March 31, 1991 and in the total amount of P2,620,169.00;
P11,783,399.00 covering the contract entered into with Lexber, Inc. with business address at 65
Panay Avenue, Quezon City said amount is available for expenditure on account thereof.xxi[21]

The existence of said document led the trial court to conclude thus:

However, a close examination of the Certificate of Availability of Funds dated December 3,

1990 shows that the appropriated amounts of P1,700,000.00, 2,641,922.00, and P40,000.00
totaled P4,381,922.00 and not P4,341,922.00, which amount is, in fact, P853.00 more than the
contract price of Negotiated Contract dated September 10, 1990. This only shows that as of April
4, 1991, there was sufficient appropriation to cover at least for a period of three (3) months, in
order to comply with the provisions of Section 86 of PD 1445. Moreover, any payment made
will comply with the provision of Section 84 of PD 1445 which states that: Revenue funds shall
not be paid out of any public treasury or depository except in pursuance of an appropriation law
or other specific statutory authority.

In any case, the defendant city can easily make available the necessary funds at the beginning of
the year in the general appropriation to cover the probable expenses which it would have to
incur, considering that pursuant to Resolution No, 72, Series of 1990 of the Metropolitan Manila
Authority, the Local Government Units are entitled to a financial assistance in an amount
equivalent to 20% of their remittances provided that the amount is used exclusively to augment
the effective delivery of basic services requiring coordination. In fact, the amount of FIVE
MILLION PESOS (P5,000,000.00) has already been set aside in order to be available to augment
garbage collection and disposal in Quezon City.
It must be noted that the Negotiated Contract dated November 8, 1990 is not ipso facto
absolutely null and void. The subject thereof is perfectly within the authority of the city
government. It is pursuant to the Tripartite Agreement entered into between the plaintiff, the
defendant, and the Municipality of Antipolo. The plaintiff was given the exclusive right to
exercise acts stated in the two negotiated contracts, which are entered into to further carry out
and implement the provisions of the Tripartite Agreement.xxii[22]

The Court of Appeals affirmed the trial courts findings that the second negotiated contract was
executed by virtue of a specific statutory authority, or pursuant to law, holding that:

Executive Order No. 392 (constituting the Metropolitan Manila Authority, providing for its
powers and functions and for other purposes) and pertinent Resolution No. 72, Series of 1990 of
MMA, and Resolution No. 15, Series of 1991 of MMC, find application and therefore should
govern the subject transactions.

Worthy to stress at this point is the fact that pursuant to Sec. 1, E.O. 392, the then Metropolitan
Manila Authority was tasked, among others, with the delivery of basic services in the
Metropolitan Area, whose services include garbage collection and disposal. To carry out this
mandate and effectively deliver other basic urban services requiring coordination of local
government units, the Metropolitan Manila Authority through its Resolution No. 72, Series of
1990, granted financial assistance to all local government units (LGUs) comprising Metropolitan
Manila in an amount equivalent to 20% of their remittances as provided under E.O. 392.
Likewise, the Metropolitan Manila Council, in its Resolution No. 15, Series of 1991, resolved to
authorize the Chairman of the MMC to enter into memorandum of Agreement (MOA) with the
Local Chief Executives in Metro Manila for the purpose of, among other things, the management
of garbage collection and its disposal.

The foregoing authorities therefore fully clothed Mayor Brigido Simon, Jr. with the authority to
enter and sign the subject contract for and in behalf of the city government even without express
authority from the City Council.xxiii[23]

While it is true that the MMA has no legislative power, E.O. No. 392 specifically empowered the
MMA to have jurisdiction over the delivery of basic urban services requiring coordination, such
as sanitation and waste management.xxiv[24] Said E.O. did not repeal pertinent provisions of B.P.
337, but specifically exempts the MMA from the application of E.O. 392xxv[25] (Section 11 of
E.O 392). There is no conflict as well with the provisions of P.D. No. 1445 because Sec. 84
thereof also recognizes appropriation by other statutory authority.

E.O. 392 and MMA Resolutions Nos. 72 and 15 allowed for direct coordination between the
MMA and the covered local government units to expedite the effective delivery of basic services
requiring coordination, such as collection and disposal of garbage. To this end, the MMA
Resolutions (series of 1990) granted financial assistance to all covered local government units in
an amount equivalent to 20% of their remittances to fund the delivery of said services, pursuant
to the provisions of Sec. 7 of E.O. No. 392:
x x x city and municipal treasurers of the local government units comprising Metropolitan
Manila shall continue to collect all revenues and receipts accruing to the Metropolitan Manila
Commission and remit the same to the Authority; Provided that such income collections as well
as the share of the authority from the regular sources of revenue in the General Fund of the city
or municipality as local counterpart for the integrated basic services and developmental projects
shall be treated as a trust fund in their account. Provided further that the remittance thereof shall
be effected within the first thirty (30) days following the end of each month. x x x

There was, thus, no justifiable reason for petitioner not to allocate or appropriate funds at the
start of each fiscal year considering that a trust fund had been established to pay for the effective
delivery of basic urban services requiring coordination, foremost of which is the collection and
disposal of garbage.

LOI No. 968, signed by then President Marcos on December 17, 1979, also provides in part that
all contracts for capital projects and for supply of commodities and services, including
equipment, maintenance contracts, and other agreements requiring payment which are
chargeable to agency current operating on capital expenditure funds, shall be signed by agency
heads or other duly authorized official only when there are available funds. The chief accountant
of the contracting agency shall sign such contracts as witness and contracts without such witness
shall be considered as null and void.

However, this requirement does not apply to contracts executed by local chief executives since
the said LOI No. 968 was directed only to Ministries and Heads/Chief Accountants of Ministry,
Bureau, Office, Agency of the National Government, including State Universities and Colleges,
and the Chairman, Commission on Audit. Quezon City, or any urbanized city for that matter,
cannot be considered a ministry, bureau, office or agency of the national government; neither is
the city mayor a minister or head of a ministry, bureau, office or agency of the national
government. Hence, the mayor of Quezon City is not covered by LOI No. 968. The prevailing
law in this particular instance is the Local Government Code of 1983 or B.P. Blg. 337.

Therefore, we find no cogent reason to disturb the conclusions of the trial court as affirmed by
the Court of Appeals in this regard. It is clear that the second negotiated contract was entered
into by Mayor Brigido Simon, Jr. pursuant to law or specific statutory authority as required by
P.D. No. 1445.

There is also no merit in petitioners claim that there was no appropriation therefor, for it is
evident that even as early as April 4, 1991, funds which were certified to as available had been
allocated for use in the first few months operation of the sanitary landfill. The problem arose
only because the new administration unjustifiably refused to abide by the stipulations in the
second negotiated contract. Hence, petitioners arguments on this issue fail to convince this Court
that the second negotiated contract was null and void ab initio for lack of prior appropriation or
authority on the part of Mayor Brigido Simon, Jr.

It is of no moment that the certificate referred to by the trial court did not state that the amount
necessary to cover the proposed contract for the current fiscal year is available for expenditure
on account thereof.xxvi[26] The Certificate of Availability of Funds,xxvii[27] though dated
December 3, 1990, merely showed that funds for the Landfill Disposal System was available.
Even if the surplus amount was just sufficient to cover at least three (3) months of operations as
of April 4, 1991, said monthly payments were not due yet as the infrastructure was still being
completed. The project was completed in December of 1991 and dumping was to commence
only thereafter. Thus, the funds to cover the 1992 fiscal year could have been made available and
appropriated therefor at the beginning of said year. That the Quezon City government later
refused to appropriate and approve payments to respondent Lexber under the contract despite its
use of the facilities for several months in 1992, is not respondents fault, and being the aggrieved
party, it cannot be made to suffer the damage wrought by the petitioners failure or refusal to
abide by the contract.

On the issue of subsequent ratification by petitioner, the Court of Appeals held:

Granting but without conceding that Mayor Brigido Simon, Jr. needs to secure prior
authorization from the City Council for the enforceability of the contracts entered into in the
name of the City government, which he failed to do according to the appellant, We believe that
such will not affect the enforceability of the contract because of the subsequent ratification made
by the City government. Thus, when appellant City government, after the construction by the
appellee of the dumpsite structure in accordance with the contract plans and specifications,
started to dump garbage collected in the City and consequently paid the appellee for the services
rendered, such acts produce and constitute a ratification and approval of the negotiated contract
and necessarily should imply its waiver of the right to assail the contracts enforceability.xxviii[28]

We are not dissuaded by petitioners arguments that there can be no ratification due to the
absence of an explicit or tacit approval of the second negotiated contract. At the outset, the issue
raised by petitioner that the subject contract is null and void ab initio, and therefore not capable
of ratification, has been laid to rest by the inevitable conclusion that the said contract is valid and
binding. Consequently, ratification of the subject contract is not necessary.

Be that as it may, it cannot be denied that there was constructive ratification on the part of
petitioner. The records show that upon completion of the infrastructure and other facilities,
petitioner, albeit still under the administration of Mayor Brigido Simon, Jr., started to dump
garbage in the premises. In fact, on December 11, 1991, a Notice to Commence Work,xxix[29]
implementing the contract for the maintenance of the sanitary landfill starting December 15,
1991 to December 31, 1995, was issued by said Mayor, as recommended by Project Manager
Rene R. Lazaro and City Engineer Alfredo Macapugay.

The records also reveal that petitioner issued Disbursement Vouchersxxx[30] of various amounts
covering the period between March 1, 1992 to April 30, 1992 for the services rendered by the
Mud Regal Group, Incorporated to haul garbage to the sanitary landfill. The said disbursement
vouchers were passed in audit and duly approved and paid by petitioner. These are facts and
circumstances on record which led the trial court, the appellate court, and this Court to affirm the
conclusion that petitioner had actually ratified the subject contract.xxxi[31]

Also part of the evidence on record are receipts of various amounts paid by respondent Lexber to
Mud Regal Group, Inc. for the supply of earth moving equipment used by Lexber to maintain the
sanitary landfill covering the period from December 1991 to August 1992.xxxii[32] There is also a
collection letter from Mud Regal Group, Inc. addressed to respondent Lexber for unpaid bills
covering the period from September to December 1992.xxxiii[33] While corresponding vouchers
were prepared by petitioner to pay respondent Lexber for work accomplished by the latter in the
maintenance of the sanitary landfill for the period spanning December 1991 to June
1992,xxxiv[34] these were never processed and approved for payment since action thereon was
overtaken by the change in leadership of the city government. By then, the new dispensation had
already discontinued using the sanitary landfill for reasons it did not make known to respondent
Lexber.

It is evident that petitioner dealt unfairly with respondent Lexber. By the mere pretext that the
subject contract was not approved nor ratified by the city council, petitioner refused to perform
its obligations under the subject contract. Verily, the same was entered into pursuant to law or
specific statutory authority, funds therefor were initially available and allocated, and petitioner
used the sanitary landfill for several months. The present leadership cannot unilaterally decide to
disregard the subject contract to the detriment of respondent Lexber.

The mere fact that petitioner later refused to continue dumping garbage on the sanitary landfill
does not necessarily prove that it did not benefit at the expense of respondent Lexber. Whether or
not garbage was actually dumped is of no moment, for respondent Lexbers undertaking was to
make available to petitioner the landfill site and to provide the manpower and machinery to
maintain the facility. Petitioner, by refusing to abide by its obligations as stipulated in the subject
negotiated contract, should be held liable to respondent Lexber in accordance with the terms of
the subject contract.

Petitioners refusal to abide by its commitments gave rise to an untenable situation wherein
petitioner effectively denied the existence and validity of the subject contract even while
respondent Lexber was still bound by it. This situation is inconsistent with the principle that
obligations arising from contracts have the force of law between the contracting parties and each
party is bound to fulfill what has been expressly stipulated therein.xxxv[35] Only respondent Lexber
was bound by the contract while petitioner acted as if it were free therefrom.xxxvi[36] The Court of Appeals held
that:

Moreover, the contention of appellant, if sustained, will undeniably result in grave injustice and
inequity to appellate Lexber, Inc. The records will reveal that appellee never solicited upon the
City government to utilize its properties for a landfill site, as appellee originally conceived of
devoting its property to a more viable undertaking, bamboo plantation in partnership with foreign
firm. On the other hand, it was the City government, then beset with serious garbage problem
that enticed and convinced Lexber, Inc. to offer its properties as a landfill site, with the assurance
of the opportunities contained in the tri-partite agreement. When appellee acceded to their
request, three contracts unilaterally prepared by the City government was presented to him, the
terms and conditions of which were all established and prescribed by appellant, and appellees
mere participation in the contracts perfection was simply the affixing of his signature therein.

Clearly, the equities of the case are with appellee Lexber, Inc. Even fair dealing alone would
have required the appellant to abide by its representations, which it did in the inception, but was
later dishonored by the new administration of Mayor Mathay, Jr. Appellee faithfully performed
its undertakings set forth in the contract, upon the appellants assurance that sufficient funds shall
come from the citys statutory contribution to the MMA. Had it not (sic) for the said assurance,
Lexber, Inc. for sure, would not have ventured into such costly business undertaking. No one in
his right frame of mind would have entered into such kind of contract and invest his fortune
unless assured of the availability of funds to compensate its financial investment.

As correctly pointed out by the court a quo, appellant having taken advantage of and benefited
from the appellee through the assailed negotiated contract shall not be permitted to attack it on
the ground that the contract did not bear the necessary approval.xxxvii[37]

Finally, we come to the issue raised by petitioner that the Court of Appeals gravely erred in
holding that the Imus case, not the Osmea case, is applicable to the instant controversy. We note
that the Court of Appeals did not discuss either case but merely adopted the exhaustive
discussion of the trial court on the matter. Before the court a quo, herein respondent Lexber
relied on the ruling of this Court in the case of Imus Electric Company v. Municipality of
Imus,xxxviii[38] wherein this Court ruled:

The defendants contend that the contract in question is null and void on the ground that the
former municipal council of Imus approved it without having the necessary funds to pay for the
value of the service to be rendered by the plaintiff for a period of ten (10) years, which amounted
to P24,300, and without the provincial treasurers previous certificate to the effect that said funds
have been appropriated and were available, in violation of the provisions of sections 606, 607
and 608 of the Regional Administrative Code of 1917. The above-cited legal provisions read as
follows:

SEC. 606. Appropriation antecedent to making of contract. No contract involving the

expenditure of public funds shall be made until there is an appropriation therefor, the
unexpended balance of which, free of other obligations, is sufficient to cover the proposed
expenditure. This provision shall not, however, be construed to prevent the purchasing and
carrying of supplies in stock, under the regulations of the Bureau of Audits, provided that when
issued such supplies shall be charged to the proper appropriation account.

SEC. 607. Certificate showing appropriation to meet contract. Except in the case of a contract for
personal service or for supplies to be carried in stock, no contract involving an expenditure by
the Insular Government of three thousand pesos or more shall be entered into or authorized until
the Insular Auditor shall have certified to the officer entering into such obligation that funds have
been duly appropriated for such purpose and that the amount necessary to cover the proposed
contract is available for expenditure on account thereof. When application is made to the Insular
Auditor for the certificate herein required, a copy of the proposed contract or agreement shall be
submitted to him accompanied by a statement in writing from the officer making the application
showing all obligations not yet presented for audit which have been incurred against the
appropriation to which the contract in question would be chargeable; and such certificate, when
signed by the Auditor, shall be attached to and become a part of the proposed contract, and the
sum so certified shall not thereafter be available for expenditure for any other purpose until the
Government is discharged from the contract in question.
Except in the case of a contract for supplies to be carried in stock, no contract involving the
expenditure by any province, municipality, township, or settlement of two thousand pesos or
more shall be entered into or authorized until the treasurer of the political division concerned
shall have certified to the officer entering into such contract that funds have been duly
appropriated for such purpose and that the amount necessary to cover the proposed contract is
available for expenditure on account thereof. Such certificate, when signed by the said treasurer,
shall be attached to and become a part of the proposed contract and the sum so certified shall not
thereafter be available for expenditure for any other purpose until the contract in question is
lawfully abrogated or discharged.

For the purpose of making the certificate hereinabove required ninety per centum of the
estimated revenues and receipts which should accrue during the current fiscal year, but which are
yet uncollected, shall be deemed to be in the treasury of the particular branch of the Government
against which the obligation in question would create a charge.

SEC. 608. Void contract; Liability of officer. A purported contract entered into contrary to the
requirements of the next preceding section hereof shall be wholly void, and the officer assuming
to make such contract shall be liable to the Government or other contracting party for any
consequent damage to the same extent as if the transaction had been wholly between private
parties. (Underscoring ours)

The defendants contend that the additional appropriation made by the then municipal council
was inadequate on the ground that it was the duty of the latter to appropriate funds for the whole
terms of the contract and that the contract in question falls within the prohibition of section 608
because in reality there was no appropriation for the sum of P24,300, nor did the provincial
treasurer certify that such appropriation was made and that the funds for the same were available.
(Underscoring ours)

The inconsistency of the defendants claim becomes obvious merely by taking into consideration
that the contract entered into by the parties was for the sale of electric current at the rate of P4.50
monthly for every lamp or light of 50 watts, or the sum of P202.50 every month. Under this
agreement, the municipality of Imus was not bound, nor is it bound, to pay the price of the
electric current until the same has been furnished, and inasmuch as the period of one month was
made the basis thereof, there is no doubt but that neither is the said municipality obliged to pay
for the current except at the end of every month. It is true that the duration of the contract was
fixed at ten (10) years, a period which was accepted by the municipality on the ground that only
under the terms of the contract and the law, the municipality was not bound to make advanced
payments and, consequently, there was no reason for it to appropriate funds for the said public
service except for a period of one month or one year, at most, if it had sufficient funds, in order
to comply with the provisions of section 2296 of the Revised Administrative Code, which requires
that municipalities should, at the beginning of every year, make a general appropriation
containing the probable expenses which, they would have to incur. (Emphasis supplied)

Petitioner, on the other hand, argued that the above-quoted ruling is no longer applicable, citing
this Courts ruling in the more recent case of Osmea v. Commission on Audit,xxxix[39] to wit:
The Auditing Code of the Philippines (P.D. 1445) further provides that no contract involving the
expenditure of public funds shall be entered into unless there is an appropriation therefor and the
proper accounting official of the agency concerned shall have certified to the officer entering into
the obligation that funds have been duly appropriated for the purpose and the amount necessary
to cover the proposed contract for the current fiscal year is available for expenditure on account
thereof. Any contract entered into contrary to the foregoing requirements shall be VOID.

Clearly then, the contract entered into by the former Mayor Duterte was void from the very
beginning since the agreed cost for the project (P8,368,920.00) was way beyond the appropriated
amount (P5,419,180.00) as certified by the City Treasurer. Hence, the contract was properly
declared void and unenforceable in COAs 2nd Indorsement, dated September 4, 1986. The COA
declared and we agree, that:

The prohibition contained in Sec. 85 of PD 1445 (Government Auditing Code) is explicit and
mandatory. Fund availability is, as it has always been, an indispensable prerequisite to the
execution of any government contract involving the expenditure of public funds by all
government agencies at all levels. Such contracts are not to be as final and binding unless a
certification as to the funds availability is issued (Letter of Instruction No. 767, s. 1978).
Antecedent advance appropriation is thus essential to government liability on contracts. This
contract being violative of the legal requirement aforequoted, the same contravenes Sec. 85 of
PD 1445 and is null and void by virtue of Sec. 87.

The trial court, which was affirmed by the Court of Appeals, concluded that:

The contention of defendant that the Imus case is no longer applicable in view of the explicit
provisions of PD 1445 is without merit. The prohibitions expressed in Sections 85, 86, and 87 of
PD 1445 are already embodied in the provision of Revised Administrative Code, specifically
Sections 606, 607 and 608, yet, the Supreme Court treated the contract therein as valid and
required the defendant municipality to comply with its obligation despite the absence of prior
approved appropriation at the time of the execution of the contract. The reason is that the
obligation is not payable until the performance of the services contracted. That is the difference
between the Imus case and the Osmea case.

In the former, the obligation to be rendered is the furnishing or sale of electric current which the
defendant municipality is not bound to pay until the same has been furnished.

While in the latter, the contract is for the construction of a modern abattoir. The amount payable
is already fixed at the time the contract was executed. Moreover, what made the Supreme Court
declare the contract entered therein as invalid is the attainment of the finality of the findings of
the Commission on Audit, which the petitioner mayor previously invoked.

Thus, the Highest Tribunal said, and this Court quotes:

As a matter of fact, the City of Cebu relied on the above pronouncement and interposed the same
as its affirmative defense, so much so that petitioner cannot now assert that it was void having
been issued in excess of COAs jurisdiction. A party cannot invoke the jurisdiction of a court or
an administrative body to secure affirmative relief against his opponent and after obtaining or
failing to obtain such relief, repudiate or question that same jurisdiction. It is not right for a party
who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an
affirmative relief, to afterwards deny the same jurisdiction to escape a penalty.

Besides, neither the petitioner nor HFCCI questioned the ruling of COA declaring the invalidity
of the abattoir contract, thereby resulting in its finality even before the civil case was instituted.
Petitioner could have brought the case to the Supreme Court on a petition for certiorari within
thirty days from receipt of a copy of the COA decision in the manner provided by law and the
Rules of Court. A decision of the Commission or any of its Auditor not appealed within the
period provided by law, shall be final and executory.xl[40]

Contrary to petitioners arguments, the facts in the Osmea case are not parallel to the facts in the
instant case. While in the former the construction of an abattoir entailed the payment in full of a
fixed amount, the case at bar involved a contract for services still to be rendered which was
payable on a monthly basis, just as in the Imus case. In the latter case, the Supreme Court did not
declare the contract null and void ab initio for the reason that appropriation for the project can be
made subsequent to the execution of the contract. Consequently, the ruling in the Imus case is
germane to the instant case. Furthermore, the trial court noted that while herein petitioner would
attack the subject contract for being fatally defective, the Commission on Audit did not declare
the said contract as null and void, unlike in the Osmea case where the questioned contract was
declared invalid by the COA. Hence, the ruling in the Osmea case finds no application in the
instant controversy.

While the contracts were admittedly negotiated contracts, this fact was never raised by the
petitioner before the trial court, Court of Appeals, and in the instant petition. The question of the
validity of the said contracts never hinged on the fact that there was no public bidding. What is
on record is that it was Mayor Simon who initiated the negotiations to convince respondent to
allow the use of its property as a dumpsite.

Public bidding may have been dispensed with, not only because time is of the essence but in
recognition of the reality that offering property to be used as a dumpsite is not an attractive nor
lucrative option for property owners. This reality is all the more glaring in the current situation
where Metro Manila local government units are seemingly unable to cope with the disastrous
lack of garbage dumping sites. A major part of the problem is that no one wants to be the
dumping ground of someone elses garbage. This problem is compounded by recent events where
tragedy has befallen scavengers and residents in a Quezon City dumpsite that should have been
closed years ago. It would no longer be prophetic to say that had Quezon City used the subject
dumpsite and discontinued the use of the Payatas dumpsite way back in 1991, tragedy therein
would have been averted.

Finally, petitioners refusal to honor the contract is not only contrary to law, but also grossly
unfair to respondent Lexber. It was petitioner that first offered and later persuaded respondent
Lexber to convert the latters property into a sanitary landfill for petitioners exclusive use. While
the property could have been used for other more lucrative and pleasant purposes, petitioner
convinced respondent Lexber by its assurances and stipulations in the contract. In turn,
respondent Lexber relied on petitioner to abide by their contract, only to be rebuffed after
petitioner had already taken initial advantage of the facilities. By virtue of the infrastructure
intended for the sanitary landfill that was erected thereon, respondent Lexber could not divert its
use to other purposes. It is but fair that respondent Lexber be compensated for the financial
losses it has incurred in accordance with the obligation of petitioner as stipulated in the second
negotiated contract.

WHEREFORE, in view of all the foregoing, the Decision of the Court of Appeals in CA-G.R.
CV No. 59541 affirming the judgment of the Regional Trial Court of Quezon City, Branch 220
in Civil Case No. Q-94-19405 is hereby AFFIRMED in toto. The instant petition for review is
DENIED for lack of merit.

No costs.

SO ORDERED.

Davide, Jr., C.J. (Chairman), Puno, and Kapunan, JJ., concur.

Pardo, J., dissent. See attached.

CITY GOVERNMENT OF QUEZON CITY v. JUDGE VICENTE G. ERICTA AS JUDGE OF
COURT OF FIRST INSTANCE OF RIZAL, GR No. L-34915, 1983-06-24

Facts:

Section 9 of ordinance No. 6118, S-64, entitled "ORDINANCE REGULATING THE

ESTABLISHMENT, MAINTENANCE AND OPERATION OF PRIVATE MEMORIAL TYPE
CEMETERY OR BURIAL GROUND WITHIN THE JURISDICTION OF QUEZON CITY
AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF" provides:

"Sec. 9. At least six (6) percent of the total area of the memorial park cemetery shall be set aside
for charity burial of deceased persons who are paupers and have been residents of Quezon City
for at least 5 years prior to their death, to be determined by competent City

Authorities. The area so designated shall immediately be developed and should be open for
operation not later than six months from the date of approval of the application."
For several years, the aforequoted section of the Ordinance was not enforced by city authorities
but seven years after the enactment of the ordinance, the Quezon City Council passed the
following resolution:

"RESOLVED by the council of Quezon assembled, to request, as it does hereby request the City
Engineer, Quezon City, to stop any further selling and/or transaction of memorial park lots in
Quezon City where the owners thereof have failed to donate the required 6%... space intended
for paupers burial."

Pursuant to this resolution, the Quezon City Engineer notified respondent Himlayang Pilipino,
Inc. in writing that Section 9 of Ordinance No. 6118, S-64 would be enforced.

There being no issue of fact and the questions raised being purely legal, both petitioners and
respondent agreed to the rendition of a judgment on the pleadings.

The respondent court, therefore, rendered the decision declaring Section 9 of ordinance No.
6118, S-64 null and... void

A motion for reconsideration having been denied, the City Government and City Council filed
the instant petition

Petitioners argue that the taking of the respondent's property is a valid and reasonable exercise of
police power and that the land is taken for a public use as it is intended for the burial ground of
paupers.

On the other hand, respondent Himlayang Pilipino, Inc. contends that the taking or confiscation
of property is obvious because the questioned ordinance permanently restricts the use of the
property such that it cannot be used for any reasonable purpose and deprives the owner... of all
beneficial use of his property.

Issues:

"The issue is: Is Section 9 of the ordinance in question a valid exercise of the police power?

We now come to the question whether or not Section 9 of the ordinance in question is a valid
exercise of police power.

Ruling:

We find the stand of the private respondent as well as the decision of the respondent Judge to be
well-founded.

There is no reasonable relation between the setting aside of at least six (6) percent of the total
area of all private cemeteries for charity burial grounds of deceased paupers and the promotion
of health, morals, good order, safety, or the general welfare of the people. The... ordinance is
actually a taking without compensation of a certain area from a private cemetery to benefit
paupers who are charges of the municipal corporation. Instead of building or maintaining a
public cemetery for this purpose, the city passes the burden to private... cemeteries.

The expropriation without compensation of a portion of private cemeteries is not covered by

Section 12(t) of Republic Act 537, the Revised Charter of Quezon City which empowers the city
council to prohibit the burial of the dead within the center of population of the city and... to
provide for their burial in a proper place subject to the provisions of general law regulating burial
grounds and cemeteries.

As a matter of fact, the petitioners rely solely on the general welfare clause or on implied powers
of the municipal corporation, not on any express provision of law as statutory basis of their
exercise of power.

WHEREFORE, the petition for review is hereby DISMISSED. The decision of the respondent
court is affirmed.

Principles:

there are three inherent powers of government by which the state interferes with the property
rights, namely: (1) police power, (2) eminent domain, (3) taxation. These are said to exist
independently of the Constitution as necessary attributes of... sovereignty.

"Police power is defined by Freund as 'the powers of promoting the public welfare by restraining
and regulating the use of liberty and property' (Quoted in Political Law by Tañada and Carreon,
V-II, p. 50). It is usually exerted in order to merely regulate the use and... enjoyment of property
of the owner.

G.R. No. 61516 March 21, 1989

FLORENTINA A. GUILATCO, petitioner,

vs.
CITY OF DAGUPAN, and the HONORABLE COURT OF APPEALS, respondents.

Nolan R. Evangelista for petitioner.

The City Legal Officer for respondents.

SARMIENTO, J.:

In a civil action 1 for recovery of damages filed by the petitioner Florentina A. Guilatco, the following judgment was rendered against
the respondent City of Dagupan:

xxx
 (1) Ordering defendant City of Dagupan to pay plaintiff actual damages in the amount of P 15,924 (namely P8,054.00
as hospital, medical and other expenses [Exhs. H to H-60], P 7,420.00 as lost income for one (1) year [Exh. F] and P
450.00 as bonus). P 150,000.00 as moral damages, P 50,000.00 as exemplary damages, and P 3,000.00 as attorney's
fees, and litigation expenses, plus costs and to appropriate through its Sangguniang Panglunsod (City Council) said
amounts for said purpose;

(2) Dismissing plaintiffs complaint as against defendant City Engr. Alfredo G. Tangco; and

(3) Dismissing the counterclaims of defendant City of Dagupan and defendant City Engr. Alfredo G. Tangco, for lack of
merit. 2

The facts found by the trial court are as follows: 3

It would appear from the evidences that on July 25, 1978, herein plaintiff, a Court Interpreter of Branch III, CFI--
Dagupan City, while she was about to board a motorized tricycle at a sidewalk located at Perez Blvd. (a National Road,
under the control and supervision of the City of Dagupan) accidentally fell into a manhole located on said sidewalk,
thereby causing her right leg to be fractured. As a result thereof, she had to be hospitalized, operated on, confined, at
first at the Pangasinan Provincial Hospital, from July 25 to August 3, 1978 (or for a period of 16 days). She also
incurred hospitalization, medication and other expenses to the tune of P 8,053.65 (Exh. H to H-60) or a total of P
10,000.00 in all, as other receipts were either lost or misplaced; during the period of her confinement in said two
hospitals, plaintiff suffered severe or excruciating pain not only on her right leg which was fractured but also on all parts
of her body; the pain has persisted even after her discharge from the Medical City General Hospital on October 9,
1978, to the present. Despite her discharge from the Hospital plaintiff is presently still wearing crutches and the Court
has actually observed that she has difficulty in locomotion. From the time of the mishap on July 25, 1978 up to the
present, plaintiff has not yet reported for duty as court interpreter, as she has difficulty of locomotion in going up the
stairs of her office, located near the city hall in Dagupan City. She earns at least P 720.00 a month consisting of her
monthly salary and other means of income, but since July 25, 1978 up to the present she has been deprived of said
income as she has already consumed her accrued leaves in the government service. She has lost several pounds as a
result of the accident and she is no longer her former jovial self, she has been unable to perform her religious, social,
and other activities which she used to do prior to the incident.

Dr. Norberto Felix and Dr. Dominado Manzano of the Provincial Hospital, as well as Dr. Antonio Sison of the Medical
City General Hospital in Mandaluyong Rizal (Exh. I; see also Exhs. F, G, G-1 to G-19) have confirmed beyond shadow
of any doubt the extent of the fracture and injuries sustained by the plaintiff as a result of the mishap. On the other
hand, Patrolman Claveria, De Asis and Cerezo corroborated the testimony of the plaintiff regarding the mishap and
they have confirmed the existence of the manhole (Exhs. A, B, C and sub-exhibits) on the sidewalk along Perez Blvd.,
at the time of the incident on July 25, 1978 which was partially covered by a concrete flower pot by leaving gaping hole
about 2 ft. long by 1 1/2 feet wide or 42 cms. wide by 75 cms. long by 150 cms. deep (see Exhs. D and D-1).

Defendant Alfredo Tangco, City Engineer of Dagupan City and admittedly ex-officio Highway Engineer, City Engineer
of the Public Works and Building Official for Dagupan City, admitted the existence of said manhole along the sidewalk
in Perez Blvd., admittedly a National Road in front of the Luzon Colleges. He also admitted that said manhole (there
are at least 11 in all in Perez Blvd.) is owned by the National Government and the sidewalk on which they are found
along Perez Blvd. are also owned by the National Government. But as City Engineer of Dagupan City, he supervises
the maintenance of said manholes or drainage system and sees to it that they are properly covered, and the job is
specifically done by his subordinates, Mr. Santiago de Vera (Maintenance Foreman) and Engr. Ernesto Solermo also a
maintenance Engineer. In his answer defendant Tangco expressly admitted in par. 7-1 thereof, that in his capacity as
ex-officio Highway Engineer for Dagupan City he exercises supervision and control over National roads, including the
Perez Blvd. where the incident happened.

On appeal by the respondent City of Dagupan, the appellate court 4 reversed the lower court findings on the ground that no evidence was
presented by the plaintiff- appellee to prove that the City of Dagupan had "control or supervision" over Perez Boulevard. 5

The city contends that Perez Boulevard, where the fatal drainage hole is located, is a national road that is not under the control or
supervision of the City of Dagupan. Hence, no liability should attach to the city. It submits that it is actually the Ministry of Public Highways
that has control or supervision through the Highway Engineer which, by mere coincidence, is held concurrently by the same person who is
also the City Engineer of Dagupan.

After examination of the findings and conclusions of the trial court and those of the appellate court, as well as the arguments presented by
the parties, we agree with those of the trial court and of the petitioner. Hence, we grant the petition.

In this review on certiorari, we have simplified the errors assigned by the petitioner to a single issue: whether or not control or supervision
over a national road by the City of Dagupan exists, in effect binding the city to answer for damages in accordance with article 2189 of the
Civil Code.
The liability of public corporations for damages arising from injuries suffered by pedestrians from the defective condition of roads is
expressed in the Civil Code as follows:

Article 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any
person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under
their control or supervision.

It is not even necessary for the defective road or street to belong to the province, city or municipality for liability to attach. The article only
requires that either control or supervision is exercised over the defective road or street. 6

In the case at bar, this control or supervision is provided for in the charter of Dagupan and is exercised through the City Engineer who has
the following duties:

Sec. 22. The City Engineer--His powers, duties and compensation-There shall be a city engineer, who shall be in
charge of the department of Engineering and Public Works. He shall receive a salary of not exceeding three thousand
pesos per annum. He shall have the following duties:

xxx

(j) He shall have the care and custody of the public system of waterworks and sewers, and all sources of water supply,
and shall control, maintain and regulate the use of the same, in accordance with the ordinance relating thereto; shall
inspect and regulate the use of all private systems for supplying water to the city and its inhabitants, and all private
sewers, and their connection with the public sewer system.

xxx

The same charter of Dagupan also provides that the laying out, construction and improvement of streets, avenues and alleys and sidewalks,
and regulation of the use thereof, may be legislated by the Municipal Board . 7 Thus the charter clearly indicates that the city indeed has
supervision and control over the sidewalk where the open drainage hole is located.

The express provision in the charter holding the city not liable for damages or injuries sustained by persons or property due to the failure of
any city officer to enforce the provisions of the charter, can not be used to exempt the city, as in the case at bar.8

The charter only lays down general rules regulating the liability of the city. On the other hand article 2189 applies in particular to the liability
arising from "defective streets, public buildings and other public works." 9

The City Engineer, Mr. Alfredo G. Tangco, admits that he exercises control or supervision over the said road. But the city can not be excused
from liability by the argument that the duty of the City Engineer to supervise or control the said provincial road belongs more to his functions
as an ex-officio Highway Engineer of the Ministry of Public Highway than as a city officer. This is because while he is entitled to an
honorarium from the Ministry of Public Highways, his salary from the city government substantially exceeds the honorarium.

We do not agree.

Alfredo G. Tangco "(i)n his official capacity as City Engineer of Dagupan, as Ex- Officio Highway Engineer, as Ex-Officio City Engineer of the
Bureau of Public Works, and, last but not the least, as Building Official for Dagupan City, receives the following monthly compensation: P
1,810.66 from Dagupan City; P 200.00 from the Ministry of Public Highways; P 100.00 from the Bureau of Public Works and P 500.00 by
virtue of P.D. 1096, respectively." 10 This function of supervision over streets, public buildings, and other public works pertaining to the City
Engineer is coursed through a Maintenance Foreman and a Maintenance Engineer.11 Although these last two officials are employees of the
National Government, they are detailed with the City of Dagupan and hence receive instruction and supervision from the city through the City
Engineer.

There is, therefore, no doubt that the City Engineer exercises control or supervision over the public works in question. Hence, the liability of
the city to the petitioner under article 2198 of the Civil Code is clear.

Be all that as it may, the actual damages awarded to the petitioner in the amount of P 10,000.00 should be reduced to the proven expenses
of P 8,053.65 only. The trial court should not have rounded off the amount. In determining actual damages, the court can not rely on
"speculation, conjecture or guess work" as to the amount. Without the actual proof of loss, the award of actual damages becomes erroneous.
12

On the other hand, moral damages may be awarded even without proof of pecuniary loss, inasmuch as the determination of the amount is
discretionary on the court.13 Though incapable of pecuniary estimation, moral damages are in the nature of an award to compensate the
claimant for actual injury suffered but which for some reason can not be proven. However, in awarding moral damages, the following should
be taken into consideration:
 (1) First, the proximate cause of the injury must be the claimee's acts.14

(2) Second, there must be compensatory or actual damages as satisfactory proof of the factual basis for damages.15

(3) Third, the award of moral damages must be predicated on any of the cases enumerated in the Civil Code. 16

In the case at bar, the physical suffering and mental anguish suffered by the petitioner were proven. Witnesses from the petitioner's place of
work testified to the degeneration in her disposition-from being jovial to depressed. She refrained from attending social and civic activities.17

Nevertheless the award of moral damages at P 150,000.00 is excessive. Her handicap was not permanent and disabled her only during her
treatment which lasted for one year. Though evidence of moral loss and anguish existed to warrant the award of damages,18 the moderating
hand of the law is called for. The Court has time and again called attention to the reprehensible propensity of trial judges to award damages
without basis,19 resulting in exhorbitant amounts.20

Although the assessment of the amount is better left to the discretion of the trial court 21 under preceding jurisprudence, the amount of moral
damages should be reduced to P 20,000.00.

As for the award of exemplary damages, the trial court correctly pointed out the basis:

To serve as an example for the public good, it is high time that the Court, through this case, should serve warning to
the city or cities concerned to be more conscious of their duty and responsibility to their constituents, especially when
they are engaged in construction work or when there are manholes on their sidewalks or streets which are uncovered,
to immediately cover the same, in order to minimize or prevent accidents to the poor pedestrians.22

Too often in the zeal to put up "public impact" projects such as beautification drives, the end is more important than the manner in which the
work is carried out. Because of this obsession for showing off, such trivial details as misplaced flower pots betray the careless execution of
the projects, causing public inconvenience and inviting accidents.

Pending appeal by the respondent City of Dagupan from the trial court to the appellate court, the petitioner was able to secure an order for
garnishment of the funds of the City deposited with the Philippine National Bank, from the then presiding judge, Hon. Willelmo Fortun. This
order for garnishment was revoked subsequently by the succeeding presiding judge, Hon. Romeo D. Magat, and became the basis for the
petitioner's motion for reconsideration which was also denied. 23

We rule that the execution of the judgment of the trial court pending appeal was premature. We do not find any good reason to justify the
issuance of an order of execution even before the expiration of the time to appeal .24

WHEREFORE, the petition is GRANTED. The assailed decision and resolution of the respondent Court of Appeals are hereby REVERSED
and SET ASIDE and the decision of the trial court, dated March 12, 1979 and amended on March 13, 1979, is hereby REINSTATED with the
indicated modifications as regards the amounts awarded:

(1) Ordering the defendant City of Dagupan to pay the plaintiff actual damages in the amount of P 15,924 (namely P
8,054.00 as hospital, medical and other expenses; P 7,420.00 as lost income for one (1) year and P 450.00 as bonus);
P 20,000.00 as moral damages and P 10,000.00 as exemplary damages.

The attorney's fees of P 3,000.00 remain the same.

SO ORDERED.

Melencio-Herrera, (Chaiperson), Paras, Padilla and Regalado, JJ., concur.

Footnotes

Guilatco v. City of Dagupan

FACTS:

Florentina Guilatco was about to board a tricycle at a sidewalk located at Perez Blvd. (a national road)
when she accidentally fell into an open manhole. Her right leg was fractured, resulting in her
hospitalization and continuing difficulty in locomotion. Because of her accident, Guilatco was unable to
go to work, thereby losing her income. She also lost weight, and she is now no longer her former jovial
self since she is unable to perform her religious, social, and other activities. She filed an action for
damages against the City of Dagupan. The City of Dagupan denied liability on the ground that the
manhole was located on a national road, which was not under the control or supervision of the City of
Dagupan.

ISSUE:

Whether the City of Dagupan is liable to Guilatco.

HELD:

Yes, the City of Dagupan is liable. For Article 2189 to apply, it is not necessary for the defective road or
street to belong to the province, city or municipality. The article only requires that either control or
supervision is exercised over the defective road or street. In this case, this control or supervision is
provided for in the charter of Dagupan and is exercised through the City Engineer, whose duties include
the care and custody of the public system of waterworks and sewers. The charter of Dagupan provides
that the laying out, construction, and improvement of streets, avenues, and alleys and sidewalks and the
regulation of the use thereof may be legislated by the Municipal Board. Thus, the charter clearly
indicates that the city indeed has supervision and control over the sidewalk where the open drainage
hole is located.

G.R. No. L-52179 April 8, 1991

MUNICIPALITY OF SAN FERNANDO, LA UNION, petitioner

vs.
HON. JUDGE ROMEO N. FIRME, JUANA RIMANDO-BANIÑA, IAUREANO BANIÑA,
JR., SOR MARIETA BANIÑA, MONTANO BANIÑA, ORJA BANIÑA, AND LYDIA R.
BANIÑA, respondents.

Mauro C. Cabading, Jr. for petitioner.

Simeon G. Hipol for private respondent.

MEDIALDEA, J.:

This is a petition for certiorari with prayer for the issuance of a writ of preliminary mandatory
injunction seeking the nullification or modification of the proceedings and the orders issued by
the respondent Judge Romeo N. Firme, in his capacity as the presiding judge of the Court of First
Instance of La Union, Second Judicial District, Branch IV, Bauang, La Union in Civil Case No.
107-BG, entitled "Juana Rimando Baniña, et al. vs. Macario Nieveras, et al." dated November 4,
1975; July 13, 1976; August 23,1976; February 23, 1977; March 16, 1977; July 26, 1979;
September 7, 1979; November 7, 1979 and December 3, 1979 and the decision dated October 10,
1979 ordering defendants Municipality of San Fernando, La Union and Alfredo Bislig to pay,
jointly and severally, the plaintiffs for funeral expenses, actual damages consisting of the loss of
earning capacity of the deceased, attorney's fees and costs of suit and dismissing the complaint
against the Estate of Macario Nieveras and Bernardo Balagot.

The antecedent facts are as follows:

Petitioner Municipality of San Fernando, La Union is a municipal corporation existing under and
in accordance with the laws of the Republic of the Philippines. Respondent Honorable Judge
Romeo N. Firme is impleaded in his official capacity as the presiding judge of the Court of First
Instance of La Union, Branch IV, Bauang, La Union. While private respondents Juana Rimando-
Baniña, Laureano Baniña, Jr., Sor Marietta Baniña, Montano Baniña, Orja Baniña and Lydia R.
Baniña are heirs of the deceased Laureano Baniña Sr. and plaintiffs in Civil Case No. 107-Bg
before the aforesaid court.

At about 7 o'clock in the morning of December 16, 1965, a collision occurred involving a
passenger jeepney driven by Bernardo Balagot and owned by the Estate of Macario Nieveras, a
gravel and sand truck driven by Jose Manandeg and owned by Tanquilino Velasquez and a dump
truck of the Municipality of San Fernando, La Union and driven by Alfredo Bislig. Due to the
impact, several passengers of the jeepney including Laureano Baniña Sr. died as a result of the
injuries they sustained and four (4) others suffered varying degrees of physical injuries.

On December 11, 1966, the private respondents instituted a compliant for damages against the
Estate of Macario Nieveras and Bernardo Balagot, owner and driver, respectively, of the
passenger jeepney, which was docketed Civil Case No. 2183 in the Court of First Instance of La
Union, Branch I, San Fernando, La Union. However, the aforesaid defendants filed a Third Party
Complaint against the petitioner and the driver of a dump truck of petitioner.

Thereafter, the case was subsequently transferred to Branch IV, presided over by respondent
judge and was subsequently docketed as Civil Case No. 107-Bg. By virtue of a court order dated
May 7, 1975, the private respondents amended the complaint wherein the petitioner and its
regular employee, Alfredo Bislig were impleaded for the first time as defendants. Petitioner filed
its answer and raised affirmative defenses such as lack of cause of action, non-suability of the
State, prescription of cause of action and the negligence of the owner and driver of the passenger
jeepney as the proximate cause of the collision.

In the course of the proceedings, the respondent judge issued the following questioned orders, to
wit:

(1) Order dated November 4, 1975 dismissing the cross-claim against Bernardo Balagot;
 (2) Order dated July 13, 1976 admitting the Amended Answer of the Municipality of San
Fernando, La Union and Bislig and setting the hearing on the affirmative defenses only
with respect to the supposed lack of jurisdiction;

(3) Order dated August 23, 1976 deferring there resolution of the grounds for the Motion
to Dismiss until the trial;

(4) Order dated February 23, 1977 denying the motion for reconsideration of the order of
July 13, 1976 filed by the Municipality and Bislig for having been filed out of time;

(5) Order dated March 16, 1977 reiterating the denial of the motion for reconsideration of
the order of July 13, 1976;

(6) Order dated July 26, 1979 declaring the case deemed submitted for decision it
appearing that parties have not yet submitted their respective memoranda despite the
court's direction; and

(7) Order dated September 7, 1979 denying the petitioner's motion for reconsideration
and/or order to recall prosecution witnesses for cross examination.

On October 10, 1979 the trial court rendered a decision, the dispositive portion is hereunder
quoted as follows:

IN VIEW OF ALL OF (sic) THE FOREGOING, judgment is hereby rendered for the
plaintiffs, and defendants Municipality of San Fernando, La Union and Alfredo Bislig are
ordered to pay jointly and severally, plaintiffs Juana Rimando-Baniña, Mrs. Priscilla B.
Surell, Laureano Baniña Jr., Sor Marietta Baniña, Mrs. Fe B. Soriano, Montano Baniña,
Orja Baniña and Lydia B. Baniña the sums of P1,500.00 as funeral expenses and
P24,744.24 as the lost expected earnings of the late Laureano Baniña Sr., P30,000.00 as
moral damages, and P2,500.00 as attorney's fees. Costs against said defendants.

The Complaint is dismissed as to defendants Estate of Macario Nieveras and Bernardo

Balagot.

SO ORDERED. (Rollo, p. 30)

Petitioner filed a motion for reconsideration and for a new trial without prejudice to another
motion which was then pending. However, respondent judge issued another order dated
November 7, 1979 denying the motion for reconsideration of the order of September 7, 1979 for
having been filed out of time.

Finally, the respondent judge issued an order dated December 3, 1979 providing that if
defendants municipality and Bislig further wish to pursue the matter disposed of in the order of
July 26, 1979, such should be elevated to a higher court in accordance with the Rules of Court.
Hence, this petition.
Petitioner maintains that the respondent judge committed grave abuse of discretion amounting to
excess of jurisdiction in issuing the aforesaid orders and in rendering a decision. Furthermore,
petitioner asserts that while appeal of the decision maybe available, the same is not the speedy
and adequate remedy in the ordinary course of law.

On the other hand, private respondents controvert the position of the petitioner and allege that the
petition is devoid of merit, utterly lacking the good faith which is indispensable in a petition for
certiorari and prohibition. (Rollo, p. 42.) In addition, the private respondents stress that
petitioner has not considered that every court, including respondent court, has the inherent power
to amend and control its process and orders so as to make them conformable to law and justice.
(Rollo, p. 43.)

The controversy boils down to the main issue of whether or not the respondent court committed
grave abuse of discretion when it deferred and failed to resolve the defense of non-suability of
the State amounting to lack of jurisdiction in a motion to dismiss.

In the case at bar, the respondent judge deferred the resolution of the defense of non-suability of
the State amounting to lack of jurisdiction until trial. However, said respondent judge failed to
resolve such defense, proceeded with the trial and thereafter rendered a decision against the
municipality and its driver.

The respondent judge did not commit grave abuse of discretion when in the exercise of its
judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of
the municipality. However, said judge acted in excess of his jurisdiction when in his decision
dated October 10, 1979 he held the municipality liable for the quasi-delict committed by its
regular employee.

The doctrine of non-suability of the State is expressly provided for in Article XVI, Section 3 of
the Constitution, to wit: "the State may not be sued without its consent."

Stated in simple parlance, the general rule is that the State may not be sued except when it gives
consent to be sued. Consent takes the form of express or implied consent.

Express consent may be embodied in a general law or a special law. The standing consent of the
State to be sued in case of money claims involving liability arising from contracts is found in Act
No. 3083. A special law may be passed to enable a person to sue the government for an alleged
quasi-delict, as in Merritt v. Government of the Philippine Islands (34 Phil 311). (see United
States of America v. Guinto, G.R. No. 76607, February 26, 1990, 182 SCRA 644, 654.)

Consent is implied when the government enters into business contracts, thereby descending to
the level of the other contracting party, and also when the State files a complaint, thus opening
itself to a counterclaim. (Ibid)

Municipal corporations, for example, like provinces and cities, are agencies of the State when
they are engaged in governmental functions and therefore should enjoy the sovereign immunity
from suit. Nevertheless, they are subject to suit even in the performance of such functions
because their charter provided that they can sue and be sued. (Cruz, Philippine Political Law,
1987 Edition, p. 39)

A distinction should first be made between suability and liability. "Suability depends on the
consent of the state to be sued, liability on the applicable law and the established facts. The
circumstance that a state is suable does not necessarily mean that it is liable; on the other hand, it
can never be held liable if it does not first consent to be sued. Liability is not conceded by the
mere fact that the state has allowed itself to be sued. When the state does waive its sovereign
immunity, it is only giving the plaintiff the chance to prove, if it can, that the defendant is liable."
(United States of America vs. Guinto, supra, p. 659-660)

Anent the issue of whether or not the municipality is liable for the torts committed by its
employee, the test of liability of the municipality depends on whether or not the driver, acting in
behalf of the municipality, is performing governmental or proprietary functions. As emphasized
in the case of Torio vs. Fontanilla (G. R. No. L-29993, October 23, 1978. 85 SCRA 599, 606),
the distinction of powers becomes important for purposes of determining the liability of the
municipality for the acts of its agents which result in an injury to third persons.

Another statement of the test is given in City of Kokomo vs. Loy, decided by the Supreme Court
of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are twofold. In one
they exercise the right springing from sovereignty, and while in the performance of the
duties pertaining thereto, their acts are political and governmental. Their officers and
agents in such capacity, though elected or appointed by them, are nevertheless public
functionaries performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a private,
proprietary or corporate right, arising from their existence as legal persons and not as
public agencies. Their officers and agents in the performance of such functions act in
behalf of the municipalities in their corporate or individual capacity, and not for the state
or sovereign power." (112 N.E., 994-995) (Ibid, pp. 605-606.)

It has already been remarked that municipal corporations are suable because their charters grant
them the competence to sue and be sued. Nevertheless, they are generally not liable for torts
committed by them in the discharge of governmental functions and can be held answerable only
if it can be shown that they were acting in a proprietary capacity. In permitting such entities to be
sued, the State merely gives the claimant the right to show that the defendant was not acting in
its governmental capacity when the injury was committed or that the case comes under the
exceptions recognized by law. Failing this, the claimant cannot recover. (Cruz, supra, p. 44.)

In the case at bar, the driver of the dump truck of the municipality insists that "he was on his way
to the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal
streets." (Rollo, p. 29.)
In the absence of any evidence to the contrary, the regularity of the performance of official duty
is presumed pursuant to Section 3(m) of Rule 131 of the Revised Rules of Court. Hence, We rule
that the driver of the dump truck was performing duties or tasks pertaining to his office.

We already stressed in the case of Palafox, et. al. vs. Province of Ilocos Norte, the District
Engineer, and the Provincial Treasurer (102 Phil 1186) that "the construction or maintenance of
roads in which the truck and the driver worked at the time of the accident are admittedly
governmental activities."

After a careful examination of existing laws and jurisprudence, We arrive at the conclusion that
the municipality cannot be held liable for the torts committed by its regular employee, who was
then engaged in the discharge of governmental functions. Hence, the death of the passenger ––
tragic and deplorable though it may be –– imposed on the municipality no duty to pay monetary
compensation.

All premises considered, the Court is convinced that the respondent judge's dereliction in failing
to resolve the issue of non-suability did not amount to grave abuse of discretion. But said judge
exceeded his jurisdiction when it ruled on the issue of liability.

ACCORDINGLY, the petition is GRANTED and the decision of the respondent court is hereby
modified, absolving the petitioner municipality of any liability in favor of private respondents.

SO ORDERED.

Narvasa, Cruz, Gancayco and Griño-Aquino, JJ., concur.

Facts:

The case was filed by petitioner, which is a municipal corporation existing under and in
accordance with the laws of the Republic of the Philippines.
A collision occurred involving a passenger jeepney owned by the Estate of Macario Nieveras, a
gravel and sand truck owned by Tanquilino Velasquez and a dump truck of the Municipality of
San Fernando, La Union and driven by Alfredo Bislig. Due to the impact, several passengers of
the jeepney including Laureano Baniña Sr. died as a result of the injuries they sustained and four
others suffered varying degrees of physical injuries.

The private respondents instituted a compliant for damages against the Estate of Macario
Nieveras and Bernardo Balagot, owner and driver, respectively, of the passenger jeepney.
However, the defendants filed a Third Party Complaint against the petitioner and the driver of a
dump truck of petitioner. Petitioner filed its answer and raised affirmative defenses such as lack
of cause of action, non-suability of the State, prescription of cause of action and the negligence
of the owner and driver of the passenger jeepney as the proximate cause of the collision.

The trial court rendered a decision ordering the petitioner and Bislig to pay the plaintiffs. The
owner and driver of the jeepney were absolved from liability. Petitioner filed a motion for
reconsideration which was dismissed for having been filed out of time.

Issues:
Whether or not the respondent court committed grave abuse of discretion when it deferred and
failed to resolve the defense of non-suability of the State amounting to lack of jurisdiction in a
motion to dismiss.

Discussions:

The test of liability of the municipality depends on whether or not the driver acting in behalf of
the municipality is performing governmental or proprietary functions. Municipal corporations
are suable because their charters grant them the competence to sue and be sued. Nevertheless,
they are generally not liable for torts committed by them in the discharge of governmental
functions and can be held answerable only if it can be shown that they were acting in a
proprietary capacity. In permitting such entities to be sued, the State merely gives the claimant
the right to show that the defendant was not acting in its governmental capacity when the injury
was committed or that the case comes under the exceptions recognized by law. Failing this, the
claimant cannot recover.

