Section 89. Prohibited Business and Pecuniary Interest.
Although Section 90 of
- Republic Act 7160 (The Local Government Code) provides
(a) It shall be unlawful for any local government official or
employee, directly or indirectly, to:
(1) Engage in any business transaction with the local
government unit in which he is an official or employee or
over which he has the power of supervision, or with any of
its authorized boards, officials, agents, or attorneys,
whereby money is to be paid, or property or any other thing
of value is to be transferred, directly or indirectly, out of the
resources of the local government unit to such person or
firm;
(2) Hold such interests in any cockpit or other games
licensed by a local government unit;
(3) Purchase any real estate or other property forfeited in
favor of such local government unit for unpaid taxes or
assessment, or by virtue of a legal process at the instance of
the said local government unit;
(4) Be a surety for any person contracting or doing business
with the local government unit for which a surety is
required; and
(5) Possess or use any public property of the local
government unit for private purposes.
(b) All other prohibitions governing the conduct of national
public officers relating to prohibited business and pecuniary
interest so provided for under Republic Act Numbered Sixty-
seven thirteen (R.A. No. 6713) otherwise known as the
"Code of Conduct and Ethical Standards for Public Officials
and Employees" and other laws shall also be applicable to
local government officials and employees.
Section 90. Practice of Profession. -
(a) All governors, city and municipal mayors are prohibited
from practicing their profession or engaging in any
occupation other than the exercise of their functions as
local chief executives.
(b) Sanggunian members may practice their professions,
engage in any occupation, or teach in schools except during
session hours: Provided, That sanggunian members who are
also members of the Bar shall not:
(1) Appear as counsel before any court in any civil case
wherein a local government unit or any office, agency, or
instrumentality of the government is the adverse party;
(2) Appear as counsel in any criminal case wherein an
officer or employee of the national or local government is
accused of an offense committed in relation to his office.
(3) Collect any fee for their appearance in administrative
proceedings involving the local government unit of which he
is an official; and
(4) Use property and personnel of the government except
when the sanggunian member concerned is defending the
interest of the government.
(c) Doctors of medicine may practice their profession even
during official hours of work only on occasions of
emergency: Provided, That the officials concerned do not
derive monetary compensation therefrom.
Republic of the Philippines v. Rambuyong (G.R. No.
167810, 04 October 2010)
Alfredo Y. Chu (Chu) filed a case for collection of a sum of
money and/or damages against the National Power
Corporation (NPC) docketed as Civil Case No. I-197 which
was raffled to the Regional Trial Court (RTC) of Ipil,
Zamboanga Sibugay, Branch 24; appearing as counsel for
Chu is Atty. Richard B. Rambuyong (Atty. Rambuyong) who
was then the incumbent Vice-Mayor of Ipil, Zamboanga
Sibugay. Thereafter, NPC filed a Motion for Inhibition of
Atty. Rambuyong arguing that under Section 90(b), (1) of
Republic Act (RA) No. 7160, otherwise known as the Local
Government Code, sanggunian members are prohibited “to
appear as counsel before any court wherein x x x any office,
agency or instrumentality of the government is the adverse
party.” NPC contended that being a government-owned or
controlled corporation, it is embraced within the term,
“instrumentality.”
ISSUE: Whether NPC is an instrumentality of government
such that Atty. Rambuyong, as a Sanggunian member,
should not appear as counsel against it.
Section 2 of the Administrative Code of 1987 is clear and
unambiguous. It categorically provides that the term
“instrumentality” includes government -owned or -controlled
corporations. Hence there is no room for construction. All
that has to be done is to apply the law as called for by the
circumstances of the case. Wherefore, pursuant to Sec.
90(b) (1) of the Local Government Code, Atty. Rambuyong,
as Sanggunian member, cannot appear as counsel of a
party adverse to
the NPC, which is an instrumentality of government.
Catu v. Rellosa (A.C. No. 5738, 19 February 2008)
DOCTRINE: Rellosa may appear as counsel of two of the
parties subject to authorization from the Department of
Interior and Local Government.
that local officials, governors, city mayors and municipal
mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their
functions as local chief executives, punong barangays are
not mentioned in this prohibition in the Local Government
Code. Therefore, Rellosa as Punong Barangay was not
forbidden to practice his profession. However, he violated
the Revised Civil Service Rules, particularly Sec. 12 which
prohibits officers or employees from directly engaging in any
private business, vocation or profession without written
permission from the head of the department. As punong
barangay, Rellosa should have obtained prior written
permission from the Secretary of Interior and Local
Government before entering his appearance as counsel of
two of the parties.
Complainant Wilfredo Catu is a co-owner of a lot and
building erected at Malate, Manila. With his mother and
brother, contested the possession of Elizabeth Catu and
Antonio Pastor of one of the units in the building. The latter
ignored demands to vacate the premises. Thus, a complaint
was initiated against them in the Lupong Tagapamayapa in
their barangay. Respondent Atty Vicente Rellosa, as Punong
Barangay summoned the parties to conciliation meetings.
But the parties failed to arrive at an amicable settlement,
thus, respondent issued a certification for the filing of the
appropriate action in court. Thereafter, Catu's mother and
brother filed a complaint for ejectment against Elizabeth
and Pastor in the MTC. Respondent entered his appearance
as counsel for the defendants in that case.
ISSUE: WON the respondent can represent the
defendant in the ejectment case while he is an
incumbent public official.
Under RA 7160, elective local officials of provinces, cities,
municipalities and barangays are the following: the
governor, the vice governor and members of the
sangguniang panlalawigan for provinces;
Unlike governors, city mayors and municipal mayors,
members of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan are required to hold
regular sessions only at least once a week.
Since the law itself grants them the authority to practice
their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need
for them to secure prior permission or authorization from
any other person or office for any of these purposes.
While, as already discussed, certain local elective officials
(like governors, mayors, provincial board members and
councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any
occupation, no such interdiction is made on the punong
barangay and the members of the sangguniang barangay.
Expressio unius est exclusio alterius. Since they are
excluded from any prohibition, the presumption is that they
are allowed to practice their profession. However, A Lawyer
In Government Service Who Is Not Prohibited To Practice
Law Must Secure Prior Authority From The Head Of His
Department. A civil service officer or employee whose
responsibilities do not require his time to be fully at the
disposal of the government can engage in the private
practice of law only with the written permission of the head
of the department concerned.
Prohibition against appointment
FLORES V DRILON
Petitioners, taxpayers and employees of U.S facilities at
Subic, challenge the constitutionality of Sec. 13 (d) of the
Bases Conversion and Development Act of 1992 which
directs the President to appoint a professional manager as
administrator of the SBMA…provided that “for the 1st year
of its operations, the mayor of Olongapo City (Richard
Gordon) shall be appointed as the chairman and the CEO of
the Subic Authority.”
ISSUES
(1) Whether the proviso violates the constitutional
proscription against appointment or designation of elective
officials to other government posts.
(2) Whether or not the SBMA posts are merely ex officio to
the position of Mayor of Olongapo City and thus an excepted
circumstance.
(3) Whether or not the Constitutional provision allowing an
elective official to receive double compensation (Sec. 8, Art.
IX-B) would be useless if no elective official may be
appointed to another post.
(4) Whether there is legislative encroachment on the
appointing authority of the President.
(5) Whether Mayor Gordon may retain any and all per
diems, allowances and other emoluments which he may
have received pursuant to his appointment.
(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: No
elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure. Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall
hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. The subject proviso directs the President
to appoint an elective official i.e. the Mayor of Olongapo
City, to other government post (as Chairman and CEO of
SBMA). This is precisely what the Constitution prohibits. It
seeks to prevent a situation where a local elective official will
work for his appointment in an executive position in
government, and thus neglect his constitutents.
(2) NO, Congress did not contemplate making the SBMA
posts as automatically attached to the Office of the Mayor
without need of appointment. The phrase “shall be
appointed” unquestionably shows the intent to make the
SBMA posts appointive and not merely adjunct to the post
of Mayor of Olongapo City.
(3) NO, Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example,
an elective official who may be appointed to a cabinet post,
may receive the compensation attached to the cabinet
position if specifically authorized by law.
(4) YES, although Section 13(d) itself vests in the President
the power to appoint the Chairman of SBMA, he really has
no choice but to appoint the Mayor of Olongapo City. The
power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to
appoint. Hence, when Congress clothes the President with
the power to appoint an officer, it cannot at the same time
limit the choice of the President to only one candidate. Such
enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular
restriction on the power of appointment. While it may be
viewed that the proviso merely sets the qualifications of the
officer during the first year of operations of SBMA, i.e., he
must be the Mayor of Olongapo City, it is manifestly an
abuse of congressional authority to prescribe qualifications
where only one, and no other, can qualify. Since the
ineligibility of an elective official for appointment remains all
throughout his tenure or during his incumbency, he may
however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be
considered fit for appointment. Consequently, as long as he
is an incumbent, an elective official remains ineligible for
appointment to another public office.
(5) YES, as incumbent elective official, Gordon is ineligible
for appointment to the position of Chairman and CEO of
SBMA; hence, his appointment thereto cannot be sustained.
He however remains Mayor of Olongapo City, and his acts
as SBMA official are not necessarily null and void; he may
be considered a de facto officer, and in accordance with
jurisprudence, is entitled to such benefits.
B. Elective officials
Qualifications/disqualifications
Jalosjos v. COMELEC and Cardino (2012)
Facts: A Petition for Cancellation of his Certificate of
Candidacy (COC) was filed against Jalosjos, a candidate for
Mayor of Dapitan City, on the ground that he made a false
material representation in his COC when he declared under
oath that he was eligible for the Office of Mayor— Jalosjos
was convicted by final judgment for robbery and sentenced
to prision mayor.
ISSUE: WON Jalosjos is disqualified.
Jalosjos made misrepresentations in his COC, and therefore
the same was null and void. Section 40 of the Local
Government Code provides that those who have received a
sentence of prisión mayor by final judgment are disqualified
from running for any elective local position, for the penalty
of prisión mayor automatically carries with it, by operation
of law, the accessory penalties of temporary absolute
disqualification (which deprives one of the right to vote and
being elected into office during the meting of the penalty)
and perpetual special disqualification which, upon the
finality of the judgment, will automatically render him
ineligible to run for any elective public office perpetually.
ROMEO G. JALOSJOS v. THE COMMISSION ON
ELECTIONS, et al.
FACTS: On November 16, 2001, the Court promulgated its
Decision convicting petitioner by final judgment.
Consequently, he was sentenced to suffer the principal
penalties of reclusion perpetua and reclusion temporal for
each count, respectively, which carried the accessory
penalty of perpetual absolute disqualification pursuant to
Article 41 of the Revised Penal Code. On April 30, 2007,
then President Gloria Macapagal-Arroyo issued an order
commuting his prison term to sixteen (16) years, three (3)
months and three (3) days.
On April 26, 2012, petitioner applied to register as a voter in
Zamboanga City. However, because of his previous
conviction, his application was denied by the Acting City
Election Officer of the Election Registration Board (ERB),
prompting him to file a Petition for Inclusion in the
Permanent List of Voters before the Municipal Trial Court in
Cities of Zamboanga City. Pending resolution of the same,
he filed a CoCon October 5, 2012, seeking to run as mayor
for Zamboanga City in the upcoming local elections
scheduled on May 13, 2013. In his CoC, petitioner
stated,inter alia,that he is eligible for the said office and that
he is a registered voter of Barangay Tetuan, Zamboanga
City.
