10th Meeting Cases

1. De La Torre v. Comelec.................................................................22. Reyes v. Comelec...........................................................................73. Grego v. Comelec.........................................................................154. Mercado v. Manzano....................................................................255. Rodriguez v. Comelec..................................................................366. Malinao v. Reyes..........................................................................607. Salalima v. Guingona...................................................................668. Moreno v. Comelec.....................................................................1079. Laceda v. Limena........................................................................10710. Fermo v. Comelec.....................................................................12211. Lonzanida v. Comelec..............................................................12812. Aguinaldo v. Comelec..............................................................13613. Latasa v. Comelec....................................................................14214. Rivera v. Comelec........................................................................151

1. De La Torre v. Comelec

EN BANC

[G.R. No. 121592.  July 5, 1996]

ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents.

R E S O L U T I O N

FRANCISCO, J.:

Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-047, a case for disqualification filed against petitioner before the COMELEC.

The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) which provides as follows:

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

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

“(b)  x x x                                   x x x                                   x x x.”

 In disqualifying the petitioner, the COMELEC held that:

“Documentary evidence x x x established that herein respondent (petitioner in this case) was found guilty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990.  Respondent appealed the said conviction with the Regional Trial Court x x x, which however, affirmed respondent’s conviction in a Decision dated November 14,1990.  Respondent’s conviction became final on January 18,1991.

“x x x                                        x x x                                  x x x

“x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections.  Although there is ‘dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D.1612’ x x x, the nature of the offense under P.D. 1612 with which respondent was convicted certainly involves moral turpitude x x x.”

The second assailed resolution, dated August 28, 1995, denied petitioner’s motion for reconsideration.  In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on December 21, 1994 which suspended the execution of the judgment of conviction

and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well.

The two (2) issues to be resolved are:

1.  Whether or not the crime of fencing involves moral turpitude.

2.  Whether or not a grant of probation affects Section 40 (a)’s applicability.

Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior conviction of a crime becomes a ground for disqualification - i, e., “when the conviction by final judgment is for an offense involving moral turpitude.” And in this connection, the Court has consistently adopted the definition in Black’s Law Dictionary of “moral turpitude” as:

“x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in general, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to justice, honesty, modesty, or good morals.”

Not every criminal act, however, involves moral turpitude.  It is for this reason that “as to what crime involves moral turpitude, is for the Supreme Court to determine”. In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not, the rationale of which was set forth in “Zari v. Flores,” to wit:

“It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not.  It must not be merely mala prohibita, but the act itself must be inherently immoral.  The doing of the act itself, and not its prohibition by statute fixes the moral turpitude.  Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being positively prohibited.”

This guideline nonetheless proved short of providing a clear-cut solution, for in “International Rice Research Institute v. NLRC, the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum.  There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only.  In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute.

The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction.  Petitioner has in effect admitted all the elements of the crime of fencing.  At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone.

Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:

“a.  x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft.”

From the foregoing definition may be gleaned the elements of the crime of fencing which are:

"1.  A crime of robbery or theft has been committed;

“2.  The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime;

“3.   The accused knows or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and [Underscoring supplied.]

“4.  There is, on the part of the accused, intent to gain for himself or for another.”

Moral turpitude is deducible from the third element.  Actual knowledge by the “fence” of the fact that property received is stolen displays the same degree of malicious deprivation of one’s rightful property as that which animated the robbery or theft which, by their very nature, are crimes of moral turpitude.  And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the “fence” and the actual perpetrator/s of the robbery or theft invaded one’s peaceful dominion for gain - thus deliberately reneging in the process “private duties” they owe their “fellowmen” or “society” in a manner “contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals.” The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of the Civil Code on “Human Relations” and “Solutio Indebiti,” to wit:

“Article 19.  Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith.”

“Article 20.  Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.”

“Article 21.  Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.”

“Article 22.  Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.”

“Article 2154.  If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises.”

The same underlying reason holds even if the “fence” did not have actual knowledge, but merely “should have known” the origin of the property received.  In this regard, the Court held:

“When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is aware of the high probability of its existence unless he actually believes that it does not exist.  On the other hand, the words ‘should know’ denote the fact that a person of reasonable prudence and intelligence would ascertain the

fact in the performance of his duty to another or would govern his conduct upon assumption that such fact exists.” [Italics supplied.]

Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft.  Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce.  The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer.  This justifies the presumption found in Section 5 of P.D. No. 1612 that “mere possession of any goods, x x x, object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing”- a presumption that is, according to the Court, “reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft.” All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude.

Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. Petitioner’s conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation.  In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. Clearly then, petitioner’s theory has no merit.

ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

Petition dated September 8,1995, p.1; Rollo, p. 3.

COMELEC Resolution dated May 6, 1995; Rollo, p. 18.

Resolution, id., pp. 1-2; Rollo, pp. 18-19.

Motion for Reconsideration dated May 16, 1995, p. 2; Rollo, p. 23.

Zari vs. Flores, 94 SCRA 317, 323 citing Tak Ng vs. Republic of the Phil., 41 Phil. 275; Court Administrator vs. San Andres, 197 SCRA 704; International Rice Research Institute vs. NLRC, 221 SCRA 760.

International Rice Research Institute vs. NLRC, id. at p. 767 citing In Re: Victorio Lanuevo, 66 SCRA 245.

Id.

Supra.

Id,. at p. 323.

Supra.

Id. at p. 768.

Section 2(a) of P.D. 1612 (Anti-Fencing Law).

Dizon-Pamintuan vs. People, 234 SCRA 63, 72.

Id., at p. 73.

Id. at p. 74.

Section 4, P.D. No. 768.

“SEC. 4. Grant of Probation.- Subject to the provisions of this Decree, the court may, after it shall have convicted and sentenced the defendant but before he begins to serve his sentence and upon his application, suspend the execution of said sentence and place the defendant on probation for such period and upon such terms and conditions as it may deem best.

“x x x    x x x     x x x

Heirs of the Late Francisco Abueg vs. Court of Appeals, 219 SCRA 82; Palo vs. Militante, 184 SCRA 395.

2. Reyes v. ComelecEN BANC[G.R. No. 120905. March 7, 1996.]RENATO U. REYES, petitioner, vs. COMMISSION ON ELECTIONS, and ROGELIO DE CASTRO, respondents.[G.R. No. 120940. March 7, 1996.]JULIUS O. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS, and RENATO U. REYES, respondent.Rogelio V . Garcia for Renato U. Reyes.Ernico Q. Fernando for petitioner J. Garcia.The Solicitor General for public respondent.Bondal, Boller, Diaz and Associates for private respondent.SYLLABUS1. REMEDIAL LAW; CIVIL PROCEDURE; ACTION; FINAL ORDERS AND JUDGMENTS; PERSONAL SERVICE OR SERVICE BY MAIL; WHEN DEEMED COMPLETED. — Rule 13, Secs. 3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it.2. ID.; ID.; ID.; RATIONALE FOR THE RULES ON SERVICE. — The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, i.e., enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final. In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect.3. ID.; PETITION FOR CERTIORARI; EFFECT THEREOF ON THE PRINCIPAL ACTION. — The filing of a petition for certiorari with the Regional Trial Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court.4. POLITICAL LAW; ELECTION; HE WHO OBTAINED THE SECOND HIGHEST NUMBER OF VOTES MAY NOT BE PROCLAIMED WINNER IN CASE OF THE DISQUALIFICATION OF THE WINNING CANDIDATE. — That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by seesawing rulings has since been removed. In the latest ruling (Aquino v. COMELEC, G.R. No. 120265, September 18, 1995) on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.

PADILLA, J., concurring and dissenting:POLITICAL LAW; ELECTION; WHEN THE FIRST PLACER IS DISQUALIFIED, THE QUALIFIED CANDIDATE WITH THE HIGHEST NUMBER OF VOTES SHOULD BE PROCLAIMED. — J. Padilla concurs in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. He reiterates his opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with the qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified).D E C I S I O NMENDOZA, J p:For resolution are special civil actions of certiorari. The petition in G.R. No. 120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the Commission on Elections, declaring petitioner Renato U. Reyes disqualified from running for local office and cancelling his certificate of candidacy, and the resolution dated July 3, 1995 of the Commission en banc, denying petitioner's motion for reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O. Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of the Commission en banc insofar as it denies his motion to be proclaimed the elected mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U. Reyes.On August 1, 1995, the Court issued a temporary restraining order directing the Commission on Elections en banc to cease and desist from implementing its resolution of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they involved the same resolutions of the COMELEC.The facts are as follows:Petitioner Renato U. Reyes was the incumbent mayor of the municipality of Bongabong, Oriental Mindoro, having been elected to that office on May 11, 1992. On October 26, 1994, an administrative complaint was filed against him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among other things, that petitioner exacted and collected P50,000.00 from each market stall holder in the Bongabong Public Market; that certain checks issued to him by National Reconciliation and Development Program of the Department of Interior and Local Government were never received by the Municipal Treasurer nor reflected in the books of accounts of the same officer; and that he took twenty-seven (27) heads of cattle from beneficiaries of a cattle dispersal program after the latter had reared and fattened the cattle for seven months.In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found petitioner guilty of the charges and ordered his removal from office.It appears that earlier, after learning that the Sanggunian had terminated the proceedings in the case and was about to render judgment, petitioner filed a petition for certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro, Branch 42, alleging that the proceedings had been terminated without giving him a chance to be heard. A temporary restraining order was issued by the court on February 7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a result, the decision of the Sangguniang Panlalawigan could not be served upon Reyes. But on March 3, 1995, following the expiration of the temporary restraining order and without any injunction being issued by the Regional Trial Court, an attempt was made to serve the decision upon petitioner's counsel in Manila. However, the latter refused to accept the decision. Subsequent attempts to serve the decision upon petitioner himself also failed, as he also refused to accept the decision.On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of mayor and

peacefully turn over the office to the incumbent vice mayor. But service of the order upon petitioner was also refused.Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the Office of the Election Officer of the COMELEC in Bongabong.On March 24, 1995, private respondent Rogelio de Castro, as registered voter of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the Local Government Code of 1991 (R.A. No. 7160) which states:Sec. 40. Disqualification. — The following persons are disqualified from running for any elective local position:xxx xxx xxx(b) Those removed from office as a result of an administrative case.Nonetheless, because of the absence of any contrary order from the COMELEC, petitioner Reyes was voted for in the elections held on May 8, 1995.On May 9, 1995, the COMELEC's Second Division issued the questioned resolution, the dispositive portion of which reads as follows:WHEREFORE, respondent having been removed from office by virtue of Administrative Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity with Section 40, paragraph (b) of the 1991 Local Government Code. The respondent's Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election Officer of Bongabong, Oriental Mindoro is ordered to amend the official list of candidates in Bongabong to reflect the respondent's disqualification and to IMMEDIATELY circulate the amendment to the different Boards of Election Inspectors in Bongabong upon the receipt of this decision.On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-elected mayor.On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of the COMELEC's Second Division, but his motion was denied. The COMELEC en banc declared him to have been validly disqualified as candidate and, consequently, set aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R. No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the COMELEC on the ground that the decision in the administrative case against petitioner Reyes was not yet final and executory and therefore could not be used as basis for his disqualification. It is contended that the charges against him were rendered moot and academic by the expiration of the term during which the acts complained of had allegedly been committed. Invoking the ruling in the case of Aguinaldo v. Santos, 1 petitioner argues that his election on May 8, 1995, is a bar to his disqualification.On the other hand, it appears that petitioner Julius M. Garcia, who obtained the second highest number of votes next to petitioner Reyes in the same elections of May 8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision disqualifying Renato Reyes was promulgated), contending that because Reyes was disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong, Oriental Mindoro.In its resolution of July 3, 1995, the COMELEC en banc denied Garcia's prayer, citing the ruling in Republic v. De la Rosa 2 that a candidate who obtains the second highest number of votes in an election cannot be declared winner. Hence the petition in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have decided his petition at least 15 days before the May 8, 1995 elections as provided in Sec. 78 of the Omnibus Elections Code, and that because it failed to do so, many votes were invalidated which could have been for him had the voters been told earlier who were qualified to be candidates; (2) that the decision of the Sangguniang Panlalawigan was final and executory and resulted in the automatic disqualification of petitioner, and the COMELEC did not need much to decide the case for disqualification against Reyes since the latter did not appeal the decision in the administrative case ordering his removal; (3) that the COMELEC should have considered the votes cast for Reyes as stray votes.

After deliberating on the petitions filed in these cases, the Court resolved to dismiss them for lack of showing that the COMELEC committed grave abuse of discretion in issuing the resolutions in question.G.R. No. 120905First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan, ordering him removed from office, is not yet final because he has not been served a copy thereof.It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a copy of its decision was due to the refusal of petitioner and his counsel to receive the decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in his certification, repeated attempts had been made to serve the decision on Reyes personally and by registered mail, but Reyes refused to receive the decision. Manzo's certification states:On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of the decision to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel refused to accept.On March 23, 1995, Mr. Mario I.C. Manzo, Secretary to the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the office of the Mayor of Bongabong to serve the decision. Mayor Renato U. Reyes, himself present, refused to accept the ORDER enforcing the decision citing particularly the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal.On [sic] 4:40 p.m., of the same date, the Secretary to the Sangguniang Panlalawigan, unable to the serve the ORDER, mailed the same (registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER to the Office of Mayor Renato U. Reyes.

On March 28, 1995 said registered mail was returned to the Sangguniang Panlalawigan with the following inscriptions on the back by the Postmaker:1) 1st attempt — addressee out of town — 9:15

a.m., 3-23-952) 2nd attempt — addressee cannot be

contacted, out of town, 8:50a.m., 3-24-95

3) 3rd attempt — addressee not contacted — out of town, 8:15 a.m., 3-24-95

4) 4th attempt — addressee refused to accept8:15 a.m., 3-27-95

On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not present so the copy was left on the Mayor's Office with comments from the employees that they would not accept the same. 3 Rule 13, §§3 and 7 of the Rules of Court provide for the service of final orders and judgments either personally or by mail. Personal service is completed upon actual or constructive delivery, which may be made by delivering a copy personally to the party or his attorney, or by leaving it in his office with a person having charge thereof, or at his residence, if his office is not known. 4 Hence service was completed when the decision was served upon petitioner's counsel in his office in Manila on March 3, 1995. In addition, as the secretary of the Sangguniang Panlalawigan certified, service by registered mail was also made on petitioner Reyes. Although the mail containing the decision was not claimed by him, service was deemed completed five days after the last notice to him on March 27, 1995. 5 If a judgment or decision is not delivered to a party for reasons attributable to him, service is deemed completed and the judgment or decision will be considered validly served as long as it can be shown that the attempt to deliver it to him would be valid were it not for his or his counsel's refusal to receive it.Indeed that petitioner's counsel knew that a decision in the administrative case had been rendered is evident in his effort to bargain with the counsel for the Sangguniang Panlalawigan not to have the decision served upon him and his client while their petition for

certiorari in the Regional Trial Court was pending. 6 His refusal to receive the decision may, therefore, be construed as a waiver on his part to have a copy of the decision.The purpose of the rules on service is to make sure that the party being served with the pleading, order or judgment is duly informed of the same so that he can take steps to protect his interests, i.e., enable a party to file an appeal or apply for other appropriate reliefs before the decision becomes final.In practice, service means the delivery or communication of a pleading, notice or other papers in a case to the opposite party so as to charge him with receipt of it, and subject him to its legal effect. 7 In the case at bar, petitioner was given sufficient notice of the decision. Prudence required that, rather than resist the service, he should have received the decision and taken an appeal to the Office of the President in accordance with R.A. No. 7160, §67. 8 But petitioner did not do so. Accordingly, the decision became final on April 2, 1995, 30 days after the first service upon petitioner.The net result is that when the elections were held on May 8, 1995, the decision of the Sangguniang Panlalawigan had already become final and executory. The filing of a petition for certiorari with the Regional Court did not prevent the administrative decision from attaining finality. An original action of certiorari is an independent action and does not interrupt the course of the principal action nor the running of the reglementary period involved in the proceeding. 9 Consequently, to arrest the course of the principal action during the pendency of the certiorari proceedings, there must be a restraining order or a writ of preliminary injunction from the appellate court directed to the lower court. 10 In the case at bar, although a temporary restraining order was issued by the Regional Trial Court, no preliminary injunction was subsequently issued. The temporary restraining order issued expired after 20 days. From that moment on, there was no more legal barrier to the service of the decision upon petitioner.Petitioner claims that the decision cannot be served upon him because at the hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the decision of the Sangguniang Panlalawigan pending final resolution of the petition for certiorari.The alleged agreement between the counsels of Reyes and the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was illegal. And it would have been no less illegal for the Sangguniang Panlalawigan to have carried it out because R.A. No. 7160, §66(a) makes it mandatory that "[c]opies of the decision [of the Sangguniang Panlalawigan] shall immediately be furnished to respondent and/or interested parties." It was the Sangguniang Panlalawigan's duty to serve it upon the parties without unnecessary delay. To have delayed the service of the decision would have resulted in the Sangguniang Panlalawigan's failure to perform a legal duty. It, therefore, properly acted in having its decision served upon petitioner Reyes.Second. The next question is whether the reelection of petitioner rendered the administrative charges against him moot and academic. Petitioner invokes the ruling in Aguinaldo v. COMELEC, 11 in which it was held that a public official could not be removed for misconduct committed during a prior term and that his reelection operated as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor. But that was because in that case, before the petition questioning the validity of the administrative decision removing petitioner could be decided, the term of office during which the alleged misconduct was committed expired. 12 Removal cannot extend beyond the term during which the alleged misconduct was committed. If a public official is not removed before his term of office expires, he can no longer be removed if he is thereafter reelected for another term. This is the rationale for the ruling in the two Aguinaldo cases.The case at bar is the very opposite of those cases. Here, although petitioner Reyes brought an action to question the decision in the administrative case, the temporary restraining order issued in the action he brought lapsed, with the result that the decision was served on petitioner and it thereafter became final on April 3, 1995, because petitioner failed to appeal

to the Office of the President. He was thus validly removed from office and, pursuant to §40 (b) of the Local Government Code, he was disqualified from running for reelection.It is noteworthy that at the time the Aguinaldo cases were decided there was no provision similar to §40 (b) which disqualifies any person from running for any elective position on the ground that he has been removed as a result of an administrative case. The Local Government Code of 1991 (R.A. No. 7160) could not be given retroactive effect. Said the Court in the first Aguinaldo case: 13 The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides:Sec. 40. The following persons are disqualified from running for any elective local positions:xxx xxx xxx(b) Those removed from office as a result of an administrative case.Republic Act 7160 took effect only on January 1, 1992 . . . There is no provision in the statute which would clearly indicate that the same operates retroactively.It, therefore, follows that 40(b) of the Local Government Code is not applicable to the present case.Furthermore, the decision has not yet attained finality. As indicated earlier, the decision of the then Secretary of Local Government was questioned by the petitioner in this Court and that to date, the petition remains unresolved . . . .

At any rate, petitioner's claim that he was not given time to present his evidence in the administrative case has no basis, as the following portion of the decision of the Sangguniang Panlalawigan makes clear:On November 28, 1994 the Sanggunian received from respondent's counsel a motion for extension of time to file a verified answer within 15 days from November 23, 1994. In the interest of justice another fifteen (15) day period was granted the respondent.On December 5, 1994 which is the last day for filing his answer, respondent instead filed a motion to dismiss and set the same for hearing on December 22, 1994.xxx xxx xxxOn January 4, 1995, the motion to dismiss was denied for lack of merit and the order of denial was received by respondent on January 7, 1995. Considering the fact that the last day within which to file his answer fell on December 5, 1994, respondent is obliged to file the verified answer on January 7, 1995 when he received the order denying his motion to dismiss.In the hearing of the instant case on January 26, 1995, the counsel for the complainant manifested that he be allowed to present his evidence for failure of the respondent to file his answer albeit the lapse of 19 days from January 7, 1995.The manifestation of complainant's counsel was granted over the objection of the respondent, and the Sanggunian in open session, in the presence of the counsel for the respondent, issued an order dated January 26, 1995 quoted as follows:"As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to file his answer within the time prescribed by law, after the motion to dismiss was denied by this Sanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes failed to file his answer to the complaint filed against him within the reglementary period of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which oral motions for reconsideration were denied for lack of merit.Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf.It is important to note that this case should be heard in accordance with what is provided for in the constitution that all parties are entitled to speedy disposition of their cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to investigate this case come February 8, 1995 and therefore, in the interest of justice and truth the Sanggunian must exercise that authority by pursuing the hearing of this case.

Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a chance to cross-examine the witnesses that may be presented thereat."xxx xxx xxxOn February 2, 1995, the respondent through counsel despite due notice in open session, and by registered mail (registry receipt No. 1495) dated January 27, 1995, failed to appear. No telegram was received by this body to the effect that he will appear on any of the dates stated in the Order of January 26, 1995. Indeed, such inaction is a waiver of the respondent to whatever rights he may have under our laws.All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of sixty one (61) days to file his verified answer however, he resorted to dilatory motions which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the complainant a copy of his answer. Failure of the respondent to file his verified answer within fifteen (15) days from receipt of the complaint shall be considered a waiver of his rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations implementing the Local Government Code of 1991). All persons shall have the right to a speedy disposition of their cases before all judicial, quasi-judicial, or administrative bodies (Sec. 16, Art. III of the Constitution).Indeed, it appears that petitioner was given sufficient opportunity to file his answer. He failed to do so. Nonetheless, he was told that the complainant would be presenting his evidence and that he (petitioner) would then have the opportunity to cross-examine the witnesses. But on the date set, he failed to appear. He would say later that this was because he had filed a motion for postponement and was awaiting a ruling thereon. This only betrays the pattern of delay he employed to render the case against him moot by his election.

G.R. No. 120940We likewise find no grave abuse of discretion on the part of the COMELEC in denying petitioner Julius O. Garcia's petition to be proclaimed mayor in view of the disqualification of Renato U. Reyes.That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. 14 The doctrinal instability caused by seesawing rulings 15 has since been removed. In the latest ruling 16 on the question, this Court said:To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a file which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances.Garcia's plea that the votes cast for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can not be treated as stray, void, or meaningless. 17 The subsequent finding that he is disqualified cannot retroact to the date of the elections so as to invalidate the votes cast for him.As for Garcia's contention that the COMELEC committed a grave abuse of discretion in not deciding the case before the date of the election, suffice it to say that under R.A. No. 6646, §6, the COMELEC can continue proceedings for disqualification against a candidate even after the election and order the suspension of his proclamation whenever the evidence of his guilt is strong. For the same reason, we find no merit in the argument that the COMELEC should have seen right away that Reyes had not exhausted administrative remedies by appealing the decision of the Sangguniang Panlalawigan and, therefore, should have disqualified him before the elections.WHEREFORE, the petition in G.R. NO. 120905 and G.R. No. 120940 are DISMISSED for lack of merit.SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.Separate OpinionsPADILLA, J ., concurring and dissenting:I concur in the ponencia of Mr. Justice V. Mendoza except insofar as it reiterates case law that where a first placer in an election is disqualified and cannot be proclaimed, the second placer cannot likewise be declared elected and proclaimed. I reiterate my opinion expressed in Marcos vs. Montejo, G.R. No. 119976, 18 September 1995, that when a first placer is disqualified, the qualified candidate with the highest number of votes should be proclaimed. In the case at bench, G.R. No. 120940, petitioner Garcia should have been proclaimed the elected mayor of Bongabong, Oriental Mindoro because he was the candidate with the qualifications for the office who received the highest number of votes (after Renato U. Reyes was declared disqualified).Footnotes 1. 212 SCRA 768 (1992). 2. 232 SCRA 785 (1994). Also cited by the COMELEC were Geronimo v. Ramos, 136 SCRA 435 (1985); Topacio v. Paredes, 23 Phil. 238 (1912). 3. Certification issued by Mario Inocencio C. Manzo, Secretary to the Sangguniang Panlalawigan, Rollo, p. 80. 4. Rules 13, § 4. 5. Id., § 8. 6. Petition, p. 6; Rollo, p. 7. 7. 1 VICENTE J. FRANCISCO, THE REVISED RULES OF COURT IN THE PHILIPPINES 759 (1973), citing Neff v. City of Indianapolis, 198 N.E. 328 Ind. 203. 8. This provision states: Sec. 67. Administrative Appeals. — Decisions in administrative cases may, within thirty (30) days from receipt, be appealed to the following:

(a) The sangguniang panlalawigan, in the case of decisions of the sangguniang panlungsod of component cities and the sangguniang bayan; and

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities.

Decision of the Office of the President shall be final and executory. 9. Palomares v. Jimenez, 90 Phil. 773 (1952).10. 1 FLORENZ D. REGALADO, REMEDIAL LAW COMPENDIUM 456 (1989).11. Res., G.R. No. 105128-30, May 14, 1992.12. Aguinaldo v. Santos, 212 SCRA 768 (1992).13. Supra note 11.14. Frivaldo v. COMELEC, 174 SCRA 245 (1989); Labo, Jr., v. COMELEC, 176 SCRA 1 (1989); Abella v. COMELEC, 201 SCRA 253 (1991); Labo, Jr. v. COMELEC, 211 SCRA 297 (1992); Benito v. COMELEC, 235 SCRA 436 (1994).15. Compare Topacio v. Paredes, 23 Phil. 238 (1912) with Ticson v. COMELEC, 103 SCRA 687 (1981); Geronimo v. Ramos, 136 SCRA 435 (1985), with Santos v. COMELEC, 137 SCRA 740 (1985).16. Aquino v. COMELEC, G.R. No. 120265, September 18, 1995.17. Geronimo v. Ramos, supra note 15.

3. Grego v. ComelecEN BANC[G.R. No. 125955. June 19, 1997.]WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.Pimentel, Apostol, Layosa & Sibayan Law Offices for petitioner.Edilberto R. Balce for private respondents.SYLLABUS1. POLITICAL LAW; LOCAL GOVERNMENT CODE (REPUBLIC ACT NO. 7160); ELECTIONS; DISQUALIFICATIONS; THOSE REMOVED FROM OFFICE AS A RESULT OF ADMINISTRATIVE CASE; WITHOUT RETROACTIVE APPLICATION. — It is stressed that the provision of Section 40 (b) of R.A. No. 7160 as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies. To him, this interpretation is made more evident by the manner in which the provisions of Section 40 are couched. Since the past tense is used in enumerating the grounds for disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring prior to the effectivity of the Code. We do not, however subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, is Aguinaldo v. COMELEC, reiterated in the more recent cases of Reyes v. COMELEC and Salalima v. Guingona, Jr., we ruled, thus: There is no provision in the statute which would clearly indicate that the same operates retroactively. It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case." (Underscoring supplied). That the provision of the Code in question does not qualify the date of a candidate's removal from office and that it is couched in the past tense should not deter us from applying the law prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively provides the qualification sought by petitioner. A statute, despite the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before its passage. Lex prospicit, non respicit. The law looks forward, not backward. ADcEST2. ID.; PUBLIC OFFICE; APPOINTMENT; PROHIBITION AGAINST REINSTATEMENT OF DISMISSED EMPLOYEE REFERS TO APPOINTMENT NOT ELECTION. — Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover without distinction both appointive and local positions merit any consideration. Contrary to petitioner's assertion, the Tordesillas decision not bar Basco from running for any elective position. Under the former Civil Service Decree, the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointment position. Thus: "ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS. SEC. 24, Personnel Actions. - . . . (d) Reinstatement. - Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified. . . . ( Emphasis and italics supplied)." In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position. SDcITH3. ID.; ELECTIONS; REPUBLIC ACT 7166; SEC. 20 PARAGRAPH (i) THEREOF REFERS TO CONTESTED RETURNS AND NOT TO CONTESTED QUALIFICATIONS OF A CANDIDATE. — Section 20, paragraph (i) of Rep. Act 7166 reads: Sec. 20. Procedure in Disposition of

Contested Election Returns. - . . . (i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election. . . . . The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate.4. ID.; ID.; REPUBLIC ACT 6646; SUSPENSION OF PROCLAMATION IN DISQUALIFICATION CASES, DISCRETIONARY ON THE COMELEC; REASON. — Section 6 of Republic Act 6646, does not support petitioner's contention that the COMELEC, or more properly speaking the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and permissive in nature and operates to confer discretion. What is merely made mandatory according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite initiative, referendum, and recall, has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion.5. ADMINISTRATIVE LAW; ADMINISTRATIVE RULES AND REGULATIONS CAN NOT SUPPLANT OR MODIFY THE LAW. — It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure states that: "SEC. 5. Effect of petition if unresolved before completion of canvass. - . . . (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election." However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out neither to supplant nor to modify, the law. (Miners Association of the Philippines, Inc. v. Factoran, Jr.) Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used instead the word "shall" in its rules.6. POLITICAL LAW; ELECTIONS; BOARD OF CANVASSERS; WITH A MANDATORY AND MINISTERIAL DUTY TO COUNT VOTES ABSENT ANY IRREGULARITY IN ELECTION RETURNS. — Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna where we clarified the nature of the functions of the Board of Canvassers, viz.: "The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings." (9 R.C.L., p. 1110). ACaDTH7. ID.; ID.; SECOND PLACER MAY NOT BE DECLARED WINNER; EXCEPTIONS; CASE AT BAR, NOT AN EXCEPTION. — May Romualdo S. Maranan, a seventh placer, be legally declared a winning CANDIDATE? Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus petitioner's emphatic reference to Labo v. COMELEC, where we laid down a possible

exception to the rule that a second placer may not be declared the winning candidate, finds no application in this case. The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification. In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second District of Manila. aCTHEAD E C I S I O NROMERO, J p:The instant special civil action for certiorari and prohibition impugns the resolution of the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner's motion for reconsideration of an earlier resolution rendered by the COMELEC's First Division on October 6, 1995, which also dismissed the petition for disqualification filed by petitioner Wilmer Grego against private respondent Humberto Basco. The essential and undisputed factual antecedents of the case are as follows:On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena Tordesillas. The Court held:"WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.xxx xxx xxx" 2 Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila during the January 18, 1988, local elections. He won and, accordingly, assumed office.After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his position.One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo, another candidate for councilor in the same district, who alleged Basco's ineligibility to be elected councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior and Local Government. 4 All these challenges were, however, dismissed, thus, paving the way for Basco's continued stay in office.Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco's disqualification, for the suspension of his proclamation, and for the

declaration of Romualdo S. Maranan as the sixth duly elected Councilor of Manila's Second District.On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with a copy of the petition. The other members of the BOC learned about this petition only two days later.The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to submit simultaneously their respective memoranda.Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among several candidates who vied for the seats. 5 Basco immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC. He reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition for Disqualification with Temporary Restraining Order).On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he made earlier, summarizing his contentions and praying as follows:"Respondent thus now submits that the petitioner is not entitled to relief for the following reasons:1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare decisis;2. Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were dismissed prior to its effectivity. To do so would make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also a class legislation and unconstitutional on the account.3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement.4. Respondent's three-time election as candidate for councilor constitutes implied pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v Bashaw 130 P. 2nd 237, etc.).5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an election protest and it was not brought by a proper party in interest as such protest.:PRAYERWHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is respectfully prayed that instant motion be considered as respondent's answer. All other reliefs and remedies just and proper in the premises are likewise hereby prayed for."After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and condoned by the electorate which elected him" and that on account of Basco's proclamation on May 17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no longer be viable." 6

Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this petition.Petitioner argues that Basco should be disqualified from running for any elective position since he had been "removed from office as a result of an administrative case" pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local Government Code (the Code), which took effect on January 1, 1992. 8 Petitioner wants the Court to likewise resolve the following issues, namely:1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively those removed from office before it took effect on January 1, 1992;2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City Councilor of Manila wiped away and condoned the administrative penalty against him;3. Whether or not private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, is void ab initio; and4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646.While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for disqualification. The instant petition must, therefore, fail.We shall discuss the issues raised by petitioner in seriatim.I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office before it took effect on January 1, 1992?Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged disqualification to run as City Councilor states:"SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective local position:xxx xxx xxx(b) Those removed from office as a result of an administrative case;xxx xxx xxx"In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal from office which took place in 1981. It is stressed that the provision of the law as worded does not mention or even qualify the date of removal from office of the candidate in order for disqualification thereunder to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once removed from office due to an administrative case, regardless of whether it took place during or prior to the effectivity of the Code, the disqualification applies. 9 To him, this interpretation is made more evident by the manner in which the provisions of Section 40 are couched. Since the past tense is used in enumerating the grounds for disqualification, petitioner strongly contends that the provision must have also referred to removal from office occurring prior to the effectivity of the Code. 10 We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to depart therefrom. Thus, in Aguinaldo v. COMELEC, 11 reiterated in the more recent cases of Reyes v. COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled, thus:"The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which provides:'Sec. 40. The following persons are disqualified from running for any elective local positions:xxx xxx xxx(b) Those removed from office as a result of an administrative case.Republic Act 7160 took effect only on January 1, 1992.The rule is:

xxx xxx xxx'. . . Well-settled is the principle that while the Legislature has the power to pass retroactive laws which do not impair the obligation of contracts, or affect injuriously vested rights, it is equally true that statutes are not to be construed as intended to have a retroactive effect so as to affect pending proceedings, unless such intent is expressly declared or clearly and necessarily implied from the language of the enactment. . . .' (Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519 [1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No. 100599, April 8, 1992).There is no provision in the statute which would clearly indicate that the same operates retroactively.It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the present case." (Emphasis supplied).That the provision of the Code in question does not qualify the date of a candidate's removal from office and that it is couched in the past tense should not deter us from applying the law prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively provides the qualification sought by petitioner. A statute, despite the generality in its language, must not be so construed as to overreach acts, events or matters which transpired before its passage. Lex prospicit, non respicit. The law looks forward, not backward. 14 II. Did private respondent's election to office as City Councilor of Manila in the 1988, 1992 and 1995 elections wipe away and condone the administrative penalty against him, thus restoring his eligibility for public office?Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the electorate alone through the instrumentality of the ballot. Thus:". . . (T)he qualifications prescribed for elective office cannot be erased by the electorate alone. The will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they mistakenly believed, as in this case, that the candidate was qualified. . . ."At first glance, there seems to be a prima facie semblance of merit to petitioner's argument. However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is actually beside the point because the argument proceeds on the assumption that he was in the first place disqualified when he ran in the three previous elections. This assumption, of course, is untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local Government Code which, as we said earlier, applies only to those removed from office on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell on the matter at length. cdasia

Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any position in the national or local government, including its agencies and instrumentalities, as well as government-owned or controlled corporations, we are of the view that petitioner's contention is baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover without distinction both appointive and local positions merit any consideration.Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any elective position. As can be gleaned from the decretal portion of the said decision, the Court couched the prohibition in this wise:". . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS."