Rulings:

Yes. In the case at bar, the judge deferred the resolution of the defense of non-suability of the
State until trial. However, the respondent judge failed to resolve such defense, proceeded with
the trial and thereafter rendered a decision against the municipality and its driver.
The respondent judge did not commit grave abuse of discretion when in the exercise of its
judgment it arbitrarily failed to resolve the vital issue of non-suability of the State in the guise of
the municipality. However, the judge acted in excess of his jurisdiction when in his decision, he
held the municipality liable for the quasi-delict committed by its regular employee.

Suability depends on the consent of the state to be sued, liability on the applicable law and the
established facts. The circumstance that a state is suable does not necessarily mean that it is
liable; on the other hand, it can never be held liable if it does not first consent to be sued.
Liability is not conceded by the mere fact that the state has allowed itself to be sued. When the
state does waive its sovereign immunity, it is only giving the plaintiff the chance to prove, if it
can, that the defendant is liable. Anent the issue of whether or not the municipality is liable for
the torts committed by its employee, the test of liability of the municipality depends on whether
or not the driver, acting in behalf of the municipality, is performing governmental or proprietary
functions.

FACTS: A passenger jeepney, a sand truck and a dump truck of the Municipality of San
Fernando, La Union collided. Due to the impact, several passengers of the jeepney including
Laureano Baniña Sr. died. The heirs of Baniña filed a complaint for damages against the owner
and driver of the jeepney, who, in turn, filed a Third Party Complaint against the Municipality
and its dump truck driver, Alfredo Bislig. Municipality filed its answer and raised the defense of
non-suability of the State. After trial, the court ruled in favor of the plaintiffs and ordered
Municipality and Bislig to pay jointly and severally the heirs of Baniña.

ISSUES:

1. Are municipal corporations suable?

2. Is the Municipality liable for the torts committed by its employee who was then engaged in the
discharge of governmental functions?
HELD:

1. Municipal corporations, like provinces and cities, are agencies of the State when they are
engaged in governmental functions and therefore should enjoy the sovereign immunity from suit.
Nevertheless, they are subject to suit even in the performance of such functions because their
charter provided that they can sue and be sued.

2. Municipal corporations are suable because their charters grant them the competence to sue and
be sued. Nevertheless, they are generally not liable for torts committed by them in the discharge
of governmental functions and can be held answerable only if it can be shown that they were
acting in a proprietary capacity. In permitting such entities to be sued, the State merely gives the
claimant the right to show that the defendant was not acting in its governmental capacity when
the injury was committed or that the case comes under the exceptions recognized by law. Failing
this, the claimant cannot recover.

In this case, the driver of the dump truck of the municipality insists that "he was on his way to
the Naguilian river to get a load of sand and gravel for the repair of San Fernando's municipal
streets." In the absence of any evidence to the contrary, the regularity of the performance of
official duty is presumed. Hence, the driver of the dump truck was performing duties or tasks
pertaining to his office.

Decision of the lower court modified. Petitioner municipality was absolved of any liability.
(Municipality of San Fernando vs. Firme, No. L-52179, April 8, 1991)

G.R. No. 176951 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, petitioners,

vs.

COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF LEYTE; MUNICIPALITY OF BOGO,

PROVINCE OF CEBU; MUNICIPALITY OF CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY
OF TANDAG, PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE OF EASTERN
SAMAR; and MUNICIPALITY OF TAYABAS, PROVINCE OF QUEZON, respondents.

CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY,
CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA,
CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF
VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.

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

G.R. No. 177499 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, petitioners,

vs.

COMMISSION ON ELECTIONS; MUNICIPALITY OF LAMITAN, PROVINCE OF BASILAN; MUNICIPALITY OF

TABUK, PROVINCE OF KALINGA; MUNICIPALITY OF BAYUGAN, PROVINCE OF AGUSAN DEL SUR;
MUNICIPALITY OF BATAC, PROVINCE OF ILOCOS NORTE; MUNICIPALITY OF MATI, PROVINCE OF DAVAO
ORIENTAL; and MUNICIPALITY OF GUIHULNGAN, PROVINCE OF NEGROS ORIENTAL, respondents.

CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY,
CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA,
CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF
VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.

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

G.R. No. 178056 November 18, 2008

LEAGUE OF CITIES OF THE PHILIPPINES (LCP) represented by LCP National President JERRY P. TREÑAS,
CITY OF ILOILO represented by MAYOR JERRY P. TREÑAS, CITY OF CALBAYOG represented by MAYOR
MEL SENEN S. SARMIENTO, and JERRY P. TREÑAS in his personal capacity as taxpayer, petitioners

vs.
COMMISSION ON ELECTIONS; MUNICIPALITY OF CABADBARAN, PROVINCE OF AGUSAN DEL NORTE;
MUNICIPALITY OF CARCAR, PROVINCE OF CEBU; and MUNICIPALITY OF EL SALVADOR, MISAMIS
ORIENTAL, respondents.

CITY OF TARLAC, CITY OF SANTIAGO, CITY OF IRIGA, CITY OF LIGAO, CITY OF LEGAZPI, CITY OF TAGAYTAY,
CITY OF SURIGAO, CITY OF BAYAWAN, CITY OF SILAY, CITY OF GENERAL SANTOS, CITY OF ZAMBOANGA,
CITY OF GINGOOG, CITY OF CAUAYAN, CITY OF PAGADIAN, CITY OF SAN CARLOS, CITY OF SAN
FERNANDO, CITY OF TACURONG, CITY OF TANGUB, CITY OF OROQUIETA, CITY OF URDANETA, CITY OF
VICTORIAS, CITY OF CALAPAN, CITY OF HIMAMAYLAN, CITY OF BATANGAS, CITY OF BAIS, CITY OF CADIZ,
and CITY OF TAGUM, petitioners-in-intervention.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions for prohibition1 with prayer for the issuance of a writ of preliminary
injunction or temporary restraining order filed by the League of Cities of the Philippines, City of Iloilo,
City of Calbayog, and Jerry P. Treñas2 assailing the constitutionality of the subject Cityhood Laws and
enjoining the Commission on Elections (COMELEC) and respondent municipalities from conducting
plebiscites pursuant to the Cityhood Laws.

The Facts

During the 11th Congress,3 Congress enacted into law 33 bills converting 33 municipalities into cities.
However, Congress did not act on bills converting 24 other municipalities into cities.

During the 12th Congress,4 Congress enacted into law Republic Act No. 9009 (RA 9009),5 which took
effect on 30 June 2001. RA 9009 amended Section 450 of the Local Government Code by increasing the
annual income requirement for conversion of a municipality into a city from P20 million to P100 million.
The rationale for the amendment was to restrain, in the words of Senator Aquilino Pimentel, "the mad
rush" of municipalities to convert into cities solely to secure a larger share in the Internal Revenue
Allotment despite the fact that they are incapable of fiscal independence.6

After the effectivity of RA 9009, the House of Representatives of the 12th Congress7 adopted Joint
Resolution No. 29,8 which sought to exempt from the P100 million income requirement in RA 9009 the
24 municipalities whose cityhood bills were not approved in the 11th Congress. However, the 12th
Congress ended without the Senate approving Joint Resolution No. 29.

During the 13th Congress,9 the House of Representatives re-adopted Joint Resolution No. 29 as Joint
Resolution No. 1 and forwarded it to the Senate for approval. However, the Senate again failed to
approve the Joint Resolution. Following the advice of Senator Aquilino Pimentel, 16 municipalities filed,
through their respective sponsors, individual cityhood bills. The 16 cityhood bills contained a common
provision exempting all the 16 municipalities from the P100 million income requirement in RA 9009.

On 22 December 2006, the House of Representatives approved the cityhood bills. The Senate also
approved the cityhood bills in February 2007, except that of Naga, Cebu which was passed on 7 June
2007. The cityhood bills lapsed into law (Cityhood Laws10) on various dates from March to July 2007
without the President's signature.11

The Cityhood Laws direct the COMELEC to hold plebiscites to determine whether the voters in each
respondent municipality approve of the conversion of their municipality into a city.

Petitioners filed the present petitions to declare the Cityhood Laws unconstitutional for violation of
Section 10, Article X of the Constitution, as well as for violation of the equal protection clause.12
Petitioners also lament that the wholesale conversion of municipalities into cities will reduce the share
of existing cities in the Internal Revenue Allotment because more cities will share the same amount of
internal revenue set aside for all cities under Section 285 of the Local Government Code.13

The Issues

The petitions raise the following fundamental issues:

1. Whether the Cityhood Laws violate Section 10, Article X of the Constitution; and

2. Whether the Cityhood Laws violate the equal protection clause.

The Ruling of the Court

We grant the petitions.

The Cityhood Laws violate Sections 6 and 10, Article X of the Constitution, and are thus unconstitutional.

First, applying the P100 million income requirement in RA 9009 to the present case is a prospective, not
a retroactive application, because RA 9009 took effect in 2001 while the cityhood bills became law more
than five years later.

Second, the Constitution requires that Congress shall prescribe all the criteria for the creation of a city in
the Local Government Code and not in any other law, including the Cityhood Laws.

Third, the Cityhood Laws violate Section 6, Article X of the Constitution because they prevent a fair and
just distribution of the national taxes to local government units.

Fourth, the criteria prescribed in Section 450 of the Local Government Code, as amended by RA 9009,
for converting a municipality into a city are clear, plain and unambiguous, needing no resort to any
statutory construction.

Fifth, the intent of members of the 11th Congress to exempt certain municipalities from the coverage of
RA 9009 remained an intent and was never written into Section 450 of the Local Government Code.
Sixth, the deliberations of the 11th or 12th Congress on unapproved bills or resolutions are not extrinsic
aids in interpreting a law passed in the 13th Congress.

Seventh, even if the exemption in the Cityhood Laws were written in Section 450 of the Local
Government Code, the exemption would still be unconstitutional for violation of the equal protection
clause.

Preliminary Matters

Prohibition is the proper action for testing the constitutionality of laws administered by the COMELEC,14
like the Cityhood Laws, which direct the COMELEC to hold plebiscites in implementation of the Cityhood
Laws. Petitioner League of Cities of the Philippines has legal standing because Section 499 of the Local
Government Code tasks the League with the "primary purpose of ventilating, articulating and
crystallizing issues affecting city government administration and securing, through proper and legal
means, solutions thereto."15 Petitioners-in-intervention,16 which are existing cities, have legal standing
because their Internal Revenue Allotment will be reduced if the Cityhood Laws are declared
constitutional. Mayor Jerry P. Treñas has legal standing because as Mayor of Iloilo City and as a taxpayer
he has sufficient interest to prevent the unlawful expenditure of public funds, like the release of more
Internal Revenue Allotment to political units than what the law allows.

Applying RA 9009 is a Prospective Application of the Law

RA 9009 became effective on 30 June 2001 during the 11th Congress. This law specifically amended
Section 450 of the Local Government Code, which now provides:

Section 450. Requisites for Creation. – (a) A municipality or a cluster of barangays may be converted into
a component city if it has a locally generated average annual income, as certified by the Department of
Finance, of at least One hundred million pesos (P100,000,000.00) for the last two (2) consecutive years
based on 2000 constant prices, and if it has either of the following requisites:

(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land
Management Bureau; or
(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the
National Statistics Office.

The creation thereof shall not reduce the land area, population and income of the original unit or units
at the time of said creation to less than the minimum requirements prescribed herein.

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds.
The requirement on land area shall not apply where the city proposed to be created is composed of one
(1) or more islands. The territory need not be contiguous if it comprises two (2) or more islands.

(c) The average annual income shall include the income accruing to the general fund, exclusive of special
funds, transfers, and non-recurring income. (Emphasis supplied)

Thus, RA 9009 increased the income requirement for conversion of a municipality into a city from P20
million to P100 million. Section 450 of the Local Government Code, as amended by RA 9009, does not
provide any exemption from the increased income requirement.

Prior to the enactment of RA 9009, a total of 57 municipalities had cityhood bills pending in Congress.
Thirty-three cityhood bills became law before the enactment of RA 9009. Congress did not act on 24
cityhood bills during the 11th Congress.

During the 12th Congress, the House of Representatives adopted Joint Resolution No. 29, exempting
from the income requirement of P100 million in RA 9009 the 24 municipalities whose cityhood bills were
not acted upon during the 11th Congress. This Resolution reached the Senate. However, the 12th
Congress adjourned without the Senate approving Joint Resolution No. 29.

During the 13th Congress, 16 of the 24 municipalities mentioned in the unapproved Joint Resolution No.
29 filed between November and December of 2006, through their respective sponsors in Congress,
individual cityhood bills containing a common provision, as follows:
Exemption from Republic Act No. 9009. - The City of x x x shall be exempted from the income
requirement prescribed under Republic Act No. 9009.

This common provision exempted each of the 16 municipalities from the income requirement of P100
million prescribed in Section 450 of the Local Government Code, as amended by RA 9009. These
cityhood bills lapsed into law on various dates from March to July 2007 after President Gloria
Macapagal-Arroyo failed to sign them.

Indisputably, Congress passed the Cityhood Laws long after the effectivity of RA 9009. RA 9009 became
effective on 30 June 2001 or during the 11th Congress. The 13th Congress passed in December 2006 the
cityhood bills which became law only in 2007. Thus, respondent municipalities cannot invoke the
principle of non-retroactivity of laws.17 This basic rule has no application because RA 9009, an earlier
law to the Cityhood Laws, is not being applied retroactively but prospectively.

Congress Must Prescribe in the Local Government Code All Criteria

Section 10, Article X of the 1987 Constitution provides:

No province, city, municipality, or barangay shall be created, divided, merged, abolished or its boundary
substantially altered, except in accordance with the criteria established in the local government code
and subject to approval by a majority of the votes cast in a plebiscite in the political units directly
affected. (Emphasis supplied)

The Constitution is clear. The creation of local government units must follow the criteria established in
the Local Government Code and not in any other law. There is only one Local Government Code.18 The
Constitution requires Congress to stipulate in the Local Government Code all the criteria necessary for
the creation of a city, including the conversion of a municipality into a city. Congress cannot write such
criteria in any other law, like the Cityhood Laws.
The criteria prescribed in the Local Government Code govern exclusively the creation of a city. No other
law, not even the charter of the city, can govern such creation. The clear intent of the Constitution is to
insure that the creation of cities and other political units must follow the same uniform, non-
discriminatory criteria found solely in the Local Government Code. Any derogation or deviation from the
criteria prescribed in the Local Government Code violates Section 10, Article X of the Constitution.

RA 9009 amended Section 450 of the Local Government Code to increase the income requirement from
P20 million to P100 million for the creation of a city. This took effect on 30 June 2001. Hence, from that
moment the Local Government Code required that any municipality desiring to become a city must
satisfy the P100 million income requirement. Section 450 of the Local Government Code, as amended by
RA 9009, does not contain any exemption from this income requirement.

In enacting RA 9009, Congress did not grant any exemption to respondent municipalities, even though
their cityhood bills were pending in Congress when Congress passed RA 9009. The Cityhood Laws, all
enacted after the effectivity of RA 9009, explicitly exempt respondent municipalities from the increased
income requirement in Section 450 of the Local Government Code, as amended by RA 9009. Such
exemption clearly violates Section 10, Article X of the Constitution and is thus patently unconstitutional.
To be valid, such exemption must be written in the Local Government Code and not in any other law,
including the Cityhood Laws.

Cityhood Laws Violate Section 6, Article X of the Constitution

Uniform and non-discriminatory criteria as prescribed in the Local Government Code are essential to
implement a fair and equitable distribution of national taxes to all local government units. Section 6,
Article X of the Constitution provides:

Local government units shall have a just share, as determined by law, in the national taxes which shall
be automatically released to them. (Emphasis supplied)

If the criteria in creating local government units are not uniform and discriminatory, there can be no fair
and just distribution of the national taxes to local government units.
A city with an annual income of only P20 million, all other criteria being equal, should not receive the
same share in national taxes as a city with an annual income of P100 million or more. The criteria of land
area, population and income, as prescribed in Section 450 of the Local Government Code, must be
strictly followed because such criteria, prescribed by law, are material in determining the "just share" of
local government units in national taxes. Since the Cityhood Laws do not follow the income criterion in
Section 450 of the Local Government Code, they prevent the fair and just distribution of the Internal
Revenue Allotment in violation of Section 6, Article X of the Constitution.

Section 450 of the Local Government Code is Clear,

Plain and Unambiguous

There can be no resort to extrinsic aids – like deliberations of Congress – if the language of the law is
plain, clear and unambiguous. Courts determine the intent of the law from the literal language of the
law, within the law's four corners.19 If the language of the law is plain, clear and unambiguous, courts
simply apply the law according to its express terms. If a literal application of the law results in absurdity,
impossibility or injustice, then courts may resort to extrinsic aids of statutory construction like the
legislative history of the law.20

Congress, in enacting RA 9009 to amend Section 450 of the Local Government Code, did not provide any
exemption from the increased income requirement, not even to respondent municipalities whose
cityhood bills were then pending when Congress passed RA 9009. Section 450 of the Local Government
Code, as amended by RA 9009, contains no exemption whatsoever. Since the law is clear, plain and
unambiguous that any municipality desiring to convert into a city must meet the increased income
requirement, there is no reason to go beyond the letter of the law in applying Section 450 of the Local
Government Code, as amended by RA 9009.

The 11th Congress' Intent was not Written into the Local Government Code

True, members of Congress discussed exempting respondent municipalities from RA 9009, as shown by
the various deliberations on the matter during the 11th Congress. However, Congress did not write this
intended exemption into law. Congress could have easily included such exemption in RA 9009 but
Congress did not. This is fatal to the cause of respondent municipalities because such exemption must
appear in RA 9009 as an amendment to Section 450 of the Local Government Code. The Constitution
requires that the criteria for the conversion of a municipality into a city, including any exemption from
such criteria, must all be written in the Local Government Code. Congress cannot prescribe such criteria
or exemption from such criteria in any other law. In short, Congress cannot create a city through a law
that does not comply with the criteria or exemption found in the Local Government Code.

Section 10 of Article X is similar to Section 16, Article XII of the Constitution prohibiting Congress from
creating private corporations except by a general law. Section 16 of Article XII provides:

The Congress shall not, except by general law, provide for the formation, organization, or regulation of
private corporations. Government-owned or controlled corporations may be created or established by
special charters in the interest of the common good and subject to the test of economic viability.
(Emphasis supplied)

Thus, Congress must prescribe all the criteria for the "formation, organization, or regulation" of private
corporations in a general law applicable to all without discrimination.21 Congress cannot create a
private corporation through a special law or charter.

Deliberations of the 11th Congress on Unapproved Bills Inapplicable

Congress is not a continuing body.22 The unapproved cityhood bills filed during the 11th Congress
became mere scraps of paper upon the adjournment of the 11th Congress. All the hearings and
deliberations conducted during the 11th Congress on unapproved bills also became worthless upon the
adjournment of the 11th Congress. These hearings and deliberations cannot be used to interpret bills
enacted into law in the 13th or subsequent Congresses.

The members and officers of each Congress are different. All unapproved bills filed in one Congress
become functus officio upon adjournment of that Congress and must be re-filed anew in order to be
taken up in the next Congress. When their respective authors re-filed the cityhood bills in 2006 during
the 13th Congress, the bills had to start from square one again, going through the legislative mill just like
bills taken up for the first time, from the filing to the approval. Section 123, Rule XLIV of the Rules of the
Senate, on Unfinished Business, provides:

Sec. 123. x x x
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but may
be taken by the succeeding Congress as if presented for the first time. (Emphasis supplied)

Similarly, Section 78 of the Rules of the House of Representatives, on Unfinished Business, states:

Section 78. Calendar of Business. The Calendar of Business shall consist of the following:

a. Unfinished Business. This is business being considered by the House at the time of its last
adjournment. Its consideration shall be resumed until it is disposed of. The Unfinished Business at the
end of a session shall be resumed at the commencement of the next session as if no adjournment has
taken place. At the end of the term of a Congress, all Unfinished Business are deemed terminated.
(Emphasis supplied)

Thus, the deliberations during the 11th Congress on the unapproved cityhood bills, as well as the
deliberations during the 12th and 13th Congresses on the unapproved resolution exempting from RA
9009 certain municipalities, have no legal significance. They do not qualify as extrinsic aids in construing
laws passed by subsequent Congresses.

Applicability of Equal Protection Clause

If Section 450 of the Local Government Code, as amended by RA 9009, contained an exemption to the
P100 million annual income requirement, the criteria for such exemption could be scrutinized for
possible violation of the equal protection clause. Thus, the criteria for the exemption, if found in the
Local Government Code, could be assailed on the ground of absence of a valid classification. However,
Section 450 of the Local Government Code, as amended by RA 9009, does not contain any exemption.
The exemption is contained in the Cityhood Laws, which are unconstitutional because such exemption
must be prescribed in the Local Government Code as mandated in Section 10, Article X of the
Constitution.
Even if the exemption provision in the Cityhood Laws were written in Section 450 of the Local
Government Code, as amended by RA 9009, such exemption would still be unconstitutional for violation
of the equal protection clause. The exemption provision merely states, "Exemption from Republic Act
No. 9009 ─ The City of x x x shall be exempted from the income requirement prescribed under Republic
Act No. 9009." This one sentence exemption provision contains no classification standards or guidelines
differentiating the exempted municipalities from those that are not exempted.

Even if we take into account the deliberations in the 11th Congress that municipalities with pending
cityhood bills should be exempt from the P100 million income requirement, there is still no valid
classification to satisfy the equal protection clause. The exemption will be based solely on the fact that
the 16 municipalities had cityhood bills pending in the 11th Congress when RA 9009 was enacted. This is
not a valid classification between those entitled and those not entitled to exemption from the P100
million income requirement.

To be valid, the classification in the present case must be based on substantial distinctions, rationally
related to a legitimate government objective which is the purpose of the law,23 not limited to existing
conditions only, and applicable to all similarly situated. Thus, this Court has ruled:

The equal protection clause of the 1987 Constitution permits a valid classification under the following
conditions:

1. The classification must rest on substantial distinctions;

2. The classification must be germane to the purpose of the law;

3. The classification must not be limited to existing conditions only; and

4. The classification must apply equally to all members of the same class.24
There is no substantial distinction between municipalities with pending cityhood bills in the 11th
Congress and municipalities that did not have pending bills. The mere pendency of a cityhood bill in the
11th Congress is not a material difference to distinguish one municipality from another for the purpose
of the income requirement. The pendency of a cityhood bill in the 11th Congress does not affect or
determine the level of income of a municipality. Municipalities with pending cityhood bills in the 11th
Congress might even have lower annual income than municipalities that did not have pending cityhood
bills. In short, the classification criterion − mere pendency of a cityhood bill in the 11th Congress − is not
rationally related to the purpose of the law which is to prevent fiscally non-viable municipalities from
converting into cities.

Municipalities that did not have pending cityhood bills were not informed that a pending cityhood bill in
the 11th Congress would be a condition for exemption from the increased P100 million income
requirement. Had they been informed, many municipalities would have caused the filing of their own
cityhood bills. These municipalities, even if they have bigger annual income than the 16 respondent
municipalities, cannot now convert into cities if their income is less than P100 million.

The fact of pendency of a cityhood bill in the 11th Congress limits the exemption to a specific condition
existing at the time of passage of RA 9009. That specific condition will never happen again. This violates
the requirement that a valid classification must not be limited to existing conditions only. This
requirement is illustrated in Mayflower Farms, Inc. v. Ten Eyck,25 where the challenged law allowed
milk dealers engaged in business prior to a fixed date to sell at a price lower than that allowed to
newcomers in the same business. In Mayflower, the U.S. Supreme Court held:

We are referred to a host of decisions to the effect that a regulatory law may be prospective in
operation and may except from its sweep those presently engaged in the calling or activity to which it is
directed. Examples are statutes licensing physicians and dentists, which apply only to those entering the
profession subsequent to the passage of the act and exempt those then in practice, or zoning laws
which exempt existing buildings, or laws forbidding slaughterhouses within certain areas, but excepting
existing establishments. The challenged provision is unlike such laws, since, on its face, it is not a
regulation of a business or an activity in the interest of, or for the protection of, the public, but an
attempt to give an economic advantage to those engaged in a given business at an arbitrary date as
against all those who enter the industry after that date. The appellees do not intimate that the
classification bears any relation to the public health or welfare generally; that the provision will
discourage monopoly; or that it was aimed at any abuse, cognizable by law, in the milk business. In the
absence of any such showing, we have no right to conjure up possible situations which might justify the
discrimination. The classification is arbitrary and unreasonable and denies the appellant the equal
protection of the law. (Emphasis supplied)
In the same vein, the exemption provision in the Cityhood Laws gives the 16 municipalities a unique
advantage based on an arbitrary date − the filing of their cityhood bills before the end of the 11th
Congress - as against all other municipalities that want to convert into cities after the effectivity of RA
9009.

Furthermore, limiting the exemption only to the 16 municipalities violates the requirement that the
classification must apply to all similarly situated. Municipalities with the same income as the 16
respondent municipalities cannot convert into cities, while the 16 respondent municipalities can.
Clearly, as worded the exemption provision found in the Cityhood Laws, even if it were written in
Section 450 of the Local Government Code, would still be unconstitutional for violation of the equal
protection clause.

WHEREFORE, we GRANT the petitions and declare UNCONSTITUTIONAL the Cityhood Laws, namely:
Republic Act Nos. 9389, 9390, 9391, 9392, 9393, 9394, 9398, 9404, 9405, 9407, 9408, 9409, 9434, 9435,
9436, and 9491.

SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

WE CONCUR:

REYNATO S. PUNO

Chief Justice

LEONARDO A. QUISUMBING

Associate Justice
*CONSUELO YNARES-SANTIAGO

Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

RENATO C. CORONA

Associate Justice

CONCHITA CARPIO MORALES

Associate Justice

ADOLFO S. AZCUNA

Associate Justice

DANTE O. TINGA

Associate Justice

MINITA V. CHICO-NAZARIO

Associate Justice
PRESBITERO J. VELASCO, JR.

Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

RUBEN T. REYES

Associate Justice

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

ARTURO D. BRION

Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the writer of the opinion
of the Court.

REYNATO S. PUNO

Chief Justice
Footnotes

1 Under Section 2, Rule 65 of the 1997 Rules of Civil Procedure.

2 As National President of the League of Cities of the Philippines, Mayor of Iloilo City, and taxpayer.

3 June 1998 to June 2001.

4 June 2001 to June 2004.

5 Entitled AN ACT AMENDING SECTION 450 OF REPUBLIC ACT NO. 7160, OTHERWISE KNOWN AS THE
LOCAL GOVERNMENT CODE OF 1991, BY INCREASING THE AVERAGE ANNUAL INCOME REQUIREMENT
FOR A MUNICIPALITY OR CLUSTER OF BARANGAYS TO BE CONVERTED INTO A COMPONENT CITY.

6 Sponsorship Speech of Senator Aquilino Pimentel, 5 October 2000.

7 June 2004 to June 2007.

8 Entitled Joint Resolution to Exempt Certain Municipalities Embodied in Bills Filed in Congress before
June 30, 2001 from the Coverage of Republic Act No. 9009.

9 June 2007 to June 2010.

10 The sixteen (16) Cityhood Laws are the following:

Republic Act No. 9389, entitled "An Act converting the Municipality of Baybay in the Province of Leyte
into a component city to be known as the City of Baybay." Lapsed into law on 15 March 2007;

Republic Act No. 9390, entitled "An Act converting the Municipality of Bogo, Cebu Province into a
component city to be known as the City of Bogo." Lapsed into law on 15 March 2007;

Republic Act No. 9391, entitled "An Act converting the Municipality of Catbalogan in the Province of
Samar into a component city to be known as the City of Catbalogan." Lapsed into law on 15 March 2007;

Republic Act No. 9392, entitled "An Act converting the Municipality of Tandag in the Province of Surigao
del Sur into a component city to be known as the City of Tandag." Lapsed into law on 15 March 2007;

Republic Act No. 9394, entitled "An Act converting the Municipality of Borongan in the Province of
Eastern Samar into a component city to be known as the City of Borongan." Lapsed into law on 16
March 2007;

Republic Act No. 9398, entitled "An Act converting the Municipality of Tayabas in the Province of
Quezon into a component city to be known as the City of Tayabas." Lapsed into law on 18 March 2007;

Republic Act No. 9393, entitled "An Act converting the Municipality of Lamitan in the Province of Basilan
into a component city to be known as the City of Lamitan." Lapsed into law on 15 March 2007;

Republic Act No. 9404, entitled "An Act converting the Municipality of Tabuk into a component city of
the Province of Kalinga to be known as the City of Tabuk." Lapsed into law on 23 March 2007;

Republic Act No. 9405, entitled "An Act converting the Municipality of Bayugan in the Province of
Agusan del Sur into a component city to be known as the City of Bayugan." Lapsed into law on 23 March
2007;
Republic Act No. 9407, entitled "An Act converting the Municipality of Batac in the Province of Ilocos
Norte into a component city to be known as the City of Batac." Lapsed into law on 24 March 2007;

Republic Act No. 9408, entitled "An Act converting the Municipality of Mati in the Province of Davao
Oriental into a component city to be known as the City of Mati." Lapsed into law on 24 March 2007;

Republic Act No. 9409, entitled "An Act converting the Municipality of Guihulngan in the Province of
Negros Oriental into a component city to be known as the City of Guihulngan." Lapsed into law on 24
March 2007;

Republic Act No. 9434, entitled "An Act converting the Municipality of Cabadbaran into a component
city of the Province of Agusan Del Norte to be known as the City of Cabadbaran." Lapsed into law on 12
April 2007;

Republic Act No. 9436, entitled "An Act converting the Municipality of Carcar in the Province of Cebu
into a component city to be known as the City of Carcar." Lapsed into law on 15 April 2007;

Republic Act No. 9435, entitled "An Act converting the Municipality of El Salvador in the Province of
Misamis Oriental into a component city to be known as the City of El Salvador." Lapsed into law on 12
April 2007; and

Republic Act No. 9491, entitled "An Act converting the Municipality of Naga in the Province of Cebu into
a component city to be known as the City of Naga." Lapsed into law on 15 July 2007.

11 Section 27 (1), Article VI of the Constitution.

12 Section 1, Article III of the Constitution.

13 Section 285 of the Local Government Code provides: "Allocation to Local Government Units. – The
share of local government units in the internal revenue allotment shall be allocated in the following
manner:

(a) Provinces – Twenty-three percent (23%);

(b) Cities – Twenty-three percent (23%);

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

(d) Barangays – Twenty percent (20%)

Provided, however, That the share of each province, city, and municipality shall be determined on the
basis of the following formula:

(a) Population – Fifty percent (50%);

(b) Land Area – Twenty-five percent (25%); and

(c) Equal sharing – Twenty-five percent (25%)

Provided, further, That the share of each barangay with a population of not less than one hundred (100)
inhabitants shall not be less than Eighty thousand (P80,000.00) per annum chargeable against the
twenty percent (20%) share of the barangay from the internal revenue allotment, and the balance to be
allocated on the basis of the following formula:

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

(1) Population – Forty percent (40%); and

(2) Equal Sharing – Sixty percent (60%)

(b) On the second year:

(1) Population – Fifty percent (50%); and

(2) Equal Sharing – Fifty percent (50%)

(c) On the third year and thereafter:

(1) Population – Sixty percent (60%); and

(2) Equal sharing – Forty percent (40%).

Provided, finally, That the financial requirements of barangays created by local government units after
the effectivity of this Code shall be the responsibility of the local government unit concerned."

14 Sema v. COMELEC, G.R. No. 177597, 16 July 2008; Social Weather Stations, Inc. v. COMELEC, 409 Phil.
571, 592 (2001); Mutuc v. COMELEC, 146 Phil. 798 (1970).

15 Section 499 of the Local Government Code provides: "Purpose of Organization. – There shall be an
organization of all cities to be known as the League of Cities for the primary purpose of ventilating,
articulating and crystallizing issues affecting city government administration, and securing, through
proper and legal means, solutions thereto.
The league may form chapters at the provincial level for the component cities of a province. Highly-
urbanized cities may also form a chapter of the League. The National League shall be composed of the
presidents of the league of highly-urbanized cities and the presidents of the provincial chapters of the
league of component cities."

16 The Court granted the interventions of the following cities: Santiago City, Iriga City, Ligao City, Legazpi
City, Tagaytay City, Surigao City, Bayawan City, Silay City, General Santos City, Zamboanga City, Gingoog
City, Cauayan City, Pagadian City, San Carlos City, San Fernando City, Tacurong City, Tangub City,
Oroquieta City, Urdaneta City, Victorias City, Calapan City, Himamaylan City, Batangas City, Bais City,
Tarlac City, Cadiz City, and Tagum City.

17 Article 4 of the Civil Code provides: "Laws shall have no retroactive effect, unless the contrary is
provided."

18 Republic Act No. 7160, as amended.

19 Ramirez v. Court of Appeals, G.R. No. 93833, 28 September 1995, 248 SCRA 590, 596; Security Bank
and Trust Company v. RTC of Makati, Br. 61, G.R. No. 113926, 23 October 1996, 263 SCRA 483, 488.

20 Republic v. Court of Appeals, 359 Phil. 530, 559 (1998); Commissioner of Internal Revenue v.
Solidbank Corp., 462 Phil. 96, 129-131 (2003).

21 The Corporation Code of the Philippines (Batas Pambansa Blg. 68) is the general law providing for the
formation, organization and regulation of private corporations.

22 See Neri v. Senate Committee on Accountability of Public Officers and Investigations, G.R. No.
180643, 25 March 2008, 549 SCRA 77, 135-136.
23 The rational basis test is the minimum level of scrutiny that all government actions challenged under
the equal protection clause must meet. The strict scrutiny test is used in discriminations based on race
or those which result in violations of fundamental rights. Under the strict scrutiny test, to be valid the
classification must promote a compelling state interest. The intermediate scrutiny test is used in
discriminations based on gender or illegitimacy of children. Under the intermediate scrutiny test, the
classification must be substantially related to an important government objective. Laws not subject to
the strict or intermediate scrutiny test are evaluated under the rational basis test, which is the easiest
test to satisfy since the classification must only show a rational relationship to a legitimate government
purpose. See Erwin Chemerinsky, Constitutional Law, Principles and Policies, 2nd Edition, pp. 645-646.

24 De Guzman, Jr. v. COMELEC, 391 Phil. 70, 79 (2000); Tiu v. Court of Tax Appeals, 361 Phil. 229, 242
(1999).

25 297 U.S. 266 (1936).

Case Digest: LCP VS. COMELEC

G.R. No. 176951 : February 15, 2011

LEAGUE OF CITIES OF THE PHILIPPINES (LCP), represented by LCP National

President Jerry P. Treñas; CITY OF CALBAYOG, represented by Mayor Mel Senen S.
Sarmiento; and JERRY P. TREÑAS, in his personal capacity as Taxpayer, Petitioners,

v.

COMMISSION ON ELECTIONS; MUNICIPALITY OF BAYBAY, PROVINCE OF

LEYTE; MUNICIPALITY OF BOGO, PROVINCE OF CEBU; MUNICIPALITY OF
CATBALOGAN, PROVINCE OF WESTERN SAMAR; MUNICIPALITY OF TANDAG,
PROVINCE OF SURIGAO DEL SUR; MUNICIPALITY OF BORONGAN, PROVINCE
OF EASTERN SAMAR; AND MUNICIPALITY OF TAYABAS, PROVINCE OF
QUEZON,Respondents.

FACTS:

These cases were initiated by the consolidated petitions for prohibition filed by the League of
Cities of the Philippines (LCP), City of Iloilo, City of Calbayog, and Jerry P. Treñas, assailing
the constitutionality of the sixteen (16) laws, each converting the municipality covered thereby
into a component city (Cityhood Laws), and seeking to enjoin the Commission on Elections
(COMELEC) from conducting plebiscites pursuant to the subject laws.

In the Decision dated November 18, 2008, the Court En Banc, by a 6-5 vote, granted the
petitions and struck down the Cityhood Laws as unconstitutional for violating Sections 10 and 6,
Article X, and the equal protection clause.

In another Decision dated December 21, 2009, the Court En Banc, by a vote of 6-4, declared the
Cityhood Laws as constitutional.

On August 24, 2010, the Court En Banc, through a Resolution, by a vote of 7-6, resolved the Ad
Cautelam Motion for Reconsideration and Motion to Annul the Decision of December 21, 2009.

ISSUE:

Whether or not the Cityhood Bills violate Article X, Section 10 of the Constitution

Whether or not the Cityhood Bills violate Article X, Section 6 and the equal protection
clause of the Constitution

HELD: The petition is meritorious.

CONSTITUTIONAL LAW: Cityhood Laws

First issue:

The enactment of the Cityhood Laws is an exercise by Congress of its legislative

power. Legislative power is the authority, under the Constitution, to make laws, and to alter and
repeal them. The Constitution, as the expression of the will of the people in their original,
sovereign, and unlimited capacity, has vested this power in the Congress of the Philippines.
The LGC is a creation of Congress through its law-making powers. Congress has the power to
alter or modify it as it did when it enacted R.A. No. 9009. Such power of amendment of laws
was again exercised when Congress enacted the Cityhood Laws. When Congress enacted the
LGC in 1991, it provided for quantifiable indicators of economic viability for the creation of
local government units—income, population, and land area.

However, Congress deemed it wiser to exempt respondent municipalities from such a belatedly
imposed modified income requirement in order to uphold its higher calling of putting flesh and
blood to the very intent and thrust of the LGC, which is countryside development and autonomy,
especially accounting for these municipalities as engines for economic growth in their respective
provinces.

R.A. No. 9009 amended the LGC. But the Cityhood Laws amended R.A. No. 9009 through the
exemption clauses found therein. Since the Cityhood Laws explicitly exempted the concerned
municipalities from the amendatory R.A. No. 9009, such Cityhood Laws are, therefore, also
amendments to the LGC itself.

Second Issue:

Substantial distinction lies in the capacity and viability of respondent municipalities to become
component cities of their respective provinces. Congress, by enacting the Cityhood Laws,
recognized this capacity and viability of respondent municipalities to become the State’s partners
in accelerating economic growth and development in the provincial regions, which is the very
thrust of the LGC, manifested by the pendency of their cityhood bills during the 11th Congress
and their relentless pursuit for cityhood up to the present.

The Resolution dated August 24, 2010 is REVERSED and SET ASIDE. The Cityhood Laws are
declared CONSTITUTIONAL.

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.

PANGANIBAN, J.:p

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,1 promulgated on December 19, 19952 and another
Resolution of the Comelec en banc 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 petition4 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 canceled. On May 1, 1995, the Second Division of the Comelec promulgated a
Resolution5 granting the petition with the following disposition6:

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 canceled.

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.

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:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

Raul R. Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 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 banc 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 . . ." 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) . . . 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 . . ." 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 . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725 . . .
(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 Resolution 14 promulgated
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 the status 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 may 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;

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 banc, promulgated on May 11, 1995; and

3. Resolution18 of the Comelec en banc, 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:

Sec. 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. (Emphasis 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"?

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 Court20 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. 10465422 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 co-respondent
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 he -- not Lee -- should 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 ones 25 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 created -- to deal with the matter. If she had intended to
repeal such law, she should have 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 . . . (and) was approved in just one day or on June 30, 1995 . . .", 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
Malacañang 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. 10465430 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 . . . 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 . . . 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, 1995 -- the very day32 the term of office of
governor (and other elective officials) began -- he was therefore already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said 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 from liberal) 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. Giap
and 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 argument34 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 law35 a "voter" must
be a citizen of the Philippines. 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 the citizenship 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 . . .
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, registration -- not the actual voting -- is 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 emphasized -- and 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 . . . In fact, he cast his vote in his precinct on May 8, 1995."36

So too, during the oral argument, his counsel steadfastly 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."3 7

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 RETROACTED 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 exceptions40 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 . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . . (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."

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 . . ." 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 women -- the
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 re-acquire 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 to be 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 delay the processing of applications for any substantial length of
time, then the former Filipinos who may be stateless, as Frivaldo -- having 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.4 7

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 repatriated -- i.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 citizenship -- long 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 affirmed in 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:

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. 95-317 because the only "possible types of
proceedings that may be entertained by the Comelec are a pre-proclamation 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 Constitution57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all
contests relating to the elections, returns and qualifications of all elective . . . provincial . . . 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, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 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 Payor 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 Lee -- should be pro- claimed, since in losing the election, Lee was, to 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 reacquired his citizenship and inasmuch as he obtained the highest
number of votes in the 1995 elections, he -- not 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:

Sec. 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. (Emphasis 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 on February 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. (emphasis 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 . . . 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. Citing Loong, 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 the fifteen 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.

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 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 elective local 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) far 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 Authority
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 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:

. . . (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.

Padilla, Regalado, Romero, Bellosillo, Francisco, Hermosisima, Jr. and Torres, Jr., JJ., concur.

Melo, Vitug and Kapunan, JJ., concurs in the result.

Narvasa, C.J. and Mendoza, J., took no part.

 Separate Opinions

PUNO, J., concurring:

I concur with the path-breaking ponencia of Mr. Justice
Panganiban which is pro-people and pierces the myopia of
legalism. Upholding the sovereign will of the people which
is the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of
the 1987 Constitution. For this reason, it appears as the
first in our declaration of principles and state policies.
Thus, section 1 of Article II of our fundamental law
proclaims that "[t]he Philippines is a democratic and
republican State. Sovereignty resides in the people and all
government authority emanates from them." The same
principle served as the bedrock of our 1973 and 1935
Constitutions.1 It is one of the few principles whose truth
has been cherished by the Americans as self-evident.
Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every
state a "republican form of government." With
understandable fervor, the American authorities imposed
republicanism as the cornerstone of our 1935 Constitution
then being crafted by its Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our
1987 Constitution is more people-oriented. Thus, section 4
of Article II provides as a state policy that the prime duty of
the Government is "to serve and protect the people."
Section 1, Article XI also provides that ". . . public officers .
. . must at all times be accountable to the people . . ."
Sections 15 and 1 of Article XIII define the role and rights
of people's organizations. Section 5(2) of Article XVI
mandates that "[t]he state shall strengthen the patriotic
spirit and nationalist consciousness of the military, and
respect for people's rights in the performance of their
duty." And section 2 of Article XVII provides that
"amendments to
this Constitution may likewise be directly proposed by the
people through initiative . . ." All these provisions and more
are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a
kabalistic principle whose dimensions are buried in
mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its
broadest sense, sovereignty is meant to be supreme, the
jus summi imperu, the absolute right to govern.3 Former
Dean Vicente Sinco4 states that an essential quality of
sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the
nature of sovereignty. The first is legal omnipotence. This
means that the sovereign is legally omnipotent and
absolute in relation to other legal institutions. It has the
power to determine exclusively its legal competence. Its
powers are original, not derivative. It is the sole judge of
what it should do at any given time."5 Citing Barker,6 he
adds that a more amplified definition of sovereignty is that
of "a final power of final legal adjustment of all legal
issues." The U.S. Supreme Court expressed the same
thought in the landmark case of Yick Wo v. Hopkins,7
where it held that ". . . sovereignty itself is, of course, not
subject to law, for it is the author and source of law; but in
our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with
the people, by whom and for whom all government exists
and acts."
In our Constitution, the people established a
representative democracy as distinguished from a pure
democracy. Justice Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government, a
government run by and for the people. It is not a
pure democracy where the people govern
themselves directly. The essence of
republicanism is representation and renovation,
the selection by the citizenry of a corps of public
functionaries who derive their mandate from the
people and act on their behalf, serving for a
limited period only, after which they are replaced
or retained, at the option of their principal.
Obviously, a republican government is a
 responsible government whose officials hold and
discharge their position as a public trust and
shall, according to the Constitution, "at all times
be accountable to the people" they are sworn to
serve. The purpose of a republican government it
is almost needless to state, is the promotion of
the common welfare according to the will of the
people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I
agree that sovereignty is indivisible but it need not always
be exercised by the people together, all the time.9 For this
reason, the Constitution and our laws provide when the
entire electorate or only some of them can elect those who
make our laws and those who execute our laws. Thus, the
entire electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards,
only our city electorates vote for our city councilors, and
only our municipal electorates vote for our councilors.
Also, the entire electorate votes for our President and
Vice-President but only our provincial electorates vote for
our governors, only our city electorates vote for our
mayors, and only our municipal electorates vote for our
mayors. By defining and delimiting the classes of voters
who can exercise the sovereignty of the people in a given
election, it cannot be claimed that said sovereignty has
been fragmented.
It is my respectful submission that the issue in the case at
bar is not whether the people of Sorsogon should be given
the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the
voters of Sorsogon clearly choosing Frivaldo as governor
ought to be given a decisive value considering the
uncertainty of the law on when a candidate ought to satisfy
the qualification of citizenship. The uncertainty of law and
jurisprudence, both here and abroad, on this legal issue
cannot be denied. In the United States, 10 there are two
(2) principal schools of thought on the matter. One
espouses the view that a candidate must possess the
qualifications for office at the time of his election. The
other ventures the view that the candidate should satisfy
the qualifications at the time he assumes the powers of
the office. I am unaware of any Philippine decision that
has squarely resolved this difficult question of law. The
ponencia of Mr. Justice Panganiban adhered to the
second school of thought while Mr. Justice Davide
dissents.
I emphasize the honest-to-goodness difference in
interpreting our law on the matter for this is vital to dispel
the fear of Mr. Justice Davide that my opinion can bring
about ill effects to the State. Mr. Justice Davide's fear is
based on the assumption that Frivaldo continues to be
disqualified and we cannot allow him to sit as governor
without transgressing the law. I do not concede this
assumption for as stressed above, courts have been
sharply divided by this mind boggling issue. Given this
schism, I do not see how we can derogate on the
sovereignty of the people by according more weight to the
votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of
Batanes stage a rebellion, we cannot prosecute them
"because of the doctrine of people's sovereignty." With
due respect, the analogy is not appropriate. In his
hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an
offense against the sovereignty of our people. In the case
at bar, it cannot be held with certitude that the people of
Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates
allowed by COMELEC to run for governor. At that time
too, Frivaldo was taking all steps to establish his Filipino
citizenship. And even our jurisprudence has not settled the
issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then
and now, I cannot imagine how it will be disastrous for the
State if we tilt the balance in the case at bar in favor of the
people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our
people should be resolutory of the case at bar which is
one of its kind, unprecedented in our political history. For
three (3) times, Frivaldo ran as governor of the province of
Sorsogon. For two (2) times, he was disqualified on the
ground of citizenship. The people of Sorsogon voted for
him as their governor despite his disqualification. The
people never waffled in their support for Frivaldo. In 1988,
they gave him a winning margin of 27,000; in 1992, they
gave him a winning spread of 57,000; in 1995, he posted a
margin of 20,000. Clearly then, Frivaldo is the
overwhelming choice of the people of Sorsogon. In
election cases, we should strive to align the will of the
legislature as expressed in its law with the will of the
sovereign people as expressed in their ballots. For law to
reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised
citizen is a particle of popular sovereignty and is the
ultimate source of established authority."11 The choice of
the governed on who shall be their governor merits the
highest consideration by all agencies of government. In
cases where the sovereignty of the people is at stake, we
must not only be legally right but also politically correct.
We cannot fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the
conclusions reached by my distinguished colleague, Mr.
Justice Artemio V. Panganiban, I find myself unable to join
him.
I
I agree with petitioner Lee that Frivaldo's repatriation was
void, but not on the ground that President Corazon C.
Aquino's 27 March 1987 memorandum "effectively
repealed" P.D. No. 725. In my view, the said
memorandum only suspended the implementation of the
latter decree by divesting the Special Committee on
Naturalization of its authority to further act on grants of
citizenship under LOI No. 270, as amended, P.D. No. 836,
as amended; P.D. No. 1379; and "any other related laws,
orders, issuances and rules and regulations." A reading of
the last paragraph of the memorandum can lead to no
other conclusion, thus:
In view of the foregoing, you as Chairman and
members of the Special Committee on
Naturalization, are hereby directed to cease and
desist from undertaking any and all proceedings
within your functional area of responsibility, as
defined in Letter of Instruction No. 270 dated
April 11, 1975, as amended, Presidential Decree
No. 836 dated December 3, 1975, as amended,
and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the
said laws, and any other related laws, orders,
issuances and rules and regulations. (emphasis
supplied)
It is self-evident that the underscored clause can only refer
to those related to LOI No. 270, P.D. No. 836, and P.D.
No. 1379. There is no doubt in my mind that P.D. No. 725
is one such "related law" as it involves the reacquisition of
Philippine citizenship by repatriation and designates the
Special Committee on Naturalization created under LOI
No. 270 to receive and act on (i.e., approve or disapprove)
applications under the said decree. The power of
President Aquino to suspend these issuances by virtue of
the 27 March 1987 memorandum is beyond question
considering that under Section 6, Article XVIII of the 1987
Constitution, she exercised legislative power until the
Congress established therein convened on the fourth
Monday of July 1987.
I disagree with the view expressed in the ponencia that the
memorandum of 27 March 1987 was merely a declaration
of "executive policy," and not an exercise of legislative
power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any
other related laws," such as P.D. No. 725, were issued by
President Ferdinand E. Marcos in the exercise of his
legislative powers -- not executive power. These laws
relate to the acquisition (by naturalization) and
reacquisition (by repatriation) of Philippine citizenship, and
in light of Sections 1(4) and 3, Article IV of the 1987
Constitution (naturalization and reacquisition of Philippine
citizenship shall be in accordance with law), it is
indubitable that these subjects are a matter of legislative
prerogative. In the same vein, the creation of the Special
Committee on Naturalization by LOI No. 270 and the
conferment of the power to accept and act on applications
under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order
and the reactivation or revival of the Committee can be
done only by legislative fiat, i.e., by Congress, since the
President had long lost his authority to exercise "legislative
power." Considering that Congress has not seen it fit to do
so, the President cannot, in the exercise of executive
power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo
fortiori, the Committee cannot validly accept Frivaldo's
application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is
valid, it did not "cure his lack of citizenship." I depart from
the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when
the citizenship requirement must be met, and that being
the case, then it suffices that citizenship be possessed
upon commencement of the term of the office involved;
therefore, since Frivaldo "re-assumed" his Philippine
citizenship at 2:00 p.m. on 30 June 1995 and the term of
office of Governor commenced at 12:00 noon of that day,
he had, therefore, complied with the citizenship
requirement.
In the first place, Section 39 actually prescribes the
qualifications of elective local officials and not those of an
elected local official. These adjectives are not
synonymous, as the ponencia seems to suggest. The first
refers to the nature of the office, which requires the
process of voting by the electorate involved; while the
second refers to a victorious candidate for an elective
office. The section unquestionably refers to elective -- not
elected -- local officials. It falls under Title Two entitled
ELECTIVE OFFICIALS; under Chapter 1 entitled
Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while
paragraphs (b) to (f) thereof speak of candidates. It reads
as follows:
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.
(c) Candidates for the position of mayor or vice
mayor of independent component cities,
component cities, or municipalities must be at
least twenty-one (21) years of age on election
day.
(d) Candidates for the position of member of the
sangguniang panlungsod or sangguniang bayan
must be at least eighteen (18) years of age on
election day.
 (e) Candidates for the position of punong
barangay or member of the sangguniang
barangay must be at least eighteen (18) years of
age on election day.
(f) Candidates for the sangguniang kabataan
must be at least fifteen (15) years of age but not
more than twenty-one (21) years of age on
election day (emphasis supplied)
It is thus obvious that Section 39 refers to no other
than the qualifications of candidates for elective local
offices and their election. Hence, in no way may the
section be construed to mean that possession of
qualifications should be reckoned from the
commencement of the term of office of the elected
candidate.
For another, it is not at all true that Section 39 does not
specify the time when the citizenship requirement must be
possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed,
not merely at the commencement of the term, but at an
earlier time, the latest being election day itself. Section 39
is not at all ambiguous nor uncertain that it meant this to
be, as one basic qualification of an elective local official is
that he be "A REGISTERED VOTER IN THE BARANGAY,
MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE
INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of
suffrage. The fundamental qualification for the exercise of
this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first
qualification, as Section 1, Article V thereof provides:
Sec. 1. Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by
law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at
least one year and in the place wherein they
propose to vote for at least six months
immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of the
Philippines (B.P. Blg. 881) expressly provides for the
qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen
of the Philippines, not otherwise disqualified by
law, eighteen years of age or over, who shall
have resided in the Philippines for one year and
in the city or municipality wherein he proposes to
vote for at least six months immediately
preceding the election, may be a registered voter.
(emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's
election as Governor in the 1988 and 1992 elections on
the ground that for lack of Philippine citizenship -- he being
a naturalized citizen of the United States of America -- he
was DISQUALIFIED to be elected as such and to serve
the position (Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989]; Republic of the Philippines vs. De la
Rosa, 232 SCRA 785 [1994]). This disqualification
inexorably nullified Frivaldo's registration as a voter and
declared it void ab initio. Our judgments therein were self-
executory and no further act, e.g., a COMELEC order to
cancel his registration as a voter or the physical
destruction of his voter's certificate, was necessary for the
ineffectivity. Thus, he was never considered a registered
voter for the elections of May 1992, and May 1995, as
there is no showing that Frivaldo registered anew as a
voter for the latter elections. Even if he did -- in obvious
defiance of his decreed disqualification -- this did not make
him a Filipino citizen, hence it was equally void ab initio.
That he filed his certificate of candidacy for the 1995
elections and was even allowed to vote therein were of no
moment. Neither act made him a Filipino citizen nor
nullified the judgments of this Court. On the contrary, said
acts made a mockery of our judgments. For the Court now
to validate Frivaldo's registration as a voter despite the
judgments of disqualification is to modify the said
judgments by making their effectivity and enforceability
dependent on a COMELEC order cancelling his
registration as a voter, or on the physical destruction of his
certificate of registration as a voter which, of course, was
never our intention. Moreover, to sanction Frivaldo's
registration as a voter would be to sacrifice substance in
favor of form (the piece of paper that is the book of voters
or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration
and allowing him to vote.
The second reason in the ponencia as to why the
citizenship disqualification should be reckoned not from
the date of the election nor the filing of the certificate of
candidacy, but from the date of proclamation, is that the
only available remedy to question the ineligibility (or
disloyalty) of a candidate is a petition for quo warranto
which, under Section 253 of the Omnibus Election Code,
may be filed only within ten days from proclamation and
not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to
question a candidate's ineligibility for public office. Section
78 of the Omnibus Election Code allows the filing of a
petition to deny due course to or cancel the certificate of
candidacy on the ground that any material representation
contained therein, as required by Section 74, is false.
Section 74, in turn, requires that the person filing the
certificate of candidacy must state, inter alia, that he is
eligible for the office, which means that he has all the
qualifications (including, of course, fulfilling the citizenship
requirement) and none of the disqualifications as provided
by law. The petition under Section 78 may be filed at any
time not later than 25 days from the filing of the certificate
of candidacy. The section reads in full as follows:
 Sec. 78. Petition to deny due course to or cancel
a certificate of candidacy. -- A verified petition
seeking to deny due course or to cancel a
certificate of candidacy may be filed by 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 due notice and hearing, not later than fifteen
days before the election.
This remedy was recognized in Loong vs.
Commission on Elections (216 SCRA 760, 768
[1992]), where this Court held:
Thus, if a person qualified to file a petition to
disqualify a certain candidate fails to file the
petition within the 25-day period Section 78 of the
Code for whatever reasons, the election laws do
not leave him completely helpless as he has
another chance to raise the disqualification of the
candidate by filing a petition for quo warranto
within ten (10) days from the proclamation of the
results of the election, as provided under Section
253 of the Code. Section 1, Rule 21 of the
Comelec Rules of Procedure similarly provides
that any voter contesting the election of any
regional, provincial or city official on the ground of
ineligibility or of disloyalty to the Republic of the
 Philippines may file a petition for quo warranto
with the Electoral Contest Adjudication
Department. The petition may be filed within ten
(10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of
Procedure allows the filing of a petition for disqualification
on the ground of failure to possess all the qualifications of
a candidate as provided by the Constitution or by existing
laws, "any day after the last day for filing of certificates of
candidacy but not later than the date of proclamation."
Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any
candidate who does not possess all the
qualifications of a candidate as provided for by
the Constitution or by existing law or who
commits any act declared by law to be grounds
for disqualification may be disqualified from
continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall
be filed any day after the last day for filing of
certificates of candidacy but not later than the
date of proclamation.
 While the validity of this rule insofar as it concerns
petitions for disqualification on the ground of lack of
all qualifications may be doubtful, its invalidity is not in
issue here.
In this connection, it would seem appropriate to take up
the last issue grappled within the ponencia, viz., is Section
78 of the Omnibus Election Code mandatory? The answer
is provided in Loong.
We also do not find merit in the contention of
respondent Commission that in the light of the
provisions of Sections 6 and 7 of Rep. Act No.
6646, a petition to deny due course to or cancel a
certificate of candidacy may be filed even beyond
the 25-day period prescribed by Section 78 of the
Code, as long as it is filed within a reasonable
time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here
re-quoted:
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.
Sec. 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.
It will be noted that nothing in Sections 6 or 7
modifies or alters the 25- day period prescribed
by Section 78 of the Code for filing the
appropriate action to cancel a certificate of
candidacy on account of any false representation
made therein. On the contrary, said Section 7
affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects
of a disqualification case which may be based on
grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No.
6646 also makes the effects referred to in
 Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention
made of the period within which these
disqualification cases may be filed. This is
because there are provisions in the Code which
supply the periods within which a petition relating
to disqualification of candidates must be filed,
such as Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that
Section 78 is merely directory because Section 6 of R.A.
No. 6646 authorizes the COMELEC to try and decide
petitions for disqualification even after elections. I submit
that Section 6 refers to disqualifications under Sections 12
and 68 of the Omnibus Election Code and consequently
modifies Section 72 thereof. As such, the proper court or
the COMELEC are granted the authority to continue
hearing the case after the election, and during the
pendency of the case, suspend the proclamation of the
victorious candidate, if the evidence against him is strong.
Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has
been declared by competent authority insane or
incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or
for any offense for which he has been sentenced
to a penalty of more than eighteen months or for
a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon
or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon
declaration by competent authority that said
insanity or incompetence had been removed or
after the expiration of a period of five years from
his service of sentence, unless within the same
period he again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in
an action or protest in which he is a party is
declared by final decision of a competent court
guilty of, or found by the Commission of having
(a) given money or other material consideration
to influence, induce or corrupt the voters or public
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding
the office. Any person who is a permanent
 resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office
under this Code, unless said person has waived
his status as permanent resident or immigrant of
a foreign country in accordance with the
residence requirement provided for in the election
laws. (Sec. 25, 1971 EC)
Sec. 72. Effects of disqualification cases and
priority. The Commission and the courts shall
give priority to cases of disqualification by reason
of violation of this Act to the end that a final
decision shall be rendered not later than seven
days before the election in which the
disqualification is sought.
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.
Nevertheless, 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, his
violation of the provisions of the preceding
sections shall not prevent his proclamation and
assumption to office.
III
Still assuming that the repatriation is valid, I am not
persuaded by the arguments in support of the thesis that
Frivaldo's repatriation may be given retroactive effect, as
such goes against the spirit and letter of P.D. No. 725. The
spirit adheres to the principle that acquisition or re-
acquisition of Philippine citizenship is not a right, but a
mere privilege. Before the advent of P.D. No. 725, only the
following could apply for repatriation: (a) Army, Navy, or
Air Corps deserters; and (b) a woman who lost her
citizenship by reason of her marriage to an alien after the
death of her spouse (Section 2[2], C.A. No. 63). P.D. NO.
725 expanded this to include Filipino women who lost their
Philippine citizenship by marriage to aliens even before
the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens
who lost their Philippine citizenship but subsequently
desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725
expressly provides that repatriation takes effect only after
taking the oath of allegiance to the Republic of the
Philippines, thus:
. . . may reacquire Philippine citizenship . . . by
applying with the Special Committee on
Naturalization created by Letter of Instruction No.
270, and, if their applications are approved,
taking the necessary oath of allegiance to the
Republic of the Philippines, AFTER WHICH
THEY SHALL BE DEEMED TO HAVE
REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
 Clearly then, the steps to reacquire Philippine
citizenship by repatriation under the decree are: (1)
filing the application; (2) action by the committee; and
(3) taking of the oath of allegiance if the application is
approved. It is only UPON TAKING THE OATH OF
ALLEGIANCE that the applicant is deemed ipso jure
to have reacquired Philippine citizenship. If the decree
had intended the oath taking to retroact to the date of
the filing of the application, then it should not have
explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's
pronouncement in the first Frivaldo case that what
reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . .
allegiance to the Philippines." That act meant nothing less
than taking of the oath of allegiance to the Republic of the
Philippines. If we now take this revision of doctrine to its
logical end, then it would also mean that if Frivaldo had
chosen and reacquired Philippine citizenship by
naturalization or through Congressional action, such would
retroact to the filing of the petition for naturalization or the
bill granting him Philippine citizenship. This is a
proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of
the proposition that P.D. No. 725 can be given retroactive
effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal
hermeneutics may P.D. No. 725 be characterized as a
curative or remedial statute:
Curative or remedial statutes are healing acts.
They are remedial by curing defects and adding
to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the
thing omitted or failed to be done, and which
constitutes the defect sought to be removed or
made harmless, is something the legislature
might have dispensed with by a previous statute,
it may do so by a subsequent one.
Curative statutes are intended to supply defects,
abridge superfluities in existing laws, and curb
certain evils. They are intended to enable a
person to carry into effect that which they have
designed and intended, but has failed of
expected legal consequence by reason of some
statutory disability or irregularity in their own
action. They make valid that which, before the
enactment of the statute, was invalid. (RUBEN E.
AGPALO, Statutory Construction, Second ed.
[1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine
citizenship lost through the marriage of a Filipina to an
alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the
substantive, nay primordial, right of citizenship. To those
for whom it is intended, it means, in reality, the acquisition
of "a new right," as the ponencia cannot but concede.
Therefore, it may not be said to merely remedy or cure a
defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As
earlier stated, the Constitution provides that citizenship,
once lost, may only be reacquired in the manner provided
by law. Moreover, it has also been observed that:
The idea is implicit from many of the cases that
remedial statutes are statutes relating to
procedure and not substantive rights.
(Sutherland, Statutory Construction, Vol. 3, Third
ed. [1943], §5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D.
No. 725 is curative or remedial statute, it would be an
inexcusable error to give it a retroactive effect since it
explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in
the year of Our Lord, nineteen hundred and
seventy five.
Nevertheless, if the retroactivity is to relate only to the
reacquisition of Philippine citizenship, then nothing therein
supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of
allegiance to the Republic of the Philippines that the
applicant is DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking
the oath of allegiance retroacted to the date of Frivaldo's
application for repatriation, the same could not be said
insofar as it concerned the United States of America, of
which he was a citizen. For under the laws of the United
States of America, Frivaldo remained an American
national until he renounced his citizenship and allegiance
thereto at 2:00 p.m. on 30 June 1995, when he took his
oath of allegiance to the Republic of the Philippines.
Section 401 of the Nationality Act of 1940 of the United
States of America provides that a person who is a national
of the United States of America, whether by birth or
naturalization, loses his nationality by, inter alia, "(b)
Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state" (SIDNEY
KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed.,
[1948] 341-342). It follows then that on election day and
until the hour of the commencement of the term for which
he was elected - noon of 30 June 1995 as per Section 43
of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a
Filipino citizen through the adoption of the theory that the
effects of his taking the oath of allegiance were
retrospective. Hence, he was disqualified to run for
Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local
Government Code.
V
The assertion in the ponencia that Frivaldo may be
considered STATELESS on the basis of his claim that he
"had long renounced and had long abandoned his
American citizenship - long before May 8, 1985" - is
untenable, for the following reasons: first, it is based on
Frivaldo's unproven, self-serving allegation; second,
informal renunciation or abandonment is not a ground to
lose American citizenship; and third, simply put, never did
the status of a STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of
individuals stripped of their nationality by their former
government without having an opportunity to acquire
another; or de facto, which is the status of individuals
possessed of a nationality whose country does not give
them protection outside their own country, and who are
commonly, albeit imprecisely, referred to as refugees
(JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United
Nations Convention Regarding the Status of Stateless
Persons (Philippine Treaty Series, Compiled and
Annotated by Haydee B. Yorac, vol. III, 363), a stateless
person is defined as "a person who is not considered as a
national by any State under the operation of its law."
However, it has not been shown that the United States of
America ever ceased to consider Frivaldo its national at
any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the
concurring opinion of Mr. Justice Reynato S. Puno. I am
absolutely happy to join him in his statement that "[t]he
sovereignty of our people is the primary postulate of the
1987 Constitution" and that the said Constitution is "more
people-oriented," "borne [as it is] out of the 1986 people
power EDSA revolution." I would even go further by saying
that this Constitution is pro-God (Preamble), pro-people
(Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section
1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15,
16, 18; Article XVI, Sections 5(2), 6), pro-Filipino (Article
XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1,
4(2), 13; Article XVI, Section 11), pro-poor (Article II,
Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article
XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article
II, Section 12), and pro-family (Article II, Section 12; Article
XV).
Nevertheless, I cannot be with him in carrying out the
principle of sovereignty beyond what I perceive to be the
reasonable constitutional parameters. The doctrine of
people's sovereignty is founded on the principles of
democracy and republicanism and refers exclusively to the
sovereignty of the people of the Philippines. Section 1 of
Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and
republican State. Sovereignty resides in the
people and all government authority emanates
from them.
And the Preamble makes it clear when it solemnly
opens it with a clause "We, the sovereign Filipino
people . . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be
fragmentized by looking at it as the supreme authority of
the people of any of the political subdivisions to determine
their own destiny; neither can we convert and treat every
fragment as the whole. In such a case, this Court would
provide the formula for the division and destruction of the
State and render the Government ineffective and inutile.
To illustrate the evil, we may consider the enforcement of
laws or the pursuit of a national policy by the executive
branch of the government, or the execution of a judgment
by the courts. If these are opposed by the overwhelming
majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law,
national policy, or judgment must not be enforced,
implemented, or executed in the said province or
municipality. More concretely, if, for instance, the vast
majority of the people of Batanes rise publicly and take up
arms against the Government for the purpose of removing
from the allegiance to the said Government or its laws, the
territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces,
or depriving the Chief Executive or the Legislature, wholly
or partially, of any of their powers or prerogatives, then
those who did so -- and which are composed of the vast
majority of the people of Batanes -- a political subdivision -
- cannot be prosecuted for or be held guilty of rebellion in
violation of Article 134 of the Revised Penal Code
because of the doctrine of peoples' sovereignty. Indeed,
the expansion of the doctrine of sovereignty by investing
upon the people of a mere political subdivision that which
the Constitution places in the entire Filipino people, may
be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring
opinion. Thus, simply because Frivaldo had obtained a
margin of 20,000 votes over his closest rival, Lee, i.e., a
vast majority of the voters of Sorsogon had expressed
their sovereign will for the former, then this Court must
yield to that will and must, therefore, allow to be set aside,
for Frivaldo, not just the laws on qualifications of
candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final
and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I
vote then to DISMISS G.R. No. 120295 and GRANT G.R.
No. 123755.
Separate Opinions
PUNO, J., concurring:
I concur with the path-breaking ponencia of Mr. Justice
Panganiban which is pro-people and pierces the myopia of
legalism. Upholding the sovereign will of the people which
is the be-all and the end-all of republicanism, it rests on a
foundation that will endure time and its tempest.
The sovereignty of our people is the primary postulate of
the 1987 Constitution. For this reason, it appears as the
first in our declaration of principles and state policies.
Thus, section 1 of Article II of our fundamental law
proclaims that "[t]he Philippines is a democratic and
republican State. Sovereignty resides in the people and all
government authority emanates from them." The same
principle served as the bedrock of our 1973 and 1935
Constitutions.1 It is one of the few principles whose truth
has been cherished by the Americans as self-evident.
Section 4, Article IV of the U.S. Constitution makes it a
duty of the Federal government to guarantee to every
state a "republican form of government." With
understandable fervor, the American authorities imposed
republicanism as the cornerstone of our 1935 Constitution
then being crafted by its Filipino framers.2
Borne out of the 1986 people power EDSA revolution, our
1987 Constitution is more people-oriented. Thus, section 4
of Article II provides as a state policy that the prime duty of
the Government is "to serve and protect the people."
Section 1, Article XI also provides that ". . . public officers .
. . must at all times be accountable to the people . . ."
Sections 15 and 1 of Article XIII define the role and rights
of people's organizations. Section 5(2) of Article XVI
mandates that "[t]he state shall strengthen the patriotic
spirit and nationalist consciousness of the military, and
respect for people's rights in the performance of their
duty." And section 2 of Article XVII provides that
"amendments to
this Constitution may likewise be directly proposed by the
people through initiative . . ." All these provisions and more
are intended to breathe more life to the sovereignty of our
people.
To be sure, the sovereignty of our people is not a
kabalistic principle whose dimensions are buried in
mysticism. Its metes and bounds are familiar to the
framers of our Constitutions. They knew that in its
broadest sense, sovereignty is meant to be supreme, the
jus summi imperu, the absolute right to govern.3 Former
Dean Vicente Sinco4 states that an essential quality of
sovereignty is legal omnipotence, viz.: "Legal theory
establishes certain essential qualities inherent in the
nature of sovereignty. The first is legal omnipotence. This
means that the sovereign is legally omnipotent and
absolute in relation to other legal institutions. It has the
power to determine exclusively its legal competence. Its
powers are original, not derivative. It is the sole judge of
what it should do at any given time."5 Citing Barker,6 he
adds that a more amplified definition of sovereignty is that
of "a final power of final legal adjustment of all legal
issues." The U.S. Supreme Court expressed the same
thought in the landmark case of Yick Wo v. Hopkins,7
where it held that ". . . sovereignty itself is, of course, not
subject to law, for it is the author and source of law; but in
our system, while sovereign powers are delegated to the
agencies of government, sovereignty itself remains with
the people, by whom and for whom all government exists
and acts."
In our Constitution, the people established a
representative democracy as distinguished from a pure
democracy. Justice Isagani Cruz explains:8
xxx xxx xxx
A republic is a representative government, a
government run by and for the people. It is not a
pure democracy where the people govern
themselves directly. The essence of
republicanism is representation and renovation,
the selection by the citizenry of a corps of public
functionaries who derive their mandate from the
people and act on their behalf, serving for a
limited period only, after which they are replaced
or retained, at the option of their principal.
Obviously, a republican government is a
responsible government whose officials hold and
discharge their position as a public trust and
shall, according to the Constitution, "at all times
be accountable to the people" they are sworn to
 serve. The purpose of a republican government it
is almost needless to state, is the promotion of
the common welfare according to the will of the
people themselves.
I appreciate the vigorous dissent of Mr. Justice Davide. I
agree that sovereignty is indivisible but it need not always
be exercised by the people together, all the time.9 For this
reason, the Constitution and our laws provide when the
entire electorate or only some of them can elect those who
make our laws and those who execute our laws. Thus, the
entire electorate votes for our senators but only our district
electorates vote for our congressmen, only our provincial
electorates vote for the members of our provincial boards,
only our city electorates vote for our city councilors, and
only our municipal electorates vote for our councilors.
Also, the entire electorate votes for our President and
Vice-President but only our provincial electorates vote for
our governors, only our city electorates vote for our
mayors, and only our municipal electorates vote for our
mayors. By defining and delimiting the classes of voters
who can exercise the sovereignty of the people in a given
election, it cannot be claimed that said sovereignty has
been fragmented.
It is my respectful submission that the issue in the case at
bar is not whether the people of Sorsogon should be given
the right to defy the law by allowing Frivaldo to sit as their
governor. Rather, the issue is: whether the will of the
voters of Sorsogon clearly choosing Frivaldo as governor
ought to be given a decisive value considering the
uncertainty of the law on when a candidate ought to satisfy
the qualification of citizenship. The uncertainty of law and
jurisprudence, both here and abroad, on this legal issue
cannot be denied. In the United States, 10 there are two
(2) principal schools of thought on the matter. One
espouses the view that a candidate must possess the
qualifications for office at the time of his election. The
other ventures the view that the candidate should satisfy
the qualifications at the time he assumes the powers of
the office. I am unaware of any Philippine decision that
has squarely resolved this difficult question of law. The
ponencia of Mr. Justice Panganiban adhered to the
second school of thought while Mr. Justice Davide
dissents.
I emphasize the honest-to-goodness difference in
interpreting our law on the matter for this is vital to dispel
the fear of Mr. Justice Davide that my opinion can bring
about ill effects to the State. Mr. Justice Davide's fear is
based on the assumption that Frivaldo continues to be
disqualified and we cannot allow him to sit as governor
without transgressing the law. I do not concede this
assumption for as stressed above, courts have been
sharply divided by this mind boggling issue. Given this
schism, I do not see how we can derogate on the
sovereignty of the people by according more weight to the
votes of the people of Sorsogon.
Mr. Justice Davide warns that should the people of
Batanes stage a rebellion, we cannot prosecute them
"because of the doctrine of people's sovereignty." With
due respect, the analogy is not appropriate. In his
hypothetical case, rebellion is concededly a crime, a
violation of Article 134 of the Revised Penal Code, an
offense against the sovereignty of our people. In the case
at bar, it cannot be held with certitude that the people of
Sorsogon violated the law by voting for Frivaldo as
governor. Frivaldo's name was in the list of candidates
allowed by COMELEC to run for governor. At that time
too, Frivaldo was taking all steps to establish his Filipino
citizenship. And even our jurisprudence has not settled the
issue when a candidate should possess the qualification of
citizenship. Since the meaning of the law is arguable then
and now, I cannot imagine how it will be disastrous for the
State if we tilt the balance in the case at bar in favor of the
people of Sorsogon.
In sum, I respectfully submit that the sovereign will of our
people should be resolutory of the case at bar which is
one of its kind, unprecedented in our political history. For
three (3) times, Frivaldo ran as governor of the province of
Sorsogon. For two (2) times, he was disqualified on the
ground of citizenship. The people of Sorsogon voted for
him as their governor despite his disqualification. The
people never waffled in their support for Frivaldo. In 1988,
they gave him a winning margin of 27,000; in 1992, they
gave him a winning spread of 57,000; in 1995, he posted a
margin of 20,000. Clearly then, Frivaldo is the
overwhelming choice of the people of Sorsogon. In
election cases, we should strive to align the will of the
legislature as expressed in its law with the will of the
sovereign people as expressed in their ballots. For law to
reign, it must respect the will of the people. For in the
eloquent prose of Mr. Justice Laurel, ". . . an enfranchised
citizen is a particle of popular sovereignty and is the
ultimate source of established authority."11 The choice of
the governed on who shall be their governor merits the
highest consideration by all agencies of government. In
cases where the sovereignty of the people is at stake, we
must not only be legally right but also politically correct.
We cannot fail by making the people succeed.
DAVIDE, JR., J., dissenting:
After deliberating on the re-formulated issues and the
conclusions reached by my distinguished colleague, Mr.
Justice Artemio V. Panganiban, I find myself unable to join
him.
I
I agree with petitioner Lee that Frivaldo's repatriation was
void, but not on the ground that President Corazon C.
Aquino's 27 March 1987 memorandum "effectively
repealed" P.D. No. 725. In my view, the said
memorandum only suspended the implementation of the
latter decree by divesting the Special Committee on
Naturalization of its authority to further act on grants of
citizenship under LOI No. 270, as amended, P.D. No. 836,
as amended; P.D. No. 1379; and "any other related laws,
orders, issuances and rules and regulations." A reading of
the last paragraph of the memorandum can lead to no
other conclusion, thus:
In view of the foregoing, you as Chairman and
members of the Special Committee on
Naturalization, are hereby directed to cease and
desist from undertaking any and all proceedings
within your functional area of responsibility, as
defined in Letter of Instruction No. 270 dated
April 11, 1975, as amended, Presidential Decree
No. 836 dated December 3, 1975, as amended,
and Presidential Decree No. 1379 dated May 17,
1978, relative to the grant of citizenship under the
said laws, and any other related laws, orders,
issuances and rules and regulations. (emphasis
supplied)
It is self-evident that the underscored clause can only refer
to those related to LOI No. 270, P.D. No. 836, and P.D.
No. 1379. There is no doubt in my mind that P.D. No. 725
is one such "related law" as it involves the reacquisition of
Philippine citizenship by repatriation and designates the
Special Committee on Naturalization created under LOI
No. 270 to receive and act on (i.e., approve or disapprove)
applications under the said decree. The power of
President Aquino to suspend these issuances by virtue of
the 27 March 1987 memorandum is beyond question
considering that under Section 6, Article XVIII of the 1987
Constitution, she exercised legislative power until the
Congress established therein convened on the fourth
Monday of July 1987.
I disagree with the view expressed in the ponencia that the
memorandum of 27 March 1987 was merely a declaration
of "executive policy," and not an exercise of legislative
power. LOI No. 270, P.D. No. 836, P.D. No. 1379 and "any
other related laws," such as P.D. No. 725, were issued by
President Ferdinand E. Marcos in the exercise of his
legislative powers -- not executive power. These laws
relate to the acquisition (by naturalization) and
reacquisition (by repatriation) of Philippine citizenship, and
in light of Sections 1(4) and 3, Article IV of the 1987
Constitution (naturalization and reacquisition of Philippine
citizenship shall be in accordance with law), it is
indubitable that these subjects are a matter of legislative
prerogative. In the same vein, the creation of the Special
Committee on Naturalization by LOI No. 270 and the
conferment of the power to accept and act on applications
under P.D. No. 725 are clearly legislative acts.
Accordingly, the revocation of the cease and desist order
and the reactivation or revival of the Committee can be
done only by legislative fiat, i.e., by Congress, since the
President had long lost his authority to exercise "legislative
power." Considering that Congress has not seen it fit to do
so, the President cannot, in the exercise of executive
power, lift the cease and desist order nor
reactivate/reconstitute/revive the Committee. A multo
fortiori, the Committee cannot validly accept Frivaldo's
application for repatriation and approve it.
II
Even assuming arguendo that Frivaldo's repatriation is
valid, it did not "cure his lack of citizenship." I depart from
the view in the ponencia that Section 39 of the Local
Government Code of 1991 does not specify the time when
the citizenship requirement must be met, and that being
the case, then it suffices that citizenship be possessed
upon commencement of the term of the office involved;
therefore, since Frivaldo "re-assumed" his Philippine
citizenship at 2:00 p.m. on 30 June 1995 and the term of
office of Governor commenced at 12:00 noon of that day,
he had, therefore, complied with the citizenship
requirement.
In the first place, Section 39 actually prescribes the
qualifications of elective local officials and not those of an
elected local official. These adjectives are not
synonymous, as the ponencia seems to suggest. The first
refers to the nature of the office, which requires the
process of voting by the electorate involved; while the
second refers to a victorious candidate for an elective
office. The section unquestionably refers to elective -- not
elected -- local officials. It falls under Title Two entitled
ELECTIVE OFFICIALS; under Chapter 1 entitled
Qualifications and Election; and paragraph (a) thereof
begins with the phrase "An elective local official," while
paragraphs (b) to (f) thereof speak of candidates. It reads
as follows:
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.
(c) Candidates for the position of mayor or vice
mayor of independent component cities,
component cities, or municipalities must be at
least twenty-one (21) years of age on election
day.
(d) Candidates for the position of member of the
sangguniang panlungsod or sangguniang bayan
must be at least eighteen (18) years of age on
election day.
(e) Candidates for the position of punong
barangay or member of the sangguniang
barangay must be at least eighteen (18) years of
age on election day.
 (f) Candidates for the sangguniang kabataan
must be at least fifteen (15) years of age but not
more than twenty-one (21) years of age on
election day (emphasis supplied)
It is thus obvious that Section 39 refers to no other
than the qualifications of candidates for elective local
offices and their election. Hence, in no way may the
section be construed to mean that possession of
qualifications should be reckoned from the
commencement of the term of office of the elected
candidate.
For another, it is not at all true that Section 39 does not
specify the time when the citizenship requirement must be
possessed. I submit that the requirement must be
satisfied, or that Philippine citizenship must be possessed,
not merely at the commencement of the term, but at an
earlier time, the latest being election day itself. Section 39
is not at all ambiguous nor uncertain that it meant this to
be, as one basic qualification of an elective local official is
that he be "A REGISTERED VOTER IN THE BARANGAY,
MUNICIPALITY, CITY OR PROVINCE . . . WHERE HE
INTENDS TO VOTE." This simply means that he
possesses all the qualifications to exercise the right of
suffrage. The fundamental qualification for the exercise of
this sovereign right is the possession of Philippine
citizenship. No less than the Constitution makes it the first
qualification, as Section 1, Article V thereof provides:
 Sec. 1. Suffrage may be exercised by all citizens
of the Philippines not otherwise disqualified by
law, who are at least eighteen years of age, and
who shall have resided in the Philippines for at
least one year and in the place wherein they
propose to vote for at least six months
immediately preceding the election. . . .
(emphasis supplied)
And Section 117 of the Omnibus Election Code of the
Philippines (B.P. Blg. 881) expressly provides for the
qualifications of a voter. Thus:
Sec. 117 Qualifications of a voter. -- Every citizen
of the Philippines, not otherwise disqualified by
law, eighteen years of age or over, who shall
have resided in the Philippines for one year and
in the city or municipality wherein he proposes to
vote for at least six months immediately
preceding the election, may be a registered voter.
(emphasis supplied)
It is undisputed that this Court twice voided Frivaldo's
election as Governor in the 1988 and 1992 elections on
the ground that for lack of Philippine citizenship -- he being
a naturalized citizen of the United States of America -- he
was DISQUALIFIED to be elected as such and to serve
the position (Frivaldo vs. Commission on Elections, 174
SCRA 245 [1989]; Republic of the Philippines vs. De la
Rosa, 232 SCRA 785 [1994]). This disqualification
inexorably nullified Frivaldo's registration as a voter and
declared it void ab initio. Our judgments therein were self-
executory and no further act, e.g., a COMELEC order to
cancel his registration as a voter or the physical
destruction of his voter's certificate, was necessary for the
ineffectivity. Thus, he was never considered a registered
voter for the elections of May 1992, and May 1995, as
there is no showing that Frivaldo registered anew as a
voter for the latter elections. Even if he did -- in obvious
defiance of his decreed disqualification -- this did not make
him a Filipino citizen, hence it was equally void ab initio.
That he filed his certificate of candidacy for the 1995
elections and was even allowed to vote therein were of no
moment. Neither act made him a Filipino citizen nor
nullified the judgments of this Court. On the contrary, said
acts made a mockery of our judgments. For the Court now
to validate Frivaldo's registration as a voter despite the
judgments of disqualification is to modify the said
judgments by making their effectivity and enforceability
dependent on a COMELEC order cancelling his
registration as a voter, or on the physical destruction of his
certificate of registration as a voter which, of course, was
never our intention. Moreover, to sanction Frivaldo's
registration as a voter would be to sacrifice substance in
favor of form (the piece of paper that is the book of voters
or list of voters or voter's ID), and abet the COMELEC's
incompetence in failing to cancel Frivaldo's registration
and allowing him to vote.
The second reason in the ponencia as to why the
citizenship disqualification should be reckoned not from
the date of the election nor the filing of the certificate of
candidacy, but from the date of proclamation, is that the
only available remedy to question the ineligibility (or
disloyalty) of a candidate is a petition for quo warranto
which, under Section 253 of the Omnibus Election Code,
may be filed only within ten days from proclamation and
not earlier.
I beg to differ.
Clearly, quo warranto is not the sole remedy available to
question a candidate's ineligibility for public office. Section
78 of the Omnibus Election Code allows the filing of a
petition to deny due course to or cancel the certificate of
candidacy on the ground that any material representation
contained therein, as required by Section 74, is false.
Section 74, in turn, requires that the person filing the
certificate of candidacy must state, inter alia, that he is
eligible for the office, which means that he has all the
qualifications (including, of course, fulfilling the citizenship
requirement) and none of the disqualifications as provided
by law. The petition under Section 78 may be filed at any
time not later than 25 days from the filing of the certificate
of candidacy. The section reads in full as follows:
Sec. 78. Petition to deny due course to or cancel
a certificate of candidacy. -- A verified petition
seeking to deny due course or to cancel a
certificate of candidacy may be filed by 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 due notice and hearing, not later than fifteen
days before the election.
This remedy was recognized in Loong vs.
Commission on Elections (216 SCRA 760, 768
[1992]), where this Court held:
Thus, if a person qualified to file a petition to
disqualify a certain candidate fails to file the
petition within the 25-day period Section 78 of the
Code for whatever reasons, the election laws do
not leave him completely helpless as he has
another chance to raise the disqualification of the
candidate by filing a petition for quo warranto
within ten (10) days from the proclamation of the
results of the election, as provided under Section
253 of the Code. Section 1, Rule 21 of the
Comelec Rules of Procedure similarly provides
that any voter contesting the election of any
regional, provincial or city official on the ground of
ineligibility or of disloyalty to the Republic of the
Philippines may file a petition for quo warranto
with the Electoral Contest Adjudication
Department. The petition may be filed within ten
(10) days from the date the respondent is
proclaimed (Section 2).
Likewise, Rule 25 of the Revised COMELEC Rules of
Procedure allows the filing of a petition for disqualification
on the ground of failure to possess all the qualifications of
a candidate as provided by the Constitution or by existing
laws, "any day after the last day for filing of certificates of
candidacy but not later than the date of proclamation."
Sections 1 and 3 thereof provide:
Rule 25 -- Disqualification of Candidates
Sec. 1. Grounds for Disqualification. Any
candidate who does not possess all the
qualifications of a candidate as provided for by
the Constitution or by existing law or who
commits any act declared by law to be grounds
for disqualification may be disqualified from
continuing as a candidate.
xxx xxx xxx
Sec. 3. Period to File Petition. The petition shall
be filed any day after the last day for filing of
certificates of candidacy but not later than the
date of proclamation.
While the validity of this rule insofar as it concerns
petitions for disqualification on the ground of lack of
all qualifications may be doubtful, its invalidity is not in
issue here.
In this connection, it would seem appropriate to take up
the last issue grappled within the ponencia, viz., is Section
78 of the Omnibus Election Code mandatory? The answer
is provided in Loong.
We also do not find merit in the contention of
respondent Commission that in the light of the
provisions of Sections 6 and 7 of Rep. Act No.
6646, a petition to deny due course to or cancel a
certificate of candidacy may be filed even beyond
the 25-day period prescribed by Section 78 of the
Code, as long as it is filed within a reasonable
time from the discovery of the ineligibility.
Sections 6 and 7 of Rep. Act No. 6646 are here
re-quoted:
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.
Sec. 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.
It will be noted that nothing in Sections 6 or 7
modifies or alters the 25- day period prescribed
by Section 78 of the Code for filing the
appropriate action to cancel a certificate of
candidacy on account of any false representation
made therein. On the contrary, said Section 7
affirms and reiterates Section 78 of the Code.
We note that Section 6 refers only to the effects
of a disqualification case which may be based on
grounds other than that provided under Section
78 of the Code. But Section 7 of Rep. Act No.
6646 also makes the effects referred to in
Section 6 applicable to disqualification cases filed
under Section 78 of the Code. Nowhere in
Sections 6 and 7 of Rep. Act No. 6646 is mention
made of the period within which these
disqualification cases may be filed. This is
because there are provisions in the Code which
supply the periods within which a petition relating
 to disqualification of candidates must be filed,
such as Section 78, already discussed, and
Section 253 on petitions for quo warranto.
I then disagree with the asseveration in the ponencia that
Section 78 is merely directory because Section 6 of R.A.
No. 6646 authorizes the COMELEC to try and decide
petitions for disqualification even after elections. I submit
that Section 6 refers to disqualifications under Sections 12
and 68 of the Omnibus Election Code and consequently
modifies Section 72 thereof. As such, the proper court or
the COMELEC are granted the authority to continue
hearing the case after the election, and during the
pendency of the case, suspend the proclamation of the
victorious candidate, if the evidence against him is strong.
Sections 12, 68, and 72 of the Code provide:
Sec. 12. Disqualifications. Any person who has
been declared by competent authority insane or
incompetent, or has been sentenced by final
judgment for subversion, insurrection, rebellion or
for any offense for which he has been sentenced
to a penalty of more than eighteen months or for
a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon
or granted amnesty.
The disqualifications to be a candidate herein
provided shall be deemed removed upon
declaration by competent authority that said
insanity or incompetence had been removed or
after the expiration of a period of five years from
his service of sentence, unless within the same
period he again becomes disqualified.
xxx xxx xxx
Sec. 68. Disqualifications. Any candidate who, in
an action or protest in which he is a party is
declared by final decision of a competent court
guilty of, or found by the Commission of having
(a) given money or other material consideration
to influence, induce or corrupt the voters or public
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
candidacy; (c) spent in his election campaign an
amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution
prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, sub-paragraph
6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding
the office. Any person who is a permanent
resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office
under this Code, unless said person has waived
his status as permanent resident or immigrant of
a foreign country in accordance with the
residence requirement provided for in the election
laws. (Sec. 25, 1971 EC)
 Sec. 72. Effects of disqualification cases and
priority. The Commission and the courts shall
give priority to cases of disqualification by reason
of violation of this Act to the end that a final
decision shall be rendered not later than seven
days before the election in which the
disqualification is sought.
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.
Nevertheless, 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, his
violation of the provisions of the preceding
sections shall not prevent his proclamation and
assumption to office.
III
Still assuming that the repatriation is valid, I am not
persuaded by the arguments in support of the thesis that
Frivaldo's repatriation may be given retroactive effect, as
such goes against the spirit and letter of P.D. No. 725. The
spirit adheres to the principle that acquisition or re-
acquisition of Philippine citizenship is not a right, but a
mere privilege. Before the advent of P.D. No. 725, only the
following could apply for repatriation: (a) Army, Navy, or
Air Corps deserters; and (b) a woman who lost her
citizenship by reason of her marriage to an alien after the
death of her spouse (Section 2[2], C.A. No. 63). P.D. NO.
725 expanded this to include Filipino women who lost their
Philippine citizenship by marriage to aliens even before
the death of their alien husbands, or the termination of
their marital status and to natural-born Filipino citizens
who lost their Philippine citizenship but subsequently
desired to reacquire the latter.
Turning now to the letter of the law, P.D. No. 725
expressly provides that repatriation takes effect only after
taking the oath of allegiance to the Republic of the
Philippines, thus:
. . . may reacquire Philippine citizenship . . . by
applying with the Special Committee on
Naturalization created by Letter of Instruction No.
270, and, if their applications are approved,
taking the necessary oath of allegiance to the
Republic of the Philippines, AFTER WHICH
THEY SHALL BE DEEMED TO HAVE
REACQUIRED PHILIPPINE CITIZENSHIP.
(emphasis and capitalization supplied)
Clearly then, the steps to reacquire Philippine
citizenship by repatriation under the decree are: (1)
filing the application; (2) action by the committee; and
(3) taking of the oath of allegiance if the application is
approved. It is only UPON TAKING THE OATH OF
ALLEGIANCE that the applicant is deemed ipso jure
to have reacquired Philippine citizenship. If the decree
had intended the oath taking to retroact to the date of
 the filing of the application, then it should not have
explicitly provided otherwise.
This theory in the ponencia likewise dilutes this Court's
pronouncement in the first Frivaldo case that what
reacquisition of Filipino citizenship requires is an act
"formally rejecting [the] adopted state and reaffirming . . .
allegiance to the Philippines." That act meant nothing less
than taking of the oath of allegiance to the Republic of the
Philippines. If we now take this revision of doctrine to its
logical end, then it would also mean that if Frivaldo had
chosen and reacquired Philippine citizenship by
naturalization or through Congressional action, such would
retroact to the filing of the petition for naturalization or the
bill granting him Philippine citizenship. This is a
proposition which both the first and second Frivaldo cases
soundly rejected.
The other reason adduced in the ponencia in support of
the proposition that P.D. No. 725 can be given retroactive
effect is its alleged curative or remedial nature.
Again, I disagree. In the first place, by no stretch of legal
hermeneutics may P.D. No. 725 be characterized as a
curative or remedial statute:
Curative or remedial statutes are healing acts.
They are remedial by curing defects and adding
to the means of enforcing existing obligations.
The rule in regard to curative statutes is that if the
thing omitted or failed to be done, and which
 constitutes the defect sought to be removed or
made harmless, is something the legislature
might have dispensed with by a previous statute,
it may do so by a subsequent one.
Curative statutes are intended to supply defects,
abridge superfluities in existing laws, and curb
certain evils. They are intended to enable a
person to carry into effect that which they have
designed and intended, but has failed of
expected legal consequence by reason of some
statutory disability or irregularity in their own
action. They make valid that which, before the
enactment of the statute, was invalid. (RUBEN E.
AGPALO, Statutory Construction, Second ed.
[1990], 270-271, citations omitted).
P.D. No. 725 provides for the reacquisition of Philippine
citizenship lost through the marriage of a Filipina to an
alien and through naturalization in a foreign country of
natural-born Filipino citizens. It involves then the
substantive, nay primordial, right of citizenship. To those
for whom it is intended, it means, in reality, the acquisition
of "a new right," as the ponencia cannot but concede.
Therefore, it may not be said to merely remedy or cure a
defect considering that one who has lost Philippine
citizenship does not have the right to reacquire it. As
earlier stated, the Constitution provides that citizenship,
once lost, may only be reacquired in the manner provided
by law. Moreover, it has also been observed that:
 The idea is implicit from many of the cases that
remedial statutes are statutes relating to
procedure and not substantive rights.
(Sutherland, Statutory Construction, Vol. 3, Third
ed. [1943], §5704 at 74, citations omitted).
If we grant for the sake of argument, however, that P.D.
No. 725 is curative or remedial statute, it would be an
inexcusable error to give it a retroactive effect since it
explicitly provides the date of its effectivity. Thus:
This Decree shall take effect immediately.
Done in the city of Manila, this 5th day of June, in
the year of Our Lord, nineteen hundred and
seventy five.
Nevertheless, if the retroactivity is to relate only to the
reacquisition of Philippine citizenship, then nothing therein
supports such theory, for as the decree itself
unequivocally provides, it is only after taking the oath of
allegiance to the Republic of the Philippines that the
applicant is DEEMED TO HAVE REACQUIRED
PHILIPPINE CITIZENSHIP.
IV
Assuming yet again, for the sake of argument, that taking
the oath of allegiance retroacted to the date of Frivaldo's
application for repatriation, the same could not be said
insofar as it concerned the United States of America, of
which he was a citizen. For under the laws of the United
States of America, Frivaldo remained an American
national until he renounced his citizenship and allegiance
thereto at 2:00 p.m. on 30 June 1995, when he took his
oath of allegiance to the Republic of the Philippines.
Section 401 of the Nationality Act of 1940 of the United
States of America provides that a person who is a national
of the United States of America, whether by birth or
naturalization, loses his nationality by, inter alia, "(b)
Taking an oath or making an affirmation or other formal
declaration of allegiance to a foreign state" (SIDNEY
KANSAS, U.S. Immigration Exclusion and Deportation and
Citizenship of the United States of America, Third ed.,
[1948] 341-342). It follows then that on election day and
until the hour of the commencement of the term for which
he was elected - noon of 30 June 1995 as per Section 43
of the Local Government Code - Frivaldo possessed dual
citizenship, viz., (a) as an American citizen; and (b) as a
Filipino citizen through the adoption of the theory that the
effects of his taking the oath of allegiance were
retrospective. Hence, he was disqualified to run for
Governor for yet another reason: possession of dual
citizenship, in accordance with Section 40 (d) of the Local
Government Code.
V
The assertion in the ponencia that Frivaldo may be
considered STATELESS on the basis of his claim that he
"had long renounced and had long abandoned his
American citizenship - long before May 8, 1985" - is
untenable, for the following reasons: first, it is based on
Frivaldo's unproven, self-serving allegation; second,
informal renunciation or abandonment is not a ground to
lose American citizenship; and third, simply put, never did
the status of a STATELESS person attach to Frivaldo.
Statelessness may be either de jure, which is the status of
individuals stripped of their nationality by their former
government without having an opportunity to acquire
another; or de facto, which is the status of individuals
possessed of a nationality whose country does not give
them protection outside their own country, and who are
commonly, albeit imprecisely, referred to as refugees
(JORGE R. COQUIA, et al., Conflict of Laws Cases,
Materials and Comments, 1995 ed., 290).
Specifically, under Chapter 1, Article 1 of the United
Nations Convention Regarding the Status of Stateless
Persons (Philippine Treaty Series, Compiled and
Annotated by Haydee B. Yorac, vol. III, 363), a stateless
person is defined as "a person who is not considered as a
national by any State under the operation of its law."
However, it has not been shown that the United States of
America ever ceased to consider Frivaldo its national at
any time before he took his oath of allegiance to the
Republic of the Philippines on 30 June 1995.
VI
Finally, I find it in order to also express my view on the
concurring opinion of Mr. Justice Reynato S. Puno. I am
absolutely happy to join him in his statement that "[t]he
sovereignty of our people is the primary postulate of the
1987 Constitution" and that the said Constitution is "more
people-oriented," "borne [as it is] out of the 1986 people
power EDSA revolution." I would even go further by saying
that this Constitution is pro-God (Preamble), pro-people
(Article II, Sections 1, 3, 4, 5, 9, 15, 16; Article XI, Section
1, Article XII, Sections 1, 6; Article XIII, Sections 1, 11, 15,
16, 18; Article XVI, Sections 5(2), 6), pro-Filipino (Article
XII, Sections 1, 2, 10, 11, 12, 14; Article XIV, Sections 1,
4(2), 13; Article XVI, Section 11), pro-poor (Article II,
Sections 9, 10, 18, 21; Article XII, Sections 1, 2(3); Article
XIII, Sections 1, 3, 4, 5, 6, 7, 9, 10, 11, 13), pro-life (Article
II, Section 12), and pro-family (Article II, Section 12; Article
XV).
Nevertheless, I cannot be with him in carrying out the
principle of sovereignty beyond what I perceive to be the
reasonable constitutional parameters. The doctrine of
people's sovereignty is founded on the principles of
democracy and republicanism and refers exclusively to the
sovereignty of the people of the Philippines. Section 1 of
Article II is quite clear on this, thus:
Sec. 1. The Philippines is a democratic and
republican State. Sovereignty resides in the
people and all government authority emanates
from them.
And the Preamble makes it clear when it solemnly
opens it with a clause "We, the sovereign Filipino
 people . . ." Thus, this sovereignty is an attribute of
the Filipino people as one people, one body.
That sovereign power of the Filipino people cannot be
fragmentized by looking at it as the supreme authority of
the people of any of the political subdivisions to determine
their own destiny; neither can we convert and treat every
fragment as the whole. In such a case, this Court would
provide the formula for the division and destruction of the
State and render the Government ineffective and inutile.
To illustrate the evil, we may consider the enforcement of
laws or the pursuit of a national policy by the executive
branch of the government, or the execution of a judgment
by the courts. If these are opposed by the overwhelming
majority of the people of a certain province, or even a
municipality, it would necessarily follow that the law,
national policy, or judgment must not be enforced,
implemented, or executed in the said province or
municipality. More concretely, if, for instance, the vast
majority of the people of Batanes rise publicly and take up
arms against the Government for the purpose of removing
from the allegiance to the said Government or its laws, the
territory of the Republic of the Philippines or any part
thereof, or any body of land, naval, or other armed forces,
or depriving the Chief Executive or the Legislature, wholly
or partially, of any of their powers or prerogatives, then
those who did so -- and which are composed of the vast
majority of the people of Batanes -- a political subdivision -
- cannot be prosecuted for or be held guilty of rebellion in
violation of Article 134 of the Revised Penal Code
because of the doctrine of peoples' sovereignty. Indeed,
the expansion of the doctrine of sovereignty by investing
upon the people of a mere political subdivision that which
the Constitution places in the entire Filipino people, may
be disastrous to the Nation.
So it is in this case if we follow the thesis in the concurring
opinion. Thus, simply because Frivaldo had obtained a
margin of 20,000 votes over his closest rival, Lee, i.e., a
vast majority of the voters of Sorsogon had expressed
their sovereign will for the former, then this Court must
yield to that will and must, therefore, allow to be set aside,
for Frivaldo, not just the laws on qualifications of
candidates and elective officials and naturalization and
reacquisition of Philippine citizenship, but even the final
and binding decisions of this Court affecting him.
This Court must be the first to uphold the Rule of Law. I
vote then to DISMISS G.R. No. 120295 and GRANT G.R.
No. 123755.
1 Composed of Pres. CoFootnotesmm. Regalado E.
Maambong, ponente; Comm. Graduacion A.R. Claravall,
concurring, and Comm. Julio F. Desamito, dissenting.
2 In SPC No. 95-317, entitled Juan G. Frivaldo, petitioner,
vs. Raul R. Lee, respondent; rollo, pp. 110-129.
3 Signed by Chairman Bernardo P. Pardo, Comms.
Regalado E. Maambong, Remedios A. Salazar-Fernando,
Manolo B. Gorospe and Teresita Dy-Liaco Flores.
Chairman Pardo certified that "Commissioner Julio F.
Desamito was on official travel at the time of the
deliberation and resolution of this case. However, the
Commission has reserved to Comm. Desamito the right to
submit a dissenting opinion." Rollo, pp. 159-171.
4 Rollo, pp. 46-49.
5 Rollo, pp. 50-55. The Second Division was composed of
Pres. Comm. Remedios A. Salazar-Fernando, ponente;
Comm. Teresita Dy-Liaco Flores, concurring, and Comm.
Manolo B. Gorospe ("on official business").
6 Frivaldo was naturalized as an American citizen on
January 20, 1983. In G.R. No. 87193, Frivaldo vs.
Commission on Elections, 174 SCRA 245 (June 23,
1989), the Supreme Court, by reason of such
naturalization, declared Frivaldo "not a citizen of the
Philippines and therefore DISQUALIFIED from serving as
Governor of the Province of Sorsogon." On February 28,
1992, the Regional Trial Court of Manila granted the
petition for naturalization of Frivaldo. However, the
Supreme Court in G.R. No. 104654, Republic of the
Philippines vs. De la Rosa, et al., 232 SCRA 785 (June 6,
1994), overturned this grant, and Frivaldo was "declared
not a citizen of the Philippines" and ordered to vacate his
office. On the basis of this latter Supreme Court ruling, the
Comelec disqualified Frivaldo in SPA No. 95-028.
7 Signed by Chairman Bernardo P. Pardo and the six
incumbent commissioners, namely, Regalado E.
Maambong, Remedios A. Salazar-Fernando, Manolo B.
Gorospe, Graduacion A. Reyes-Claravall, Julio F.
Desamito and Teresita Dy-Liaco Flores; rollo, pp. 56-57.
8 Rollo, p. 60.
9 Rollo, pp. 61-67.
10 Rollo, pp. 86-87. The Comelec considered the votes
cast for Frivaldo as "stray votes", and thus Lee was held
as having garnered the "highest number of votes."
11 Rollo, pp. 88-97. This is the forerunner of the present
case.
12 211 SCRA 297 (July 3, 1992) and 176 SCRA 1 (August
1, 1989).
13 Rollo, pp. 110-128.
14 Rollo, pp. 159-170.
15 Rollo, pp. 16-17; petition, pp. 14-15.
16 Rollo, pp. 10-15. This is the same resolution referred to
in footnote no. 5.
17 Rollo, pp. 16-17. This is the same resolution referred to
in footnote no. 7.
18 Rollo, pp. 18-21. This is signed also by the Chairman
and the six other Comelec Commissioners.
19 Republic Act No. 7160.
20 See footnote no. 6, supra.
21 In debunking Frivaldo's claim of citizenship, this Court
in G.R. No. 87193, supra, p. 254, observed that "(i)f he
(Frivaldo) really wanted to disavow his American
citizenship and reacquire Philippine citizenship, petitioner
should have done so in accordance with the laws of our
country. Under C.A. No. 63 as amended by C.A. No. 473
and P.D. 725, Philippine citizenship may be reacquired by
direct act of Congress, by naturalization, or by
repatriation."
22 Supra, p. 794.
23 Petition, p. 27; rollo, p. 29.
24 The full text of said memorandum reads as follows:
MEMORANDUM
TO : The Solicitor General
The Undersecretary of Foreign Affairs
The Director-General
National Intelligence Coordinating Agency
The previous administration's practice of granting
citizenship by Presidential Decree or any other executive
issuance, and the derivative administrative authority
thereof, 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.
In view of the foregoing, you as Chairman and members of
the Special Committee on Naturalization, are hereby
directed to cease and desist from undertaking any and all
proceedings within your functional area of responsibility,
as defined in Letter of Instructions No. 270 dated April 11,
1975, as amended, Presidential Decree No. 836 dated
December 3, 1975, as amended, and Presidential Decree
No. 1379 dated May 17, 1978, relative to the grant of
citizenship under the said laws, and any other related
laws, orders, issuances and rules and regulations.
(Sgd.) Corazon C. Aquino
Manila, March 27, 1987.
25 Art. 7, Civil Code of the Philippines.
26 Cf. Ty, et al. vs. Trampe, et al., G.R. No. 117577
(December 1, 1995).
27 Petition, p. 28; rollo, p. 30.
28 The aforesaid Manifestation reads as follows:
MANIFESTATION
The Solicitor General, as Chairman of the Special
Committee on Naturalization, hereby manifests that the
following persons have been repatriated by virtue of
Presidential Decree No. 725, since June 8, 1995:
1. Juan Gallanosa Frivaldo R-000900
2. Manuel Reyes Sanchez 901
3. Ma. Nelly Dessalla Ty 902
4. Terry Herrera and
Antonio Ching 903
5. Roberto Salas Benedicto 904
6. Winthrop Santos Liwag 905
7. Samuel M. Buyco 906
8. Joselito Holganza Ruiz 907
9. Samuel Villanueva 908
10. Juan Leonardo Collas, Jr. 909
11. Felicilda Otilla Sacnanas-Chua 910
29 The text of P.D. 725 is reproduced below:
PRESIDENTIAL DECREE No. 725
PROVIDING FOR REPATRIATION OF FILIPINO
WOMEN WHO HAD LOST THEIR PHILIPPINE
CITIZENSHIP BY MARRIAGE TO ALIENS AND OF
NATURAL BORN FILIPINOS.
WHEREAS, there are many Filipino women who had lost
their Philippine citizenship by marriage to aliens;
WHEREAS, while the new Constitution allows a Filipino
woman who marries an alien to retain her Philippine
citizenship unless by her act or omission, she is deemed
under the law to have renounced her Philippine
citizenship, such provision of the new Constitution does
not apply to Filipino women who had married aliens before
said constitution took effect;
WHEREAS, the existing law (C.A. No. 63, as amended)
allows the repatriation of Filipino women who lost their
citizenship by reason of their marriage to aliens only after
the death of their husbands or the termination of their
marital status; and
WHEREAS, there are natural born Filipinos who have lost
their Philippine citizenship but now desire to re-acquire
Philippine citizenship;
Now, THEREFORE, I, FERDINAND E. MARCOS,
President of the Philippines, by virtue of the powers in me
vested by the Constitution, do hereby decree and order
that: (1) Filipino women who lost their Philippine
citizenship by marriage to aliens; and (3) natural born
Filipinos who have lost their Philippine citizenship may
reacquire Philippine citizenship through repatriation by
applying with the Special Committee on Naturalization
created by Letter of Instructions No. 270, and, if their
applications are approved, taking the necessary oath of
allegiance to the Republic of the Philippines, after which
they shall be deemed to have reacquired Philippine
citizenship. The Commission on Immigration and
Deportation shall thereupon cancel their certificate of
registration.
The aforesaid Special Committee is hereby authorized to
promulgate rules and regulations and prescribe the
appropriate forms and the required fees for the effective
implementation of this Decree.
This Decree shall take effect immediately.
Done in the City of Manila, this 5th day of June, in the year
of Our Lord, nineteen hundred and seventy-five.
30 See footnote no. 6, supra.
31 Cf. Labo, Jr. vs. Comelec, 211 SCRA 297 (July 3,
1992).
32 The term of office of all local elective officials elected
after the effectivity of this Code shall be three (3) years,
starting from noon of June 30, 1992 or such date as may
be provided for by law, . . ." Sec. 43, Local Government
Code.
33 96 Phil. 447, 453 (1955).
34 The following are excerpts from the transcript of
stenographic notes of the oral argument held on March 19,
1996:
JUSTICE PANGANIBAN: Mr. Counsel, it is your
position then that the candidate should be a
citizen at the time of proclamation?
ATTY. BRILLANTES: Yes, Your Honor, it is
required that he must be a citizen at the time of
proclamation and not only that, at the time that he
assumes the office he must have the continuing
qualification as a citizen.
JUSTICE PANGANIBAN: Should that not be
reckoned from the time of filing of certificate of
candidacy or at least the day of the election?
ATTY. BRILLANTES: Yes, Your Honor, there are
positions taken that it should be reckoned from
the date of certificate of candidacy as in the case
of qualification for Batasang Pambansa before
under B.P. 53 - it says that for purposes of
residence it must be reckoned . . . from the time
of the filing of the certificate, for purposes of age,
from the time of the date of the election. But
when we go over all the provisions of law under
current laws, Your Honor, there is no qualification
requirement insofar as citizenship is concern(ed)
as to when, as to when you should be a citizen of
the Philippines and we say that if there is no
provision under any existing law which requires
that you have to be a citizen of the Philippines on
the date of the filing or on the date of election
then it has to be equitably interpreted to mean
that if you are already qualified at the time that
the office is supposed to be assumed then you
should be allowed to assume the office.
JUSTICE PANGANIBAN: Is it not also true that
under the Local Autonomy Code the candidate
should also be a registered voter and to be a
registered voter one must be a citizen?
ATTY. BRILLANTES: Yes, Your Honor, in fact,
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.
JUSTICE PANGANIBAN: But the fact that he
voted does not make him a citizen. The fact is, he
was declared not a citizen by this Court twice.
ATTY. BRILLANTES: That is true, Your Honor,
we admit that he has been twice declared not
citizen and we admit the ruling of the Supreme
Court is correct but the fact is, Your Honor, the
matter of his eligibility to vote as being a
registered voter was likewise questioned before
the judiciary. There was a ruling by the Municipal
Court, there was a ruling by the Regional Trial
Court and he was sustained as a valid voter, so
he voted.
JUSTICE PANGANIBAN: I raised this question in
connection with your contention that citizenship
 should be determined as of the time of
proclamation and not as of the time of the
election or at the time of the filing of the
certificate of candidacy.
ATTY. BRILLANTES: That is true, Your Honor.
JUSTICE PANGANIBAN: And is it your
contention that under the law, particularly the
Local Autonomy Code, the law does not specify
when citizenship should be possessed by the
candidate, is that not correct?
ATTY. BRILLANTES: That is right, Your Honor,
there is no express provision.
JUSTICE PANGANIBAN: I am also asking you
that under the Local Autonomy Code the
candidate for governor or for other local positions
should be a voter and to be a voter one must be
a citizen?
ATTY. BRILLANTES: That is right, Your Honor,
but the fact of voting is not an issue here
because he was allowed to vote and he did in
fact vote and in fact, he was a registered voter.
(TSN, March 19, 1996.)
35 Section 117, Batas Pambansa Blg. 881, otherwise
known as "The Omnibus Election Code of the Philippines",
as amended, provides for the various qualifications of
voters, one of which is Filipino citizenship.
36 Comment, p. 11; rollo, p. 259.
37 See footnote no. 33.
38 Section 253 reads as follows:
Sec. 253. Petition for quo warranto. -- Any voter contesting
the election of any member of the Congress, regional,
provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the Commission
within ten days after the proclamation of the results of the
election. (Art. XIV, Sec. 60, BP 697; Art. XVIII, Sec. 189,
par. 2, 1978 EC).
Any voter contesting the election of any municipal or
barangay officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a
sworn petition for quo warranto with the regional trial court
or metropolitan or municipal trial court, respectively, within
ten days after the proclamation of the results of the
election. (Art. XVIII, Sec. 189, par. 2, 1978 EC).
39 Art. 4, New Civil Code. See also Gallardo vs.
Borromeo, 161 SCRA 500 (May 25, 1988), and Nilo vs.
Court of Appeals, 128 SCRA 519 (April 2, 1984).
40 Tolentino, Commentaries and Jurisprudence on the
Civil Code of the Philippines, Vol. I, 1990 ed., p. 23 states:
Exceptions to Rule. -- Statutes can be given retroactive
effect in the following cases: (1) when the law itself so
expressly provides, (2) in case of remedial statutes, (3) in
case of curative statutes, (4) in case of laws interpreting
others, and (5) in case of laws creating new rights.
41 Id., p. 25.
42 Agpalo, Statutory Construction, 1990 ed., pp. 270-271.
43 73 Am Jur 2d, Sec. 354, p. 489, cited in Castro vs.
Sagales, 94 Phil. 208, 210 (1953).
44 Memorandum, p. 9.
45 73 Am Jur 2d, Sec. 351, p. 488.
46 73 Am Jur 2d, Sec. 354, p. 490; emphasis supplied.
47 Art. 10, Civil Code of the Philippines.
48 Based on the "Corrected Compliance" dated May 16,
1996 filed by the Solicitor General, it appears that,
excluding the case of Frivaldo, the longest interval
between date of filing of an application for repatriation and
its approval was three months and ten days; the swiftest
action was a same-day approval.
49 Sec. 40. Disqualifications. -- The following persons are
disqualified from running for any elective local position:
xxx xxx xxx
(d) Those with dual citizenship;"
50 p. 11; rollo, p. 259.
51 Resolution, p. 12; rollo, p. 121.
52 Cf. Navarro vs. Commission on Elections, 228 SCRA
596 (December 17, 1993); Arao vs. Commission on
Elections, 210 SCRA 290 (June 23, 1992).
53 The dispositive portion of said Resolution reads:
WHEREFORE, this Division resolves to GRANT the
petition and declares that respondent is DISQUALIFIED to
run for the office of Provincial Governor of Sorsogon on
the ground that he is not a citizen of the Philippines.
Accordingly respondent's certificate of candidacy is
cancelled.
54 Petition, p. 19; rollo, p. 21.
55 Resolution promulgated on December 19, 1995, p. 7;
rollo, p. 116.
56 42 SCRA 561, 565 (December 20, 1971), citing Moy
Ya Lim Yao vs. Commissioner of Immigration, L-21289,
October 4, 1971.
57 Art. IX, Sec. 2.
58 SPC No. 95-317 is entitled "Annulment of
Proclamation" and contains the following prayer:
WHEREFORE, it is most respectfully prayed of this
Honorable Commission that after due notice and hearing
an Oder (sic) /Resolution/Decision be issued as follows:
a) Annulling/setting aside the 30 June 1995 proclamation
of respondent as the duly election (sic), Governor of
Sorsogon for being contrary to law;
b) Ordering the proclamation of the petitioner as duly
elected governor of Sorsogon;
xxx xxx xxx
59 229 SCRA 666, 674 (February 4, 1994).
60 211 SCRA 297, 309 (July 3, 1992).
61 G.R. No. 120265, September 18, 1995.
62 Supra, at p. 312.
Posted by kaye lee on 10:58 PM
G.R. No. 87193, 23 June 1989 [Naturalization; Reacquisition]

FACTS:
Juan G. Frivaldo was proclaimed governor of the province of Sorsogon and assumed office in
due time. The League of Municipalities filed with the COMELEC a petition for the annulment of
Frivaldo on the ground that he was not a Filipino citizen, having been naturalized in the United
States.
Frivaldo admitted the allegations but pleaded the special and affirmative defenses that he was
naturalized as American citizen only to protect himself against President Marcos during the
Martial Law era.