On October 18, 2012,the MTCC denied his Petition for
Inclusion on account of his perpetual absolute
disqualification which in effect, deprived him of the right to
vote in any election. Such denial was affirmed by the
Regional Trial Court in its Order which, pursuant to Section
138 of Batas Pambansa Bilang 881, as amended, otherwise
known as the "Omnibus Election Code" (OEC), was
immediately final and executory.
The COMELEC En Banc issued motu proprio Resolution No.
9613 on January 15, 2013, resolving "to CANCEL and
DENY due course the Certificate of Candidacy filed by
Romeo G. Jalosjos as Mayor of Zamboanga City in the May
13, 2013 National and Local Elections" due to his perpetual
absolute disqualification as well as his failure to comply
with the voter registration requirement.
ISSUES: [1] Did the COMELEC En Banc act beyond its
jurisdiction when it issued motu proprio Resolution No.
9613 and in so doing, violated petitioner's right to due
process?
[2] Had petitioner's perpetual absolute disqualification
to run for elective office already been removed by
Section 40 (a) of the LGC?
The COMELEC En Banc did not exercise its quasi-judicial
functions when it issued Resolution No. 9613 as it did not
assume jurisdiction over any pending petition or resolve any
election case before it or any of its divisions. Rather, it
merely performed its duty to enforce and administer election
laws in cancelling petitioner's CoC on the basis of his
perpetual absolute disqualification, the fact of which had
already been established by his final conviction. In this
regard, the COMELEC En Banc was exercising its
administrative functions, dispensing with the need for a
motion for reconsideration of a division ruling under Section
3, Article IX-C of the Constitution, the same being required
only in quasi-judicial proceedings.
The denial of due course to and/or cancellation of one's CoC
generally necessitates the exercise of the COMELEC's quasi-
judicial functions commenced through a petition based on
either Sections 12 or 78of the OEC, or Section 40 of the
LGC, when the grounds therefore are rendered conclusive
on account of final and executory judgments as when a
candidate's disqualification to run for public office is based
on a final conviction.
There is also no violation of procedural due process since
the COMELEC En Banc would be acting in a purely
administrative manner.
The petitioner was sentenced to suffer the principal
penalties of reclusion perpetua and reclusion temporal
which, pursuant to Article 41 of the RPC, carried with it the
accessory penalty of perpetual absolute disqualification and
in turn, pursuant to Article 30 of the RPC, disqualified him
to run for elective office. As discussed, Section 40 (a) of the
LGC would not apply to cases wherein a penal provision
such as Article 41 in this case directly and specifically
prohibits the convict from running for elective office. Hence,
despite the lapse of two (2) years from petitioner's service of
his commuted prison term, he remains bound to suffer the
accessory penalty of perpetual absolute disqualification
which consequently, disqualifies him to run as mayor for
Zamboanga City.
It is well to note that the use of the word "perpetual" in the
aforementioned accessory penalty connotes a lifetime
restriction and in this respect, does not depend on the
length of the prison term, which is imposed as its principal
penalty. Instructive on this point is the Court's ruling in
Lacuna v. Abes,where the Court explained the meaning of
the term "perpetual" as applied to the penalty of
disqualification to run for public office.
The accessory penalty of temporary absolute disqualification
disqualified the convict for public office and for the right to
vote, such disqualification to last only during the term of
the sentence (Article 27, paragraph 3, & Article 30, Revised
Penal Code) that, in the case of Abes, would have expired on
13 October 1961.
But this does not hold true with respect to the other
accessory penalty of perpetual special disqualification for
the exercise of the right of suffrage. This accessory penalty
deprives the convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished from
temporary special disqualification, which lasts during the
term of the sentence. DISMISSED.
EFREN RACEL ARATEA,vs. COMMISSION ON
ELECTIONS and ESTELA D. ANTlPOLO, G.R. No.
195229, October 9, 2012
Lonzanida and Antipolo ran for Mayor of San Antonio,
Zambales in 2010. Rudolfo filed a petition under Section 78
of the Omnibus Election Code (OEC) to disqualify Lonzanida
and to deny due course or to cancel Lonzanida’s certificate
of candidacy on the ground that Lonzanida was elected, and
had served, as mayor of San Antonio, Zambales for four (4)
consecutive terms. The COMELEC Second Division
cancelled Lonzanida’s certificate of candidacy. Lonzanida’s
motion for reconsideration before the COMELEC En Banc
remained pending during said elections. Lonzanida and
Aratea garnered the highest number of votes
and were proclaimed Mayor and Vice-Mayor, respectively.
Vice-Mayor elect Aratea took his oath of office as Acting
Mayor.
Subsequently, the COMELEC En Banc disqualified
Lonzanida from running for Mayor based on two grounds:
(1), Lonzanida had served as Mayor for more than three
consecutive terms without interruption; and (2) Lonzanida
had been convicted by final judgment of ten counts of
falsification under the Revised Penal Code (RPC).
Second-placer Antipolo intervened and claimed her right to
be proclaimed as Mayor because Lonzanida ceased to be a
candidate when the COMELEC Division ordered the
cancellation of his certificate of candidacy and the striking
out of his name from the list of official candidates. Aratea
asserted that Antipolo could not be proclaimed as the
winning candidate. He reasoned that since Lonzanida’s
disqualification was not yet final during election day, the
votes cast in his favor could not be declared stray.
Lonzanida’s subsequent disqualification resulted in a
permanent vacancy in the Office of Mayor, and Aratea, as
the duly-elected Vice-Mayor was mandated to succeed as
Mayor.
ISSUE: Whether Lonzanida was disqualified under Section
68 of the OEC, or made a false material representation
under Section 78 of the OEC that resulted in his certificate
of candidacy being void ab initio .
Whether the second-placer or the Vice-Mayor elect should
succeed as Mayor in this case.
The Court ruled that Lonzanida was disqualified under Sec.
78 of the OEC. It also held that Antipolo, the "second
placer," should be proclaimed Mayor because Lonzanida’s
certificate of candidacy was void ab initio. In short,
Lonzanida was never a candidate at all. All votes for
Lonzanida were stray votes. Thus, Antipolo actually
garnered the highest number of votes for the position.
The qualifications and disqualifications are laid by Sections
39 and 40 of the Local Government Code. Section 40
expressly provides, among others: Sec. 40.
Disqualifications. - The following persons are disqualified
from running for any elective local position:
(a) Those sentenced by final judgment for an offense
involving moral turpitude or for an offense punishable by
one (1) year or more of imprisonment, within two (2) years
after serving sentence;
xxx
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. — Any person who has been
declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion,
insurrection, rebellion or for any offense for which he was
sentenced to a penalty of more than eighteen months or
for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office,
unless he has been given plenary pardon or granted
amnesty.
xxx
False Material Representation
Section 78 of the OEC states that a certificate of candidacy
may be denied or cancelled when there is false material
representation of the contents of the certificate of
candidacy.
Section 74 of the OEC details the contents of the certificate
of candidacy. This included among others a statement that
the person filing it is eligible for said office. The conviction of
Lonzanida by final judgment, with the penalty of prision
mayor, disqualifies him perpetually from holding any
public office, or from being elected to any public office.
This perpetual disqualification took effect upon the finality
of the judgment of conviction, before Lonzanida filed his
certificate of candidacy. The penalty of prisión mayor
automatically carries with it, by operation of law,
the accessory penalties of temporary absolute
disqualification and perpetual special disqualification.
Under Article 30 of the RPC, temporary absolute
disqualification produces the effect of "deprivation of the
right to vote in any election for any popular elective office or
to be elected to such office.” The duration of temporary
absolute disqualification is the same as that of the principal
penalty of prisión mayor . On the other hand, under Article
32 of the RPC, perpetual special disqualification means that
“the offender shall not be permitted to hold any public office
during the period of his disqualification, which is
perpetually. Both temporary absolute disqualification and
perpetual special disqualification constitute ineligibilities to
hold elective public office. A person suffering from these
ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his
certificate of candidacy that he is eligible to so run.
Lonzanida became ineligible perpetually to hold, or to run
for, any elective public office from the time the judgment of
conviction against him became final. The judgment of
conviction was promulgated on 20 July 2009 and became
final on 23 October 2009, before
Lonzanida filed his certificate of candidacy on 1 December
2009 .
Perpetual special disqualification is a ground for a petition
under Section 78 of the OEC because this accessory penalty
is an ineligibility, which means that the convict is not
eligible to run for public office, contrary to the statement
that Section 74 requires him to state under oath in his
certificate of candidacy. As this Court held in Fermin v.
Commission on Elections, the false material representation
may refer to “qualifications or
eligibility.” One who suffers from perpetual special
disqualification is ineligible to run for public office. If a
person suffering from perpetual special disqualification files
a certificate of candidacy stating under oath that "he is
eligible to run for (public) office,” as expressly required
under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section
78. The dissenting opinions place the violation of the three-
term limit rule as a disqualification under Section 68 as the
violation allegedly is "a status, circumstance or
condition which bars him from running for public office
despite the possession of all the qualifications under Section
39 of the LGC." In so holding the dissenting opinions write
in the law what is not found in the law. Legal Duty of
COMELEC to Enforce Perpetual Special Disqualification
Even without a petition, the COMELEC is under a legal duty
to cancel the certificate of candidacy of anyone suffering
from perpetual special disqualification to run for public
office by virtue of a final judgment of conviction. The final
judgment of conviction is judicial notice to the COMELEC of
the disqualification of the convict from running for public
office. A cancelled certificate of candidacy void ab initio
cannot give rise to a valid candidacy, and much less to valid
votes. Lonzanida’s disqualification is two -pronged: first, he
violated the constitutional fiat on the three-term limit; and
second, he is known to have been convicted by final
judgment for ten (10) counts of Falsification. In other words,
on election day, respondent Lonzanida’s disqualification is
notoriously known in fact and in law. Ergo, since
respondent Lonzanida was never a candidate for the
position, the votes cast for him should be considered stray
votes. Consequently, Intervenor Antipolo should now be
proclaimed as the duly elected Mayor.
JAPSON VS. COMELEC
Both petitioner Manuel B. Japzon (Japzon) and private
respondent Jaime S. Ty (Ty) were candidates for the Office of
Mayor of the Municipality of General Macarthur, Eastern
Samar, in the local elections held on 14 May 2007.