In this regard, particular attention is directed to the use of the term "reinstatement." Under the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively dismissed from office, the term "reinstatement" had a technical meaning, referring only to an appointive position. Thus:"ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.SEC. 24. Personnel Actions. —xxx xxx xxx(d) Reinstatement. — Any person who has been permanently APPOINTED to a position in the career service and who has, through no delinquency or misconduct, been separated therefrom, may be reinstated to a position in the same level for which he is qualified.xxx xxx xxx"(Emphasis supplied).The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10, 1975, 17 provides a clearer definition. It reads:"RULE VI. OTHER PERSONNEL ACTIONS.SEC. 7.Reinstatement is the REAPPOINTMENT of a person who was previously separated from the service through no delinquency or misconduct on his part from a position in the career service to which he was permanently appointed, to a position for which he is qualified." (Emphasis supplied).In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to an appointive position.III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995, while the disqualification case was still pending consideration by COMELEC, void ab initio?To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of Duremdes v. COMELEC, 18 Benito v. COMELEC 19 and Aguam v. COMELEC . 20 We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For the sake of clarity, let us tackle each one by one.Section 20, paragraph (i) of Rep. Act 7166 reads:"SEC. 20. Procedure in Disposition of Contested Election Returns. —xxx xxx xxx(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any proclamation made in violation hereof shall be void ab initio, unless the contested returns will not adversely affect the results of the election.xxx xxx xxx"The inapplicability of the abovementioned provision to the present case is very much patent on its face considering that the same refers only to a void proclamation in relation to contested returns and NOT to contested qualifications of a candidate.Next, petitioner cites Section 6 of Rep. Act 6646 which states:"SEC. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (Emphasis supplied).This provision, however, does not support petitioner's contention that the COMELEC, or more properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word "may" indicates that the suspension of a proclamation is merely directory and

permissive in nature and operates to confer discretion. 21 What is merely made mandatory, according to the provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must be left for its own determination and the Court cannot interfere therewith and substitute its own judgment unless such discretion has been exercised whimsically and capriciously. 22 The COMELEC, as an administrative agency and a specialized constitutional body charged with the enforcement and administration of all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, 23 has more than enough expertise in its field that its findings or conclusions are generally respected and even given finality. 24 The COMELEC has not found any ground to suspend the proclamation and the records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the COMELEC gravely abused its discretion.It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that:"SEC. 5. Effect of petition if unresolved before completion of canvass. — . . . (H)is proclamation shall be suspended notwithstanding the fact that he received the winning number of votes in such election."However, being merely an implementing rule, the same must not override, but instead remain consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant nor to modify, the law. 26 Thus, in Miners Association of the Philippines Inc. v. Factoran, Jr., 27 the Court ruled that:"We reiterate the principle that the power of administrative officials to promulgate rules and regulations in the implementation of a statute is necessarily limited only to carrying into effect what is provided in the legislative enactment. The principle was enunciated as early as 1908 in the case of United States v. Barrias. The scope of the exercise of such rule-making power was clearly expressed in the case of United States v. Tupasi Molina, decided in 1914, thus: 'Of course, the regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect the provision of the law, they are valid.'Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of administrative officials:Administrative regulations adopted under legislative authority by a particular department must be in harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350).The rule-making power must be confined to details for regulating the mode or proceeding to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).xxx xxx xxx. . . The rule or regulations should be within the scope of the statutory authority granted by the legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to implement said law, the basic law prevails because said rule or regulations cannot go beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091)."Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly irregular for the COMELEC to have used instead the word "shall" in its rules.Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where we clarified the nature of the functions of the Board of Canvassers, viz.:"The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of the voting. All other questions are to be tried before the court or other tribunal for contesting elections or in quo warranto proceedings." (9 R.C.L., p. 1110)To the same effect is the following quotation:". . . Where there is no question as to the genuineness of the returns or that all the returns are before them, the powers and duties of canvassers are limited to the mechanical or mathematical function of ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for each candidate as shown on the face of the returns before them, and then declaring or certifying the result so ascertained. (20 C.J., 200-201)" [Emphasis supplied]Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real issue. These three cases do not in any manner refer to void proclamations resulting from the mere pendency of a disqualification case.In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of contested election returns.In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest number of votes and pave the way to succession in office. In said case, the candidate receiving the highest number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the deceased candidate winner, declared Benito, a mere second-placer, the mayor.Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only on advanced copies of election returns which, under the law then prevailing, could not have been a proper and legal basis for proclamation.With no precedent clearly in point, petitioner's arguments must, therefore, be rejected.IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes which put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, 29 where we laid down a possible exception to the rule that a second placer may not be declared the winning candidate, finds no application in this case. The exception is predicated on the concurrence of two assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2) the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety but would nonetheless cast their votes in favor of the ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that Basco was well-known to have been disqualified in the small community where he ran as a candidate is purely speculative and

conjectural, unsupported as it is by any convincing facts of record to show notoriety of his alleged disqualification. 30 In sum, we see the dismissal of the petition for disqualification as not having been attended by grave abuse of discretion. There is then no more legal impediment for private respondent's continuance in office as City Councilor for the Second District of Manila.WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.SO ORDERED.Narvasa, C .J ., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban and Torres, Jr., JJ ., concur.Padilla, Bellosillo, Kapunan and Francisco, JJ ., are on leave.Footnotes 1. "In re: Petition to Disqualify Candidate for Councilor, Humberto Basco, Second District, City of Manila, in the May 8, 1995 Local Elections," Annex, "A," Rollo, pp. 40-44. 2. Adm. Matter No. P-2363, 108 SCRA 551 (1981). 3. Docketed as SPC No. 92-93, Rollo, p. 183. 4. Rollo, p. 162. 5. Annex "B," Rollo, p. 46. The names of the winning candidates and their corresponding votes are as follows:(1) NESTOR C. PONCE — 48,088(2) MARLON M. LACSON — 41,611(3) FLAVIANO F. CONCEPCION, JR. — 39,548(4) FRANCISCO B. VARONA, JR. — 37,635(5) ABELARDO C. VICEO — 37,183(6) HUMBERTO B. BASCO — 34,358 6. Rollo, pp. 101-102. 7. Supra, note 1. 8. Both parties made errors in their respective pleadings as to the date of effectivity of Rep. Act 7160. 9. Rollo, p. 14.10. Id.11. G.R. Nos. 105128-30, promulgated on June 9, 1992.12. 254 SCRA 514 (1996).13. 257 SCRA 55 (1996).14. R.E. AGPALO, STATUTORY CONSTRUCTION 254(2nd ed., 1990), citing Laceste v. Santos, 56 Phil. 472. Cf. also Article 4, Civil Code.15. 174 SCRA 245 (1989).16. Presidential Decree No. 807, issued on October 6, 1975. This law has been superseded by Subtitle A, Title I, Book V of Executive Order No. 292, otherwise known as the Administrative Code of 1987, which took effect on November 29, 1989, or two years after its publication in the Official Gazette.17. Implementing Rules of P.D. 807.18. 178 SCRA 746 (1989).19. 235 SCRA 436 (1994).20. 23 SCRA 883 (1968).21. R.E. AGPALO, STATUTORY CONSTRUCTION 239 (2nd ed., 1990).22. Provident Tree Farms, Inc. v. Batano, Jr., 231 SCRA 463 (1994).23. Sec. 2, Sub-title C, Art. IX, 1987 Constitution.24. Cf. Ting v. Court of Appeals, 237 SCRA 797 (1994); Sesbreno v. Ala, 208 SCRA 359 (1992); San Miguel Corp. v. Javate, Jr., 205 SCRA 469 (1992).25. Published in the Official Gazette on June 27, 1988, Vol. 84, No. 26.26. Commissioner of Internal Revenue v. Court of Appeals, 240 SCRA 368 (1995).27. 240 SCRA 100 (1995).28. 52 Phil. 47.

29. 211 SCRA 496 (1992).30. Frivaldo v. COMELEC, 257 SCRA 727 (1996).

4. Mercado v. ManzanoEN BANC[G.R. No. 135083. May 26, 1999.]ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.Balase, Tamase, Alampay Law Office for petitioner.Siguion Reyna, Montecillo & Ongsiako for private respondent.SYNOPSISPetitioner Mercado and private respondent Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. The Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and under Sec. 40 of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. Private respondent filed a motion for reconsideration. The motion remained pending until after the election. The board of canvassers tabulated the votes but suspended the proclamation of the winner. Petitioner sought to intervene in the case for disqualification. COMELEC en banc reversed the decision and declared private respondent qualified to run for the position. Pursuant to the ruling of the COMELEC en banc, the board of canvassers proclaimed private respondent as vice mayor. This petition sought the reversal of the resolution of the COMELEC en banc and to declare the private respondent disqualified to hold the office of the vice mayor of Makati. cdasiaOn the issue of whether the petitioner has personality to bring this suit considering that he was not the original party in the disqualification case, the Supreme Court ruled that under Sec. 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. As regards the issue of citizenship, the Court ruled that by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship.SYLLABUS1. POLITICAL LAW; ELECTORAL REFORMS LAW OF 1987 (R.A. No. 6646); INTERVENTION, ALLOWED IN PROCEEDINGS FOR DISQUALIFICATION EVEN AFTER ELECTION IF THERE HAS BEEN NO FINAL JUDGMENT RENDERED; CASE AT BAR. — Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment." The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo vs. COMELEC, reiterated in several cases, only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under Section 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have

garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from Section 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.2. ID.; CITIZENSHIP; DUAL CITIZENSHIP; DISTINGUISHED FROM DUAL ALLEGIANCE. — 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. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to posses dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition. With respect to dual allegiance, Article IV, Section 5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law."3. ID.; ID.; ID.; ID.; RATIONALE. — In including Section 5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, Section 40(d) and in R.A. No. 7854, Section 20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship.4. ID.; ID.; FILING OF THE CERTIFICATE OF CANDIDACY SUFFICED TO RENOUNCE AMERICAN CITIZENSHIP; CASE AT BAR. — By filing a certificate of candidacy when he ran for

his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo vs. COMELEC it was held: It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim — when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship." On this point, we quote from the assailed Resolution dated December 19, 1995: "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse. Until the filing of his certificate of candidacy on March 21, 1998, private respondent had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied." To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. acCITSD E C I S I O NMENDOZA, J p:Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows:Eduardo B. Manzano 103,853Ernesto S. Mercado 100,894Gabriel V. Daza III 54,275 1 The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States.In its resolution, dated May 7, 1998, 2 the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under §40(d) of the Local

Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELEC's Second Division said:What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen.In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship.Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship.The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected?Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position.WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.On May 8, 1998, private respondent filed a motion for reconsideration. 3 The motion remained pending even until after the election held on May 11, 1998.Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the proclamation of the winner.On May 19, 1998, petitioner sought to intervene in the case for disqualification. 4 Petitioner's motion was opposed by private respondent.The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. 5 The pertinent portions of the resolution of the COMELEC en banc read:As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli.He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States.It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively renounced his citizenship under American law. Under Philippine law, he no longer had U.S. citizenship.At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice-mayor of Makati City, garnering one hundred three thousand eight hundred fifty-three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety-four (100,894) votes, or a margin of two thousand nine hundred fifty-nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy-five (54,275) votes. In applying election laws, it

would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondent's certificate of candidacy.We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. cdasiaThis is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that —[T]he COMELEC en banc ERRED in holding that:A. Under Philippine law, Manzano was no longer a U.S. citizen when he:1. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and,2. He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998.B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the City of Makati;C. At the time of the May 11, 1998 elections, the resolution of the Second Division adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be declared the winner even assuming that Manzano is disqualified to run for and hold the elective office of Vice-Mayor of the City of Makati.We first consider the threshold procedural issue raised by private respondent Manzano — whether petitioner Mercado has personality to bring this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to intervene granted.I. PETITIONER'S RIGHT TO BRING THIS SUITPrivate respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention:SECTION 1. When proper and when may be permitted to intervene. — Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding.xxx xxx xxxSECTION 3. Discretion of Commission. — In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties and whether or not the intervenor's rights may be fully protected in a separate action or proceeding.Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment."The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proceedings before the COMELEC, there had already been a proclamation of the results of

the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC, 6 reiterated in several cases, 7 only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had been no proclamation of the winner, and petitioner's purpose was precisely to have private respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City.Nor is petitioner's interest in the matter in litigation any less because he filed a motion for intervention only on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from §6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides:Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered.The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only with the denial of petitioner's motion for intervention but also with the substantive issues respecting private respondent's alleged disqualification on the ground of dual citizenship.This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATIONThe disqualification of private respondent Manzano is being sought under §40 of the Local Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the Charter of the City of Makati. 8 Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through §40(d) of the Local Government Code, Congress has "command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local elective office."To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. 9 For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli;(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers' country such children are citizens of that country;(3) Those who marry aliens if by the laws of the latter's country the former are considered citizens, unless by their act or omission they are deemed to have renounced Philippine citizenship.There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of another state; but the above cases are clearly possible given the constitutional provisions on citizenship.Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individual's volition.With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law." This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows: 10 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance — and I reiterate a dual allegiance — is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all.What we would like the Committee to consider is to take constitutional cognizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the People's Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and Latin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council.When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assimilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources.Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and social unrest.And so, this is exactly what we ask — that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus: 11 . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which pervades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to

that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the People's Republic of China was made in 1975, a good number of these naturalized Filipinos still routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national security. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citizens professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship?Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No. 7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance." Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control." 12 By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they are also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on §40(d) between Senators Enrile and Pimentel clearly shows: 13 SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: "Any person with dual citizenship" is disqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship.On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belonging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position?SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships.SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world.SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen.SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentleman's example, if he does not renounce his other citizenship, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I have only one citizenship."SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic.SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification.This is similar to the requirement that an applicant for naturalization must renounce "all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of the Philippines. In Parado v. Republic, 15 it was held:[W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIPThe record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been made when he reached the age of majority.In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the United States, which provided that "A person who is a national of the United States, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory." To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondent's certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath:6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR "NATURALIZED") NATURAL-BORNxxx xxx xxx10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY.

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

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: 17 It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local position?" We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship-long before May 8, 1995. At best, Frivaldo was stateless in the interim-when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."On this point, we quote from the assailed Resolution dated December 19, 1995:"By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government."These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciousness or arbitrariness or abuse.There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private respondent's certificate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioner's contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age.Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Immigration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar vs. COMELEC 18 applies mutatis mutandis to private respondent in the case at bar:. . . Considering the fact that admittedly Osmeña was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renunciation needed to lose Philippine citizenship must be "express," it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either "express" or "implied."To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and that he does so without mental reservation, private respondent has, as far as the laws of this

country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen.On the other hand, private respondent's oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship.His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. cdasiaWHEREFORE, the petition for certiorari is DISMISSED for lack of merit.SO ORDERED.Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.Panganiban and Purisima, JJ., are on leave.Pardo, J., took no part.Footnotes 1. Petition, Rollo, p. 5. 2. Per Commissioner Amado M. Calderon and concurred in by Commissioners Julio F. Desamito and Japal M. Guiani. 3. Id., Annex E, Rollo, pp. 50-63. 4. Rollo, pp. 78-83. 5. Per Chairman Bernardo P. Pardo and concurred in by Commissioners Manolo B. Gorospe, Teresita Dy-Liaco Flores, Japal M. Guiani, and Luzviminda G. Tancangco. Commissioner Julio F. Desamito dissented. 6. 176 SCRA 1 (1989). 7. Abella v. COMELEC, 201 SCRA 253 (1991); Benito v. COMELEC, 235 SCRA 436 (1994); Aquino v. COMELEC, 248 SCRA 400 (1995); Frivaldo v. COMELEC, 257 SCRA 727 (1996). 8. R.A. No. 7854, the Charter of the City of Makati, provides: "Sec. 20 — The following are disqualified from running for any elective position in the city: . . . (d) Those with dual citizenship." 9. JOVITO R. SALONGA, PRIVATE INTERNATIONAL LAW 166 (1995).10. Id., at 361 (Session of July 8, 1986).11. Id., at 233-234 (Session of June 25, 1986).12. 1 RECORD OF THE CONSTITUTIONAL COMMISSION 203 (Session of June 23, 1986).13. Transcript, pp. 5-6, Session of Nov. 27, 1990.14. C.A. No. 473, §12.15. 86 Phil. 340, 343 (1950).16. 387 U.S. 253, 18 L. Ed. 2d 757 (1967), overruling Perez v. Brownell, 356 U.S. 2 L. Ed. 2d 603 (1958).17. 257 SCRA 727, 759-760 (1996).18. 185 SCRA 703, 711 (1990). See also Kawakita v. United States, 343 U.S. 717, 96 L. Ed. 1249 (1952).19. 169 SCRA 364 (1989).

5. Rodriguez v. ComelecEN BANC[G.R. No. 120099. July 24, 1996.]EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.Marcial O.T. Balgos for petitioner.Estelito P. Mendoza for private respondent.SYLLABUS1. POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160); DISQUALIFICATION; "FUGITIVE FROM JUSTICE", DEFINED. — The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice," the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice" includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution." The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.2. REMEDIAL LAW; ACTIONS; LAW OF THE CASE; COURT CANNOT CRAFT AN EXPANDED DEFINITION OF A "FUGITIVE FROM JUSTICE" DEFINED IN ITS EARLIER DECISION. — Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice." They espouse the broader concept of the term as culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e. that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight. Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize. Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision. 3. POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160); DISQUALIFICATION; "FUGITIVE FROM JUSTICE"; FILING OF CHARGES AT THE TIME OF FLIGHT, INDISPENSABLE. — To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit: "A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.TORRES, JR., J., concurring opinion:

1. POLITICAL LAW; ELECTION; LOCAL GOVERNMENT CODE (R.A. 7160); DISQUALIFICATION; CANDIDATE WHO RETURNED TO THE PHILIPPINES FIVE MONTHS BEFORE THE FILING OF CRIMINAL CHARGES IN THE UNITED STATES, NOT A "FUGITIVE FROM JUSTICE." — Petitioner should not be considered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Petitioner returned to the Philippines from the United States on June 25, 1985 while the criminal complaint against him for fraudulent insurance claims, grand theft and attempted grand theft of personal property before the Municipal Court of Los Angles, California was filed almost 5 months later, or on November 12, 1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United States, there was yet no case or prosecution to avoid.2. ID.; ID.; WHERE A CANDIDATE HAS RECEIVED POPULAR MANDATE, ALL POSSIBLE DOUBTS SHOULD BE RESOLVED IN FAVOR OF CANDIDATES' ELIGIBILITY. — Petitioner appears to have garnered 285,202 votes. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. As it is, to disqualify petitioner on the shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate in whom sovereignty resides. Thus, where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility, for the rule otherwise is to defeat the will of the people. Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred.VITUG, J., dissenting opinion:1. REMEDIAL LAW; ACTIONS; FORUM-SHOPPING; ACTIONS ARE OF THE SAME NATURE AND INVOLVE IDENTICAL ISSUES BETWEEN THE PARTIES; DOES NOT APPLY WHERE A PARTY FILES DISQUALIFICATION CASES FOR TWO DIFFERENT GUBERNATORIAL TERMS; CASE AT BAR. — Rodriguez contends that the COMELEC should not have entertained the disqualification case (SPA NO. 95-089) for being an act of "forum-shopping" on the part of Marquez. Clearly, there is no merit in this submission. The general statement of the prohibition against forum-shopping is that a party should not be allowed to pursue on the same subject matter simultaneous remedies in two or more different fora that can tend to degrade the administration of justice by thusly trifling with the courts and abusing their processes. Forum-shopping exists where the action are the same nature and involve identical transactions, circumstances, and issues between the same parties. While there is identity in many respect between SPA No. 95-089 and EPC No. 92-28, the two cases, however, greatly differ in their main aspects. EPC No. 92-28 (subject case of G.R. No. 112889) is a quo warranto case and involves petitioner's gubernatorial incumbency for the term 1992-1995 while SPA No. 95-089 is disqualification case involving his candidacy for the 1995 local elections.2. POLITICAL LAW; LOCAL GOVERNMENT CODE OF 1991; SEC. 40(E) THEREOF, NOT AN EX POST FACTO LAW OR A BILL OF ATTAINDER. — Rodriguez argues that should Section 40(e) of the Local Government Code of 1991 be applied to him, it would partake the nature of an ex post facto law or a bill of attainder. These terms have settled meanings in criminal law jurisprudence that clearly have no relevance to the case before us. Besides the Local Government Code took effect 01 January 1992, and thus its application to Rodriguez in his gubernatorial incumbency that started in mid-1992 and his candidacy for the 1995 elections cannot be deemed to be retrospective in character.3. ID.; ELECTIONS; OMNIBUS ELECTION CODE; SEVEN (7)-DAY PERIOD TO RESOLVE DISQUALIFICATION CASES, MERELY DIRECTORY. — Petitioner claims that the COMELEC did not have jurisdiction to issue the questioned resolution on the eve of the election because the Omnibus Election Code requires that final decisions in disqualification cases should be rendered not later than seven (7) days before the election. In any case, the "seven days" stated in the law, being evidently intended for administrative feasibility, should be construed as a mere directory rather than as a mandatory, provision of the Omnibus Election Code. A provision should be deemed to be directory only when to have it enforced strictly may cause more harm than by disregarding it.

4. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CERTIORARI; DENIAL BY COMELEC OF MOTION TO SUSPEND HEARING IN DISQUALIFICATION CASE DUE TO PENDENCY OF QUO WARRANTO CASES, NOT A GRAVE ABUSE OF DISCRETION. — The next question posed was whether or not the COMELEC gravely abused its discretion when, in the scheduled hearing of 26 April 1995, it refused to grant the motion of Rodriguez for a suspension of hearing. Far from it, the denial by COMELEC would appear to have been both prudent and legally warranted. The motion was grounded on the pendency of G.R. No. 112889 (the quo warranto case), whereas, the 26th April 1995 hearing related to the disqualification case (SPA 95-089) for the 1995 election that undoubtedly had to be resolved quickly. The COMELEC hardly had any choice but to proceed with the hearing and, when Rodriguez thereupon walked out, Marquez was naturally allowed to present his evidence ex-parte. Perhaps realizing that the COMELEC had acted correctly, petitioner would question the holding of the 26th April 1995 hearing by only one member (Commissioner Teresita Flores) of the Second Division. Not only was this matter not timely brought up before the COMELEC, but that there would appear to be no problem in the delegation by the COMELEC of the mere reception of evidence to any one of its members. All the assailed resolutions of COMELEC would indicate that the required concurrence of the Commissioners was given. The subsequent consolidation of the quo warranto case with that of the disqualification case (following our 18th April 1995 decision remanding the case to COMELEC), and the promulgation of the 07th May 1995 consolidated resolution, would also seem to be in conformity with Rule 3, Section 9, of the COMELEC Rules of Procedure, which reads: "Sec. 9. Consolidation of cases. — When an action or proceedings involves a question of law and fact which is similar to or common with that of another action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket number." Moreover, a further hearing on the quo warranto case so involving, as it does, petitioner's now expired incumbency, would be unnecessary and a futile effort.5. POLITICAL LAW; ELECTIONS; LOCAL GOVERNMENT CODE (R.A. 7160); DISQUALIFICATION; "FUGITIVE FROM JUSTICE"; CONGRESS, IN THE ABSENCE OF CLEAR LEGISLATIVE INTENT, MUST HAVE INTENDED THE ORDINARY CONNOTATION OF THE TERM TO PREVAIL; TERM REFERS TO ONE WHO, HAVING COMMITTED OR BEING ACCUSED OF HAVING COMMITTED A CRIME IN ONE JURISDICTION CAN NOT BE FOUND THEREIN, OR IS ABSENT FOR ANY REASON FROM THAT JURISDICTION. — There is a dearth of authorities on the proper and legal connotation of the phrase "fugitive from justice." Neither the law (Republic Act No. 7160, also known as the Local Government Code) here in question nor the deliberations in Congress give much clue to the legislative intent. The phrase has been used in various contexts although it is in extradition cases where it appears to have acquired a prevalent usage. It is evident enough though, in my view, that Congress, not having provided otherwise, must have intended the ordinary connotation of the term to prevail. So taken, it might be understood as referring to one who, having committed or being accused of having committed a crime in one jurisdiction, cannot be found therein or is absent for any reason from the jurisdiction that thereby forestalls criminal justice from taking its due course. The issue is largely a factual matter and in that determination, the motive or reason for his plight need not be inquired into. Animus fugere may be significant but it is not essential and what matters is not why he leaves but the fact that he leaves, for it should not be unreasonable to assume that he was not unaware of his own prior deeds or misdeeds. As so conceptualized, the import of the term is more congruent than variant with what has heretofore been essayed to be, in fact, its common usage. Indeed, unlike the U.S. courts which are yet detained by the conditions expressed in both their fundamental and statutory laws, the pertinent provision of our own Local Government Code contains no further circumscription other than by its bare and simple mandate that a "fugitive from justice in criminal or non-political cases here or abroad" shall be "disqualified from running for any elective local position." The law has provided no further provisos and no saving clauses. When there is no obscurity or ambiguity in an enabling law, it must, we have said in the related case of Marquez vs. Comelec, be merely made to apply as it is so written. This Court

is not at liberty either to question the wisdom of the law, let alone to detract from it, or to itself legislate material parameters when there are none that statutorily exist.6. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACTS OF THE COMELEC SUPPORTED BY SUBSTANTIAL EVIDENCE, UPHELD ON APPEAL; CASE AT BAR. — I now come to the final question of whether or not substantial evidence has been adduced to support the factual findings of the COMELEC and, corollarily, whether or not petitioner has been duly accorded full opportunity to present before the COMELEC his own evidence to disprove the assertions of private respondent. It may be recalled that, following the denial of the motion of Rodriguez to postpone the scheduled 26th April 1995 hearing, the COMELEC continued, because of the proximity of the May 1995 elections, with its reception of the evidence (despite the walk-out thereupon staged by Rodriguez and his counsel). Duly received in evidence included an authenticated copy of the warrant of arrest, dated 12 November 1985, on respondent (Exh. A-2) issued by the Municipal Court of the County of Los Angeles, State of California, U.S.A., in connection with a criminal complaint filed against him in Criminal Case No. A774567, entitled "People of the State vs. Imelda O. Rodriguez and Eduardo T. Rodriguez for the crimes of presenting Fraudulent Insurance Claims, Grand Theft of Personal Property and Attempted Grand Theft of Personal Property, " and an authenticated copy of the felony complaint (Exh. A-10 to A-15 inclusive), showing that the respondent was charged criminally on ten (10) counts. The petitioner and his counsel walked out from the proceedings. Certainly, the thesis that petitioner was denied due process would be totally unacceptable; he himself brushed it aside.7. ID.; COURTS; FREE TO LOOK INTO AND RECEIVE EVIDENCE ON REGULARITY OF PROCEEDINGS IN FOREIGN JURISDICTION AFFECTING FILIPINOS. — While it may generally be said that the possible outcome or truth of an indictment need not necessarily be an issue in ascertaining whether or not one is a fugitive from justice, when, however, the accusation is lodged with and an arrest is ordered by a foreign court or agency we might also assure ourselves as a matter of principle that, in the process of sanctioning in effect an act of a foreign government, we do not thereby abandon our own basic sense of equity and fair play. There cannot thus be any serious doubt that, when assailed or in doubt, the courts are free to look into, and receive evidence on, the legitimacy and regularity of the proceedings in that foreign jurisdiction.D E C I S I O NFRANCISCO, J p:Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez, Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial post of Quezon Province in the May 1992 elections. Rodriguez won and was proclaimed duly-elected governor.Marquez challenged Rodriguez' victory via petition for quo warranto before the COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United States where a charge, filed on November 12, 1985, is pending against the latter before the Los Angeles Municipal Court for fraudulent insurance claims, grand theft and attempted grand theft of personal property. Rodriguez is therefore a "fugitive from justice" which is a ground for his disqualification/ineligibility under Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez.The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a resolution of February 2, 1993, and likewise denied a reconsideration thereof.Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said petition is whether Rodriguez is a "fugitive from justice" as contemplated by Section 40(e) of the Local Government Code based on the alleged pendency of a criminal charge against him (as previously mentioned).In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs. COMELEC" promulgated on April 18, 1995, now appearing in Volume 243, page 538 of the SCRA and hereinafter referred to as the MARQUEZ Decision, declared that:". . . ,'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution. This

definition truly finds support from jurisprudence (. . .), and it may be so conceded as expressing the general and ordinary connotation of the term." 1 Whether or not Rodriguez is a "fugitive from justice" under the definition thus given was not passed upon by the Court. That task was to devolve on the COMELEC upon remand of the case to it, with the directive to proceed therewith with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a reconsideration thereof. He also filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" to which was attached a certification from the Commission on Immigration showing that Rodriguez left the US on June 25, 1985 — roughly five (5) months prior to the institution of the criminal complaint filed against him before the Los Angeles court. The Court however denied a reconsideration of the MARQUEZ Decision.In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the same position of governor. This time, Marquez challenged Rodriguez' candidacy via petition for disqualification before the COMELEC, based principally on the same allegation that Rodriguez is a "fugitive from justice." This petition for disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when Rodriguez' petition for certiorari (112889) — from where the April 18, 1995 MARQUEZ Decision sprung — was still then pending before the Court.On May 7, 1995 and after the promulgation of the MARQUEZ Decision, the COMELEC promulgated a Consolidated Resolution for EPC No. 92-28 (quo warranto case) and SPA No. 95-089 (disqualification case). In justifying a joint resolution of these two (2) cases, the COMELEC explained that:1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases;2. the parties, facts and issue involved are identical in both cases;3. the same evidence is to be utilized in both cases in determining the common issue of whether Rodriguez is a "fugitive from justice";4. on consultation with the Commission En Banc, the Commissioners unanimously agreed that a consolidated resolution of the two (2) cases is not procedurally flawed.Going now into the meat of that Consolidated Resolution, the COMELEC, allegedly having kept in mind the MARQUEZ Decision definition of "fugitive from justice", found Rodriguez to be one. Such finding was essentially based on Marquez' documentary evidence consisting of 1. an authenticated copy of the November 12, 1995 warrant of arrest issued by the Los Angeles municipal court against Rodriguez, and2. an authenticated copy of the felony complaintwhich the COMELEC allowed to be presented ex-parte after Rodriguez walked-out of the hearing of the case on April 26, 1995 following the COMELEC's denial of Rodriguez' motion for postponement. With the walk-out, the COMELEC considered Rodriguez as having waived his right to disprove the authenticity of Marquez' aforementioned documentary evidence. The COMELEC thus made the following analysis:"The authenticated documents submitted by petitioner (Marquez) to show the pendency of a criminal complaint against the respondent (Rodriguez) in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice. The Commission cannot look with favor on respondent's defense that long before the felony complaint was allegedly filed, respondent was already in the Philippines and he did not know of the filing of the same nor was he aware that he was being proceeded against criminally. In a sense, thru this defense, respondent implicitly contends that he cannot be deemed a fugitive from justice, because to be so, one must be aware of the filing of the criminal complaint, and his disappearance in the place where the long arm of the law, thru the warrant of arrest, may reach him is predicated on a clear desire to avoid and evade the warrant. This allegation in the Answer, however, was not even fortified with any attached document to show when he left the United States and when he returned to this country, facts upon which the conclusion of absence of knowledge about the criminal complaint may be derived. On the contrary, the fact of arrest of respondent's wife on November 6, 1985 in the United States by the Fraud