ISSUE:
Whether or not Frivaldo is a Filipino citizen.

RULING:
No. Section 117 of the Omnibus Election Code provides that a qualified voter must be, among
other qualifications, a citizen of the Philippines, this being an indispensable requirement for
suffrage under Article V, Section 1, of the Constitution.

He claims that he has reacquired Philippine citizenship by virtue of valid repatriation. He claims
that by actively participating in the local elections, he automatically forfeited American
citizenship under the laws of the United States of America. The Court stated that that the alleged
forfeiture was between him and the US. If he really wanted to drop his American citizenship, he
could do so in accordance with CA No. 63 as amended by CA No. 473 and PD 725. Philippine
citizenship may be reacquired by direct act of Congress, by naturalization, or by repatriation.
Categories: Citizenship, Constitutional Law 1
Newer Post Older Post

G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May
11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of
the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under §40(d) of the Local Government Code,
persons with dual citizenship are disqualified from running for any elective position. The COMELEC's Second Division said:

What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for
the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the
respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a
natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the
Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen
because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San
Francisco, California, September 14, 1955, and is considered in American citizen under US Laws. But notwithstanding
his registration as an American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born a Filipino and a US citizen. In other
words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate
of candidacy. Is he eligible for the office he seeks to be elected?

Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any
elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as
candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained pending even until after the election held on
May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes
cast for vice mayor of Makati City but suspended the proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run
for vice mayor of the City of Makati in the May 11, 1998 elections.5 The pertinent portions of the resolution of the COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US
citizenship by operation of the United States Constitution and laws under the principle of jus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother
were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American
passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He
was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he
did not renounce Philippine citizenship and did not take an oath of allegiance to the United States.

It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in
the elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under
Philippine law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet
final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S.
Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand
nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy
five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be
embroiled in complex legal issues involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).

WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7,
1998, ordering the cancellation of the respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor
of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to
reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of
Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent
disqualified to hold the office of vice mayor of Makati City. Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of majority when he was already
37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in
the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet
final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run
for and hold the elective office of Vice-Mayor of the City of Makati.
We first consider the threshold procedural issue raised by private respondent Manzano — whether petitioner Mercado his personality to bring
this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for
leave to intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner
has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. — Any person allowed to initiate an action or
proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion
to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of
the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or
proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for intervention, the Commission or the
Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a
separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he
is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if
the private respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had
already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came
out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and
still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC,6 reiterated
in several cases,7 only applies to cases in which the election of the respondent is contested, and the question is whether one who placed
second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for Leave to File
Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally
instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the
latter was a rival candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right
to intervene at that stage of the proceedings for the disqualification against private respondent is clear from §6 of R.A. No. 6646, otherwise
known as the Electoral Reform Law of 1987, which provides:

Any candidate who his 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 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.

Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final
judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying
petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition
properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private
respondent's alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is
disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local Government Code of 1991 (R.A. No. 7160), which
declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the
Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through
§40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to
hold local elective office."

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously considered a national by the said states.9 For instance, such a situation may
arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the
doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:

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

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

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

There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the
above cases are clearly possible given the constitutional provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more
states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and
shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained
its necessity as follows: 10

. . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to
the Bernas Committee according to which a dual allegiance — and I reiterate a dual allegiance — is larger and more
threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often
a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at
all.

What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance.
For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of
Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei
ticket. Not widely known is the fact chat the Filipino-Chinese community is represented in the Legislative Yuan of the
Republic of China in Taiwan. And until recently, sponsor might recall, in Mainland China in the People's Republic of
China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including
some European and Latin countries were represented, which was dissolved after several years because of diplomatic
friction. At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who
are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or
Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner
Concepcion who has always been worried about minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already
happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese —
it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine
which also means economic stagnation, worsening unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider incorporating a new section, probably Section
5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus: 11
 . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a
double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought
would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a
uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that
citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some
noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the
People's Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei
every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government
maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated.
And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double
allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the
security of this country, arising from, let us say, potentially great numbers of double citizens professing double
allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or
regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual
citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance." Consequently, persons
with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members
of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on
citizenship of other countries. We recognize a child of a Filipino mother. But whether she is considered a citizen of another country is
something completely beyond our control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens
and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual
has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile
and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual
citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone
whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There
is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine
citizenship.

On the assumption that this person would carry two passports, one belonging to the country of his or her father and
one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local
government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for
public office, he has to repudiate one of his citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father
claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.

SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of
his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution,
a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not
renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing
he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one
citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges
other citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty" 14 of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a
citizen of the Philippines. In Parado v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he renounce, his loyalty to any other
country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the
condition imposed by law is satisfied and compiled with. The determination whether such renunciation is valid or fully
complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our
courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may
or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be
read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to
require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted
by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this
Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the
Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at
least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in
Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that
now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in
any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have
been made when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind
§349 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States,
whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an
election or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared unconstitutional by the U.S.
Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his
American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under
oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-

BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF
MAKATI, PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE
CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I
WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY
THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might
have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17

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?" 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
citizenship — long 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."

On this point, we quote from the assailed Resolution dated December 19, 1995:
 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.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy is
insufficient to constitute renunciation that, to be effective, such renunciation should have been made upon private respondent reaching the
age of majority since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration
and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no
merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be
considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in
Aznar v. COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a
Certificate staring he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an
American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed,
there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said
citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands
to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or
"implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he
does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his
American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and
adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his
election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough
sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19
we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for
the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A
similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently
does some act constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.1âwphi1.nêt

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes and Ynares-Santiago, JJ., concur.

Panganiban and Purisima, JJ., are on leave.

Pardo, J., took no part.

Footnotes

1 Petition, Rollo, p. 5.

2 Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M. Guiani.

3 Id., Annex E, Rollo, pp. 50-63.

4 Rollo, pp. 78-83.

 5 Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco Flores,
Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented.

6 176 SCRA 1 (1989).

7 Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1991); Aquino v. COMELEC, 248
SCRA 400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996).

8 R.A. No. 7854, the Charter of the City of Makati, provides: "SEC. 20 — The following are disqualified from running for
any elective position in the city: . . . (d) Those with dual citizenship."

9 JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).

10 Id., at 361 (Session of July 8, 1986).

11 Id., at 233-234 (Session of June 25, 1986).

12 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 1986).

13 Transcript, pp. 5-6, Session of Nov. 27, 1990.

14 C.A. No. 473, §12.

15 86 Phil. 310, 343 (1950).

16 387 U.S. 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958).

17 257 SCRA 727, 759-760 (1996).

18 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952).

19 169 SCRA 364 (1989).

The Lawphil Project - Arellano Law Foundation

Mercado v. Manzano Case Digest [G.R. No. 135083. May 26, 1999]

FACTS:

Petitioner Ernesto Mercado and Eduardo Manzano were both candidates for Vice-Mayor of
Makati in the May 11, 1998 elections.

Based on the results of the election, Manzano garnered the highest number of votes. However,
his proclamation was suspended due to the pending petition for disqualification filed by Ernesto
Mercado on the ground that he was not a citizen of the Philippines but of the United States.

From the facts presented, it appears that Manzano is both a Filipino and a US citizen.

The Commission on Elections declared Manzano disqualified as candidate for said elective
position.
However, in a subsequent resolution of the COMELEC en banc, the disqualification of the
respondent was reversed. Respondent was held to have renounced his US citizenship when he
attained the age of majority and registered himself as a voter in the elections of 1992, 1995 and
1998.

Manzano was eventually proclaimed as the Vice-Mayor of Makati City on August 31, 1998.

Thus the present petition.

ISSUE:

Whether or not a dual citizen is disqualified to hold public elective office in the philippines.

RULING:

The court ruled that the phrase "dual citizenship" in R.A. 7160 Sec. 40 (d) and R.A. 7854 Sec. 20
must be understood as referring to dual allegiance. Dual citizenship is different from dual
allegiance. The former arises when, as a result of the application of the different laws of two or
more states, a person is simultaneously considered a national by the said states. Dual allegiance
on the other hand, refers to a situation in which a person simultaneously owes, by some positive
act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is a result
of an individual's volition. Article IV Sec. 5 of the Constitution provides "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law."

Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it should suffice if, upon the
filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status
as persons with dual citizenship considering that their condition is the unavoidable consequence
of conflicting laws of different states.

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the
other country of which they are also citizens and thereby terminate their status as dual
citizens. It may be that, from the point of view of the foreign state and of its laws, such an
individual has not effectively renounced his foreign citizenship. That is of no moment.

When a person applying for citizenship by naturalization takes an oath that he renounces his
loyalty to any other country or government and solemnly declares that he owes his allegiance to
the Republic of the Philippines, the condition imposed by law is satisfied and complied
with. The determination whether such renunciation is valid or fully complies with the provisions
of our Naturalization Law lies within the province and is an exclusive prerogative of our
courts. The latter should apply the law duly enacted by the legislative department of the
Republic. No foreign law may or should interfere with its operation and application.

The court ruled that the filing of certificate of candidacy of respondent sufficed to renounce his
American citizenship, effectively removing any disqualification he might have as a dual citizen.
By declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent
resident or immigrant of another country; that he will defend and support the Constitution of the
Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual
citizen.

On the other hand, private respondent’s oath of allegiance to the Philippines, when considered
with the fact that he has spent his youth and adulthood, received his education, practiced his
profession as an artist, and taken part in past elections in this country, leaves no doubt of his
election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, the
court sustained the denial of entry into the country of petitioner on the ground that, after taking
his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and
declared in commercial documents executed abroad that he was a Portuguese national. A similar
sanction can be taken against any one who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act constituting renunciation of his Philippine
citizenship.

The petition for certiorari is DISMISSED for lack of merit.

G.R. No. 168550 August 10, 2006

URBANO M. MORENO, Petitioner,

vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO,
Respondents.

DECISION

TINGA, J.:

In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the
Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of
the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from
running for the elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the
July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.
The following are the undisputed facts:

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong
Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary
Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to
Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan,
Samar on August 27, 1998.

Moreno filed an answer averring that the petition states no cause of action because he was
already granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition
of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended.
Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final
discharge of the probation shall operate to restore to him all civil rights lost or suspended as a
result of his conviction and to fully discharge his liability for any fine imposed. The order of the
trial court dated December 18, 2000 allegedly terminated his probation and restored to him all
the civil rights he lost as a result of his conviction, including the right to vote and be voted for in
the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for
preliminary hearing. After due proceedings, the Investigating Officer recommended that Moreno
be disqualified from running for Punong Barangay.

The Comelec First Division adopted this recommendation. On motion for reconsideration filed
with the Comelec en banc, the Resolution of the First Division was affirmed. According to the
Comelec en banc, Sec. 40(a) of the Local Government Code provides that those sentenced by
final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence, are disqualified from
running for any elective local position. 5 Since Moreno was released from probation on
December 20, 2000, disqualification shall commence on this date and end two (2) years thence.
The grant of probation to Moreno merely suspended the execution of his sentence but did not
affect his disqualification from running for an elective local office.

Further, the Comelec en banc held that the provisions of the Local Government Code take
precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because
it is a much later enactment and a special law setting forth the qualifications and disqualifications
of elective local officials.

In this petition, Moreno argues that the disqualification under the Local Government Code
applies only to those who have served their sentence and not to probationers because the latter do
not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to
the Local Government Code because it is a special law which applies only to probationers.
Further, even assuming that he is disqualified, his subsequent election as Punong Barangay
allegedly constitutes an implied pardon of his previous misconduct.
In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor
General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar
controversy by ruling that conviction for an offense involving moral turpitude stands even if the
candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government
Code subsists and remains totally unaffected notwithstanding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and
pointing out material differences between his case and Dela Torre v. Comelec which allegedly
warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a
conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered
by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that
case, applied for probation nearly four (4) years after his conviction and only after appealing his
conviction, such that he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period
specified therefor. He never served a day of his sentence as a result. Hence, the disqualification
under Sec. 40(a) of the Local Government Code does not apply to him.

The resolution of the present controversy depends on the application of the phrase "within two
(2) years after serving sentence" found in Sec. 40(a) of the Local Government Code, which
reads:

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

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

....

We should mention at this juncture that there is no need to rule on whether Arbitrary Detention,
the crime of which Moreno was convicted by final judgment, involves moral turpitude falling
under the first part of the above-quoted provision. The question of whether Arbitrary Detention
is a crime involving moral turpitude was never raised in the petition for disqualification because
the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his
alleged disqualification from running for a local elective office within two (2) years from his
discharge from probation after having been convicted by final judgment for an offense
punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides,
a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of
this case, the crucial issue being whether Moreno’s sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that
the grant of probation does not affect the disqualification under Sec. 40(a) of the Local
Government Code was based primarily on the finding that the crime of fencing of which
petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this
case. At any rate, the phrase "within two (2) years after serving sentence" should have been
interpreted and understood to apply both to those who have been sentenced by final judgment for
an offense involving moral turpitude and to those who have been sentenced by final judgment
for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,)
in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government
Code.

The Court’s declaration on the effect of probation on Sec. 40(a) of the Local Government Code,
we should add, ought to be considered an obiter in view of the fact that Dela Torre was not even
entitled to probation because he appealed his conviction to the Regional Trial Court which,
however, affirmed his conviction. It has been held that the perfection of an appeal is a
relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which
is to prevent speculation or opportunism on the part of an accused who, although already
eligible, did not at once apply for probation, but did so only after failing in his appeal. 9

Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase
"service of sentence," understood in its general and common sense, means the confinement of a
convicted

person in a penal facility for the period adjudged by the court. 10 This seemingly clear and
unambiguous provision, however, has spawned a controversy worthy of this Court’s attention
because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of
the law to include even those who did not serve a day of their sentence because they were
granted probation.

Moreno argues, quite persuasively, that he should not have been disqualified because he did not
serve the adjudged sentence having been granted probation and finally discharged by the trial
court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a
sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the
grant of probation to petitioner suspended the imposition of the principal penalty of
imprisonment, as well as the accessory penalties of suspension from public office and from the
right to follow a profession or calling, and that of perpetual special disqualification from the right
of suffrage. We thus deleted from the order granting probation the paragraph which required that
petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public
office, from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its
maximum period to prision correccional in its minimum period 11 imposed upon Moreno were
similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is not even disqualified from
running for a public office because the accessory penalty of suspension from public office is put
on hold for the duration of the probation.

Clearly, the period within which a person is under probation cannot be equated with service of
the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of
probation suspends the execution of the sentence. During the period of probation, 12 the
probationer does not serve the penalty imposed upon him by the court but is merely required to
comply with all the conditions prescribed in the probation order. 13

It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case.
They focused on the fact that Moreno’s judgment of conviction attained finality upon his
application for probation instead of the question of whether his sentence had been served.

The Comelec could have correctly resolved this case by simply applying the law to the letter.
Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been
sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more,
within two (2) years after serving sentence.

This is as good a time as any to clarify that those who have not served their sentence by reason of
the grant of probation which, we reiterate, should not be equated with service of sentence, should
not likewise be disqualified from running for a local elective office because the two (2)-year
period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to
run.

The fact that the trial court already issued an order finally discharging Moreno fortifies his
position. Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer
shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to
fully discharge his liability for any fine imposed as to the offense for which probation was
granted." Thus, when Moreno was finally discharged upon the court’s finding that he has
fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil
rights lost or suspended as a result of his conviction were restored to him, including the right to
run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which
gives room for judicial interpretation, 14 our conclusion will remain the same.

It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the
intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to
disqualify those who have been granted probation. The Court’s function, in the face of this
seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government
Code. Interpretare et concordare legis legibus est optimus interpretandi.

Probation is not a right of an accused but a mere privilege, an act of grace and clemency or
immunity conferred by the state, which is granted to a deserving defendant who thereby escapes
the extreme rigors of the penalty imposed by law for the offense of which he was convicted. 15
Thus, the Probation Law lays out rather stringent standards regarding who are qualified for
probation. For instance, it provides that the benefits of probation shall not be extended to those
sentenced to serve a maximum term of imprisonment of more than six (6) years; convicted of
any offense against the security of the State; those who have previously been convicted by final
judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day
and/or a fine of not less than P200.00; those who have been once on probation; and those who
are already serving sentence at the time the substantive provisions of the Probation Law became
applicable. 16

It is important to note that the disqualification under Sec. 40(a) of the Local Government Code
covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not specifically disqualify
probationers from running for a local elective office. This omission is significant because it
offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not
covered by the disqualification.

Further, it should be mentioned that the present Local Government Code was enacted in 1991,
some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the
enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to
have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the
disqualification from holding public office. That it chose not to include probationers within the
purview of the provision is a clear expression of the legislative will not to disqualify
probationers.

On this score, we agree with Moreno that the Probation Law should be construed as an exception
to the Local Government Code. While the Local Government Code is a later law which sets forth
the qualifications and disqualifications of local elective officials, the Probation Law is a special
legislation which applies only to probationers. It is a canon of statutory construction that a later
statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not
affect the special provisions of such earlier statute. 17

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the
disqualification to include Moreno, the Comelec committed an egregious error which we here
correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay
Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang
Kabataan Elections.

Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction
of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people
of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind
the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec
18
where he said that "it would be far better to err in favor of popular sovereignty than to be right
in complex but little understood legalisms."
WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en
banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as
well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE.
The Commission on Elections is directed to proceed in accordance with this Decision. No
pronouncement as to costs.

SO ORDERED.

DANTE O. TINGA
Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN
Chief Justice

REYNATO S. PUNO LEONARDO A. QUISUMBING

Associate Justice Associate Justice

CONSUELO YNARES-SANTIAGO ANGELINA SANDOVAL-

Associate Justice GUTIERREZ
Associate Justice

ANTONIO T. CARPIO MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice Associate Justice

RENATO C. CORONA CONCHITA CARPIO MORALES

Associate Justice Associate Justice

ROMEO J. CALLEJO, SR. ADOLFO S. AZCUNA

Associate Justice Associate Justice

MINITA V. CHICO-NAZARIO CANCIO C. GARCIA

Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions
in the above Decision had been reached in consultation before the case was assigned to the writer
of the opinion of the Court.

ARTEMIO V. PANGANIBAN
Chief Justice
Footnotes

MORENO vs. COMELEC Case Digest

URBANO M. MORENO vs. COMELEC, ET AL.

G.R. No. 168550. August 10, 2006

FACTS: Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for
Punong Barangay on the ground that the latter was convicted by final judgment of the
crime of Arbitrary Detention. The Comelec en banc granted her petition and disqualified
Moreno. Moreno filed an answer averring that the petition states no cause of action
because he was already granted probation. Allegedly, following the case of Baclayon v.
Mutia, the imposition of the sentence of imprisonment, as well as the accessory
penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the
Probation Law of 1976 (Probation Law), the final discharge of the probation shall
operate to restore to him all civil rights lost or suspended as a result of his conviction
and to fully discharge his liability for any fine imposed.

However, the Comelec en banc assails Sec. 40(a) of the Local Government Code which
provides that those sentenced by final judgment for an offense involving moral turpitude
or for an offense punishable by one (1) year or more of imprisonment, within two (2)
years after serving sentence, are disqualified from running for any elective local
position. Since Moreno was released from probation on December 20, 2000,
disqualification shall commence on this date and end two (2) years thence. The grant of
probation to Moreno merely suspended the execution of his sentence but did not affect
his disqualification from running for an elective local office.

On his petition, Moreno argues that the disqualification under the Local Government
Code applies only to those who have served their sentence and not to probationers
because the latter do not serve the adjudged sentence. The Probation Law should
allegedly be read as an exception to the Local Government Code because it is a special
law which applies only to probationers. Further, even assuming that he is disqualified,
his subsequent election as Punong Barangay allegedly constitutes an implied pardon of
his previous misconduct.

ISSUE: Does Moreno’s probation grant him the right to run in public office?

HELD: Yes. Sec. 16 of the Probation Law provides that "[t]he final discharge of the
probationer shall operate to restore to him all civil rights lost or suspended as a result of
his conviction and to fully discharge his liability for any fine imposed as to the offense for
which probation was granted." Thus, when Moreno was finally discharged upon the
court's finding that he has fulfilled the terms and conditions of his probation, his case
was deemed terminated and all civil rights lost or suspended as a result of his
conviction were restored to him, including the right to run for public office.

It is important to note that the disqualification under Sec. 40(a) of the Local Government
Code covers offenses punishable by one (1) year or more of imprisonment, a penalty
which also covers probationable offenses. In spite of this, the provision does not
specifically disqualify probationers from running for a local elective office.

Probation Law should be construed as an exception to the Local Government Code.

While the Local Government Code is a later law which sets forth the qualifications and
disqualifications of local elective officials, the Probation Law is a special legislation
which applies only to probationers. It is a canon of statutory construction that a later
statute, general in its terms and not expressly repealing a prior special statute, will
ordinarily not affect the special provisions of such earlier statute.

G.R. No. 154512 November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,

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

-----------------------------

G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.

-----------------------------

G.R. Nos. 155083-84 November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR.,

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

DECISION
CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari1 seeking the reversal of the resolutions issued
by the Commission on Elections ("COMELEC" for brevity) in relation to the recall election for
mayor of Puerto Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto
Princesa convened themselves into a Preparatory Recall Assembly ("PRA" for brevity) at the
Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to
initiate the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office
as Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David
M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which
declared its loss of confidence in Socrates and called for his recall. The PRA requested the
COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall
Resolution.

On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010
(RC), to nullify and deny due course to the Recall Resolution.

On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of
merit Socrates' petition. The COMELEC gave due course to the Recall Resolution and scheduled
the recall election on September 7, 2002.

On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the
calendar of activities and periods of certain prohibited acts in connection with the recall election.
The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a
period of 10 days.

On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of
candidacy for mayor in the recall election.

On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for
brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify
Hagedorn from running in the recall election and to cancel his certificate of candidacy. On
August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-
intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain
Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn
alleging substantially the same facts and involving the same issues. The petitions were all
anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive
term, having been elected and having served as mayor of the city for three (3) consecutive full
terms immediately prior to the instant recall election for the same post." Subsequently, SPA Nos.
02-492 and 02-539 were consolidated.

In a resolution promulgated on September 20, 2002, the COMELEC's First Division4 dismissed
for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to
run in the recall election. The COMELEC also reset the recall election from September 7, 2002
to September 24, 2002.

On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion
for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring
Hagedorn qualified to run in the recall election.

Hence, the instant consolidated petitions.

G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in
E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall
election on September 7, 2002.

Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall
Resolution. Socrates cites the following circumstances as legal infirmities attending the
convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA
were notified of the meeting to adopt the resolution; (2) the proof of service of notice was
palpably and legally deficient; (3) the members of the PRA were themselves seeking a new
electoral mandate from their respective constituents; (4) the adoption of the resolution was
exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a
manner that violated his and the public's constitutional right to information.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August
21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a
ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall
election on September 7, 2002 and that a new date be fixed giving the candidates at least an
additional 15 days to campaign.

In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from
implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September
7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days
from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving
the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus,
the COMELEC reset the recall election to September 24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20,
2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to
run for mayor in the recall election. They likewise prayed for the issuance of a temporary
restraining order to enjoin the proclamation of the winning candidate in the recall election.

Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's
qualification to run for mayor in the recall election despite the constitutional and statutory
prohibitions against a fourth consecutive term for elective local officials.

In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from
proclaiming any winning candidate in the recall election until further orders from the Court.
Petitioners were required to post a P20,000 bond.

On September 27, 2002, Socrates filed a motion for leave to file an attached petition for
intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.

In the meantime, Hagedorn garnered the highest number of votes in the recall election with
20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes,
respectively.

Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the
winning candidate and to allow him to assume office to give effect to the will of the electorate.

On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for
intervention.

The Issues

The issues for resolution of the Court are:

1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in
giving due course to the Recall Resolution and scheduling the recall election for mayor of
Puerto Princesa.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall
election of Puerto Princesa on September 24, 2002.

In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in
fixing a campaign period of only 10 days has become moot. Our Resolution of September 3,
2002 and COMELEC Resolution No. 5708 granted an additional 15 days for the campaign
period as prayed for by petitioner.

First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding
the Recall Resolution despite the absence of notice to 130 PRA members and the defective
service of notice to other PRA members. The COMELEC, however, found that –

"On various dates, in the month of June 2002, the proponents for the Recall of incumbent City
Mayor Victorino Dennis M. Socrates sent notices of the convening of the PRA to the members
thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in
Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices
were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition.

Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos
establishing the same were attached to the Petition and marked as Annex "H". The proponents
likewise utilized the broadcast mass media in the dissemination of the convening of the PRA.

Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25
names of provincial elective officials, print and broadcast media practitioners, PNP officials,
COMELEC city, regional and national officials, and DILG officials].

xxx

The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a 'thorough and careful verification of the signatures appearing in PRA
Resolution 01-02, x x x the majority of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or
objected as to the veracity and authenticity of their signatures.'

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated
10 July 2002, stated, 'upon proper review, all documents submitted are found in order.'

The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following
recommendations:

'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and
substance. That the PRA was validly constituted and that the majority of all members thereof
approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates.'

x x x ."

This Court is bound by the findings of fact of the COMELEC on matters within the competence
and expertise of the COMELEC, unless the findings are patently erroneous. In Malonzo v.
COMELEC,5 which also dealt with alleged defective service of notice to PRA members, we
ruled that –

"Needless to state, the issue of propriety of the notices sent to the PRA members is factual in
nature, and the determination of the same is therefore a function of the COMELEC. In the
absence of patent error, or serious inconsistencies in the findings, the Court should not disturb
the same. The factual findings of the COMELEC, based on its own assessments and duly
supported by gathered evidence, are conclusive upon the court, more so, in the absence of a
substantiated attack on the validity of the same."

In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact
are patently erroneous.

Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on
July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the
barangay elections scheduled on July 15, 2002. This argument deserves scant consideration
considering that when the PRA members adopted the Recall Resolution their terms of office had
not yet expired. They were all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70 of the Local Government
Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated
his constitutional right to information on matters of public concern. Socrates, however, admits
receiving notice of the PRA meeting and of even sending his representative and counsel who
were present during the entire PRA proceedings. Proponents of the recall election submitted to
the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA
assembly, attendance sheets, notices sent to PRA members, and authenticated master list of
barangay officials in Puerto Princesa. Socrates had the right to examine and copy all these public
records in the official custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates' claim that respondents
violated his constitutional right to information on matters of public concern.

Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the
validity of the Recall Resolution and in scheduling the recall election on September 24, 2002.

Second Issue: Hagedorn's qualification to run for mayor

in the recall election of September 24, 2002.

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

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

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the
Local Government Code, which provides:

"Section 43. Term of Office. – (a) x x x

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

These constitutional and statutory provisions have two parts. The first part provides that an
elective local official cannot serve for more than three consecutive terms. The clear intent is that
only consecutive terms count in determining the three-term limit rule. The second part states that
voluntary renunciation of office for any length of time does not interrupt the continuity of
service. The clear intent is that involuntary severance from office for any length of time
interrupts continuity of service and prevents the service before and after the interruption from
being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate reelection for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall election, is
no longer covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after three consecutive terms. Second, the
intervening period constitutes an involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the
question asked was whether there would be no further election after three terms, or whether there
would be "no immediate reelection" after three terms. This is clear from the following
deliberations of the Constitutional Commission:

"THE PRESIDENT: The Acting Floor Leader is recognized.

MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election after a total
of three terms and Alternative No. 2 where there is no immediate reelection after three
successive terms."7

The Journal of the Constitutional Commission reports the following manifestation on the term of
elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: 1)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no
immediate reelection after three successive terms)."8

The framers of the Constitution used the same "no immediate reelection" question in voting for
the term limits of Senators9 and Representatives of the House.10

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following
three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for
a fourth term as long as the reelection is not immediately after the end of the third consecutive
term. A recall election mid-way in the term following the third consecutive term is a subsequent
election but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate reelection to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term. The debates in the Constitutional Commission evidently show that
the prohibited election referred to by the framers of the Constitution is the immediate reelection
after the third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three-year full
term following the three-term limit, then Senators should also be prohibited from running in any
election within the six-year full term following their two-term limit. The constitutional provision
on the term limit of Senators is worded exactly like the term limit of elective local officials, thus:

"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected."11

In the debates on the term limit of Senators, the following exchange in the Constitutional
Convention is instructive:

"GASCON:12 I would like to ask a question with regard to the issue after the second term.
We will allow the Senator to rest for a period of time before he can run again?

DAVIDE:13 That is correct.

GASCON: And the question that we left behind before - if the Gentleman will remember
- was: How long will that period of rest be? Will it be one election which is three years or
one term which is six years?

DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view
that during the election following the expiration of the first 12 years, whether such
election will be on the third or on the sixth year thereafter, this particular member of the
 Senate can run. So, it is not really a period of hibernation for six years. That was the
Committee's stand.

GASCON: So, effectively, the period of rest would be three years at the least."14
(Emphasis supplied)

The framers of the Constitution thus clarified that a Senator can run after only three years15
following his completion of two terms. The framers expressly acknowledged that the prohibited
election refers only to the immediate reelection, and not to any subsequent election, during the
six-year period following the two term limit. The framers of the Constitution did not intend "the
period of rest" of an elective official who has reached his term limit to be the full extent of the
succeeding term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate reelection after his third consecutive term which ended on June 30, 2001. The
immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular
elections in 2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and
served in full his three consecutive terms as mayor of Puerto Princesa. Under the Constitution
and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections.
The Constitution and the Local Government Code disqualified Hagedorn, who had reached the
maximum three-term limit, from running for a fourth consecutive term as mayor. Thus,
Hagedorn did not run for mayor in the 2001 elections.16 Socrates ran and won as mayor of Puerto
Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became
a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over
his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto
Princesa was Socrates. During the same period, Hagedorn was simply a private citizen. This
period is clearly an interruption in the continuity of Hagedorn's service as mayor, not because of
his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive
terms ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30,
2004 is not a seamless continuation of his previous three consecutive terms as mayor. One
cannot stitch together Hagedorn's previous three-terms with his new recall term to make the
recall term a fourth consecutive term because factually it is not. An involuntary interruption
occurred from June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorn's service as mayor.

In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of

service in this manner:

"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected." The clear intent of the framers
of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the people's choice and grant their elected
official full service of a term is evident in this provision. Voluntary renunciation of a term does
not cancel the renounced term in the computation of the three-term limit; conversely, involuntary
severance from office for any length of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x." (Emphasis supplied)

In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term
of three years, constituted an interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a full term of three years. The clear
intent is that interruption "for any length of time," as long as the cause is involuntary, is
sufficient to break an elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule
that an interruption consisting of a portion of a term of office breaks the continuity of service of
an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full
terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to
Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the
unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for
mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for
Talaga's disqualification on the ground that Talaga had already served three consecutive terms as
mayor.

Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous
two terms so that he was deemed to have already served three consecutive terms as mayor. The
Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from
June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his
service as mayor. Talaga's recall term as mayor was not consecutive to his previous two terms
because of this interruption, there having been a break of almost two years during which time
Tagarao was the mayor.

We held in Adormeo that the period an elective local official is out of office interrupts the
continuity of his service and prevents his recall term from being stitched together as a seamless
continuation of his previous two consecutive terms. In the instant case, we likewise hold that the
nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents
his recall term from being stitched together as a seamless continuation of his previous three
consecutive terms. The only difference between Adormeo and the instant case is the time of the
interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the
instant case, the interruption happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed office after winning
the recall election. Talaga's recall term did not retroact to include the tenure in office of his
predecessor. If Talaga's recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already have served three consecutive
terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full
term of his predecessor but only the unexpired term. The period of time prior to the recall term,
when another elective official holds office, constitutes an interruption in continuity of service.
Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or
credited with the full term of three years for purposes of counting the consecutiveness of an
elective official's terms in office.

In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of
Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if
the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a
fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years,
retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24,
2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office
which historically and factually are not.

Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that
unduly curtails the freedom of the people to choose their leaders through popular elections. The
concept of term limits is in derogation of the sovereign will of the people to elect the leaders of
their own choosing. Term limits must be construed strictly to give the fullest possible effect to
the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:

"Thus, a consideration of the historical background of Art. X, §8 of the Constitution reveals that
the members of the Constitutional Commission were as much concerned with preserving the
freedom of choice of the people as they were with preventing the monopolization of political
power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian
Monsod that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term. Monsod warned
against 'prescreening candidates [from] whom the people will choose' as a result of the proposed
absolute disqualification, considering that the draft constitution contained provisions
'recognizing people's power.'"19 (Emphasis supplied)

A necessary consequence of the interruption of continuity of service is the start of a new term
following the interruption. An official elected in recall election serves the unexpired term of the
recalled official. This unexpired term is in itself one term for purposes of counting the three-term
limit. This is clear from the following discussion in the Constitutional Commission:

"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly
elected would have to serve the unexpired portion of the term. Would that mean that serving the
unexpired portion of the term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator concerned from running? Is
that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only
for the unexpired portion of that particular term plus one more term for the Senator and two more
terms for the Members of the Lower House."21

Although the discussion referred to special elections for Senators and Representatives of the
House, the same principle applies to a recall election of local officials. Otherwise, an elective
local official who serves a recall term can serve for more than nine consecutive years comprising
of the recall term plus the regular three full terms. A local official who serves a recall term
should know that the recall term is in itself one term although less than three years. This is the
inherent limitation he takes by running and winning in the recall election.

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election
for mayor of Puerto Princesa because:

1. Hagedorn is not running for immediate reelection following his three consecutive
terms as mayor which ended on June 30, 2001;

2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30,
2001 to September 24, 2002 during which time he was a private citizen;

3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to
retroact to June 30, 2001 to make a fourth consecutive term because factually the recall
term is not a fourth consecutive term; and

4. Term limits should be construed strictly to give the fullest possible effect to the right of
the electorate to choose their leaders.

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

SO ORDERED.

Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio-Morales,

and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., see concurring and dissenting opinion.
Puno, J., see concurring opinion.
Vitug, J., in the result.
Mendoza, J., in the result, without to the filing of separate opinion.
Austria-Martinez, J., on leave.
Corona, J., no part - prior consultation.
Azcuna, J., joins the separate opinion of C.J. Davide.
 CONCURRING AND DISSENTING OPINION

DAVIDE, JR., C.J.:

I concur with the opinion and conclusion of Mr. Justice Antonio T. Carpio in G.R. No. 154512
and G.R. No. 154683. The Commission on Elections (COMELEC) committed no grave abuse of
discretion in giving due course to the Recall Resolution. Dismissal then of G.R. No. 154512 is
inevitable. This notwithstanding, I still hold on to my dissenting view in G.R. No. 111511
(Garcia, et al. vs. COMELEC, et al., 227 SCRA 100, 121 [1993]) that the provision on the
preparatory recall assembly in Section 70 of the Local Government Code of 1991 is
unconstitutional.

Our issuance of the Resolution of 3 September 2002 in G.R. No. 154683 enjoining the
COMELEC from implementing its Resolution No. 5673 insofar as it fixed the recall election on
7 September 2002, and the subsequent Resolution of the COMELEC giving the candidates an
additional campaign period of fifteen days from 7 September 2002 rendered moot and academic
the principal issue in G.R. No. 154683. The dismissal of the petition therein is also in order.

However, I regret I cannot concur with the argument and conclusion relative to G.R. Nos.
155083-84. I respectfully submit that private respondent Edward S. Hagedorn is disqualified
from running for the position of Mayor of Puerto Princesa City in the recall election in question.

Section 8 of Article X of the Constitution expressly 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.

Paragraph (b), Section 43 of R.A. No. 7160 (The Local Government Code) restates this
constitutional restriction, thus: 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 was elected.

Section 8 of Article X of the Constitution was not found in the Report of the Committee
on Local Governments of the Constitutional Commission of 1986. It was introduced at
the plenary session by Commissioner Hilario G. Davide, Jr. Commenting thereon in his
book entitled "The Intent of 1986 Constitution Writers" (1995 ed., p. 699), Commissioner
Joaquin Bernas states:
 This provision was not found among the Committee's proposals but came as an
amendment proposed by Commissioner Davide. It was readily accepted without much
discussion and formally approved.

Section 8 sets the duration of a term at three years, and prohibits elective local officials
from serving for more than three consecutive terms.

Pursuant to the second paragraph of Section 1 of Article XVIII (The Transitory

Provision) of the Constitution, and Executive Order No. 270, as amended by R.A. No.
6636, the first local election, that is, the election for the first term under the Constitution
for elective local officials, was on 18 January 1988. By express provision of Section 5 of
R.A. No. 6636, in relation to Section 2 of Article XVIII of the Constitution, that term
expired at noon of 30 June 1992. The second election, i.e., the election for the second
term of elective local officials which expired at noon of 30 June 1995, for elective local
officials, was on the second Monday of May 1992 pursuant to R.A. No. 7166 (An Act
Providing for Synchronized National and Local Elections and for Electoral Reforms).
The third election, i.e., for the third term which expired at noon of 30 June 1998, was on
the second Monday of May 1995, pursuant to Section 2 of R.A. No. 7166. The fourth
election, or for the fourth term which expired at noon of 30 June 2001, was on the second
Monday of May 1998. The fifth election, i.e., for the fifth term which would expire at
noon of 30 June 2004, was on the second Monday of May 2001.Conformably with
Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160, a local
official elected in the first local election of 18 January 1988 may be reelected in the
synchronized elections in May 1992 and in May 1995. He could not seek another
reelection in the May 1998 election because that would have been his fourth term.
Similarly, a local official who was elected in the May 1992 election could be reelected in
the May 1995 and May 1998 elections.

Private respondent Hagedorn was first elected as City Mayor of Puerto Princesa City in the May
1992 election. He was reelected in the May 1995 and May 1998 elections. His third term, by
virtue of his election in the May 1998 election, expired on 30 June 2001. Therefore, he was
constitutionally and statutorily barred from seeking reelection In the May 2001 election, which
would have been his fourth term.

The term of office covered by the May 2001 election is up to 30 June 2004. Section 8 of Article
X of the Constitution and Section 43(b) of R.A. No. 7160 are clear in what is prohibited, which
is the fourth term. Nothing can be clearer from the wordings thereof: "the term of office of
elective local officials ... shall be three years and no such official shall serve for more that three
consecutive terms." In short, an elective local official who has served three consecutive terms,
like Hagedorn, is disqualified from seeking re-election for the succeeding fourth term. The
provision bars the holding of four consecutive terms.

The ponencia is then correct when it holds that the three-term limit bars an immediate reelection
for a fourth term. But I disagree when it rules that in the case of Hagedorn he did not seek an
immediate reelection for a fourth term because he was not a candidate for reelection in the May
2001 election. It forgets that what would have been his fourth term by virtue of the May 2001
election was for the period from 30 June 2001 to 30 June 2004. The flaw in the ruling results
from an apparent confusion between term and election, the root cause of which is the attempt to
distinguish "voluntary renunciation" of office from "involuntary severance" from office and the
term of office to which it relates.

Let me first discuss the matter of whether the Constitutional Commission did approve the rule of
"no Immediate reelection after three consecutive terms." In support of its affirmative conclusion
the ponencia quotes the Manifestation of Commissioner Romulo as entered in the Journal of the
Constitutional Commission, thus:

MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the
consideration of two issues on the term of Representatives and local officials, namely: a)
Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no
immediate reelection after three successive terms).

This is inaccurate. What actually happened was that the issue was originally for elective national
and local officials. However, the Commission decided to consider first the term of the members
of Congress; and to defer the discussion on the term of elective local officials until the
Commission would consider the report of the Committee on Local Governments. On this point I
quote the pertinent portions of Volume Two, pages 238-245 of the Record of the Constitutional
Commission of its proceedings on 25 July 1986:

THE PRESIDENT. Maybe it will be of help we Just remind ourselves that what we have
before us now is the report of the Committee on the Legislative. Therefore, maybe we
should confine ourselves first to what is covered by the report which is the term of office
of the Senators and the Representatives.And with respect to the local officials, let us
await the report of the Committee on Local Governments as to its recommendation on
this matter.

MR. RODRIGO. As a matter of fact, I will go further than that, it is my belief, as regards
local officials, that we should leave this matter to the legislative.

THE PRESIDENT. So what is the pleasure now of the Acting Floor Leader or of the
Chairman of the Committee on the Legislative?

MR. RODRIGO. I wonder if the two proponents, Madam President, will agree that we
first talk about the term of office of the Representatives because we are now discussing
the legislative department.

MR. DAVIDE. Madam President.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. I will agree really that this matter should relate only to the term of office
of the Representatives.

THE PRESIDENT. But are we agreed on these two proposals - the one of Commissioner
Garcia where there is no further election after a total of three terms and the other where
there is no Immediate reelection after three successive terms?

MR. OPLE. Madam President, originally if I remember right, the Commission decided to
consider the synchronization of elections. And from that original commitment, we
proceeded to fix the terms and decided related questions within the context of
synchronization. Are we now abandoning the original task of synchronization which
could only be fully settled in terms of delimitations on the proposed terms of the
President and the Vice-President, the Members of Congress and the local officials, or do
we want to postpone the synchronization task to a later time after we hear from the
Committee on Local Governments and the other concerned committees?

THE PRESIDENT. What does the Acting Floor Leader say to this particular question of
Commissioner Ople?

MR. ROMULO. In a way, Madam President, we have settled the synchronization task,
because we have decided on the officials' absolute terms. All we are really talking about
now is whether or not they are eligible for reelection, and I think those are separable
issues.

MR. OPLE. If they are separable, and we have already settled the synchronization task,
then I think that is something to be thankful about. But considering the immediate
business at hand, is it the wish of the Acting Floor Leader that the election of the local
officials should be eliminated from the consideration of those two choices?

MR. ROMULO. Yes. I think the sense of the body now is to limit this choice to the
Members of the House of Representatives.

MR. OPLE. And do the manifestations of both Commissioners Garcia and Monsod still
stand after the elimination of the election of the local officials?

MR. ROMULO. Yes, I think so.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. Madam President, as worded, It is a personal disqualification.

MR. ROMULO. We are now ready to vote, Madam President.

SUSPENSION OF SESSION

THE PRESIDENT. We are now ready to vote by ballot. Let us distribute the ballots.
Anyway the voting would take only about 10 minutes.

The session is suspended.

It was 3:40 p.m.

At this juncture, pieces of paper were distributed, and the Commissioners wrote down
their votes.

RESUMPTION OF SESSION

At 3:50 p.m., the session was resumed.

THE PRESIDENT. The session is resumed.

MR. GASCON. Madam President, may I have a clarification before we count the ballots.
The voting now is just for Representatives. We are not speaking of the term of office of
the Senators yet. Is that correct?

THE PRESIDENT. The term of office of the Senators was disposed of this morning.

This voting now is only for Representatives.

MR. GASCON. I think the Issue of whether the Senators could run again for election
after their two consecutive terms or 12 years after a lapse of a period of time has not yet
been finalized.

THE PRESIDENT. I beg the Commissioner's pardon.

MR. GASCON. Is this voting just for Congressmen?

THE PRESIDENT. Yes.

The Secretary-General will now please proceed to count the votes.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will

now start the counting.

Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//

 Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-
/////-/////-/////-/

THE PRESIDENT. The results show 17 votes for Alternative No. 1 and 26 votes for
Alternative No. 2; Alternative No. 2 is approved.

What does the Acting Floor Leader say?

MR. ROMULO. Alternative No. 2 has won, Madam President. It seems there are some
doubts as to the term of office of the Senators, so I propose that we similarly vote on that
to end any doubt. It was my understanding this morning that when we voted for the term
of office of the Senators, they would not be perpetually disqualified.

THE PRESIDENT. From the transcripts, it appears here that with respect to Senators, 22
votes went to Scheme No. II; that is, with one reelection. This is already a majority. So,
does the Acting Floor Leader propose that we vote again?

MR. ROMULO. The question is whether or not that will be perpetual, Madam President,
or after resting for six years they can run again. That is the question that is not answered.
I am talking of the Senators.

THE PRESIDENT. This morning, Scheme No. I, without reelection, has 3 votes; Scheme
No. II, with one reelection - 22 votes; Scheme No. III, no limit on reelection - 17 votes.

MR. REGALADO. Madam President.

MR. RODRIGO. Madam President.

THE PRESIDENT. May we first clarify this from the Secretary-General?

MR. ROMULO. The question is whether or not in voting for the term of six years with
one reelection, the Senator is perpetually disqualified, so that is a similar question to what
we had posed with regard to the House of Representatives.

THE PRESIDENT. In other words, after serving with one reelection, whether or not he is
perpetually disqualified after serving 12 years?

MR. ROMULO. Yes, Madam President.

MR. RODRIGO. Madam President.

THE PRESIDENT. Yes, Commissioner Rodrigo is recognized.

 MR. RODRIGO. Or, if after one reelection, he is perpetually disqualified or he can
hibernate - the very word used - for six years and then run again for reelection but not
consecutive, not immediate. In other words, he is entitled to one immediate reelection.

REV. RIGOS. Another point, Madam President.

MR. RODRIGO. And then, after that, if there is a gap, when he is not a Senator, then he
can run for the same office.

REV. RIGOS. Madam President.

THE PRESIDENT. Yes, Commissioner Rigos is recognized.

REV. RIGOS. In relation to that, if he will be allowed to run again as Senator after a
period of hibernation, we have to clarify how long that should be. It could be three years,
because in the proposed scheme, every three years we can elect the Senators.

MR. RODRIGO. Yes, Madam President, it can be three years.

SUSPENSION OF SESSION

THE PRESIDENT. I will suspend the session again so as to allow the parties to compare
with the Acting Floor Leader so that we will know what we are going to vote on.

The session is suspended

It was 3:58 p.m.

RESUMPTION OF SESSION

At 4:05 p.m., the session was resumed.

THE PRESIDENT. The session is resumed.

The Acting Floor Leader is recognized.

MR. ROMULO. Madam President, we are now ready to vote on the question of the
Senators, and the schemes are as follows: The first scheme is, no further election after
two terms; the - second scheme is, no immediate reelection after two successive terms.

Madam President, inasmuch as the principles applicable here are the same as those for
the House of Representatives, I move that we go directly to the voting and forego any
further discussions.

THE PRESIDENT. Please distribute the ballots for this particular item for Senators.
 Are we ready now?

The Secretary-General will please count the ballots.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL. We have 43 ballots here, Madam President. We shall

now begin to count.

THE PRESIDENT. Please proceed.

THE SECRETARY-GENERAL, reading:

Scheme No. I - /////-/////-//

Scheme No. II - /////-/////-/////-/////-/////-/////-//

THE PRESIDENT. The results show 12 votes for Scheme No. I and 32 votes for Scheme
No. II; Scheme No. II approved.

All the results will be considered by the Committee on the Legislative in preparation of
their report.

So can we leave this matter now?

The corresponding proposal on the three-term limit for elective local officials without
immediate reelection was taken up by the Constitutional Commission much later or
specifically on 16 August 1986. On this point, the pertinent portions of Vol. Three, pages
406-408, Record of the Constitutional Commission, read as follows:

MR. RAMA. Madam President, I ask that Commissioner Davide be recognized.

THE PRESIDENT. Commissioner Davide is recognized.

MR. DAVIDE. Thank you, Madam President.

After Section 4, I propose to Insert a new section to be denominated later as

Section 5. It provides as follows: 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 is in accordance with the mandate of the
 Commission when we voted on the terms of officials up to local officials,
excluding the term of barangay officials which was a very specific exception.

MR. NOLLEDO. One clarificatory question, Madam President. What will be the term of
the office of barangay officials as provided for?

MR. DAVIDE. As may be determined by law.

MR. NOLLEDO. As provided for in the Local Government Code.

MR. DAVIDE. Yes.

MR. NOLLEDO. We accept the amendment. The Committee accepts the amendment.

THE PRESIDENT. May we have the reaction of the Committee?

MR. NOLLEDO. The Committee accepts the amendment, as amended, Madam

President.

THE PRESIDENT. Is there any other comment?

MR. OPLE. Madam President.

THE PRESIDENT. Commissioner Ople is recognized.'

MR. OPLE. May we ask the Committee to read the proposed amendment now.

MR. NOLLEDO. May we ask Commissioner Davide to read the new section.

MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS,

EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW,
SHALL BE THREE YEARS AND N 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.

THE PRESIDENT. Then let us vote first on the Davide amendment.

Is there any objection to this new section proposed by Commissioner Davide which has
been read to the body? (Silence) The Chair hears none; the proposed section is approved.
 I wish to add that the Constitutional Commission debates on the issue of "no immediate
reelection" after three consecutive terms for members of Congress clearly indicated that
the "no immediate reelection" after the 3-term limit would equally apply to the elective
local officials. This accounted for the immediate acceptance by the Committee on Local
Governments of the aforementioned Amendment of Commissioner Davide, which is now
Section 8 of Article X of the Constitution. These debates clearly showed the Intent of the
Commission that the ban against an immediate reelection after three consecutive terms
applies to the fourth term, i.e., the term immediately following the three consecutive
terms, to be filled up by the regular election for such fourth term. For one to be able to
run again after three consecutive terms, he has to rest for the entire immediately
succeeding fourth term. On the next fifth term he can run again to start a new series of
three consecutive terms. We quote these pertinent portions of the debates, recorded in
Volume Two, pages 232-233 of the Record of the Constitutional Commission:

MR. ROMULO. Madam President, the following are the various alternatives:Scheme No.
I is without reelection; Scheme No. II is with one reelection; and Scheme No. III is
reelection without limit. This is for 'the Senators.