Japzon instituted SPA No. 07-568 by filing before the
COMELEC a Petition[5] to disqualify and/or cancel Ty's
Certificate of Candidacy on the ground of material
misrepresentation. Japzon averred in his Petition that Ty
was a former natural-born Filipino, having been born on 9
October 1943 in what was then Pambujan Sur, Hernani
Eastern Samar (now the Municipality of General Macarthur,
Easter Samar) to spouses Ang Chim Ty (a Chinese) and
Crisanta Aranas Sumiguin (a Filipino). Ty eventually
migrated to the United States of America (USA) and became
a citizen thereof. Ty had been residing in the USA for the
last 25 years. When Ty filed his Certificate of Candidacy on
28 March 2007, he falsely represented therein that he was a
resident of Barangay6, Poblacion, General Macarthur,
Eastern Samar, for one year before 14 May 2007, and was
not a permanent resident or immigrant of any foreign
country. While Ty may have applied for the reacquisition of
his Philippine citizenship, he never actually resided
in Barangay 6, Poblacion, General Macarthur, Eastern
Samar, for a period of one year immediately preceding the
date of election as required under Section 39 of Republic Act
No. 7160, otherwise known as the Local Government Code
of 1991 Inspite of having reacquisition in his Philippine
citizenship, Ty continued to make trips to the USA, the most
recent of which was on 31 October 2006 lasting until 20
January 2007. Ty already took his Oath of Allegiance to the
Republic of the Philippines, he continued to comport himself
as an American citizen as proven by his travel records. He
had also failed to renounce his foreign citizenship as
required by Republic Act No. 9225, otherwise known as the
Citizenship Retention and Reacquisition Act of 2003, or
related laws. Japzon prayed for in his Petition that the
COMELEC order the disqualification of Ty from running for
public office and the cancellation of the latter's Certificate of
Candidacy. Ty admitted that he was a natural-born Filipino
who went to the USA to work and subsequently became a
naturalized American citizen. Ty claimed, however, that
prior to filing his Certificate of Candidacy for the Office of
Mayor of the Municipality of General Macarthur, Eastern
Samar, on 28 March 2007, he already performed the
following acts: (1) with the enactment of Republic Act No.
9225, granting dual citizenship to natural-born Filipinos, Ty
filed with the Philippine Consulate General in Los Angeles,
California, USA, an application for the reacquisition of his
Philippine citizenship; (2) on 2 October 2005, Ty executed
an Oath of Allegiance to the Republic of the Philippines
before Noemi T. Diaz, Vice Consul of the Philippine
Consulate General in Los Angeles, California, USA; (3) Ty
applied for a Philippine passport indicating in his
application that his residence in the Philippines was at A.
Mabini St., Barangay 6, Poblacion, General Macarthur,
Eastern Samar. Ty's application was approved and he was
issued on 26 October 2005 a Philippine passport; (4) on 8
March 2006, Ty personally secured and signed his
Community Tax Certificate (CTC) from the Municipality of
General Macarthur, in which he stated that his address was
at Barangay 6, Poblacion, General Macarthur, Eastern
Samar; (5) thereafter, on 17 July 2006, Ty was registered as
a voter in Precinct 0013A, Barangay 6, Poblacion, General
Macarthur, Eastern Samar; (6) Ty secured another CTC
dated 4 January 2007 again stating therein his address
as Barangay 6, Poblacion, General Macarthur, Eastern
Samar; and (7) finally, Ty executed on 19 March 2007 a
duly notarized Renunciation of Foreign Citizenship. He had
reacquired his Philippine citizenship and renounced his
American citizenship, and he had been a resident of the
Municipality of General Macarthur, Eastern Samar, for
more than one year prior to the 14 May 2007 elections.
Therefore, Ty sought the dismissal of Japzon's Petition in
SPA No. 07-568.
Ty acquired the highest number of votes and was declared
Mayor of the Municipality of General Macarthur, Eastern
Samar, by the Municipal Board of Canvassers on 15 May
2007. The COMELEC First Division found that Ty complied
with the requirements of Sections 3 and 5 of Republic Act
No. 9225 and reacquired his Philippine citizenship, to wit:
Philippine citizenship is an indispensable requirement for
holding an elective public office, 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. Evidences revealed that Ty executed
an Oath of Allegiance before Noemi T. Diaz, Vice Consul of
the Philippine Consulate General, Los Angeles, California,
U.S.A. on October 2, 2005 and executed a Renunciation of
Foreign Citizenship on March 19, 2007 in compliance with
R.A. [No.] 9225. Moreover, neither is Ty a candidate for or
occupying public office nor is in active service as
commissioned or non-commissioned officer in the armed
forces in the country of which he was naturalized citizen. Ty
did not commit material misrepresentation in stating in his
Certificate of Candidacy that he was a resident
of Barangay 6, Poblacion, General Macarthur, Eastern
Samar, for at least one year before the elections on 14 May
2007. It reasoned that: Although Ty has lost his domicile in
[the] Philippines when he was naturalized as U.S. citizen in
1969, the reacquisition of his Philippine citizenship and
subsequent acts thereof proved that he has been a resident
of Barangay 6, Poblacion, General Macarthur, Eastern
Samar for at least one (1) year before the elections held on
14 May 2007 as he represented in his certificate of
candidacy.
The petition was denied and COMELEC was in favor of the
defendant failing to obtain a favorable resolution from the
COMELEC, Japzon proceeded to file the instant Petition
for Certiorari, that the COMELEC had committed grave
abuse of discretion and lack of discretion for dismissing the
petition.
Japzon prays for the Court to annul and set aside the
Resolutions dated 31 July 2007 and 28 September 2007 of
the COMELEC First Division and en banc, respectively; to
issue a new resolution denying due course to or canceling
Ty's Certificate of Candidacy; and to declare Japzon as the
duly elected Mayor of the Municipality of General
Macarthur, Eastern Samar. Ty sought the dismissal of the
present Petition. According to Ty, the COMELEC already
found sufficient evidence to prove that Ty was a resident of
the Municipality of General Macarthur, Eastern Samar, one
year prior to the 14 May 2007 local elections. The Court
cannot evaluate again the very same pieces of evidence
without violating the well-entrenched rule that findings of
fact of the COMELEC are binding on the Court. The Office of
the Solicitor General (OSG), meanwhile, is of the position
that Ty failed to meet the one-year residency requirement
set by law to qualify him to run as a mayoralty candidate in
the 14 May 2007 local elections.The Court finds no merit in
the Petition at bar. On 19 March 2007, he personally
executed a Renunciation of Foreign Citizenship before a
notary public. By the time he filed his Certificate of
Candidacy for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, on 28 March 2007, he
had already effectively renounced his American citizenship,
keeping solely his Philippine citizenship. The Court of
Appeals set aside the appealed orders of the COMELEC and
the Court of Appeals and annulled the election of the
respondent as Municipal Mayor of Bolinao, Pangasinan on
the ground that respondent's immigration to the United
States in 1984 constituted an abandonment of
his domicile and residence in the Philippines. Being a green
card holder, which was proof that he was a permanent
resident or immigrant of the United States, and in the
absence of any waiver of his status as such before he ran for
election on January 18, 1988, respondent was held to be
disqualified under §68 of the Omnibus Election Code of the
Philippines (Batas Pambansa Blg. 881).
ISSUE: Whether or not the defendant has complied with
the residency requirement for elective positions.
Yes, the defendant solely complied the residency
requirements for elective position. It bears to point out that
Republic Act No. 9225 governs the manner in which a
natural-born Filipino may reacquire or retain his Philippine
citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such
circumstances. A close scrutiny of said statute would reveal
that it does not at all touch on the matter of residence of the
natural-born Filipino taking advantage of its provisions.
Republic Act No. 9225 imposes no residency requirement
for the reacquisition or retention of Philippine citizenship;
nor does it mention any effect of such reacquisition or
retention of Philippine citizenship on the current residence
of the concerned natural-born Filipino. Clearly, Republic Act
No. 9225 treats citizenship independently of residence. This
is only logical and consistent with the general intent of the
law to allow for dual citizenship.
There is no basis for this Court to require Ty to stay in and
never leave at all the Municipality of General Macarthur,
Eastern Samar, for the full one-year period prior to the 14
May 2007 local elections so that he could be considered a
resident thereof. To the contrary, the Court has previously
ruled that absence from residence to pursue studies or
practice a profession or registration as a voter other than in
the place where one is elected, does not constitute loss of
residence. The Court also notes, that even with his trips to
other countries, Ty was actually present in the Municipality
of General Macarthur, Eastern Samar, Philippines, for at
least nine of the 12 months preceding the 14 May 2007
local elections. Even if length of actual stay in a place is not
necessarily determinative of the fact of residence therein, it
does strongly support and is only consistent with Ty's
avowed intent in the instant case to establish
residence/domicile in the Municipality of General
Macarthur, Eastern Samar. Japzon repeatedly brings to the
attention of this Court that Ty arrived in the Municipality of
General Macarthur, Eastern Samar, on 4 May 2006 only to
comply with the one-year residency requirement, so Ty
could run as a mayoralty candidate in the 14 May 2007
elections. In Aquino v. COMELEC,[the Court did not find
anything wrong in an individual changing residences so he
could run for an elective post, for as long as he is able to
prove with reasonable certainty that he has effected a
change of residence for election law purposes for the period
required by law. As this Court already found in the present
case, Ty has proven by substantial evidence that he had
established residence/domicile in the Municipality of
General Macarthur, Eastern Samar, by 4 May 2006, a little
over a year prior to the 14 May 2007 local elections, in
which he ran as a candidate for the Office of the Mayor and
in which he garnered the most number of votes. To
successfully challenge Ty's disqualification, Japzon must
clearly demonstrate that Ty's ineligibility is so patently
antagonistic 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 case, Japzon failed to substantiate his claim that Ty
is ineligible to be Mayor of the Municipality, the instant
Petition for Certiorari is dismiss
TEODORA SOBEJANA-CONDON, Petitioner, vs.
COMMISSION ON ELECTIONS,
The petitioner is a natural-born Filipino citizen having been
born of Filipino parents on August 8, 1944. On December
13, 1984, she became a naturalized Australian citizen owing
to her marriage to a certain Kevin Thomas Condon. On
December 2, 2005, she filed an application to re-acquire
Philippine citizenship before the Philippine Embassy in
Canberra, Australia pursuant to Section 3 of R.A. No. 9225
otherwise known as the "Citizenship Retention and Re-
Acquisition Act of 2003."5 The application was approved
and the petitioner took her oath of allegiance to the
Republic of the Philippines on December 5, 2005. On
September 18, 2006, the petitioner filed an unsworn
Declaration of Renunciation of Australian Citizenship before
the Department of Immigration and Indigenous Affairs,
Canberra, Australia, which in turn issued the Order dated
September 27, 2006 certifying that she has ceased to be an
Australian citizen. The petitioner ran for Mayor in her
hometown of Caba, La Union in the 2007 elections. She lost
in her bid. She again sought elective office during the May
10, 2010 elections this time for the position of Vice-Mayor.
She obtained the highest numbers of votes and was
proclaimed as the winning candidate. She took her oath of
office on May 13, 2010.
Soon thereafter, private respondents Robelito V. Picar,
Wilma P. Pagaduan7 and Luis M. Bautista,8 (private
respondents) all registered voters of Caba, La Union, filed
separate petitions for quo warranto questioning the
petitioner’s eligibility before the RTC. The petitions similarly
sought the petitioner’s disqualification from holding her
elective post on the ground that she is a dual citizen and
that she failed to execute a "personal and sworn
renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath" as imposed
by Section 5(2) of R.A. No. 9225. The petitioner denied being
a dual citizen and averred that since September 27, 2006,
she ceased to be an Australian citizen. She claimed that the
Declaration of Renunciation of Australian Citizenship she
executed in Australia sufficiently complied with Section 5(2),
R.A. No. 9225 and that her act of running for public office is
a clear abandonment of her Australian citizenship. The trial
decision ordered by the trial court declaring Condon
disqualified and ineligible to hold office of vice mayor of
Caba La union and nullified her proclamation as the
winning candidate. After that the decision was appealed to
the comelec, but the appeal was dismissed y the second
division and affirmed the decision of the trial court. The
petitioner contends that since she ceased to be an
Australian citizen on September 27, 2006, she no longer
held dual citizenship and was only a Filipino citizen when
she filed her certificate of candidacy as early as the 2007
elections. Hence, the "personal and sworn renunciation of
foreign citizenship" imposed by Section 5(2) of R.A. No. 9225
to dual citizens seeking elective office does not apply to her.