Bureau investigators in an apartment paid for respondent in that country can hardly rebut whatever presumption of knowledge there is against the respondent." 2 And proceeding therefrom, the COMELEC, in the dispositive portion, declared:"WHEREFORE, considering that respondent has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside."At any rate, Rodriguez again emerged as the victorious candidate in the May 8, 1995 election for the position of governor.On May 10 and 11, 1995, Marquez filed urgent motions to suspend Rodriguez' proclamation which the COMELEC granted on May 11, 1995. The Provincial Board of Canvassers nonetheless proclaimed Rodriguez on May 12, 1995.The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No. 95-089 and the May 11, 1995 Resolution suspending Rodriguez' proclamation thus gave rise to the filing of the instant petition for certiorari (G.R. No. 120099) on May 16, 1995.On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The Proclamation Of Rodriguez, To Proclaim Marquez And To Cite The Provincial Board of Canvassers in Contempt" before the COMELEC (in EPC No. 92-28 and SPA No. 95-089).Acting on Marquez' omnibus motion, the COMELEC, in its Resolution of June 23, 1995, nullified Rodriguez' proclamation and ordered certain members of the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt for disobeying the poll body's May 11, 1995 Resolution suspending Rodriguez' proclamation. But with respect to Marquez' motion for his proclamation, the COMELEC deferred action until after this Court has resolved the instant petition (G.R. No. 120099).Rodriguez filed a motion to admit supplemental petition to include the aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7 and May 11, 1995 Resolutions (Consolidated Resolution and Order to suspend Rodriguez' proclamation, respectively).As directed by the Court, oral arguments were had in relation to the instant petition (G.R. No. 120099) on July 13, 1995.Marquez, on August 3, 1995, filed an "Urgent Motion For Temporary Restraining Order Or Preliminary Injunction" which sought to restrain and enjoin Rodriguez "from exercising the powers, functions and prerogatives of Governor of Quezon . . ." Acting favorably thereon, the Court in a Resolution dated August 8, 1995 issued a temporary restraining order. Rodriguez' "Urgent Motion To Lift Temporary Restraining Order And/Or For Reconsideration" was denied by the Court in an August 15, 1995 Resolution. Another similar urgent motion was later on filed by Rodriguez which the Court also denied.In a Resolution dated October 24, 1995, the Court". . . RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a 'fugitive from justice.' Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof."The COMELEC complied therewith by filing before the Court, on December 26, 1995, a report entitled "EVIDENCE OF THE PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating the parties' evidence, declared that Rodriguez is NOT a "fugitive from justice" as defined in the main opinion of the MARQUEZ Decision, thus making a 180-degree turnaround from its finding in the Consolidated Resolution. In arriving at this new

conclusion, the COMELEC opined that intent to evade is a material element of the MARQUEZ Decision definition. Such intent to evade is absent in Rodriguez' case because evidence has established that Rodriguez arrived in the Philippines (June 25, 1985) long before the criminal charge was instituted in the Los Angeles Court (November 12, 1985).But the COMELEC report did not end there. The poll body expressed what it describes as its "persistent discomfort" on whether it read and applied correctly the MARQUEZ Decision definition of "fugitive from justice". So as not to miss anything, we quote the COMELEC's observations in full:". . . The main opinion's definition of a 'fugitive from justice 'includes not only those who flee after conviction to avoid punishment but also those who, after being charged, flee to avoid prosecution.' It proceeded to state that:This definition truly finds support from jurisprudence (Philippine Law Dictionary Third Edition, p. 399 by F.B. Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v. Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138 Federal Reporter 980; Tobin v. Casaus, 275 Pacific Reporter 2d p. 792), and it may be so conceded as expressing the general and ordinary connotation of the term.But in the majority of the cases cited, the definition of the term 'fugitive from justice' contemplates other instances not explicitly mentioned in the main opinion. Black's Law Dictionary begins the definition of the term by referring to a 'fugitive from justice' as:(A) person, who, having committed a crime, flees from jurisdiction of the court where crime was committed or departs from his usual place of abode and conceals himself within the district. . . .Then, citing King v. Noe, the definition continues and conceptualizes a 'fugitive from justice' as:. . . a person who, having committed or been charged with a crime in one state, has left its jurisdiction and is found within the territory of another when it is sought to subject him to the criminal process of the former state. (our emphasis)In Hughes v. Pflanz, the term was defined as:a person who, having committed within a state a crime, when sought for, to be subjected to criminal process, is found within the territory of another state.Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:expression which refers to one having committed, or being accused, of a crime in one jurisdiction and is absent for any reason from that jurisdiction.Specifically, one who flees to avoid punishment . . . (Emphasis ours)From the above rulings, it can be gleaned that the objective facts sufficient to constitute flight from justice are: (a) a person committed a 'crime' or has been charged for the commission thereof; and (b) thereafter, leaves the jurisdiction of the court where said crime was committed or his usual place of abode.Filing of charges prior to flight is not always an antecedent requirement to label one a 'fugitive from justice'. Mere commission of a 'crime' without charges having been filed for the same and flight subsequent thereto sufficiently meet the definition. Attention is directed at the use of the word 'crime' which is not employed to connote guilt or conviction for the commission thereof. Justice Davide's separate opinion in G.R. No. 112889 elucidates that the disqualification for being a fugitive does not involve the issue of the presumption of innocence, the reason for disqualification being that a person 'was not brought within the jurisdiction of the court because he had successfully evaded arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has successfully evaded service of sentence because he had jumped bail or escaped. The disqualification then is based on his 'flight from justice'.Other rulings of the United States Supreme Court further amplify the view that intent and purpose for departure is inconsequential to the inquiry. The texts, which are persuasive in our jurisdiction, are more unequivocal in their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts v. Reilly (116 US 80) the United States Supreme Court held:. . . it is not necessary that the party should have left the state or the judicial district where the crime is alleged to have been committed, after an indictment found, or for the purpose

of avoiding an anticipated prosecution, but that, having committed a crime within a state or district, he has left and is found in another jurisdiction (emphasis supplied)Citing State v. Richter (37 Minn. 436), the Court further ruled in unmistakable language:The simple fact that they (person who have committed crime within a state) are not within the state to answer its criminal process when required renders them, in legal intendment, fugitives from justice.THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R. NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE PHILIPPINES MAKE PETITIONER A 'FUGITIVE FROM JUSTICE.'From the foregoing discussions, the determination of whether or not Rodriguez is a fugitive from justice hinges on whether or not Rodriguez' evidence shall be measured against the two instances mentioned in the main opinion, or is to be expanded as to include other situations alluded to by the foreign jurisprudence cited by the Court. In fact, the spirited legal fray between the parties in this case focused on each camp's attempt to construe the Court's definition so as to fit or to exclude petitioner within the definition of a 'fugitive from justice'. Considering, therefore, the equally valid yet different interpretations resulting from the Supreme Court decision in G.R. No. 112889, the Commission deems it most conformable to said decision to evaluate the evidence in light of the varied constructions open to it and to respectfully submit the final determination of the case to the Honorable Supreme Court as the final interpreter of the law."The instant petition dwells on that nagging issue of whether Rodriguez is a "fugitive from justice", the determination of which, as we have directed the COMELEC on two (2) occasions (in the MARQUEZ Decision and in the Court's October 24, 1995 Resolution), must conform to how such term has been defined by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":". . . includes not only those who flee after conviction to avoid punishment but likewise who, after being charged, flee to avoid prosecution."The definition thus indicates that the intent to evade is the compelling factor that animates one's flight from a particular jurisdiction. And obviously, there can only be an intent to evade prosecution or punishment when there is knowledge by the fleeing subject of an already instituted indictment, or of a promulgated judgment of conviction.Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival in the Philippines from the US on June 25, 1985, as per certifications issued by the Bureau of Immigration dated April 27 3 and June 26 of 1995, 4 preceded the filing of the felony complaint in the Los Angeles Court on November 12, 1985 and of the issuance on even date of the arrest warrant by that same foreign court, by almost five (5) months. It was clearly impossible for Rodriguez to have known about such felony complaint and arrest warrant at the time he left the US, as there was in fact no complaint and arrest warrant — much less conviction — to speak of yet at such time. What prosecution or punishment then was Rodriguez deliberately running away from with his departure from the US? The very essence of being a "fugitive from justice" under the MARQUEZ Decision definition, is just nowhere to be found in the circumstances of Rodriguez.With that, the Court gives due credit to the COMELEC in having made the. same analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other observations consistent with such analysis made by the poll body that are equally formidable so as to merit their adoption as part of this decision, to wit:"It is acknowledged that there was an attempt by private respondent to show Rodriguez' intent to evade the law. This was done by offering for admission a voluminous copy of an investigation report (Exhibits I to I-17 and J to J-87 inclusive) on the alleged crimes committed which led to the filing of the charges against petitioner. It was offered for the sole purpose of establishing the fact that it was impossible for petitioner not to have known of said investigation due to its magnitude. Unfortunately, such conclusion misleads because investigations of this nature, no matter how extensive or prolonged, are shrouded with utmost secrecy to afford law enforcers the advantage of surprise and effect the arrest of

those who would be charged. Otherwise, the indiscreet conduct of the investigation would be nothing short of a well-publicized announcement to the perpetrators of the imminent filing of charges against them. And having been forewarned, every effort to sabotage the investigation may be resorted to by its intended objects. But if private respondent's attempt to show Rodriguez' intent to evade the law at the time he left the United States has any legal consequence at all, it will be nothing more than proof that even private respondent accepts that intent to evade the law is a material element in the definition of a fugitive."The circumstantial fact that it was seventeen (17) days after Rodriguez' departure that charges against him were filed cannot overturn the presumption of good faith in his favor. The same suggests nothing more than the sequence of events which transpired. A subjective fact as that of petitioner's purpose cannot be inferred from the objective data at hand in the absence of further proof to substantiate such claim. In fact, the evidence of petitioner Rodriguez sufficiently proves that his compulsion to return to the Philippines was due to his desire to join and participate vigorously in the political campaigns against former President Ferdinand E. Marcos. For indeed, not long after petitioner's arrival in the country, the upheaval wrought by the political forces and the avalanche of events which occurred resulted in one of the more colorful events in Philippine history. The EDSA Revolution led to the ouster of former Pres. Marcos and precipitated changes in the political climate. And being a figure in these developments, petitioner Rodriguez began serving his home province as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was elected Governor in 1988 and continues to be involved in politics in the same capacity as re-elected Governor in 1992 and the disputed re-election in 1995. Altogether, these landmark dates hem in for petitioner a period of relentless, intensive and extensive activity of varied political campaigns — first against the Marcos government, then for the governorship. And serving the people of Quezon province as such, the position entails absolute dedication of one's time to the demands of the office."Having established petitioner's lack of knowledge of the charges to be filed against him at the time he left the United States, it becomes immaterial under such construction to determine the exact time when he was made aware thereof. While the law, as interpreted by the Supreme Court, does not countenance flight from justice in the instance that a person flees the jurisdiction of another state after charges against him or a warrant for his arrest was issued or even in view of the imminent filing and issuance of the same, petitioner's plight is altogether a different situation. When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice."The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United States, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United States and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges filed against him."Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts?"It must be noted that moral uprightness is not a standard too far-reaching as to demand of political candidate the performance of duties and obligations that are supererogatory in

nature. We do not dispute that an alleged 'fugitive from justice' must perform acts in order not to be so categorized. Clearly, a person who is aware of the imminent filing of charges against him or of the same already filed in connection with acts he committed in the jurisdiction of a particular state, is under an obligation not to flee said place of commission. However, as in petitioner's case, his departure from the United States may not place him under a similar obligation. His subsequent knowledge while in the Philippines and non-submission to the jurisdiction of the former country does not operate to label petitioner automatically a fugitive from justice. As he was a public officer appointed and elected immediately after his return to the country, petitioner Rodriguez had every reason to devote utmost priority to the service of his office. He could not have gone back to the United States in the middle of his term nor could he have traveled intermittently thereto without jeopardizing the interest of the public he serves. To require that of petitioner would be to put him in a paradoxical quandary where he is compelled to violate the very functions of his office."However, Marquez and the COMELEC (in its "COMMISSION'S EVALUATION" as earlier quoted) seem to urge the Court to re-define "fugitive from justice". They espouse the broader concept of the term as culled from foreign authorities (mainly of U.S. vintage) cited in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from justice" by the mere fact that he leaves the jurisdiction where a charge is pending against him, regardless of whether or not the charge has already been filed at the time of his flight.Suffice it to say that the "law of the case" doctrine forbids the Court to craft an expanded re-definition of "fugitive from justice" (which is at variance with the MARQUEZ Decision) and proceed therefrom in resolving the instant petition. The various definitions of that doctrine have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:"'Law of the case' has been defined as the opinion delivered on a former appeal. More specifically, it means that whatever is once irrevocably established as the controlling legal rule of decision between the same parties in the same case continues to be the law of the case, whether correct on general principles or not, so long as the facts on which such decision was predicated continue to be the facts of the case before the court." (21 C.J.S. 330)"It may be stated as a rule of general application that, where the evidence on a second or succeeding appeal is substantially the same as that on the first or preceding appeal, all matters, questions, points, or issues adjudicated on the prior appeal are the law of the case on all subsequent appeals and will not be considered or readjudicated therein." (5 C.J.S. 1267)"In accordance with the general rule stated in Section 1821, where, after a definite determination, the court has remanded the cause for further action below, it will refuse to examine question other than those arising subsequently to such determination and remand, or other than the propriety of the compliance with its mandate; and if the court below has proceeded in substantial conformity to the directions of the appellate court, its action will not be questioned on a second appeal."As a general rule a decision on a prior appeal of the same case is held to be the law of the case whether that decision is right or wrong, the remedy of the party deeming himself aggrieved being to seek a rehearing." (5 C.J.S. 1276-77)."Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the point decided have received due consideration whether all or none of them are mentioned in the opinion." (5 C.J.S. 1286-87).To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ Decision and the instant petition. The MARQUEZ Decision was an appeal from EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The instant petition is also an appeal from EPC No. 92-28 although the COMELEC resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the disqualification of Rodriguez). Therefore, what was irrevocably established as

the controlling legal rule in the MARQUEZ Decision must govern the instant petition. And we specifically refer to the concept of "fugitive from justice" as defined in the main opinion in the MARQUEZ Decision which highlights the significance of an intent to evade but which Marquez and the COMELEC, with their proposed expanded definition, seem to trivialize.Besides, to re-define "fugitive from justice" would only foment instability in our jurisprudence when hardly has the ink dried in the MARQUEZ Decision.To summarize, the term "fugitive from justice" as a ground for the disqualification or ineligibility of a person seeking to run for any elective local position under Section 40(e) of the Local Government Code, should be understood according to the definition given in the MARQUEZ Decision, to wit:"A 'fugitive from justice' includes not only those who flee after conviction to avoid punishment but likewise those who, after being charged, flee to avoid prosecution." (Emphasis ours.)"Intent to evade on the part of a candidate must therefore be established by proof that there has already been a conviction or at least, a charge has already been filed, at the time of flight. Not being a "fugitive from justice" under this definition, Rodriguez cannot be denied the Quezon Province gubernatorial post.WHEREFORE, in view of the foregoing, the instant petition is hereby GRANTED and the assailed Resolutions of the COMELEC dated May 7, 1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying Rodriguez' proclamation and ordering the Quezon Province Provincial Board of Canvassers to explain why they should not be cited in contempt) are SET ASIDE.SO ORDERED.Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganiban, JJ ., concur.Bellosillo, J ., is on leave.Separate OpinionsTORRES, JR., J ., concurring:Although I entertain no illusion of absolute certainty, as to whether or not the petitioner in the above-entitled case is a "fugitive from justice" within the purview of Section 40 paragraph (e) of Republic Act No. 7160 of the Local Government Code of 1991, and which would result to a disqualification for any elective local position, I, however, share the view of my distinguished colleague, Mr. Justice Ricardo J. Francisco, that petitioner Eduardo T. Rodriguez, is not a "fugitive from justice."Petitioner should not be considered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province.Petitioner returned to the Philippines from the United States on June 25, 1985 while the criminal complaint against him for fraudulent insurance claims, grand theft and attempted grand theft of personal property before the Municipal Court of Los Angeles, California was filed almost 5 months later, or on November 12, 1985. Verily, it cannot be said that he fled to avoid prosecution for at the time he left the United States, there was yet no case or prosecution to avoid. It would not be reasonable to assume that he returned to the Philippines aware that he has committed some transgressions of law or that he was anticipating the filing of the complaint. To assume that he was not unaware of his own prior misdeeds is tantamount to presuming his guilt.That petitioner did not know of the imminent filing of charges against him and that he did not flee to avoid prosecution are bolstered by the facts that: 1.) he returned to the United States twice: on August 14 and October 7 of the same year but arrived in the Philippines on October 26 likewise in the same year; 2.) he left his wife in the United States; and 3.) his wife was later on arrested for the same charges. Had petitioner been aware of the imminent filing of charges against him, he would never have returned to the United States and he would not have left his wife in there.Petitioner is a citizen of this country. Why should he not come home? Coming home to the Philippines was the most natural act of the petitioner, who happens to maintain his residence in the country. The fact that he remains here even after he was formally accused cannot be construed as an indication of an intent to flee, there being no compelling reason

for him to go to the United States and face his accusers. On the contrary, it is his official duty, as an incumbent Governor of Quezon, to remain in the country and perform his duties as the duly elected public official.In her report entitled "Evidence of the Parties and Commission's Evaluation," Commissioner Teresita Dy-Liacco Flores aptly pointed out:". . . When, in good faith, a person leaves the territory of a state not his own, homeward bound, and learns subsequently of charges filed against him while in the relative peace and service of his own country, the fact that he does not subject himself to the jurisdiction of the former state does not qualify him outright as a fugitive from justice."The severity of the law construed in the manner as to require of a person that he subject himself to the jurisdiction of another state while already in his country or else be disqualified from office, is more apparent when applied in petitioner's case. The criminal process of the United States extends only within its territorial jurisdiction. That petitioner has already left said country when the latter sought to subject him to its criminal process is hardly petitioner's fault. In the absence of an intent to evade the laws of the United Sates, petitioner had every right to depart therefrom at the precise time that he did and to return to the Philippines. No justifiable reason existed to curtail or fetter petitioner's exercise of his right to leave the United States and return home. Hence, sustaining the contrary proposition would be to unduly burden and punish petitioner for exercising a right as he cannot be faulted for the circumstances that brought him within Philippine territory at the time he was sought to be placed under arrest and to answer for charges against him.Granting, as the evidence warrants, that petitioner Rodriguez came to know of the charges only later, and under his circumstances, is there a law that requires petitioner to travel to the United States and subject himself to the monetary burden and tedious process of defending himself before the country's courts?" 1 This Court cannot be oblivious of the fact that the provision disqualifying fugitives from justice in criminal or non-political cases here or abroad was allegedly tailored to affect petitioner. The provision is short of saying that Eduardo Rodriguez is disqualified. As I trace the legislative history of the subject provision, I find that the principal sponsor of the Local Government Code, Aquilino O. Pimentel, Jr., then a Senator and Chairman of the Senate Committee on Local Government commented on this, in his book "The Local Government Code of 1991," thus:"5. Fugitives Disqualified. Persons fleeing from local or foreign justice in criminal or non-political cases are likewise disqualified from local government elective positions. This particular disqualification was a House of Representatives innovation. This was a 'camaraderie' provision proposed by the House because a congressman of a southern Tagalog province had intended to run for governor against an incumbent who had reportedly fled from U.S. justice". 2 (Emphasis supplied)To borrow the language of former Chief Justice Moran in his dissent in Torres vs. Tan Chim, 69 Phil. 518, 535:". . . when this Court continues to uphold a ruling known to be erroneous, with no plausible excuse therefor but public acquiescence therein, it may soon find itself compelled to make more mistakes in an effort to justify the previous ones. We may thus be building one error upon another until, by their accumulation, we shall come to a point when going further would be perilous and turning backward impossible."To rule in favor of private respondent is to license a wrongdoing to succeed and injustice to prevail In applying a law, the facts and circumstances obtaining in the particular case must be taken into consideration. In the case at bar, the following circumstances must be taken into consideration: that petitioner was not aware of the imminent filing of charges against him; the same was filed after he has returned home; it is impractical and unjust to require petitioner to subject himself to the jurisdiction of the United States while already in this country or else be disqualified from office; and that the subject provision appears to have been a 'camaraderie provision' proposed by the House for the sake of private respondent who was then a Congressman.

In Marquez vs. COMELEC (243 SCRA 538), this court held that: Art. 73 of the Rules and Regulations Implementing the Local Government Code of 1991 is an inordinate and undue circumscription of the law, to the extent that it confines the term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final judgment." Said ruling notwithstanding, the court must not insist that petitioner is still a fugitive by the mere fact that there are pending charges against the petitioner in the United States and that petitioner Rodriguez is in the Philippines.It was Justice Oliver Wendel Holmes who said that —"A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." 3 "Fugitive from justice" must be given a meaning in the instant case having regard to "the circumstances and the time it is used." Philosophers and jurists have tried unsuccessfully at an exact definition of such an abstruse term as justice. Unfortunately, whether in the metaphysical sense or otherwise, the question of justice is still unanswered as it was albeit characterized by secular skepticism. If the question is asked: What standard of justice should we enforce? The American sense of justice or the Philippine sense of justice? Undoubtedly, the forum in which it is raised should be controlling. By way only of hypothesis, if an American flees to escape from Philippine Laws to the United States, may we enforce in the United States our standard of justice based on Philippine Law? I am tempted to ask these questions considering our zealousness to solve legal problems in the light of laws obtaining in the United States.At any rate, an accused charged with a crime in the Philippines cannot be a candidate and at the same time flee from prosecution. Once he goes campaigning his opponent would have him arrested. For this and the reasons above discussed, the provision on disqualification of fugitive from justice, being unnecessary and serving only to undermine one's constitutional right to equal access to opportunities for public service, 4 should even be scantily considered.Finally, petitioner appears to have garnered 285,202 votes. According to the election results, petitioner won over private respondent by a majority of 140, 000 votes more or less. As it is, to disqualify petitioner on the shaky ground of being a "fugitive from justice" would amount to disenfranchising the electorate in whom sovereignty resides. 5 Learned Hand, had this to say:"Hand preached that the security of liberty was too important to be left entirely to the judges: '(I)t is the voters, speaking through their delegates, who have the final word and the final responsibility; and . . . in the end it is they and they alone who can and will preserve our liberties, if preserved they are to be.'" 6 This is a populist judicial response.Thus, where a candidate has received popular mandate, overwhelmingly and clearly expressed, all possible doubts should be resolved in favor of the candidate's eligibility, for to rule otherwise is to defeat the will of the people. 7 Above and beyond all, the determination of the true will of the electorate should be paramount. It is their voice, not ours or of anyone else, that must prevail. This, in essence, is the democracy we continue to hold sacred. 8 I vote to grant the petition.VITUG, J ., dissenting:Let me not, in writing this dissenting opinion, be so misunderstood as stating that I am opposed to the doctrine of stare decisis et non quieta movere or to the consequences of the rule on the "law of the case," let alone to create, to borrow the phrase used by the majority, "instability in our jurisprudence." But what I would really dread is when I might, wittingly or unwittingly, misconceive the pronouncements made by the Court or, worse, be completely out of context therefrom. I should also like to point out that the dissent in no way necessarily implies an acceptance on the sapience of the law here in question; I realize that the Court has no prerogative to either sustain or reject a law on that basis alone.I find it helpful to first narrate the antecedents of the case now before us.

For some time now, Eduardo Rodriguez and Bienvenido Marquez, Jr., have been at loggerheads on the issue of whether or not Rodriguez is a "fugitive from justice" and thereby disqualified under the law to run for, or to hold on to, an elective local office. The contenders have for the fourth time 1 pleaded for the intervention of this Court.This time, in a special civil action for certiorari, with a prayer for the issuance of a writ of preliminary mandatory/prohibitory injunction, Rodriguez seeks the annulment of the 07th and 11th May 1995 resolutions (infra) of the Commission on Elections ("COMELEC"). There being other matters that have come up during the pendency of this petition, Rodriguez has now also moved for the admission of his supplemental petition and a second supplemental petition to call attention to certain developments, including a 23rd June 1995 resolution of the COMELEC which he now likewise assails.The various settings that led to the promulgation by the COMELEC of its assailed resolutions might be condensed thusly:Rodriguez, the proclaimed Governor of Quezon Province after the May 1992 elections, was named respondent by Marquez, a defeated candidate for the same post, in a quo warranto petition, docketed EPC No. 92-28 (hereinafter so referred to as the quo warranto case), instituted before the COMELEC. Rodriguez was said to be a fugitive from justice and thereby disqualified under Section 40(e) of the Local Government Code from holding on to the elective local office. The COMELEC dismissed the petition for quo warranto on the ground that petitioner had not been convicted by final judgment. Private respondent thereupon filed a petition for certiorari with this Court (docketed G.R. No. 112889). 2 On 15 March 1995 (while G.R. No. 112889 was still then pending consideration by the Court), Marquez and Rodriguez filed their respective certificates of candidacy, this time for the May 1995 elections, for the governorship of Quezon. Upon learning of the re-election bid of Rodriguez, Marquez lost no time in filing (on 11 April 1995) with the COMELEC a petition to disqualify Rodriguez and for the cancellation of the latter's certificate of candidacy. Docketed SPA No. 95-089 (hereinafter so referred to as the disqualification case), the petition was assigned to the Second Division of the COMELEC. Marquez disclosed to the COMELEC the pendency of G.R. No. 112889 but explained that the two cases were different in that G.R. No. 112889 had sought to oust petitioner from office for the term 1992-1995 while SPA No. 95-089 was aimed at disqualifying petitioner from running for a new term (1995-1998). Rodriguez was summoned by the Second Division of the COMELEC and required to file his answer to the petition. The disqualification case was set for hearing on 25 April 1995.Meanwhile, on 18 April 1995, this Court rendered a decision in G.R. No. 112889 reversing and setting aside the resolution of the COMELEC which dismissed the petition for quo warranto and directed the COMELEC "to proceed and resolve the case with dispatch." On even date, Rodriguez filed with this Court in G.R. No. 112889 an "Urgent Manifestation and Motion" for the dismissal G.R. No. 112889 asseverating that the filing of SPA No. 95-089 meant forum-shopping on the part of Marquez.Unaware (presumably) of the 18th April 1995 decision of this Court, Rodriguez filed, on 21 April 1995, with the COMELEC (Second Division) in the disqualification case (SPA No. 95-089) a "Motion to Nullify Summons and to Reconsider Notice of Hearing" praying for the dismissal of the case in view of the pendency with this Court of G.R. No. 112889. He filed an "Answer Ex-Abundante Cautela" claiming, among other things, that he was already in the Philippines at the time the complaint was filed against him in Los Angeles, California. In three separate pleadings, Rodriguez insisted on the nullification of the summons, the reconsideration of the notice of hearing and the dismissal of SPA No. 95-089.The scheduled 25th April 1995 hearing on the disqualification case was re-set to 26 April 1995. Still claiming to be in cognizant of this Court's decision in G.R. No. 112889, Rodriguez filed, on 25 April 1995, an urgent motion for the issuance of a writ of preliminary injunction to restrain the COMELEC from hearing SPA No. 95-089, arguing that, since SPA No. 95-089 was also based on the facts as those that related to G.R. No. 112889, its filing constituted forum-shopping and could pre-empt G.R. No. 112889.

The hearing on the disqualification case (SPA No. 95-089), re-scheduled for 26 April 1995 by the Second Division of the COMELEC, 3 went through. Rodriguez moved to suspend the proceedings so citing, as the ground therefor, his urgent motion for preliminary injunction in G.R. No. 112889. The COMELEC (Second Division), however, denied his motion, as well as his subsequent motion for time to file a motion for reconsideration, because of the proximity of the elections. Failing to have the proceedings held in abeyance, Rodriguez walked out of the hearing. Marquez then submitted and offered in evidence the authenticated copies of the felony complaint and warrant of arrest against Rodriguez issued on 12 November 1985, by the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, U.S.A., and some other records of said court.On 27 April 1995, it might be mentioned parenthetically, Rodriguez moved for the reconsideration of this Court's decision of 18 April 1995 in G.R. No. 112889.It was now the turn of Rodriguez to file with this Court a petition for certiorari, prohibition, and mandamus. The petition, entitled "Eduardo T. Rodriguez vs. Commission on Elections, et al.," and docketed G.R. No. 119807, asked the Court to enjoin the COMELEC from proceeding with SPA No. 95-089. The petition was dismissed by the Court, in its 04 May 1995 minute resolution, since it found no grave abuse of discretion on the part of the COMELEC.Meanwhile, in G.R. No. 112889, Rodriguez filed an "Urgent Motion to Admit Additional Argument in Support of the Motion for Reconsideration" attaching thereto a certification from the Commission on Immigration purporting to show that he had left the United States on 25 June 1985 before the felony complaint against him was instituted before the Los Angeles court. The following day, or on 03 May 1995, he also filed with the COMELEC (Second Division), a "Motion to Admit Position Paper Ex Abundante Cautela Showing that Respondent is Not a Fugitive From Justice As Defined in the Supreme Court Decision of April 18, 1995 in G.R. No. 112889," arguing that the decision in G.R. No. 112889 would not apply to him because he arrived in the Philippines five (5) months before the filing of the felony charges against him. The COMELEC (Second Division), in its 06 May 1995 resolution, denied the motion.On 07 May 1995, or one day before the scheduled 1995 elections, the COMELEC promulgated its first assailed consolidated resolution in EPC No. 92-28 and SPA No. 95-089 which read:"WHEREFORE, considering that respondent (Eduardo Rodriguez) has been proven to be fugitive from justice, he is hereby ordered disqualified or ineligible from assuming and performing the functions of Governor of Quezon Province. Respondent is ordered to immediately vacate said office. Further, he is hereby disqualified from running for Governor for Quezon Province in the May 8, 1995 elections. Lastly, his certificate of candidacy for the May 8, 1995 elections is hereby set aside." 4 (Emphasis supplied)On 10 and 11 May 1995, Marquez filed urgent motions to suspend the proclamation of Rodriguez. The COMELEC favorably acted on the motions as it so issued, on 11 May 1995, a resolution where it ruled to suspend, among other candidates, the proclamation of Rodriguez who was ordered disqualified in SPA No. 95-089. Notwithstanding the 11th May 1995 resolution, however, Rodriguez, who would appear to have garnered 285,202 votes, was proclaimed winner on 12 May 1995 by the Provincial Board of Canvassers of Quezon. On 22 May 1995, Marquez went to the COMELEC and filed in SPA No. 95-089 and EPC No. 92-28 an "Omnibus Motion to Annul the Proclamation of Rodriguez, to Proclaim Marquez and to cite the Provincial Board of Canvassers in Contempt."On 16 May 1995, Rodriguez filed the present petition for certiorari captioned: "For: REVIEW OF EPC No. 92-28 and SPA No. 95-089 of the Commission on Elections and for NULLIFICATION OF COMELEC Resolution dated 11 May 1995 with a prayer for the issuance of a WRIT OF PRELIMINARY MANDATORY/PROHIBITORY INJUNCTION." An urgent motion to admit a supplemental petition was filed on 18 May 1995 by petitioner stating that he had been furnished with a copy of a certificate of canvass of votes and of his proclamation by the Provincial Board of Canvassers. On 29 May 1995, Rodriguez thereupon renewed his prayer, through a motion, for the issuance of a temporary restraining order and to declare the COMELEC and Marquez in contempt of court.