At this juncture, pieces of paper were distributed and the Commissioners wrote down
their votes.

THE PRESIDENT. The Chair asks the Chairman, Commissioner Davide, to please
consolidate the results of the voting for President and Vice-President.

THE SECRETARY-GENERAL. Madam President, we are ready. THE PRESIDENT.

The Secretary-General will please proceed.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL, reading:

Scheme No. I - ///

Scheme No. II - /////-/////-/////-/////-//

Scheme No. Ill - /////-/////-/////-//

THE PRESIDENT. The results show 3 votes for Scheme No. I; 22 votes for Scheme No.
II; and 17 votes for Scheme No. III; Scheme No. II is approved.

MR. ROMULO. Madam President, the next position is for the House of Representatives,
the Congressmen. I would assume we can use the same choices. Does any one want any
variation?

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO. For the record, I would like to ask Commissioner Romulo some
questions.

MR. ROMULO. Yes.

MR. RODRIGO. Scheme No. II says "the Vice-President - with one reelection."

THE PRESIDENT. No, that is for Senators.'

MR. GUINGONA. Madam President.

THE PRESIDENT. Yes, Commissioner Guenon is recognized.

MR. GUINGONA. May I suggest one more scheme - with two reelections for the
Members of the House of Representatives?

THE PRESIDENT. So, we shall distribute ballots again.

MR. ROMULO. While the ballots are being distributed, may I read the following four
propositions for Congressmen: '

Scheme No. I, without reelection.

Scheme No. II, with one reelection.

Scheme No. III, with two reelections.

Scheme No. IV, no limit on reelection. I

MR. DE LOS REYES. Madam President.

THE PRESIDENT. Commissioner de los Reyes is recognized.

MR. DE LOS REYES. The term of the Members of the House of Representatives will be
three years, according to the first voting; the term of the Senators, if they are entitled to
one reelection, will be 12 years. So, in order for a Member of the House of
Representatives to have also 12 years, he must be entitled to three reelections. I propose
another scheme with three reelections to make it equal.

MR. RODRIGO. Will the Gentleman maintain the number there and add that as No. V. I
filled up my ballot already and if I erase, this might be disqualified as a marked ballot.

THE PRESIDENT. Commissioner Rodrigo may change his ballot.

 MR. DE CASTRO. Madam President.

THE PRESIDENT. Commissioner de Castro Is recognized.

MR. DE CASTRO. The situation stated by Commissioner de los Reyes is apparently

covered by Scheme No. II which we agreed upon earlier. The situation will not happen,
because both the Senators and the Congressmen will have five (5) years on the first
election. So, the possibility that the Senators will have a longer term than the
Congressmen is remote.

MR. MONSOD. Madam President.

THE PRESIDENT. Commissioner Monsod is recognized.

MR. MONSOD. Madam President, it occurred to us that the three alternatives are not
really mutually exclusive. Can we have only these three: without reelection, with
reelection and with unlimited reelection? We are asking here for plurality only, Madam
President. Can we eliminate?

THE PRESIDENT. In other words, we shall have the same schemes as those for
Senators; without reelection, with one reelection and unlimited reelection.

REV. RIGOS. Madam President, besides we have already submitted our ballots.

MR. MONSOD. I withdraw my proposal, Madam President.

MR. GARCIA. Madam President, I would suggest that the two schemes with the highest
votes be voted upon to get the key majority. For example, if the schemes with two
reelections and no limit to election get the highest number of votes, then we vote again to
get the key majority.

THE PRESIDENT. We will do that. Are all the votes in?

COUNTING OF BALLOTS

THE SECRETARY-GENERAL. Madam President, we have 43 ballots.

THE PRESIDENT. The Secretary-General will please proceed. THE SECRETARY-

GENERAL, reading:

Scheme No. I - 0

Scheme No. II - //

Scheme No. III - /////-/////-/////-/////-/

Scheme No. IV - /////-/////-////

Scheme No. V - /////-/

THE PRESIDENT. The results show no vote for Scheme No. I; 2 votes for Scheme No.
II; 21 votes for Scheme No. III; 14 votes for Scheme No. IV; and 6 votes for Scheme No.
V; Scheme No. III is approved.

MR. RODRIGO. Madam President.

THE PRESIDENT. Commissioner Rodrigo is recognized.

MR. RODRIGO.. I would like to ask a question for clarification.

THE PRESIDENT. Please proceed.

MR. RODRIGO. If the Members of the Lower House can have two reelections, does this
mean two immediate reelections, or a term of nine consecutive years? Let us say that a
Member of the Lower House has been reelected twice; that means he will serve for nine
years. Can he let three years elapse and then run again?

THE PRESIDENT. We will ask the Chairman of the Committee on the Legislative to
answer the question.

MR. DAVIDE. That is correct, Madam President, because two reelections mean two
successive reelections. So he cannot serve beyond nine consecutive years.

MR. RODRIGO. Consecutively?

MR. DAVIDE. Consecutively.

MR. RODRIGO. But after nine years he can let one …

MR. DAVIDE. He can rest. He can hibernate for three years.

MR. RODRIGO. And run again.

MR. DAVIDE. He can run again.

MR. RODRIGO. And again have nine years as a maximum.

MR. DAVIDE. I do not know if that is also the thinking of Commissioner Garcia who is
the main proponent of this proposal on two reelections. I would seek the opinion of
Commissioner Garcia for the record. (underscoring supplied for emphasis.)
The dichotomy made in the ponencia between "voluntary renunciation of the office" as used in
Section 8 of Article X of the Constitution and Section 43(b) of R.A. No. 7160 and "involuntary
severance from office" is unnecessary, if not misplaced. From the discussion in the ponencia, the
latter is made to apply to the banned term, i.e., the fourth term immediately following three
consecutive terms. Speaking now of Hagedorn, he cannot have suffered "involuntary severance
from office" because there was nothing to be severed; he was not a holder of an office either in a
de jure or de facto capacity. He knew he was disqualified from seeking a third reelection to
office. Disqualification is, definitely, not synonymous with involuntary severance. Even if we
concede that involuntary severance is an act which interrupts the continuity of a term for
purposes of applying the three-term principle the rule laid down in Lonzanida vs. COMELEC
(311 SCRA 609), cited in the ponencia, page 17, is not applicable in the case of Hagedorn. The
involuntary severance referred to in that case was one that took place during any of the three
terms; hence, the term during which it occurred should be excluded in the computation. In the
case of Hagedorn, no such involuntary severance took place during any of his three terms
brought about by his election in 1992 and reelections in 1995 and 1998.

More importantly, the voluntary renunciation referred to in Section 8, Article X of the

Constitution and Section 43(b) of R.A. No. 7160 is one that takes place at any time during either
the first, second, or third term of the three consecutive terms. This is very clear from the last
clause of Section 8, Article X of the Constitution, which reads: "shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected." The
purpose of the provision is to prevent an elective local official from voluntarily resigning from
office for the purpose of circumventing the rule on the belief that the term during which he
resigned would be excluded in the counting of the three-term rule. In short, the provision
excluded is intended to impose a penalty on one who flouts the rule or make a mockery of it by
the simple act of resigning. Thus, applying it in the case of Hagedorn, even if he voluntarily
resigned on his third term, he would still be barred from seeking reelection in the May 2001
election.

Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (G.R. No. 147927, 4
February 2002) because in that case Talaga did not win in his second reelection bid, or for a third
term, in the May 1998 elections. He won in the recall election of 12 May 2000. Hagedorn, as
earlier stated, fully served three successive terms.

Neither can we allow Hagedorn to take refuge under the exchange between Commissioner
Suarez and Commissioner Davide found on page 592, Vol. II of the Record of the Constitutional
Commission and quoted on pages 19-20 of the ponencia:

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?
 DAVIDE: Yes, because we speak of "term" And if there is a special election, he will
serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House.

On the contrary, it is clear from the views of Commissioners Suarez and Davide that the term of
office of one who is elected in a special election is considered one term for purposes of
determining the three consecutive terms.

A declaration that Hagedorn is qualified to seek reelection in a recall election to remove the
Mayor who was elected for a term for which Hagedorn was constitutionally and statutorily
disqualified to be reelected to or, to hold Is to subvert the rationale of the three-consecutive-term
rule and make a mockery of it. Worse, it abets destructive endless partisan politics and unsound
governance. An elective local official who is disqualified to seek a fourth term because of the
three-term limit but obsessed to hold on to power would spend the first year of the fourth term
campaigning for the recall of the incumbent in the second year of said term. This would' not be a
problem If the disqualified official has a solid following and a strong political machinery.
Interestingly, in this case, as stated on page 3 of the ponencia, the President of the Association of
Barangay Captains of Puerto Princesa City is one Mark David M. Hagedorn and he was
designated by the Preparatory Recall Assembly as interim Chairman.

I therefore vote to grant the petition in G.R. Nos. 155083-84, to set aside the resolution of the
COMELEC holding private respondent Edward Hagedorn a qualified candidate for the position
of Mayor of Puerto Princesa City in the recall election, and to declare him DISQUALIFIED from
seeking reelection for a fourth term or from being a candidate for Mayor in the recall election in
question.

CONCURRING OPINION

PUNO, J.:

The correctness of the decision so ably written by Mr. Justice Carpio speaks for itself.
Nonetheless, the complex constitutional dimensions of the issue for resolution compels this
humble concurring opinion. The issue is whether private respondent Hagedorn is disqualified
from running in the September 24, 2002 recall election for mayor of Puerto Princesa City and
from serving the unexpired portion of the 2001-2004 mayoralty term considering that he has
thrice been consecutively elected and has served three full terms as Puerto Princesa City mayor
from 1992-1998. In illuminating the gray interstices of this election case, prudence dictates that
". . . where the sovereignty of the people is at stake, we must not only be legally right but also
politically correct."1

Private respondent Hagedorn was elected mayor of Puerto Princesa City, Palawan in 1992, 1995
and 1998 and served three full terms. In the May 14, 2001 national and local elections, he ran for
governor for the Province of Palawan and lost. Petitioner-intervenor Victorino Dennis M.
Socrates was elected mayor of Puerto Princesa City.

On July 2, 2002, three hundred twelve (312) out of five hundred twenty-eight (528) members of
the Barangay Officials of Puerto Princesa City convened themselves into a Preparatory Recall
Assembly to initiate the recall of Mayor Socrates. On August 21, 2002, COMELEC promulgated
Resolution No. 5673 prescribing a calendar of activities for the recall election. Two days after,
Hagedorn filed his certificate of candidacy for mayor in said election.

On August 27, 2002, petitioners Adovo and Gilo sought for Hagedorn's immediate
disqualification on the ground that he had served three consecutive full terms as mayor of Puerto
Princesa City immediately prior to the recall election and was thus proscribed by the Constitution
from running in said election. On August 30, 2002, petitioner Ollave, Sr. intervened to disqualify
Hagedorn on the same ground.

The recall election was set on September 24, 2002. On September 20, 2002, public respondent
COMELEC's First Division denied the petitions for Hagedorn's disqualification. The following
day, petitioners Adovo, Gilo and Ollave, Sr. filed a motion for reconsideration imploring the
COMELEC en banc to reverse the September 20 resolution. On September 23, 2002, the
COMELEC en banc affirmed the resolution of the First Division holding Hagedorn qualified to
run in the recall election.

On September 24, 2002, petitioners Adovo, Gilo and Ollave, Sr. sought recourse in this Court
with a Very Urgent Petition for Certiorari and Prohibition with Preliminary Injunction and
Prayer for Temporary Restraining Order. On the same date, Mayor Socrates filed a petition-in-
intervention to nullify the September 23 resolution of the COMELEC.

The petitions before us raise the following issues:

"I.

THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT

RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING FOR THE
POSITION OF MAYOR OF PUERTO PRINCESA CITY IN THE SCHEDULED RECALL
ELECTION, THE CLEAR AND UNAMBIGUOUS CONSTITUTIONAL AND STATUTORY
PROHIBITION AGAINST A FOURTH CONSECUTIVE TERM FOR LOCAL ELECTIVE
OFFICIALS NOTWITHSTANDING.

II.

THE HONORABLE COMELEC GRAVELY ERRED AND ABUSED ITS DISCRETION

WHEN IT PROCEEDED TO DIVIDE A SINGLE TERM OF OFFICE INTO TWO.

III.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AND
VIOLATED THE INTENT AND PURPOSE FOR HOLDING THE SCHEDULED RECALL
ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO PRINCESA CITY AND THE
CONSTITUTIONAL AND STATUTORY BAR AGAINST A FOURTH CONSECUTIVE
TERM.

IV.

THE HONORABLE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED

THAT RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING IN THE
UPCOMING RECALL ELECTIONS AS HIS INELIGIBILITY IS NOT APPARENT UNDER
SECTIONS 65 AND 68 OF THE OMNIBUS ELECTION CODE, SECTIONS 39 AND 40 OF
RA 7160 (LOCAL GOVERNMENT CODE), AND RULES 23 AND 25 OF THE COMELEC
RULES OF PROCEDURE.

V.

THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN

IT RULED THAT RESPONDENT HAGEDORN IS QUALIFIED TO RUN IN THE RECALL
ELECTION EVEN IF HE STANDS DISQUALIFIED FROM SERVING UNDER A FOURTH
CONSECUTIVE TERM AS SUCH IS ALLEGEDLY NOT THE PROVINCE OF THE
INSTANT DISQUALIFICATION PROCEEDINGS.

VI.

THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION WHEN

IT ISSUED A DEFECTIVE AND CLEARLY VOID RESOLUTION."2

The foregoing issues may be reduced to the singular issue of whether or not private respondent
Hagedorn is disqualified from running in the September 24, 2002 recall election and serving as
mayor of Puerto Princesa City considering that he has been thrice consecutively elected and has
served three full terms in that position from 1992 to 2001.

I find the petitions devoid of merit.

Art. X, Sec. 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 constitutional provision is restated in the Local Government Code of 1991, to wit:
"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."

We have not interpreted Art. X, Sec. 8 of the Constitution in the recall election context of the
cases at bar. It is imperative to distill the intent of the framers of the Constitution and the people
who ratified it.3 Mere reliance on the surface meaning of the words of the above provision,
however, will not suffice to capture this elusive intent. Thus, we turn to the proceedings and
debates of the Constitutional Commission (ConCom) as an extrinsic aid to interpretation.4 The
Record of the Constitutional Commission shows that Art. X. Sec. 8 was readily accepted by the
Commissioners without much discussion;5 nonetheless, their debates on setting the term limit for
Representatives show that the rationale for the limit applies to both Representatives and elective
local officials. We quote at length the relevant portions of the debates, to wit:

"MR. GARCIA. I would like to advocate the proposition that no further election for local
and legislative officials be allowed after a total of three terms or nine years. I have four
reasons why I would like to advocate this proposal, which are as follows: (1) to prevent
monopoly of political power; (2) to broaden the choice of the people; (3) so that no one is
indispensable in running the affairs of the country; (4) to create a reserve of statesmen
both in the national and local levels. May I explain briefly these four reasons.

First: To prevent monopoly of political power - Our history has shown that
prolonged stay in public office can lead to the creation of entrenched preserves of
political dynasties. In this regard, I would also like to advocate that immediate
members of the families of public officials be barred from occupying the same
position being vacated.

Second: To broaden the choice of the people - Although individuals have the right
to present themselves for public office, our times demand that we create structures
that will enable more aspirants to offer to serve and to provide the people a
broader choice so that more and more people can be enlisted to the cause of
public service, not just limited only to those who may have the reason or the
advantage due to their position.

Third: No one is indispensable in running the affairs of the country – After the
official's more than a decade or nearly a decade of occupying the same public
office, I think we should try to encourage a more team-oriented consensual
approach to governance favored by a proposal that will limit public servants to
occupy the same office for three terms. And this would also favor not relying on
personalities no matter how heroic, some of whom, in fact, are now in our midst.

Lastly, the fact that we will not reelect people after three terms would also favor
the creation of a reserve of statesmen both in the national and local levels.
Turnovers in public office after nine years will ensure that new ideas and new approaches
will be welcome. Public office will no longer be a preserve of conservatism and tradition.
At the same time, we will create a reserve of statesmen, both in the national and local
levels, since we will not deprive the community of the wealth of experience and advice
that could come from those who have served for nine years in public office.

Finally, the concept of public service, if political dynasty symbolized by prolonged stay
in particular public offices is barred will have fuller meaning. It will not be limited only
to those who directly hold public office, but also to consultative bodies organized by the
people, among whom could be counted those who have served in public office with
accomplishment and distinction, for public service must no longer be limited only to
public office.

xxx xxx xxx

MR. MONSOD. Madam President, I was reflecting on this issue earlier and I asked to
speak because in this draft Constitution, we are recognizing people power. We have said
that now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at
the same time, we are prescreening candidates among whom they will choose. We are
saying that this 48-member Constitutional Commission has decreed that those who have
served for a period of nine years are barred from running for the same position.

The argument is that there may be other positions. But there are some people who
are very skilled and good at legislation, and yet are not of a national stature to be
Senators. They may be perfectly honest, perfectly competent and with integrity.
They get voted into office at the age of 25, which is the age we provide for
Congressmen. And at 34 years old we put them to pasture.

Second, we say that we want to broaden the choices of the people. We are talking
here only of congressional or senatorial seats. We want to broaden the people's
choice but we are making a prejudgment today because we exclude a certain
number of people. We are, in effect, putting an additional qualification for office -
that the officials must not have served a total of more than a number of years in
their lifetime.

Third, we are saying that by putting people to pasture, we are creating a reserve of
statesmen, but the future participation of these statesmen is limited. Their skills
may only be in some areas, but we are saying that they are going to be barred
from running for the same position.

Madam President, the ability and capacity of a statesman depend as well on the day-to-
day honing of his skills and competence, in intellectual combat, in concern and contact
with the people, and here we are saying that he is going to be barred from the same kind
of public service.
I do not think it is in our place today to make such a very important and momentous
decision with respect to many of our countrymen in the future who may have a lot more
years ahead of them in the service of their country.

If we agree that we will make sure that these people do not set up structures that will
perpetuate them, then let us give them this rest period of three years or whatever it is.
Maybe during that time, we would even agree that their fathers or mothers or relatives of
the second degree should not run. But let us not bar them for life after serving the public
for a number of years.

xxx xxx xxx

MR. OPLE. . . . 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 the 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 gap 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
positions 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 unbroken
service of all of these officials. But were we now (to) 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.

I think the veterans of the Senate and of the House of Representatives here will say that
simply getting nominated on a party ticket is a very poor assurance that the people will
return them to the Senate or to the House of Representatives. There are many casualties
along the way of those who want to return to their office, and it is the people's decision
that matters. They judge whether or not a Soc Rodrigo, a Sumulong, a Padilla, an Alonto
and a Rosales, after a first and second term, should go back to the Senate. That is a
prerogative of the people that we should not take away from them -the right to judge
those who have served. In any case, we already take away from the people the freedom to
vote for the third termers because we say that a Senator, say, Mr. Rodrigo, is only good
for twelve years. But if he wants to be like Cincinnatus, if he is called back by his people
to serve again, let us say for a period of six years – which Commissioner Davide called a
period of hibernation which is spent at his fishpond in Bulacan, Bulacan - because there
is a new situation in the country that fairly impels the people to summon him back, like
Cincinnatus in the past, then there will no longer be any Cincinnatus.

That is not perhaps a very important point, but I think we already have succeeded in
striking a balance of policies, so that the structures, about which Commissioner Garcia
expressed a very legitimate concern, could henceforth develop to redistribute
opportunities, both in terms of political and economic power, to the great majority of the
people, because very soon, we will also discuss the multiparty system. We have
unshackled the Philippine politics from the two-party system, which really was the most
critical support for the perpetuation of political dynasties in the Philippines. That is quite
a victory, but at the same time, let us not despise the role of political parties. The strength
of democracy will depend a lot on how strong our democratic parties are, and a
splintering of all these parties so that we fall back on, let us say, nontraditional parties
entirely will mean a great loss to the vitality and resiliency of our democracy...

xxx xxx xxx

BISHOP BACANI. . . . I think when we voted on the provision that the illiterate be
allowed to vote and when we proposed in this Constitutional Commission for initiative as
a way also of empowering our people to engage in the legislative exercise, we are really
presupposing the political maturity of our people. Why is it that that political maturity
seems now to be denied by asking that we should put a constitutional bar to a further
election of any Representative after a term of three years? Why should we not leave that
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 longer?

xxx xxx xxx

MR. GARCIA. I would like to answer Commissioner Bacani. We put a constitutional bar
to reelection of any Representative basically because of the undue advantage of the
incumbent. It is not because of lack of trust in the people. We realize from history that
Mexico fought a revolution simply because of the issue of reelection. No reeleccion,
sufragio universal. Basically, it is because of the undue advantage of the incumbent that
he accumulates power, money, party machine or patronage. As regards what
Commissioner Aquino has said, politics is not won by ideals alone; it is won by solid
organizing work by organizations that have the capacity to do so; and normally the
incumbent has all the advantages. . .

xxx xxx xxx

THE SECRETARY-GENERAL. Madam President, we have here 43 ballots cast. We will
now start the counting.

Alternative No. 1 - no further election after a total of three terms: /////-/////-/////-//

Alternative No. 2 - no immediate reelection after three successive terms: /////-/////-/////-

/////-/////-/"6 (emphasis supplied)

In several cases, this Court was guided by the proceedings of the ConCom in construing
Art. X, Sec. 8 of the Constitution in relation to Section 43(b) of the Local Government
Code of 1991. Different from the issue presented by the cases at bar, however, the
question in those cases was what constitutes a "term" for purposes of counting the three
consecutive terms allowed under Art. X, Sec. 8. It is apropos to revisit these cases to aid
us in extracting the intent behind said Constitutional provision and properly apply it to
the unique case of private respondent Hagedorn.

The maiden case was Borja, Jr. v. Commission on Elections and Jose T. Capco7 which
involved the 1998 mayoralty election in Pateros. In 1989, private respondent Capco
became mayor by operation of law upon the death of the incumbent, Cesar Borja. In
1992, he was elected mayor for a term ending in 1995. In 1995, he was reelected mayor
for another term of three years ending in June 1998. In March 1998, he filed his
certificate of candidacy for the May 1998 mayoralty election of Pateros. Petitioner Borja,
Jr., another candidate for mayor, sought Capco's disqualification on the ground that by
June 30, 1998, Capco would have already served as mayor for three consecutive terms
and would therefore be ineligible to serve for another term. The COMELEC en banc
declared Capco eligible to run for mayor, thus Borja, Jr. sought recourse in this Court. In
dismissing the petition, we considered the historical background of Art. X, Sec. 8 of the
Constitution, viz:

"…a consideration of the historical background of Article 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 (2 RECORD OF THE CONSTITUTIONAL
COMMISSION 236-243 [Session of July 25, 1986] . . .). Monsod warned against
'prescreening candidates [from] whom the people will choose' as a result of the proposed
absolute disqualification, considering that the draft constitution contained provisions
'recognizing people's power.'

xxx xxx xxx

 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 whom they
wish to govern them be preserved. (emphasis supplied)

xxx xxx xxx

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.

xxx xxx xxx

...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 been elected three
times. . .

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 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 for 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."8 (emphasis supplied)

We reiterated the Borja ruling in Lonzanida v. Commission on Elections, et al.9 which involved
the election for mayor of San Antonio, Zambales. Prior to the May 8, 1995 elections, petitioner
Romeo Lonzanida served two consecutive terms as municipal mayor of San Antonio, Zambales.
In the May 1995 elections, he ran for mayor, was proclaimed winner, and assumed office. His
proclamation was, however, contested by his opponent Juan Alvez in an election protest filed
before the Regional Trial Court of Zambales which rendered a decision declaring a failure of
elections. Upon appeal of the decision to the COMELEC, Alvez was declared the duly elected
mayor of San Antonio. In February 1998, the COMELEC issued a writ of execution ordering
Lonzanida to vacate the post, and Alvez served the remainder of the term.

Lonzanida filed his certificate of candidacy for the May 11, 1998 election for mayor of San
Antonio. His opponent Eufemio Muli filed with the COMELEC a petition to disqualify
Lonzanida on the ground that he had already served three consecutive terms in the same office
and was thus prohibited from running in the upcoming election. On May 13, 1998, Lonzanida
was proclaimed winner. COMELEC ruled that Lonzanida was disqualified as his assumption to
office in 1995, although he was unseated before the expiration of the term, was considered one
full term for purposes of counting the three term limit under the Constitution and the Local
Government Code of 1991.

On appeal to this Court, we ruled, viz:

"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 voluntary 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 a 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...

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.

In sum, the petitioner was not the duly elected mayor and 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."10 (emphasis supplied)

Finally, in the recent case of Adormeo v. COMELEC, et al.,11 we ruled that a mayor who
assumed office via a recall election and served the unexpired portion of the mayoralty term is not
considered to have served a full term for purposes of applying the three term limit. In this case,
therein private respondent Ramon Talaga, Jr. was elected mayor in May 1992 and served the full
term. In 1995, he was reelected and again served the full term. In 1998, he lost to Bernard G.
Tagarao. About two years later, a recall election was held where Talaga, Jr. ran against Tagarao.
He (Talaga, Jr.) won and served the remainder of Tagarao's term.

In view of the upcoming May 2001 mayoralty election, Talaga, Jr. filed his certificate of
candidacy. On March 2, 2001, therein petitioner Adormeo sought the cancellation of Talaga, Jr.'s
certificate of candidacy and/or his disqualification on the ground that he had been thrice elected
and had served three consecutive terms as city mayor. Talaga, Jr., however, was declared
qualified for the position of city mayor. Adormeo thus sought recourse before this Court.

Citing the Borja and Lonzanida rulings, we ruled that Talaga, Jr. was not disqualified as the two
conditions for disqualification, namely (1) the elective official concerned was elected for three
consecutive terms in the same post and (2) he has fully served three consecutive terms, were not
met. We did not consider Talaga, Jr.'s service of the unexpired portion of Tagarao's term as
service of a full term for purposes of the three term limit. We also ruled that he did not serve for
three consecutive terms as there was a break in his service when he lost to Tagarao in the 1998
elections. We held, viz:

"COMELEC's ruling that private respondent was not elected for three (3) consecutive terms
should be upheld. For nearly two years, he was a private citizen. The continuity of his mayorship
was disrupted by his defeat in the 1998 elections.

Patently untenable is petitioner's contention that COMELEC in allowing respondent Talaga, Jr.
to run in the May 1998 election violates Article X, Section 8 of the 1987 Constitution. (footnote
omitted) To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas, a
Constitutional Commission member, stating that in interpreting said provision 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.'

As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertinent only to members of
the House of Representatives. Unlike local government officials, there is no recall election
provided for members of Congress. (Rollo, pp. 83-84)"12 (emphasis supplied)

The deliberations of the ConCom and the ruling case law of Borja, Lonzanida and Adormeo
show that there are two principal reasons for the three term limit for elective local officials: (1) to
prevent political dynasties perpetuated by the undue advantage of the incumbent and (2) to
broaden the choice of the people by allowing candidates other than the incumbent to serve the
people. Likewise evident in the deliberations is the effort to balance between two interests,
namely, the prevention of political dynasties and broadening the choice of the people on the one
hand, and respecting the freedom of choice and voice of the people, on the other; thus, the
calibration between perpetual disqualification after three consecutive terms as proposed by
Commissioner Garcia, and setting a limit on immediate reelection and providing for a
hibernation period.

In all three cases - Borja, Lonzanida and Adormeo - we ruled that the "term" referred to in the
three term limit is service of a full term of three years for elective local officials. This ruling
furthers the intent of the ConCom to prevent political dynasties as it is the service of consecutive
full terms that makes service continuous and which opens the gates to political dynasties limiting
the people's choice of leaders. In the words Of Commissioner Ople, ". . . 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 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 unbroken service of all of these officials.
(emphasis supplied)" Thus, ConCom set the limit on consecutive full terms to no more than
three. Otherwise stated, it is a fourth consecutive full term that is prohibited.

In the cases at bar, however, private respondent Hagedorn will not serve a prohibited fourth
consecutive full term as he will be serving only the unexpired portion of the 2001-2004
mayoralty term. Similar to Talaga, Jr. in the Adormeo case, Hagedorn's service as mayor will not
be continuous from the third to a fourth consecutive full term as it was broken when Socrates
was elected in the 2001 regular mayoralty election and served for one year. In the same vein that
Talaga, Jr. was elected into office by recall election and his service of the unexpired portion of
the incumbent's term was not considered a consecutive full term for purposes of applying the
three term limit, Hagedorn's service of the unexpired portion of Socrates' term should not also be
counted as a prohibited fourth consecutive full term. It should not make a difference whether the
recall election came after the second consecutive full term as in the Adormeo case or after the
third consecutive term as in the cases at bar because the intent to create a hiatus in service is
satisfied in both instances.

Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that what is prohibited is the
service of a fourth consecutive full term. Petitioners are correct in foisting the view that "term" is
a fixed and definite period of time prescribed by law or the Constitution during which the public
officer may claim to hold the office as a right. It is a fixed and definite period of time to hold
office, perform its functions, and enjoy its privileges and emoluments until the expiration of the
period.13 In ascertaining what "term" means for elective local officials, the Constitution itself
provides in Art. X, Sec. 8 that it means a fixed, definite, and full period of three years, viz: "Sec.
8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years ..." Although one or more persons may discharge the
duties of the office during this fixed three-year period, the term is not divided into smaller terms
by the number of incumbents who may fill the office. It is one and indivisible, and term follows
term in successive cycles of three years each. If the incumbent or the one elected to the office
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, thereby creating a permanent vacancy,14 the term would remain unbroken until the
recurring election for the office.15

The provisions on voluntary renunciation under Art. X, Sec. 8 and other articles of the
Constitution bolster the interpretation that for purposes of applying the three term limit, service
of a full term of three years is contemplated, viz:

"Art. X, 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 the service for the full term for which he was
elected."

"Art. VI, Sec. 4. . . . No Senator shall serve for more than two consecutive terms. Voluntary
renunciation of the office for any length of time shall be considered as an interruption in the
continuity of his service for the full term for which he was elected.

xxx xxx xxx

Sec. 7. . . . No Member of the House of Representatives 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.

xxx xxx xxx

Art. VII, Sec. 4. . . . No Vice-President shall serve more than two successive terms. Voluntary
renunciation of the office for any length of time shall not be considered as an interruption in the
continuity of the service for the full term for which he was elected." (emphasis supplied)

Similarly, the Local Government Code of 1991 provides in Sec. 43(b), viz:

"Sec. 43(b) . . . No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the elective
official concerned was elected." (emphasis supplied)

Likewise, because "term" is understood to be a fixed, definite, and full period, the Constitution,
in Art. Vi, Sec. 9, uses the qualifier "unexpired term" to refer to only a portion of a term, viz:

"Art. VI, Sec. 9. In case of vacancy in the Senate or in the House of Representatives, a special
election may be called to fill such vacancy in the manner prescribed by law, but the Senator or
Member of the House of Representatives thus elected shall serve only for the unexpired term."
(emphasis supplied)

Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term" to
mean the remainder of the term, viz:

"Sec. 44(d). The successors as defined herein shall serve only the unexpired terms of his
predecessors. . ." (emphasis supplied)

Thus, when Art. X, Sec. 8 of the Constitution states that "...no such (local elective) official shall
serve for more than three consecutive terms," it consistently means that it allows service of a
maximum of three consecutive full terms and prohibits service of a minimum fourth consecutive
full term.

In putting a cap on the number of consecutive full terms an elective local official can serve, the
ConCom sought to curb the undue advantage of the incumbent over other aspirants, which
advantage makes it easier to found a political dynasty. At the time of the September 24, 2002
recall election, however, Hagedorn was not the incumbent favored with this feared "undue
advantage of the incumbent." On the contrary, he ran against the incumbent Mayor Socrates who
alone could be the subject of recall election and who, by law, was automatically a candidate in
the election.16 Hagedorn did not run in the 2001 regular mayoralty election of Puerto Princesa
City which Socrates won, precisely because he was aware of the three term limit.

It is my respectful submission that the Constitution and the Local Government Code of 1991
proscribe a local official who has been thrice consecutively elected in regular elections and has
served three full terms in the same position, from running in the regular election succeeding his
third consecutive term. It is this situation that is prohibited because it makes possible service of
more than three consecutive and continuous full terms, i.e., service of a fourth consecutive full
term. We cannot overstress that it is this continuousness that the ConCom feared would open the
gates to the two evils sought to be avoided: the incumbent's use of his undue advantage to put up
a political dynasty and limiting the people's choice of leaders. It is in this context of regular
elections that our obiter dictum in the Lonzanida case, which petitioners harp on, should be
understood. In that case, we opined that "[a]s 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."17 Indeed, insofar
as regular local elections are concerned, which were the elections involved in that case, there
should be a hiatus of at least one full term of three years.

On the other hand, in the case of a local official who assumes office through a recall election -
whether after his first, second, or third consecutive term- there is a break in his service caused by
the election of the incumbent who was recalled. Even in the case of a local official who initially
assumes office via recall election, then wins the two succeeding regular elections and serves two
full terms in the same post, he is not prohibited from seeking another reelection and serving
another full term. This is so because his service of the remainder of the incumbent's term via
recall election is not, in reality and in law, a full term continuing on to his three succeeding full
terms. Local officials who assume office via recall election serve only the unexpired portion of
the incumbent's term and this service is not counted as a full term, despite the Constitutional
mandate that the term of office of elective local officials is three years. Such is the design
because Art. XVIII, Secs. 2 and 5 of the Constitution also prescribe synchronization of regular
national and local elections beginning on the second Monday of May 1992,18 which is
accomplished if the local official who assumes office through recall election serves only the
incumbent's unexpired term.

It is only in the case of Representatives (and Senators) that "if one is elected Representative to
serve the unexpired term of another, that unexpired term will be considered one term for
purposes of computing the number of successive terms allowed."19 The election herein
contemplated is a special election thus this Constitutional intent does not apply to a recall
election which involves only elective local officials. The Record bear this out, viz:

"MR. SUAREZ. . . May we ask a clarificatory question regarding the interpretation of the
provisions in Sections 3 and 6 in relation to Section 9 regarding the disqualification on
the part of the Senator to run for two consecutive terms, and in the case of the Members
of the House of Representatives, for three consecutive terms. 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?

MR. DAVIDE. Yes, because we speak of "term" and if there is a special election, he will
serve only for the unexpired portion of that particular term plus one more term for the
Senator and two terms for the Members of the Lower House."20
As we ruled in the Adormeo case, service of an unexpired term is considered service of a full
term only with respect to Representatives (and Senators) because unlike local government
officials, Representatives cannot be recalled. It is continuous prolonged stay in office that breeds
political dynasties. Understandably therefore, insofar as Representatives who cannot be recalled
are concerned, service of an unexpired term is strictly counted as service of a full term because
the purpose of the ConCom was to limit the right to run and be elected in Congress.21

In allowing Hagedorn to participate in the September 24 recall election, we are not unmindful of
the intent of the ConCom to broaden the people's choice of leaders. The three term limit was
adopted to allow the electorate to choose from other candidates in the regular election succeeding
the incumbent's third consecutive term. This is clear in the Commissioners' alternatives for
voting on the term limit for Representatives and the outcome of their voting where 17 voted for
"no further election after a total of three terms" and 26 voted for "no immediate reelection after
three successive terms." A reelection is immediate if a local official wins in the election
succeeding the third consecutive term.22 This is not the case with Hagedorn who did not run in
the 2001 regular mayoralty election and left that political arena to other contenders, thereby
upholding the intent of the ConCom to broaden the choice of the electorate.

The intent of the ConCom to create a hiatus in the service of elective local officials after three
consecutive full terms cannot be undermined through abuse of the power of recall. The Local
Government Code of 1991 provides limitations on recall in Section 74, viz:

"Section 74. Limitations on Recall. (a) any elective local official may be the subject of a recall
election only once during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's
assumption to office or one (1) year immediately preceding a regular local election."
(emphasis supplied)

Thus, an elective local official cannot perpetually hold on to his office through the mechanism of
recall as at the very least, there will be a hiatus of one year after an unbroken service of three
terms. He could not simply create, in the words of Commissioner Monsod, "structures that will
perpetuate him (them)" in power with the assurance that they will not be exposed because after
serving three consecutive full terms, he will certainly be replaced. Within the one-year period
under Sec. 74, his successor could discover and begin to dismantle these manipulative structures.
This one year period also provides a reasonable basis for the electorate to judge the performance
of the incumbent successor, thus obviating fear of political maneuvering through initiation of
recall proceedings by a Preparatory Recall Assembly dominated by minions of the previous local
official.23 In Claudio v. COMELEC, et al., 24 we held, viz:

"In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d 252 [1968]) cited by this Court in
Angobung v. COMELEC (269 SCRA 245, 256 [1997]), it was held that 'The only logical reason
which we can ascribe for requiring the electors to wait one year before petitioning for recall
election is to prevent premature action on their part in voting to remove a newly elected official
before having had sufficient time to evaluate the soundness of his policies and decisions.'"25
If, after one year in office, the incumbent proves himself to be worthy of his position, then his
constituents will confirm this should a recall election be called, as in the case of Mayor Reynaldo
Malonzo of Caloocan City. If, on the other hand, the incumbent turns out to be an ineffective
leader, there is no reason why the electorate should not be allowed to make a Cincinnatus of their
past leader.

The imagined fear of abuse of the power of recall does not suffice to disqualify private
respondent Hagedorn and should not prevail over the resounding voice of the people of Puerto
Princesa City. They have spoken and there is no mistaking that Hagedorn is their overwhelming
choice. We cannot subscribe to the petitioners' position and allow an overly literal reading of the
law to mute the electorate's cry and curtail their freedom to choose their leaders. This freedom
was as much a concern of the ConCom as was the prevention of political dynasties and
broadening the choice of the people. This Court has not just once admonished against a too
literal reading of the law as this is apt to constrict rather than fulfill its purpose and defeat the
intention of the authors.26

In sum, private respondent Hagedorn is not disqualified from running in the September 24, 2002
recall election as the disqualification under Art. X, Sec. 8 of the Constitution applies to the
regular mayoralty election succeeding the third consecutive term served. Nor is he precluded
from serving the unexpired portion of the 2001-2004 mayoralty term as this is not service of a
prohibited fourth consecutive full term.

I vote to deny the petition, giving due consideration to the tenet of representative democracy that
the people should be allowed to choose whom they wish to govern them.27 In the end, ". . . more
than judgments of courts of law, the judgment of the tribunal of the people is final for
'sovereignty resides in the people and all government authority emanates from them.'"28

Footnotes

1
Filed under Rule 65 in relation to Rule 64 of the 1997 Rules of Civil Procedure with
prayers for preliminary injunction and temporary restraining orders.

Pursuant to the provisions of Republic Act 7160 or the Local Government Code of 1991,
Chapter 5, Sections 69 to 75.
3
Composed of Benjamin S. Abalos, Sr. as Chairman with Commissioners Luzviminda G.
Tancangco, Rufino S.B. Javier, Ralph C. Lantion, Mehol K. Sadain, Resurreccion Z.
Borra and Florentino A. Tuason, Jr.
4
With Mehol K. Sadain as Presiding Commissioner and Luzviminda G. Tancangco and
Resurreccion Z. Borra as Commissioners.
5
269 SCRA 380 (1997).
6
Ricardo J. Romulo, Commissioner of the 1986 Constitutional Convention.
7
Record of the Constitutional Commission, Vol. 2, p. 236.
8
Journal of the Constitutional Commission, Vol. I, p. 420.
9
"MR. ROMULO: Madam President, we are now ready to vote on the question of the
Senators, and the schemes are as follows: The first scheme is, no further election after
two terms; the second scheme is, no immediate reelection after two successive terms.
Madam President, inasmuch as the principles applicable here are the same as those for
the House of Representatives, I move that we go directly to the voting and forego any
further discussions.

THE PRESIDENT: Please distribute the ballots for this particular item for
Senators. Are we ready now? The Secretary-General will please count the ballots.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL: We have 43 ballots here, Madam President. We

shall now begin to count.

THE PRESIDENT: Please proceed.

THE SECRETARY-GENERAL, reading:

Scheme No. I — /////-/////-//

Scheme No. II — /////-/////-/////-/////-/////-/////-//

THE PRESIDENT: The results show 12 votes for Scheme No. I and 32 votes for
Scheme No. II; Scheme No. II is approved." (Emphasis supplied) Record of the
Constitutional Commission, Vol. 2, pp. 244-245.
10
"MR. GASCON: Is this voting just for Congressmen?

THE PRESIDENT: Yes.

The Secretary-General will now please proceed to count the votes.

COUNTING OF BALLOTS

THE SECRETARY-GENERAL: Madam President, we have here 43 ballots cast.

We will now start the counting.
 Alternative No. 1 — no further election after a total of three terms: /////-/////-/////-//

Alternative No. 2 — no immediate reelection after three successive terms: /////-

/////-/////-/////-/////-/

THE PRESIDENT: The results show 17 votes for Alternative No. I and 26 votes
for Alternative No. 2; Alternative No. 2 is approved." (Emphasis supplied)
Record of the Constitutional Commission, Vol. 2, pp. 243-244.
11
Second paragraph of Section 4, Article VI of the Constitution.
12
Jose Luis Martin C. Gascon, Commissioner of the 1986 Constitutional Commission.
13
Hilario G. Davide, Jr., Commissioner of the 1986 Constitutional Commission, and now
Chief Justice of the Supreme Court.
14
Record of the Constitutional Commission, Vol. II, p. 590.
15
Bernas, The Intent of the 1986 Constitution Writers, p. 341 (1995).
16
Hagedorn instead ran for Governor of Palawan in the 2001 elections but lost.
17
311 SCRA 602 (1999).
18
G.R. No. 147927, February 4, 2002.
19
295 SCRA 157 (1998).
20
Jose E. Suarez, Commissioner of the 1986 Constitutional Commission.
21
Record of the Constitutional Commission, Vol. II, p. 592.

PUNO,
1
Frivaldo v. COMELEC, 257 SCRA 727 (1996).
2
Very Urgent Petition for Certiorari and Prohibition with Preliminary Injunction and
Prayer for Temporary Restraining Order (Petition), pp. 9-10. The Petition-in-Intervention
of Mayor Socrates raises similar issues.
3
1 L. Tañada and F. Carreon, Political Law of the Philippines 95-96 (1961).
4
R. Martin, Philippine Political Law 27 (New ed. 1998).
5
J. Bernas, The Intent of the 1986 Constitution Writers 699 (1995); Record of the
Constitutional Commission ("Record"), vol. III, pp. 406-408, 451.
6
Record, vol. II, pp. 236-237, 239-240, 243.
7
295 SCRA 157 (1998).
8
Id., pp. 163, 165.
9
311 SCRA 602 (1999).
10
Lonzanida v. COMELEC, et al., 311 SCRA 602 (1999), pp. 612-613.
11
G.R. No. 147927, February 4, 2002.
12
Adormeo v. COMELEC, et al., supra, p. 6.
13
Petition, p. 23, citing Martin and Martin, Administrative Law, Law of Public Officers
and Election Law, Revised Edition, p. 173.
14
Local Government Code of 1991, Sec. 44(d).
15
See Schardein v. Harrison, et al., 18 S.W. 2d 316 (1929).
16
Section 71 of the Local Government Code of 1991 provides in relevant part, viz:

"Section 71....The official or officials sought to be recalled shall automatically be

considered as duly registered candidate or candidates to the pertinent positions
and, like other candidates, shall be entitled to be voted upon."
17
Petition, p. 18, citing Lonzanida v. Comelec, supra, p. 609.
18
Osmena, et al. v. Del Mar, et al., 199 SCRA 750 (1991).
19
II J. Bernas, The Constitution of the Republic of the Philippines: A Commentary 96
(first ed. 1988).
20
Record, vol. II, p. 592.
21
Borja, Jr. v. COMELEC, et al., supra, p. 167.
22
Id., p. 163.
23
Section 70 of the Local Government Code provides, viz:
 "Section 70. Initiation of the Recall Process. (a) Recall may be initiated by a
preparatory recall assembly or by the registered voters of the local government
unit to which the local elective official subject to such recall belongs.

(b) There shall be a preparatory recall assembly in every province, city,

district, and municipality which shall be composed of the following:

(1) Provincial level. All mayors, vice-mayors, and sanggunian

members of the municipalities and component cities;

(2) City level. All punong barangay and sanggunian barangay

members in the city;

(3) Legislative district level. In cases where sangguniang

panlalawigan members are elected by district, all elective
municipal officials in the district; and in cases where sangguniang
panglungsod members are elected by district, all elective barangay
officials in the district; and

(4) Municipal level. All punong barangay and sangguniang

barangay members in the municipality.

(c) A majority of all the preparatory recall assembly members may

convene in session in a public place and initiate a recall proceeding against
any elective official in the local government unit concerned. Recall of
provincial, city, or municipal officials shall be validly initiated through a
resolution adopted by a majority of all the members of the preparatory
recall assembly concerned during its session called for the purpose."
24
331 SCRA 388 (2000).
25
Claudio v. COMELEC, et al., supra, p. 406.
26
Paras v. COMELEC, 264 SCRA 491 (1996).
27
U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 131 L. Ed. 2d 881 (1995).
28
Garcia v. COMELEC, et al., 227 SCRA 100 (1993).

The Lawphil Project - Arellano Law Foundation

FACTS:
Hagedorn had been elected and served as mayor of Puerto Princesa City for
three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001.
Obviously aware of the three-term limit principle, Hagedorn opted not to vie
for the same mayoralty position in the 2001 elections, in which Socrates ran
and eventually won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the former’s
unexpired term as mayor. Socrates sought Hagedorn’s disqualification under
the three-term limit rule.

ISSUE:

WON Hagedorn is disqualified to run under the three-term limit rule

HELD:

These constitutional and statutory provisions have two parts. The first part
provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that only consecutive terms count in
determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary severance from office for any
length of time interrupts continuity of service and prevents the service
before and after the interruption from being joined together to form a
continuous service or consecutive terms.

After three consecutive terms, an elective official cannot immediate re-

election for a fourth term, The prohibited election refers to the next regular
election for a fourth term. The prohibited election refers to the next regular
election for the same office following the same office following the third
consecutive term. Any subsequent election, like a recall election, is no longer
covered by the prohibition for two reasons: 1) A subsequent election like a
recall election, is no longer an immediate reelection after the three
consecutive terms; and 2) The intervening period constitutes an involuntary
interruption in the continuity of service.

After Hagedorn ceased to be mayor on June 30, 2001, he became a private

citizen until the recall election of September 24, 2002 when he won by 3,018
votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the
mayor of Puerto Princesa was Socrates. During the same period, Hagedorn
was simply a private citizen. This period is clearly an interruption in the
continuity of Hagedorn’s service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. (Socrates vs.
Comelec, G.R. No. 154512. November 12, 2002)

Socrates vs COMELEC, 391 SCRA 457; G.R.

No. 154512, November 12, 2002
Posted by Pius Morados on November 6, 2011

(Local Government, Recall Election: Exception to the 3 term limit)

Facts: COMELEC gave due course to the Recall Resolution against Mayor Socrates of the City
of Puerto Princesa, and scheduled the recall election on September 7, 2002.

On August 23, 2002, Hagedorn filed his COC for mayor in the recall election.

Different petitioners filed their respective petitions, which were consolidated seeking the
disqualification of Hagedorn to run for the recall election and the cancellation of his COC on the
ground that the latter is disqualified from running for a fourth consecutive term, having been
elected and having served as mayor of the city for three (3) consecutive full terms in 1992, 1995
and 1998 immediately prior to the instant recall election for the same post.

COMELEC’s First Division dismissed in a resolution the petitioner for lack of merit. And
COMELEC declared Hagedorn qualified to run in the recall election.

Issue: WON one who has been elected and served for 3 consecutive full terms is qualified to run
for mayor in the recall election.

Held: Yes. The three-term limit rule for elective local officials is found in Section 8, Article X of
the Constitution, which states:

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

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the
Local Government Code, which provides:

“Section 43. Term of Office. – (a) x x x

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

The first part provides that an elective local official cannot serve for more than three consecutive
terms. The clear intent is that only consecutive terms count in determining the three-term limit
rule. The second part states that voluntary renunciation of office for any length of time does not
interrupt the continuity of service. The clear intent is that involuntary severance from office for
any length of time interrupts continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or consecutive terms.

After three consecutive terms, an elective local official cannot seek immediate re-election for a
fourth term. The prohibited election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent election, like a recall election,
is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate re-election after three consecutive terms. Second, the
intervening period constitutes an involuntary interruption in the continuity of service.

Based from the deliberations of a Constitutional Commission, what the Constitution prohibits is
an immediate re-election for a fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent re-election for a fourth term as long as the re-election is
not immediately after the end of the third consecutive term. A recall election mid-way in the
term following the third consecutive term is a subsequent election but not an immediate re-
election after the third term.

Neither does the Constitution prohibit one barred from seeking immediate re-election to run in
any other subsequent election involving the same term of office. What the Constitution prohibits
is a consecutive fourth term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an
immediate re-election after his third consecutive term which ended on June 30, 2001. The
immediate re-election that the Constitution barred Hagedorn from seeking referred to the regular
elections in 2001.

ISSUES: 1. In G.R. No. 154512, whether the COMELEC committed grave abuse ofdiscretion in giving due
course to the Recall Resolution and scheduling the recallelection for mayor of Puerto Princesa.2. In G.R.
Nos.155083-84, whether Hagedorn is qualified to run for mayor in therecall election of Puerto Princesa
on September 24, 2002.In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse
ofdiscretion in fixing a campaign period of only 10 days has become moot. OurResolution of September
3, 2002 and COMELEC Resolution No. 5708 granted anadditional 15 days for the campaign period as
prayed for by petitioner.HELD:First Issue: Validity of the Recall Resolution.Petitioner Socrates argues
that the COMELEC committed grave abuse of discretion inupholding the Recall Resolution despite the
absence of notice to 130 PRA membersand the defective service of notice to other PRA members. The
COMELEC, however,found that

On various dates, in the month of June 2002, the proponents for the Recall of

incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening ofthe PRA to the
members thereof pursuant to Section 70 of the Local GovernmentCode. Copies of the said notice are in
Volumes I and II entitled Notices to PRA.Likewise, Proof of Service for each of the said notices were
attached to thePetition and marked as Annex G of Volumes II and III of the Petition.

��

Notices were likewise posted in conspicuous places particularly at the BarangayHall. Notices of the
convening of the Puerto Princesa PRA were also sent to thefollowing: [a list of 25 names of provincial
elective officials, print andbroadcast media practitioners, PNP officials, COMELEC city, regional and
nationalofficials, and DILG officials].This Court is bound by the findings of fact of the COMELEC on
matters within thecompetence and expertise of the COMELEC, unless the findings are
patentlyerroneous. hus, we rule that the COMELEC did not commit grave abuse of discretionin
upholding the validity of the Recall Resolution and in scheduling the recallelection on September 24,
2002.Second Issue: Hagedorns qualification to run for mayor

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002recall election for
mayor of Puerto Princesa because:1. Hagedorn is not running for immediate reelection following his
threeconsecutive terms as mayor which ended on June 30, 2001;2. Hagedorns continuity of service as
mayor was involuntarily interrupted from

June 30, 2001 to September 24, 2002 during which time he was a private citizen;3. Hagedorns recall
term from September 24, 2002 to June 30, 2004 cannot be made

�
 to retroact to June 30, 2001 to make a fourth consecutive term because factuallythe recall term is not a
fourth consecutive term; and4. Term limits should be construed strictly to give the fullest possible effect
to the

G.R. No. 120099 July 24, 1996

EDUARDO T. RODRIGUEZ, petitioner,

vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

FRANCISCO, J.:p

Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez Jr. (Rodriguez and Marquez, for brevity) were
protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-
elected governor.

Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed
that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los
Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is
therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government
Code (R.A. 7160), so argued Marquez.

The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise
denied a reconsideration thereof.

Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No.
112889. The crux of said petition is whether Rodriguez, is a "fugitive from justice" as contemplated by Section 40 (e) of the Local
Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned).

In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC"' promulgated on April 18, 1995, now
appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that:

. . . , "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who,
after being charged, flee to avoid prosecution. This definition truly finds support from jurisprudence (. . .), and it may be
so conceded as expressing the general and ordinary connotation of the term.1

Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task
was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably
with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional
Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration
showing that Rodriguez left the US on June 25, 1985 — roughly five (5) months prior to the institution of the criminal complaint
filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision.

In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez
challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation
that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11,
1995 when Rodriguez' petition for certiorari (112889) — from where the April 18, 1995 MARQUEZ Decision sprung — was still
then pending before the Court.

On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution
for EPC No. 92-28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In justifying a joint resolution of these two (2)
cases, the COMELEC explained that:

1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases

2. the parties, facts and issue involved are identical in both cases
3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from
justice"

4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the
two (2) cases is not procedurally flawed.

Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ Decision
definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary
evidence consisting of

1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against
Rodriguez, and

2. an authenticated copy of the felony complaint

which the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995
following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez
as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus
made the following analysis:

The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against
the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an
outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The
Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed,
respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was
being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be
deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his
disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a
clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any
attached document to show when he left the United States and when he returned to this country, facts upon which the
conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of
respondent's wife on November 6, 1985 in the United States by the Fraud Bureau investigators in an apartment paid for
respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent.2

And proceeding therefrom, the COMELEC, in the dispositive portion, declared:

WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered
disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is
ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon
Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set
aside.

At any rate, Rodriguez again emerge as the victorious candidate in the May 8, 1995 election for the position of governor.

On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on
May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.

The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending
Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995.

On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation of Rodriguez, To Proclaim Marquez And To Cite
The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).

Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and
ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in
contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to
Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R.
No. 120099).

Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from
the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively).

As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary Restraining Order Or Preliminary Injunction" which sought to
retain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . . ." Acting favorably
thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion to Lift
Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another
similar urgent motion was later on filed by Rodriguez which the Court also denied.

In a Resolution dated October 24, 1995, the Court

. . . RESOLVED to DIRECT the Chairman of the Commission on Elections ("COMELEC") to designate a Commissioner
or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein
petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by
private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not
fall within the legal concept of a "fugitive from justice." Private respondent Marquez may likewise, if he so desires,
introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule
33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have
the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice
hereof.

The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "'EVIDENCE OF THE
PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that
Rodriguez is NOT a "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision, thus making a 180-degree
turnaround from its finding in the Consolidated Resolution. In arriving at this new conclusion, the COMELEC opined that intent to
evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because
evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted
in the Los Angeles Court (November 12, 1985).