Issue: W/N petitioner disqualified from running for
elective office due to failure to renounce her Australian
Citizenship in accordance with Sec. 5 (2) of R.A 9225
R.A. No. 9225 allows the retention and re-acquisition of
Filipino citizenship for natural-born citizens who have lost
their Philippine citizenship18 by taking an oath of allegiance
to the Republic.
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath. The oath is an abbreviated repatriation
process that restores one’s Filipino citizenship and all civil
and political rights and obligations concomitant therewith,
subject to certain conditions imposed in Section 5. Section
5, paragraph 2 provides:
(2) Those seeking elective public office in the Philippines
shall meet the qualification for holding such public office as
required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a
personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to
administer an oath.
On September 18, 2006, or a year before she initially sought
elective public office, she filed a renunciation of Australian
citizenship in Canberra, Australia. Admittedly, however, the
same was not under oath contrary to the exact mandate of
Section 5(2) that the renunciation of foreign citizenship
must be sworn before an officer authorized to administer
oath. The supreme court said that, the renunciation of her
Australian citizenship was invalid due to it was not oath
before any public officer authorized to administer it
rendering the act of Condon void. DISMISSED.
[ G.R. No. 176947, February 19, 2009 ] GAUDENCIO M.
CORDORA, vs COMMISSION ON ELECTIONS
Tambunting ran for a public local office which was opposed
by Cordora. The latter alleged that Tambunting was not
eligible to run for local public office because Tambunting
lacked the required citizenship and residency requirements.
In lieu with this, Cordora seeks to prosecute Tambunting for
knowingly making untruthful statements in his certificates
of candidacy. Tambunting, on the other hand, maintained
that he did not make any misrepresentation in his
certificates of candidacy. Tambunting further denied that he
was naturalized as an American citizen. The certificate of
citizenship conferred by the US government after
Tambunting's father petitioned him through INS Form I-130
(Petition for Relative) merely confirmed Tambunting's
citizenship which he acquired at birth. Tambunting's
possession of an American passport did not mean that
Tambunting is not a Filipino citizen. Tambunting also took
an oath of allegiance on 18 November 2003 pursuant to
Republic Act No. 9225 (R.A. No. 9225), or the Citizenship
Retention and Reacquisition Act of 2003.Tambunting
further stated that he has resided in the Philippines since
birth. Tambunting has imbibed the Filipino culture, has
spoken the Filipino language, and has been educated in
Filipino schools. Tambunting maintained that proof of his
loyalty and devotion to the Philippines was shown by his
service as councilor of Parañaque. The COMELEC En
Banc was convinced and affirmed the findings and the
resolution of the COMELEC Law Department that Cordora
failed to support his accusation against Tambunting by
sufficient and convincing evidence.
Issues: 1. WON the COMELEC acted with grave
abuse of discretion amounting to lack or excess of
jurisdiction on its ruling.
2. WON Tambunting was qualified to hold a local
public office.
1. There was no grave abuse of discretion in the
COMELEC En Banc's ruling that there is no sufficient and
convincing evidence to support a finding of probable cause
to hold Tambunting for trial for violation of Section 74 in
relation to Section 262 of the Omnibus Election Code.
Probable cause constitutes those facts and circumstances
which would lead a reasonably discreet and prudent man to
believe that an offense has been committed. Determining
probable cause is an intellectual activity premised on the
prior physical presentation or submission of documentary
or testimonial proofs either confirming, negating or
qualifying the allegations in the complaint.
2. Tambunting possesses dual citizenship. Because of
the circumstances of his birth, it was no longer necessary
for Tambunting to undergo the naturalization process to
acquire American citizenship. The process involved in INS
Form I-130 only served to confirm the American citizenship
which Tambunting acquired at birth. Clearly, Tambunting
possessed dual citizenship prior to the filing of his
certificate of candidacy before the 2001 elections. The fact
that Tambunting had dual citizenship did not disqualify him
from running for public office.
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. 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.
Suffice it to say, that the twin requirements in R.A. No.
9225 (Oath of Allegiance and an execution of Renunciation
of Foreign Citizenship) do not apply to Tambunting for the
reason that he is natural-born Filipino. The twin
requirements apply only when a Filipino who becomes a
naturalized citizen of another country is allowed to retain
his Filipino citizenship by swearing to the supreme
authority of the Republic of the Philippines. The act of
taking an oath of allegiance is an implicit renunciation of a
naturalized citizen's foreign citizenship.
Manner and date of election
KIDA VS SENATE (G.R. NO. 196271 FEBRUARY
28, 2012)
FACTS:
We resolve: (a) the motion for reconsideration filed by
petitioners Datu Michael Abas Kida, et al. in G.R. No.
196271;
(b) the motion for reconsideration filed by petitioner Rep.
Edcel Lagman in G.R. No. 197221;
(c) the ex abundante ad cautelam motion for
reconsideration filed by petitioner Basari Mapupuno in G.R.
No. 196305;
(d) the motion for reconsideration filed by petitioner Atty.
Romulo Macalintal in G.R. No. 197282;
(e) the motion for reconsideration filed by petitioners
Almarim Centi Tillah, Datu Casan Conding Cana and
Partido Demokratiko Pilipino Lakas ng Bayan in G.R. No.
197280; (f) the manifestation and motion filed by petitioners
Almarim Centi Tillah, et al. in G.R. No. 197280; and (g) the
very urgent motion to issue clarificatory resolution that the
temporary restraining order (TRO) is still existing and
effective.
These motions assail our Decision dated October 18, 2011,
where we upheld the constitutionality of Republic Act (RA)
No. 10153. Pursuant to the constitutional mandate of
synchronization, RA No. 10153 postponed the regional
elections in the Autonomous Region in Muslim Mindanao
(ARMM) (which were scheduled to be held on the second
Monday of August 2011) to the second Monday of May 2013
and recognized the President’s power to appoint officers-in-
charge (OICs) to temporarily assume these positions upon
the expiration of the terms of the elected officials.
Issues: (a) Does the Constitution mandate the
synchronization of ARMM regional elections with
national and local elections?
(b) Does RA No. 10153 amend RA No. 9054? If so, does
RA No. 10153 have to comply with the supermajority
vote and plebiscite requirements?
(c) Is the holdover provision in RA No. 9054
constitutional?
(d) Does the COMELEC have the power to call for special
elections in ARMM?
(e) Does granting the President the power to appoint
OICs violate the elective and representative nature of
ARMM regional legislative and executive offices?
(f) Does the appointment power granted to the President
exceed the President’s supervisory powers over
autonomous regions?
Held: YES. Synchronization mandate includes ARMM
elections
The Court was unanimous in holding that the Constitution
mandates the synchronization of national and local
elections. While the Constitution does not expressly instruct
Congress to synchronize the national and local elections,
the intention can be inferred from the following provisions of
the Transitory Provisions (Article XVIII) of the Constitution,
which state:
Section 1. The first elections of Members of the Congress
under this Constitution shall be held on the second Monday
of May, 1987. The first local elections shall be held on a
date to be determined by the President, which may be
simultaneous with the election of the Members of the
Congress. It shall include the election of all Members of the
city or municipal councils in the Metropolitan Manila area.
Section 2. The Senators, Members of the House of
Representatives, and the local officials first elected under
this Constitution shall serve until noon of June 30, 1992.
Of the Senators elected in the elections in 1992, the first
twelve obtaining the highest number of votes shall serve for
six years and the remaining twelve for three years.
The inclusion of autonomous regions in the enumeration of
political subdivisions of the State under the heading “Local
Government” indicates quite clearly the constitutional intent
to consider autonomous regions as one of the forms of local
governments.
NO. A thorough reading of RA No. 9054 reveals that it fixes
the schedule for only the first ARMM elections;11 it does not
provide the date for the succeeding regular ARMM elections.
In providing for the date of the regular ARMM elections, RA
No. 9333 and RA No. 10153 clearly do not amend RA No.
9054 since these laws do not change or revise any provision
in RA No. 9054. In fixing the date of the ARMM elections
subsequent to the first election, RA No. 9333 and RA No.
10153 merely filled the gap left in RA No. 9054.
We reiterate our previous observations:
This view – that Congress thought it best to leave the
determination of the date of succeeding ARMM elections to
legislative discretion – finds support in ARMM’s recent
history.
To recall, RA No. 10153 is not the first law passed that
rescheduled the ARMM elections. The First Organic Act – RA
No. 6734 – not only did not fix the date of the subsequent
elections; it did not even fix the specific date of the first
ARMM elections, leaving the date to be fixed in another
legislative enactment. Consequently, RA No. 7647, RA No.
8176, RA No. 8746, RA No. 8753, and RA No. 9012 were all
enacted by Congress to fix the dates of the ARMM elections.
Since these laws did not change or modify any part or
provision of RA No. 6734, they were not amendments to this
latter law. Consequently, there was no need to submit them
to any plebiscite for ratification.
The Second Organic Act – RA No. 9054 – which lapsed into
law on March 31, 2001, provided that the first elections
would be held on the second Monday of September 2001.
Thereafter, Congress passed RA No. 9140 to reset the date
of the ARMM elections. Significantly, while RA No. 9140 also
scheduled the plebiscite for the ratification of the Second
Organic Act (RA No. 9054), the new date of the ARMM
regional elections fixed in RA No. 9140 was not among the
provisions ratified in the plebiscite held to approve RA No.
9054. Thereafter, Congress passed RA No. 9333, which
further reset the date of the ARMM regional elections. Again,
this law was not ratified through a plebiscite.
From these legislative actions, we see the clear intention of
Congress to treat the laws which fix the date of the
subsequent ARMM elections as separate and distinct from
the Organic Acts. Congress only acted consistently with this
intent when it passed RA No. 10153 without requiring
compliance with the amendment prerequisites embodied in
Section 1 and Section 3, Article XVII of RA No.
9054.12 (emphases supplied)
YES. The clear wording of Section 8, Article X of the
Constitution expresses the intent of the framers of the
Constitution to categorically set a limitation on the period
within which all elective local officials can occupy their
offices. We have already established that elective ARMM
officials are also local officials; they are, thus, bound by the
three-year term limit prescribed by the Constitution. It,
therefore, becomes irrelevant that the Constitution does not
expressly prohibit elective officials from acting in a holdover
capacity. Short of amending the Constitution, Congress has
no authority to extend the three-year term limit by inserting
a holdover provision in RA No. 9054. Thus, the term of three
years for local officials should stay at three (3) years, as
fixed by the Constitution, and cannot be extended by
holdover by Congress. Admittedly, we have, in the past,
recognized the validity of holdover provisions in various
laws. One significant difference between the present case
and these past cases is that while these past cases all refer
to electivebarangay or sangguniang kabataan officials
whose terms of office are not explicitly provided for in the
Constitution, the present case refers to local elective officials
– the ARMM Governor, the ARMM Vice Governor, and the
members of the Regional Legislative Assembly – whose
terms fall within the three-year term limit set by Section 8,
Article X of the Constitution. Even assuming that a holdover
is constitutionally permissible, and there had been statutory
basis for it (namely Section 7, Article VII of RA No. 9054),
the rule of holdover can only apply as an available option
where no express or implied legislative intent to the contrary
exists; it cannot apply where such contrary intent is
evident. Congress, in passing RA No. 10153 and removing
the holdover option, has made it clear that it wants to
suppress the holdover rule expressed in RA No. 9054.