Back to the omnibus motion of Marquez in SPA No. 95-089 and EPC No. 92-28, the COMELEC, in its 23rd June 1995 resolution, annulled and set aside the proclamation of Rodriguez for being null and void ab initio. It also gave the Vice-Chairman and Member-Secretary of the Provincial Board of Canvassers of Quezon Province ten (10) days within which to explain why they should not be cited in contempt for disobedience or resistance to the lawful order of the COMELEC particularly its "order to suspend proclamation." On the motion seeking the proclamation of Marquez, the COMELEC chose to have the matter considered by it only "once the Supreme Court (would have) resolved the case of Eduardo T. Rodriguez v. COMELEC (in), G.R. No. 120099" (the instant petition). This action by the COMELEC prompted Rodriguez to file his motion to admit a second supplemental petition in order to include the 23rd June 1995 resolution, in addition to the 07th and 11th May resolutions, of the COMELEC, among the disputed issuances.Petitioner submits several reasons for the allowance and grant of his petition.Rodriguez contends that the COMELEC should not have entertained the disqualification case (SPA No. 95-089) for being an act of 'forum-shopping' on the part of Marquez. Clearly, there is no merit in this submission. The general statement of the prohibition against forum-shopping is that a party should not be allowed to pursue on the same subject matter simultaneous remedies in two or more different fora 5 that can tend to degrade the administration of justice by thusly trifling with the courts and abusing their processes. 6 Forum-shopping exists where the actions are of the same nature and involve identical transactions, circumstances, and issues between the same parties. 7 While there is identity in many respects between SPA No. 95-089 and EPC No. 92-28, the two cases, however, greatly differ in their main aspects. EPC No. 92-28 (subject case of G.R. No. 112889) is a quo warranto case and involves petitioner's gubernatorial incumbency for the term 1992-1995 while SPA No. 95-089 is a disqualification case involving his candidacy for the 1995 local elections.Rodriguez argues that should Section 40(e) of the Local Government Code of 1991 be applied to him, it would partake the nature of an ex post facto 8 law or a bill of attainder. 9 These terms have settled meanings in criminal law jurisprudence that clearly have no relevance to the case before us. Besides, the Local Government Code took effect on 01 January 1992, and thus its application to Rodriguez in his gubernatorial incumbency that started in mid-1992 and his candidacy for the 1995 elections cannot be deemed to be retrospective in character.Petitioner claims that the COMELEC did not have jurisdiction to issue the questioned resolution on the eve of the election because the Omnibus Election Code requires that final decisions in disqualification cases should be rendered not later than seven (7) days before the election. Section 72 of the Omnibus Election Code, that petitioner refers to, provides:"SEC. 72. Effects of disqualification cases and priority. — The Commission and the courts shall give priority to cases of disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days before the election in which the disqualification is sought." (Emphasis supplied).The instant case calls for the governance not of the Omnibus Election Code but of the Local Government Code (specifically Section 40[e] thereof). In any case, the "seven days" stated in the law, being evidently intended for administrative feasibility, should be construed as a mere directory, rather than as a mandatory, provision of the Omnibus Election Code. A provision should be deemed to be directory only when to have it enforced strictly may cause more harm than by disregarding it. 10 The next question posed was whether or not the COMELEC gravely abused its discretion when, in the scheduled hearing of 26 April 1995, it refused to grant the motion of Rodriguez for a suspension of hearing. Far from it, the denial by COMELEC would appear to have been both prudent and legally warranted. The motion was grounded on the pendency of G.R. No. 112889 (the quo warranto case), whereas, the 26th April 1995 hearing related to the disqualification case (SPA 95-089) for the 1995 election that undoubtedly had to be resolved quickly. The COMELEC hardly had any choice but to proceed with the hearing and, when Rodriguez thereupon walked out, Marquez was naturally allowed to present his evidence ex-

parte. Perhaps realizing that the COMELEC had acted correctly, petitioner would question the holding of the 26th April 1995 hearing by only one member (Commissioner Teresita Flores) of the Second Division. 11 Not only was this matter not timely brought up before the COMELEC, but that there would appear to be no problem in the delegation by the COMELEC of the mere reception of evidence to any one of its members. All the assailed resolutions of COMELEC would indicate that the required concurrence of the Commissioners was given.The subsequent consolidation of the quo warranto case with that of the disqualification case (following our 18th April 1995 decision remanding the case to COMELEC), and the promulgation of the 07th May 1995 consolidated resolution, would also seem to be in conformity with Rule 3, Section 9, of the COMELEC Rules of Procedure, which reads:"Sec. 9. Consolidation of cases. — When an action or proceeding involves a question of law and fact which is similar to or common with that of another action or proceeding, the same may be consolidated with the action or proceeding bearing the lower docket number."Moreover, a further hearing on the quo warranto case so involving, as it does, petitioner's now expired incumbency, would be unnecessary and a futile effort.The pivotal issue then is whether or not petitioner falls under the term "fugitive from justice" but, unlike its precursor case in G.R. No. 112889 which has been confined to the question of whether or not a conviction by final judgment of a person at large is essential before he can be considered a "fugitive from justice," 12 this time, however, the Court is asked to pass upon petitioner's assertion that he cannot be considered a "fugitive from justice" since he already has been in the Philippines months prior to the filing of the charges against him before the United States court in November 1985. He cites a certification from the Commission of Immigration of his arrival in the country on 25 June 1985.The Solicitor-General, on his part, maintains that the evidence presented by Marquez is still wanting. He states that the evidence thus far submitted would only show —"(1) that ten (10) charges of presenting fraudulent insurance claims, grand theft of personal property, and attempted grand theft of personal property were filed against petitioner before the Municipal Court of the County of Los Angeles, State of California, U.S.A., in November, 1985;"(2) that on November 12, 1985, a warrant of arrest was issued against petitioner; and"(3) that petitioner's wife, Imelda Gener Rodriguez, was arrested for the same charges on November 6, 1985." 13 which, collectively, would appear to be "too insubstantial" and inadequate to establish that Rodriguez has, in fact, fled to avoid prosecution. He opines that —". . . The COMELEC can not simply ignore the fact that the then Bureau of Immigration had issued a certification that on June 25, 1985, petitioner returned to the Philippines from the United States. This certification is already on record, having been submitted by petitioner ex abundante cautela following COMELEC's refusal to consider the same because of petitioner's walkout from the hearing on April 26, 1995. According to the election results, petitioner won over private respondent by a majority of 140,000 votes more or less. This manifestation of the People's will can not just be ignored without conducting a thorough hearing to determine whether the person they had overwhelmingly voted for is really disqualified from presenting himself to them for election." 14 I thus perceive the Solicitor General as now also saying that an intention to evade punishment or prosecution is an element of the term "fugitive from justice."Verily, there is a dearth of authorities on the proper and legal connotation of the phrase "fugitive from justice." Neither the law (Republic Act No. 7160, also known as the Local Government Code) 15 here in question nor the deliberations in Congress give much clue to the legislative intent. The phrase has been used in various contexts although it is in extradition cases where it appears to have acquired a prevalent usage. One leading situation was that of Roberts vs. Reilly, 16 decided by the United States Supreme Court, which involved the application of Article 4, Section 2, of the United States Constitution 17 and Section 5278 18 of the Revised Statutes of the United States implementing the Constitutional provision. William Roberts was indicted for grand larceny in the first degree in the State of New York. He was subsequently held in the State of Georgia by Philip Reilly, who

claimed to be an agent of the State of New York and acting by virtue of an executive warrant issued by the Governor of Georgia on a requisition from the Governor of New York, reciting that Roberts had been indicted in the State of New York and was a fugitive from justice of the latter State. In considering the specific question on whether or not the person demanded was a fugitive from justice, the tribunal held:"To be (regarded) a fugitive from justice, . . . , it is not necessary that the party charged should have left the State in which the crime is alleged to have been committed, after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun, but simply that, having within a State committed that which by its laws constitutes a crime, when he is sought to be subjected to its criminal process to answer for his offense, he has left its jurisdiction and is found within the territory of another."The ruling was repeated in Appleyard v. Massachusetts, 19 itself to be later reiterated in a number of other cases, 20 where Arthur Appleyard was indicted for the crime of grand larceny, first degree, alleged to have been committed in the county of Erie, New York. Although a warrant for his arrest was issued, Appleyard was not apprehended because he had moved out from that State. He was eventually arrested by virtue of a warrant issued by the Governor of Massachusetts. Appleyard then applied for a writ of habeas corpus to the supreme judicial council of Massachusetts which, after hearing, denied the application. He, again, applied to the Circuit Court of the United States for a writ of habeas corpus which effort likewise proved futile. Appleyard interposed an appeal to the U.S. Supreme Court. He restated his previous contention before the lower courts that he could not be deemed to be a fugitive from justice because he was unaware when leaving New York that he had at any time violated its criminal laws. That Court held:". . . This contention cannot be sustained; indeed, it could not be sustained without materially impairing the efficacy of the constitutional and statutory provisions relating to fugitives from justice. An alleged fugitive may believe that he has not committed any crime against the laws of the state in which he is indicted, and yet, according to the laws of such state, as administered by its judicial tribunals, he may have done so, and his belief or want of belief may be without foundation in law. It is the province of the courts of New York to declare what its laws are, and to determine whether particular acts on the part of an alleged offender constitute a crime under such laws. The constitutional provision that a person charged with crime against the laws of a state, and who flees from its justice, must be delivered up on proper demand, is sufficiently comprehensive to embrace any offense, whatever its nature, which the state, consistently with the Constitution and laws of the United States, may have made a crime against its laws. Kentucky v. Dennison, 24 How. 66, 69, 16 L. ed. 717; Ex parte Reggel, 114 U.S. 642, 650, 29 L. ed. 250, 252, 5 Sup. Ct. Rep. 1148. So that the simple inquiry must be whether the person whose surrender is demanded is in fact a fugitive from justice, not whether he consciously fled from justice in order to avoid prosecution for the crime with which he is charged by the demanding state. A person charged by indictment or by affidavit before a magistrate with the commission within a state of a crime covered by its laws, and who, after the date of the commission of such crime, leaves the state, — no matter for what purpose or with what motive, nor under what belief, — becomes, from the time of such leaving, and within the meaning of the Constitution and the laws of the United States, a fugitive from justice, . . ."Most U.S. State courts would appear to be similarly minded. 21 21aThe rulings heretofore cited cannot be here controlling, of course, and divergent views can still be expressed on the precise import of the phrase "fugitive from justice." It is evident enough though, in my view, that Congress, not having provided otherwise, must have intended the ordinary connotation of the term to prevail. So taken, it might be understood as referring to one who, having committed or being accused of having committed a crime in one jurisdiction, cannot be found therein 22 or is absent for any reason from that jurisdiction 23 that thereby forestalls criminal justice from taking its due course. The issue is largely a factual matter and in that determination, the motive or reason for his plight need not be inquired into. Animus fugere may be significant but it is not essential and what matters is not why he leaves but the fact that he leaves, for it should not be unreasonable to assume

that he was not unaware of his own prior deeds or misdeeds. As so conceptualized, the import of the term is more congruent than variant with what has heretofore been essayed to be, in fact, its common usage. Indeed, unlike the U.S. courts which are yet detained by the conditions expressed in both their fundamental and statutory laws, the pertinent provision of our own Local Government Code contains no further circumscription other than by its bare and simple mandate that a "fugitive from justice in criminal or non-political cases here or abroad" shall be "disqualified from running for any elective local position." 24 The law has provided no further provisos and no saving clauses. When there is no obscurity or ambiguity in an enabling law, it must, we have said in the related case of Marquez vs. Comelec, 25 be merely made to apply as it is so written. This Court is not at liberty either to question the wisdom of the law, let alone to detract from it, or to itself legislate material parameters when there are none that statutorily exist.I now come to the final question of whether or not substantial evidence has been adduced to support the factual findings of the COMELEC and, corollarily, whether or not petitioner has been duly accorded full opportunity to present before the COMELEC his own evidence to disprove the assertions of private respondent.It may be recalled that, following the denial of the motion of Rodriguez to postpone the scheduled 26th April 1995 hearing, the COMELEC continued, because of the proximity of the May 1995 elections, with its reception of the evidence (despite the walk-out thereupon staged by Rodriguez and his counsel). Duly received in evidence included an authenticated copy of the warrant of arrest, dated 12 November 1985, on respondent (Exh. A-2) issued by the Municipal Court of the County of Los Angeles, State of California, U.S.A., in connection with a criminal complaint filed against him in Criminal Case No. A774567, entitled "People of the State vs. Imelda O. Rodriguez and Eduardo T. Rodriguez for the crimes of presenting Fraudulent Insurance Claims, Grand Theft of Personal Property and Attempted Grand Theft of Personal Property," and an authenticated copy of the felony complaint (Exh. A-10 to A-15 inclusive), showing that the respondent was charged criminally on ten (10) counts. Concluding on the documentary evidence adduced before it, the COMELEC said:"The authenticated documents submitted by petitioner to show the pendency of a criminal complaint against the respondent in the Municipal Court of Los Angeles, California, U.S.A., and the fact that there is an outstanding warrant against him amply proves petitioner's contention that the respondent is a fugitive from justice." 26 The petitioner and his counsel walked out from the proceedings. Certainly, the thesis that petitioner was denied due process would be totally unacceptable; he himself brushed it aside. But while there might be no sympathy for his action that ordinarily should have prevented him from any further opportunity, the Court, nevertheless, aptly recognized that the controversy was solely not between the private parties herein, but one imbued with public interest, involving no less than the highest office in the province of Quezon and so, inevitably, a concern also of its people. Accordingly, the Court, besides having set the case for the reception of oral argument on 13 July 1995, likewise passed, on 24 October 1995, the following resolution; thus —"Deliberating on the special civil action for certiorari with prayer for preliminary injunction and restraining order, along with the comment thereon filed by the Solicitor General, as well as the other subsequent pleadings submitted by the parties in support of their respective submissions, and considering, further, the oral arguments of the parties during the 13th July 1995 hearing of this case, the Court RESOLVED to DIRECT the Chairman of the Commission on Elections ('COMELEC') to designate a Commissioner or a ranking official of the COMELEC to RECEIVE AND EVALUATE such legally admissible evidence as herein petitioner Eduardo Rodriguez may be minded to present by way of refuting the evidence heretofore submitted by private respondent Bienvenido Marquez, Sr., or that which can tend to establish petitioner's contention that he does not fall within the legal concept of a 'fugitive from justice.' Private respondent Marquez may likewise, if he so desires, introduce additional and admissible evidence in support of his own position. The provisions of Sections 3 to 10, Rule 33, of the Rules of Court may be applied in the reception of the evidence. The Chairman of

the COMELEC shall have the proceedings completed and the corresponding report submitted to this Court within thirty (30) days from notice hereof." 27 While it may generally be said that the possible outcome or truth of an indictment need not necessarily be an issue in ascertaining whether or not one is a fugitive from justice, when, however, the accusation is lodged with and an arrest is ordered by a foreign court or agency we might also assure ourselves as a matter of principle that, in the process of sanctioning in effect an act of a foreign government, we do not thereby abandon our own basic sense of equity and fair play. There cannot thus be any serious doubt that, when assailed or in doubt, the courts are free to look into, and receive evidence on, the legitimacy and regularity of the proceedings in that foreign jurisdiction.In the report submitted by the Commission on Elections, 28 entitled "Evidence of the Parties and Commission's Evaluation," received by the Court on 26 December 1995, the matters adduced by petitioner focused on what had already been asseverated in his petition, i.e., that he was already in the Philippines prior to the filing of the charges against him before the United States court in November of 1985 and that his return to the country was not intended to avoid prosecution. Neither party brought up any question on the legitimacy and regularity of the proceedings before the foreign court that led to the issuance of the warrants of arrest. I quote the pertinent portions of the report:"EVIDENCE"Petitioner Rodriguez presented the following witnesses:"1. Atty. Cipriano Farrales

Legal Officer of the Bureau of Immigration andDeportation

"2. Menardo Manglo"3. Former Supreme Court Justice Abraham Sarmiento"4. Ex-Senator Aquilino Pimentel, Jr."5. Ex-Senator Agapito Aquino"6. Atty. Geronimo Reyes, Jr."7. Atty. Roberto Avio"8. Mr. Heberto Buenafe"9. Former Senate President Jovito Salonga"10. Former Secretary of the Department of Labor and Employment Augusto Sanchez"11. Mr. Euclides Abcede and"12. Eduardo Rodriguez."The testimonies of Former Supreme Court Justice Abraham Sarmiento, former Senator Aquilino Pimentel, Jr., former Senator Agapito Aquino, Former Labor Secretary Augusto Sanchez and former Senator Jovito Salonga collectively emphasized that petitioner Eduardo Rodriguez was one of the active participants in the political movement against the late President Ferdinand E. Marcos. They went to Hongkong on August 9, 1985 as a group, together with petitioner Eduardo Rodriguez, in order to meet a political exile, Raul Daza, who had then a pending warrant of arrest issued by a Regional Trial Court of Quezon City. The purpose of the trip was to provide Mr. Raul Daza, another prominent opposition figure during the Marcos regime, some form of protective company during his return to the country on August 12, 1985. To the political opposition then, it was a big event that enjoyed media bash particularly in the August 12, 1985 issue of the Bulletin Today and in the August 19, 1985 issue of the Mr. and Ms. Magazine."Mr. Geronimo Reyes testified that he knows petitioner Rodriguez as a co-exile from the Marcos regime in Los Angeles, USA. Reyes was the organizer and president of Wilshire Walking Corp. composed of Filipino residents in Los Angeles. Petitioner Rodriguez became a member thereof. Rodriguez returned to the Philippines about July 1985 and returned to Los Angeles in August of the same year. That was the last time they saw each other in the US. Either on November 11 or 12, 1985, a certain Johnny Reveche, brother-in-law of petitioner Rodriguez, called him to the former's home at Beard Ave., Northridge, California to discuss the matter of the arrest and detention of Mrs. Imelda Rodriguez, wife of petitioner Rodriguez, who had just been bailed out. His assistance was requested because he had been

practicing law in California. While Mr. Reyes, Imelda Rodriguez and Mr. Reveche were discussing the case, Mr. Reveche called Mr. Reyes to the phone where the latter found out that Rodriguez was on the other end calling him from the Philippines. The caller requested Mr. Reyes to render all the necessary assistance to Mrs. Rodriguez because petitioner was unable to be with her as he was then in the Philippines and deep in the political campaign."Atty. Roberto Avio, resident of Macalelon, Quezon and former chairman of the United Nationalists Democratic Organization (UNIDO), Macalelon Chapter, testified that sometime in May 1985, former Mayor Eduardo T. Rodriguez returned from the United States and sent his personal driver to witness' residence to inform the latter that Rodriguez would be meeting him in the first week of June 1985 at Macalelon, Quezon. In the meeting held as scheduled, Rodriguez intimated that he (Rodriguez) was tasked by Ex-Senator Salonga to reactivate and reorganize the Liberal Party in the Bondoc Peninsula area. However, Atty. Avio declined Rodriguez's invitation to join the reorganization as he was then already committed to the UNIDO as the local chairman. Rodriguez requested another meeting after consulting with other former Liberal Party stalwarts. Said meeting transpired on the last week of July 1985 where Rodriguez, made aware of the improbability of reactivating the Liberal Party due to the affiliation of most of the party's former members with the UNIDO, expressed willingness to join the UNIDO. Rodriguez took his oath of allegiance on October 1985. Thereafter, he actively participated in the political campaigns of the UNIDO candidates in the presidential snap elections and congressional elections resulting in his appointment as OIC-Board Member of the Sangguniang Panlalawigan ng Quezon in 1986 and his election as Provincial Governor of Quezon in 1988."Heberto Buenafe's testimony corroborated these allegations, specifically stating that sometime in July and August of 1985, Buenafe had occasion to meet Rodriguez and that in matters of party dispute regarding the leadership of the UNIDO in Lucena City, the latter was often consulted as he (Rodriguez) was then designated as party representative of the Liberal Party by Senator Salonga immediately after his arrival in the Philippines in May 1985. Likewise, Mr. Euclides Abcede's testimony attested to the fact that in line with his activities as an active opposition campaigner, Abcede met Rodriguez in Macalelon, Quezon sometime in June 1985."Mr. Menardo Manglo is the arrival and departure verifier of the Bureau of Immigration. He certified the authenticity of the Bureau of Immigration Arrival and Departure Reports of June 1985, August 1985, August 1986, September 1986, July 1987, June 1988, July 1989 and August 1990 (Exhibits 5 to 5-G, inclusive) wherein the name Eduardo T. Rodriguez appears. On cross-examination, witness testified that said exhibits were computer print-outs supplied to the Bureau of Immigration by the PAL Computer Center."Atty. Cipriano Farrales, legal officer of the Bureau of Immigration, testified that the certification issued by the Bureau relative to the departure and arrival of Rodriguez in the Philippines issued by Commissioner Lopez was genuine and authentic (Exhibits 1 and 2)."Herein petitioner Rodriguez' testimony denied the allegation that he falls within the Supreme Court's definition of a 'fugitive from justice' which includes 'those who, after being charged, flee to avoid prosecution.' Specifically, Rodriguez averred:"b) I arrived in the Philippines from the United States of America on June 25, 1985, 5 months prior the filing of the alleged charges against me on November 12, 1985. Obviously, I did not flee from the United States of America to avoid prosecution. At the time that I left the United States, there were no charges against me. No warrant of arrest has been issued against my person. Under the facts, it could not be said that I fled from the United States to avoid prosecution. . . ."On the query as to whether or not he returned to the United States between June 25, 1985 and November 12, 1985, petitioner Rodriguez responded that he went back twice, viz, on August 14, 1985 and October 7, 1985 (see also passport, Exhibit 14). He testified that he left Los Angeles on October 26, 1985 and, as per certification issued by the Bureau of Immigration (Exhibit 2), arrived in the Philippines on the same date. From that time, Rodriguez never returned to Los Angeles. After the conclusion of the oral testimonies, the following documentary evidence were offered by petitioner Rodriguez and were admitted.

"1. Civil Service Commission Form No. 1, Job Description of Cipriano Farrales (Exhibit 1)"2. Certification from the Bureau of Immigration (Exhibit 2)"3. Affidavit of Abraham Sarmiento (Exhibit 3 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)"4. Affidavit of Aquilino Pimentel, Jr. (Exhibit 4 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)"5. Arrival and Departure Report of the Bureau of Immigration (Exhibit 5 to 5-D, inclusive)"6. Affidavit of Agapito Aquino (Exhibit 6 with Annexes A and B, Bulletin Today and Mr. and Ms. Magazine news reports)"7. Affidavit of Geronimo Reyes, Jr. (Exhibit 7)"8. Affidavit of Roberto Avio (Exhibit 8)"9. Affidavit of Heberto Buenafe (Exhibit 9)"10. Affidavit of Jovito Salonga (Exhibit 10)"11. Affidavit of Augusto Sanchez (Exhibit 11)"12. Affidavit of Euclides Abcede (Exhibit 12)"13. Affidavit of Eduardo T. Rodriguez (Exhibit 13)"14. Xerox copy of Rodriguez's passport (Exhibit 14 with submarkings, 14-A to 14-D, inclusive)"Respondent Marquez submitted the following documentary evidence:"1. Affidavit of Bienvenido Marquez (Exhibit E)"2. Affidavit of Mr. Casiano Pasumbal (Exhibit F)"3. Certificate of Death of Gloria Magayanes Gener, mother-in-law of petitioner (Exhibit G) with the alleged signature of Rodriguez as informant (Exhibit G-1)"4. Certificate of Death of Imelda Gener Rodriguez, spouse of petitioner (Exhibit H) with the alleged signature of Rodriguez as informant (Exhibit H-1)"As regards other documentary evidence offered, the investigation report consisting of Exhibits I to I-17 and J to J-87 which was sought admission by respondent Marquez, was excluded by the presiding Commissioner because of irrelevancy to the purpose for which it was offered. The undersigned so ruled due to respondent's failure to identify the nexus between the documents sought to be admitted and the inference that in view of the same, petitioner would have known of the imminent filing of charges against him." 29 From the "Discussion" portion of its report, it would appear to me that the COMELEC, like the majority of my colleagues, proceeded under the impression that the Court in G.R. No. 112889 had considered intent to evade the law to be a material element in the definition of "fugitive from justice." The COMELEC understandably thereby felt compelled to conclude that petitioner, there being no clear evidence of any intention on his part to evade the law at the time he left the United States, was not a fugitive from justice. However, as heretofore so pointed out, the sole and basic issue in G.R. No. 112889 was whether or not a conviction by final judgment of the person at large was essential before he could be considered a fugitive from justice. That question clearly arose when the Oversight Committee which was convened by the President, conformably with Section 533 of Republic Act 7160, to formulate the appropriate rules and regulations necessary for the efficient and effective implementation of the provisions of the Local Government Code, came out with its Article 73 that provided:"Art. 73. Disqualifications. — The following persons shall be disqualified from running for any elective local position;"(a) . . ."(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive from justice refers to a person who has been convicted by final judgment." (Emphasis supplied.)The court in G.R. No. 112889 naturally opined that the above provision "to the extent that it confine(d) the term fugitive from justice to refer only to a person (the fugitive) . . . convicted by final judgment (was) an inordinate and undue circumscription of the law." The Court had to likewise concede to the Solicitor General when he then said that the term "includes not only those who flee after conviction to avoid punishment but likewise those who, after being

charged, flee to avoid prosecution" for, certainly, the statement was not incorrect. But what indeed, could be perplexing was how it could be possible for the Court's ruling in G.R. No. 112889 to be so misconstrued as to supposedly convey any idea of exclusivity or preclusivity that, to begin with, was not even considered at the time.There should be nothing erroneous, in my view, when COMELEC did ultimately come up with its own concluding observation that "the mere fact that there are pending charges in the United States and that petitioner Rodriguez is in the Philippines make petitioner a fugitive from justice."And so I hold, in resume, as follows: That —1. The filing with the COMELEC of the disqualification case in SPA No. 95-089 was not an act of forum shopping on the part of herein private respondent Marquez.2. Section 40(e) of the Local Government Code of 1991 did not partake of an ex post facto law or a bill of attainder.3. Section 40(e) of the Local Government Code, not Section 72 of the Omnibus Election Code, should govern.4. The COMELEC did not abuse its discretion in denying herein petitioner's motion for a suspension of hearing in SPA Case No. 95-089 and in allowing herein private respondent to present his evidence ex-parte, considering its close proximity to the 1995 elections.5. In consolidating EPC No. 92-28 (the quo warranto case) and SPA No. 95-089 (the disqualification case), the COMELEC acted in conformity with its Rules of Procedure.6. Given the factual settings and the circumstances, I must conclude that petitioner is a "fugitive from justice" within the intent and meaning of Section 40(e) of the Local Government Code of 1991.WHEREFORE, I vote for the DISMISSAL of the petition.Narvasa C .J ., Padilla, Regalado, Davide Jr., and Mendoza, JJ ., concur.

Footnotes 1. 243 SCRA 538, 542. 2. COMELEC Consolidated Resolution, Rollo, pp. 95-96. 3. Rollo, p. 164. 4. Rollo, p. 476.TORRES, JR., J., concurring: 1. Report of the Commission, p. 12. 2. Commissioner Maambong's Concurring Opinion that petitioner is not fugitive from justice, p. 9. 3. Towne vs. Eismer, 245 U.S. 418. 4. Art. II, Sec. 26 (State Policies) of the 1987 Constitution provides: "The state shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law." 5. Labo vs. Commission on Elections, G.R. No. 105384, July 3, 1992. 6. Learned Hand, A Plea for the Open Mind and Free Discussion, in True Spirit of Liberty, 274. 7. Avelino vs. Rosales, CA-G.R. No. 88-R, September 5, 1952, 48, O.G. 5308; The Law on Elections by Jaime Opinion and Ruben Agpalo, 1987 ed., p. 57.). 8. Mentang vs. Commission on Elections, G.R. No. 110347, February 4, 1994.VITUG, J., dissenting: 1. The first case was G.R. No. 105310, entitled, "Bienvenido Marquez, Jr. vs. Eduardo Rodriguez," the second case was G.R. No. 112889 entitled, "Bienvenido Marquez, Jr. v. Eduardo Rodriguez," the third case was G.R. No. 119807 entitled, "Eduardo Rodriguez v. COMELEC, et al.," and now, the case at bench, G.R. No. 120099. 2. In its decision, dated 18 April 1995, the Court sustained Marquez in contending that conviction was not a requirement of the disqualifying law and thereby remanded the case for further proceedings. 3. Rodriguez alleged that when SPA No. 95-089 was called for hearing by the Second Division of the respondent Commission on 26 April 1995 at two o'clock in the afternoon,

there was no quorum. Only Commissioner Teresita D.L. Flores was present. He alleged that since Presiding Commissioner of the Second Division, Remedios Salazar-Fernando and Manolo Gorospe were not present, how was it possible for a single Commissioner to constitute a quorum for the transaction of the business of the Second Division. 4. Rollo, p. 97. 5. People vs. Court of Appeals, 101 SCRA 450. 6. Victronics Computer, Inc. vs. Regional Trial Court, Branch 63, Makati, 217 SCRA 517. 7. R. Transport Corporation vs. Laguesma, 227 SCRA 826. 8. To be ex post facto, the law must: (1) refer to criminal matters; (2) be retroactive in its application; and (3) to the prejudice of the accused. (Isagani A. Cruz, Constitutional Law, 1989 ed., p. 244) 9. A bill of attainder is a legislative fiat that inflicts punishment without trial (People vs. Carlos, 78 Phil. 535), its essence being the substitution of legislative fiat for a judicial determination of guilt (Cruz, supra, pp. 246-247).10. See Marcelino vs. Cruz, 121 SCRA 51.11. The two other members were Commissioners Remedios Fernando and Manolo Gorospe.12. The Court, in response, said in its decision of 18 April 1995 that conviction was not indispensable, albeit some reservations expressed by the ponente.13. Rollo, p. 413.14. Rollo, p. 466.15. Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:xxx xxx xxx

(e) Fugitive from justice in criminal or non-political cases here or abroad(.)16. 116 U.S. 80, 29 Led. 544.17. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another state, shall on demand of the executive authority of the state from where he fled, be delivered up, to be removed to the state having jurisdiction of the crime (Art. 4, Sec. 2).18. Whenever the executive authority of any state or territory demands any person as a fugitive from justice, of the executive authority of any state or territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any state or territory, charging the person demanded with having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged has fled, it shall be the duty of the executive authority of the state or territory to which such person has fled to cause him to be arrested and secured, and to cause notice of the arrest to be given to the executive authority making such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the fugitive to be delivered to such agent when he shall appear. (See U.S. Comp. St. 1901, P. 3597).19. 203 U.S. 222, 51 Led. 161.20. Illinois ex rel. McNichols v. Pease, 207 U.S. 100, 52, L. ed. 121; Biddinger v. Police Commissioners, 245 U.S. 128, 62, L ed. 193; Hogan v. O'neill, 255 U.S. 52, 65 L ed. 497.21. The U.S. Supreme Court in Appleyard went cursorily through a number of such cases (hereunder re-arranged for convenience) thusly:

"In Kingsbury's Case, 106 Mass. 223, 227, 228, the contention of the fugitive from justice was that, as she went into the demanding state and returned to her home in the other state before the alleged crime was known, she could not be deemed to have fled from justice. But the court said: 'The material facts are, that the prisoner is charged with a crime in the manner prescribed, and has gone beyond the jurisdiction of the state, so that there has been no reasonable opportunity to prosecute him after the facts were known. The fact in this case, that she returned to her permanent home, cannot be material . . . It is sufficient that the crime of larceny has been properly charged, and that the prisoner is a fugitive, and a requisition has been properly made.'