But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it
read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the
COMELEC's observations in full:

. . . The main opinion's definition of a "fugitive from justice" "include not only those who flee after conviction to avoid
punishment but also those who, after being charged, flee to avoid prosecution." It proceeded to state that:

This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p.
399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137
SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus 275 Pacific
Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary
connotation of the term.

But in the majority of the cases cited, the definition of the term "fugitive from justice" contemplates other instances not
explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a
"fugitive from justice" as:

(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was
committed or departs from his usual place of abode and conceals himself within the district. . . .

Then, citing King v. Noe, the definition continues and conceptualizes a "fugitive from justice" as:

. . . a person who, having committed or been charged with a crime in one state, has left its
jurisdiction and is found within the territory of another when it is sought to subject him to the
criminal process of the former state. (our emphasis)

In Hughes v. Pflanz, the term was defined as:

a person who, having committed within a state a crime, when sought for, to be subjected to
criminal process, is found within the territory of another state.

Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:

expression which refers to one having committed, or being accused, of a crime in one jurisdiction
and is absent for any reason from that jurisdiction.

Specifically, one who flees to avoid punishment . . . (emphasis ours)

 From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a
person committed a "crime" or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction
of the court where said crime was committed or his usual place of abode.

Filing of charges prior to flight is not always an antecedent requirement to label one a "fugitive from justice". Mere
commission of a "crime" without charges having been filed for the same and flight subsequent thereto sufficiently meet
the definition. Attention is directed at the use of the word "crime" which is not employed to connote guilt or conviction
for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for
being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a
person "was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was
brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence
because he had jumped bail or escaped. The disqualification then is based on his flight from justice."

Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is
inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their
pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court
held:

. . . it is not necessary that the party should have left the state or the judicial district where the
crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding
an anticipated prosecution, but that, having committed a crime within a state or district, he has left
and is found in another jurisdiction (emphasis supplied)

Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakeable language:

The simple fact that they (person who have committed crime within a state) are not within the state to answer its
criminal process when required renders them, in legal intendment, fugitives from justice.

THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT
THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE
PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE".

From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on
whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is
to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the
spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so
as to fit or to exclude petitioner within the definition of a "fugitive from justice". Considering, therefore, the equally valid
yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it
most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to
respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the
law.

The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as
we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995
Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive
from justice":

. . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to
avoid prosecution.

The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction.
And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of
an already instituted indictment, or of a promulgated judgment of conviction.

Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985,
as per certifications issued by the Bureau of Immigrations dated April 273 and June 26 of 1995,4 preceded the filing of the felony
complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by the same
foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and
arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak
of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from
the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found
in the circumstances of Rodriguez.

With that, the Court gives due credit to the COMELEC in having made the same analysis in its ". . . COMMISSION'S
EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally
formidable so as to merit their adoption as part of this decision, to wit:
 It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This
was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87
inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the
sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to
its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive
or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest
of those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-
publicized announcement to the perpetrators of the imminent filing of charges against them. And having been
forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private
respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal
consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law
is a material element in the definition of a fugitive.

The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed
cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of
events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at
hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently
proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the
political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the
country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the
more colorful events in the Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and
precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began
serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was
elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992
and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless,
intensive and extensive activity of varied political campaigns — first against the Marcos government, then for the
governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's
time to the demands of the office.

Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United
States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof.
While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a
person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good
faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed
against him while in the relative peace and service of his own country, the fact that he does not subject himself to the
jurisdiction of the former state does not qualify him outright as a fugitive from justice.

The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of
another state while already in his country or else be disqualified from office, is more apparent when applied in
petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner
has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In
the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the
precise time that he did and to return to the Philippines. Not justifiable reason existed to curtail or fetter petitioner's
exercise of his right to leave the United State and return home. Hence, sustaining the contrary proposition would be to
unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought
him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed
against him.

Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his
circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary
burden and tedious process of defending himself before the country's courts?

It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the
performance of duties and obligations that are supererogatory in nature. We do not dispute that an alleged "fugitive
from justice" must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing
of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a
particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his
departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the
Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner
automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the
country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have
gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without
jeopardizing the interest of the public he serves. The require that of petitioner would be to put him in a paradoxical
quandary where he is compelled to violate the very functions of his office.

However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-
define "fugitive from justice". They espouse the broader concept of the term and culled from foreign authorities (mainly of U.S.
vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the
jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of
his flight.

Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from justice"
(which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions
of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:

"Law of the case" has been defined as the opinion delivered on a former appeal. More specifically, it means that
whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same
case continues to be the law of the case, whether correct on a general principles or not, so long as the facts on which
such decision was predicated continue to be the facts of the case before the court. (21 C.J.S. 330)

It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is
substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on
the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein.
(5 C.J.S. 1267)

In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has
remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to
such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below
has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a
second appeal.

As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision
is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing. (5 C.J.S. 1276-77).

Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a
subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is
that all the facts in the case bearing on the point decided have received due consideration whether all or none of them
are mentioned in the opinion. (5 C.J.S. 1286-87).

To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are
involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the
Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the
COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what
was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we
specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights
the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to
trivialize.

Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the
MARQUEZ Decision.

To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any
elective local petition under Section 40(e) of the Local Government Code, should be understood according to the definition given
in the MARQUEZ Decision, to wit:

A "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise those who,
after being charged, flee to avoid prosecution. (Emphasis ours.)

Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at
least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez
cannot be denied the Quezon Province gubernatorial post.

WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC
dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995
(Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board and Canvassers to explain why
they should not be cited in contempt) are SET ASIDE.

SO ORDERED.

Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganiban, JJ., concur.

Bellosillo, J., is on leave.

 Separate Opinions

TORRES, JR., J.: concurring

Although I entertain no illusion of absolute certainty,
as to whether or not the petitioner in the above-
entitled case is a "fugitive from justice" within the
purview of Section 40 paragraph (e) of Republic Act
No. 7160 of the Local Government Code of 1991, and
which would result to a disqualification for any elective
local position, I, however, share the view of my
distinguished colleague, Mr. Justice Ricardo J.
Francisco, that petitioner Eduardo T. Rodriguez, is not
a "fugitive from justice."
Petitioner should not be considered disqualified or
ineligible from assuming and performing the functions
of Governor of Quezon Province.
Petitioner returned to the Philippines from the United
States on June 25, 1985 while the criminal complaint
against him for fraudulent insurance claims, grand
theft and attempted grand theft of personal property
before the Municipal Court of Los Angeles, California
was filed almost 5 months later, or on November 12,
1985. Verily, it cannot be said that he fled to avoid
prosecution for at the time he left the United States,
there was yet no case or prosecution to avoid. It
would not be reasonable to assume that he returned
to the Philippines aware that he has committed some
transgressions of law or that he was anticipating the
filing of the complaint. To assume that he was not
unaware of his own prior misdeeds is tantamount to
presuming his guilt.
That petitioner did not know of the imminent filing of
charges against him and that he did not flee to avoid
prosecution are bolstered by the facts that: 1.) he
returned to the United States twice: on August 14 and
October 7 of the same year but arrived in the
Philippines on October 26 likewise in the same year;
2.) he left his wife in the United States; and 3.) his
wife was later on arrested for the same charges. Had
petitioner been aware of the imminent filing of
charges against him, he would never have returned to
the United States and he would not have left his wife
in there.
Petitioner is a citizen of this country. Why should he
not come home? Coming home to the Philippines was
the most natural act of the petitioner, who happens to
maintain his residence in the country. The fact that he
remains here even after he was formally accused
cannot be construed as an indication of an intent to
flee, there being no compelling reason for him to go to
the United States and face his accusers. On the
contrary, it is his official duty, as an incumbent
Governor of Quezon, to remain in the country and
perform his duties as the duly elected public official.
In her report entitled "Evidence of the Parties and
Commission's Evaluation," Commissioner Teresita
Dy-Liacco Flores aptly pointed out:
. . . When, in good faith, a person leaves the
territory of a state not his own, homeward bound,
and learns subsequently of charges filed against
him while in the relative peace and service of his
own country, the fact that he does not subject
himself to the jurisdiction of the former state does
not qualify him outright as a fugitive from justice.
The severity of the law construed in the manner
as to require of a person that he subject himself
to the jurisdiction of another state while already in
his country or else be disqualified from office, is
more apparent when applied in petitioner's case.
The criminal process of the United States
extends only within its territorial jurisdiction. That
petitioner has already left said country when the
latter sought to subject him to its criminal process
is hardly petitioner's fault. In the absence of an
intent to evade the laws of the United States,
petitioner had every right to depart therefrom at
the precise time that he did and to return to the
Philippines. No justifiable reasons existed to
 curtail or fetter petitioner's exercise of his right to
leave the United States and return home. Hence,
sustaining the contrary proposition would be to
unduly burden and punish petitioner for
exercising a right as he cannot be faulted for the
circumstances that brought him within Philippine
territory at the time he was sought to be placed
under arrest and to answer for charges filed
against him.
Granting, as the evidence warrants, that
petitioner Rodriguez came to know of the
charges only later, and under his circumstances,
is there a law that requires petitioner to travel to
the United States and subject himself to the
monetary burden and tedious process of
defending himself before the country's courts?1
This Court cannot be oblivious of the fact that the
provision disqualifying fugitives from justice in criminal
or non-political cases here or abroad was allegedly
tailored to affect petitioner. The provision is short of
saying that Eduardo Rodriguez is disqualified. As I
trace the legislative history of the subject provision, I
find that the principal sponsor of the Local
Government Code, Aquilino O. Pimentel, Jr., then a
Senator and Chaiman of the Senate Committee on
Local Government commented on this, in his book
"The Local Government Code of 1991," thus:
 5. Fugitives Disqualified. Persons fleeing from
local or foreign justice in criminal or non-political
cases are likewise disqualified from local
government elective positions. This particular
disqualification was a House of Representatives
innovation. This was a "camaraderie" provision
proposed by the House because a congressman
of a southern Tagalog province had intended to
run for governor against an incumbent who had
reportedly fled from U.S. justice.2 (Emphasis
supplied)
To borrow the language of former Chief Justice Moran
in his dissent in Torres vs. Tan Chim, 69 Phil. 518,
535:
. . . when this Court continues to uphold a ruling
known to be erroneous, with no plausible excuse
therefor but public acquiescence therein, it may
soon find itself compelled to make more mistakes
in an effort to justify the previous ones. We may
thus be building one error upon another until, by
their accumulation, we shall come to a point
when going further would be perilous and turning
backward impossible.
The rule in favor of private respondent is to license a
wrongdoing to succeed and injustice to prevail. In
applying a law, the facts and circumstances obtaining
in the particular case must be taken into
consideration. In the case at bar, the following
circumstances must be taken into consideration: that
petitioner was not aware of the imminent filing of
charges against him; the same was filed after he has
returned home; it is impractical and unjust to require
petitioner to subject himself to the jurisdiction of the
United States while already in this country or else be
disqualified from office; and that the subject provision
appears to have been a 'camaraderie provision'
proposed by the House for the sake of private
respondent who was then a Congressman.
In Marquez vs. COMELEC (243 SCRA 538), this
court held that: Art. 73 of the Rules and Regulations
Implementing the Local Government Code of 1991 is
an inordinate and undue circumscription of the law, to
the extent that it confines the term "fugitive from
justice" to refer only to a person (the fugitive) "who
has been convicted by final judgment." Said ruling
notwithstanding, the court must not insist that
petitioner is still a fugitive by the mere fact that there
are pending charges against the petitioner in the
United States and that petitioner Rodriguez is in the
Philippines.
It was Justice Oliver Wendel Holmes who said that —
A word is not a crystal, transparent and
unchanged, it is the skin of a living thought and
may vary greatly in color and content according
to the circumstances and the time in which it is
used.3
"Fugitive from justice" must be given a meaning in the
instant case having regard to "the circumstances and
the time it is used." Philosophers and jurists have tried
unsuccessfully at an exact definition of such an
abstruse term as justice. Unfortunately, whether in the
metaphysical sense or otherwise, the question of
justice is still unanswered as it ever was albeit
characterized by secular skepticism. If the question is
asked: What standard of justice should we enforce?
The American sense of justice or the Philippine sense
of justice? Undoubtedly, the forum in which it is raised
should be controlling. By way only of hypothesis, if an
American flees to escape from Philippine Laws to the
United States, may we enforce in the United States
our standard of justice based on Philippine Laws? I
am tempted to ask these questions considering our
zealousness to solve legal problems in the light of
laws obtaining in the United States.
At any rate, an accused charged with a crime in the
Philippines cannot be a candidate and at the same
time flee from prosecution. Once he goes
campaigning his opponent would have him arrested.
For this and the reasons above discussed, the
provision on disqualification of fugitive from justice,
being unnecessary and serving only to undermine
one's constitutional right to equal access to
opportunities for public service,4 should even be
scantily considered.
Finally, petitioner appears to have garnered 285,202
votes. According to the election results, petitioner won
over private respondent by a majority of 140,000
votes more or less. As it is, to disqualify petitioner on
the shaky ground of being a "fugitive from justice"
would amount to disenfranchising the electorate in
whom sovereignty resides.5
Learned Hand, had this to say:
Hand preached that the security of liberty was too
important to be left entirely to the judges: "(I)t is
the voters, speaking through their delegates, who
have the final word and the final responsibility;
and . . . in the end it is they and they alone who
can and will preserve our liberties, if preserved
they are to be."6
This is a populist judicial response.
Thus, where a candidate has received popular
mandate, overwhelmingly and clearly expressed, all
possible doubts should be resolved in favor of the
candidate's eligibility, for to rule otherwise is to defeat
the will of the people.7 Above and beyond all, the
determination of the true will of the electorate should
be paramount. It is their voice, not ours or of anyone
else, that must prevail. This, in essence, is the
democracy we continue to hold sacred.8
I vote to grant the petition.
VITUG, J.: dissenting
Let me not, in writing this dissenting opinion, be so
misunderstood as stating that I am opposed to the
doctrine of stare decisis et non quieta movere or to
the consequences of the rule on the "law of the case,"
let alone to create, to borrow the phrase used by the
majority, "instability in our jurisprudence." But what I
would really dread is when I might, wittingly or
unwittingly, misconceive the pronouncements made
by the Court, or worse, be completely out of context
therefrom. I should also like to point out that the
dissent in no way necessarily implies an acceptance
on the sapience of the law here in question; I realize
that the Court has no prerogative to either sustain or
reject a law on that basis alone.
I find it helpful to first narrate the antecedents of the
case now before us.
For some time now, Eduardo Rodriguez and
Bienvenido Marquez, Jr., have been at loggerheads
on the issue of whether or not Rodriguez is a "fugitive
from justice" and thereby disqualified under the law to
run for, or to hold on to, an elective local office. The
contenders have for the fourth time1 pleaded for the
intervention of this Court.
This time, in a special civil action for certiorari, with a
prayer for the issuance of a writ of preliminary
mandatory/prohibitory injunction, Rodriguez seeks the
annulment of the 07th and 11th May 1995 resolutions
(infra) of the Commission on Elections ("COMELEC").
There being other matters that have come up during
the pendency of this petition, Rodriguez has now also
moved for the admission of his supplemental petition
and a second supplemental petition to call attention to
certain developments, including a 23rd June 1995
resolution of the COMELEC which he now likewise
assails.
The various settings that led to the promulgation by
the COMELEC of its assailed resolutions might be
condensed thusly:
Rodriguez, the proclaimed Governor of Quezon
Province after the May 1992 elections, was named
respondent by Marquez, a defeated candidate for the
same post, in a quo warranto petition, docketed EPC
No. 92-28 (hereinafter so referred to as the quo
warranto case), instituted before the COMELEC.
Rodriguez was said to be a fugitive from justice and
thereby disqualified under Section 40(e) of the Local
Government Code from holding on to the elective
local office. The COMELEC dismissed the petition for
quo warrant on the ground that petitioner had not
been convicted by final judgment. Private respondent
thereupon filed a petition for certiorari with this Court
(docketed G.R. No. 112889).2
On 15 March 1995 (while G.R. No. 112889 was still
then pending consideration by the Court), Marquez
and Rodriguez filed their respective certificates of
candidacy, this time for the May 1995 elections, for
the governorship of Quezon. Upon learning of the re-
election bid of Rodriguez, Marquez lost no time in
filing (on 11 April 1995) with the COMELEC a petition
to disqualify Rodriguez and for the cancellation of the
latter's certificate of candidacy. Docketed SPA No. 95-
089 (hereinafter so referred to as the disqualification
case), the petition was assigned to the Second
Division of the COMELEC. Marquez disclosed to the
COMELEC the pendency of G.R. No. 112889 but
explained that the two cases were different in that
G.R. No. 112889 had sought to oust petitioner from
office for the term 1992-1995 while SPA No. 95-089
was aimed at disqualifying petitioner from running for
a new term (1995-1998). Rodriguez was summoned
by the Second Division of the COMELEC and
required to file his answer to the petition. The
disqualification case was set for hearing on 25 April
1995.
Meanwhile, on 18 April 1995, this Court rendered a
decision in G.R. No. 112889 reversing and setting
aside the resolution of the COMELEC which
dismissed the petition for quo warranto and directed
the COMELEC "to proceed and resolved the case
with dispatch." On even date, Rodriguez filed with his
Court in G.R. No. 112889 an "Urgent Manifestation
and Motion" for the dismissal of G.R. No. 112889
asseverating that the filing of SPA No. 95-089 meant
forum-shopping on the part of Marquez.
Unaware (presumably) of the 18th April 1995 decision
of this Court, Rodriguez filed, on 21 April 1995, with
the COMELEC (Second Division) in the
disqualification case (SPA No. 95-089) a "Motion to
Nullify Summons and to Reconsider Notice of
Hearing" praying for the dismissal of the case in view
of the pendency with this Court of G.R. No. 112889.
He filed an "Answer Ex-Abundante Cautela" claiming,
among other things, that he was already in the
Philippines at the time the complaint was filed against
him in Los Angeles, California. In three separate
pleadings, Rodriguez insisted on the nullification of
the summons, the reconsideration of the notice of
hearing and the dismissal of SPA No. 95-089.
The scheduled 25th April 1995 hearing on the
disqualification case was re-set to 26 April 1995. Still
claiming to be incognizant of this Court's decision in
G.R. No. 112889, Rodriguez filed, on 25 April 1995,
an urgent motion for the issuance of a writ of
preliminary injunction to restrain the COMELEC from
hearing SPA No. 95-089, arguing that, since SPA No.
95-089 was also based on the facts as those that
related to G.R. No. 112889, its filing constituted
forum-shopping and could pre-empt G.R. No. 112889.
The hearing on the disqualification case (SPA No. 95-
089), re-scheduled for 26 April 1995 by the Second
Division of the COMELEC,3 went through. Rodriguez
moved to suspend the proceedings so citing, as the
ground therefor, his urgent motion for preliminary
injunction in G.R. No. 112889. The COMELEC
(Second Division), however, denied his motion, as
well as his subsequent motion for time to file a motion
for reconsideration, because of the proximity of the
elections. Failing to have the proceedings held in
abeyance, Rodriguez walked out of the hearing.
Marquez then submitted and offered in evidence the
authenticated copies of the felony complaint and
warrant of arrest against Rodriguez issued on 12
November 1985, by the Municipal Court of Los
Angeles Judicial District, Country of Los Angeles,
State of California, U.S.A., and some other records of
said court.
On 27 April 1995, it might be mentioned
parenthetically, Rodriguez moved for the
reconsideration of this Court's decision of 18 April
1995 in G.R. No. 112889.
It was now the turn of Rodriguez to file with this Court
a petition for certiorari, prohibition, and mandamus.
The petition, entitled "Eduardo T. Rodriguez vs.
Commission on Elections, et.al.," and docketed G.R.
No. 119807, asked the Court to enjoin the COMELEC
from proceeding with SPA No. 95-089. The petition
was dismissed by the Court, in its 04 May 1995
minute resolution, since it found no grave abuse of
discretion on the part of the COMELEC.
Meanwhile, in G.R. No. 112889, Rodriguez filed an
"Urgent Motion to Admit Additional Argument in
Support of the Motion for Reconsideration" attaching
thereto a certification from the Commission on
Immigration purporting to show that he had left the
United States on 25 June 1985 before the felony
complaint against him was instituted before the Los
Angeles court. The following day, or on 03 May 1995,
he also filed with the COMELEC (Second Division), a
"Motion to Admit Position Paper Ex Abundante
Cautela Showing that Respondent is Not a Fugitive
From Justice As Defined in the Supreme Court
Decision of April 18, 1995 in G.R. No. 112889,"
arguing that the decision in G.R. No. 112889 would
not apply to him because he arrived in the Philippines
five (5) months before the filing of the felony charges
against him. The COMELEC (Second Division), in its
06 May 1995 resolution, denied the motion.
On 07 May 1995, or one day before the scheduled
1995 elections, the COMELEC promulgated its first
assailed consolidated resolution in EPC No. 92-28
and SPA No. 95-089 which read:
WHEREFORE, considering that respondent
(Eduardo Rodriguez) has been proven to be
fugitive from justice, he is hereby ordered
disqualified or ineligible from assuming and
 performing the functions of Governor of Quezon
Province. Respondent is ordered to immediately
vacate said office. Further, he is hereby
disqualified from running for Governor for
Quezon Province in the May 8, 1995 elections.
Lastly, his certificate of candidacy for the May 8,
1995 elections is hereby set
aside.4 (Emphasis supplied)
On 10 and 11 May 1995, Marquez filed urgent
motions to suspend the proclamation of Rodriguez.
The COMELEC favorably acted on the motions as it
so issued, on 11 May 1995, a resolution where it ruled
to suspend, among other candidates, the
proclamation of Rodriguez who was ordered
disqualified in SPA No. 95-089. Notwithstanding the
11th May 1995 resolution, however, Rodriguez, who
would appear to have garnered 285,202 votes, was
proclaimed winner on 12 May 1995 by the Provincial
Board of Canvassers of Quezon. On 22 May 1995,
Marquez went to the COMELEC and filed in SPA No.
95-089 and EPC No. 92-28 an "Omnibus Motion to
Annul the Proclamation of Rodriguez, to Proclaim
Marquez and to cite the Provincial Board of
Canvassers in Contempt."
On 16 May 1995, Rodriguez filed the present petition
for certiorari captioned: "For: REVIEW OF EPC No.
92-28 and SPA No. 95-089 of the Commission on
Elections and for NULLIFICATION OF COMELEC
Resolution dated 11 May 1995 with a prayer for the
issuance of a WRIT OF PRELIMINARY
MANDATORY/PROHIBITORY INJUNCTION." an
urgent motion to admit a supplemental petition was
filed on 18 May 1995 by petitioner stating that he had
been furnished with a copy of a certificate of canvass
of votes and of his proclamation by the Provincial
Board of Canvassers. On 29 May 1995, Rodriguez
thereupon renewed his prayer, through a motion, for
the issuance of a temporary restraining order and to
declare the COMELEC and Marquez in contempt of
court.
Back to the omnibus motion of Marquez in SPA No.
95-089 and EPC No. 92-28, the COMELEC, in its
23rd June 1995 resolution, annulled and set aside the
proclamation of Rodriguez for being null and void ab
initio. It also gave the Vice-Chairman and Member-
Secretary of the Provincial Board of Canvassers of
Quezon Province ten (10) days within which to
explain why they should not be cited in contempt for
disobedience or resistance to the lawful order of the
COMELEC particularly its "order to suspend
proclamation." On the motion seeking the
proclamation of Marquez, the COMELEC chose to
have the matter considered by it only "once the
Supreme Court (would have) resolved the case of
Eduardo T. Rodriguez v. COMELEC (in), G.R. No.
120099" (the instant petition). This action by the
COMELEC prompted Rodriguez to file his motion to
admit a second supplemental petition in order to
include the 23rd June 1995 resolution, in addition to
the 07th and 11th May resolutions, of the COMELEC,
among the disputed issuances.
Petitioner submits several reasons for the allowance
and grant of his petition.
Rodriguez contends that the COMELEC should not
have entertained the disqualification case (SPA No.
95-089) for being an act of "forum-shopping" on the
part of Marquez. Clearly, there is no merit in this
submission. The general statement of the prohibition
against forum-shopping is that a party should not be
allowed to pursue on the same subject matter
simultaneous remedies in two or more different fora5
that can tend to degrade the administration of justice
by thusly trifling with the courts and abusing their
processes.6 Forum-shopping exists where the actions
are of the same nature and involve identical
transactions, circumstances, and issues between the
same parties.7 While there is identity in many
respects between SPA No. 95-089 and EPC No. 92-
28, the two cases, however, greatly differ in their main
aspects. EPC No. 92-28 (subject case of G.R. No.
112889) is a quo warranto case and involves
petitioner's gubernatorial incumbency for the term
1992-1995 while SPA No. 95-089 is a disqualification
case involving his candidacy for the 1995 local
elections.
Rodriguez argues that should Section 40(e) of the
Local Government Code of 1991 be applied to him, it
would partake the nature of an ex post
facto8 law or a bill of attainder.9 These terms have
settled meanings in criminal law jurisprudence that
clearly have no relevance to the case before us.
Besides, the Local Government Code took effect on
01 January 1992, and thus its application to
Rodriguez in his gubernatorial incumbency that
started in mid-1992 and his candidacy for the 1995
elections cannot be deemed to be retrospective in
character.
Petitioner claims that the COMELEC did not have
jurisdiction to issue the questioned resolution on the
eve of the election because the Omnibus Election
Code requires that final decisions in disqualification
cases should be rendered not later than seven (7)
days before the election. Section 72 of the Omnibus
Election Code, that petitioner refers to, provides:
Sec. 72. Effects of disqualification cases and
priority. — The Commission and the courts shall
give priority to cases of disqualification by reason
of violation of this Act to the end that a final
decision shall be rendered not later than seven
days before the election in which the
disqualification is sought. (Emphasis supplied).
The instant case calls for the governance not of the
Omnibus Election Code but of the Local Government
Code (specifically Section 40[e] thereof). In any case,
the "seven days" stated in the law, being evidently
intended for administrative feasibility, should be
construed as a mere directory, rather than as a
mandatory, provision of the Omnibus Election Code.
A provision should be deemed to be directory only
when to have it enforced strictly may cause more
harm than by disregarding it.10
The next question posed was whether or not the
COMELEC gravely abused its discretion when, in the
scheduled hearing of 26 April 1995, it refused to grant
the motion of Rodriguez for a suspension of hearing.
Far from it, the denial by COMELEC would appear to
have been both prudent and legally warranted. The
motion was grounded on the pendency of G.R. No.
112889 (the quo warranto case), whereas, the 26th
April 1995 hearing related to the disqualification case
(SPA 95-089) for the 1995 election that undoubtedly
had to be resolved quickly. The COMELEC hardly
had any choice but to proceed with the hearing and,
when Rodriguez thereupon walked out, Marquez was
naturally allowed to present his evidence ex-parte.
Perhaps realizing that the COMELEC had acted
correctly, petitioner would question the holding of the
26th April 1995 hearing by only one member
(Commissioner Teresita Flores) of the Second
Division. 11 Not only was this matter not timely
brought up before the COMELEC, but that there
would appear to be no problem in the delegation by
the COMELEC of the mere reception of evidence to
any one of its members. All the assailed resolutions of
COMELEC would indicate that the required
concurrence of the Commissioners was given.
The subsequent consolidation of the quo warranto
case with that of the disqualification case (following
our 18th April 1995 decision remanding the case to
COMELEC), and the promulgation of the 07th May
1995 consolidated resolution, would also seem to be
in conformity with Rule 3, Section 9, of the COMELEC
Rules of Procedure, which reads:
Sec. 9. Consolidation of cases. — When an
action or proceeding involves a question of law
and fact which is similar to or common with that
of another action or proceeding, the same may
be consolidated with the action or proceeding
bearing the lower docket number.
Moreover, a further hearing on the quo warranto case
so involving, as it does, petitioner's now expire
incumbency, would be unnecessary and a futile effort.
The pivotal issue then is whether or not petitioner falls
under the term "fugitive from justice" but, unlike it
precursor case in G.R. No. 112889 which has been
confined to the question of whether or not a conviction
by final judgment of a person at large is essential
before he can be considered a "fugitive from
justice,"12 this time, however, the Court is asked to
pass upon petitioner's assertion that he cannot be
considered a "fugitive from justice" since he already
has been in the Philippines months prior to the filing
of the charges against him before the United States
court in November 1985. He cites a certification from
the Commission of Immigration of his arrival in the
country on 25 June 1985.
The Solicitor-General, on his part, maintains that the
evidence presented by Marquez is still wanting. He
states that the evidence thus far submitted would only
show —
(1) that ten (10) charges of presenting fraudulent
insurance claims, grand theft of personal
property, and attempted grand theft of personal
property were filed against petitioner before the
Municipal Court of the Country of Los Angeles,
State of California, U.S.A., in November, 1985;
(2) that on November 12, 1985, a warrant of
arrest was issued against petitioner; and
(3) that petitioner's wife, Imelda Gener
Rodriguez, was arrested for the same charges on
November 6, 1985.13
which, collectively, would appear to be "too
insubstantial" and inadequate to establish that
Rodriguez has, in fact, fled to avoid prosecution. He
opines that—
 . . . The COMELEC can not simply ignore the fact
that the then Bureau of Immigration had issued a
certification that on June 25, 1985, petitioner
returned to the Philippines from the United
States. This certification is already on record,
having been submitted by petitioner ex
abundante cautela following COMELEC's refusal
to consider the same because of petitioner's
walkout from the hearing on April 26, 1995.
According to the election results, petitioner won
over private respondent by a majority of 140,000
votes more or less. This manifestation of the
People's will can not just be ignored without
conducting a thorough hearing to determine
whether the person they had overwhelmingly
voted for is really disqualified from presenting
himself to them for election.14
I thus perceive the Solicitor General as now also
saying that an intention to evade punishment or
prosecution is an element of term "fugitive from
justice."
Verily, there is a dearth of authorities on the proper and
legal connotation of the phrase "fugitive from justice."
Neither the law (Republic Act. 7160, also known as the
Local Government Code)15 here in question nor the
deliberations in Congress give much clue to the legislative
intent. The phrase has been used in various contexts
although it is in extradition cases where it appears to
have acquired a prevalent usage. One leading situation
was that of Roberts vs. Reilly,16 decided by the United
States Supreme Court, which involved the application of
Article 4, Section 2, of the United States Constitution17
and Section 527818 of the Revised Statutes of the United
States implementing the Constitutional provision. William
Roberts was indicted for grand larceny in the first degree
in the State of New York. He was subsequently held in the
State of Georgia by Philip Reilly, who claimed to be an
agent of the State of New York and acting by virtue of an
executive warrant issued by the Governor of Georgia on a
requisition from the Governor of New York, reciting that
Roberts had been indicted in the State of New York and
was a fugitive from justice of the latter State. In
considering the specific question on whether or not the
person demanded was a fugitive from justice, the tribunal
held:
To be (regarded) a fugitive from justice, . . . , it is
not necessary that the party charged should have
left the State in which the crime is alleged to have
been committed, after an indictment found, or for
the purpose of avoiding a prosecution anticipated
or begun, but simply that, having within a State
committed that which by its laws constitutes a
crime, when he is sought to be subjected to its
criminal process to answer for his offense, he has
left its jurisdiction and is found within the territory
of another.
The ruling was repeated in Appleyard v.
Massachusetts,19 itself to be later reiterated in a
number of other cases,20 where Arthur Appleyard
was indicted for the crime of grand larceny, first
degree, alleged to have been committed in the
country of Erie, New York. Although a warranto for his
arrest was issued, Appleyard was not apprehended
because he had moved out from that State. He was
eventually arrested by virtue of a warrant issued by
the Governor of Massachusetts. Appleyard then
applied for a write of habeas corpus to the supreme
judicial council of Massachusetts which, after hearing,
denied the application. He, again, applied to the
Circuit Court of the United States for a writ of habeas
corpus which effort likewise proved futile. Appleyard
interposed an appeal to the U.S. Supreme Court. He
restated his previous contention before the lower
courts that he could not be deemed to be a fugitive
from justice because he was unaware when leaving
New York that he had at any time violated its criminal
laws. That Court held:
. . . This contention cannot be sustained; indeed,
it could not be sustained without materially
impairing the efficacy of the constitutional and
statutory provisions relating to fugitives from
justice. An alleged fugitive may believe that he
has not committed any crime against the laws of
the state in which he is indicted, and yet,
according to the laws of such state, as
administered by its judicial tribunals, he may
have done so, and his belief or want of belief may
be without foundation in law. It is the province of
the courts of New York to declare what its laws
are, and to determine whether particular acts on
the part of an alleged offender constitute a crime
under such laws. The constitutional provision that
a person charged with crime against the laws of a
state, and who flees from its justice, must be
delivered upon on proper demand, is sufficiently
comprehensive to embrace any offense,
whatever its nature, which the state, consistently
with the Constitution and laws of the United
States, may have made a crime against its laws.
Kentucky v. Dennison, 24 How: 66, 69, 16 L. ed.
717; Ex parte Reggel, 114 U.S. 642, 650, 29 L.
ed. 250, 252, 5 Sup. Ct. Rep. 1148. So that the
simple inquiry must be whether the person whose
surrender is demanded is in fact a fugitive from
justice, not whether he consciously fled from
justice in order to avoid prosecution for the crime
with which he is charged by the demanding state.
A person charged by indictment or by affidavit
before a magistrate with the commission within a
state of a crime covered by its laws, and who,
after the date of the commission of such crime,
leaves the state, — no matter for what purpose or
with what motive, nor under what belief, —
becomes, from the time of such leaving, and
within the meaning of the Constitution and the
laws of the United States, a fugitive from justice, .
..
Most U.S. State courts would appear to be similarly
minded.21
The rulings heretofore cited cannot be here
controlling, of course, and divergent views can still be
expressed on the precise import of the phrase
"fugitive from justice." It is evident enough though, in
my view, that Congress, not having provided
otherwise, must have intended the ordinary
connotation of the term to prevail. So taken, it might
be understood as referring to one who, having
committed or being accused of having committed a
crime in one jurisdiction, cannot be found therein22 or
is absent for any reason from that jurisdiction23 that
thereby forestalls criminal justice from taking its due
course. The issue is largely a factual matter and in
that determination, the motive or reason for his plight
need not be inquired to. Animus fugere may be
significant but it is not essential and what matters in
not why he leaves but the fact that he leaves, for it
should not be unreasonable to assume that he was
not unaware of his own prior deeds or misdeeds. As
so conceptualized, the import of the term is more
congruent than variant with what has heretofore been
essayed to be, in fact, its common usage. Indeed,
unlike the U.S. courts which are yet detained by the
conditions expressed in both their fundamental and
statutory laws, the pertinent provision of our own
Local Government Code contains no further
circumscription other than by its bare and simple
mandate that a "fugitive from justice in criminal or
non-political cases here or abroad" shall be
"disqualified from running for any elective local
position."24 The law has provided no further provisos
and no saving clauses. When there is no obscurity or
ambiguity in an enabling law, it must, we have said in
the related case of Marquez vs.
Comelec,25 be merely made to apply as it is so
written. This Court is not at liberty either to question
the wisdom of the law, let alone to detract from it, or
to itself legislate material parameters when there are
none that statutorily exist.
I now come to the final question of whether or not
substantial evidence has been adduced to support the
factual findings of the COMELEC and, corollarily,
whether or not petitioner has been duly accorded full
opportunity to present before the COMELEC his own
evidence to disprove the assertions of private
respondent.
It may be recalled that, following the denial of the
motion of Rodriguez to postpone the scheduled 26th
April 1995 hearing, the COMELEC continued,
because of the proximity of the May 1995 elections,
with its reception of the evidence (despite the walk-
out thereupon staged by Rodriguez and his counsel).
Duly received in evidence included an authenticated
copy of the warrant of arrest, dated 12 November
1985, on respondent (Exh. A-2) issued by the
Municipal Court of the Country of Los Angeles, State
of California, U.S.A., in connection with a criminal
complaint filed against him in Criminal Case No.
A774567, entitled "People of the State vs. Imelda O.
Rodriguez and Eduardo T. Rodriguez for the crimes
of presenting Fraudulent Insurance Claims, Grand
Theft of Personal Property and Attempted Grand
Theft of Personal Property," and an authenticated
copy of the felony complaint (Exh. A-10 to A-15
inclusive), showing that the respondent was charged
criminally on ten (10) counts. Concluding on the
documentary evidence adduced before it, the
COMELEC said:
The authenticated documents submitted by
petitioner to show the pendency of a criminal
complaint against the respondent in the Municipal
Court of Los Angeles, California, U.S.A., and the
fact that there is an outstanding warrant against
him amply proves petitioner's contention that the
respondent is a fugitive from justice.26
The petitioner and his counsel walked out from the
proceedings. Certainly, the thesis that petitioner was
denied due process would be totally unacceptable; he
himself brushed it aside. But while there might be no
sympathy for his action that ordinarily should have
prevented him from any further opportunity, the Court,
nevertheless, aptly recognized that the controversy
was solely not between the private parties herein, but
one imbued with public interest, involving no less than
the highest office in the province of Quezon and so,
inevitably, a concern also of its people. Accordingly,
the Court, besides having set the case for the
reception of oral argument on 13 July 1995, likewise
passed, on 24 October 1995, the following resolution;
thus —
Deliberating on the special civil action for
certiorari with prayer for preliminary injunction
and restraining order, along with the comment
thereon filed by the Solicitor General, as well as
the other subsequent pleadings submitted by the
parties in support of their respective submissions,
and considering, further, the oral argument of the
parties during the 13th July 1995 hearing of this
case, the Court RESOLVED to DIRECT the
Chairman of the Commission on Elections
("COMELEC") to designate a Commissioner or a
ranking official of the COMELEC to RECEIVE
AND EVALUATE such legally admissible
evidence as herein petitioner Eduardo Rodriguez
may be minded to present by way of refuting the
evidence heretofore submitted by private
respondent Bienvenido Marquez, Sr., or that
which can tend to establish petitioner's contention
that he does not fall within the legal concept of a
"fugitive from justice." Private respondent
Marquez may likewise, if he so desires, introduce
additional and admissible evidence in support of
his own position. The provisions of Sections 3 to
10, Rule 33, of the Rules of Court may be applied
 in the reception of the evidence. The Chairman of
the COMELEC shall have the proceedings
completed and the corresponding report
submitted to this Court within thirty (30) days
from notice hereof.27
While it may generally be said that the possible
outcome or truth of an indictment need not
necessarily be an issue in ascertaining whether or not
one is a fugitive from justice, when, however, the
accusation is lodged with and an arrest is ordered by
a foreign court or agency we might also assure
ourselves as a matter of principle that, in the process
of sanctioning in effect an act of a foreign
government, we do not thereby abandon our own
basic sense of equity and fair play. There cannot thus
be any serious doubt that, when assailed or in doubt,
the courts are free to look into, and receive evidence
on, the legitimacy and regularity of the proceedings in
that foreign jurisdiction.
In the report submitted by the Commission on
Elections,28 entitled "Evidence of the Parties and
Commission's Evaluation," received by the Court on
26 December 1995, the matters adduced by petitioner
focused on what had already been asseverated in his
petition, i.e., that he was already in the Philippines
prior to the filing of the charges against him before the
United States court in November of 1985 and that his
return to the country was not intended to avoid
prosecution. Neither party brought up any question on
the legitimacy and regularity of the proceedings
before the foreign court that led to the issuance of the
warrants of arrest. I quote the pertinent portions of the
report:
EVIDENCE
Petitioner Rodriguez presented the following
witnesses:
1. Atty. Cipriano Farrales, Legal Officer of the
Bureau of Immigration and Deportation
2. Menardo Manglo
3. Former Supreme Court Justice Abraham
Sarmiento
4. Ex-Senator Aquilino Pimentel, Jr.
5. Ex-Senator Agapito Aquino
6. Atty. Geronimo Reyes, Jr.
7. Atty. Roberto Avio
8. Mr. Heberto Buenafe
9. Former Senate President Jovito Salonga
10. Former Secretary of the Department of Labor
and Employment Augusto Sanchez
11. Mr. Euclides Abcede, and
12. Eduardo Rodriguez
The testimonies of Former Supreme Court
Justice Abraham Sarmiento, former Senator
Aquilino Pimentel, Jr., former Senator Agapito
Aquino, Former Labor Secretary Augusto
Sanchez and former Senator Jovito Salonga
collectively emphasized that petitioner Eduardo
Rodriguez was one of the active participants in
the political movement against the late President
Ferdinand E. Marcos. They went to Hongkong on
August 9, 1985 as a group, together with
petitioner Eduardo Rodriguez, in order to meet a
political exile, Raul Daza, who had then a
pending warrant of arrest issued by a Regional
Trial Court of Quezon City. The purpose of the
trip was to provide Mr. Raul Daza, another
prominent opposition figure during the Marcos
regime, some form of protective company during
his return to the country on August 12, 1985. To
the political opposition then, it was a big event
that enjoyed media bash particularly in the
August 12, 1985 issue of the Bulletin Today and
in the August 19, 1985 issue of the Mr. and Ms.
Magazine.
Mr. Geronimo Reyes testified that he knows
petitioner Rodriguez as a co-exile from the
Marcos regime in Los Angeles, USA. Reyes was
the organizer and president of Wilshire Walking
Corp. composed of Filipino residents in Los
Angeles. Petitioner Rodriguez because a
member thereof. Rodriguez returned to the
Philippines about July 1985 and returned to Los
Angeles in August of the same year. That was
the last time they saw each other in the US.
Either on November 11 or 12, 1985, a certain
Johnny Reveche, brother-in-law of petitioner
Rodriguez, called him to the former's home at
Beard Ave., Northridge, California to discuss the
matter of the arrest and detention of Mrs. Imelda
Rodriguez, wife of petitioner Rodriguez, who had
just been bailed out. His assistance was
requested because he had been practicing law in
California. While Mr. Reyes, Imelda Rodrigues
and Mr. Reveche were discussing the case, Mr.
Reveche called Mr. Reyes to the phone where
the latter found out that Rodriguez was on the
other end calling him from the Philippines. The
caller requested Mr. Reyes to render all the
necessary assistance to Mrs. Rodriguez because
petitioner was unable to be with her as he was
then in the Philippines and deep in the political
campaign.
Atty. Roberto Avio, resident of Macalelon,
Quezon and former chairman of the United
Nationalists Democratic Organization (UNIDO),
Macalelon Chapter, testified that sometime in
May 1985, former Mayor Eduardo T. Rodriguez
returned from the United States and sent his
personal driver to witness' residence to inform the
latter that Rodriguez would be meeting him in the
first week of June 1985 at Macalelon, Quezon. In
the meeting held as scheduled, Rodriguez
intimated that he (Rodriguez) was tasked by Ex-
Senator Salonga to reactivate and reorganize the
Liberal Party in the Bondoc Peninsula area.
However, Atty. Avio declined Rodriguez's
invitation to join the reorganization as he was
then already committed to the UNIDO as the
local chairman. Rodriguez requested another
meeting after consulting with other former Liberal
Party stalwarts. Said meeting transpired on the
last week of July 1985 where Rodriguez, made
aware of the improbability of reactivating the
Liberal Party due to the affiliation of most of the
party's former members with the UNIDO,
expressed willingness to join the UNIDO.
Rodriguez took his oath of allegiance on October
1985. Thereafter, he actively participated in the
political campaigns of the UNIDO candidates in
the presidential snap elections and congressional
elections resulting in his appointment as OIC-
Board Member of the Sangguniang Panlalawigan
ng Quezon in 1986 and his election as Provincial
Governor of Quezon in 1988.
Heberto Buenafe's testimony corroborated these
allegations, specifically stating that sometime in
July and August of 1985, Buenafe has occasion
to meet Rodriguez and that in matters of party
dispute regarding the leadership of the UNIDO in
Lucena City, the latter was often consulted as he
(Rodriguez) was then designated as party
representative of the Liberal Party by Senator
Salonga immediately after his arrival in the
Philippines in May 1985. Likewise, Mr. Euclides
Abcede's testimony attested to the fact that in line
with his activities as an active opposition
campaigner, Abcede met Rodriguez in
Macalelon, Quezon sometime in June 1985.
Mr. Menardo Manglo is the arrival and departure
verifier of the Bureau of Immigration. He certified
the authenticity of the Bureau of Immigration
Arrival and Departure Reports of June 1985,
August 1985, August 1986, September 1986,
July 1987, June 1988, July 1989 and August
1990 (Exhibits 5 to 5-G, inclusive) wherein the
name Eduardo T. Rodriguez appears. On cross-
examination, witness testified that said exhibits
were computer print-outs supplied to the Bureau
of Immigration by the PAL Computer Center.
Atty. Cipriano Farrales, legal officer of the Bureau
of Immigration, testified that the certification
issued by the Bureau relative to the departure
and arrival of Rodriguez in the Philippines issued
by Commissioner Lopez was genuine and
authentic (Exhibits 1 and 2).
Herein petitioner Rodriguez' testimony denied the
allegation that he falls within the Supreme Court's
definition of a "fugitive from justice" which
includes "those who, after being charged, flee to
avoid prosecution." Specifically, Rodriguez
averred:
b) I arrived in the Philippines from the
United States of America on June 25,
1985, 6 months prior the filing of the
alleged charges against me on
November 12, 1985. Obviously, I did not
flee from the United States of America
to avoid prosecution. At the time that I
left the United States, there were no
charges against me. No warrant of
arrest has been issued against my
person. Under the facts, it could not be
said that I fled from the United States to
avoid prosecution. . . .
On the query as to whether or not he returned to
the United States between June 25, 1985 and
November 12, 1985, petitioner Rodriguez
responded that he went back twice, viz, on
August 14, 1985 and October 7, 1985 (see also
passport, Exhibit 14). He testified that he left Los
Angeles on October 26, 1985 and, as per
certification issued by the Bureau of Immigration
(Exhibit 2), arrived in the Philippines on the same
date. From that time, Rodriguez never returned to
Los Angeles. After the conclusion of the oral
testimonies, the following documentary evidence
were offered by petitioner Rodriguez and were
admitted.
1. Civil Service Commission Form No. 1, Job
Description of Cipriano Farrales (Exhibit 1)
2. Certification from the Bureau of Immigration
(Exhibit 2)
3. Affidavit of Abraham Sarmiento (Exhibit 3 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
4. Affidavit of Aquino Pimentel, Jr. (Exhibit 4 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
5. Arrival and Departure Report of the Bureau of
Immigration (Exhibit 5 to 5-D, inclusive)
6. Affidavit of Agapito Aquino (Exhibit 6 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)
8. Affidavit of Roberto Avio (Exhibit 8)
9. Affidavit of Heberto Buenafe (Exhibit 9)
10. Affidavit of Jovito Salonga (Exhibit 10)
11. Affidavit of Augusto Sanchez (Exhibit 11)
12. Affidavit of Euclides Abcede (Exhibit 12)
13. Affidavit of Eduardo T. Rodriguez (Exhibit 13)
14. Xerox copy of Rodriguez's passport (Exhibit
14 with submarkings, 14-A to 14-D, inclusive)
Respondent Marquez submitted the following
documentary evidence:
1. Affidavit of Bienvenido Marquez (Exhibit E)
2. Affidavit of Mr. Casiano Pasumbal (Exhibit F)
3. Certificate of Death of Gloria Magayanes
Gener, mother-in-law of petitioner (Exhibit G) with
the alleged signature of Rodriguez as informant
(Exhibit G-1)
4. Certificate of Death of Imelda Gener
Rodriguez, spouse of petitioner (Exhibit H) with
the alleged signature of Rodriguez as informant
(Exhibit H-1)
As regards other documentary evidence offered,
the investigation report consisting of Exhibits I to
I-17 and J to J-87 which was sought admission
by respondent Marquez, was excluded by the
presiding Commissioner because of irrelevancy
to the purpose for which it was offered. The
undersigned so ruled due to respondent's failure
 to identify the nexus between the documents
sought to be admitted and the inference that in
view of the same, petitioner would have known of
the imminent filing of charges against him.29
From the "Discussion" portion of its report, it would
appear to me that the COMELEC, like the majority of
my colleagues, proceeded under the impression that
the Court in G.R. No. 112889 had considered intent to
evade the law to be a material element in the
definition of "fugitive from justice." The COMELEC
understandably thereby felt compelled to conclude
that petitioner, there being no clear evidence of any
intention on his part to evade the law at the time he
left the United States, was not a fugitive from justice.
However, as heretofore so pointed out, the sole and
basic issue in G.R. No. 112889 was whether or not a
conviction by final judgment of the person at large
was essential before he could be considered a
fugitive from justice. That question clearly arose when
the Oversight Committee which was convened by the
President, conformably with Section 533 of Republic
Act 7160, to formulate the appropriate rules and
regulations necessary for the efficient and effective
implementation of the provisions of the Local
Government Code, came out with its Article 73 that
provided:
Art. 73. Disqualifications. — The following
persons shall be disqualified from running for any
elective local position;
 (a) xxx xxx xxx
(e) Fugitives from justice in criminal or non-
political cases here or abroad. Fugitive from
justice refers to a person who has been convicted
by final judgment. (Emphasis supplied).
The court in G.R. No. 112889 naturally opined that
the above provision "to the extent that it confine(d) the
term fugitive from justice to refer only to a person (the
fugitive) . . . convicted by final judgment (was) an
inordinate and undue circumscription of the law." The
Court had to likewise concede to the Solicitor General
when he then said that the term "includes not only
those who flee after conviction to avoid punishment
but likewise those who, after being charged, flee to
avoid prosecution" for, certainly, the statement was
not incorrect. But what indeed, could be perplexing
was how it could be possible for the Court's ruling in
G.R. No. 112889 to be so misconstrued as to
supposedly convey any idea of exclusivity or
preclusivity that, to begin with, was not even
considered at the time.
There should be nothing erroneous, in my view, when
COMELEC did ultimately come up with its own
concluding observation that "the mere fact that there
are pending charges in the United States and that
petitioner Rodriguez is in the Philippines make
petitioner a fugitive from justice."
And so I hold, in resume, as follows: That —
1. The filing with the COMELEC of the disqualification
case in SPA No. 95-089 was not an act of forum
shopping on the part of herein private respondent
Marquez.
2. Section 40(e) of the Local Government Code of
1991 did not partake of an ex post facto law or a bill of
attainder.
3. Section 40(e) of the Local Government Code, not
Section 72 of the Omnibus Election Code, should
govern.
4. The COMELEC did not abuse its discretion in
denying herein petitioner's motion for a suspension of
hearing in SPA Case No. 95-089 and in allowing
herein private respondent to present his evidence ex-
parte, considering its close proximity to the 1995
elections.
5. In consolidating EPC No. 92-28 (the quo warranto
case) and SPA No. 95-089 (the disqualification case),
the COMELEC acted in conformity with its Rules of
Procedure.
6. Given the factual settings and the circumstances, I
must conclude that petitioner is a "fugitive from
justice" within the intent and meaning of Section 40(e)
of the Local Government Code of 1991.
 WHEREFORE, I vote for the DISMISSAL of the
petition.
Narvasa, C.J., Padilla, Regalado, Davide, Jr. and
Mendoza, JJ., concur.