Congress, in the exercise of its plenary legislative powers,
has clearly acted within its discretion when it deleted the
holdover option, and this Court has no authority to question
the wisdom of this decision, absent any evidence of
unconstitutionality or grave abuse of discretion. It is for the
legislature and the executive, and not this Court, to decide
how to fill the vacancies in the ARMM regional government
which arise from the legislature complying with the
constitutional mandate of synchronization.
NO. COMELEC has no authority to hold special elections
Neither do we find any merit in the contention that the
Commission on Elections (COMELEC) is sufficiently
empowered to set the date of special elections in the ARMM.
To recall, the Constitution has merely empowered the
COMELEC to enforce and administer all laws and
regulations relative to the conduct of an election. Although
the legislature, under the Omnibus Election Code (Batas
Pambansa Bilang [BP] 881), has granted the COMELEC the
power to postpone elections to another date, this power is
confined to the specific terms and circumstances provided
for in the law. Specifically, this power falls within the
narrow confines of the following provisions:
Section 5. Postponement of election. – When for any serious
cause such as violence, terrorism, loss or destruction of
election paraphernalia or records, force majeure, and other
analogous causes of such a nature that the holding of a
free, orderly and honest election should become impossible
in any political subdivision, the Commission, motu
proprio or upon a verified petition by any interested party,
and after due notice and hearing, whereby all interested
parties are afforded equal opportunity to be heard,
shall postpone the election therein to a date which should
be reasonably close to the date of the election not held,
suspended or which resulted in a failure to elect but not
later than thirty days after the cessation of the cause for
such postponement or suspension of the election or failure
to elect.
Section 6. Failure of election. – If, on account of force
majeure, violence, terrorism, fraud, or other analogous
causes the election in any polling place has not been held
on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting
and during the preparation and the transmission of the
election returns or in the custody or canvass thereof, such
election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the
result of the election, the Commission shall, on the basis of
a verified petition by any interested party and after due
notice and hearing, call for the holding or continuation of
the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the
election not held, suspended or which resulted in a failure
to elect but not later than thirty days after the cessation of
the cause of such postponement or suspension of the
election or failure to elect. [emphases and underscoring
ours]
YES. The power to appoint has traditionally been recognized
as executive in nature. Section 16, Article VII of the
Constitution describes in broad strokes the extent of this
power, thus:
YES. We reiterate once more the importance of considering
RA No. 10153 not in a vacuum, but within the context it
was enacted in. In the first place, Congress enacted RA No.
10153 primarily to heed the constitutional mandate to
synchronize the ARMM regional elections with the national
and local elections. To do this, Congress had to postpone
the scheduled ARMM elections for another date, leaving it
with the problem of how to provide the ARMM with
governance in the intervening period, between the
expiration of the term of those elected in August 2008 and
the assumption to office – twenty-one (21) months away – of
those who will win in the synchronized elections on May 13,
2013.
In our assailed Decision, we already identified the three
possible solutions open to Congress to address the problem
created by synchronization – (a) allow the incumbent
officials to remain in office after the expiration of their terms
in a holdover capacity; (b) call for special elections to be
held, and shorten the terms of those to be elected so the
next ARMM regional elections can be held on May 13, 2013;
or (c) recognize that the President, in the exercise of his
appointment powers and in line with his power of
supervision over the ARMM, can appoint interim OICs to
hold the vacated positions in the ARMM regional
government upon the expiration of their terms. We have
already established the unconstitutionality of the first two
options, leaving us to consider the last available option.
In this way, RA No. 10153 is in reality an interim measure,
enacted to respond to the adjustment that synchronization
requires. Given the context, we have to judge RA No. 10153
by the standard of reasonableness in responding to the
challenges brought about by synchronizing the ARMM
elections with the national and local elections. In other
words, “given the plain unconstitutionality of providing for a
holdover and the unavailability of constitutional possibilities
for lengthening or shortening the term of the elected ARMM
officials, is the choice of the President’s power to appoint –
for a fixed and specific period as an interim measure, and as
allowed under Section 16, Article VII of the Constitution –
an unconstitutional or unreasonable choice for Congress to
make?
Term of office
Mayor Abundo v. COMELEC (2013)
Facts: After a Petition for Disqualification was filed against
Abundo on the ground of the three-term limit, Abundo
argued that his second term is not to be counted in the
three-term limit. In that election, he was declared as the
duly elected official upon an election protest only after two
years from the year of the election and as such, the said
period during which he served should not be considered as
full service of that particular term.
Doctrine: Abundo is not disqualified from running for
another term. For an official to be disqualified, the official
concerned must have been elected for three consecutive
terms in the same local government post and should have
fully served three consecutive terms. In this case, his
opponent Torres served as Mayor for two years of his second
term before he (Abundo) was declared the rightful winner in
the mayoralty contest. This period should be considered an
interruption, which removed Abundo’s case from the ambit
of the three-term limit.
Borja vs. Comelec
Jose T. Capco, Jr. was elected as Vice-Mayor of Pateros in
1988 for a term ending in 1992. In 1989, he became Mayor,
by operation of law, upon the death of the incumbent, Cesar
Borja. Thereafter, Capco was elected and served as Mayor
for two more terms, from 1992 to 1998. In 1998, Capco filed
a Certificate of Candidacy for Mayor of Pateros in the May
11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who
was also a candidate for mayor, sought Capco’s
disqualification on the ground that Capco would have
already served as Mayor for 3 consecutive terms by June
30, 1998; hence, he would be ineligible to serve for another
term. The Second Division of the Comelec declared Capco
disqualified but the Comelec en banc reversed the decision
and declared Capco eligible to run for mayor. Capco was
subsequently voted and proclaimed as mayor.
Issue: Whether or not a vice-mayor who succeeds to the
office of mayor by operation of law and serves the
remainder of the term is considered to have served a
term in that office for the purpose of the three-term
limit.
No. 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
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.
Capco was qualified to run again as mayor in the next
election 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. The vice-mayor’s assumption
of the mayorship in the event of the vacancy is more a
matter of chance than of design. Hence, his service in that
office should not be counted in the application of any term
limit.
The policy embodied in the constitutional provision (Art. X,
§8) is not only to prevent the establishment of political
dynasties but also to enhance the freedom of choice of the
people. 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. In
discussing term limits, the drafters of the Constitution did
so on the assumption that the officials concerned were
serving by reason of election. To consider Capco 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. (Borja vs Comelec, G.R. No.
133495, September 3, 1998)
Aldovino VS COMELEC
Lucena City councilor Wilfredo F. Asilo was elected to the
said office for three consecutive terms: 1998-2001, 2001-
2004, and 2004-2007. In September 2005, during his third
term of office, the Sandiganbayan issued an order of 90-day
preventive suspension against him in relation to a criminal
case. The said suspension order was subsequently lifted by
the Court, and Asilo resumed the performance of the
functions of his office.
Asilo then filed his certificate of candidacy for the same
position in 2007. His disqualification was sought by herein
petitioners on the ground that he had been elected and had
served for three consecutive terms, in violation of the three-
term Constitutional limit.
ISSUE:
WON the suspensive condition interrupts the three-term
limitation rule of COMELEC?
RULING:
NO. The preventive suspension of public officials does not
interrupt their term for purposes of the three-term limit rule
under the Constitution and the Local Government Code (RA
7160).
The candidacy of Lucena City Councilor Wilfredo F. Asilo for
a fourth term in the 2007 elections was in contravention of
the three-term limit rule of Art. X, sec. 8 of the Constitution
since his 2004-2007 term was not interrupted by the
preventive suspension imposed on him, the SC granted the
petition of Simon B. Aldovino, Danilo B. Faller, and
Ferdinand N. Talabong seeking Asilo’s disqualification.
“Preventive suspension, by its nature, does not involve an
effective interruption of service within a term and should
therefore not be a reason to avoid the three-term limitation,”
held the Court.
It noted that preventive suspension can pose as a threat
“more potent” than the voluntary renunciation that the
Constitution itself disallows to evade the three-term limit as
it is easier to undertake and merely requires an easily
fabricated administrative charge that can be dismissed soon
after a preventive suspension has been imposed.
Adormeo vs Comelec Case Digest
Ramon Talaga, Jr. served as mayor of Lucena City during
terms 1992-1995 and 1995-1998. During the 1998
elections, Talaga lost to Bernard G. Tagarao. However,
before Tagarao’s 1998-2001 term ended, a recall election
was conducted in May 2000 wherein Talaga won and served
the unexpired term of Tagarao until June 2001. When
Talaga ran for mayor in 2001, his candidacy was challenged
on the ground that he had already served as mayor for three
consecutive terms in violation of the three term-limit
rule. Comelec found Talaga disqualified to run for mayor.
Talaga filed a motion for reconsideration
which Comelec granted. Talaga was then elected Mayor.
Issue: Whether Talaga was disqualified to run as mayor
given that he had already served two full terms and he
won in the 2000 recall elections.
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.
For nearly two years Talaga was a private citizen. The
continuity of his mayorship was disrupted by his defeat in
the 1998 elections. The time between his second term and
the recall election is sufficient interruption. Thus, there was
no three consecutive terms as contemplated in the
disqualifications in the LGC.
Talaga only served two consecutive full terms. There was a
disruption when he was defeated in the 1998 elections. His
election during the 2000 recall election is not a continuation
of his two previous terms which could constitute his third
term thereby barring him for running for a fourth term.
Victory in the 2000 recall election is not the “voluntary
renunciation” contemplated by the law. (Adormeo vs
Comelec, G.R. No. 147927, February 4, 2002)
Socrates vs Comelec
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
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)
Latasa vs. Comelec
Petitioner Latasa, was elected mayor of the Municipality of
Digos, Davao del Sur in the elections of 1992, 1995, and
1998. In February 2001, he filed his certificate of candidacy
for city mayor for the 2001 elections. He stated therein that
he is eligible therefor, and likewise disclosed that he had
already served for three consecutive terms as mayor of the
Municipality of Digos and is now running for the first time
for the position of city mayor.
Sunga, also a candidate for city mayor in the said elections,
filed before the COMELEC a petition to deny petitioner's
candidacy since the latter had already been elected and
served for three consecutive terms. Petitioner countered that
this fact does not bar him from filing a certificate of
candidacy for the 2001 elections since this will be the first
time that he will be running for the post of city mayor.
The Comelec’s First Division denied petitioner's certificate of
candidacy. However, his motion for reconsideration was not
acted upon by the Comelec en banc before election day and
he was proclaimed winner. Only after the proclamation did
the Comelec en banc issue a resolution that declared him
disqualified from running for mayor of Digos City, and
ordered that all votes cast in his favor should not be
counted.
Petitioner appealed, contending that when Digos was
converted from a municipality to a city, it attained a
different juridical personality separate from the municipality
of Digos. So when he filed his certificate of candidacy for
city mayor, it should not be construed as vying for the same
local government post.
Issue: Is petitioner Latasa eligible to run as candidate for
the position of mayor of the newly-created City of Digos
immediately after he served for three consecutive terms as
mayor of the Municipality of Digos?
As a rule, in a representative democracy, the people should
be allowed freely to choose those who will govern them.
Article X, Section 8 of the Constitution is an exception to
this rule, in that it limits the range of choice of the people.
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.