"In State ex rel. Burner v. Richter, 37 Minn, 436, 438, 35 N.W. 9, the contention was that to constitute a fugitive from justice a person must have left the state where the crime was committed for the purpose of escaping the legal consequences of his crime. Referring to Roberts v. Reilly, above cited, as authoritative and binding, and as in accordance with is own views, the supreme court of Minnesota well said: 'The sole purpose of this statute, and of the constitutional provision which it was designed to carry into effect, was to secure the return of persons who had committed crime within one state, and had left it before answering the demands of justice. The important thing is not their purpose in leaving, but the fact that they had left, and hence were beyond the reach of the process of the state where the crime was committed. Whether the motive for leaving was to escape prosecution or something else, their return to answer the charges against them is equally within the spirit and purpose of the statute; and the simple fact that they are not within the state to answer its criminal process, when required, renders them, in legal intendment, fugitives from justice, regardless of their purpose in leaving.'

"In re Voorhees, 32 N.J.L. 141, 150, the Court said: 'A person who commits a crime within a state, and withdraws himself from such jurisdiction without waiting to abide the consequences of such act, must be regarded as a fugitive from the justice of the state whose laws he has infringed. Any other construction would not only be inconsistent with good sense and with the obvious import of the word to be interpreted in the context in which it stands, but would likewise destroy, for most practical purposes, the efficacy of the entire constitutional provision.'

"In ex parte Swearingen, 13 S.C. 74, 80, the court held that the terms 'fugitive from justice' were intended to embrace not only a case where a party, after committing a crime, actually flees, in the literal sense of that term, from the state where such crime was committed, but also a case where a citizen of one state, who, within the territorial limits of another state, commits a crime, and then simply returns to his own home. The object of the Constitution was to enable a state whose laws had been violated, to secure the arrest of the person charged with such violation, even though such person might be beyond the reach of the ordinary process of such state.

"In re Mohr, 73 Ala. 503, 512, 49 Am. Rep. 63, the court, referring to the words in the Constitution, 'who shall flee from justice and be found in another state,' said: 'There is a difference of opinion as to what must be the exact nature of this flight on the part of the criminal, but the better view, perhaps, is that any person is a fugitive within the purview of the Constitution, 'who goes into a state, commits a crime, and then returns home.'

"In Hibler v. State, 43 Tex. 197, 201, the court said: 'The words 'fugitive from justice' as used in this connection, must not be understood in a literal sense, but in reference to the subject-matter, considering the general object of the Constitution and laws of the United States in relation thereto. A person who commits a crime in one state, for which he is indicted, and departs therefrom, and is found in another state, may well be regarded as a fugitive from justice in the sense in which it is here used."22. See Black's Law Dictionary.23. See Webster's Third New International Dictionary.24. Sec. 40(e), R.A. 7160.25. G.R. No. 112889, 18 April 1995.26. Rollo, pp. 95-96.27. Rollo, pp. 536-537.28. Signed by Hon. Teresita Dy-Liaco Flores, writing for the Commission, concurred in by Hon. Bernardo P. Pardo, Chairman. Hon. Julio F. Desamito, Commissioner, Hon. Graduacion A. Reyes-Claravall, Commissioner, Hon. Manolo B. Gorospe, Commissioner, and separately concurred in by Hon. Regalado E. Maambong, Commissioner, and Hon. Remedios A. Salazar-Fernando, Commissioner.29. Evidence of the Parties and Commission's Evaluation, pp. 4-9.

C o p y r i g h t 1 9 9 4 - 1 9 9 9 C D T e c h n o l o g i e s A s i a, I n c.

6. Malinao v. Reyes

EN BANC

[G.R. No. 117618.  March 29, 1996]

VIRGINIA MALINAO, petitioner, vs. HON. LUISITO REYES, in his capacity as Governor of the Province of Marinduque, SANGGUNIANG PANLALAWIGAN OF MARINDUQUE and WILFREDO RED, in his capacity as Mayor of Sta. Cruz, Marinduque, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari and mandamus to annul the decision dated October 21, 1994 of the Sangguniang Panlalawigan of Marinduque, dismissing the administrative case filed by petitioner against respondent Mayor Wilfredo Red of Sta. Cruz, Marinduque.  The ground for the present petition is that the same body already found respondent Mayor guilty of abuse of authority in removing petitioner from her post as Human Resource Manager without due process in another decision which is now final and executory.

The facts are as follows:

Petitioner Virginia Malinao is Human Resource Manager III of Sta. Cruz, Marinduque.  Respondent Mayor filed a case against her in the Office of the Ombudsman for gross neglect of duty, inefficiency and incompetence.  While the case was pending, he appointed a replacement for petitioner.

On February 24, 1994 petitioner filed an administrative case, docketed as Administrative Case No. 93-03, against respondent Mayor in the Sangguniang Panlalawigan of Marinduque, charging him with abuse of authority and denial of due process.

On August 12, 1994, the case was taken up in executive session of the Sanggunian.  The transcript of stenographic notes of the session shows that the Sanggunian, by the vote of 5 to 3 of its members, found respondent Mayor guilty of the charge and imposed on him the penalty of one-month suspension,

The result of the voting was subsequently embodied in a “Decision” dated September 5, 1994, signed by only one member of the Sanggunian, Rodrigo V. Sotto, who did so as “Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.” Copies of the “Decision” were served on respondent Mayor Red as well as on respondent Governor Luisito Reyes on September 12, 1994.

On September 14, 1994, respondent Mayor filed a manifestation before the Sanggunian, questioning the “Decision” on the ground that it was signed by Sotto alone, “apparently acting in his capacity and designated as ‘Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.’” He contended that because of this the decision could only be considered as a recommendation of the Blue Ribbon Committee and he was not bound thereby.

On September 13, 1994, respondent Mayor sought the opinion of the Secretary of the Department of the Interior and Local Government regarding the validity of the “Decision.”

In his letter dated September 14, 1994, DILG Secretary Rafael M. Alunan III opined that the “decision’ alluded to does not appear to be in accordance with Section 66 of the Local Government Code of 1991 and settled jurisprudence” since

in the instant case, the purported decision of the Blue Ribbon Committee should have been submitted to, approved and/or adopted by the Sangguniang Panlalawigan as a collegial body inasmuch as the Sangguniang Panlalawigan has the administrative jurisdiction to take cognizance thereof in conformity with Section 61 and Section 66 of the Code.  It is not for the said committee to decide on the merits thereof, more so to impose the suspension, as its duty and function is purely recommendatory.  If it were at all the intention of the Sangguniang Panlalawigan to adopt entirely the recommendation of the Blue Ribbon Committee, it should have so stated and the members of the Sangguniang Panlalawigan, who may have affirmatively voted thereon or participated in its deliberations, should have affixed their respective signatures on whatever decision that could have been arrived at. . . .

On the other hand petitioner sent a letter on October 14, 1994 to respondent Governor Reyes, demanding that the “Decision” suspending respondent Mayor from office be implemented without further delay.

In his letter dated October 20, 1994, respondent Governor informed the Sanggunian that he agreed with the opinion of the DILG for which reason he could not implement the “Decision” in question.

On October 21, 1994, the Sanggunian, voting 7 to 2, acquitted respondent Mayor of the charges against him.  The vote was embodied in a Decision of the same date, which was signed by all members who had thus voted.

Hence this petition.

I. Petitioner’s basic contention is that inasmuch as the “Decision” of September 5, 1994 had become final and executory, for failure of respondent Mayor to appeal, it was beyond the power of the Sanggunian to render another decision on October 21, 1994 which in effect reversed the first decision.

These contentions are without merit. What petitioner claims to be the September 5, 1994 “Decision” of the Sangguniang Panlalawigan bore the signature of only one member (Rodrigo V. Sotto) who signed the “Decision” as “Presiding Chairman, Blue Ribbon Committee, Sangguniang Panlalawigan.” Petitioner claims that at its session on August 12, 1994, the Sanggunian by the vote of five members against three found respondent Mayor guilty of having removed petitioner as Human Resources Officer III without due process and that this fact is shown in the minutes of the session of the Sanggunian.  The minutes referred to read in pertinent part as follows:

KGD. SOTTO - No if he [respondent Mayor] is acquitted, then let’s acquit it.  Whatever is the decision everybody goes to the majority.

(There was nominal voting from the Sangguniang Panlalawigan member. For NOT GUILTY OR GUILTY)

KGD. ZOLETA - I vote not guilty.

KGD. MUHI - Guilty.

KGD. LIM - Not guilty.

KGD. RAZA - First I would like to say that I will decide on the merit of the case. The fact that the Civil Service ordered the reinstatement wherein Virginia Molinao is included, only means that the Supreme Court duly constituted has found the merit of the decision of the Civil Service.

I vote that the Mayor is guilty.

KGD. PINAROC - Guilty.

KGD. DE LUNA - Guilty, there is no due process and to protect the integrity of the Sangguniang Panlalawigan.

KGD. LAGRAN - Guilty.

KGD. ZOLETA - My reason for voting “not guilty” is that the mayor acted in good faith, he just followed the order of the reorganization recommended by the Placement Committee.

KGD. REJANO - The order of the reorganization was given by the Civil Service Commission and based on the contention made by Kgd. Palamos that since there should be reorganization to be conducted by the Civil Service Commission the mayor was supposed to go on with that reorganization and based on the reorganization there should be a screening committee to check whether the employees are really working efficiently. Based on the case that has been given to Mrs. Malinao, based on the witnesses, Ligeralde, Monterozo and Pastrana and then decided that Mayor Red has done in good faith.

So I vote Not Guilty.

Five (5) voted GUILTY:

Kgd. Muhi

Kgd. Raza

Kgd. Pinaroc

Kgd. Lagran

Kgd. De Luna

Three (3) voted NOT GUILTY:

Kgd. Rejano

Kgd. Zoleta

Kgd. Lim

KGD. SOTTO - Punishment...

Censure? Reprimand? Suspension?

KGD. LAGRAN - I suggest that only those who voted “guilty” should vote as to what punishment should be given.

KGD. LIM - All the members should be given the right to vote.

(THE VOTING PROCEEDED.)

Kgd. Muhi - Suspension

Kgd. Raza - Suspension

Kgd. Pinaroc - Suspension

Kgd. Lagran - Suspension

Kgd. de Luna - Suspension

KGD. ZOLETA - Since we voted “not guilty” therefore “no punishment.”

KGD. REJANO - “No punishment.”

KGD. LIM - “No punishment.”

KGD. SOTTO - How many months?

KGD. MUHI - One month.

KGD. RAZA - One month.

KGD. PINAROC - One month.

KGD. LAGRAN - One month.

KGD. DE LUNA - One month.

KGD SOTTO - Be it on record that on August 12, 1994 during the Executive Session of the Sangguniang Panlalawigan en banc the respondent is hereby found “guilty.”

Effective upon receipt of the Decision, copy furnished: the counsel for Respondent, the Counsel for Complainant, the Municipal Treasurer, Sta. Cruz, Marinduque, the Provincial Auditor, the Civil Service Commission, Boac, Marinduque, the DILG, Boac, Marinduque, the Provincial Governor.

Contrary to petitioner’s claim, what the minutes only show is that on August 12, 1994 the Sanggunian took a vote on the administrative case of respondent Mayor and not that it then rendered a decision as required by § 66(a) of the Local Government Code (R.A. No. 7160) which provides as follows:

§ 66. Form and Notice of Decision. - (a) The investigation of the case shall be terminated within ninety (90) days from the start thereof. Within thirty (30) days after the end of the investigation, the Office of the President or the sanggunian concerned shall render a decision in writing stating clearly and distinctly the facts and the reasons for such decision. Copies of said decision shall immediately be furnished the respondent and all interested parties.

In order to render a decision in administrative cases involving elective local officials, the decision of the Sanggunian must thus be “in writing stating clearly and distinctly the facts and the reasons for such decision.” What the Sanggunian, therefore, did on August 12, 1994 was not to render a decision.

Neither may the so-called “Decision” prepared by Sanggunian Member Rodrigo V. Sotto on September 5, 1994 be regarded as the decision of the Sanggunian for lack of the signatures of the requisite majority.  Like the procedure in the Supreme Court, the voting following the deliberation of the members of the Sanggunian did not necessarily constitute their decision unless this was embodied in an opinion prepared by one of them and concurred in by the others, in the same way that the voting following the deliberation on a case in the Supreme Court becomes its decision only after the opinion prepared by a Justice is concurred in by others composing the majority.  Until they have signed the opinion and the decision is promulgated, the Justices are free to change their votes.

Indeed, in his comment in this case, Member Sotto admits that the draft decision he prepared had only his signature “due to the reluctance of some Kagawads to affix their signatures.” Consequently the draft never became a decision.  It is noteworthy that the draft was signed by Member Sotto in his capacity as “Presiding Chairman of the Blue Ribbon Committee of the Sangguniang Panlalawigan” and that it did not provide spaces for the signatures of other members of the Sanggunian had it been intended that it be signed by them.  This fact led the DILG to conclude that the draft was simply the report and recommendation of the Blue Ribbon Committee to the Sanggunian.

Now, as already stated, the Sanggunian, at its session on October 21, 1994, took another vote and, 7 to 2, decided to dismiss the case against respondent Mayor.  This time its decision was made in writing, stating the facts and the law on which it was based, and it was signed by the members taking part in the decision.  This, and not the so-called decision of September 5, 1994, is the decision of the Sanggunian.

Petitioner complains that no notice of the session by the Sanggunian on October 21, 1994 was given to her.  None was really required to be given to her. The deliberation of the Sanggunian was an internal matter.

II. Petitioner brought this case by way of Petition for certiorari and mandamus.  A prime specification of the writ of certiorari, however, is that there is no appeal nor any plain, speedy and adequate remedy in the ordinary course of law available to petitioner.  But, in the case at bar, petitioner could have appealed the decision of the Sanggunian to the Office of the President as provided in § 67(b) of the Local Government Code.

III. At all events, this case is now moot and academic as a result of the expiration of respondent’s term during which the act complained of was allegedly committed, and further proceedings against respondent Mayor are barred by his reelection on May 8, 1995.

Pursuant to § 66(b) of the Code, the penalty of suspension cannot exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense.  On the other hand, any administrative disciplinary proceeding against respondent is abated if in

the meantime he is reelected, because his reelection results in a condonation of whatever misconduct he might have committed during his previous term.

WHEREFORE, the petition is DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima, Jr., and Panganiban, JJ., concur.

Torres, Jr., on leave.

Petition, Annex B, Rollo, pp. 21-29. Vice Governor Rosa E. Lecaroz, as presiding officer of the Sanggunian, inhibited herself on the ground that her husband was petitioner’s counsel.  Accordingly, Rodrigo V. Sotto, as the most senior member of the Sanggunian. presided.  Five members of the Sanggunian, namely, Romeo M. Muhi, Eleuterio R. Raza, Jr., Florentino B. Pinaroc, Baron L. Lagran, and Bonifacio R. de Luna, voted to find the Mayor “Guilty,” while three members, namely Teodorito J. Rejano, Cesaria G. Zoleta, and Augusto M. Lim, Sr., voted “Not Guilty.”

Petition, Annex A, Rollo, pp. 17-20.

Petition, Annex G-1, Rollo, pp. 39-41.

Petition, Annex G, Rollo, pp. 35-38.

Petition, Annex C, Rollo, pp. 30-31.

Petition. Annex G-2, Rollo,. p.42.

Petition, Annex I, Rollo, pp. 48-55.

Comment of Governor Reyes, Annex 1, Rollo, pp. 156-159, Comment of Sanggunian member Sotto, Annex 2, Rollo, pp. 227-230. Sanggunian members Teodorito J. Rejano, Cesaria G. Zoleta, Norma J. Ricohermoso, Juan Maximo Lim, Florentino B. Pinaroc, Eleuterio R. Raza, Jr., and Baron L. Lagran voted to dismiss the case, while members Romeo M. Muhi and Bonifacio R. de Luna dissented. Member Rodrigo V. Sotto, who signed the decision of September 5, 1994, did not vote. Sanggunian member Pinaroc, Raza, Jr. and Lagran changed their earlier vote of “Guilty” to “Not Guilty.”

See, e.g., Misolas v. Panga, 181 SCRA 648,663(1990) (Sarmiento, J.’s dissent).

Rollo, pp. 220-222.

Aguinaldo v. COMELEC, res., G.R. Nos. 105128-30, June 9, 1992; Aguinaldo v. Santos, 212 SCRA 768(1992). Cf. Reyes v. COMELEC, G.R. No. 120905 and Garcia v. COMELEC, G.R. No. 120940, March 7, 1996.

7. Salalima v. Guingona

EN BANC

[G.R. Nos. 117589-92.  May 22, 1996]

ROMEO R. SALALIMA, DANILO S. AZAÑA, JUAN VICTORIA, LORENZO REYEG, ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and NEMESIO BACLAO, petitioners, vs. HON. TEOFISTO T. GUINGONA, JR., in his capacity as the Executive Secretary, VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V. SALDIVAR, in their capacity as Members of the Ad Hoc Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM, JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY, respectively, respondents.

D E C I S I O N

DAVIDE, JR., J.:

Petitioners seek to annul and set aside Administrative Order No. 153, signed on 7 October 1994 by the President and by public respondent Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact and recommendations of the Ad Hoc Committee and holding the petitioners administratively liable for the following acts or omissions: (a) wanton disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b) grave abuse of authority under Section 60(e) of the Local Government Code of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471; and (d) abuse of authority and negligence in O.P. Case No. 5450. The said order meted out on each of the petitioners penalties of suspension of different durations, to be served successively but not to go beyond their respective unexpired terms in accordance with Section 66(b) of R.A. No. 7160.

Prefacing the petition with a claim that the challenged administrative order is “an oppressive and capricious exercise of executive power,” the petitioners submit that:

I.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.

II.

THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T. GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF TIWI THE AMOUNT OF P40,724,47 1.74 PAID BY

NAPOCOR TO THE PROVINCE OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY 29, 1992.

III.

THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE PROVISIONS OF THE LOCAL GOVERNMENT CODE:

A.  WHAT WERE NOT COMPLAINED OF;

B.  UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND

C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE ALREADY COVERED BY PRESCRIPTION.

IV.

THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT SITTING EN BANC.

We resolved to give due course to this petition and to decide it on the basis of the pleadings thus far submitted, after due consideration of the satisfactory explanation of the petitioners that his case has not been mooted by the expiration of their term of office on 30 June 1995 and the comment of the Office of the Solicitor General that this case be resolved on the merits. In seeking a resolution of this case on the merits, Office of the Solicitor General invites the attention of the Court to the following:

(a)    While the periods of suspension have been served by petitioners and that some of them have even been elected to other government positions, there is the primary issue of whether the suspensions were valid and grounded on sufficient cause.

(b)    If the suspensions are found to be valid, petitioners are not entitled to reimbursement of salaries during their suspension periods.

(c)    If upheld, Administrative Order No. 15 would be used as a strong ground in filing cases against petitioners for violations of the Anti-Graft and Corrupt Practices Act.

(d)    Corollary [sic] to these issues is the issue of the interpretation and application of the [R]eal Property Tax Code and the Local Government Code under the circumstances of this case.

(e)    The resolution of these issues would finally put to rest whether respondents acted with grave abuse of discretion amounting to lack of jurisdiction for having suspended petitioners on the basis of their findings in the four (4) administrative cases filed against the petitioners.

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the petitioners, who were elective officials of the Province of Albay, were filed with the Office of the President and later docketed as O.P. Cases Nos. 5450, 5469, 5470, and 5471. Acting thereon, the President

issued Administrative Order No. 94 creating an Ad Hoc Committee to investigate the charges and to thereafter submit its findings and recommendations.

The Ad Hoc Committee was composed of Undersecretary Victor R. Sumulong of the Department of the Interior and Local Government (DILG), Assistant Executive Secretary Renato C. Corona, and Presidential Assistant Angel V. Saldivar.

On 26 August 1994, after conducting hearings, the Ad Hoc Committee submitted its report to the Office of the President.

On 7 October 1994, the President promulgated Administrative Order No. 153 quoting with approval the following pertinent findings and recommendations of the Committee; thus:

The finding of the Ad-Hoc Committee in O.P. Case Nos. 5470, 5469, 5471 and 5450 are as follows:

I. O.P. Case No. 5470

This refers to the administrative complaint filed by Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Vice- Governor Danilo Azaña, and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana, Ramon Fernandez, Jr., Masikap-Fontanilla, and Wilbor Rontas.

Docketed as O.P. Case No. 5470, the complaint charges the respondents for malversation and consistent & habitual violation of pars. (c) and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the “Local Government Code.”

The antecedent facts are as follows:

On 4 June 1990, the Supreme Court in the case entitled “National Power Corporation (NPC) v. The Province of Albay, et al.,” G.R. No. 87479 rendered judgment (Exhs. D to D-14) declaring, inter alia, NPC liable for unpaid real estate taxes on its properties in Albay covering the period 11 June 1984 to 10 March 1987.

Citing the fact that its tax exemption privileges had been revoked, the Supreme Court held that NPC’s real properties, consisting mainly of geothermal plants in Tiwi and substation facilities in Daraga, are subject to real estate tax in accordance with Presidential Decree (PD) No. 464, as amended, otherwise known as the “Real Property Tax Decree.”

Earlier, said properties were sold at an auction sale conducted by the Province of Albay (the “Province”) to satisfy NPC’s tax liabilities.  Being the sole bidder at the auction, the Province acquired ownership over said properties.

On 29 July 1992, the NPC through then President Pablo Malixi and the Province represented by respondent Salalima, entered into a Memorandum of Agreement (“MOA”) [Exhs. 7 to 7-A] whereby the former agreed to settle its tax liabilities, then estimated at P214,845,104.76.

Under the MOA, the parties agreed that:

-    the actual amount collectible from NPC will have to be recomputed/revalidated;

-    NPC shall make an initial payment of P17,763,000.00 upon signing of the agreement;

-    the balance of the recomputed/revalidated amount (less the aforesaid initial payment), shall be paid in twenty-four (24) equal monthly installments to commence in September 1992; and

-    ownership over the auctioned properties shall revert to NPC upon satisfaction of the tax liabilities.

On 3 August 1992, Mayor Corral formally requested the Province through respondent Salalima, to remit the rightful tax shares of Tiwi and certain barangays of Tiwi where NPC’s properties are located (“concerned barangays”) relative to the payments made by NPC (Exh. B).

On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed Resolution No. 12-92 (Exhs. G to G-1) requesting the Albay Sangguniang Panlalawigan to hold a joint session with the former together with Mayor Corral and the Sangguniang Pambarangays of the concerned barangays, for the purpose of discussing the distribution or application of the NPC payments.

On 10 August 1992, respondent Salalima replied that the request cannot be granted as the initial payment amounting to P17,763,000.00 was only an “earnest money” and that the total amount to be collected from NPC was still being validated (Exh. I).

Not satisfied with respondent Salalima’s response, Mayor Corral complained to NPC about the Province’s failure to remit Tiwi’s and the concerned barangays shares in the payments made by NPC (Exh. 50-C).

On 14 August 1992, President Malixi informed respondent Salalima that the representatives of both NPC and the Province have reconciled their accounts and determined that the amount due from NPC was down to P207,375,774.52 (Exh. 20).

Due to the brewing misunderstanding between Tiwi and the concerned barangays on the one hand, and the Province on the other, and so as not to be caught in the middle of the controversy, NPC requested a clarification from the Office of the President as to the scope and extent of the shares of local government units in real estate tax collections (Exh. 6 to 6-A).

Meantime, the Albay Sangguniang Panlalawigan passed Resolution No. 178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5 November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,43 1.58 or a total of P27,442,364.15 from the general fund to satisfy “prior years” obligations and to implement certain projects of the Province.  These resolutions were approved by respondent Salalima on 22 October 1992 and 6 November 1992, respectively.

On 3 December 1992, the Office of the President through Chief Presidential Legal Counsel Antonio Carpio opined that the MOA entered into by NPC and the Province merely recognized and established NPC’s tax liability.  He further clarified that the sharing scheme and those entitled to the payments to be made by NPC under the MOA should be that provided under the law, and since Tiwi is entitled to share in said tax liabilities, NPC may remit such share directly to Tiwi.  The pertinent portion of Chief Presidential Legal Counsel Carpio’s letter dated 3 December 1992 (Exhs. H to H-1) addressed to President Malixi reads:

        xxx                                        xxx                                        xxx

The Memorandum of Agreement entered into by the Province of Albay and NPC merely enunciates the tax liability of NPC. The Memorandum of Agreement does not provide for the manner of payment of NPC’s liability. Thus, the manner of payment as provided for by law shall govern. In any event, the Memorandum of Agreement cannot amend the law allowing the payment of said taxes to the Municipality of Tiwi.

The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise, only established the liability of NPC for real property taxes but does not specifically provide that said back taxes be paid exclusively to Albay province.

Therefore, it is our opinion that the NPC may pay directly to the municipality of Tiwi the real property taxes accruing to the same.

Please be guided accordingly.

Very truly yours,

(Sgd.) ANTONIO T. CARPIOChief Presidential Legal Counsel

Because of this opinion, President Malixi, through a letter dated 9 December 1992 (Exhs. Ito I-1), informed Mayor Corral and respondent Salalima that starting with the January 1993 installment, NPC will directly pay Tiwi its share in the payments under the MOA. He also invited the parties to a clarificatory meeting on 17 December 1992 at his Quezon City office to discuss the matter in detail.

Only Mayor Corral attended the 17 December 1992 meeting with President Malixi as respondent Salalima was indisposed.  President Malixi then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments already made by NPC under the MOA and the computation and the distribution of shares.

As of 9 December 1992, payments made by NPC to the Province reached P40,724,471.74, broken down as follows:

Payment Dates              Amount

July 29, 1992                            P17,763,000.00Sept. 3, 1992                                4,660,255.80Oct. 5, 1992                                  6,820,480.12Nov. 5, 1992                                  5,740,367.96Dec. 9, 1992                                 5,740,367.66

Total                                            P40,724,471.74

On 19 December 1992, in an apparent reaction to NPC’s decision to directly remit to Tiwi its share in the payments made and still to be made pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance No. 09-92 (Exhs. K to K-1), which, among others:

-    authorized the Provincial Treasurer upon the direction of the Provincial Governor to sell the real properties (acquired by the Province at the auction sale) at a public auction, and to cause the immediate transfer thereof to the winning bidder; and

-    declared as forfeited in favor of the Province, all the payments already made by NPC under the MOA.

Realizing from the actuations of the respondents that Tiwi’s share in the P40,724,47 1.74 payments already made by NPC will not be forthcoming, Mayor Corral filed the present complaint with the Office of the President on 25 January 1993.

In determining whether the respondents are guilty of the charges against them, the threshold issue of whether the payments to be made by NPC under the MOA should accrue solely and exclusively in favor of the Province, must first be resolved.

Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe the authority of local government units to levy real property tax as well as the sharing scheme among local government units including the national government with respect thereto. Said provisions; read:

SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and collected in all provinces, cities and municipalities an annual ad valorem tax or real property, such as land, buildings, machinery and other improvements affixed or attached to real property not hereinafter specifically exempted.

SEC. 39. Rates of Levy. - The provincial, city or municipal board or council shall fix a uniform rate of real property tax applicable to their respective localities as follows:

(1)              In the case of a province, the tax shall be fixed by ordinance of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property;

(2)              In the case of a city, the tax shall be fixed by ordinance of the municipal board or city council at the rate of not less than one-half of one percent but not more than two percent of the assessed value of real property; and

(3)              In the case of a municipality, the tax shall be fixed by ordinance of the municipal council subject to the approval of the provincial board at the rate of not less than one-fourth of one percent but not more than one-half of one percent of the assessed value of real property.

SEC. 41. An additional one percent tax on real property for the Special Education Fund. - There is hereby imposed an annual tax of one percent on real property to accrue to the Special Education Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; Provided, That real property granted exemption under Section 40 of this code shall also be exempt from the imposition accruing to the Special Education Fund. (as amended by P.D. No. 1913)

SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax, except as otherwise provided in this Code, shall accrue to the province, city or municipality where the property subject to the tax is situated and shall be applied by the respective local government unit for its own use and benefit.

(b) Barrio shares on real property tax collections. -The annual shares of the barrios in real property tax collections shall be as follows:

(1)    Five percent of the real property tax collections of the province and another five percent of the collections of the municipality shall accrue in the barrio where the property subject to the tax is  situated.

(2)    In the case of the city, ten percent of the collections of the tax shall likewise accrue to the barrio where the property is situated.

        xxx                                        xxx                                        xxx

SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax pertaining to the city and to the municipality shall accrue entirely to their respective general funds. In the case of the province, one-fourth thereof shall accrue to its road and bridge fund and remaining three-fourths of its general fund.

(b)      The entire proceeds of the additional one percent real property tax levied for the Special Education Fund created under RA. No. 5447 collected in the province or city on real property situated in their respective territorial jurisdictions shall be distributed as follows:

(1)  Collections in the provinces: Fifty-five percent shall accrue to the municipality where the property subject to the tax is situated; twenty-five percent shall accrue to the province; and twenty percent shall be remitted to the Treasurer of the Philippines. (as amended by PD. No. 1969)

        xxx                                        xxx                                        xxx

(c)      The proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof, shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes had been paid in regular course.

        x x x                                      x x x                                      x x x (Italics supplied)

The foregoing provisions clearly show that local government units may levy and collect real property tax ranging from a low of one-fourth of one percent (0.25%) to a high of two percent (2.0%) of the assessed value of real property depending on the local government unit levying the same.  It is likewise clear that a province, a municipality and a city may each separately levy said tax on real property located within their respective jurisdictions but not exceeding the rates prescribed under Sec. 39 of P.D. No. 464.

And apart from said basic tax, the law authorizes the collection of an additional tax equivalent to one percent (1.0%) of the assessed value of the real property to accrue to the Special Education Fund (SEF).

In accordance with the authority conferred upon them by P.D. No. 464, the following tax resolutions or ordinances were passed:

By the Province –

Resolution No. 30, series of 1978, of the Provincial Board of Albay, enacting Provincial Tax Ordinance No.4 whose Section 1, provides:

There shall be levied, assessed and collected an annual ad valorem tax on real properties including improvements thereon equivalent to one-half of one percent of the assessed value of real property.

By the Municipality of Tiwi –

Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

That the tax rate of real property shall be one-half of one percent of the assessed value of real property.

By the Municipality of Daraga –

Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga, Albay, whose Section 3 provides:

Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50-G; Italics supplied)

Applying said rates of levy, the real property taxes collectible from the NPC are:

1.  A basic tax of 1%, levied by the Province (0. 5%) and Tiwi (0.5%) on the one hand; and the Province (0.5%) and Daraga (0.5%) on the other; and

2.  The additional 1% tax pertaining to the SEF.

or a total of 2.0% on the assessed value of NPC’s real properties.

On the other hand, sharing on said taxes, shall be as follows:

1. On the basic tax:

           Province                                       47.5%           Municipality                                  47.5%           Barangay                                       5.0%

           Total                                          100.0%

2.        On the additional tax pertaining to the SEF:

           Province                                       25.0%           Municipality                                  55.0%           National Government                  20.0  

           Total                                          100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC should be shared by the Province, Tiwi and Daraga, the concerned barangays; and the national government, as follows:

Province                       Municipalities                 Barangay                       Natl. Gov’t.

Basic Tax

P9,672,062.04            9,672,062.04                 1,018,111.79                 none

SEF

4,072,447.18               10,181,117.93               none                                6,108,670.76

Total

P13,744,509.22          19,853,179.97               1,018,111.79                 6,108,670.76

This shows that the Province is entitled only to P 13,744,509.21 of the P40,724,47 1.74 aggregate payments by NPC.  On the other hand, the balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga, the concerned barangays and the national government.