Separate Opinions
TORRES, JR., J.: concurring
Although I entertain no illusion of absolute certainty,
as to whether or not the petitioner in the above-
entitled case is a "fugitive from justice" within the
purview of Section 40 paragraph (e) of Republic Act
No. 7160 of the Local Government Code of 1991, and
which would result to a disqualification for any elective
local position, I, however, share the view of my
distinguished colleague, Mr. Justice Ricardo J.
Francisco, that petitioner Eduardo T. Rodriguez, is not
a "fugitive from justice."
Petitioner should not be considered disqualified or
ineligible from assuming and performing the functions
of Governor of Quezon Province.
Petitioner returned to the Philippines from the United
States on June 25, 1985 while the criminal complaint
against him for fraudulent insurance claims, grand
theft and attempted grand theft of personal property
before the Municipal Court of Los Angeles, California
was filed almost 5 months later, or on November 12,
1985. Verily, it cannot be said that he fled to avoid
prosecution for at the time he left the United States,
there was yet no case or prosecution to avoid. It
would not be reasonable to assume that he returned
to the Philippines aware that he has committed some
transgressions of law or that he was anticipating the
filing of the complaint. To assume that he was not
unaware of his own prior misdeeds is tantamount to
presuming his guilt.
That petitioner did not know of the imminent filing of
charges against him and that he did not flee to avoid
prosecution are bolstered by the facts that: 1.) he
returned to the United States twice: on August 14 and
October 7 of the same year but arrived in the
Philippines on October 26 likewise in the same year;
2.) he left his wife in the United States; and 3.) his
wife was later on arrested for the same charges. Had
petitioner been aware of the imminent filing of
charges against him, he would never have returned to
the United States and he would not have left his wife
in there.
Petitioner is a citizen of this country. Why should he
not come home? Coming home to the Philippines was
the most natural act of the petitioner, who happens to
maintain his residence in the country. The fact that he
remains here even after he was formally accused
cannot be construed as an indication of an intent to
flee, there being no compelling reason for him to go to
the United States and face his accusers. On the
contrary, it is his official duty, as an incumbent
Governor of Quezon, to remain in the country and
perform his duties as the duly elected public official.
In her report entitled "Evidence of the Parties and
Commission's Evaluation," Commissioner Teresita
Dy-Liacco Flores aptly pointed out:
. . . When, in good faith, a person leaves the
territory of a state not his own, homeward bound,
and learns subsequently of charges filed against
him while in the relative peace and service of his
own country, the fact that he does not subject
himself to the jurisdiction of the former state does
not qualify him outright as a fugitive from justice.
The severity of the law construed in the manner
as to require of a person that he subject himself
to the jurisdiction of another state while already in
his country or else be disqualified from office, is
more apparent when applied in petitioner's case.
The criminal process of the United States
extends only within its territorial jurisdiction. That
petitioner has already left said country when the
latter sought to subject him to its criminal process
is hardly petitioner's fault. In the absence of an
intent to evade the laws of the United States,
petitioner had every right to depart therefrom at
the precise time that he did and to return to the
Philippines. No justifiable reasons existed to
 curtail or fetter petitioner's exercise of his right to
leave the United States and return home. Hence,
sustaining the contrary proposition would be to
unduly burden and punish petitioner for
exercising a right as he cannot be faulted for the
circumstances that brought him within Philippine
territory at the time he was sought to be placed
under arrest and to answer for charges filed
against him.
Granting, as the evidence warrants, that
petitioner Rodriguez came to know of the
charges only later, and under his circumstances,
is there a law that requires petitioner to travel to
the United States and subject himself to the
monetary burden and tedious process of
defending himself before the country's courts?1
This Court cannot be oblivious of the fact that the
provision disqualifying fugitives from justice in criminal
or non-political cases here or abroad was allegedly
tailored to affect petitioner. The provision is short of
saying that Eduardo Rodriguez is disqualified. As I
trace the legislative history of the subject provision, I
find that the principal sponsor of the Local
Government Code, Aquilino O. Pimentel, Jr., then a
Senator and Chaiman of the Senate Committee on
Local Government commented on this, in his book
"The Local Government Code of 1991," thus:
 5. Fugitives Disqualified. Persons fleeing from
local or foreign justice in criminal or non-political
cases are likewise disqualified from local
government elective positions. This particular
disqualification was a House of Representatives
innovation. This was a "camaraderie" provision
proposed by the House because a congressman
of a southern Tagalog province had intended to
run for governor against an incumbent who had
reportedly fled from U.S. justice.2 (Emphasis
supplied)
To borrow the language of former Chief Justice Moran
in his dissent in Torres vs. Tan Chim, 69 Phil. 518,
535:
. . . when this Court continues to uphold a ruling
known to be erroneous, with no plausible excuse
therefor but public acquiescence therein, it may
soon find itself compelled to make more mistakes
in an effort to justify the previous ones. We may
thus be building one error upon another until, by
their accumulation, we shall come to a point
when going further would be perilous and turning
backward impossible.
The rule in favor of private respondent is to license a
wrongdoing to succeed and injustice to prevail. In
applying a law, the facts and circumstances obtaining
in the particular case must be taken into
consideration. In the case at bar, the following
circumstances must be taken into consideration: that
petitioner was not aware of the imminent filing of
charges against him; the same was filed after he has
returned home; it is impractical and unjust to require
petitioner to subject himself to the jurisdiction of the
United States while already in this country or else be
disqualified from office; and that the subject provision
appears to have been a 'camaraderie provision'
proposed by the House for the sake of private
respondent who was then a Congressman.
In Marquez vs. COMELEC (243 SCRA 538), this
court held that: Art. 73 of the Rules and Regulations
Implementing the Local Government Code of 1991 is
an inordinate and undue circumscription of the law, to
the extent that it confines the term "fugitive from
justice" to refer only to a person (the fugitive) "who
has been convicted by final judgment." Said ruling
notwithstanding, the court must not insist that
petitioner is still a fugitive by the mere fact that there
are pending charges against the petitioner in the
United States and that petitioner Rodriguez is in the
Philippines.
It was Justice Oliver Wendel Holmes who said that —
A word is not a crystal, transparent and
unchanged, it is the skin of a living thought and
may vary greatly in color and content according
to the circumstances and the time in which it is
used.3
"Fugitive from justice" must be given a meaning in the
instant case having regard to "the circumstances and
the time it is used." Philosophers and jurists have tried
unsuccessfully at an exact definition of such an
abstruse term as justice. Unfortunately, whether in the
metaphysical sense or otherwise, the question of
justice is still unanswered as it ever was albeit
characterized by secular skepticism. If the question is
asked: What standard of justice should we enforce?
The American sense of justice or the Philippine sense
of justice? Undoubtedly, the forum in which it is raised
should be controlling. By way only of hypothesis, if an
American flees to escape from Philippine Laws to the
United States, may we enforce in the United States
our standard of justice based on Philippine Laws? I
am tempted to ask these questions considering our
zealousness to solve legal problems in the light of
laws obtaining in the United States.
At any rate, an accused charged with a crime in the
Philippines cannot be a candidate and at the same
time flee from prosecution. Once he goes
campaigning his opponent would have him arrested.
For this and the reasons above discussed, the
provision on disqualification of fugitive from justice,
being unnecessary and serving only to undermine
one's constitutional right to equal access to
opportunities for public service,4 should even be
scantily considered.
Finally, petitioner appears to have garnered 285,202
votes. According to the election results, petitioner won
over private respondent by a majority of 140,000
votes more or less. As it is, to disqualify petitioner on
the shaky ground of being a "fugitive from justice"
would amount to disenfranchising the electorate in
whom sovereignty resides.5
Learned Hand, had this to say:
Hand preached that the security of liberty was too
important to be left entirely to the judges: "(I)t is
the voters, speaking through their delegates, who
have the final word and the final responsibility;
and . . . in the end it is they and they alone who
can and will preserve our liberties, if preserved
they are to be."6
This is a populist judicial response.
Thus, where a candidate has received popular
mandate, overwhelmingly and clearly expressed, all
possible doubts should be resolved in favor of the
candidate's eligibility, for to rule otherwise is to defeat
the will of the people.7 Above and beyond all, the
determination of the true will of the electorate should
be paramount. It is their voice, not ours or of anyone
else, that must prevail. This, in essence, is the
democracy we continue to hold sacred.8
I vote to grant the petition.
VITUG, J.: dissenting
Let me not, in writing this dissenting opinion, be so
misunderstood as stating that I am opposed to the
doctrine of stare decisis et non quieta movere or to
the consequences of the rule on the "law of the case,"
let alone to create, to borrow the phrase used by the
majority, "instability in our jurisprudence." But what I
would really dread is when I might, wittingly or
unwittingly, misconceive the pronouncements made
by the Court, or worse, be completely out of context
therefrom. I should also like to point out that the
dissent in no way necessarily implies an acceptance
on the sapience of the law here in question; I realize
that the Court has no prerogative to either sustain or
reject a law on that basis alone.
I find it helpful to first narrate the antecedents of the
case now before us.
For some time now, Eduardo Rodriguez and
Bienvenido Marquez, Jr., have been at loggerheads
on the issue of whether or not Rodriguez is a "fugitive
from justice" and thereby disqualified under the law to
run for, or to hold on to, an elective local office. The
contenders have for the fourth time1 pleaded for the
intervention of this Court.
This time, in a special civil action for certiorari, with a
prayer for the issuance of a writ of preliminary
mandatory/prohibitory injunction, Rodriguez seeks the
annulment of the 07th and 11th May 1995 resolutions
(infra) of the Commission on Elections ("COMELEC").
There being other matters that have come up during
the pendency of this petition, Rodriguez has now also
moved for the admission of his supplemental petition
and a second supplemental petition to call attention to
certain developments, including a 23rd June 1995
resolution of the COMELEC which he now likewise
assails.
The various settings that led to the promulgation by
the COMELEC of its assailed resolutions might be
condensed thusly:
Rodriguez, the proclaimed Governor of Quezon
Province after the May 1992 elections, was named
respondent by Marquez, a defeated candidate for the
same post, in a quo warranto petition, docketed EPC
No. 92-28 (hereinafter so referred to as the quo
warranto case), instituted before the COMELEC.
Rodriguez was said to be a fugitive from justice and
thereby disqualified under Section 40(e) of the Local
Government Code from holding on to the elective
local office. The COMELEC dismissed the petition for
quo warrant on the ground that petitioner had not
been convicted by final judgment. Private respondent
thereupon filed a petition for certiorari with this Court
(docketed G.R. No. 112889).2
On 15 March 1995 (while G.R. No. 112889 was still
then pending consideration by the Court), Marquez
and Rodriguez filed their respective certificates of
candidacy, this time for the May 1995 elections, for
the governorship of Quezon. Upon learning of the re-
election bid of Rodriguez, Marquez lost no time in
filing (on 11 April 1995) with the COMELEC a petition
to disqualify Rodriguez and for the cancellation of the
latter's certificate of candidacy. Docketed SPA No. 95-
089 (hereinafter so referred to as the disqualification
case), the petition was assigned to the Second
Division of the COMELEC. Marquez disclosed to the
COMELEC the pendency of G.R. No. 112889 but
explained that the two cases were different in that
G.R. No. 112889 had sought to oust petitioner from
office for the term 1992-1995 while SPA No. 95-089
was aimed at disqualifying petitioner from running for
a new term (1995-1998). Rodriguez was summoned
by the Second Division of the COMELEC and
required to file his answer to the petition. The
disqualification case was set for hearing on 25 April
1995.
Meanwhile, on 18 April 1995, this Court rendered a
decision in G.R. No. 112889 reversing and setting
aside the resolution of the COMELEC which
dismissed the petition for quo warranto and directed
the COMELEC "to proceed and resolved the case
with dispatch." On even date, Rodriguez filed with his
Court in G.R. No. 112889 an "Urgent Manifestation
and Motion" for the dismissal of G.R. No. 112889
asseverating that the filing of SPA No. 95-089 meant
forum-shopping on the part of Marquez.
Unaware (presumably) of the 18th April 1995 decision
of this Court, Rodriguez filed, on 21 April 1995, with
the COMELEC (Second Division) in the
disqualification case (SPA No. 95-089) a "Motion to
Nullify Summons and to Reconsider Notice of
Hearing" praying for the dismissal of the case in view
of the pendency with this Court of G.R. No. 112889.
He filed an "Answer Ex-Abundante Cautela" claiming,
among other things, that he was already in the
Philippines at the time the complaint was filed against
him in Los Angeles, California. In three separate
pleadings, Rodriguez insisted on the nullification of
the summons, the reconsideration of the notice of
hearing and the dismissal of SPA No. 95-089.
The scheduled 25th April 1995 hearing on the
disqualification case was re-set to 26 April 1995. Still
claiming to be incognizant of this Court's decision in
G.R. No. 112889, Rodriguez filed, on 25 April 1995,
an urgent motion for the issuance of a writ of
preliminary injunction to restrain the COMELEC from
hearing SPA No. 95-089, arguing that, since SPA No.
95-089 was also based on the facts as those that
related to G.R. No. 112889, its filing constituted
forum-shopping and could pre-empt G.R. No. 112889.
The hearing on the disqualification case (SPA No. 95-
089), re-scheduled for 26 April 1995 by the Second
Division of the COMELEC,3 went through. Rodriguez
moved to suspend the proceedings so citing, as the
ground therefor, his urgent motion for preliminary
injunction in G.R. No. 112889. The COMELEC
(Second Division), however, denied his motion, as
well as his subsequent motion for time to file a motion
for reconsideration, because of the proximity of the
elections. Failing to have the proceedings held in
abeyance, Rodriguez walked out of the hearing.
Marquez then submitted and offered in evidence the
authenticated copies of the felony complaint and
warrant of arrest against Rodriguez issued on 12
November 1985, by the Municipal Court of Los
Angeles Judicial District, Country of Los Angeles,
State of California, U.S.A., and some other records of
said court.
On 27 April 1995, it might be mentioned
parenthetically, Rodriguez moved for the
reconsideration of this Court's decision of 18 April
1995 in G.R. No. 112889.
It was now the turn of Rodriguez to file with this Court
a petition for certiorari, prohibition, and mandamus.
The petition, entitled "Eduardo T. Rodriguez vs.
Commission on Elections, et.al.," and docketed G.R.
No. 119807, asked the Court to enjoin the COMELEC
from proceeding with SPA No. 95-089. The petition
was dismissed by the Court, in its 04 May 1995
minute resolution, since it found no grave abuse of
discretion on the part of the COMELEC.
Meanwhile, in G.R. No. 112889, Rodriguez filed an
"Urgent Motion to Admit Additional Argument in
Support of the Motion for Reconsideration" attaching
thereto a certification from the Commission on
Immigration purporting to show that he had left the
United States on 25 June 1985 before the felony
complaint against him was instituted before the Los
Angeles court. The following day, or on 03 May 1995,
he also filed with the COMELEC (Second Division), a
"Motion to Admit Position Paper Ex Abundante
Cautela Showing that Respondent is Not a Fugitive
From Justice As Defined in the Supreme Court
Decision of April 18, 1995 in G.R. No. 112889,"
arguing that the decision in G.R. No. 112889 would
not apply to him because he arrived in the Philippines
five (5) months before the filing of the felony charges
against him. The COMELEC (Second Division), in its
06 May 1995 resolution, denied the motion.
On 07 May 1995, or one day before the scheduled
1995 elections, the COMELEC promulgated its first
assailed consolidated resolution in EPC No. 92-28
and SPA No. 95-089 which read:
WHEREFORE, considering that respondent
(Eduardo Rodriguez) has been proven to be
fugitive from justice, he is hereby ordered
disqualified or ineligible from assuming and
 performing the functions of Governor of Quezon
Province. Respondent is ordered to immediately
vacate said office. Further, he is hereby
disqualified from running for Governor for
Quezon Province in the May 8, 1995 elections.
Lastly, his certificate of candidacy for the May 8,
1995 elections is hereby set
aside.4 (Emphasis supplied)
On 10 and 11 May 1995, Marquez filed urgent
motions to suspend the proclamation of Rodriguez.
The COMELEC favorably acted on the motions as it
so issued, on 11 May 1995, a resolution where it ruled
to suspend, among other candidates, the
proclamation of Rodriguez who was ordered
disqualified in SPA No. 95-089. Notwithstanding the
11th May 1995 resolution, however, Rodriguez, who
would appear to have garnered 285,202 votes, was
proclaimed winner on 12 May 1995 by the Provincial
Board of Canvassers of Quezon. On 22 May 1995,
Marquez went to the COMELEC and filed in SPA No.
95-089 and EPC No. 92-28 an "Omnibus Motion to
Annul the Proclamation of Rodriguez, to Proclaim
Marquez and to cite the Provincial Board of
Canvassers in Contempt."
On 16 May 1995, Rodriguez filed the present petition
for certiorari captioned: "For: REVIEW OF EPC No.
92-28 and SPA No. 95-089 of the Commission on
Elections and for NULLIFICATION OF COMELEC
Resolution dated 11 May 1995 with a prayer for the
issuance of a WRIT OF PRELIMINARY
MANDATORY/PROHIBITORY INJUNCTION." an
urgent motion to admit a supplemental petition was
filed on 18 May 1995 by petitioner stating that he had
been furnished with a copy of a certificate of canvass
of votes and of his proclamation by the Provincial
Board of Canvassers. On 29 May 1995, Rodriguez
thereupon renewed his prayer, through a motion, for
the issuance of a temporary restraining order and to
declare the COMELEC and Marquez in contempt of
court.
Back to the omnibus motion of Marquez in SPA No.
95-089 and EPC No. 92-28, the COMELEC, in its
23rd June 1995 resolution, annulled and set aside the
proclamation of Rodriguez for being null and void ab
initio. It also gave the Vice-Chairman and Member-
Secretary of the Provincial Board of Canvassers of
Quezon Province ten (10) days within which to
explain why they should not be cited in contempt for
disobedience or resistance to the lawful order of the
COMELEC particularly its "order to suspend
proclamation." On the motion seeking the
proclamation of Marquez, the COMELEC chose to
have the matter considered by it only "once the
Supreme Court (would have) resolved the case of
Eduardo T. Rodriguez v. COMELEC (in), G.R. No.
120099" (the instant petition). This action by the
COMELEC prompted Rodriguez to file his motion to
admit a second supplemental petition in order to
include the 23rd June 1995 resolution, in addition to
the 07th and 11th May resolutions, of the COMELEC,
among the disputed issuances.
Petitioner submits several reasons for the allowance
and grant of his petition.
Rodriguez contends that the COMELEC should not
have entertained the disqualification case (SPA No.
95-089) for being an act of "forum-shopping" on the
part of Marquez. Clearly, there is no merit in this
submission. The general statement of the prohibition
against forum-shopping is that a party should not be
allowed to pursue on the same subject matter
simultaneous remedies in two or more different fora5
that can tend to degrade the administration of justice
by thusly trifling with the courts and abusing their
processes.6 Forum-shopping exists where the actions
are of the same nature and involve identical
transactions, circumstances, and issues between the
same parties.7 While there is identity in many
respects between SPA No. 95-089 and EPC No. 92-
28, the two cases, however, greatly differ in their main
aspects. EPC No. 92-28 (subject case of G.R. No.
112889) is a quo warranto case and involves
petitioner's gubernatorial incumbency for the term
1992-1995 while SPA No. 95-089 is a disqualification
case involving his candidacy for the 1995 local
elections.
Rodriguez argues that should Section 40(e) of the
Local Government Code of 1991 be applied to him, it
would partake the nature of an ex post
facto8 law or a bill of attainder.9 These terms have
settled meanings in criminal law jurisprudence that
clearly have no relevance to the case before us.
Besides, the Local Government Code took effect on
01 January 1992, and thus its application to
Rodriguez in his gubernatorial incumbency that
started in mid-1992 and his candidacy for the 1995
elections cannot be deemed to be retrospective in
character.
Petitioner claims that the COMELEC did not have
jurisdiction to issue the questioned resolution on the
eve of the election because the Omnibus Election
Code requires that final decisions in disqualification
cases should be rendered not later than seven (7)
days before the election. Section 72 of the Omnibus
Election Code, that petitioner refers to, provides:
Sec. 72. Effects of disqualification cases and
priority. — The Commission and the courts shall
give priority to cases of disqualification by reason
of violation of this Act to the end that a final
decision shall be rendered not later than seven
days before the election in which the
disqualification is sought. (Emphasis supplied).
The instant case calls for the governance not of the
Omnibus Election Code but of the Local Government
Code (specifically Section 40[e] thereof). In any case,
the "seven days" stated in the law, being evidently
intended for administrative feasibility, should be
construed as a mere directory, rather than as a
mandatory, provision of the Omnibus Election Code.
A provision should be deemed to be directory only
when to have it enforced strictly may cause more
harm than by disregarding it.10
The next question posed was whether or not the
COMELEC gravely abused its discretion when, in the
scheduled hearing of 26 April 1995, it refused to grant
the motion of Rodriguez for a suspension of hearing.
Far from it, the denial by COMELEC would appear to
have been both prudent and legally warranted. The
motion was grounded on the pendency of G.R. No.
112889 (the quo warranto case), whereas, the 26th
April 1995 hearing related to the disqualification case
(SPA 95-089) for the 1995 election that undoubtedly
had to be resolved quickly. The COMELEC hardly
had any choice but to proceed with the hearing and,
when Rodriguez thereupon walked out, Marquez was
naturally allowed to present his evidence ex-parte.
Perhaps realizing that the COMELEC had acted
correctly, petitioner would question the holding of the
26th April 1995 hearing by only one member
(Commissioner Teresita Flores) of the Second
Division. 11 Not only was this matter not timely
brought up before the COMELEC, but that there
would appear to be no problem in the delegation by
the COMELEC of the mere reception of evidence to
any one of its members. All the assailed resolutions of
COMELEC would indicate that the required
concurrence of the Commissioners was given.
The subsequent consolidation of the quo warranto
case with that of the disqualification case (following
our 18th April 1995 decision remanding the case to
COMELEC), and the promulgation of the 07th May
1995 consolidated resolution, would also seem to be
in conformity with Rule 3, Section 9, of the COMELEC
Rules of Procedure, which reads:
Sec. 9. Consolidation of cases. — When an
action or proceeding involves a question of law
and fact which is similar to or common with that
of another action or proceeding, the same may
be consolidated with the action or proceeding
bearing the lower docket number.
Moreover, a further hearing on the quo warranto case
so involving, as it does, petitioner's now expire
incumbency, would be unnecessary and a futile effort.
The pivotal issue then is whether or not petitioner falls
under the term "fugitive from justice" but, unlike it
precursor case in G.R. No. 112889 which has been
confined to the question of whether or not a conviction
by final judgment of a person at large is essential
before he can be considered a "fugitive from
justice,"12 this time, however, the Court is asked to
pass upon petitioner's assertion that he cannot be
considered a "fugitive from justice" since he already
has been in the Philippines months prior to the filing
of the charges against him before the United States
court in November 1985. He cites a certification from
the Commission of Immigration of his arrival in the
country on 25 June 1985.
The Solicitor-General, on his part, maintains that the
evidence presented by Marquez is still wanting. He
states that the evidence thus far submitted would only
show —
(1) that ten (10) charges of presenting fraudulent
insurance claims, grand theft of personal
property, and attempted grand theft of personal
property were filed against petitioner before the
Municipal Court of the Country of Los Angeles,
State of California, U.S.A., in November, 1985;
(2) that on November 12, 1985, a warrant of
arrest was issued against petitioner; and
(3) that petitioner's wife, Imelda Gener
Rodriguez, was arrested for the same charges on
November 6, 1985.13
which, collectively, would appear to be "too
insubstantial" and inadequate to establish that
Rodriguez has, in fact, fled to avoid prosecution. He
opines that—
 . . . The COMELEC can not simply ignore the fact
that the then Bureau of Immigration had issued a
certification that on June 25, 1985, petitioner
returned to the Philippines from the United
States. This certification is already on record,
having been submitted by petitioner ex
abundante cautela following COMELEC's refusal
to consider the same because of petitioner's
walkout from the hearing on April 26, 1995.
According to the election results, petitioner won
over private respondent by a majority of 140,000
votes more or less. This manifestation of the
People's will can not just be ignored without
conducting a thorough hearing to determine
whether the person they had overwhelmingly
voted for is really disqualified from presenting
himself to them for election.14
I thus perceive the Solicitor General as now also
saying that an intention to evade punishment or
prosecution is an element of term "fugitive from
justice."
Verily, there is a dearth of authorities on the proper and
legal connotation of the phrase "fugitive from justice."
Neither the law (Republic Act. 7160, also known as the
Local Government Code)15 here in question nor the
deliberations in Congress give much clue to the legislative
intent. The phrase has been used in various contexts
although it is in extradition cases where it appears to
have acquired a prevalent usage. One leading situation
was that of Roberts vs. Reilly,16 decided by the United
States Supreme Court, which involved the application of
Article 4, Section 2, of the United States Constitution17
and Section 527818 of the Revised Statutes of the United
States implementing the Constitutional provision. William
Roberts was indicted for grand larceny in the first degree
in the State of New York. He was subsequently held in the
State of Georgia by Philip Reilly, who claimed to be an
agent of the State of New York and acting by virtue of an
executive warrant issued by the Governor of Georgia on a
requisition from the Governor of New York, reciting that
Roberts had been indicted in the State of New York and
was a fugitive from justice of the latter State. In
considering the specific question on whether or not the
person demanded was a fugitive from justice, the tribunal
held:
To be (regarded) a fugitive from justice, . . . , it is
not necessary that the party charged should have
left the State in which the crime is alleged to have
been committed, after an indictment found, or for
the purpose of avoiding a prosecution anticipated
or begun, but simply that, having within a State
committed that which by its laws constitutes a
crime, when he is sought to be subjected to its
criminal process to answer for his offense, he has
left its jurisdiction and is found within the territory
of another.
The ruling was repeated in Appleyard v.
Massachusetts,19 itself to be later reiterated in a
number of other cases,20 where Arthur Appleyard
was indicted for the crime of grand larceny, first
degree, alleged to have been committed in the
country of Erie, New York. Although a warranto for his
arrest was issued, Appleyard was not apprehended
because he had moved out from that State. He was
eventually arrested by virtue of a warrant issued by
the Governor of Massachusetts. Appleyard then
applied for a write of habeas corpus to the supreme
judicial council of Massachusetts which, after hearing,
denied the application. He, again, applied to the
Circuit Court of the United States for a writ of habeas
corpus which effort likewise proved futile. Appleyard
interposed an appeal to the U.S. Supreme Court. He
restated his previous contention before the lower
courts that he could not be deemed to be a fugitive
from justice because he was unaware when leaving
New York that he had at any time violated its criminal
laws. That Court held:

. . . This contention cannot be sustained; indeed,

it could not be sustained without materially
impairing the efficacy of the constitutional and
statutory provisions relating to fugitives from
justice. An alleged fugitive may believe that he
has not committed any crime against the laws of
the state in which he is indicted, and yet,
according to the laws of such state, as
administered by its judicial tribunals, he may
have done so, and his belief or want of belief may
be without foundation in law. It is the province of
the courts of New York to declare what its laws
are, and to determine whether particular acts on
the part of an alleged offender constitute a crime
under such laws. The constitutional provision that
a person charged with crime against the laws of a
state, and who flees from its justice, must be
delivered upon on proper demand, is sufficiently
comprehensive to embrace any offense,
whatever its nature, which the state, consistently
with the Constitution and laws of the United
States, may have made a crime against its laws.
Kentucky v. Dennison, 24 How: 66, 69, 16 L. ed.
717; Ex parte Reggel, 114 U.S. 642, 650, 29 L.
ed. 250, 252, 5 Sup. Ct. Rep. 1148. So that the
simple inquiry must be whether the person whose
surrender is demanded is in fact a fugitive from
justice, not whether he consciously fled from
justice in order to avoid prosecution for the crime
with which he is charged by the demanding state.
A person charged by indictment or by affidavit
before a magistrate with the commission within a
state of a crime covered by its laws, and who,
after the date of the commission of such crime,
leaves the state, — no matter for what purpose or
with what motive, nor under what belief, —
becomes, from the time of such leaving, and
 within the meaning of the Constitution and the
laws of the United States, a fugitive from justice, .
..
Most U.S. State courts would appear to be similarly
minded.21
The rulings heretofore cited cannot be here
controlling, of course, and divergent views can still be
expressed on the precise import of the phrase
"fugitive from justice." It is evident enough though, in
my view, that Congress, not having provided
otherwise, must have intended the ordinary
connotation of the term to prevail. So taken, it might
be understood as referring to one who, having
committed or being accused of having committed a
crime in one jurisdiction, cannot be found therein22 or
is absent for any reason from that jurisdiction23 that
thereby forestalls criminal justice from taking its due
course. The issue is largely a factual matter and in
that determination, the motive or reason for his plight
need not be inquired to. Animus fugere may be
significant but it is not essential and what matters in
not why he leaves but the fact that he leaves, for it
should not be unreasonable to assume that he was
not unaware of his own prior deeds or misdeeds. As
so conceptualized, the import of the term is more
congruent than variant with what has heretofore been
essayed to be, in fact, its common usage. Indeed,
unlike the U.S. courts which are yet detained by the
conditions expressed in both their fundamental and
statutory laws, the pertinent provision of our own
Local Government Code contains no further
circumscription other than by its bare and simple
mandate that a "fugitive from justice in criminal or
non-political cases here or abroad" shall be
"disqualified from running for any elective local
position."24 The law has provided no further provisos
and no saving clauses. When there is no obscurity or
ambiguity in an enabling law, it must, we have said in
the related case of Marquez vs.
Comelec,25 be merely made to apply as it is so
written. This Court is not at liberty either to question
the wisdom of the law, let alone to detract from it, or
to itself legislate material parameters when there are
none that statutorily exist.
I now come to the final question of whether or not
substantial evidence has been adduced to support the
factual findings of the COMELEC and, corollarily,
whether or not petitioner has been duly accorded full
opportunity to present before the COMELEC his own
evidence to disprove the assertions of private
respondent.
It may be recalled that, following the denial of the
motion of Rodriguez to postpone the scheduled 26th
April 1995 hearing, the COMELEC continued,
because of the proximity of the May 1995 elections,
with its reception of the evidence (despite the walk-
out thereupon staged by Rodriguez and his counsel).
Duly received in evidence included an authenticated
copy of the warrant of arrest, dated 12 November
1985, on respondent (Exh. A-2) issued by the
Municipal Court of the Country of Los Angeles, State
of California, U.S.A., in connection with a criminal
complaint filed against him in Criminal Case No.
A774567, entitled "People of the State vs. Imelda O.
Rodriguez and Eduardo T. Rodriguez for the crimes
of presenting Fraudulent Insurance Claims, Grand
Theft of Personal Property and Attempted Grand
Theft of Personal Property," and an authenticated
copy of the felony complaint (Exh. A-10 to A-15
inclusive), showing that the respondent was charged
criminally on ten (10) counts. Concluding on the
documentary evidence adduced before it, the
COMELEC said:
The authenticated documents submitted by
petitioner to show the pendency of a criminal
complaint against the respondent in the Municipal
Court of Los Angeles, California, U.S.A., and the
fact that there is an outstanding warrant against
him amply proves petitioner's contention that the
respondent is a fugitive from justice.26
The petitioner and his counsel walked out from the
proceedings. Certainly, the thesis that petitioner was
denied due process would be totally unacceptable; he
himself brushed it aside. But while there might be no
sympathy for his action that ordinarily should have
prevented him from any further opportunity, the Court,
nevertheless, aptly recognized that the controversy
was solely not between the private parties herein, but
one imbued with public interest, involving no less than
the highest office in the province of Quezon and so,
inevitably, a concern also of its people. Accordingly,
the Court, besides having set the case for the
reception of oral argument on 13 July 1995, likewise
passed, on 24 October 1995, the following resolution;
thus —
Deliberating on the special civil action for
certiorari with prayer for preliminary injunction
and restraining order, along with the comment
thereon filed by the Solicitor General, as well as
the other subsequent pleadings submitted by the
parties in support of their respective submissions,
and considering, further, the oral argument of the
parties during the 13th July 1995 hearing of this
case, the Court RESOLVED to DIRECT the
Chairman of the Commission on Elections
("COMELEC") to designate a Commissioner or a
ranking official of the COMELEC to RECEIVE
AND EVALUATE such legally admissible
evidence as herein petitioner Eduardo Rodriguez
may be minded to present by way of refuting the
evidence heretofore submitted by private
respondent Bienvenido Marquez, Sr., or that
which can tend to establish petitioner's contention
that he does not fall within the legal concept of a
"fugitive from justice." Private respondent
Marquez may likewise, if he so desires, introduce
 additional and admissible evidence in support of
his own position. The provisions of Sections 3 to
10, Rule 33, of the Rules of Court may be applied
in the reception of the evidence. The Chairman of
the COMELEC shall have the proceedings
completed and the corresponding report
submitted to this Court within thirty (30) days
from notice hereof.27
While it may generally be said that the possible
outcome or truth of an indictment need not
necessarily be an issue in ascertaining whether or not
one is a fugitive from justice, when, however, the
accusation is lodged with and an arrest is ordered by
a foreign court or agency we might also assure
ourselves as a matter of principle that, in the process
of sanctioning in effect an act of a foreign
government, we do not thereby abandon our own
basic sense of equity and fair play. There cannot thus
be any serious doubt that, when assailed or in doubt,
the courts are free to look into, and receive evidence
on, the legitimacy and regularity of the proceedings in
that foreign jurisdiction.
In the report submitted by the Commission on
Elections,28 entitled "Evidence of the Parties and
Commission's Evaluation," received by the Court on
26 December 1995, the matters adduced by petitioner
focused on what had already been asseverated in his
petition, i.e., that he was already in the Philippines
prior to the filing of the charges against him before the
United States court in November of 1985 and that his
return to the country was not intended to avoid
prosecution. Neither party brought up any question on
the legitimacy and regularity of the proceedings
before the foreign court that led to the issuance of the
warrants of arrest. I quote the pertinent portions of the
report:
EVIDENCE
Petitioner Rodriguez presented the following
witnesses:
1. Atty. Cipriano Farrales, Legal Officer of the
Bureau of Immigration and Deportation
2. Menardo Manglo
3. Former Supreme Court Justice Abraham
Sarmiento
4. Ex-Senator Aquilino Pimentel, Jr.
5. Ex-Senator Agapito Aquino
6. Atty. Geronimo Reyes, Jr.
7. Atty. Roberto Avio
8. Mr. Heberto Buenafe
9. Former Senate President Jovito Salonga
10. Former Secretary of the Department of Labor
and Employment Augusto Sanchez
11. Mr. Euclides Abcede, and
12. Eduardo Rodriguez
The testimonies of Former Supreme Court
Justice Abraham Sarmiento, former Senator
Aquilino Pimentel, Jr., former Senator Agapito
Aquino, Former Labor Secretary Augusto
Sanchez and former Senator Jovito Salonga
collectively emphasized that petitioner Eduardo
Rodriguez was one of the active participants in
the political movement against the late President
Ferdinand E. Marcos. They went to Hongkong on
August 9, 1985 as a group, together with
petitioner Eduardo Rodriguez, in order to meet a
political exile, Raul Daza, who had then a
pending warrant of arrest issued by a Regional
Trial Court of Quezon City. The purpose of the
trip was to provide Mr. Raul Daza, another
prominent opposition figure during the Marcos
regime, some form of protective company during
his return to the country on August 12, 1985. To
the political opposition then, it was a big event
that enjoyed media bash particularly in the
August 12, 1985 issue of the Bulletin Today and
in the August 19, 1985 issue of the Mr. and Ms.
Magazine.
Mr. Geronimo Reyes testified that he knows
petitioner Rodriguez as a co-exile from the
Marcos regime in Los Angeles, USA. Reyes was
the organizer and president of Wilshire Walking
Corp. composed of Filipino residents in Los
Angeles. Petitioner Rodriguez because a
member thereof. Rodriguez returned to the
Philippines about July 1985 and returned to Los
Angeles in August of the same year. That was
the last time they saw each other in the US.
Either on November 11 or 12, 1985, a certain
Johnny Reveche, brother-in-law of petitioner
Rodriguez, called him to the former's home at
Beard Ave., Northridge, California to discuss the
matter of the arrest and detention of Mrs. Imelda
Rodriguez, wife of petitioner Rodriguez, who had
just been bailed out. His assistance was
requested because he had been practicing law in
California. While Mr. Reyes, Imelda Rodrigues
and Mr. Reveche were discussing the case, Mr.
Reveche called Mr. Reyes to the phone where
the latter found out that Rodriguez was on the
other end calling him from the Philippines. The
caller requested Mr. Reyes to render all the
necessary assistance to Mrs. Rodriguez because
petitioner was unable to be with her as he was
then in the Philippines and deep in the political
campaign.
Atty. Roberto Avio, resident of Macalelon,
Quezon and former chairman of the United
Nationalists Democratic Organization (UNIDO),
Macalelon Chapter, testified that sometime in
May 1985, former Mayor Eduardo T. Rodriguez
returned from the United States and sent his
personal driver to witness' residence to inform the
latter that Rodriguez would be meeting him in the
first week of June 1985 at Macalelon, Quezon. In
the meeting held as scheduled, Rodriguez
intimated that he (Rodriguez) was tasked by Ex-
Senator Salonga to reactivate and reorganize the
Liberal Party in the Bondoc Peninsula area.
However, Atty. Avio declined Rodriguez's
invitation to join the reorganization as he was
then already committed to the UNIDO as the
local chairman. Rodriguez requested another
meeting after consulting with other former Liberal
Party stalwarts. Said meeting transpired on the
last week of July 1985 where Rodriguez, made
aware of the improbability of reactivating the
Liberal Party due to the affiliation of most of the
party's former members with the UNIDO,
expressed willingness to join the UNIDO.
Rodriguez took his oath of allegiance on October
1985. Thereafter, he actively participated in the
political campaigns of the UNIDO candidates in
the presidential snap elections and congressional
elections resulting in his appointment as OIC-
Board Member of the Sangguniang Panlalawigan
ng Quezon in 1986 and his election as Provincial
Governor of Quezon in 1988.
Heberto Buenafe's testimony corroborated these
allegations, specifically stating that sometime in
July and August of 1985, Buenafe has occasion
to meet Rodriguez and that in matters of party
dispute regarding the leadership of the UNIDO in
Lucena City, the latter was often consulted as he
(Rodriguez) was then designated as party
representative of the Liberal Party by Senator
Salonga immediately after his arrival in the
Philippines in May 1985. Likewise, Mr. Euclides
Abcede's testimony attested to the fact that in line
with his activities as an active opposition
campaigner, Abcede met Rodriguez in
Macalelon, Quezon sometime in June 1985.
Mr. Menardo Manglo is the arrival and departure
verifier of the Bureau of Immigration. He certified
the authenticity of the Bureau of Immigration
Arrival and Departure Reports of June 1985,
August 1985, August 1986, September 1986,
July 1987, June 1988, July 1989 and August
1990 (Exhibits 5 to 5-G, inclusive) wherein the
name Eduardo T. Rodriguez appears. On cross-
examination, witness testified that said exhibits
were computer print-outs supplied to the Bureau
of Immigration by the PAL Computer Center.
Atty. Cipriano Farrales, legal officer of the Bureau
of Immigration, testified that the certification
issued by the Bureau relative to the departure
and arrival of Rodriguez in the Philippines issued
by Commissioner Lopez was genuine and
authentic (Exhibits 1 and 2).
Herein petitioner Rodriguez' testimony denied the
allegation that he falls within the Supreme Court's
definition of a "fugitive from justice" which
includes "those who, after being charged, flee to
avoid prosecution." Specifically, Rodriguez
averred:
b) I arrived in the Philippines from the
United States of America on June 25,
1985, 6 months prior the filing of the
alleged charges against me on
November 12, 1985. Obviously, I did not
flee from the United States of America
to avoid prosecution. At the time that I
left the United States, there were no
charges against me. No warrant of
arrest has been issued against my
person. Under the facts, it could not be
said that I fled from the United States to
avoid prosecution. . . .
On the query as to whether or not he returned to
the United States between June 25, 1985 and
November 12, 1985, petitioner Rodriguez
responded that he went back twice, viz, on
August 14, 1985 and October 7, 1985 (see also
passport, Exhibit 14). He testified that he left Los
Angeles on October 26, 1985 and, as per
certification issued by the Bureau of Immigration
(Exhibit 2), arrived in the Philippines on the same
date. From that time, Rodriguez never returned to
Los Angeles. After the conclusion of the oral
testimonies, the following documentary evidence
were offered by petitioner Rodriguez and were
admitted.
1. Civil Service Commission Form No. 1, Job
Description of Cipriano Farrales (Exhibit 1)
2. Certification from the Bureau of Immigration
(Exhibit 2)
3. Affidavit of Abraham Sarmiento (Exhibit 3 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
4. Affidavit of Aquino Pimentel, Jr. (Exhibit 4 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
5. Arrival and Departure Report of the Bureau of
Immigration (Exhibit 5 to 5-D, inclusive)
6. Affidavit of Agapito Aquino (Exhibit 6 with
Annexes A and B, Bulletin Today and Mr. and
Ms. Magazine news reports)
7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)
8. Affidavit of Roberto Avio (Exhibit 8)
9. Affidavit of Heberto Buenafe (Exhibit 9)
10. Affidavit of Jovito Salonga (Exhibit 10)
11. Affidavit of Augusto Sanchez (Exhibit 11)
12. Affidavit of Euclides Abcede (Exhibit 12)
13. Affidavit of Eduardo T. Rodriguez (Exhibit 13)
14. Xerox copy of Rodriguez's passport (Exhibit
14 with submarkings, 14-A to 14-D, inclusive)
Respondent Marquez submitted the following
documentary evidence:
1. Affidavit of Bienvenido Marquez (Exhibit E)
2. Affidavit of Mr. Casiano Pasumbal (Exhibit F)
3. Certificate of Death of Gloria Magayanes
Gener, mother-in-law of petitioner (Exhibit G) with
the alleged signature of Rodriguez as informant
(Exhibit G-1)
4. Certificate of Death of Imelda Gener
Rodriguez, spouse of petitioner (Exhibit H) with
the alleged signature of Rodriguez as informant
(Exhibit H-1)
 As regards other documentary evidence offered,
the investigation report consisting of Exhibits I to
I-17 and J to J-87 which was sought admission
by respondent Marquez, was excluded by the
presiding Commissioner because of irrelevancy
to the purpose for which it was offered. The
undersigned so ruled due to respondent's failure
to identify the nexus between the documents
sought to be admitted and the inference that in
view of the same, petitioner would have known of
the imminent filing of charges against him.29
From the "Discussion" portion of its report, it would
appear to me that the COMELEC, like the majority of
my colleagues, proceeded under the impression that
the Court in G.R. No. 112889 had considered intent to
evade the law to be a material element in the
definition of "fugitive from justice." The COMELEC
understandably thereby felt compelled to conclude
that petitioner, there being no clear evidence of any
intention on his part to evade the law at the time he
left the United States, was not a fugitive from justice.
However, as heretofore so pointed out, the sole and
basic issue in G.R. No. 112889 was whether or not a
conviction by final judgment of the person at large
was essential before he could be considered a
fugitive from justice. That question clearly arose when
the Oversight Committee which was convened by the
President, conformably with Section 533 of Republic
Act 7160, to formulate the appropriate rules and
regulations necessary for the efficient and effective
implementation of the provisions of the Local
Government Code, came out with its Article 73 that
provided:
Art. 73. Disqualifications. — The following
persons shall be disqualified from running for any
elective local position;
(a) xxx xxx xxx
(e) Fugitives from justice in criminal or non-
political cases here or abroad. Fugitive from
justice refers to a person who has been convicted
by final judgment. (Emphasis supplied).
The court in G.R. No. 112889 naturally opined that
the above provision "to the extent that it confine(d) the
term fugitive from justice to refer only to a person (the
fugitive) . . . convicted by final judgment (was) an
inordinate and undue circumscription of the law." The
Court had to likewise concede to the Solicitor General
when he then said that the term "includes not only
those who flee after conviction to avoid punishment
but likewise those who, after being charged, flee to
avoid prosecution" for, certainly, the statement was
not incorrect. But what indeed, could be perplexing
was how it could be possible for the Court's ruling in
G.R. No. 112889 to be so misconstrued as to
supposedly convey any idea of exclusivity or
preclusivity that, to begin with, was not even
considered at the time.

There should be nothing erroneous, in my view, when

COMELEC did ultimately come up with its own
concluding observation that "the mere fact that there
are pending charges in the United States and that
petitioner Rodriguez is in the Philippines make
petitioner a fugitive from justice."
And so I hold, in resume, as follows: That —
1. The filing with the COMELEC of the disqualification
case in SPA No. 95-089 was not an act of forum
shopping on the part of herein private respondent
Marquez.
2. Section 40(e) of the Local Government Code of
1991 did not partake of an ex post facto law or a bill of
attainder.
 3. Section 40(e) of the Local Government Code, not
Section 72 of the Omnibus Election Code, should
govern.
4. The COMELEC did not abuse its discretion in
denying herein petitioner's motion for a suspension of
hearing in SPA Case No. 95-089 and in allowing
herein private respondent to present his evidence ex-
parte, considering its close proximity to the 1995
elections.
5. In consolidating EPC No. 92-28 (the quo warranto
case) and SPA No. 95-089 (the disqualification case),
the COMELEC acted in conformity with its Rules of
Procedure.
6. Given the factual settings and the circumstances, I
must conclude that petitioner is a "fugitive from
justice" within the intent and meaning of FSection
40(e) of the Local G

Facts:

In 1992, petitioner Rodriguez and respondent Marquez ran for Governor of

Quezon Province. Rodriguez won. Marquez challenged Rodriguez’ victory via
a Quo Warranto on the ground that there is a charge pending against him at
the Los Angeles Municipal Court for fraudulent insurance claims, grand theft,
etc. Thus, he is a fugitive from justice.

COMELEC dismissed the case. Upon certiorari to the Supreme Court, it

was held that: Fugitive from justice includes not only those who flee
after conviction to avoid punishment, but also those who after being
charged, flee to avoid prosecution. The case was remanded to the
COMELEC to determine WON Rodriguez is a fugitive from justice.
In 1995, Rodriguez and Marquez again ran for Governor. Marquez filed a
Petition for Disqualification against Rodriquez on the same ground that he is
a fugitive from justice. COMELEC then consolidated both cases and found
Rodriguez guilty based on the authenticated copy of the warrant of arrest at
LA Court and of the felony complaint.

Rodriguez won again, and despite a Motion to suspend his proclamation, the
Provincial Board of Canvassers proclaimed him.

Upon motion of Marquez, the COMELEC nullified the proclamation. Rodriguez

filed a petition for certiorari.

Issue:

Is Rodriguez a fugitive from justice as defined by the Court in the MARQUEZ

Decision?

Held:

No. A fugitive from justice is defined as “not only those who flee after
conviction to avoid punishment but likewise who, after being charged, flee to
avoid prosecution.” This indicates that the intent to evade is the compelling
factor that makes a person leave a particular jurisdiction, and there can only
be intent to evade prosecution or punishment when the fleeing person
knows of an already instituted indictment, or of a promulgated judgment of
conviction. Intent to evade on the part of a candidate must therefore be
established by proof that there has already been a conviction or at least, a
charge has already been filed, at the time of flight. This cannot be applied in
the case of Rodriguez. Rodriguez arrived in the Philippines on June 25, 1985,
five months before the filing of the felony complaint in the Los Angeles Court
on November 12, 1985 and of the issuance of the arrest warrant by that
same foreign court. It was clearly impossible for Rodriguez to have known
about such felony complaint and arrest warrant at the time he left the US, as
there was in fact no complaint and arrest warrant — much less conviction —
to speak of yet at such time.

Not being a "fugitive from justice" under this definition, Rodriguez cannot be
denied the Quezon Province gubernatorial post. (G.R. No. 120099. July
24, 1996)

RODRIGUEZ vs. COMELEC Case Digest

RODRIGUEZ vs. COMELEC

259 SCRA 296, 1996

Facts: The petitioner Eduardo T. Rodriguez was a candidate for Governor in the Province of Quezon in
the May 8, 1995 elections. His rival candidate for the said position was Bienvenido O. Marquez, Jr.,
herein private respondent. Private respondent filed a petition for disqualification before the COMELEC
based principally on the allegation that Rodriguez is a “fugitive from justice.” Private respondent
revealed that a charge for fraudulent insurance claims, grand theft and attempted grand theft of
personal property is pending against the petitioner before the Los Angeles Municipal Court. Rodriguez is
therefore a “fugitive from justice” which is a ground for his disqualification/ ineligibility under Section 40
(e) of the Local Government Code according to Marquez.

Rodriguez, however, submitted a certification from the Commission of Immigration showing that
Rodriguez left the US on June 25, 1985- roughly five (5) months prior to the institution of the criminal
complaint filed against him before the Los Angeles Court.

Issue: Whether or not Rodriguez is a “fugitive from justice.”

Held: No. The Supreme Court reiterated that a “fugitive from justice” includes not only those who flee
after conviction to avoid punishment but likewise who, being charged, flee to avoid prosecution. The
definition thus indicates that the intent to evade is the compelling factor that animates one’s flight from
a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment
when there is knowledge by the fleeing subject of an already instituted indictment or of a promulgated
judgement of conviction.

G.R. No. 112889 April 18, 1995

BIENVENIDO O. MARQUEZ, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J.:

The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties on the meaning of the term "fugitive from
justice as that phrase is so used under the provisions of Section 40(e) of the Local Government Code (Republic Act No. 7160). That law
states:
 Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

xxx xxx xxx

(e) Fugitive from justice in criminal or non-political cases here or abroad(.)

Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the Province of Quezon in the 11th May 1992
elections filed this petition for certiorari praying for the reversal of the resolution of the Commission on Elections ("COMELEC") which
dismissed his petition for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for being allegedly a
fugitive from justice.

It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge against him for ten (10) counts of
insurance fraud or grand theft of personal property was still pending before the Municipal Court of Los Angeles Judicial District, County of
Los Angeles, State of California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on private respondent
on account of his alleged "flight" from that country.

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate of candidacy, on the ground of the
candidate's disqualification under Section 40(e) of the Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992,
the COMELEC dismissed the petition.

Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution of COMELEC was dismissed without
prejudice, however, to the filing in due time of a possible post-election quo warranto proceeding against private respondent. The Court, in its
resolution of 02 June 1992, held:

Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the private respondent had
already been proclaimed as the duly elected Governor of the Province of Quezon, the petition below for disqualification
has ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63 and
Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this
court held that a pre-proclamation controversy is no longer viable at this point of time and should be dismissed. The
proper remedy of the petitioner is to pursue the disqualification suit in a separate proceeding.

ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the filing of the appropriate
proceedings in the proper forum, if so desired, within ten (10) days from notice. 1

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner instituted quo warranto proceedings
(EPC 92-28) against private respondent before the COMELEC. In its 02 February 1993 resolution, the COMELEC (Second Division)
dismissed the petition. The COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution.

Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether private respondent who, at the time of
the filing of his certificate of candidacy (and to date), is said to be facing a criminal charge before a foreign court and evading a warrant for
his arrest comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and, therefore,
disqualified from being a candidate for, and thereby ineligible from holding on to, an elective local office.

Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further interpretation and construction. Section 40(e)
of Republic Act No. 7160, is rather clear, he submits, and it disqualifies "fugitive from justice" includes not only those who flee after conviction
to avoid punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly finds support from
jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe,
244 S.C. 344, 137 S.E. 2d 102, 103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792),
and it may be so conceded as expressing the general and ordinary connotation of the term.

In turn, private respondent would have the Court respect the conclusions of the Oversight Committee which, conformably with Section 5332
of R.A. 7160, was convened by the President to "formulate and issue the appropriate rules and regulations necessary for the efficient and
effective implementation of any and all provisions of the Code to ensure compliance with the principles of Local Autonomy.

Here are some excerpts from the committee's deliberations:

CHAIRMAN MERCADO. Session is resumed.

So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39.

CHAIRMAN DE PEDRO. Kay Benny Marquez.

REP. CUENCO: What does he want?

CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung kuwestiyunin ang
constitutionality nito before the Supreme Court later on.

REP. CUENCO. Anong nakalagay diyan?

CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.

Any person who is a fugitive from justice in criminal or nonpolitical cases here or abroad.

Mabigat yung abroad. One who is facing criminal charges with the warrant of arrest pending,
unserved. . .

HONORABLE SAGUISAG. I think that is even a good point, ano — what is a fugitive? It is not
defined. We have loose understanding. . .

CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong fugitive.

Si Benny umalis na, with the understanding na okay na sa atin ito.

THE CHAIRMAN. Whether we have this rule or not she can run. She is not a fugitive from justice.
Mrs. Marcos can run at this point and I have held that for a long time ago. So can. . .

MS. DOCTOR. Mr. Chairman. . .

THE CHAIRMAN. Yes.

MS. DOCTOR. Let's move to. . .

THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is very important.
Manny, can you come up?

MR. REYES. Let's use the word conviction by final judgment.

THE CHAIRMAN. Fugitive means somebody who is convicted by final judgment. Okay,. Fugitive
means somebody who is convicted by final judgment. Insert that on Line 43 after the semi-colon.
Is that approved? No objection, approved (TSN, Oversight Committee, 07 May 1991).

xxx xxx xxx

THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba ang gumawa
nito? Okay, on page 2, lines 43 and 44, "fugitive from justice". What "fugitive"? Sino ba ang
gumawa nito, ha?

MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify the word "fugitive".

THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha?

MR. SANCHEZ. Means a person...

THE CHAIRMAN. Ha?

HON. REYES. A person who has been convicted.

THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall mean or means one
who has been convicted by final judgment. It means one who has been convicted by final
judgment.
 HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.

THE CHAIRMAN. Ano? Sige, tingnan natin.

HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?

THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been convicted by final judgment,
meaning that if he is simply in jail and because he put up, post bail, but the case is still being
reviewed, that is not yet conviction by final judgment. 3

The Oversight Committee evidently entertained serious apprehensions on the possible constitutional infirmity of Section 40(e) of Republic
Act No. 7160 if the disqualification therein meant were to be so taken as to embrace those who merely were facing criminal charges. A
similar concern was expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the House
of Representatives, made this reservation:

. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako doon, a. 4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing the Local Government Code of 1991. It
provided:

Art. 73. Disqualifications. — The following persons shall be disqualified from running for any elective local position:

(a) . . .

(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who
has been convicted by final judgment.5 (Emphasis supplied)

Private respondent reminds us that the construction placed upon law by the officials in charge of its enforcement deserves great and
considerable weight (Atlas Consolidated Mining and Development Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however,
when there clearly is no obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An administrative rule
or regulation can neither expand nor constrict the law but must remain congruent to it. The Court believes and thus holds, albeit with some
personal reservations of the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and Regulations
Implementing the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to refer only to a person (the
fugitive) "who has been convicted by final judgment." is an inordinate and undue circumscription of the law.

Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private respondent is a "fugitive from justice" as
such term must be interpreted and applied in the light of the Court's opinion. The omission is understandable since the COMELEC dismissed
outrightly the petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the Oversight
Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case to the COMELEC for a determination of this
unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET ASIDE, and the case is hereby
REMANDED to the Commission which is DIRECTED to proceed and resolve the case with dispatch conformably with the foregoing opinion.
No special pronouncement on costs.

SO ORDERED.

Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.

Separate Opinions
DAVIDE JR., J., concurring:

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications
for elective provincial, city, municipal, and barangay officials shall be those provided for
in the Local Government Code. The quondam Local Government Code was B.P. Blg.
337, which was superseded by R.A. No. 7160, otherwise known as the Local
Government Code of 1991. Section 39 of the latter provides for the qualifications and
election of local elective officials. Section 40 enumerates those who are disqualified
from running for any elective local position, among whom is a:

(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid
punishment but also to those who, after being charged, flee to avoid prosecution. In his
ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in
Article 73 of the Rules and Regulations Implementing the Local Government Code of
1991, as inordinate and as undue circumscription of the law. I agree.

But this is only one side of the coin. I further submit that it also unreasonably expands
the scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the
extent of the penalty imposed and of whether they have served or are serving their
sentences or have evaded service of sentence by jumping bail or leaving for another
country. The definition thus disregards the true and accepted meaning of the word
fugitive. This new definition is unwarranted for nothing in the legislative debates has
been shown to sustain it and the clear language of the law leaves no room for a re-
examination of the meaning of the term.

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the
disqualification based on the presumption of innocence clause of the Bill of Rights.
There are certain fundamental considerations which do not support the applications of
the presumption

Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to

determine who are disqualified from exercising the right of suffrage. Since the minimum
requirement of a candidate for a public office is that he must be a qualified voter, it
logically follows that Congress has the plenary power to determine who are disqualified
to seek election for a public office.

Secondly, a public office is a public trust. Section 1, Article XI of the Constitution

expressly provides:

Sec. 1. Public office is public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost
 responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101;
JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A
Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly,
stricter qualifications for public office may thus be required by law.

Thirdly, the disqualification in guestion does not, in reality, involve the issue of
presumption of innocence. Elsewise stated, one is not disqualified because he is
presumed guilty by the filing of an information or criminal complaint against him. He is
disqualified because he is a "fugitive from justice," i.e., he was not brought within the
jurisdiction of the court because he had successfully evaded arrest; or if he was brought
within the jurisdiction of the court and was tried and convicted, he has successfully
evaded service of sentence because he had jumped bail or escaped. The
disqualification then is based on his flight from justice. In the face of the settled doctrine
that flight is an indication of guilt, it may even be truly said that it is not the challenged
disqualifying provision which overcomes the presumption of innocence but rather the
disqualified person himself who has proven his guilt.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt
on the validity of the challenged disqualification. Dumlao struck out as violative of the
constitutional presumption of innocence that portion of the second paragraph, Section 4
of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes
before a civil court or military tribunal after preliminary investigation shall be prima facie
evidence of such fact." It is clear that the law challenged therein did in fact establish a
presumption of guilt from the mere filing of the information or criminal complaint, in
violation of the constitutional right to presumption of innocence.

Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.

Separate Opinions

DAVIDE JR., J., concurring:

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications
for elective provincial, city, municipal, and barangay officials shall be those provided for
in the Local Government Code. The quondam Local Government Code was B.P. Blg.
337, which was superseded by R.A. No. 7160, otherwise known as the Local
Government Code of 1991. Section 39 of the latter provides for the qualifications and
election of local elective officials. Section 40 enumerates those who are disqualified
from running for any elective local position, among whom is a:

(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid
punishment but also to those who, after being charged, flee to avoid prosecution. In his
ponencia, Mr. Justice Jose C. Vitug finds the definition given to it by the Oversight
Committee, i.e., "a person who has been convicted by final judgment," as appearing in
Article 73 of the Rules and Regulations Implementing the Local Government Code of
1991, as inordinate and as undue circumscription of the law. I agree.