An elective local official, therefore, is not barred from
running again in for same local government post, unless two
conditions concur: 1.) that the official concerned has been
elected for three consecutive terms to the same local
government post, and 2.) that he has fully served three
consecutive terms.
True, the new city acquired a new corporate existence
separate and distinct from that of the municipality. This
does not mean, however, that for the purpose of applying
the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different
local government post as that of the office of the city mayor.
As stated earlier, the territorial jurisdiction of the City of
Digos is the same as that of the municipality. Consequently,
the inhabitants of the municipality are the same as those in
the city. These inhabitants are the same group of voters who
elected petitioner Latasa to be their municipal mayor for
three consecutive terms. These are also the same
inhabitants over whom he held power and authority as their
chief executive for nine years.
The framers of the Constitution specifically included an
exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person
accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in the same
office. To allow petitioner Latasa to vie for the position of
city mayor after having served for three consecutive terms
as a municipal mayor would obviously defeat the very intent
of the framers when they wrote this exception. Should he be
allowed another three consecutive terms as mayor of the
City of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial jurisdiction
and inhabitants for a total of eighteen consecutive years.
This is the very scenario sought to be avoided by the
Constitution, if not abhorred by it.(Latasa vs. Comelec, G.R.
No. 154829, 10 December 2003)
Note:
It cannot be denied that the Court has previously held in
Mamba-Perez v. COMELEC that after an elective official has
been proclaimed as winner of the elections, the COMELEC
has no jurisdiction to pass upon his qualifications. An
opposing party's remedies after proclamation would be to
file a petition for quo warranto within ten days after the
proclamation. Time and again, this Court has held that
rules of procedure are only 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.
We will not hesitate to set aside technicalities in favor of
what is fair and just.
Ong v Alegre
Mendoza vs. Comelec
Respondent Leonardo B. Roman held the post of Governor
of Bataan province a number of times:
a) 1986 – 1988 Appointed OIC Governor of Bataan by
former Pres. Aquino and served up to 1988
b) 1988 – 1992 Elected Governor and served up to 1992
c) 1994 – 1995 Elected Governor during the recall election
in 1993, assumed office on 28 June 1994 and served up to
1995
d) 1995 – 1998 Elected Governor and served up to 1998
e) 1998 – 2001 Elected Governor and served up to 2001.
In 2001, private respondent Roman again filed a certificate
of candidacy for the same post in the May 2001 regular
elections. On 16 May 2001, Leonardo Roman was
proclaimed by the Provincial Board of Canvassers of Bataan.
Petitioners Melanio L. Mendoza and Mario E. Ibarra seek to
declare respondent Roman’s election as governor of Bataan
as null and void for allegedly being contrary to Art. X, Sec. 8
of the Constitution.
Issue: Should Roman's incumbency to the post of Governor
following the recall elections be included in determining the
three-consecutive term limit fixed by law?
No. A winner who dislodges in a recall election an
incumbent elective local official merely serves the balance of
the latter's term of office; it is not a full three-year term.
The law contemplates a continuous full three-year term
before the proscription can apply, providing for only one
exception, i.e., when an incumbent voluntarily gives up the
office.
If involuntary severance from the service which results in
the incumbent’s being unable to finish his term of office
because of his ouster through valid recall proceedings
negates “one term” for purposes of applying the three-term
limit, it stands to reason that the balance of the term
assumed by the newly elected local official in a recall
election should not also be held to be one term in reckoning
the three-term limit.
In both situations, neither the elective local official who is
unable to finish his term nor the elected local official who
only assumes the balance of the term of the ousted local
official following the recall election could be considered to
have served a full three-year term set by the Constitution.
The Constitution does not prohibit elective local officials
from serving for more than three consecutive terms
because, in fact, it excludes from the three-term limit
interruptions in the continuity of service, so long as such
interruptions are not due to the voluntary renunciation of
the office by an incumbent. Hence, the period from June
28, 1994 to June 30, 1995, during which respondent
Leonardo B. Roman served as governor of Bataan by virtue
of a recall election held in 1993, should not be
counted. Since on May 14, 2001 respondent had previously
served as governor of Bataan for only two consecutive terms
(1995-1998 and 1998-2001), his election on that day was
actually only his third term for the same position.
A recall term should not be considered as one full term,
because a contrary interpretation would in effect cut short
the elected official’s service to less than nine years and
shortchange his constituents. The desire to prevent
monopoly of political power should be balanced against the
need to uphold the voters’ obvious preference who, in the
present case, is Roman who received 97 percent of the votes
cast. (Mendoza vs. Comelec, G.R. No. 154512. November
12, 2002)
Rivera III vs. Comelec
In the May 2004 elections, respondent Marino "Boking"
Morales ran as candidate for mayor of Mabalacat,
Pampanga for the term 2004-2007.
Petitioner Dee filed with the COMELEC a petition to cancel
Morales’ Certificate of Candidacy on the ground that he was
elected and had served three previous consecutive terms as
mayor of Mabalacat. They alleged that his candidacy
violated Section 8, Article X of the Constitution and Section
43 (b) of RA 7160.
Respondent Morales admitted that he was elected mayor of
Mabalacat for the term 1995-1998 (first term) and 2001-
2004 (third term), but he served the second term from
1998-2001 only as a "caretaker of the office" or as a "de
facto officer" since his proclamation as mayor was declared
void by the Regional Trial Court (RTC).
He was also preventively suspended by the Ombudsman in
an anti-graft case from January to July 1999.
Issue: 1. Has Morales already served his 3 consecutive
term?
2. If so, who should then take his position?
1. For the three-term limit for elective local government
officials to apply, two conditions or requisites must concur,
to wit: (1) that the official concerned has been elected for
three consecutive terms in the same local government post,
and (2) that he has fully served three consecutive terms.
Respondent Morales was elected for the term 1998-2001. He
assumed the position. He was mayor for the entire period
notwithstanding the Decision of the RTC in the electoral
protest case filed by petitioner Dee ousting him (Morales) as
mayor (because the trial court’s ruling was promulgated
only after the expiry of the 1998-2001 term).
Respondent Morales is now serving his fourth term. He has
been mayor of Mabalacat continuously without any break
since 1995.
In just over a month, by June 30, 2007, he will have been
mayor of Mabalacat for twelve (12) continuous years. His
assumption of office for the second term constituted “service
for the full term” and should be counted as a full term
served in contemplation of the three-term limit prescribed
by the constitutional and statutory provisions barring local
elective officials from being elected and serving for more
than three consecutive terms for the same position.
The framers of the Constitution, by including this exception,
wanted to establish some safeguards against the excessive
accumulation of power as a result of consecutive terms.
Therefore, having found respondent Morales ineligible, his
Certificate of Candidacy dated December 30, 2003 should
be cancelled. Not being a candidate, the votes cast for him
SHOULD NOT BE COUNTED and must be considered stray
votes.
2. The question now is whether it is the vice-mayor or
petitioner Dee who shall serve for the remaining portion of
the 2004 to 2007 term.
In Labo v. Comelec, this Court has ruled that a second
place candidate cannot be proclaimed as a substitute
winner, thus:
The rule, therefore, is: the ineligibility of a candidate
receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be
deemed elected to the office.
As a consequence of petitioner’s ineligibility, a permanent
vacancy in the contested office has occurred. This should
now be filled by the vice-mayor in accordance with Section
44 of the Local Government Code, to wit:
Sec. 44. Permanent vacancies in the Offices of the Governor,
Vice-Governor, Mayor and Vice-Mayor. – (a) If a permanent
vacancy occurs in the office of the governor or mayor, the
vice-governor or the vice-mayor concerned shall become the
governor or mayor. (Rivera III vs. Comelec, G.R. No.
167591. May 9, 2007)
Dizon vs. Comelec
Roberto L. Dizon, a resident and taxpayer of Mabalacat,
Pampanga, filed a case with the COMELEC to disqualify
Marino P. Morales, the incumbent mayor of Mabalacat on
the ground that the latter was elected and had fully served
three previous consecutive terms in violation of Section 43
of the Local Government Code. Dizon alleged that Morales
was municipal mayor in 1995, 1998, 2001 and 2004. Thus,
Morales should not have been allowed to have filed his
Certificate of Candidacy on March 2007 for the same
position and same municipality.
Morales, on the other hand, contended that he is still
eligible and qualified to run as mayor of Mabalacat because
he was not elected for the said position in the 1998
elections. He averred that the COMELEC en banc affirmed
the decision of the RTC declaring Anthony D. Dee as the
duly elected Mayor of Mabalacat in the 1998 elections.
Thus, he was not elected for the said position in the 1998
elections. His term should be reckoned from 2001. He
added that his election in 2004 is only for his second term.
COMELEC Second Division ruled in favor of Morales and
denied the petition. It took judicial notice of SC’s ruling in
the Rivera case promulgated on May 9, 2007 where it was
held that Morales was elected as mayor of Mabalacat in
1995, 1998 and 2001 (notwithstanding the RTC Decision in
an electoral protest case that the then proclamation of
Morales was void). The SC ruled in that case that Morales
violated the three-term limit under Section 43 of the LGC.
Hence, Morales was considered not a candidate in the 2004
elections, and this failure to qualify for the 2004 elections is
a gap and allows him to run again for the same position in
2007 elections.
Issues: 1. WON the period served by Morales in the 2004--
2007 term (although he was ousted from his office as Mayor
on May16, 2007) should be considered his fourth term
2. WON the 2007-2010 term of Morales is his 5th term
1. NO. In our decision promulgated on 9 May 2007, this
Court unseated Morales during his fourth term. We
cancelled his Certificate of Candidacy dated 30 December
2003. This cancellation disqualified Morales from being a
candidate in the May 2004 elections. The votes cast for
Morales were considered stray votes.
Both Article X, Section 8 of the Constitution and Section
43(b) of the Local Government Code state that the term of
office of elective local officials, except barangay officials,
shall be three years, and no such official shall serve for
more than three consecutive terms. Voluntary renunciation
of the office for any length of time shall not be considered as
an interruption in the continuity of his service for the full
term for which he was elected.
There should be a concurrence of two conditions for the
application of the disqualification: (1) that the official
concerned has been elected for three consecutive terms in
the same local government post and (2) that he has fully
served three consecutive terms.
In the Rivera case, we found that Morales was elected as
mayor of Mabalacat for four consecutive terms: 1995-1998,
1998-2001, 2001-2004, and 2004-2007. We disqualified
Morales from his candidacy in the May 2004 elections
because of the three-term limit. Although the trial court
previously ruled that Morales’ proclamation for the 1998-
2001 term was void, there was no interruption of the
continuity of Morales’ service with respect to the 1998-2001
term because the trial court’s ruling was promulgated only
on 4 July 2001, or after the expiry of the 1998-2001 term.
Our ruling in the Rivera case served as Morales’ involuntary
severance from office with respect to the 2004-2007 term.
Involuntary severance from office for any length of time
short of the full term provided by law amounts to an
interruption of continuity of service.
Our decision in the Rivera case was promulgated on 9 May
2007 and was effective immediately. The next day, Morales
notified the vice mayor’s office of our decision. The vice
mayor assumed the office of the mayor from 17 May 2007
up to 30 June 2007. The assumption by the vice mayor of
the office of the mayor, no matter how short it may seem to
Dizon, interrupted Morales’ continuity of service. Thus,
Morales did not hold office for the full term of 1 July 2004 to
30 June 2007. (4th term)
2. Dizon claims that the 2007-2010 term is Morales’ fifth
term in office.