The Province maintains, however, that considering that it acquired ownership over the properties of NPC subject matter of the auction, all the payments to be made by NPC under the MOA should accrue exclusively to the Province.

This is untenable.  The law clearly provides that ‘the proceeds of all the delinquent taxes and penalties as well as the income realized from the x x x disposition of real property acquired by the province or city at a public auction x x x, and the sale of delinquent property or the redemption thereof shall accrue to the province, city or municipality in the same manner and proportion as if the tax or taxes have been paid in the regular course’ (Sec. 87(c) supra).

It is immaterial that the Province was the highest bidder and eventually became the owner of the properties sold at the auction sale.  What is essential is that the proceeds of the re-sale of said properties acquired by the Province, be distributed in the same manner and proportion among the rightful beneficiaries thereof as provided by law.

This was the import and essence of Chief Presidential Legal Counsel Carpio’s opinion when he stated that the sharing scheme provided by law cannot be amended by a mere agreement between the taxpayer, in this case NPC, and the collecting authority, in this instance the Province of Albay.

Likewise, it is axiomatic that while ‘contracting parties may establish stipulations, clauses, terms and conditions as they may deem convenient,’ they may not do so if these are ‘contrary to law, morals, good customs, public order or public policy’ (Art. 1306, New Civil Code).

Also relevant to the discussion are the following provisions of the Local Government Code of 1991:

Sec. 307. Remittance of Government Monies to the Local Treasury. - Officers of Local government authorized to receive and collect monies arising from taxes, revenues, or receipts of any kind shall remit the full amount received and collected to the treasury of

such local government unit which shall be credited to the particular account or accounts to which the monies in question properly belong.

SEC. 308. Local Funds. - Every local government unit shall maintain a General Fund which shall be used to account for such monies and resources as may be received by and disbursed from the local treasury. The General Fund shall consist of monies and resources of the local government which are available for the payment of expenditures, obligations or purposes not specifically declared by law as accruing and chargeable to, or payable from any other fund.

SEC. 309. Special Funds. - There shall be maintained in every provincial, city, or municipal treasury the following special funds:

(a)    Special Education Fund (SEF) shall consist of the respective shares of provinces, cities, municipalities and barangays in the proceeds of the additional tax on real property to be appropriated for purposes prescribed in Section 272 of this Code; and

(b)    Trust Funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator, or which have been received as a guaranty for the fulfillment of some obligation. A trust fund shall only be used for the specific purpose for which it was created or for which it came into the possession of the local government unit. (Italics supplied)

These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445 and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No. 292, otherwise known as the ‘Administrative Code of 1987.’

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds.  As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries.  Said shares cannot be lodged in, nor remain part of, the Province’s general fund.  Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,47 1.74 NPC payments as ‘surplus adjustment’ (Account 7-92-4 19) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

Report No. 93-11 (Exh. N), prepared and made by the Special Audit Office (SAO) of the Commission on Audit (COA) further support our findings, thus -

        xxx                                        xxx                                        xxx

Part II. Findings and Observations

The audit findings, which are discussed in detail in the attached report, are summarized below:

1.  The remittances of the NPC of the P40,724,471 .74 from July to December 1992 representing partial payments of real tax delinquencies from June 22, 1984 to March 10, 1989, were not shared with the Municipalities of Tiwi, Daraga, and the concerned barangays and the National Government in violation of P.D. 464. The Memorandum of Agreement entered into between the Province of Albay and Napocor cannot amend the provisions of P.D. No. 464 which specifies the sharing scheme of the real property tax among the province, city or municipality where the property subject to tax is situated and the National Government.

        xxx                                        xxx                                        xxx

2.  The collection of P40,724,471.74 was fully treated as surplus adjustment (Account 7-92-4 19) being prior years income, without creating a trust liability for the municipality and barangays concerned and national government, As of December 31, 1992, the balance of the account was only P25,668,653. 12 thus, stressing that P15,255,818.62 was spent. x x x Under the General Fund, cash available was only P4,92 1,353.44 leaving practically no cash to answer for the shares of the Municipalities of Tiwi and Daraga and their baran gays where the properties are located. (pp. 4 and 16; (Italics supplied)

        xxx                                        xxx                                        xxx

As pointed out earlier, the Province was entitled only to P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it may only appropriate and disburse P13,744,509.21.  Any disbursements exceeding this amount would therefore be illegal.

This Committee particularly notes the factual finding of COA that as of 31 December 1992, the actual cash balance of the Province’s general fund was only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid by the NPC and lodged in the Province’s general fund, P35,803,118.30 was disbursed or spent by the Province.  This exceeds the P13,744,509.21 share of the Province by P22,058,609.09.

The foregoing may be illustrated as follows:

NPC Payments received by           the Province                                              P40,724,471.74

Less   Actual Cash Balance (general fund)

           as of 12-31-92 -                                              4,921,353.44 P35,803,118.30

           Less Share of the Province                     13,744,509.21

           Amount Illegally Disbursed           by the Province                                        P22,058,609.09

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1) declaring as forfeited in favor of the Province the entire amount of P40,724,471.74 paid by NPC to be patently illegal

as it unlawfully deprives Tiwi and Daraga, the barangays concerned, and the national government of their rightful shares in said payments. Being illegal, said ordinance may not be used or relied upon by the respondents to justify the disbursements of funds in excess of their share.

Neither may Resolution Nos. 178-92 and 204-92 be used to justify the disbursements considering that the appropriations made thereunder totalling P27,442,364.51 are to be funded by the P40,724,471.74 ‘surplus adjustment’ that includes the ‘trust funds’ not belonging to the Province. Even assuming that Resolution No. 178-92 authorizing the expenditure of P9,778,932.57 were to be taken from the Province’s share amounting to P13,744,509.21, the rest of the disbursements still have no legal basis. Clearly, this is violative of the fundamental rule that ‘(n)o money shall be paid out of the local treasury except in pursuance of an appropriation ordinance or law’ (par. [a], Sec. 305, Republic Act No. 7160).

Respondents raise the common defense that the findings contained in SAO Report No. 93-11 are not yet final as they have filed an appeal therefrom.

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA merely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

Respondents’ contention that COA’s factual findings, contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable.  For no administrative or criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance.  This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law.  Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report 93-11 to enable this Committee to evaluate the merits of the instant complaint.

We also reject respondent Azaña’s defense that since he did not participate in the deliberation and passage of Resolution No. 09-92, merely signing the same as presiding officer of the Sangguniang Panlalawigan, and only certifying that the same had been passed, he did not incur any administrative liability.

The fact remains that as presiding officer of the Sangguniang Panlalawigan and being the second highest official of the Province, respondent Azaña is jointly responsible with other provincial officials in the administration of fiscal and financial transactions of the Province.

As presiding officer of the Sangguniang Panlalawigan, respondent Azaña has a duty to see to it that resolutions or ordinances passed are within the bounds of the law.  He cannot merely preside over the sessions of the Sangguniang Panlalawigan unmindful of the legality and propriety of resolutions or ordinances being proposed or deliberated upon by his colleagues.

This collective responsibility is provided under Secs. 304 and 305 of Republic Act. No. 7160, thus –

SEC. 304. Scope. - This Title shall govern the conduct and management of financial affairs, transactions and operations of provinces, cities, municipalities, and barangays.

SEC. 305. Fundamental Principles. - The financial affairs, transactions, and operations of local government units shall be governed by the following fundamental principles:

        xxx                                        xxx                                        xxx

(1)  Fiscal responsibility shall be shared by all those exercising authority over the financial affairs, transactions, and operations of local government units; and

x x x           x x x             x x x      (Italics supplied.)

It cannot be denied that the Sangguniang Panlalawigan has control over the Province’s ‘purse’ as it may approve or not resolutions or ordinances generating revenue or imposing taxes as well as appropriating and authorizing the disbursement of funds to meet operational requirements or for the prosecution of projects.

Being entrusted with such responsibility, the provincial governor, vice-governor and the members of the Sangguniang Panlalawigan, must always be guided by the so-called ‘fundamental’ principles enunciated under the Local Government Code, i.e., ‘No money shall be paid out of the local treasury except in pursuance of an appropriations ordinance or law; local revenue is generated only from sources authorized by law or ordinance and collection thereof shall at all times be acknowledged properly; all monies officially received by a local government officer in any capacity or on any occasion shall be accounted for as local funds, unless otherwise provided by law; and trust funds in the local treasury shall not be paid out except in fulfillment of the purposes for which the trust was created or the funds received’ (Sec. 305, R.A. 7160).

All the respondents could not claim ignorance of the law especially with respect to the provisions of P.D. No. 464 that lay down the sharing scheme among local government units concerned and the national government, for both the basic real property tax and additional tax pertaining to the Special Education Fund.  Nor can they claim that the Province could validly forfeit the P40,724,471.74 paid by NPC considering that the Province is only entitled to a portion thereof and that the balance was merely being held in trust for the other beneficiaries.

As a public officer, respondent Azaña (and the other respondents as well) has a duty to protect the interests not only of the Province but also of the municipalities of Tiwi and Daraga and even the national government.  When the passage of an illegal or unlawful ordinance by the Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act accordingly, but actively opposing the same by temporarily relinquishing his chair and participating in the deliberations.  If his colleagues insist on its passage, he should make known his opposition thereto by placing the same on record. No evidence of any sort was shown in this regard by respondent Azaña.

Clearly, all the respondents have, whether by act or omission, denied the other beneficiaries of their rightful shares in the tax delinquency payments made by the NPC and caused the illegal forfeiture, appropriation and disbursement of funds not belonging to the Province, through the passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92 and 204-92.

The foregoing factual setting shows a wanton disregard of law on the part of the respondents tantamount to abuse of authority.  Moreover, the illegal disbursements made can qualify as technical malversation.

This Committee, thus, finds all the respondents guilty of abuse of authority, and accordingly, recommends the imposition of the following penalties of suspension without pay:

a.        Respondent Salalima – five (5) months; and

b.        All the other               – four (4) months each.           respondents

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay Governor Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal services entered into between the Province of Albay, on the one hand, and Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and the disbursement of public fund in payment thereof. The complaint was docketed as OP Case No. 5469.

The antecedent facts are as follows.

Because of the refusal by the National Power Corporation (“NPC”) to pay real property taxes assessed by the Province of Albay (“the Province”) covering the period from 11 June 1984 up to 10 March 1987 amounting to P2 14,845,184.76, the Province sold at public auction the properties of NPC consisting of geothermal power plants, buildings, machinery and other improvements located at Tiwi and Daraga, Albay. The Province was the sole and winning bidder at the auction sale.

As NPC failed to redeem its properties sold at the auction, the Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ of possession over the same.

Sometime in 1989, NPC filed a petition with the Supreme Court, which was docketed as G.R. No. 87479, questioning the validity of the auction sale conducted by the Province. NPC claims, inter alia, that its properties are not subject to real property tax.

On 17 May 1989, the Province, through Atty. Romulo Ricafort, the legal officer of the Province, filed its comment on the NPC petition with the Supreme Court.

On 2 June 1989, the Albay Sangguniang Panlalawigan adopted Resolution No. 129-89 (Exhs. B to B-I) authorizing respondent Governor to engage the services of a Manila-based law firm to handle the case against NPC.

On 25 August 1989, Atty. Jesus R. Cornago entered his appearance with the Supreme Court as collaborating counsel for the Province in G.R. No. 87479.  The entry of appearance of Atty. Cornago bore the conformity of respondent Governor.

On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes & Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has filed a memorandum with the Supreme Court, suggesting that a retainer agreement be signed between the Province, on the one hand, and Atty. Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth the conditions of the retainer agreement, thus:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 Million, payable to us in the event that we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

On 8 January 1990, the Albay Sangguniang Panlalawigan passed Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to sign and confirm the retainer contract with the Cortes & Reyna Law Firm.

Respondent Salalima signed the retainer agreement.

On 4 June 1990, the Supreme Court issued a decision dismissing the NPC petition and upholding the validity of the auction sale conducted by the Province to answer for NPC’s tax liabilities.

Subsequently, the following payments amounting to P7,380,410.31 (Exhs. E to N-l) were made by the Province to Atty. Antonio Jose Cortes and Atty. Jesus R. Cornago:

Particulars                   Claimant/Payee                          Amount

Disbursement              Cortes & Reyna                          P50,508.75Voucher (DV)No. 4, Jan.8, 1990Check No.

931019

DV No. 1889               Atty. Antonio Jose Cortes        P1,421,040.00Aug. 13, 1992.Check No.

236063-S

DV No. 1890               Atty. Jesus R. Cornago            P1,786,300.00Aug. 13, 1992Check No.

236064-S

DV No. 2151               Atty. Antonio Jose Cortes         P838,85 1.44Sept. 28,1992, Check

No. 238174-S

DV No. 2226               Atty. Antonio Jose Cortes        P886,662.40Oct. 8,. 1992Check No.

239528-S

DV No. 2227               Atty. Jesus R. Cornago             P341,024.00Oct. 8, 1992Check No.

239529-S

DV No. 2474               Atty. Jesus R. Cornago            P287,018.40Nov. 6, 1992Check No.250933

DV No. 2475               Atty. Antonio Jose Cortes        P746,247.83Dec. 9, 1992Check No.253163

DV No. 2751               Atty. Antonio Jose Cortes        P747,247.84Dec. 9, 1992Check No.253163

DV No. 2752               Atty. Jesus R. Cornago            P287,018.40Dec. 9, 1992Check No.253164                                                                           ____________

TOTAL                                                                            P7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by respondent Azaña. The rest were approved by respondent Governor.

In a letter dated 31 May 1993 (Exh. O) and certificate of settlement and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay informed respondent Governor that payments made by the Province as attorney’s fees amounting to P7,380,410.31 have been disallowed by the Commission on Audit (COA, with the following notation:

The disbursement vouchers detailed hereunder represent payments for attorney’s fees of Cortes & Reyna Law Office for legal services rendered re: G.R. No. 87479 NAPOCOR, Petitioner vs. The Province of Albay, et al., Respondent,’ Supreme Court, en banc. Total payments of P7,380,410.31 are disallowed for lack of the requisite ‘prior written conformity and acquiescence of the Solicitor General x x x as well as the written concurrence of the commission on Audit’ as provided for and required under COA Circular No. 86-255 dated April 2, 1986, re: ‘Inhibition against employment by government: agencies and instrumentalities x x x of private lawyers to handle their legal cases,’ viz.

The complaint alleges that by entering into the retainer agreement with private lawyers and paying P7, 380, 410.31 to the said private lawyers, respondents violated several provisions of law which warrants the imposition of administrative penalties against them. It is to be noted that respondents Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the Sangguniang Panlalawigan when Resolution No. 129 was passed. However, the complaint alleges that these respondents were named in the complaint because they approved the supplemental budget/appropriation ordinances providing for the payment of the attorney’s fees.

The sole issue in this case is whether or not respondents have incurred administrative liability in entering into the retainer agreement with Atty. Cornago and the Cortes & Reyna Law Firm and in making payments pursuant to said agreement for purposes of the case filed by NPC with the Supreme Court against the Province.

We find merit in the complaint and hold that under the circumstances surrounding the transaction in question the respondents abused their authority.

Sec. 481 of the Local Government Code (R.A. No. 7160) requires the appointment of a legal officer for the province whose functions include the following:

Represent the local government unit in all civil actions and special proceedings wherein the local government unit or any official thereof, in his official capacity is a party; Provided, That, in actions or proceeding where a component city or municipality is a party adverse to the provincial government or to another component city or municipality, a special legal officer may be employed to represent the adverse party.

The Supreme Court has ruled in Municipality of Bocaue, et al. v. Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be represented by private lawyers and it is solely the Provincial Fiscal who can rightfully represent them, thus:

Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged with the duty to represent the province and any municipality thereof in all civil actions xxx

It would seem clear that the Provincial Fiscal is the only counsel who can rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal [the private lawyers hired by the Province of Bulacan] have no standing in the case. The appeal herein interposed in behalf of the plaintiffs cannot therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the Local Government Code is based on Sec. 1681 of the Revised Administrative Code which was the subject of interpretation in the abovecited case of Municipality of Bocaue, et al. v. Manotok.

In hiring private lawyers to represent the Province of Albay, respondents exceeded their authority and violated the abovequoted section of the Local Government Code and the doctrine laid down by the Supreme Court.

Moreover, the entire transaction was attended by irregularities.  First, the disbursements to the lawyers amounting to P7,380,410.31 were disallowed by the Provincial Auditor on the ground that these were made without the prior written conformity of the Solicitor General and the written concurrence of the Commission on Audit (COA) as required by COA Circular No. 86-25 5 dated 2 April 1986.

The respondents attempted to dispute this finding by presenting the Solicitor General’s conformity dated 15 July 1993.  This conformity was, however obtained after the disbursements were already made in 1990 and 1992. What is required by COA Circular No. 86-255 is a prior written conformity and acquiescence of the Solicitor General.

Another irregularity in the transaction concerns the lawyers. Resolution No. 0 1-90 authorized the respondent Governor to sign and confirm a retainer contract for legal services with the Cortes & Reyna Law Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed by respondent Governor was, however, not only with the Cortes & Reyna Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm are two separate entities is evident from the retained contract itself:

As collaborating counsels for the respondents in the aforementioned case, our law firm and that of Atty. Jesus R. Cornago request that you pay us an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the aforementioned case is pending in the Supreme Court. Thereafter, we will charge you a contingent fee equivalent to eighteen percent (18%) of the value of the property subject matter of the case which is P214 million, payable to us in the event we obtain a favorable judgment for you from the Supreme Court in the case. Xerox expenses for copies of motions, memorandum and other matters to be filed with the Supreme Court in the case, together with xerox copies of documentary evidence, as well as mailing expenses, will be for your account also.

        xxx                                         xxx                                         xxx

Very truly yours,

CORTES & REYNALAW FIRM

- and -

Atty. JESUS R. CORNAGOJarnecca Building

280 Tomas Morato Avenue

  by:

(Sgd.) ANTONIO JOSE F. CORTES

With my conformity:

(Sgd.) GOV. ROMEO R. SALALIMAProvince of Albay

(Italics supplied.)

In entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor exceeded his authority under Resolution No. 01-90.

Complicating further the web of deception surrounding the transaction is the fact that it was only Atty. Cornago who appeared as collaborating counsel of record of the Province in the

Supreme Court case (G.R. No. 87479). We quote the entry of appearance of Any. Cornago in full in said case:

APPEARANCE

COMES NOW, the undersigned counsel, and to this Honorable Supreme Court, respectfully enters his appearance as counsel for the respondents in the above-entitled case, in collaboration with Atty. Romulo L. Ricafort, counsel of record for the respondents. This appearance bears the conformity of the respondent Gov. Romeo R. Salalima, as shown by his signature appearing at the space indicated below. In this connection, it is respectfully requested that, henceforth, the undersigned counsel be furnished with a copy of all notices, orders, resolutions and other matters that may be issued in this case at its office address indicated below.

Quezon City, for Manila, August 24, 1989.

(Sgd.) JESUS R. CORNAGOCounsel for Respondents280 Tomas Morato AvenueQuezon CityPTR No. 561005-’89 MandaluyongIBP No. 279351-’89 Pasig, MM

With my conformity:

(Sgd.) ROMEO R. SALALIMARespondent

Office of the Governor of AlbayLegaspi City

Even the Solicitor General, in his letter to respondent Governor dated 15 July 1993, noted that the Province is represented in the Supreme Court by Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna Law Firm, thus:

Incidentally, a check with our office records of the case G.R. No. 87479 reveals that the Province of Albay and its officials named respondents therein were represented in the Supreme Court by Atty. Romulo Ricafort the Province’s Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance was entered therein by the Cortes & Reyna Law Firm. (Italics supplied)

Furthermore, the memorandum with the Supreme Court filed for the Province was signed by Atty. Cornago and not by the Cortes & Reyna Law Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the Province and amounting to more than P3.6 million were issued in favor of the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other words, respondents disbursed money to the Cortes & Reyna Law Firm although the latter did not appear as counsel for the Province in the Supreme Court in G.R. No. 87479.

Finally, the attorney’s fees agreed upon by respondent Salalima and confirmed by the other respondents are not only unreasonable but also unconscionable.  The contingent fee of 18% of the ”P2l4 million” claim of the Province against NPC amounts to P38.5 million.  The word “unconscionable,” as applied to attorney’s fee, “means nothing more than that the fee contracted for, standing alone and unexplained would be sufficient to show that an unfair

advantage had been taken of the client, or that a legal fraud had been taken of the client, or that a legal fraud had been perpetrated on him.” (Moran, Comments on the Rules of Court, Vol. 6, p. 236.)

The Province has a legal officer, Atty. Ricafort, who had already filed a comment on NPC’s petition against the Province.  The comment filed by Atty. Ricafort already covers the basic issues raised in the petition.  When Atty. Cornago filed an appearance and subsequently a memorandum for the Province, the petition was already been given due course by the Supreme Court and the only pleading to be filed by the parties before the Court would issue its decision was a memorandum. Surely, one memorandum could not be worth P38.5 million.

Furthermore, the professional character and social standing of Atty. Cornago are not such as would merit a P38.5 million fee for the legal services rendered for the Province. During the hearing, respondent Governor admitted that he had hired Atty. Cornago because they were schoolmates at San Beda College, thus:

SECRETARY CORONA:

May I ask a question Governor, what was your basis for choosing this particular Law office? Why not ACCRA, why not Sycip Salazar, why not Carpio Villaraza, why this particular Law office? Frankly, I never heard of this law office. Who recommended it?

GOVERNOR SALALIMA:

Atty. Cornago was then a graduate of San Beda and I am a graduate of San Beda.

SECRETARY CORONA:

Were you classmates?

GOVERNOR SALALIMA:

No.

SECRETARY CORONA:

How many years apart were you?

GOVERNOR SALALIMA:

Two (2) years.

SECRETARY CORONA:

So, you knew each other from the law school?

GOVERNOR SALALIMA:

Yes.

SECRETARY CORONA:

Were you members of the same fraternity in San Beda?

GOVERNOR SALALIMA:

Yes.

(TSN, 12 July 1992, pp. 27-29.)

It is evident that respondent Governor hired Atty. Cornago not on the basis of his competency and standing in the legal community but purely for personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is not such as would merit P38.5 million for one memorandum, which, in this case, it had not even filed because it was not the counsel of record.  Hence, considering the labor and time involved, the skill and experience called for in the performance of the services and the professional character and social standing of the lawyers, the attorney’s fee of P38.5 million is unconscionable.  By allowing such scandalously exorbitant attorney’s fees which is patently disadvantageous to the government, respondents betrayed a personal bias to the lawyers involved and committed abuse of authority.

Parenthetically, the retainer contract containing such exorbitant attorney’s fees may also be violative of the following: (a) COA Circular No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Finally, the Committee again applies in this case, as was applied in OP Case No. 5470, the rule of joint responsibility as enunciated under Sec. 305(1) of the Local Government Code.

In view of the foregoing, the Committee holds that respondents committed abuse of authority under Sec. 60(e) of the Local Government Code for the following:

1.  Hiring private lawyers, in violation of Sec. 481 of the Local Government Code, to handle the case of the Province of Albay before the Supreme Court in G.R. No. 87479;

2.  Disbursing public money in violation of COA rules and regulations;

3.  Paying the Cortes & Reyna Law Firm public money although it was only Atty. Cornago who was the counsel of record of the Province of Albay in the Supreme Court case;

4.  Authorizing an unconscionable and grossly disadvantageous attorney’s fees of P38.5 million; and

5.  Additionally, as to respondent Governor, entering into a retainer agreement not only with the Cortes & Reyna Law Firm but also with Atty. Cornago, thus exceeding his authority under Resolution No. 0 1-90 passed by the Sangguniang Panlalawigan.

After taking all the attendant circumstances into consideration, the Committee recommends that the following penalties of suspensions without pay be meted out:

a.       Respondents Salalima          –          six (6) months           and Azaña                                            each; and

b.       All the other           respondents                            –           four (4) months

                                          each.

III. OP Case No. 5471

This refers to the administrative complaint filed by the Tiwi Mayor Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor Rodolfo Benibe for “abuse of authority and oppression” under Sec. 60 (c) and (e) of R.A. No. 7160.

The antecedent facts are as follows:

On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi Sangguniang Bayan charged herein respondent Governor Salalima and Vice-Governor Azana for abuse of authority, misconduct in office and oppression. This administrative complaint, initially docketed as OP Case No. 4982 (DILG Adm. Case No. P-8- 93), arose from the refusal of said respondents to remit Tiwi’s share in the P40,724,47 1.74 tax delinquency payments made by NPC. This case was subsequently substituted by OP Case No. 54790 filed on 25 January 1993 which now included as respondents Albay Sangguniang Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana, Fernandez, Fontanilla, and Rontas.

Subsequently, Mayor Corral became the subject of several administrative and criminal complaints filed by certain individuals with the following offices:

a.        Achilles Berces v. Mayor Naomi Corral

(1)         Albay Sangguniang Pan lalawigan, Adm. Case No. 02-92(2)         Albay Sangguniang Panlalawigan, Adm. Case No. 05-92(3)         Office of the Ombudsman, OMB Adm. Case No. 1930163(4)         Office of the Ombudsman, OMB Case No. 0930682(5)         Office of the Ombudsman, OMB-092-3008

b.        Muriel Cortezano v. Mayor Naomi Corral

(6)         Albay Sangguniang Panlalawigan, Adm. Case No. 10-93(7)         Office of the Ombudsman, OMB-0-92-3000

c.        Amelia Catorce v. Mayor Naomi Corral

(8)         Albay Sangguniang Panlalawigan, Adm. Case No. 09-93

d.        Aida Marfil v. Mayor Naomi Corral

(9)         Albay Sangguniang Panlalawigan, Adm. Case No. 07-93(10)       Office of the Ombudsman, 0MB Case No. 5-93-0110

e.        Rodolfo Belbis v. Mayor Naomi Corral

(11)       Albay Sangguniang Panlalawigan, Adm. Case No. 06-93(12)       Office of the Ombudsman, 0MB Case No. 0-93-0098

f.         Kin. Juan Victoria, et al. v. Mayor Naomi Corral

(13)       Office of the Prosecutor, I.S. No. 93-046 (for Libel). Legaspi City

g.        Governor Romeo Salalima, et al. v. Mayor Naomi Corral

(14)      Office of the Prosecutor, I.S. No. 93-044 (for Libel and Perjury), Legaspi City

(15)      Office of the Prbsecutor, I.S. No. 93-045 (for Libel and Perjury), Legaspi City

or a total of fifteen (15) cases.

On 7 January 1993, the respondent-members of the Sangguniang Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor Corral be placed under preventive suspension for sixty (60) days pending the resolution of Adm. Case No. 05-92 (Exh. 18).

On 11 January 1993, respondent Salalima approved said resolution and, on the same date, officially directed herein respondent Tiwi Vice-Mayor Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh. 18).

On 21 January 1993, Department of the Interior and Local Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11 January 1993 suspension order issued by respondent Salalima. In his letter to Mayor Corral (Exh. C), he stated, thus:

Considering that the preventive suspension imposed upon you by Governor Romeo R. Salalima of that province, was issued after the latter’s refusal to accept your answer, therefore, the issuance of subject order of preventive suspension is premature, the issues having not been joined.

In view thereof, the Order of Preventive Suspension dated 11 January 1993, issued by Governor Salalima, is hereby lifted.

On 26 January 1993, the Office of the President (OP), acting in OP Case No. 4982, after finding that “the evidence of guilt is strong, and given the gravity of the offense and the great probability that the continuance in office of respondent Governor Romeo R. Salalima could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence,” placed respondent Salalima under preventive suspension for sixty (60) days (Exhs. D to D-2).

Respondent Salalima subsequently sought the reversal of the OP Order dated 26 January 1993 but the same was dismissed by the Supreme Court on 26 May 1993 in the case entitled “Salalima v. the Hon. Executive Secretary,” G.R. No. 108585 (Exh. E).

On 2 February 1993, Mayor Corral filed a motion to inhibit the respondents from hearing the six cases filed against her with the Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92,06-93,07-93,09-93 and 10-93) asserting her constitutional right to due process of law. This motion was however denied with the respondent-members of the Sangguniang Panlalawigan assuming jurisdiction over the cases.

After conducting marathon hearings, respondent-members of the Sangguniang Panlalawigan rendered judgments against Mayor Corral and imposing, among others, the following penalties of suspension:

1.  In Adm. Case No. 02-92 - suspension for two (2) months (see Decision dated 1 July 1993, [Exhs. F to F-2]);

2.  In Adm. Case No. 05-92 - suspension for three (3) months (see Resolution dated 5 July 1993, [Exhs. 0 to G-2]);

3.  In Adm. Case No. 06-93 and 07-93 - suspension for one (1) month (see Resolution dated 8 July 1993, (Exhs. H to H-3]); and

4.  In Adm. Case No. 10-93 - suspension for the period of unexpired term (see Resolution dated 9 July 1993, (Exhs. I to 1-2]).

On 22 July 1993, respondent Salalima issued a directive addressed to the Provincial Treasurer, Provincial Auditor, PNP Provincial Director, Provincial Assessor, Provincial Accountant, Provincial Budget Officer, Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial Prosecutor enjoining them to assist in the implementation of the decisions suspending

Mayor Corral “by decreeing directives to your subordinate officials in Tiwi, Albay to strictly adheres thereto.”

Subsequently, Mayor Corral interposed appeals from the decisions of respondent-members of the Sangguniang Panlalawigan suspending her from office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that the implementation of said decisions be stayed.

On 28 July 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to J-2).

Similarly, on 3 August 1993, the OP ordered the suspension/stay of execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K to K-i).

Also, with respect to Adm. Case Nos. 6-93 and 7- 93, the Civil Service Commission (CSC) issued Resolution Nos. 93- 005 (dated 5 January 1993) and 92- 817 (dated 4 March 1993), which provided the bases and justifications for the acts of Mayor Corral complained of in these two (2) cases.  The Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2).

In the multiple charges for libel and perjury against Mayor Corral, arising from her complaint in OP Case No. 5470, filed with the Regional Trial Court of Legaspi City, the Supreme Court ordered the lower court to cease and desist from proceeding with the case in a resolution dated 16 September 1993 (Exhs. Q to Q-2).

In determining whether respondents are guilty of the charges levelled against them, the following issue has to be resolved, i.e., whether the conduct of the proceedings in the administrative cases filed and the series of suspension orders imposed by the respondent- members of the Sangguniang Panlalawigan on Mayor Corral constitute oppression and abuse of authority?

“Oppression” has been defined as an “act of cruelty, severity, unlawful exaction, domination or excessive use of authority.” (Ochate v. Ty Deling, L- 13298, March 30, 1959, 105 Phil. 384, 390.)

“Abuse” means “to make excessive or improper use of a thing, or to employ it in a manner contrary to the natural or legal rules for its use. To make an extravagant or excessive use, as to abuse one’s authority” (Black’s Law Dictionary <5th Ed.>, II). It includes “misuse” (City of Baltimore t’. Cornellsville & S.P. Ry, Co., 6 Phils. 190, 191, 3 Pitt 20, 23).

Moreover, Section 63(d) of R.A. No. 7 160 expressly states that, “[a]ny abuse of the exercise of the powers of preventive suspension shall be penalized as abuse of authority.”

Now, does the above narration of facts show commission by respondents of the administrative offenses complained of?

A review of the proceedings reveal that the same were marked by haste and arbitrariness. This was evident from the start when Mayor Corral was preventively suspended (in Adm. Case No. 05-92) even before she could file her answer. In the other cases, respondent-members of Sangguniang Panlalawigan ruled that Mayor Corral had waived her right to adduce evidence in her defense.

Consequently, respondents did not also fully evaluate the evidences presented to support the charges made. As such, all the decisions of respondents suspending Mayor Corral were ordered lifted suspended by the DILG and OP. Thus, even the cases filed with the Office of the Ombudsman, which were based on the same incidents complained of in the said administrative cases, were subsequently dismissed.

Respondents should have inhibited themselves from assuming jurisdiction over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 09-93, and 10-93) as timely moved by Mayor Corral considering that they were the respondents in various administrative complaints she earlier filed with the OP and with the DILG starting with OP Case No. 4892. However, despite the violation of due process resulting from their collective acts, respondents, in their determination and eagerness to suspend and harass Mayor Corral, proceeded to hear and decide said cases.