But this is only one side of the coin. I further submit that it also unreasonably expands
the scope of the disqualification in the 1991 Local Government Code because it
disqualifies all those who have been convicted by final judgment, regardless of the
extent of the penalty imposed and of whether they have served or are serving their
sentences or have evaded service of sentence by jumping bail or leaving for another
country. The definition thus disregards the true and accepted meaning of the word
fugitive. This new definition is unwarranted for nothing in the legislative debates has
been shown to sustain it and the clear language of the law leaves no room for a re-
examination of the meaning of the term.

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the
disqualification based on the presumption of innocence clause of the Bill of Rights.
There are certain fundamental considerations which do not support the applications of
the presumption

Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to

determine who are disqualified from exercising the right of suffrage. Since the minimum
requirement of a candidate for a public office is that he must be a qualified voter, it
logically follows that Congress has the plenary power to determine who are disqualified
to seek election for a public office.

Secondly, a public office is a public trust. Section 1, Article XI of the Constitution

expressly provides:

Sec. 1. Public office is public trust. Public officers and employees must at
all times be accountable to the people, serve them with utmost
responsibility, integrity, loyalty, and efficiency, act with patriotism and
justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101;
JOAQUIN BERNAS, The Constitution of the Republic of the Philippines, A
Commentary, 1987 ed., 40, citing Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly,
stricter qualifications for public office may thus be required by law.
Thirdly, the disqualification in guestion does not, in reality, involve the issue of
presumption of innocence. Elsewise stated, one is not disqualified because he is
presumed guilty by the filing of an information or criminal complaint against him. He is
disqualified because he is a "fugitive from justice," i.e., he was not brought within the
jurisdiction of the court because he had successfully evaded arrest; or if he was brought
within the jurisdiction of the court and was tried and convicted, he has successfully
evaded service of sentence because he had jumped bail or escaped. The
disqualification then is based on his flight from justice. In the face of the settled doctrine
that flight is an indication of guilt, it may even be truly said that it is not the challenged
disqualifying provision which overcomes the presumption of innocence but rather the
disqualified person himself who has proven his guilt.

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt
on the validity of the challenged disqualification. Dumlao struck out as violative of the
constitutional presumption of innocence that portion of the second paragraph, Section 4
of B.P. Blg. 52 providing that "the filing of charges for the commission of such crimes
before a civil court or military tribunal after preliminary investigation shall be prima facie
evidence of such fact." It is clear that the law challenged therein did in fact establish a
presumption of guilt from the mere filing of the information or criminal complaint, in
violation of the constitutional right to presumption of innocence.

Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.

Footnotes

1 Rollo, p. 31.

2 Sec. 533. Formulation of Implementing Rules and Regulations. —

(a) Within one (1) month after the approval of this Code, the President
shall convene the Oversight Committee as herein provided for. The said
Committee shall formulate and issue the appropriate rules and regulations
necessary for the efficient and effective implementation of any and all
provisions of this Code, thereby ensuring compliance with the principles of
local autonomy as defined under the Constitution.

(b) The Committee shall be composed of the following:

1. The Executive Secretary, who shall be the

Chairman;
2. Three (3) members of the Senate to be
appointed by the President of the Senate, to
include the Chairman of the Committee on
Local Government;
3. Three (3) members of the House of
Representatives to be appointed by the
 Speaker, to include the Chairman of the
Committee on Local Government;
4. The Cabinet, represented by the following:
(i) Secretary of the interior and Local
Government;
(ii) Secretary of Finance;
(iii) Secretary of Budget and Management; and
5. One (1) representative from each of the
following:

i. The League of Provinces;

ii. The League of Cities;
iii. The League of Municipalities; and
iv. The Liga ng mga Barangay.

(c) The Committee shall submit its report and recommendation to the
President within two (2) months after its organization. If the President fails
to act within thirty (30) days from receipt thereof, the recommendation of
the Oversight Committee shall be deemed approved. Thereafter, the
committee shall supervise the transfer of such powers and functions
mandated under this Code to the local government units, together with the
corresponding personnel, properties, assets and liabilities of the offices or
agencies concerned, with the least possible disruptions to existing
programs and projects. The Committee shall likewise recommend the
corresponding appropriations necessary to effect the said transfer.

For this purpose, the services of a technical staff shall be enlisted from
among the qualified employees of Congress, the government offices, and
the leagues constituting the Committee.

(d) The funding requirements and the secretariat of the Committee shall
be provided by the Office of the Executive Secretary.

(e) The sum of Five million pesos (P5,000,000.00), which shall be charged
against the Contingent Fund, is hereby allotted to the Committee to fund
the undertaking of an information campaign on this Code. The Committee
shall formulate the guidelines governing the conduct of said campaign,
and shall determine the national agencies or offices to be involved for this
purpose.

3 Rollo, pp. 221-223.

4 Rollo, p. 220.
 5 Art. 73, Rule XIV, Rules and Regulations Implementing the Local
Government Code of 1991.

The Lawphil Project - Arellano Law Foundation

Marquez v COMELEC

Facts:

Marquez, a candidate for an elective position in Quezon Province during the 1998 elections, filed a
petition praying for the cancellation of the certificate of candidacy of Rodriguez on the ground of
disqualification under section 40 of the Local Government Code (Section 40. Disqualification. The
following persons are disqualified from running for any local elective position... (e) Fugitive from justice
in criminal or non-political cases here or abroad.)

Rodriguez is allegedly criminally charged with insurance fraud in the United States and that his arrest is
yet to be served because of his flight from the country.

The COMELEC dismissed Marquez’s Petition.

Rodriguez was proclaimed the Governor-elect of Quezon.

Issues:

WON Rodriguez, at the time of filing his certificate of candidacy, is said to be a fugitive from justice as
provided for in section 40 of the Local Government Code.

Held:

“Fugitive from justice” does not mean a person convicted by final judgment. It includes those who after
being charged flee to avoid prosecution. The COMELEC is directed to proceed and settle the case in
conformity of the given clarification with the term “fugitive from justice”.

fr. atty nas^^

LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,

vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief
Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and
Leyte Provincial Treasurer FLORENCIO LUNA, respondents.

Zozimo G. Alegre for petitioner.

The Provincial Attorney for respondents.

RESOLUTION

GUTIERREZ, JR., J.:

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which
initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of
Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot
successfully assert the right to be recognized as Acting Vice-Governor and, therefore, his
designation was invalid. In this motion, the primary issue is the right to emoluments while
actually discharging the duties of the office.

The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor
had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos
designated the Vice-Governor, Leopoldo E. Petilla as Acting Governor of Leyte.

On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang
Panlalawigan was also designated by Secretary Luis Santos to act as the Vice-Governor for the
province of Leyte.

The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.

On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the
legality of the appointment of the petitioner to act as the Vice-Governor of Leyte.

In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since
B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a
temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not
necessary since the Vice-Governor who is temporarily performing the functions of the Governor,
could concurrently assume the functions of both offices.

As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar,
Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution
No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of
Leyte. The pertinent portion of the resolution reads:
 WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is
that there is no permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E.
Petilla assumed the Office of the Vice-Governor after he took his oath of office to said
position.

WHEREAS, it is the duty of the members of the Board not only to take cognizance of the
aforesaid official communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also
to uphold the law.

WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the
Honorable Rogelio L. Granados and the Honorable Renato M. Rances.

RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as

Acting Vice-Governor of Leyte. (Rollo, p. 27)

The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo
Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22,
1989 opinion.

On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion.1âwphi1
The pertinent portion of the letter reads:

This has reference to your letter dated July 10, 1989, requesting for clarification of our
letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in
substance, that "there is no succession provided for in case of temporary vacancy in the
office of the vice-governor and that the designation of a temporary vice-governor is not
necessary.

We hold the view that the designation extended by the Secretary of Local Government in
favor of one of the Sangguniang Panlalawigan Members of Leyte to temporarily
discharge the powers and duties of the vice-governor during the pendency of the electoral
controversy in the Office of the Governor, does not contradict the stand we have on the
matter. The fact that the Sangguniang Panlalawigan member was temporarily designated
to perform the functions of the vice-governor could not be considered that the
Sangguniang member succeeds to the office of the latter, for it is basic that designation is
merely an imposition of additional duties to be performed by the designee in addition to
the official functions attached to his office. Furthermore, the necessity of designating an
official to temporarily perform the functions of a particular public office, would depend
on the discretion of the appointing authority and the prevailing circumstances in a given
area and by taking into consideration the best interest of public service.

On the basis of the foregoing and considering that the law is silent in case of temporary
vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in
the Province of Leyte, where the electoral controversy in the Office of the Governor has
 not yet been settled, calls for the designation of the Sangguniang Member to act as vice-
governor temporarily. (Rollo, p. 31)

In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the
Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a
letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that
Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states:

In view thereof, please correct previous actions made by your office and those of the
Sangguniang Panlalawigan which may have tended to discredit the validity of Atty.
Aurelio Menzon's designation as acting vice-governor, including the payment of his
salary as Acting Vice-Governor, if he was deprived of such. (Rollo, p. 32)

On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla,
reiterating his earlier request.

Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan,
refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments
attached to the Office of Vice-Governor.

Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and
mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of
his salary for his services as the acting Vice-Governor of Leyte.

In the meantime, however, the issue on the governorship of Leyte was settled and Adelina
Larrazabal was proclaimed the Governor of the province of Leyte.

During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer
of Leyte, Florencio Luna allowed the payment to the petitioner of his salary as acting Vice-
Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner
as acting Vice-Governor.

On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.

On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested
Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the
emoluments and compensation which he received while acting as the Vice-Governor of Leyte.

On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The
motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments
attached to the office of the Vice-Governor while he was acting as such.

The petitioner interposes the following reason for the allowance of the motion for
reconsideration:
 THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS
SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER
THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY.

The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?;
and 2) Whether or not the Secretary of Local Government has the authority to make temporary
appointments?

The respondents argue that there exists no vacancy in the Office of the Vice-Governor which
requires the appointment of the petitioner. They further allege that if indeed there was a need to
appoint an acting Vice-Governor, the power to appoint is net vested in the Secretary of Local
Government. Absent any provision in the Local Government Code on the mode of succession in
case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes
an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve.

The arguments are of doubtful validity.

The law on Public Officers is clear on the matter. 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. (see
Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and
Officers, at p. 61)

Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-
Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed
Acting Governor. 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.

There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the
Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor.
The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them.
More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic
assumption to the acting Governorship that resulted in the vacancy in the office of the Vice-
Governor. The fact that the Secretary of Local Government was prompted to appoint the
petitioner shows the need to fill up the position during the period it was vacant. The Department
Secretary had the discretion to ascertain whether or not the Provincial Governor should devote
all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally
acting, may revoke an appointment made by a higher authority.

Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of
Local Government had the authority to designate the petitioner.

We hold in the affirmative.

The Local Government Code is silent on the mode of succession in the event of a temporary
vacancy in the Office of the Vice-Governor. However, the silence of the law must not be
understood to convey that a remedy in law is wanting.

The circumstances of the case reveal that there is indeed a necessity for the appointment of an
acting Vice-Governor. For about two years after the governatorial elections, there had been no de
jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time,
had not yet been proclaimed due to a pending election case before the Commission on Elections.

The two-year interregnum which would result from the respondents' view of the law is
disfavored as it would cause disruptions and delays in the delivery of basic services to the people
and in the proper management of the affairs of the local government of Leyte. Definitely, it is
incomprehensible that to leave the situation without affording any remedy was ever intended by
the Local Government Code.

Under the circumstances of this case and considering the silence of the Local Government Code,
the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the
vacancy, the President, acting through her alter ego, the Secretary of Local Government, may
remedy the situation. We declare valid the temporary appointment extended to the petitioner to
act as the Vice-Governor. The exigencies of public service demanded nothing less than the
immediate appointment of an acting Vice-Governor.

The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar
corrected and reconsidered his previous position and acknowledged the need for an acting Vice-
Governor.

It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of
1987, the President is empowered to make temporary appointments in certain public offices, in
case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in
appointive positions. However, in the absence of any contrary provision in the Local
Government Code and in the best interest of public service, we see no cogent reason why the
procedure thus outlined by the two laws may not be similarly applied in the present case. The
respondents contend that the provincial board is the correct appointing power. This argument has
no merit. As between the President who has supervision over local governments as provided by
law and the members of the board who are junior to the vice-governor, we have no problem
ruling in favor of the President, until the law provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under the law for it deprives
the constituents of their right of representation and governance in their own local government.

In a republican form of government, the majority rules through their chosen few, and if one of
them is incapacitated or absent, etc., the management of governmental affairs to that extent, may
be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to
the people of Leyte if the Governor or the Vice-Governor is missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte,
is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in
this case where for about two years there was only an acting Governor steering the leadership of
the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to
free the hands of the acting Governor to handle provincial problems and to serve as the buffer in
case something might happen to the acting Governor becomes unquestionable. We do not have
to dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-
year period. The contingency of having simultaneous vacancies in both offices cannot just be set
aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to
the public is the primary concern of those in the government. It is a continuous duty unbridled by
any political considerations.

The appointment of the petitioner, moreover, is in full accord with the intent behind the Local
Government Code. There is no question that Section 49 in connection with Section 52 of the
Local Government Code shows clearly the intent to provide for continuity in the performance of
the duties of the Vice-Governor.

The Local Government Code provides for the mode of succession in case of a permanent
vacancy, viz:

Section 49:

In case a permanent vacancy arises when a Vice-Governor assumes the Office of the
Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office,
voluntary resigns or is otherwise permanently incapacitated to discharge the functions of
his office the sangguniang panlalawigan . . . member who obtained the highest number of
votes in the election immediately preceding, . . . shall assume the office for the unexpired
term of the Vice-Governor. . . .

By virtue of the surroundings circumstance of this case, the mode of succession provided for
permanent vacancies may likewise be observed in case of a temporary vacancy in the same
office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of
the Sangguniang Panlalawigan who obtained the highest number of votes. The Department
Secretary acted correctly in extending the temporary appointment.

In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the
Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner,
following the example in Commonwealth Act No. 588 and the Revised Administrative Code,
and pursuant to the proscription against double compensation must only be such additional
compensation as, with his existing salary, shall not exceed the salary authorized by law for the
Office of the Vice-Governor.

And finally, even granting that the President, acting through the Secretary of Local Government,
possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a
known appointment. As revealed by the records, the petitioner was appointed by no less than the
alter ego of the President, the Secretary of Local Government, after which he took his oath of
office before Senator Alberto Romulo in the Office of Department of Local Government
Regional Director Res Salvatierra.

Concededly, the appointment has the color of validity. The respondents themselves
acknowledged the validity of the petitioner's appointment and dealt with him as such. It was only
when the controversial Resolution No. 505 was passed by the same persons who recognized him
as the acting Vice-Governor that the validity of the appointment of the petitioner was made an
issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-
Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy
on which the de facto doctrine is based and basic considerations of justice, it would be highly
iniquitous to now deny him the salary due him for the services he actually rendered as the acting
Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974])

WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional
compensation which the petitioner has received, in the amount exceeding the salary authorized
by law for the position of Senior Board Member, shall be considered as payment for the actual
services rendered as acting Vice-Governor and may be retained by him.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

The Lawphil Project - Arellano Law Foundation

Menzon vs Petilla

Post under Local Government , Permanent Vacancy , Political Law Case Digests

Facts:

In 1988, the DILG Secretary Luis Santos designated Vice-Governor Leopoldo

E. Petilla as Acting Governor of Leyte in view of the fact that no Governor
had been proclaimed in the province of Leyte.
Subsequently, Santos also designated Aurelio D. Menzon, a senior member
of the Sangguniang Panlalawigan to act as the Vice-Governor for the
province of Leyte. Menzon then took his oath of office.

In 1989, the provincial administrator inquired from DILG Undersecretary

Jacinto T. Rubillar, Jr., as to the legality of the appointment of Menzon to act
as the Vice-Governor of Leyte.

Rubillar, Jr. replied that since B.P. 337 has no provision relating to
succession in the Office of the Vice-Governor in case of a temporary
vacancy, the appointment of Menzon as the temporary Vice- Governor is not
necessary since the Vice-Governor who is temporarily performing the
functions of the Governor, could concurrently assume the functions of both
offices.

As a result of the foregoing, the Sangguniang Panlalawigan issued Resolution

No. 505 where it invalidated the appointment of Menzon as acting Vice-
Governor of Leyte.

Menzon then wrote to Undersecretary Rubillar to clarify the opinion that the
latter issued. Rubillar replied that Menzon was merely designated to act as
vice governor. He was not appointed to the post since there was no vacancy
of the office to speak of.

As a result of this clarificatory letter, the DILG Regional Director requested

Governor Petilla that the resolution issued by the Sanggunian be modified so
that Menzon would be able receive his salary as vice governor, if he was
deprived of such. However, Petilla and the Sanggunian refused to correct
Resolution 505 and correspondingly to pay the petitioner the emoluments
attached to the Office of Vice-Governor.

It was at this instance that Menzon decided to file this petition to determine
whether he is entitled to the emoluments for his services rendered as
designated acting vice‐governor. During the pendency of this case, the issue
on the governorship of Leyte was settled and Adelina Larrazabal was
proclaimed Governor of Leyte.

Issue: Whether or not there was a vacancy

Held: Yes. The law on Public Officers is clear on the matter. 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.

In this case, it can be readily seen that the office of the Vice-Governor was
left vacant when the duly elected Vice-Governor Leopoldo Petilla was
appointed Acting Governor. 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.

There is no showing that Leopoldo Petilla continued to simultaneously

exercise the duties of the Vice-Governor. The nature of the duties of a
Provincial Governor call for a full-time occupant to discharge them. More so
when the vacancy is for an extended period. Precisely, it was Petilla's
automatic assumption to the acting Governorship that resulted in the
vacancy in the office of the Vice-Governor. The fact that the Secretary of
Local Government was prompted to appoint the petitioner shows the need to
fill up the position during the period it was vacant. The Department
Secretary had the discretion to ascertain whether or not the Provincial
Governor should devote all his time to that particular office. Moreover, it is
doubtful if the Provincial Board, unilaterally acting, may revoke an
appointment made by a higher authority.

Issue: Whether or not the Secretary of Local Government has the

authority to make temporary appointments

Held: The Local Government Code is silent on the mode of succession in the
event of a temporary vacancy in the Office of the Vice-Governor. However,
the silence of the law must not be understood to convey that a remedy in
law is wanting.

The circumstances of the case reveal that there is indeed a necessity for the
appointment of an acting Vice-Governor. For about two years after the
governatorial elections, there had been no de jure permanent Governor for
the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet
been proclaimed due to a pending election case before the Commission on
Elections.

The two-year interregnum which would result from the respondents' view of
the law is disfavored as it would cause disruptions and delays in the delivery
of basic services to the people and in the proper management of the affairs
of the local government of Leyte. Definitely, it is incomprehensible that to
leave the situation without affording any remedy was ever intended by the
Local Government Code.

Under the circumstances of this case and considering the silence of the Local
Government Code, the Court rules that, in order to obviate the dilemma
resulting from an interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government, may remedy the
situation. We declare valid the temporary appointment extended to the
petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting Vice-
Governor.

The records show that it was primarily for this contingency that
Undersecretary Jacinto Rubillar corrected and reconsidered his previous
position and acknowledged the need for an acting Vice-Governor.

It may be noted that under Commonwealth Act No. 588 and the Revised
Administrative Code of 1987, the President is empowered to make
temporary appointments in certain public offices, in case of any vacancy that
may occur. Albeit both laws deal only with the filling of vacancies in
appointive positions. However, in the absence of any contrary provision in
the Local Government Code and in the best interest of public service, we see
no cogent reason why the procedure thus outlined by the two laws may not
be similarly applied in the present case. The respondents contend that the
provincial board is the correct appointing power. This argument has no
merit. As between the President who has supervision over local governments
as provided by law and the members of the board who are junior to the vice-
governor, we have no problem ruling in favor of the President, until the law
provides otherwise.

A vacancy creates an anomalous situation and finds no approbation under

the law for it deprives the constituents of their right of representation and
governance in their own local government.

In a republican form of government, the majority rules through their chosen

few, and if one of them is incapacitated or absent, etc., the management of
governmental affairs to that extent, may be hampered. Necessarily, there
will be a consequent delay in the delivery of basic services to the people of
Leyte if the Governor or the Vice-Governor is missing.

Whether or not the absence of a Vice-Governor would main or prejudice the

province of Leyte, is for higher officials to decide or, in proper cases, for the
judiciary to adjudicate. As shown in this case where for about two years
there was only an acting Governor steering the leadership of the province of
Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to
free the hands of the acting Governor to handle provincial problems and to
serve as the buffer in case something might happen to the acting Governor
becomes unquestionable. We do not have to dwell ourselves into the fact
that nothing happened to acting Governor Petilla during the two-year period.
The contingency of having simultaneous vacancies in both offices cannot just
be set aside. It was best for Leyte to have a full-time Governor and an
acting Vice-Governor. Service to the public is the primary concern of those in
the government. It is a continuous duty unbridled by any political
considerations.

The appointment of the petitioner, moreover, is in full accord with the intent
behind the Local Government Code. There is no question that Section 49 in
connection with Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the duties of the Vice-
Governor.

The Local Government Code provides for the mode of succession in case of a
permanent vacancy, viz:

Section 49:

In case a permanent vacancy arises when a Vice-Governor assumes

the Office of the Governor, . . . refuses to assume office, fails to
qualify, dies, is removed from office, voluntary resigns or is
otherwise permanently incapacitated to discharge the functions of
his office the sangguniang panlalawigan member who obtained the
highest number of votes in the election immediately preceding, . . .
shall assume the office for the unexpired term of the Vice-Governor.
...

By virtue of the surroundings circumstance of this case, the mode of

succession provided for permanent vacancies may likewise be observed in
case of a temporary vacancy in the same office. In this case, there was a
need to fill the vacancy. The petitioner is himself the member of the
Sangguniang Panlalawigan who obtained the highest number of votes. The
Department Secretary acted correctly in extending the temporary
appointment.

Issue: Whether or not Menzon is entitled to be paid the salary

attached to the Office of the Vice Governor
Held: In view of the foregoing, the petitioner's right to be paid the salary
attached to the Office of the Vice Governor is indubitable. The compensation,
however, to be remunerated to the petitioner, must only be such additional
compensation as, with his existing salary, shall not exceed the salary
authorized by law for the Office of the Vice-Governor.

Even granting that the President, acting through the Secretary of Local
Government, possesses no power to appoint the petitioner, at the very least,
the petitioner is a de facto officer entitled to compensation.

There is no denying that the petitioner assumed the Office of the Vice-
Governor under color of a known appointment. As revealed by the records,
the petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of office
before Senator Alberto Romulo in the Office of Department of Local
Government Regional Director Res Salvatierra.

Concededly, the appointment has the color of validity. The respondents

themselves acknowledged the validity of the petitioner's appointment and
dealt with him as such. It was only when the controversial Resolution No.
505 was passed by the same persons who recognized him as the acting
Vice-Governor that the validity of the appointment of the petitioner was
made an issue and the recognition withdrawn.

The petitioner, for a long period of time, exercised the duties attached to the
Office of the Vice-Governor. He was acclaimed as such by the people of
Leyte. Upon the principle of public policy on which the de facto doctrine is
based and basic considerations of justice, it would be highly iniquitous to
now deny him the salary due him for the services he actually rendered as
the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta,
61 SCRA 55 [1974])
(G.R. No. 90762, May 20, 1991)

G.R. No. 121087 August 26, 1999

FELIPE NAVARRO, petitioner,

vs.
THE COURT OF APPEALS and the PEOPLE OF THE PHILIPPINES, respondents.

MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of Appeals, dated
December 14, 1994, which affirmed the judgment of the Regional Trial Court, Branch 5, Lucena
City, dated July 27, 1992, finding petitioner Felipe Navarro guilty beyond reasonable doubt of
homicide and sentencing him to ten (10) years of prision mayor, as minimum, and fourteen (14)
years and eight (8) months, and (1) day of reclusion temporal, as maximum, but increased the
death indemnity awarded to the heirs of the victim, Enrique "Ike" Lingan, from P30,000.00 to
P50,000.00.

The information against petitioner alleged —

That on or about the 4th day of February, 1990, in the nighttime, in the City of Lucena,
Province of Quezon, Philippines, and within the jurisdiction of this Honorable Court, the
said accused, being then a member of the Lucena Integrated National Police, with intent
to kill, did then and there willfully, unlawfully and feloniously assault one Ike Lingan
inside the Lucena police headquarters, where authorities are supposed to be engaged in
the discharge of their duties, by boxing the said Ike Lingan in the head with the butt of a
gun and thereafter when the said victim fell, by banging his head against the concrete
pavement, as a consequence of which said Ike Lingan suffered cerebral concussion and
shock which directly caused his death.

The evidence show that, at around 8:40 in the evening of February 4, 1990, Stanley Jalbuena and
Enrique "Ike" Lingan, who were reporters of the radio station DWTI in Lucena City, together
with one Mario Ilagan, went to the Entertainment City following reports that it was showing the
nude dancers. After the three had seated themselves at a table and ordered beer, a scantily clad
dancer appeared on stage and began to perform a strip act. As she removed her brassieres,
Jalbuena brought out his camera and took a picture.2

At that point, the floor manager, Dante Liquin, with a security guard, Alex Sioco, approached
Jalbuena and demanded to know why he took a picture.3 Jalbuena replied: "Wala kang pakialam,
because this is my job."4 Sioco pushed Jalbuena towards the table as he warned the latter that he
would kill him.5 When Jalbuena saw that Sioco was about to pull out his gun, he ran out of the
joint followed by his companions.6

Jalbuena and his companions went to the police station to report the matter. Three of the
policeman on duty, including petitioner Navarro, were having drinks in front of the police
station, and they asked Jalbuena and his companions to join them. Jalbuena declined and went to
the desk officer, Sgt. Añonuevo, to report the incident. In a while, Liquin and Sioco arrived on a
motorcycle.7

Sioco and Liquin were met by petitioner Navarro who talked with them in a corner for around
fifteen minutes.8 Afterwards, petitioner Navarro turned to Jalbuena and, pushing him to the wall,
said to him: "Putang ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo ba
kilala?"9 Petitioner Navarro then pulled out his firearm and cocked it, and, pressing it on the face
of Jalbuena, said "Ano, uutasin na kita?"10
At this point, Lingan intervened and said to petitioner Navarro: "Huwag namang ganyan
pumarito kami para magpa-blotter, I am here to mediate."11 Petitoner Navarro replied: "Walang
press, press, mag-sampu pa kayo."12 He then turned to Sgt. Añonuevo and told him to make of
record the behavior of Jalbuena and Lingan.13

This angered Lingan, who said: "O, di ilagay mo diyan"14 Petitioner Navarro retorted: "Talagang
ilalagay ko."15 The two then had a heated exchange.16 Finally, Lingan said: "Masyado kang
abusado, alisin mo yang baril mo at magsuntukan na lang tayo."17 Petitioner Navarro replied:
"Ah, ganoon?"18

As Lingan was about turn away, petitioner Navarro hit him with the handle of the pistol above
the left eyebrow. Lingan fell on the floor, blood flowing down his face. He tried to get up, but
petitioner Navarro gave him a fist blow on the forehead which floored him.19

Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay kang testigo, si Ike
Lingan and naghamon."20 He said to Sgt. Añonuevo: "Ilagay mo diyan sa blotter sa harap ni Alex
Sioco at Dante Liquin, na si Ike Lingan ang naghamon."21 He then poked his gun at the right
temple of Jalbuena and made him sign his name on the blotter.22 Jalbuena could not affix his
signature. His right hand was trembling and he simply wrote his name in print.23

Capt. Coronado, the station commander, called petitioner Navarro to his office, while a
policeman took Lingan to the Quezon Memorial Hospital. The station manager of DWTI, Boy,
Casañada, arrived and, learning that Lingan had been taken to the hospital, proceeded there. But
Lingan died from his injuries.24

Unknown to petitioner Navarro, Jalbuena was able to record on tape the exchange between
petitioner and the deceased.25 The following is an excerpt from the tape recording:

Lingan: Pare, you are abusing yourself.

Navarro: Who is that abusing?

Lingan: I'm here to mediate. Do not include me in the problem. I'm out of the problem.

xxx xxx xxx

Navarro: Wala sa akin yan. Ang kaso lang . . .

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa kami. Okay. Do not fight
with me. I just came here to ayusin things. Do not say bad things against me. I'm the
number one loko sa media. I'm the best media man. . . .

Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na tayong mag-takotan! Huwag

mong sabihing loko ka!
 Lingan: I'm brave also.

Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka namang masasabi sa akin
dahil nag-tatrabaho lang ako ng ayon sa serbisyo ko.

Lingan: You are challenging me and him. . . .

Navarro: Ay walastik ka naman Ike! Pag may problema ka dito sinasabihan kita na may
balita tayong maganda. Pambihira ka Ike. Huwag mong sabihin na . . . Parang
minomonopoly mo eh.

Lingan: Pati ako kalaban ninyo.

Navarro: Talagang kalaban namin ang press. Lahat, hindi lang ikaw!

Lingan: You are wrong. Bakit kalaban nyo ang press?

Navarro: Pulis ito! Aba!

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo! Suntukan tayo, sige.

Navarro: Mayabang ka ah!

(Sounds of a scuffle)

Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare hinamon ako nyan, testigo
kayo. Alisin ko daw ang baril ko. Hinamon ako nyan. Pare, ilagay mo diyan, hinamon
ako sa harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta, buti nga, suntok
lang ang inabot nyan. Sa harap ni Alex, ni Joe, ni Stanley, hinamon ako. Pare, hinamon
ako, kinig nyo ha. Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.

Petitioner Felipe Navarro claims that it was the deceased who tried to hit him twice, but he
(petitioner) was able to duck both times, and that Lingan was so drunk he fell on the floor twice,
each time hitting his head on the concrete.26

In giving credence to the evidence for the prosecution, the trial court stated:

After a thorough and in-depth evaluation of the evidence adduced by the prosecution and
the defense, this court finds that the evidence for the prosecution is the more credible,
concrete and sufficient to create that moral certainty in the mind of the court that accused
herein is criminally responsible.

The defense's evidence which consists of outright denial could not under the
circumstance overturn the strength of the prosecution's evidence.
 This court finds that the prosecution witnesses, more particularly Stanley Jalbuena,
lacked any motive to make false accusation, distort the truth, testify falsehood or cause
accusation of one who had neither brought him harm or injury.

Going over the evidence on record, the postmortem report issued by Dra. Eva Yamamoto
confirms the detailed account given by Stanley Jalbuena on how Lingan sustained head
injuries.

Said post-mortem report together with the testimony of Jalbuena sufficiently belie the
claim of the defense that the head injuries of deceased Lingan were caused by the latter's
falling down on the concrete pavement head first.

The Court of Appeals affirmed:

We are far from being convinced by appellant's aforesaid disquisition. We have carefully
evaluated the conflicting versions of the incident as presented by both parties, and we
find the trial court's factual conclusions to have better and stronger evidentiary support.

In the first place, the mere fact that Jalbuena was himself a victim of appellant's
aggression does not impair the probative worth of his positive and logical account of the
incident in question. In fact, far from proving his innocence, appellant's unwarranted
assault upon Jalbuena, which the defense has virtually admitted, clearly betrays his
violent character or disposition and his capacity to harm others. Apparently, the same
motivation that led him into assailing Jalbuena must have provoked him into also
attacking Lingan who had interceded for Jalbuena and humiliated him and further
challenged to a fist fight.1âwphi1.nêt

xxx xxx xxx

On the other hand, appellant's explanation as how Lingan was injured is too tenuous and
illogical to be accepted. It is in fact contradicted by the number, nature and location of
Lingan's injuries as shown in the post-mortem report (Exh. D). According to the defense,
Lingan fell two times when he was outbalanced in the course of boxing the appellant.
And yet, Lingan suffered lacerated wounds in his left forehead, left eyebrow, between his
left and right eyebrows, and contusion in the right temporal region of the head (Exh. E.).
Certainly, these injuries could not have been resulted from Lingan's accidental fall.

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE NOT IN

ACCORD WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE
SUPREME COURT. ITS CONCLUSION IS A FINDING BASED ON SPECULATION,
SURMISE OR CONJECTURE; THE INFERENCE IT MADE IS MANIFESTLY
MISTAKEN, ABSURD OR IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF
DISCRETION; ITS JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS;
 ITS FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS
FINDING IS DEVOID OF SUPPORT IN THE RECORD.

The appeal is without merit.

First. Petitioner Navarro questions the credibility of the testimony of Jalbuena on the ground that
he was a biased witness, having a grudge against him. The testimony of a witness who has an
interest in the conviction of the accused is not, for this reason alone, unreliable.27 Trial courts,
which have the opportunity observe the facial expressions, gestures, and tones of voice of a
witness while testifying, are competent to determine whether his or her testimony should be
given credence.28 In the instant case, petitioner Navarro has not shown that the trial court erred in
according weight to the testimony of Jalbuena.

Indeed, Jalbuena's testimony is confirmed by the voice recording had made. It may be asked
whether the tape is admissible in view of R.A. No. 4200, which prohibits wire tapping. The
answer is in the affirmative. The law provides:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties to any
private communication or spoken word, to tap any wire or cable, or by using any other
device or arrangement, to secretly overhear, intercept, or record such communication or
spoken word by using a device commonly known as dictaphone or dictagraph of
dectectaphone or walkie-talkie or tape-recorder, or however otherwise described:

It shall also be unlawful for any person, be he a participant or not in the act or acts
penalized in the next preceding sentence, to knowingly possess any tape record, wire
record, disc record, or any other such record, or copies thereof, of any communication or
spoken word secured either before or after the effective date of this Act in the manner
prohibited by this law; or to replay the same for any other person or persons; or to
communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, That
the use of such record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in section 3 hereof, shall not be covered by
this prohibition.

xxx xxx xxx

Sec. 4. Any communication or spoken word, or the existence, contents, substance,

purport, effect, or meaning of the same or any part thereof, or any information therein
contained obtained or secured by any person in violation of the preceding sections of this
Act shall not be admissible in evidence in any judicial, quasi-judicial, legislative or
administrative hearing or investigation.

Thus, the law prohibits the overhearing, intercepting, or recording of private communications.29
Since the exchange between petitioner Navarro and Lingan was not private, its tape recording is
not prohibited.
Nor is there any question that it was duly authenticated. A voice recording is authenticated by the
testimony of a witness (1) that he personally recorded the conversations; (2) that the tape played
in the court was the one he recorded; and (3) that the voices on the tape are those of the persons
such are claimed to belong.30 In the instant case, Jalbuena testified that he personally made the
voice recording;31 that the tape played in the court was the one he recorded;32 and that the
speakers on the tape were petitioner Navarro and Lingan.33 A sufficient foundation was thus laid
for the authentication of the tape presented by the prosecution.

Second. The voice recording made by Jalbuena established: (1) that there was a heated exchange
between petitioner Navarro and Lingan on the placing in the police blotter of an entry against
him and Jalbuena; and (2) that some form of violence occurred involving petitioner Navarro and
Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the body of Lingan, issued the
medical certificate,34 dated February 5, 1990, containing the following findings:

Post Mortem Findings:

= Dried blood, forehead & face

= No blood oozed from the ears, nose & mouth

= Swelling, 3 cm x 2 cm, temporal region, head, right

= Lacerated wound, 2 cm in length, 1-2 in depth, lateral eyebrow, Left

= Lacerated wound, 0.5 cm in length, superficial, between the left & right
eyebrow

= Lacerated wound, 2 cm in length, 1 cm in depth, forehead, Left

= Cyanosis of the tips of fingers & toes

CAUSE OF DEATH:

= CEREBRAL CONCUSSION & SHOCK

= BLOW ON THE HEAD

Dr. Yamamato testified:

Q Give your opinion as to what was the possible cause of this findings number one,
which is oozing of blood from the forehead?

A It may be due to a blow on the forehead or it bumped to a hard object, sir.

Q Could a metal like a butt of a gun have caused this wound No. 1.?

A It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a concrete floor?

A Possible, sir.

FISCAL:

What could have been the cause of the contusion and swelling under your findings No.
2 doctor?

WITNESS:

It may be caused by bumping to a hard object, sir.

Q Could a butt of a gun have caused it doctor?

A The swelling is big so it could have not been caused by a butt of a gun because the
butt of a gun is small, sir.

Q How about this findings No. 4?

A By a bump or contact of the body to a hard object, sir.

Q And findings No. 5 what could have caused it?

A Same cause, sir.

Q This findings No. 6 what could have caused this wound?

A Same thing sir.

Q How about the last finding, cyanosis of tips of fingers and toes, what could have
caused it doctor?

WITNESS:

It indicates there was cardiac failure, sir.

FISCAL:

In this same post mortem report and under the heading cause of death it states: Cause
of Death: Cerebral concussion and Shock, will you explain it?
A Cerebral concussion means in Tagalog "naalog ang utak" or jarring of the brain, sir.

Q What could have been the cause of jarring of the brain?

A It could have been caused by a blow of a hard object, sir.

Q What about the shock, what could have caused it?

A It was due to peripheral circulatory failure, sir.

Q Could any one of both caused the death of the victim?

A Yes, sir.

Q Could cerebral concussion alone have caused the death of the deceased?

A May be, sir.

FISCAL:

Which of these two more likely, to cause death?

WITNESS:

Shock, sir.

Q Please explain further the meaning of the medical term shock?

A It is caused by peripheral circulatory failure as I have said earlier sir.

xxx xxx xxx

FISCAL:

Could a bumping or pushing of one's head against a concrete floor have caused shock?

WITNESS:

Possible, sir.

How about striking with a butt of a gun, could it cause shock?

A Possible, sir.35
The above testimony clearly supports the claim of Jalbuena that petitioner Navarro hit
Lingan with the handle of his pistol above the left eyebrow and struck him on the
forehead with his fist.

Third. It is argued that the mitigating circumstances of sufficient provocation or threat on

the part of the offended party immediately preceding the act should have been
appreciated in favor of petitioner Navarro. Provocation is defined to be any unjust or
improper conduct or act of the offended party, capable of exciting, inciting or irritating
anyone.36 The provocation must be sufficient and should immediately precede the act. 37
To be sufficient, it must be adequate to excite a person to commit the wrong, which
must accordingly be proportionate in gravity.38 And it must immediately precede the act
so much so that there is no interval between the provocation by the offended party and
the commission of the crime by the accused.39

In the present case, the remarks of Lingan, which immediately preceded the act of
petitioner, constituted sufficient provocation. In People v. Macaso,40 we appreciated this
mitigating circumstance in favor of the accused, a policeman, who shot a motorist after
the latter had repeatedly taunted him with defiant words. Hence, this mitigating
circumstance should be considered in favor of petitioner Navarro.

Furthermore, the mitigating circumstance that the offender had no intention to commit
so grave a wrong as that committed should also be appreciated in favor of petitioner.
The frantic exclamations of petitioner Navarro after the scuffle that it was Lingan who
provoked him shows that he had no intent to kill the latter. Thus, this mitigating
circumstance should be taken into account in determining the penalty that should be
imposed on petitioner Navarro. The allowance of this mitigating circumstance is
consistent with the rule that criminal liability shall be incurred by any person committing
a felony although the wrongful act done be different from that which he intended. 41 In
People v. Castro,42 the mitigating circumstance of lack of intent to commit so grave a
wrong as that committed was appreciated in favor of the accused while finding him
guilty of homicide.

However, the aggravating circumstance of commission of a crime in a place where the

public authorities are engaged in the discharge of their duties should be appreciated
against petitioner Navarro. The offense in this case was committed right in the police
station where policemen were discharging their public functions.43

The crime committed as found by the trial court and the Court of Appeals was homicide,
for which the penalty under Art. 249 of the Revised Penal Code is reclusion temporal.
As there were two mitigating circumstances and one aggravating circumstances, the
penalty should be fixed in its minimum period.44 Applying the Indeterminate Sentence
Law, petitioner Navarro should be sentenced to an indeterminate penalty, the minimum
of which is within the range of the penalty next lower degree, i.e., prision mayor, and the
maximum of which is reclusion temporal in its minimum period.45
The indemnity as increased by the Court of Appeals from P30,000.00 to P50,000.00 is
in accordance with the current jurisprudence.46

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the modification
that petitioner Felipe Navarro is hereby SENTENCED to suffer a prison terms of 18
years of prision mayor, as minimum, to 14 years and 8 months of reclusion temporal, as
maximum.

SO ORDERED.1âwphi1.nêt

Bellosillo, Quisumbing and Buena, JJ., concur.

Footnotes

1Per Justice Godardo A. Jacinto and concurred in by Justices Ricardo J.

Francisco and Ramon A. Barcelona.
2 TSN, pp. 4-8, May 28, 1990.
3 Id., pp. 9-10.
4 Id., p. 10.
5 Id., pp. 10-11.
6 Id., p. 11.
7 Id., pp. 11-14.
8 Id., p. 15.
9 Id., pp. 16-17.
10 Id., p. 20.
11 Id., p. 23.
12 Ibid.
13 Id., p. 24.
14 Ibid.
15 Id., p. 25.
16 Ibid.
17 Id., p. 26.
18 Ibid.
19 Id., pp. 26-32.
20 Id., p. 32.
21 Id., p. 34.
22 Id., pp. 34-35.
23 Id., pp. 35-37.
24 Id., pp. 45-53.

25 TSN, pp. 8-11, June 26, 1990.

26 TSN, pp. 5-6, Sept. 16, 1991.
27 See People v. Mandal, 188 SCRA 526 (1990).

28 People v. Padilla, G.R. No. 126124, January 20, 1999.

29 Ramirez v. Court of Appeals, 248 SCRA 590 (1995).
30 United States v. Jones, 730 F. 2d. 593 (1984).
31 TSN, pp. 8-22.
32 Id., pp. 11-13.
33 Id., p. 11.

34 Records, p. 56.
35 TSN, pp. 7-11, Aug. 23, 1990.
36 Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.
 37 People v. Paga, 79 SCRA 570 (1977).
38 People v. Nabora, 73 Phil. 434 (1941).
39 Supra, note 35.

40 64 SCRA 659 (1975).

41 REVISED PENAL CODE, Art. 4.
42 117 SCRA 1014 (1982).
43 People v. Regala, 113 SCRA 613 (1982).
44 REVISED PENAL CODE, Art. 64.
45 Act No. 4103, §1.
46 E.g., Pepito v. Court of Appeals, G.R. No. 119942, July 8, 1999.

The Lawphil Project - Arellano Law Foundation

Navarro vs. Court of Appeals, 313 SCRA 153 (1999)

FACTS:
Two local media men, Stanley Jalbuena, Enrique Lingan, in Lucena City wnet to the police
station to report alledged indecent show in one of the night establishment shows in the City. At
the station, a heated confrontation followed between victim Lingan and accused policeman
Navarro who was then having drinks outside the headquarters, lead to a fisticuffs. The victim
was hit with the handle of the accused's gun below the left eyebrow, followed by a fist blow,
resulted the victim to fell and died under treatment. The exchange of words was recorded on
tape, specifically the frantic exclamations made by Navarro after the altercation that it was the
victim who provoked the fight. During the trial, Jalbuena, the other media man , testified.
Presented in evidence to confirm his testimony was a voice recording he had made of the heated
discussion at the police station between the accused police officer Navarro and the deceased,
Lingan, which was taken without the knowledge of the two.

ISSUES:
1. Whether or not the voice recording is admissible in evidence in view of RA 4200, which
prohibits wire tapping.

2. Whether the mitigating circumstances of sufficient provocation or threat on the part of the
offended party and lack of intention to commit so grave a wrong may be appreciated in favor of
the accused.

HELD:
1. The answer is affirmative, the tape is admissible in view of RA 4200, which prohibits
wire tapping. Jalbuena's testimony is confirmed by the voice recording he had made.

The law prohibits the overhearing, intercepting, or recording of private communications

(Ramirez v Cpourt of Appeals, 248 SCRA 590 [1995]). Snce the exchange between petitioner
Navarro and Lingan was not private, its tape recording is not prohibited.

2. The remarks of Lingan, which immediately preceded the acts of the accused, constituted
sufficient provocation. Provocation is said to be any unjust or improper conduct of the offended
party capable of exciting, annoying or irritating someone. The provocation must be sufficient and
must immediately precede the act; and in order to be sufficient, it must be adequate to excite a
person to commit the wrong, which must be accordingly proportionate in gravity. The mitigating
circumstance of lack of intention to commit so grave a wrong must also be considered. The
exclamations made by Navarro after the scuffle that it was Lingan who provoked him showed
that he had no intent to kill the latter.

G.R. No. 116763 April 19, 1996

GOVERNOR RODOLFO C. FARIÑAS and AL NACINO, petitioners,

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

MENDOZA, J.:p

The question in this case is: In case of a permanent vacancy in the Sangguniang Bayan caused by the cessation from office of a member
who does not belong to any political party, who can appoint the replacement and in accordance with what procedure?

This case arose from the following 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, the mayor, respondent Angelo M. Barba, recommended to the Governor of the province,
respondent Rodolfo C. Fariñas, the appointment of respondent Edward Palafox.

A similar 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 §56 of the Local Government Code (R.A. No. 7160).1

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, and therefore, the Resolution
should be addressed to the Provincial Governor." Accordingly, the Sangguniang Panlalawigan recommended to the Governor the
appointment of petitioner Al Nacino, vice Carlito Domingo, as member of the Sangguniang Bayan of San Nicolas. On June 8, 1994, petitioner
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 8, 1994. The next day,
June 9, 1994, respondent Palafox took his oath as member of the Sangguniang Bayan.
On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo warranto and prohibition, entitled "Governor
Rodolfo C. Fariñas and Al Nacino v. Mayor Angelo M. Barba, Vice Mayor Manuel S. Hernando, Jr. and Edward D. Palafox."

On July 8, 1994 the trial court rendered its decision, upholding the appointment of respondent Palafox by respondent Mayor Barba. It held:

Under the facts and circumstances as shown clearly in the case, there is no doubt the law that is applicable is sub-
section "C" of Section 45 of Republic Act No. 7160 otherwise known as the Local Government Code of 1991 which
provides:

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 the recommendation of the Sanggunian
concerned, appoint a qualified person to fill the vacancy.

. . . Inasmuch as the permanent vacancy is in the Sanggunian Bayan of San Nicolas, Ilocos Norte, it is the Sanggunian
concerned referred to in the law which recommends the appointment to fill the vacancy. . . This being so, the Local
Chief Executive referred to in sub-section "C" of Section 45 of Republic Act No. 7160 is the Municipal Mayor of San
Nicolas, Ilocos Norte.

It cannot be denied that the Governor has the authority to appoint a qualified person to fill the vacancy in the
Sanggunian Bayan caused by resignation of a member thereof as that is vested in him or her by the Provision of No. 2,
Sec. 45 of Republic Act No. 7160. To the mind of the court that authority is not vested in him or her where the
permanent vacancy is caused by a Sanggunian Member who does not belong to any political party as that authority is
specifically vested upon the Local Chief Executive upon recommendation of the Sanggunian concerned as per sub-
section "C" of Section 45 of the same Republic Act No. 7160. Under No. 2 of Sec. 45 aforementioned the law does not
require a recommendation for the appointment of Sanggunian Bayan Member to fill a permanent vacancy either from
the Sangguniang Panlalawigan or from the Sanggunian Bayan. . . As such there can be no other person referred to as
the Local Chief Executive having the authority to appoint other than the Municipal Mayor of the Municipality of the
Sanggunian Bayan where there is permanent vacancy. This can be clearly inferred from the two (2) provisions of the
law (No. 2 and sub-section C of Sec. 45 of Rep. Act No. 7160). While No. 2 of Sec. 45 specifically vests the power to
appoint in the Governor, sub-sec. C of Sec. 45, specifically vests the power to appoint in the Local Chief Executive.
The Local Chief Executive specifically mentioned in said sub-section C of Sec. 45 is not the Governor, for there would
have been no need for the law making body to have specifically stated in the law if it had intended that the Governor is
that one and the same Local Chief Executive vested with power to appoint.

Petitioners filed a motion for reconsideration, but this was denied by the trial court on August 18, 1994. Hence this petition for review on
certiorari.

Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a result of the cessation from office of a
member who does not belong to a political party, is vested in the provincial governor upon recommendation of the Sangguniang
Panlalawigan.

The statutory provision in question is §45 of the Local Government Code of 1991 (R.A. No . 7160) which reads:

§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 panlungsod of highly urbanized cities and independent component cities;

(2) The governor, in the case of the sangguniang panlungsod of component cities and the
sangguniang bayan;

(3) The city or municipal mayor, in the case of the 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 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.

[1] Since the vacancy in this case was created by a Sanggunian member who did not belong to any political party, the specific provision
involved is par. (c), to wit:

(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.

But who is the "local chief executive" referred? And which is the "sanggunian concerned"? With respect to the first ("local chief executive"),
petitioners look to §45(a) for the answer and say that it is the governor, with respect to vacancies in the Sangguniang Panlungsod of
component cities and Sangguniang Bayan, or the mayor with respect to vacancies in the Sangguniang Barangay.

In support of this view, they cite, first of all, the following provision of the former Local Government Code (B.P. Blg. 337):

§50. Permanent Vacancies in the Local Sanggunians. — In case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of the
Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the
vacancy in the sangguniang panlalawigan and the sangguniang panglungsod; the governor, in the case of
sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang barangay members. Except
for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member who
caused the vacancy, and shall serve the unexpired term of the vacant office.

and, second, the following provision of the present Code:

§63. Preventive Suspension. — (a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent
component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay. . . .

Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the power to appoint implies the power to
remove, but because implicit in these provisions is a policy to vest in the President, the governor and the mayor in descending order the
exercise of an executive power whether to appoint in order to fill vacancies in local councils or to suspend local officials. These provisions are
in pari materia with §45.

To be sure the President of the Philippines can not be referred to as "local chief executive" in §45(c) but it is apparent that the phrase is a
misnomer and that the choice of this phrase was simply dictated by the need to avoid, for stylistic reasons, interminably repeating the officials
on whom the power to appoint is conferred. Perhaps "authorities concerned" would have been a more accurate generic phrase to use.

For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater, difficulty. For §45(a) (3) vests the
power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief executive of a barangay is not the mayor. It is the
punong barangay. Yet "local chief executive" cannot be applied to the punong barangay without rendering §45(a) (3) meaningless. For then
there would never be any occasion when the mayor, under this provision, can appoint a replacement for a member of the Sangguniang
Bayan who for one reason or another ceases from office for reason other than the expiration of his term. And why should a vacancy in the
Sangguniang Panlalawigan be filled by a different authority (the governor, according to this view) simply because the vacancy was created
by a member who does not belong to a political party when, according to §45(a) (1), a vacancy created by a member who belongs to a
political party must be filled by appointment by the President of the Philippines?

With reference to the phrase "sangguniang concerned" in §45(c), petitioners say it means, with respect to a vacancy in the Sangguniang
Bayan, the Sangguniang Panlalawigan. Their reason is that under §61 of the Code, the power to investigate complaints against elective
municipal officials is vested in the Sangguniang Panlalawigan:

§61. Form and Filing of Administrative Complaints — A verified complaint against any erring local elective official shall
be prepared as follows:
 (a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or a
component city shall be filed before the Office of the President;

(b) A complaint against any elective official of a municipality shall be filed before the sanggunian panlalawigan whose
decision may be appealed to the Office of the President;

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang
bayan concerned whose decision shall be final and executory.

This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay it is the Sangguniang Barangay which
under §45(a) (3) recommends the appointee, not the Sangguniang Panlungsod or the Sangguniang Bayan, which would be the case if
petitioners' view were to prevail.

We think that the phrase "sanggunian concerned" in §45(c) should more properly be understood as referring to the Sanggunian in which the
vacancy is created. This is in keeping with the policy implicit in §45(a) (3).

In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for the filling of vacancies in the
various Sanggunians when these vacancies are created as a result of the cessation from office (other than expiration of term) of members
who belong to political parties. On the other hand, §45(c) must be understood as providing for the filling of vacancies created by members
who do not belong to any political party. Consequently, §45 must be construed to mean that —

I. Where the Permanent Vacancy is Caused by a Sanggunian Member Belonging to a Political Party

A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and

independent component cities — The President, through the Executive Secretary, upon the
nomination and certification of the political party to which the member who caused the vacancy
belonged, as provided in §45 (b).

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan — The Governor upon
the nomination and certification of the political party to which the member who caused the
vacancy belonged, as provided in §45 (b).

III. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political Party

A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and

independent component cites — The President, through the Executive Secretary, upon
recommendation of the Sangguniang Panlalawigan or Sangguniang Panlungsod as the case may
be

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan — The Governor upon
recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as the case may be

III. Where the Vacancy is Caused by a Member of the Sangguniang Barangay — City or Municipal Mayor upon
recommendation of the Sangguniang Barangay

There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein caused by the cessation from office of a
member must be made by the mayor upon the recommendation of that Sanggunian. The reason is that members of the Sangguniang
Barangay are not allowed to have party affiliations.

Indeed there is no reason for supposing that those who drafted §45 intended to make the manner of filling vacancies in the Sanggunians,
created by members who do not belong to any political party, different from the manner of filling such vacancies when created by members
who belong to political party or parties. The provision for the first must approximate the provision for the second situation. Any difference in
procedure must be limited to the fact that in the case of vacancies caused by those who have political affiliations there is a party which can
nominate a replacement while there is none in the case of those who have no political affiliation. Accordingly, where there is no political party
to make a nomination, the Sanggunian, where the vacancy occurs, must be considered the appropriate authority for making the
recommendation, by analogy to vacancies created in the Sangguniang Barangay whose members are by law prohibited from having any
party affiliation.

[2] Having determined that appointments in case of vacancies caused by Sanggunian members who do not belong to any political party must
be made in accordance with the "recommendation" of the Sanggunians concerned where the vacancies occur, the next question is: Is the
appointing authority limited to the appointment of those "recommended" to him? We think an affirmative answer must be given to the
question. The appointing authority is not bound to appoint anyone recommended to him by the Sanggunian concerned. The power of
appointment is a discretionary power. On the other hand, neither is the appointing power vested with so large a discretion that he can
disregard the recommendation of the Sanggunian concerned, Since the recommendation takes the place of nomination by political party, the
recommendation must likewise be considered a condition sine qua non for the validity of the appointment, by analogy to the provision of
§45(b).

[3] 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 discussion, 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.

WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it dismisses petitioners' action for quo warranto and
prohibition, is AFFIRMED, but for different reasons from those given by the trial court in its decision.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Hermosisisma, Jr. and Panganiban, JJ.,
concur.

Francisco, J., is on leave.

Torres, Jr., J., took no part.

Footnotes

1 Actually this provision only authorizes the Sangguniang Panlalawigan to review component city or municipal ordinances of all
kinds and resolutions dealing with local development plans and public investment programs formulated by the local development
councils. The resolution of the Sangguniang Bayan is obviously not of this nature, so a review of the same by the Sangguniang
Panlalawigan was not required.

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