NO. Morales occupied the position of mayor of Mabalacat for
the following periods: 1995-1998, 1998-2001, 2001-2004,
2004-2007. However, because of his disqualification,
Morales was not the duly elected mayor for the 2004-2007
term. Neither did Morales hold the position of mayor of
Mabalacat for the full term. Morales cannot be deemed to
have served the full term of 2004-2007 because he was
ordered to vacate his post before the expiration of the term.
Morales’ occupancy of the position of mayor of Mabalacat
from 2004-2007 cannot be counted as a term for purposes
of computing the three-term limit. Indeed, the period from
17 May 2007 to 30 June 2007 served as a gap for purposes
of the three-term limit rule. Thus, the present 1 July 2007
to 30 June 2010 term is effectively Morales’ first term for
purposes of the three-term limit rule. (Dizon v. Comelec,
G.R. No. 182088, January 30, 2009)
Bolos vs. Comelec
Petitioner Bolos was elected as the Punong Barangay of
Barangay Biking, Dauis, Bohol for three consecutive terms
(1994, 1997, 2002). In May 2004, during his incumbency,
he ran for Municipal Councilor of Dauis and won. He
assumed office on July 1, 2004, leaving his post as Punong
Barangay. After serving his term as a councilor he filed his
candidacy for the position of Punong Barangay in the 2007
Barangay Elections.
Cinconiegue, then incumbent Punong Barangay and also a
candidate for the same office, filed a petition for
disqualification on the ground that Bolos Jr. has already
served the maximum limit of three term hence no longer
eligible to run and hold the position in accordance with Sec.
8, Article X of the Constitution and Sec. 43 (b) of RA 7160 or
the Local Government Code of 1991. Cinconiegue contended
that Bolos’ relinquishment of the position of Punong
Barangay in July 2004 was voluntary on his part, as it
could be presumed that it was his personal decision to run
as municipal councilor in the May 14, 2004 National and
Local Elections. He added that petitioner knew that if he
won and assumed the position, there would be a voluntary
renunciation of his post as Punong Barangay.
In his Answer, petitioner argued that when he assumed the
position of Sangguniang Bayan member, he left his post as
Punong Barangay by operation of law; hence, it must be
considered as an involuntary interruption in the continuity
of his last term of service. Pending the resolution of the case
before the Comelec, Bolos Jr. won in the election.
The Comelec resolved the petition in favor of Cinconiegue
ruling that Bolos Jr. has already served the maximum three
consecutive term for an office and thus disqualified to run
for the same office. It further ordered that the proclamation
of Bolos Jr. be annulled and that the office will be
succeeded based on Sec. 44 of the Local Government Code.
Issue: Whether or not there was a voluntary
renunciation of the office of Punong Barangay by Bolos
when he assumed the post of Municipal Councilor so
that he is deemed to have served for three consecutive
terms.
The three-term limit for elective official is contained in Sec.
8, Article X of the Constitution 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.
The Local Government Code provides for the term of office of
Barangay Officials:
Sec. 43. Term of Office. – x x x (b) No local elective official
shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in
the continuity of service for the full term for which the
elective official concerned was elected.
(c) The term of barangay officials and members of the
sangguniang kabataan shall be for five (5) years, which shall
begin after the regular election of barangay officials on the
second Monday of May 1997: Provided, that the
sangguniang kabataan members who were elected in the
May 1996 elections shall serve until the next regular
election of barangay officials.
Socrates vs. Comelec held that the rule on the three-term
limit, embodied in the Constitution and the Local
Government Code, has two parts: x x x The first part
provides that an elective local official cannot serve for more
than three consecutive terms. The clear intent is that only
consecutive terms count in determining the three-term limit
rule. The second part states that voluntary renunciation of
office for any length of time does not interrupt the
continuity of service. The clear intent is that involuntary
severance from office for any length of time interrupts
continuity of service and prevents the service before and
after the interruption from being joined together to form a
continuous service or consecutive terms.
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.
In Lonzanida vs. Comelec, the Court stated that the second
part of the rule on the three-term limit shows the clear
intent of the framers of the Constitution to bar any attempt
to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the
people’s choice and grant their elected official full service of
a term. The Court held that two conditions for the
application of the disqualification must concur: (1) that the
official concerned has been elected for three consecutive
terms in the same government post; and (2) that he has
fully served three consecutive terms.
In this case, it is undisputed that petitioner was elected as
Punong Barangay for three consecutive terms, satisfying the
first condition for disqualification. What is to be determined
is whether petitioner is deemed to have voluntarily
renounced his position as Punong Barangay during his
third term when he ran for and won as Sangguniang Bayan
member and assumed said office.
The Court agrees with the Comelec that petitioner’s
relinquishment of the office of Punong Barangay of Biking,
Dauis, Bohol, as a consequence of his assumption to office
as Sangguniang Bayan member of Dauis, Bohol, on July 1,
2004, is a voluntary renunciation.
When petitioner filed his certificate of candidacy for the
Office of Sangguniang Bayan, he was not deemed resigned.
Nonetheless, all the acts attending his pursuit of his
election as municipal councilor point out to an intent and
readiness to give up his post as Punong Barangay once
elected to the higher elective office, for it was very unlikely
that respondent had filed his Certificate of Candidacy for
the Sangguniang Bayan post, campaigned and exhorted the
municipal electorate to vote for him as such and then after
being elected and proclaimed, return to his former position.
He knew that his election as municipal councilor would
entail abandonment of the position he held, and he
intended to forego of it. Abandonment, like resignation, is
voluntary.
Petitioner erroneously argues that when he assumed the
position of Sangguniang Bayan member, he left his post as
Punong Barangay by operation of law; hence, he did not
fully serve his third term as Punong Barangay.
The term "operation of law" is defined by the Philippine
Legal Encyclopedia as "a term describing the fact that rights
may be acquired or lost by the effect of a legal rule without
any act of the person affected." Black's Law Dictionary also
defines it as a term that "expresses the manner in which
rights, and sometimes liabilities, devolve upon a person by
the mere application to the particular transaction of the
established rules of law, without the act or cooperation of
the party himself.
In this case, petitioner did not fill or succeed to a vacancy
by operation of law. He instead relinquished his office as
Punong Barangay during his third term when he won and
assumed office as Sangguniang Bayan member of Dauis,
Bohol, which is deemed a voluntary renunciation of the
Office of Punong Barangay. (Bolos vs Comelec, G.R. No.
184082, March 17, 2009)
Comelec vs Conrado Cruz et. al November 20, 2009
Facts: The present petition seeks a review of the RTC’s
decision granting the petition of the respondents on
declaring Section 2 of Republic Act (RA) No. 9164 (entitled
An Act Providing for Syn-chronized Barangay and
Sangguniang Kabataan Elections, amending RA No. 7160,
as amended, otherwise known as the Local Government
Code of 1991) unconstitutional:
Sec. 2. Term of Office. The term of office of all barangay and
sangguniang kabataan officials after the effectivity of this
Act shall be three (3) year.
No barangay elective official shall serve for more than three
(3) consecutive terms in the same position: Provided,
however, That the term of office shall be reckoned from the
1994 barangay elections.
Voluntary renunciation of office of 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.
Antecedent: Before the October 29, 2007 Synchronized
Barangay and Sangguniang Kabataan (SK) Elections, some
of the then incumbent officials of several barangays of
Caloocan City filed with the RTC a petition for declaratory
relief to challenge the constitutionality of the above-
highlighted proviso, based on the following arguments:
1. The term limit of Barangay officials should be applied
prospectively and not retroactively.
2. Implementation of paragraph 2 Section 2 of RA No. 9164
would be a violation of the equal protection of the law.
3. Barangay officials have always been a political.
Issue: 1. WON the term limit should apply prospectively and
not retroactively.
2. WON it violates the equal protection of the law.
1. No retroactive application was made because the three-
term limit has been there all along as early as the second
barangay law (RA No. 6679-changed the two-term limit by
providing for a
three-consecutive term limit). after the 1987 Constitution
took effect; it was continued under the LGC and can still be
found in the current law.
2. No. The equal protection guarantee under the
Constitution is found under its Section 2, Article III, which
provides: Nor shall any person be denied the equal
protection of the laws. Essen-
tially, the equality guaranteed under this clause is equality
under the same conditions and among persons similarly
situated. It is equality among equals, not similarity of
treatment of persons who
are different from one another on the basis of substantial
distinctions related to the objective of the law; when things
or persons are different in facts or circumstances, they may
be treated differently in law.
Appreciation of how the constitutional equality provision
applies inevitably leads to the conclusion that no basis
exists in the present case for an equal protection challenge.
The law can
treat barangay officials differently from other local elective
officials because the Constitution itself provides a
significant distinction between these elective officials with
respect to length of term and term limitation. The clear
distinction, expressed in the Constitution itself, is that while
the Constitution provides for a three-year term and three-
term limit for local elective officials, it left the length of term
and the application of the three-term limit or any form of
term limitation for determination by Congress through
legislation. Not only does this disparate treatment recognize
substantial distinctions, it recognizes as well that the
Constitution itself allows a non-uniform treatment. No equal
protection violation can exist under these conditions. From
another perspective, we see no reason to apply the equal
protection clause as a standard because the challenged
proviso did not result in any differential treatment between
barangay officials and all other elective officials.
Rules on succession
Talaga v Comelec
Gamboa v. Aguirre (G.R. No. 134213, 20 July 1999)
In the 1995 elections, Rafael Coscolluela, petitioner Romeo
Gamboa and respondents Marcelo Aguirre, Jr. and Juan
Araneta were leveled Negros Occidental Governor, Vice-
Governor and SP members, respectively.
Sometime in August 1995, the governor designated as
Acting Governor for the duration of the former's official trip
abroad until his return.
When the Sangguniang Panlalawigan held its regular
session, respondents questioned the authority of petitioner
to preside therein in view of his designation as acting
governor and asked him to vacate the Chair. The latter,
however, refused to do so. In another session, seven
members of the SP voted to allow petitioner to continue
presiding while four others voted against it. Respondents
filed before the lower court a petition for declaratory relief
and prohibition. In the meantime, the governor re-assumed
his office. The trial court rendered a decision and declared
petitioner as temporarily legally incapacitated to preside
over the sessions of the SP during the period that he is the
acting governor. Petitioner filed a petition for review.
ISSUE: Whether or not Gamboa, while serving as acting
governor, temporarily relinquished the powers, fictions,
duties and responsibilities of the Vice-Governor, including
the power to preside over the sessions of the SP
Yes. The Local Government Code provides that the vice
governor shall be the presiding officer of the SP. In addition
to such function, he becomes the governor and assumes the
higher office for the unexpired term of his predecessor, in
case of permanent vacancy. When the vacancy however is
merely temporary, the vice governor shall automatically
exercise the powers (subject to certain limitations) and
perform the duties and functions of the governor.
When the vice governor exercises the powers and duties of
governor, he does not assume the latter's office. He only
acts as the governor but does not become the governor. His
assumption of powers of the provincial chief executive does
not create a
permanent vacancy in his position as vice governor. Thus,
he does not relinquish not abandon his position and title by
merely becoming an acting governor.
A vice governor who is concurrently an acting governor is
actually a quasi-governor. This means, that for purposes of
exercising his legislative prerogatives and powers, he is
deemed considered as a non member of the SP for the time
being. The offices of provincial governor and vice governor
are essentially executive in nature, whereas plain members
of the provincial board perform functions partaking of a
legislative character. This is clear from the law when it
provides that local legislative power shall be vested in the
SP, which is the legislative body of the province.