The OP has no jurisdiction over administrative complaints filed against elective municipal officials. Under Sec. 6 1(b) of R.A. No. 7160, “[a] complaint against any elective official of a municipality shall be filed before the Sangguniang Panlalawigan whose decision may be appealed to the Office of the President.”

WHEREFORE, thecharges against Vice Mayor Benibe are dismissed. However, all the other respondents herein are found guilty of oppression and abuse of authority under Section 60(c) and (e) of R.A. No. 7160. Accordingly, it is recommended that each of them be meted the penalty of four (4) months suspension without pay.

IV. OP Case No. 5450

This refers to the administrative charges filed by Tabaco Mayor Antonio Demetriou against Governor Romeo Salalima for violation of - Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g) of Republic Act No. 3019, and the provisions of PD No. 1594, as amended.

This case was filed with the Office of the President (OP) on 18 October 1993 and docketed as OP Case No. 5450.

The facts as found by this Committee are as follows:

On 27 September 1989 the Tabaco Public Market was destroyed by fire (Exh. A, par. 1).

On 26 September 1990, the OP advised Mayor Demetriou and respondent Salalima that the P12.0 Million in Budgetary Assistance to Local Government Units (BALGU) funds earlier remitted by the national government to the Province, should be used for the rehabilitation of the Tabaco Public Market, and that the project should be implemented by the Provincial Governor in consultation with the Mayor of Tabaco (Exh. 37).

On 8 May 1991, a public bidding was conducted by the Albay Provincial Government for the repair and rehabilitation of the Tabaco Public Market (Exh. A, par. 1).

On 29 May 1991, the Province represented by respondent Salalima and RYU Construction entered into a contract for P6,783,737.59 for said repair and rehabilitation (Exh. H). Among others, the contract stipulated that the contracted work should be completed in 150 days.

The contractor started the project on 1 July 1991 and completed the same on 2 June 1992 (Exh. 41).

On 6 March 1992, the Province represented by respondent Salalima entered into another contract (Exh. 1) for P4,304,474.00 with RYU Construction for additional repair and rehabilitation works for the Tabaco Public Market. The terms and conditions of this contract are the same as those stipulated in the 29 May 1991 contract except for the construction period which is only for 90 days.

Construction of the second project commenced on 27 March 1992 and was completed on 2 June 1992 (Exh. 42).

In his complaint, Mayor Demetriou alleged that despite the delay in the completion of work under the first contract, liquidated damages were not imposed on, nor collected from, RYU Construction by the Province. Moreover, he claims that the second contract with RYU Construction was entered into in violation of P.D. No. 1594 as RYU incurred delay with respect to the first contract.

We find merit in the complaint:

Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item lB of the implementing Rules and Regulations (IRR) of PD No. 1594, as amended, read:

CI 8 - LIQUIDATED DAMAGES

1.    Where the contractor refuses or fails to satisfactorily complete the work within the specified contract time, plus any time extension duly granted and is hereby in default under the contract, the contractor shall pay the Government for liquidated damages, and not by way of penalty, an amount to be determined in accordance with the following formula for each calendar day of delay, until the work is completed and accepted or taken over by the Government:

xxx                                                 xxx                                        xxx

2.  To be entitled to such liquidated damages, the Government does not have to prove that it has incurred actual damages.  Such amount shall be deducted from an) money due or which may become due the contractor under the contract and/or collect such liquidated

damages from the retention money or other securities posted by the contractor whichever is convenient to the Government.

CI 1 - Extension of Contract time

1. Should the amount of additional work of any kind or other special circumstances of any kind whatsoever occur such as to fairly entitle the contractor to an extension of contract time, the Government shall determine the amount of such extension; provided that the Government is not bound to take into account any claim for an extension of time unless the contractor has prior to the expiration of the contract time and within thirty (30) calendar days after such work has been commenced or after the circumstances leading to such claim have arisen, delivered to the Government notices in order that it could have investigated them at that time. Failure to provide such notice shall constitute a waiver by the contractor of any claim. Upon receipt of full and detailed particulars, the Government shall examine the facts and extent of the delay and shall extend the contract time for completing the contract work when, in the Government’s opinion, the finding of facts justify an extension.

        xxx                                        xxx                                        xxx

IB 10.4.2 - By Negotiated Contract

1.  Negotiated contract may be entered into only where any of the following conditions exists and the implementing office/agency/corporation is not capable of undertaking the project by administration:

        xxx                                        xxx                                        xxx

c.  Where the subject project is adjacent or contiguous to an ongoing project and it could be economically prosecuted by the same contractor, in which case, direct negotiation may be undertaken with the said contractor at the same unit prices adjusted to price levels prevailing at the time of negotiation using parametric formulae herein prescribed without the 5% deduction and contract conditions, less mobilization cost, provided that he has no negative slippage and has demonstrated a satisfactory performance. (Italics supplied)

A reading of items CI 8 and CI 11 above shows that the collection of liquidated damages is mandatory in cases of delay unless there are valid orders of extension of contract work given by the Government.

Under the 29 May 1991 contract, the repair works should have been completed on 26 December 1991 since the project was started on 1 July. But then the project was finished only on 2 June 1992.

This is confirmed by the COA through SAO Report No. 93-11 (Exh. N), thus -

        xxx                                        xxx                                        xxx

xx x The project was completed only on June 2, 1992 or a delay of 132 working days, as shown in the following tabulation

Billing                         As of                                 Days Lapsed   %Accomplishment

First                 Dec. 2, 1991         130                            26.48

Second           Jan. 8, 1992          187                            53.19

Third                Feb. 10, 1992       100                            75.23

Final                June 2, 1992         202                            100.00

In view of the delays in project completion the Team requested from the Provincial Engineer any copy of the order suspending and resuming the work (suspension and resume order) since the same was not attached to the claims of the contractor or paid vouchers. Unfortunately, the Provincial Engineer could not provide said document as the Engineering Office had not issued any. In effect, there was no basis for the extension of contract time and the contractor should have been considered as behind schedule in the performance of the contract. Despite its deficiency, no liquidated damages was ever imposed against the contractor. (pp. 25-26) [Italics supplied]

Respondent Salalima failed to submit any evidence concerning any order issued by the Provincial Government extending RYU Construction’s contract.

The law requires that requests for contract extension as well as the orders granting the same must be made and given prior to the expiration of the contract. The rationale for this requirement is obviously to prevent a contractor from justifying any “delay” after the contract expires.

Before signing the 6 March 1992 contract, which was entered into on a negotiated basis and not through bidding, respondent Salalima should have inquired whether or not RYU Construction incurred negative slippage. Had he done so, the matter of imposing and collecting liquidated damages would have been given appropriate attention. This is aggravated by the fact that respondent knew that RYU Construction was the contractor for the original rehabilitation and repair work for the Tabaco Public market being the signatory to the first contract.

Clearly, therefore, there was a failure on the part of the Province to impose and collect liquidated damages from the erring contractor, RYU Construction.

Going to the second charge, we find that respondent Salalima unmistakably violated the provisions of P.D. No. 1594, as amended.

Fundamental is the rule that government contracts especially infrastructure contracts are awarded only through bidding. As explicitly ordained by Sec. 4 of P.D. No. 1594, construction projects shall generally be undertaken by contract after “competitive bidding.” By its very nature and characteristic, a competitive public bidding aims to protect the public interest by giving the public the best possible advantages through open competition. At the same time, bidding seeks to prevent or curtail favoritism, fraud and corruption in the award of the contract which otherwise might prevail were the government official concerned is vested with the full or absolute authority to select the prospective contractor (Fernandez, Treatise on Government Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil. Inc. v. Delgado Bros., 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and Matute v. Hernandez, 66 Phil. 68).

This is precisely the reason why negotiated contracts can be resorted to only in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of the IRR of PD No. 1594, supra. However, said proviso requires that the contractor had not incurred negative slippage and has demonstrated a satisfactory performance.

And since RYU Construction incurred negative slippage with respect to the repair works under the 29 May 1991 contract as found by COA, it was anomalous for the Province through respondent Salalima to enter into a negotiated contract with said contractor for additional repair and rehabilitation works for the Tabaco Public market. Failing to comply with the requirements of law, the 6 March 1992 contract is clearly irregular, if not illegal.

Finally, said contract may also be violative of the following:  (a)        COA Circular No. 85-55-A. (dated 8 September 1985) prohibiting irregular expenditures or uses of funds; and (b) Sec. 3(e) and (g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.

Premises considered, this Committee finds the respondent guilty of abuse of authority and gross negligence. Accordingly, it is recommended that the penalty of suspension without pay be meted out on respondent Salalima for five (5) months. (pp. 2-35)

The President then concluded and disposed as follows:

After a careful review of the cases, 1 agree with and adopt the findings and recommendations of the Ad Hoc Committee, supported as they are by the evidence on record.

WHEREFORE, the following penalties are meted out on each of the respondents, to wit:

In OP Case No. 5470 -

a.  Governor Romeo Salalima - suspension without pay for five (5) months:

b.  Vice-Governor Danilo Azaña, Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Clenio Cabredo, Vicente Go, Sr., Jesus Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and Wilbor Rontas - suspension without pay for four (4) months.

In OP Case No. 5469 -

a.  Governor Romeo Salalima and Vice-Governor Danilo Azaña - suspension without pay for six (6) months; and

b.  Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao - suspension without pay for four (4) months;

In OP Case No. 5471 -

a.  Governor Romeo Salalima and Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao – suspension without pay for four (4) months;

In OP Case No. 5450 -

a.  Governor Romeo Salalima - suspension without pay for five (5) months.

The suspension imposed on respondents shall be served successively but shall not exceed their respective unexpired terms, in accordance with the limitation imposed under Section 66(b) of the Local Government Code.

It must at once be pointed out that insofar as O.P. Case No. 5471 is concerned, nothing of its substantive aspect is challenged in this petition. The petitioners mentioned it only in their claim of prematurity of Administrative Order No. 153 in view of their appeal from Special Audit Office (SAO) Report No. 93-11 to the COA en banc. O.P. Case No. 5471 is the administrative complaint filed by Tiwi Mayor Corral against the petitioners for abuse of authority and oppression in connection with their conduct in the several administrative cases filed by certain individuals against Mayor Corral. It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471 stands unchallenged in this petition.

As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by the petitioners may be reformulated in this wise:

I.   Did the Office of the President act with grave abuse of discretion amounting to lack or excess of jurisdiction in suspending the petitioners for periods ranging from twelve to twenty months?

II.  Did the Office of the President commit grave abuse of discretion in deciding O.P. Cases Nos. 5450, 5469, and 5470 despite the pendency of the petitioners’ appeal to the COA en bane from Special Audit Office (SAO) Report No. 93-11 and the Certificate of Settlement and Balances (CSB)?

III. Did the Office of the President commit grave abuse of discretion in holding the petitioners guilty of abuse of authority in denying the Municipality of Tiwi of its rightful share in the P40,724,471.74 which the Province of Albay had received from the NPC under the Memorandum of Agreement?

IV.              Did the Office of the President commit grave abuse of discretion in suspending in O.P. Cases Nos. 5469 and 5450 petitioner Salalima, who was reelected on 11 May 1992, for an alleged administrative offense committed during his first term; and in suspending in O.P. Case No. 5469 the other petitioners, some of whom were elected and others reelected on 11 May 1992, for an alleged administrative offense committed in 1989?

V.  Did the Office of the President commit grave abuse of discretion in holding the petitioners in O.P. Case No. 5469 guilty of grave abuse of authority under Section 60(e) of the Local Government Code of 1991 although they were charged under Section 3(g) of R.A. No. 3019, as amended, and Section 60(d) of the Local Government Code of 1991, thereby depriving them of due process of law?

We shall take up these issues in the order they are presented.

I

Anent the first issue, the petitioners contend that the challenged administrative order deprived them of their respective offices without procedural and substantive due process.  Their suspensions ranging from twelve months to twenty months or for the entire duration of their unexpired term, which was then only seven months, constituted permanent disenfranchisement or removal from office in clear violation of Section 60 of R.A. No. 7160 which mandates that an elective local official may be removed from office by order of the court.

The Comment of the Solicitor General is silent on this issue. However, respondents Mayor Corral and newly appointed provincial officials maintain that the suspension imposed upon the petitioners in each of the four cases was within the limits provided for in Section 66(b) of R.A. No. 7160 and that the aggregate thereof ranging from twelve months to twenty months, but not to exceed the unexpired portion of the petitioners’ term of office, did not change its nature as to amount to removal.

Section 66(b) of R.A. No. 7160 expressly provides:

SEC. 66. Form and Notice of Decision. - x x x

(b)    The penalty of suspension shall not exceed the unexpired term of the respondent or a period of six (6) months for every administrative offense, nor shall said penalty be a bar to the candidacy of the respondent so suspended as long as he meets the qualifications for the office.

This provision sets the limits to the penalty of suspension, viz., it should not exceed six months or the unexpired portion of the term of office of the respondent for every administrative offense. An administrative offense means every act or conduct or omission which amounts to, or constitutes, any of the grounds for disciplinary action. The offenses for which suspension may be imposed are enumerated in Section 60 of the Code, which reads:

SEC. 60. Grounds for Disciplinary Action. - An elective local official may be disciplined, suspended, or removed from office on any of the following grounds:

(a)  Disloyalty to the Republic of the Philippines;

(b)  Culpable violation of the Constitution;

(c)  Dishonesty, oppression, misconduct in office, gross negligence, or dereliction of duty;

(d)  Commission of any offense involving moral turpitude or an offense punishable by at least prision mayor;

(e)  Abuse of authority;

(f)   Unauthorized absence for fifteen (15) consecutive working days, except in the case of members of the sangguniang panialawigan, sangguniang panlungsod, sangguniang bayan, and sangguniang barangay;

(g)  Acquisition for, or acquisition of, foreign citizenship or residence or the status of an immigrant of another country; and

(h)  Such other grounds as may be provided in this Code and other laws.

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.

Assuming then that the findings and conclusions of the Office of the President in each of the subject four administrative cases arc correct, it committed no grave abuse of discretion in imposing the penalty of suspension, although the aggregate thereof exceeded six months

and the unexpired portion of the petitioners’ term of office.  The fact remains that the suspension imposed for each administrative offense did not exceed six months and there was an express provision that the successive service of the suspension should not exceed the unexpired portion of the term of office of the petitioners.  Their term of office expired at noon of 30 June 1995. And this Court is not prepared to rule that the suspension amounted to the petitioners’ removal from office.

II

Petitioners contend that the decisions in OP. Cases Nos. 5450, 5470, and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team, while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial Auditor of Albay. Since the Report and the CSB are on appeal with, and pending resolution by, the Commission on Audit En Banc, they are not yet final, conclusive, and executory as admitted by the team leader of the COA Audit Team that submitted the SAO Report and by the Provincial Auditor who issued the CSB. The petitioners also point out that the COA Chairman had already reversed the recommendation in the SAO Report No. 93- 11 that the Provincial Government of Albay should share with the Municipality of Tiwi the P40,724,471.74 representing payments of the NPC as of December 1992. They then submit that Administrative Order No. 153 suspending all the petitioners is premature in view of the pendency of the appeal to the COA en banc from SAO Report No. 93-11 and the CSB.

This issue of prematurity was raised before the Ad Hoc Committee. In rejecting it, the Committee explained as follows:

It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J) raised by the respondents to COA nierely involve questions of law, i.e., as to whether the Province alone should be entitled to the payments made by NPC under the MOA, and whether the shares of Tiwi and Daraga, the concerned barangays, and the national government, should be held in trust for said beneficiaries.

Considering that the factual findings under SAO Report 93-11 are not disputed, this Committee has treated said factual findings as final or, at the very least, as corroborative evidence.

Respondents’ contention that COA’s factual findings, as contained in SAO Report No. 93-11 cannot be considered in this investigation is untenable.  For no administrative and criminal investigation can proceed, if a respondent is allowed to argue that a particular COA finding is still the subject of an appeal and move that the resolution of such administrative or criminal case be held in abeyance.  This will inevitably cause unnecessary delays in the investigation of administrative and criminal cases since an appeal from a COA finding may be brought all the way up to the Supreme Court.

Besides, the matters raised by the respondents on appeal involve only conclusions/interpretation of law. Surely, investigative bodies, such as COA, the Ombudsman and even this Committee, are empowered to make their own conclusions of law based on a given set of facts.

Finally, sufficient evidence has been adduced in this case apart from the factual findings contained in SAO Report No. 93-11 to enable this Committee to evaluate the merits of the instant complaint.

The alleged appeal from the CSB is unclear from the records, and in light of the foregoing statement of the Ad Hoc Committee it is obvious that such appeal was not raised.

We agree with the Ad Hoc Committee that the pendency of the appeal was no obstacle to the investigation and resolution of the administrative cases.

It may be further stressed that a special audit has a different purpose in line with the constitutional power, authority, and duty of the COA under Section 2, Subdivision D, Article IX of the Constitution “to examine, audit, and settle all accounts pertaining to the revenue and receipts of, and expenditures or uses of funds and property, owned or held in trust by, or pertaining to, the Government, or any of its subdivisions, agencies, or instrumentalities, including government-owned or controlled corporations with original charters” and its “exclusive authority .. . to define the scope of its audit and examination, establish the techniques and methods required therefor, and promulgate accounting and auditing rules and regulations, including those for the prevention and disallowance of irregular, unnecessary, excessive, extravagant, or unconscionable expenditures, or uses of government funds and properties.”

III

As to the third issue, the petitioners aver that the P40,724,471.74 received by the Province of Albay from the NPC represents part of the price paid for properties owned by the province in a corporate capacity and repurchased by the former owner. It constitutes payment of a debt and not of a tax, which debt “arose from and was a consequence of, the Memorandum of Agreement dated July 29, 1992.” They further contend that the Memorandum of Agreement (MOA) partakes of a deed of sale. And nowhere in the Real Property Tax Code (P.D. No. 464) is there any provision requiring provinces to share with the municipalities the proceeds of a private sale. What are required to be shared are only the collections of real property taxes and Special Education Fund (SEF); proceeds of delinquent taxes and penalties, or of the sale of delinquent real property, or of the redemption thereof; and income realized from the use, lease, or disposition of real property seized by the province.

It must be recalled that in August 1992, Governor Sal alima and NPC President, Pablo Malixi, were already agreed that the basic tax due from the NPC was P207,375,774 72. But later, Malixi informed the former that upon recomputation of the real property tax payable to the Province of Albay at the minimum of one-fourth of one percent pursuant to Section 39(1) of the Real Property Tax Code, the NPC came up with an adjusted figure of P 129,609,859.20. Governor Salalima then explained that one percent was applied in the computation for the reconciled figure of P207,375,774.72 because the one-half percent imposed by the respective ordinances of the municipalities where the delinquent properties are located was added to the one-half percent imposed by the tax ordinance of the Province.  His reply reads as follows:

September 9, 1992

Hon. Pablo V. MalixiPresident, National PowerCorporationDiliman, Quezon CityDear President Malixi:

As suggested in your letter of August 31, 1992, we are very pleased to furnish you herewith the certified true copies of the local tax ordinances which served as our basis in imposing the rate of 1% of the reconciled figure of P207,375,774.72, to wit:

(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay, enacting Provincial Tax Ordinance No.4, whose Section I, provides:

“There shall be levied, assessed and collected as annual ad valorem tax on real properties including improvements thereon equivalent to one half of one percent of the assessed value of real property.”

(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi, Albay, whose Section 2 provides:

“That the tax rate of real property shall be one-half of one percent of the assessed value of real property.”

(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga. Albay, whose Section 3 provides:

“Rates of Levy - The tax herein levied is hereby fixed at one-half of one percent (1/2 of 1%) of the assessed value of the real property.”

These tax ordinances were in pursuance to Sec. 39 (1)(3) of P.D. 464, the applicable law during the period 1984 to 1987.  By adding the one half percent imposed in the tax Ordinance of Tiwi to the one ha If percent also imposed in the Provincial Tax Ordinance, we have a total of one percent which we used as the rate of levy in computing the basic tax due on the real properties in Tiwi.

On the real properties in Daraga, we also added the one half percent imposed by the Daraga Tax Ordinance to the one-half percent of the Provincial Tax Ordinance.

The additional tax of one percent for the Special Educational Fund (SEF) was imposed pursuant to Section 41 of P.D. 464, which provides as follows:

“There is hereby imposed annual tax of one percent on real property to accrue to the Special Educational Fund created under Republic Act No. 5447, which shall be in addition to the basic real property tax which local governments are authorized to levy, assess and collect under this Code; x x x”

We hope that the foregoing clarification will settle whatever doubt there is on why we applied 1% for basic tax and another 1% for SEP in arriving at P207,375,774.72. (Italics supplied).

The petitioners even emphasized in the instant petition that “Governor Salalima specifically included the amounts due to the Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations.” In other words, the original claim of P214,845,184.76 or the reconciled figure of P207,375,774.72 representing real property taxes from 11 June 1984 to 10 March 1987 already covered the real property taxes payable to the municipalities concerned.

Hence, when the Province sold at public auction the delinquent properties consisting of buildings, machines, and similar improvements, it was acting not only in its own behalf but also in behalf of the municipalities concerned.  And rightly so, because under Section 60 of P.D. No. 477, the Province, thru the Provincial Treasurer, is duty bound to collect taxes throughout the province, including the national, provincial, and municipal taxes and other revenues authorized by law. Moreover, under Section 73 of the Real Property Tax Code, the provincial or city treasurer is the one authorized to advertise the sale at public auction of the

entire delinquent real property, except real property mentioned in Subsection (a) of Section 40, to satisfy all the taxes and penalties due and costs of sale.  He is also authorized to buy the delinquent real property in the name of the province if there is no bidder or if the highest bid is for an amount not sufficient to pay the taxes, penalties, and costs of sale.

Since in this case, there was no bidder, the provincial treasurer could buy, as he did, the delinquent properties in the name of the province for the amount of taxes, penalties due thereon, and the costs of sale, which included the amounts of taxes due the municipalities concerned.  It is therefore wrong for the petitioners to say that the subject NPC properties are exclusively owned by the Province.  The Municipalities of Tiwi and Daraga may be considered co-owners thereof to the extent of their respective shares in the real property taxes and the penalties thereon.

It must further be noted that it is the provincial treasurer who has charge of the delinquent real property acquired by the province. He is the one whom the delinquent taxpayer or any person holding a lien or claim to the property deal with in case the latter wishes to redeem the property. He is also the one authorized to effect the resale at public auction of the delinquent property. Thus, the municipalities concerned had to depend on him for the effective collection of real property taxes payable to them. Accordingly, when the Province entered into the Memorandum of Agreement with the NPC, it was also acting in behalf of the municipalities concerned. And whatever benefits that might spring from that agreement should also be shared with the latter.

The MOA, contrary to the position of the petitioners, is not an ordinary contract of sale. Hereinbelow is the pertinent portion of that agreement:

WHEREAS, the Supreme Court ruled in the NATIONAL POWER CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987;

WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the PROVINCE OF ALBAY;

WHEREAS, there is a need to further validate/reconcile the computation of the realty tax in the total amount of P2 14,845, 184.76;

NOW, THEREFORE, in view of the foregoing premises and for and in consideration of the mutual covenant and stipulations hereinafter provided, the parties hereto have agreed as follows:

1.  NAPOCOR will make an initial payment of P17,783,000.00 receipt of which is hereby acknowledged.

2.  The balance of the validated/reconciled amount of the real estate taxes will be paid in 24 equal monthly installments, payable within the first five (5) working days of the month. The first monthly installment will commence in September 1992.

3.  Should NAPOCOR default in any monthly installment, the balance will immediately become due and demandable.

4.  NAPOCOR will pay such other taxes and charges, such as the franchise tax as provided for in the Local Government Code of 1991.

5.  In consideration of settlement of NAPOCOR ‘s tax liability, the PROVINCE OF ALBAY hereby waives its claim of ownership over NAPOCOR’ properties subject in G.R. No. 87479 upon full payment of the balance due to the PROVINCE OF ALBAY. (Italics supplied).

The tenor of the abovequoted agreement shows that the intention of the parties was for the redemption of the subject properties in that the Province would waive ownership over the properties “in consideration of settlement of Napocor’s tax liability.”

Under Section 78 of the Real Property Tax Code, the delinquent real property sold at public auction may be redeemed by paying the total amount of taxes and penalties due up to the date of redemption, costs of sale, and the interest at 20% of the purchase price.

The petitioners are estopped from claiming that the amounts received by the Province from the NPC constitute payments of a debt under the MOA or of contract price in a private sale. They constitute redemption price or payments of NPC’s tax liabilities. This is evident from the MOA as well as the entry in the receipt issued by the Province, thru the Provincial Treasurer, which reads:

Date: July 29, 1992Received from National Power Corp.Manila

In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand Pesos Philippine Currency P17,763,000.00.

In payment of the following:

For Partial Payment =             P17,763,000.00of Realty Tax Delinquency of Case No. 87479, NPC

vs. Province of Albay

Total                                            P17,763,000.00

(Sgd.) Abundio M. NuñezProvincial Treasurer

Also worth noting is Provincial Ordinance No. 09-92 adopted by the petitioners which provides: “That the installments paid by said corporation for the months of September to December 1992, representing partial payments of the principal tax due are declared forfeited in favor of the Provincial Government of Albay.”

Moreover, in Resolution No. 197-92, the petitioners referred as “tax benefits” the shares of certain municipalities and barangays from the amount paid by the NPC under the MOA. The resolution reads in part as follows:

WHEREAS, by virtue of the Memorandum Agreement, signed by the petitioner, Province of Albay and respondent-oppositor, National Power Corporation (NPC), the latter have agreed and paid an initial payment to the Province of Albay;

WHEREAS, the sharing based on the Local Government Code of 1991, the municipalities of Malinao and Ligao are entitled to their shares of P1,435.00 and P4,4 16.82 respectively and the barangays Bay in Lingao (sic) to P319.00 and Tagoytoy in Malinao to P98 1.00;

WHEREAS, these tax benefits due them are not enough to pursue a worthwhile project in said municipalities and barangays considering the present economic situation. (Italics supplied)

As pointed out by the respondents, if the MOA was merely for the repurchase by NPC of its properties from Albay, what could have been executed was a simple deed of absolute sale in favor of NPC at an agreed price not necessarily P214 million which was the total amount of the realty tax in arrears Additionally, there would have been no need for the parties “to further validate/reconcile the tax computation of the realty tax in the total amount of P214,845,184 76”

Clearly, the P40,724,471 74 paid by the NPC to the Province pursuant to the MOA was part of the redemption price or of the realty taxes in arrears.

It is conceded that under Section 78 of the Real Property Tax Code, redemption of delinquency property must be made within one year from the date of registration of sale of the property The auction sale of the NPC properties was held on 30 March 1989 and declared valid by this Court in its 4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to repurchase its former properties by paying its tax liabilities.  When the Province accepted the offer, it virtually waived the one-year redemption period.  And having thus allowed the NPC to redeem the subject properties and having received part of the redemption price, the Province should have shared with the municipalities concerned those amounts paid by the NPC in the same manner and proportion as if the taxes had been paid in regular course conformably with Section 87(c) of the Real Property Tax Code, which provides:

(c)  the proceeds of all delinquent taxes and penalties, as well as the income realized from the use, lease or other disposition of real property acquired by the province or city at a public auction in accordance with the provisions of this Code, and the proceeds of the sale of the delinquent real property or of the redemption thereof shall accrue to the province, city or municipality in the same proportion as if the tax or taxes had been paid in regular course.

As early as 3 August 1992, respondent Mayor Corral had already made a written demand for payment or remittance of the shares accruing to the Municipality of Tiwi. Petitioner Governor Salalima refused saying that the initial check of P 17,763,000.00 was merely an “earnest money.” Yet, on 22 October 1992, the petitioners passed the aforequoted Resolution No. 197-92 giving some local government units, where smaller portions of the delinquent properties are situated, shares from the payments made by the NPC under the MOA.

The petitioners cannot claim to have acted in good faith in refusing to give the municipalities of Tiwi and Daraga their share.  As pointed out by the Office of the Solicitor General, the petitioners were aware of the local tax ordinances passed by the respective Sanggunian Bayan of Tiwi and Daraga relative to the realty tax to be imposed on properties located in their respective localities.  Petitioner Salalima had even quoted the said ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to that letter. Significantly, the petitioners averred in the instant petition that “Governor Salalima specifically included the amounts due to the municipalities of Tiwi and Daraga in asking NPC to settle its obligations.”

When doubt arose as to whether the municipalities concerned are entitled to share in the amounts paid by the NPC, the province filed on 20 November 1992 a petition for declaratory relief, which the Regional Trial Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992, the province had already disbursed or spent a large part of the NPC payments. As found by COA, “of the P40,724,471.74 actually paid by the NPC and lodged in the province’s general fund, P35,803,118.30 was disbursed or spent by the Province.”

If petitioners were really in good faith, they should have held the shares of Tiwi and Daraga in trust pursuant to Section 309(b) of the Local Government Code of 1991, which provides:

Trust funds shall consist of private and public monies which have officially come into the possession of the local government or of a local government official as trustee, agent or administrator ...A trust fund shall only be used for the specific purpose for which it came into the possession of the local government unit.

As pointed out by the Ad Hoc Committee in its report, which was adopted by the Office of the President:

It is unmistakable from the foregoing provisions that the shares of Tiwi, Daraga, the concerned barangays and the national government in the payments made by NPC under the MOA, should be, as they are in fact, trust funds. As such, the Province should have, upon receipt of said payments, segregated and lodged in special accounts, the respective shares of Tiwi, Daraga, the concerned barangays and the national government for eventual remittance to said beneficiaries. Said shares cannot be lodged in, nor remain part of, the Province’s general fund. Moreover, the Province cannot utilize said amounts for its own benefit or account (see also Sec. 86, P.D. No. 464, as amended).

Therefore, the balance of P26,979,962.52 representing the collective shares of Tiwi and Daraga, the concerned barangays and the national government, cannot be appropriated nor disbursed by the Province for the payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the P40,724,471.74 NPC payments as ‘surplus adjustment’ (Account 7-92-419) and lodged the same in its general fund. No trust liability accounts were created in favor of the rightful beneficiaries thereof as required by law.

We cannot therefore fault the public respondents with grave abuse of discretion in holding the petitioners guilty of abuse of authority for failure to share with the municipalities of Tiwi and Daiaga the amount of P40,724,471.74 paid by the NPC.

IV

We agree with the petitioners that Governor Salalima could no longer be held administratively liable in O.P. Case No. 5450 in connection with the negotiated contract entered into on 6 March 1992 with RYU Construction for additional rehabilitation work at the Tabaco Public Market.  Nor could the petitioners be held administratively liable in O.P. Case No. 5469 for the execution in November 1989 of the retainer contract with Atty. Jesus Cornago and the Cortes and Reyna Law Firm. This is so because public officials cannot be subject to disciplinary action for administrative misconduct committed during a prior term, as held in Pascual vs. Provincial Board of Nueva Ecija and Aguinaldo vs. Santos. In Pascual, this Court ruled:

We now come to one main issue of the controversy - the legality of disciplining an elective municipal official for a wrongful act committed by him during his immediately preceding term of office.

In the absence of any precedent in this jurisdiction, we have resorted to American authorities. We found that cases on the matter are conflicting due in part, probably, to differences in statutes and constitutional provisions, and also, in part, to a divergence of views with respect to the question of whether the subsequent election or appointment condones the prior misconduct.  The weight of authority, however, seems to incline to the rule denying the right to remove one from office because of misconduct during a prior term, to which we fully subscribe.

Offenses committed, or acts done, during previous term are generally held not to furnish cause for removal and this is especially true where the constitution provides that the penalty in proceedings for removal shall not extend beyond the removal from office, and disqualification from holding office for the term for which the officer was elected or appointed. (67 C.J.S. p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40 S.W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of Com’rs. of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).

The underlying theory is that each term is separate from other terms, and that the reelection to office operates as a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor (43 Am. Jur. P. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So. 559, 50 L.R.A. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332, cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553 –

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

This Court reiterated this rule in Aguinaldo and explicitly stated therein:

Clearly then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since his re-election to office operates a condonation of the officer’s previous misconduct to the extent of cutting off the right to remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he may have committed during the failed coup.