The governor is not included in the SP members and thus,
local executive power is vested alone in the governor.
Art. 49(b) of the Local Government Code provides that in the
event of the inability of the regular presiding officer to toe
side at the sangguniang session, the members present
and constituting a quorum shall elect among themselves a
temporary presiding officer. Therefore, the vice governor
who became an acting governor cannot continue to
simultaneously exercise the duties of the office, since the
nature of it calls for a full-time occupant to discharge them
Disciplinary actions
ELECTIVE LOCAL OFFICIALS
Ganzon v. Court of Appeals (200 SCRA 271)
Rodolfo Ganzon was the then mayor of Iloilo City. 10
complaints were filed against him on grounds of misconduct
and misfeasance of office. The Secretary of Local
Government issued several suspension orders against
Ganzon based on the merits of the complaints filed against
him hence Ganzon was facing about 600 days of
suspension. Ganzon appealed the issue to the CA and the
CA affirmed the suspension order by the Secretary. Ganzon
asserted that the 1987 Constitution does not authorize the
President nor any of his alter ego to suspend and remove
local officials; this is because the 1987 Constitution
supports local autonomy and strengthens the same. What
was given by the present Constitution was mere supervisory
power.
ISSUE: Whether or not the Secretary of Local
Government, as the President’s alter ego, can suspend
and or remove local officials.
Yes. Ganzon is under the impression that the Constitution
has left the President mere supervisory powers, which
supposedly excludes the power of investigation, and denied
her control, which allegedly embraces disciplinary authority.
It is a mistaken impression because legally, “supervision” is
not incompatible with disciplinary authority.
The SC had occasion to discuss the scope and extent of the
power of supervision by the President over local government
officials in contrast to the power of control given to him over
executive officials of our government wherein it was
emphasized that the two terms, control and supervision, are
two different things which differ one from the other in
meaning and extent. “In administration law supervision
means overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If the
latter fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them perform
their duties.
Control, on the other hand, means the power of an officer to
alter or modify or nullify of set aside what a subordinate
officer had done in the performance of his duties and to
substitute the judgment of the former for that of the latter.”
But from this pronouncement it cannot be reasonably
inferred that the power of supervision of the President over
local government officials does not include the power of
investigation when in his opinion the good of the public
service so requires.
The Secretary of Local Government, as the alter ego of the
president, in suspending Ganzon is exercising a valid power.
He however overstepped by imposing a 600-day suspension.
Joson v. Executive Secretary [G.R. No. 131255. May 20,
1998]
Petitioner Governor Joson was filed a complaint before the
Office of the President for barging violently into the session
hall of the Sangguniang Panlalawigan in the company of
armed men.The case was endorsed to the DILG. For failure
to file an answer after three (3) extensions, petitioner was
declared in default and ordered the petitioner 60-day
preventive suspension. Petitioner later “Motion to Conduct
Formal Investigation”. DILG denied the motion declaring
that the submission of position papers substantially
complies with the requirements of procedural due
process in administrative proceedings. Later, the Executive
Secretary, by authority of the President, adopted the
findings and recommendation of the DILG Secretary. The
former imposed
on petitioner the penalty of suspension from office for six (6)
months without pay.
ISSUES:
Whether or not:
(a) Preventive suspension is proper;
(b) Procedural due process is violated;
(c) The resolution of DILG Secretary is invalid on the ground
of undue delegation; that it is the President who is the
Disciplining Authority, not the Secretary of DILG;
(a) Yes. Preventive suspension may be imposed by the
Disciplining Authority at any time (a) after the issues are
joined;
(b) when the evidence of guilt is strong; and
(c) given the gravity of the offense, there is great probability
that the respondent, who continues to hold office, could
influence
the witnesses or pose a threat to the safety and integrity of
the records and other evidence. The act of respondent in
allegedly barging violently into the session hall of the
Sangguniang Panlalawigan in the company of armed men
constitutes grave misconduct.
The allegations of complainants are bolstered by the joint-
affidavit of two (2) employees of the Sangguniang
Panlalawigan. Respondent who is the chief executive of the
province is in a position to influence the witnesses. Further,
the history of violent confrontational politics in the province
dictates that extreme precautionary measures be taken.
(b) Yes. The rejection of petitioner’s right to a formal
investigation denied him procedural due process. Section 5
of A. O. No. 23 provides that at the preliminary conference,
the Investigating Authority shall summon the parties to
consider whether they desire a formal investigation. This
provision does not give the Investigating Authority the
discretion to determine whether a formal investigation
would be conducted. The records show that petitioner filed a
motion for formal investigation. There is nothing in the
Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that
administrative cases against elective local officials can be
decided on the basis of position papers. A.O. No. 23 states
that the Investigating Authority may require the parties to
submit their respective memoranda but this is only after
formal investigation and hearing.
(c) No. The DILG resolution is valid. The President remains
the Disciplining Authority. What is delegated is the power to
investigate, not the power to discipline. The power to
discipline
evidently includes the power to investigate. As the
Disciplining Authority, the President has the power derived
from the Constitution itself to investigate complaints against
local government officials. A. O. No. 23, however, delegates
the power to investigate to the DILG or a Special
Investigating Committee, as may be constituted by the
Disciplining Authority. This is not undue delegation,
contrary to petitioner Joson’s claim.
Under the doctrine of qualified political agency “…which
recognizes the establishment of a single executive, all
executive and administrative organizations are adjuncts of petitioners violated the LGC and the doctrine laid down by
the Executive the Supreme court.
Department, the heads of the various executive departments Moreover, the transaction was also full of irregularities.
are assistants and agents of the Chief Executive, and, The disbursement of 7M as payment was disallowed by COA
except in cases where the Chief Executive is required by the for failure to comply with the prerequisite conformity from
Constitution the SolGen and the COA.
or law to act in person or the exigencies of the situation Resolution 01-90 authorized Salalima to contract with
demand that he act personally, the multifarious executive Cortes and Reyna Law Firm and NOT with Atty. Carnago.
and administrative functions of the Chief Executive are Salalima exceeded the authority given to him in doing so.
performed by and through the executive departments, and Only Atty. Carnago appeared as counsel in the NPC case. It
the acts of the Secretaries of such departments, performed appears that Cortes and Reyna did not render any form of
and promulgated in the regular course of business, are, legal service in relation thereto. The provincial legal officer
unless disapproved or had already filed a comment in the SC. What Carnago filed
reprobated by the Chief Executive presumptively the acts of was merely a memorandum. The total attorney’s fees of 38
the Chief Executive.” This doctrine is corollary to the control Million is clearly unconscionable. Because of these findings,
power of the President provided in the Constitution. Control the OP imposed the penalty of suspension for 6 months
is said to be the very heart of the power of the presidency. against Gov. Salalima and Vice governor Azana, while the
As head of the Executive Department, the President, members of the SP were suspended for 4 months. The
however, may delegate some of his powers to the Cabinet petitioners appealed the case to the SC. In the meantime,
members except when the 1992 elections took place wherein the petitioners were
he is required by the Constitution to act in person or the reelected.
exigencies of the situation demand that he acts personally.
The members of Cabinet may act for and in behalf of the ISSUE: WON the petitioners incurred administrative
President in certain matters because the President cannot liabilities in hiring private lawyers to represent the Province
be expected to exercise his control (and supervisory) powers
personally all the time. Each head of a department is, and Whether or not they incurred liabilities, they can no longer
must be, the President’s alter ego in the matters of that be held to answer for these in view of the fact that they have
department where the President is required by law to already been reelected. Their reelection operates as
exercise authority condonation of any misconduct committed in their prior
term. In Pascual v. Pascual, the SC ruled that offenses
Salalima v. Guingona GR No. 117589-92, May 22 1996 committed or acts done in a previous term are generally
held not to furnish a cause for removal in the current term
This Supreme Court case involves four administrative of office. This is because each term is separate from other
complaints filed against Albay Governor Salalima and the terms and that the reelection operates as a condonation of
members of the Sangguniang Panlalawigan of Albay. the officer’s previous misconduct to the extent of cutting off
the right to remove him therefore. Such a rule is founded on
The complaints seek to hold the petitioners liable for a) the theory that an official’s reelection expresses the
wanton disregard of law amounting to abuse of authority in sovereign will of the electorate to forgive or condone any act
OP case 5470; b) grave abuse of authority under Section 60 or omission constituting a ground for administrative
(e) of the Local Government Code in OP cae 5649; c) discipline which was committed during the previous term.
oppression and abuse of authority under Section 60 (c) and Also, sound policy dictates such a rule. A contrary rule
(e) of the Local Government Code in OP case 5471 and d) would open the floodgates to exacerbating endless partisan
abuse of authority and negligence in OP case 5450. contests between reelected officials and their political
enemies who may not stop to hound the former during his
Relevant to our discussion on whether or not LGUs can hire new term with administrative cases for acts alleged to have
private lawyers in cases filed against it is OP case 5469. been committed during his previous term.
The Province of Albay imposed real property tax against the RULING: OP Decision imposing penalties is reversed and set
National Power Corporation. The latter, claiming that it is aside.
tax exempt, refused to pay the said tax liability. Due to its
refusal to pay, the Province of Albay took over the properties
of NPC and sold them in an auction sale. The Province was
the sole bidder. Upon the failure of NPC to redeem the
property, the Province sought the issuance of a writ of
possession from the Regional Trial Court. The NPC
challenged this in a petition filed with the Supreme Court.
The Province, through its legal office Atty. Ricaforte, filed its
comment on the said petition on May 17, 1989.
On June 2, 1989, the Sangguniang Panlalawigan issued
Resolution No. 129-89, authorizing Salalima to engage the
services of a Manila-based law firm to handle the case. As
such, on August 25, 1989, Atty. Jesus Carnago entered his
appearance with the SC as a collaborating counsel. On
November 14, 1989, Atty. Antonio Jose Cortes of Cortes and
Reyna Law Firm sent a letter to Salalima, informing him
that Atty. Carnago had filed a memorandum in the SC. He
then proposed that his law firm and that of Atty. Carnago
enter into a retainer agreement with the Province in
connection with the case. He charged 50, 000 as acceptance
fee and a contingency fee of 18%. In response to this, the
Sangguniang Panlalawigan passed Resolution No. 01-90
authorizing Salalima to sign a retainer contract with Cortes
and Reyna Law Firm.
On June 4, 1990, the Supreme Court ruled in favor of the
Province. The latter then paid the lawyers amounting to
around 7 million. However, on May 31, 1993, the Provincial
Auditor informed the Province that COA had disallowed the
payments for lack of prior written conformity of the Solicitor
General and a written concurrence of COA. An
administrative complaint was later on filed against the
petitioners with the Office of the President.
The OP found that the petitioners incurred administrative
liability in hiring private lawyers to defend it in the NPC
case.
OP’s RATIO
Section 481 of the LGC states that the legal officer of the
province has the duty to represent the LGU in all civil
actions and special proceedings wherein the LGU or any
official thereof, in his official capacity, is a party.
In the case Municipality of Bocaue v. Manotok, the Supreme
Court ruled that the LGU cannot be represented by private
lawyers and it is solely the Provincial legal officer or
provincial fiscal who can represent it. A private lawyer has
no standing in such a case.
Sec. 481 and Municipality of Bocaue v. Manotok are
applicable in this case. In hiring the private lawyers, the