However, the Office of the Solicitor General maintains that Aguinaldo does not apply because the case against the official therein was already pending when he filed his certificate of candidacy for his reelection bid.  It is of the view that an official’s reelection renders moot and academic an administrative complaint against him for acts done during his previous term only if the complaint was filed before his reelection. The fine distinction does not impress us.  The rule makes no distinction.  As a matter of fact, in Pascual the administrative complaint against Pascual for acts committed during his first term as Mayor of San Jose, Nueva Ecija, was filed only a year after he was reelected.

The rule adopted in Pascual, qualified inAguinaldo insofar as criminal cases are concerned, is still a good law.  Such a rule is not only founded on the theory that an official’s reelection expresses the sovereign will of the electorate to forgive or condone any act or omission

constituting a ground for administrative discipline which was committed during his previous term.  We may add that sound public policy dictates it.  To rule otherwise would open the floodgates to exacerbating endless partisan contests between the reelected official and his political enemies, who may not stop to hound the former during his new term with administrative cases for acts, alleged to have been committed during his previous term.  His second term may thus be devoted to defending himself in the said cases to the detriment of public service.  This doctrine of forgiveness or condonation cannot, however, apply to criminal acts which the reelected official may have committed during his previous term.

We thus rule that any administrative liability which petitioner Salalima might have incurred in the execution of the retainer contract in O.P. Case No. 5469 and the incidents related therewith and in the execution on 6 March 1992 of a contract for additional repair and rehabilitation works for the Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his reelection in the 11 May 1992 synchronized elections.  So are the liabilities, if any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who signed Resolution No. 129 authorizing petitioner Salalima to enter into the retainer contract in question and who were reelected in the 1992 elections. This is, however, without prejudice to the institution of appropriate civil and criminal cases as may be warranted by the attendant circumstances. As to petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became members of the Sangguniang Panlalawigan only after their election in 1992, they could not be held administratively liable in O.P. Case No. 5469, for they had nothing to do with the said resolution which was adopted in April 1989 yet.

Having thus held that the petitioners could no longer be administratively liable in O.P. Case No. 5469, we find it unnecessary to delve into, and pass upon, the fifth issue.

WHEREFORE, the instant special action for certiorari is hereby partly GRANTED.  That part of the challenged Administrative Order No. 153 imposing the penalty of suspension on petitioner Governor Romeo Salalima in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo Azaña and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are hereby ANNULLED and SET ASIDE, without prejudice to the filing of appropriate civil or criminal actions against them if warranted by the attendant circumstances.

No pronouncement as to costs.

SO ORDERED.

Narvasa, C.J., Padilla, Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Hermosisima, Jr., Panganiban, and Torres, Jr., JJ., concur.

Regalado, J., took no part. Related to one counsel in G.R. No. 87479 which is involved in this case.

See also Article 131, Rules and Regulations Implementing the Local Government Code of 1991.

Section 2, Article XVIII, 1987 Constitution; Section 43, Local Government Code of 1991.

The Office of the President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as expressly provided for in the last paragraph of the aforequoted Section 60. Parenthetically, it may be observed that Article

125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991 grants to the disciplining authority the power to remove an elective local official. Paragraph (b) of the said Article provides as follows:

(b) An elective local official may he removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds enumerated in Section 60, The Local Government Code of 1991] by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. (Italics supplied)

This grant to the “disciplining authority” of the power to remove elective local officials is clearly beyond the authority of the Oversight Committee that prepared the Rules and Regulations. It is settled that no rule or regulation may alter, amend, or contravene a provision of law, like the Local Government Code. Implementing rules should conform, not clash, with the law that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. (Regidor vs. Chiongbian, 173 SCRA 507 [1989]. See also Teoxol vs. Members of the Board of Administrators, PVA, 33 SCRA 585 [1970]; Manuel vs. General Auditing Office, 42 SCRA 660 [1971]). No less than then principal author of the Local Government Code of 1991, Senator Aquilino Q. Pimentel, Jr., expresses doubts on the validity of this power of removal on the part of the disciplining authority which the Oversight Committee inserted in the Rules and Regulations. (AQUILINO Q. PIMENTEL, JR., The Local Government Code of 1991, The Key to National Development 171 [1993 ed.]).

The law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, fOr involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should not he permitted to manipulate the law by usurping the power to remove by arbitrarily exercising the power to suspend in a manner that results in the removal of an elected official from office. As we aptly stated in Lacson vs. Roque (92 Phil. 456, 464 [1953]):

[T]he abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must have been weighed against the injustices and harms to the public interests which would be likely to emerge from an unrestrained discretionary power to suspend and remove.

The rationale against indefinite preventive suspension decreed in Layno vs. Sandiganbayan (136 SCRA 536 [1985]) and in Ganzon vs. Court of Appeals (200 SCRA 271 [1991]) may equally apply to the imposition of suspension us a penalty and must guide the action of disciplining authorities in imposing the penalty of suspension on elective local officials.

See Caltex vs. Commission on Audit, 208 SCRA 726 [1992]

70 O.G. No.26 [1 July 1974], 5272-5313.

Annexes “N” and “O” of Petition; Rollo, 147-148.

Annex “P,” id.; id., 149.

Annex “Q” of Petition; Rollo, 151-152.

Section 75, Real Property Tax Code.

Section 81, Id.

Section 78, Id.

Section 81, Real Property Tax Code.

Annex “K” of Petition; Rollo, 143-144.

Annex “5” of Respondents’ Comment; Rollo, 325.

Annex “10” of Respondents’ Comment, Rollo, 328.

Fortunately, the Municipalities of Tiwi and Daraga and the National Government eventually received their respective shares, which were paid directly to them by the NPC pursuant to the directive of the Office of the President issued after the NPC requested clarification regarding the right of the municipalities concerned to share in the realty tax delinquencies. But this fact does not detract from the administrative liability of the petitioners. Notably, when the NPC advised the Province of Albay on 9 December 1992 that starting with the January 1993 installment it would pay directly to the Municipality of Tiwi by applying the sharing scheme provided by law, the petitioners passed on 19 December 1992 an ordinance declaring as forfeited in favor of the Province all the payments made by the NPC under the MOA and authorizing the sale of the NPC properties at public auction. This actuation of the petitioners reveals all the more their intention to deprive the municipalities concerned of their shares in the NPC payments.

106 Phil. 466 [1959].

212 SCRA 768 [1992].

8. Moreno v. ComelecEN BANC[G.R. No. 168550. August 10, 2006.]URBANO M. MORENO, petitioner, vs. COMMISSION ON ELECTIONS and NORMA L. MEJES, respondents.

Municipal Corporations; Local Government Code; Disqualification of Candidates for Local Elective Positions; Words and Phrases; The phrase “within two (2) years after serving sentence” should be interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment-the placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.-We should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue being whether Moreno's sentence was in fact served. In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two (2) years after serving sentence" should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.

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

Same; It would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms. - We note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where he said that "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms.

D E C I S I O N

TINGA, J p:In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution 2 of the Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the elective office of Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections. TAIESDThe following are the undisputed facts:Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998.Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following the case of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay.The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc, the Resolution of the First Division was affirmed. According to the Comelec en banc, Sec. 40(a) of the Local Government Code provides that those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence, are disqualified from running for any elective local position. 5 Since Moreno was released from probation on December 20, 2000, disqualification shall commence on this date and end two (2) years thence. The grant of probation to Moreno merely suspended the execution of his sentence but did not affect his disqualification from running for an elective local office. EIAScHFurther, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and disqualifications of elective local officials.In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct.In its Comment 6 dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court in Dela Torre v. Comelec 7 definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains totally unaffected notwithstanding the grant of probation.Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating his arguments and pointing out material differences between his case and Dela Torre v. Comelec which allegedly warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law, an offense involving moral

turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after appealing his conviction, such that he could not have been eligible for probation under the law. DcHaETIn contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him.The resolution of the present controversy depends on the application of the phrase "within two (2) years after serving sentence" found in Sec. 40(a) of the Local Government Code, which reads:Sec. 40. Disqualifications. — The following persons are disqualified from running for any elective local position:(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence; [Emphasis supplied.]xxx xxx xxxWe should mention at this juncture that there is no need to rule on whether Arbitrary Detention, the crime of which Moreno was convicted by final judgment, involves moral turpitude falling under the first part of the above-quoted provision. The question of whether Arbitrary Detention is a crime involving moral turpitude was never raised in the petition for disqualification because the ground relied upon by Mejes, and which the Comelec used in its assailed resolutions, is his alleged disqualification from running for a local elective office within two (2) years from his discharge from probation after having been convicted by final judgment for an offense punishable by Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months. Besides, a determination that the crime of Arbitrary Detention involves moral turpitude is not decisive of this case, the crucial issue being whether Moreno's sentence was in fact served. aDcETCIn this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing of which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase "within two (2) years after serving sentence" should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The placing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code.The Court's declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be considered an obiter in view of the fact that Dela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation, but did so only after failing in his appeal. 9 Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase "service of sentence," understood in its general and common sense, means the confinement of a convicted person in a penal facility for the period adjudged by the court. 10 This seemingly clear and unambiguous provision, however, has spawned a controversy worthy of this Court's attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence because they were granted probation. EHIcaTMoreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having been granted probation and finally discharged by the trial court.

In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follow a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period 11 imposed upon Moreno were similarly suspended upon the grant of probation.It appears then that during the period of probation, the probationer is not even disqualified from running for a public office because the accessory penalty of suspension from public office is put on hold for the duration of the probation.Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, 12 the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order. 13 It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Moreno's judgment of conviction attained finality upon his application for probation instead of the question of whether his sentence had been served. HDTcEIThe Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence.This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation which, we reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2)-year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run.The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides that "[t]he final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted." Thus, when Moreno was finally discharged upon the court's finding that he has fulfilled the terms and conditions of his probation, his case was deemed terminated and all civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office.Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation, 14 our conclusion will remain the same.It is unfortunate that the deliberations on the Local Government Code afford us no clue as to the intended meaning of the phrase "service of sentence," i.e., whether the legislature also meant to disqualify those who have been granted probation. The Court's function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government Code. Interpretare et concordare legis legibus est optimus interpretandi. ATHCacProbation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was convicted. 15 Thus, the Probation Law lays out rather stringent standards regarding who are qualified for probation. For instance, it provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than six

(6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable. 16 It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification.Further, it should be mentioned that the present Local Government Code was enacted in 1991, some seven (7) years after Baclayon v. Mutia was decided. When the legislature approved the enumerated disqualifications under Sec. 40(a) of the Local Government Code, it is presumed to have knowledge of our ruling in Baclayon v. Mutia on the effect of probation on the disqualification from holding public office. That it chose not to include probationers within the purview of the provision is a clear expression of the legislative will not to disqualify probationers. CDAcIT

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

In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno, the Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to run for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang Kabataan Elections.Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief Justice Artemio Panganiban in Frivaldo v. Comelec 18 where he said that "it would be far better to err in favor of popular sovereignty than to be right in complex but little understood legalisms."WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs. cCAIDSSO ORDERED.Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Chico-Nazario, Garcia and Velasco, Jr., JJ., concur.Footnotes 1. Rollo, pp. 3-19. 2. Id. at 20-26; Penned by Commissioner F.A. Tuason, Jr. 3. Id. at 27-31; Penned by Commissioner R.Z. Borra. 4. No. L-59298, April 30, 1984, 129 SCRA 148. 5. Comelec Resolution No. 4801, otherwise known as the "Guidelines on the Filing of Certificates of Candidacy in Connection with the Synchronized Barangay and Sangguniang Kabataan Elections," has a similar provision in Sec. 3(a) thereof.

6. Rollo, pp. 37-47. 7. 327 Phil. 1144 (1996). 8. Rollo, pp. 60-70. 9. Lagrosa v. People, G.R. No. 152044, July 3, 2003, 405 SCRA 357.10. Art. 86 of the Revised Penal Code provides that the penalties of reclusion perpetua, reclusion temporal, prision mayor, prision correccional and arresto mayor, shall be executed and served in the places and penal establishments provided by the Administrative Code in force or which may be provided by law in the future.11. REVISED PENAL CODE, Art. 43.12. Presidential Decree No. 968 (1976), as amended, Probation Law of 1976. Sec. 14. The period of probation of a defendant sentenced to a term of imprisonment of not more than one (1) year shall not exceed two (2) years, and in all other cases, said period shall not exceed six (6) years.13. Presidential Decree No. 968 (1976), as amended, Probation Law of 1976. Sec. 10.14. Abello v. Commissioner of Internal Revenue, G.R. No. 120721, February 23, 2005, 452 SCRA 162.15. Santos v. Court of Appeals, 377 Phil. 642, 652 (1999).16. Presidential Decree No. 968, as amended, Probation Law of 1976, Sec. 9.17. Commissioner of Internal Revenue v. Central Luzon Drug Corporation, G.R. No. 159647, April 15, 2005, 456 SCRA 414.18. 327 Phil. 521 (1996).

9. Laceda v. LimenaEN BANC

 

ROBERTO LACEDA, SR.,

                                  Petitioner,

 

 

 

 

 

 

 

 

- versus -

 

 

 

 

 

 

 

 

 

 

RANDY L. LIMENA and COMMISSION ON ELECTIONS,

      G.R. No. 182867

 

      Present:

 

      PUNO, C.J.,

      QUISUMBING,

       YNARES-SANTIAGO,*

      CARPIO,

      AUSTRIA-MARTINEZ,

      CORONA,

      CARPIO MORALES,

      AZCUNA,

      TINGA,

      CHICO-NAZARIO,

      VELASCO, JR.,

      NACHURA,

      REYES,

LEONARDO-DE CASTRO, and

BRION, JJ.

 

Promulgated:

 

November 25, 2008

                        Respondents.

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

RESOLUTION

 

QUISUMBING, J.:

 

From this Court’s June 10, 2008 Resolution dismissing his petition for certiorari,

petitioner Roberto Laceda, Sr. filed the instant motion for reconsideration, insisting that the

Commission on Elections (COMELEC) committed grave abuse of discretion in issuing the

Resolutions dated January 15, 2008 and May 7, 2008 in SPA No. 07-028 (BRGY).

The facts are as follows:

Petitioner Roberto Laceda, Sr., and private respondent Randy L. Limena were

candidates for Punong Barangay of Barangay Panlayaan, West District, Sorsogon City, during

the October 29, 2007 Barangay and Sangguniang Kabataan Elections.  On October 23, 2007,

Limena filed a petition for disqualification and/or declaration as an ineligible candidate

against Laceda before the COMELEC, contending that Laceda had already served as Punong

Barangay for Brgy. Panlayaan for three consecutive terms since 1994, and was thus

prohibited from running for the fourth time under Section 2 of Republic Act No. 9164 which

provides:

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) years.

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 for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.

Limena likewise attached the following certification from the Department of the

Interior and Local Government:

THIS IS TO CERTIFY that per records in this office HON. ROBERTO LACEDA, SR., incumbent Punong Barangay of Panlayaan, West District,

Sorsogon City.  …was elected as Punong Barangay during the May 9, 1994, May 12, 1997 and July 15, 2002 Barangay Elections.  He resigned from office on March 20, 1995 to run as Municipal Councilor.  Hence, he is covered by the three-term rule of paragraph 2, Section 2 of RA 9164 which provides that: “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 [for] any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected.”

 x x x x

In his Answer, Laceda admitted having served as Punong Barangay of Panlayaan for

three consecutive terms.  However, he asserted that when he was elected for his first two

terms, Sorsogon was still a municipality, and that when he served his third term, the

Municipality of Sorsogon had already been merged with the Municipality of Bacon to form a

new political unit, the City of Sorsogon, pursuant to Republic Act No. 8806.  Thus, he argued

that his third term was actually just his first in the new political unit and that he was

accordingly entitled to run for two more terms.

Laceda likewise argued that assuming he had already served three consecutive

terms, Rep. Act No. 9164 which imposes the three-term limit, cannot be made to apply to

him as it would violate his vested right to office.  He alleged that when he was elected in

1994 the prohibition did not exist.  Had he known that there will be a law preventing him to

run for the fourth time, he would not have run for office in 1994 as he was looking forward to

the election in 2007.

On January 15, 2008, the COMELEC declared Laceda disqualified and cancelled his

certificate of candidacy:

          WHEREFORE, this Commission RESOLVED, as it hereby RESOLVED, to declare Respondent Roberto Laceda, Sr. DISQUALIFIED from running as Punong Barangay of Panlayaan, West District, Sorsogon City and consequently denies due course and cancels his Certificate of Candidacy.

            SO ORDERED.

Laceda moved for reconsideration, but his motion was denied by the COMELEC in a

Resolution dated May 7, 2008.  Aggrieved, Laceda filed a petition for certiorari before this

Court.

On June 10, 2008, this Court dismissed the petition for failure to sufficiently show that

any grave abuse of discretion was committed by the COMELEC in rendering the assailed

Resolutions of January 15, 2008 and May 7, 2008.  Hence, this motion for reconsideration.

Laceda insists that the COMELEC committed grave abuse of discretion in basing its

decision on the requisites enunciated in Lonzanida v. Commission on Elections for the

application of the three-term prohibition in Section 43 of the Local Government Code. 

Laceda argues that said case is inapplicable since it involved the position of municipal

mayor while the instant case concerned the position of Punong Barangay.  He likewise

insists that he served his third term in a new political unit and therefore he should not be

deemed already to have served a third term as Punong Barangay for purposes of applying

the three-term limit.

For reasons hereafter discussed, the motion for reconsideration cannot prosper.

Section 2 of Rep. Act No. 9164, like Section 43 of the Local Government Code from which

it was taken, is primarily intended to broaden the choices of the electorate of the candidates

who will run for office, and to infuse new blood in the political arena by disqualifying officials

from running for the same office after a term of nine years.  This Court has held that for the

prohibition to apply, two requisites must concur:  (1) that the official concerned has been

elected for three consecutive terms in the same local government post and (2) that he or she

has fully served three consecutive terms.

In this case, while it is true that under Rep. Act No. 8806 the municipalities of Sorsogon

and Bacon were merged and converted into a city thereby abolishing the former and creating

Sorsogon City as a new political unit, it cannot be said that for the purpose of applying the

prohibition in Section 2 of Rep. Act No. 9164, the office of Punong Barangay of Barangay

Panlayaan, Municipality of Sorsogon, would now be construed as a different local government

post  as that of the office of Punong Barangay of Barangay Panlayaan, Sorsogon City.  The

territorial jurisdiction of Barangay Panlayaan, Sorsogon City, is the same as before the

conversion.  Consequently, the inhabitants of the barangay are the same.  They are the same

group of voters who elected Laceda to be their Punong Barangay for three consecutive terms

and over whom Laceda held power and authority as their Punong Barangay.  Moreover, Rep.

Act No. 8806 did not interrupt Laceda’s term.

In Latasa v. Commission on Elections, which involved a similar question, this Court held

that where a person has been elected for three consecutive terms as a municipal mayor and

prior to the end or termination of such three-year term the municipality has been converted

by law into a city, without the city charter interrupting his term until the end of the three-year

term, the prohibition applies to prevent him from running for the fourth time as city mayor

thereof, there being no break in the continuity of the terms.

Thus, conformably with the democratic intent of Rep. Act No. 9164 and this Court’s

ruling in Latasa v. Commission on Elections, we hold that the prohibition in Section 2 of said

statute applies to Laceda.  The COMELEC did not err nor commit any abuse of discretion

when it declared him disqualified and cancelled his certificate of candidacy.

WHEREFORE, petitioner Roberto Laceda, Sr.’s Motion for Reconsideration dated July

25, 2008 assailing this Court’s Resolution dated June 10, 2008 is DENIED with FINALITY.

SO ORDERED.

 

                                                          LEONARDO A. QUISUMBING

                                                                       Associate Justice

 

WE CONCUR:

  

 

REYNATO S. PUNO

Chief Justice

 

 

 

(On leave)

CONSUELO YNARES-SANTIAGOAssociate Justice

  

 

 

ANTONIO T. CARPIOAssociate Justice

   

 

 

 

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

 

 

 

RENATO C. CORONAAssociate Justice

 

 

 

 

CONCHITA CARPIO MORALESAssociate Justice

 

 

 

 

ADOLFO S. AZCUNAAssociate Justice

 

 

 

 

DANTE O. TINGAAssociate Justice

 

 

 

 

MINITA V. CHICO-NAZARIO

Associate Justice 

 

 

 

 

PRESBITERO J. VELASCO, JR.

Associate Justice

 

 

 

 

 

ANTONIO EDUARDO B. NACHURA

Associate Justice 

 

 

 

 

 

 

RUBEN T. REYESAssociate Justice

 

TERESITA J. LEONARDO-DE CASTRO

Associate Justice

 

 

 

 

ARTURO D. BRION

Associate Justice

C E R T I F I C A T I O N

 

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Resolution had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

 

REYNATO S. PUNO

                                                                                          Chief Justice

 

*       On leave.

      Rollo, p. 63.

      Id. at 70-73.  Dated July 25, 2008.

      Id. at 25-30.

      Id. at 56-62.

      Id. at 14-17.

      AN ACT PROVIDING FOR SYNCHRONIZED BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS, AMENDING REPUBLIC ACT NO. 7160, AS AMENDED, OTHERWISE KNOWN AS THE “LOCAL GOVERNMENT CODE OF 1991,” AND FOR OTHER PURPOSES, approved on March 19, 2002.             

      Rollo, p. 18.

      Id. at 20-23.

      AN ACT CREATING THE CITY OF SORSOGON BY MERGING THE MUNICIPALITIES OF BACON AND SORSOGON IN THE PROVINCE OF SORSOGON AND APPROPRIATING FUNDS THEREFOR, approved on August 16, 2000.

    Rollo, p. 21.

    Id. at 29.

    G.R. No. 135150, July 28, 1999, 311 SCRA 602.

    SECTION. 43. Term of Office. — …

                (b) No local elective official shall serve for more than three (3) consecutive terms in the same position.  Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

                x x x x

    Republic Act No. 7160, also known as Local Government Code of 1991, approved on October 10, 1991.

    Rollo, pp. 71-72.

    Lonzanida v. Commission on Elections, supra at 611.

    G.R. No. 154829, December 10, 2003, 417 SCRA 601.

    Rollo, pp. 64-68.

10. Fermo v. Comelec

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 140179 March 13, 2000

ROQUE FERMO, petitioner, vs.COMMISSION ON ELECTIONS and MANUEL D. LAXINA SR., respondents.

 

GONZAGA-REYES, J.:

Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order or a writ of preliminary injunction) assailing the Resolution 1 of the Commission on Elections (COMELEC) 2 in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE FERMO and Hon. AMANTE T. BANDAYREL" which annulled the order of the Metropolitan Trial Court (MTC) of Quezon City, Branch 40 granting petitioner Roque Fermo's (FERMO) motion for execution pending appeal.

The factual antecedents of this case are as follows:

Manuel Laxina, Sr. and Roque Fermo were both candidates for the position of Punong Barangay, Barangay Batasan Hills, District II, Quezon City, during the May 12, 1997 elections. The canvassed results showed Laxina obtaining 1,957 votes and Fermo getting 1,712 votes. With a plurality of 245 votes, Laxina was proclaimed duly elected to the post. Subsequently, Fermo filed an election protest questioning the results in four (4) clustered precincts of Capitol Bliss and twenty four (24) COA precincts on the ground that the elections therein was attended by massive fraud and serious irregularities.

Summoned to answer, protestee Laxina filed his responsive pleading denying protestant's allegations of anomalies and interposed the defense that the "conduct of the elections in Barangay Batasan Hills, District II, Quezon City, from the special registration of voters, the campaign as well as the voting and all the way to and until the counting, canvassing and tallying of votes and the proclamation of the winning candidates during the recent barangay elections has been generally honest, orderly and peaceful, with the result of the elections being truly reflective of the will of the electorate in the said barangay."

Protestee then moved for the dismissal of the case on the ground that the same was filed beyond the ten day period allowed by law. The Court ruled that the case was seasonably filed, dismissed the motion to dismiss and ordered a judicial recount. For the purpose, a revision

committee was constituted. After all the proceedings were terminated, the Court a quo rendered its decision holding that Fermo won the contested post. The Court's decision was promulgated on January 8, 1999. On the same date, Laxina filed a Notice of Appeal manifesting his intent to elevate the case to the Commission on Elections.

On January 12, 1999, Roque Fermo filed a Motion for Execution pending Appeal grounded on the following averments:

That a decision was promulgated by the Honorable Court on January 8, 1999 whereby the protestant Roque Fermo was declared the winner in the May 12, 1997 Barangay Election in Batasan Hills, District II by a plurality of ONE HUNDRED THIRTY FOUR (134) votes over protestee, Manuel Laxina;

That there is good and special reason for the issuance of a Writ of Execution Pending Appeal, i.e., the possibility that the term of the contested seat might have expired already long before the appeal has been decided;

On January 19, 1999, Laxina opposed the motion maintaining that the Court had lost jurisdiction over the case because of the perfection of the appeal.

On January 20, 1999, the Court issued an Order granting execution pending appeal, the pertinent part of which reads:

The Court is clothed with discretionary power to execute judgment pending appeal upon good reasons. The good reasons mentioned in protestant's Motion for Execution Pending Appeal is the possibility that the term of the contested seat of Barangay Captainship in Barangay Batasan Hills, Quezon City might have expired long before the appeal has been decided, considering also that the term of the contested office had past almost midway of the whole term. To do otherwise would not serve the end of justice. 3

Not satisfied with the decision of the MTC, respondent Manuel D. Laxina (LAXINA) appealed to the COMELEC, which reversed the order of the MTC granting herein petitioner's motion for execution pending appeal. In reversing the MTC, the COMELEC found that the possibility that the term of the contested seat might expire by the time the appeal is decided was not a "good reason" to warrant execution pending appeal.

Hence this petition with prayer for the issuance of a temporary restraining order or a writ of preliminary injunction where petitioner assigns the following errors:

RESPONDENT COMELEC ACTED WITHOUT OR INEXCESS OF JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION —

A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS MOTION FOR EXECUTION PENDING APPEAL, i.e., SHORTNESS OF TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS "GOOD REASONS" TO WARRANT EXECUTION PENDING APPEAL.

B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC GRANTING THE MOTION FOR EXECUTION PENDING APPEAL ON THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF DISCRETION.

C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM FURTHER PERFORMING THE FUNCTIONS OF PUNONG BARANGAY AND TO RELINQUISH THE SAME TO PRIVATE RESPONDENT PENDING FINAL RESOLUTION OF THE LATTER'S APPEAL, IN EFFECT, GRANTING EXECUTION PENDING APPEAL IN FAVOR OF PRIVATE RESPONDENT WITHOUT ANY MOTION THEREFOR. 4

In support of his petition, FERMO maintains that the COMELEC acted with grave abuse of discretion in ruling that the possibility that the term of the contested seat might expire long before the appeal is decided is not a good reason to warrant execution pending appeal. FERMO's theory is that such reason taken together with the finding of the MTC that the election was tainted with fraud and irregularities is sufficient reason to grant execution pending appeal. He further argues that even assuming the COMELEC did not err in annulling the order of execution, the COMELEC should not have ordered him to relinquish the position as this is tantamount to granting execution pending appeal in favor of LAXINA who did not file any such motion for that purpose nor cite any "good reasons" therefor. Moreover, the order of COMELEC in effect prejudged the pending appeal of FERMO considering that it ordered LAXINA to discharge the functions of Punong Barangay pending the resolution of the appeal.

On the other hand, private respondent LAXINA agrees with the COMELEC's conclusion that the "shortness of term" is not "good reason" to justify execution pending appeal. He argues that petitioner's allegations are mere conjectures unsupported by any factual or legal basis.

Public respondent COMELEC contends that since the term of Barangay officials was extended to five (5) years or until 2002, the reliance of the petitioner on the "shortness of term" to justify execution pending appeal is not justified. Moreover, the decision of the MTC "contains questionable rulings which casts doubt on its validity." It was not clearly established that petitioner in fact won. 5

The issue to be resolved in this petition is whether the COMELEC acted with grave abuse of discretion amounting to lack of or excess of jurisdiction in annulling the order of the MTC granting herein petitioner's motion for execution pending appeal on the ground that there were no "good reasons" for the issuance therefor.

We rule in the negative.

Execution of judgments pending appeal in election cases is governed by Section 2, Rule 39 6 of the Rules of Court which reads:

Sec. 2. Discretionary execution. —

(a) Execution of a judgment or final order pending appeal. — On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment or final order even before the expiration of the period to appeal.

After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing.

A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that the election contest has been pending (emphasis supplied). 7 In Lauban vs. COMELEC 8, this Court ruled that "shortness of the remaining term of office and posting a bond are not good reasons for execution of a judgment pending appeal . . ." . 9

In the present case, the petitioner relies solely on one ground to support his petition i.e. "shortness of term". We find that the COMELEC committed no reversible error in ruling that:

"Shortness of term", alone and by itself cannot justify premature execution. It must be manifest in the decision sought to be executed that the defeat of the protestee and the victory of the protestant has been clearly established. 10

Moreover, Republic Act No. 8524, 11 which took effect in 1998, has extended the term of office of barangay officials to five (5) years, and this negates, or removes the factual basis for the finding of the MTC that the term of the contested office "had past almost midway of the whole term." COMELEC Chairman Harriet Demetriou correctly points out in her SEPARATE CONCURRING OPINION 12 that:

Obviously, the court a quo erroneously assumed that the term of the barangay captains is only for three (3) years. Hence, the conclusion that the term of the contested office is almost in its midway. This, too, has no leg to stand on.

It shall be worth stressing that Republic Act No. 8524 which took effect sometime in 1998 extended the term of office of barangay officials to five (5) years. Thus, it provides:

Sec. 1. Section 43 of Republic Act No. 1760, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows:

Sec. 43. Term of Office. — . . . . . . .

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 . . . . . . .

Sec. 2. The provisions of this Act shall apply to the incumbent barangay officials . . . . . . . .

Perfunctorily, the term of the contested office will expire in the year 2002 or more or less, three years from now. 13

Petitioner's argument that COMELEC's nullification of the MTC order does not imply that LAXINA is entitled to discharge the functions of Punong Barangay and that FERMO should cease and desist from performing said functions is flawed. The order of the COMELEC annulling the grant of execution pending appeal would be inutile if it did not have the effect of authorizing LAXINA to discharge the functions of Punong Barangay during the pendency of the appeal. When the COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the MTC proclaiming FERMO as the winner of the election was stayed 14 and the "status quo" or the last actual peaceful uncontested situation preceding the controversy 15 was restored. Thus, the COMELEC correctly ordered FERMO to cease and desist from performing the functions of Punong Barangay considering that LAXINA was the proclaimed winner of the election prior to FERMO's filing of the election protest. The order for FERMO to relinquish his post to LAXINA pending final resolution of the appeal is a logical and necessary consequence of the denial of execution pending appeal.

Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC made "conclusionary findings" which would in effect "pre-judge" the MTC decision itself. The Resolution categorically stated that the COMELEC shall not attempt to resolve who between LAXINA and FERMO has the right to occupy the contested seat for that question will appropriately be settled in the pending appeal. Although the Resolution cited certain "lapses patent on the decision itself" which "cast a cloud of uncertainty over the victory of Fermo", the observation was made to stress that no other justification other than the "shortness of term" would justify premature execution.

WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to show that respondent Commission on Elections acted with grave abuse of discretion in rendering the challenged Resolution dated September 16, 1999 in SPR No. 4-99.1âwphi1.nêt

Costs against petitioners.

SO ORDERED.

Davide, Jr., JJ., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Ynares-Santiago and De Leon, Jr., JJ., concur.

Pardo, J., abroad on official business.

Footnotes

1 Rollo, pp. 32-44.

2 EN BANC composed of the ponente, Comm. Manolo B. Gorospe; and the members Chairman Harriet O. Demetriou; Comm. Julio F. Desamito;

Comm. Teresita Dy-Liacco Flores; Comm. Japal M. Guiani; Comm. Luzviminda G. Tancangco; and Comm. Abdul Gani Marohombsar Al Hadji concurring.

3 COMELEC Resolution, pp. 1-3; Rollo, pp. 32-34.

4 Petition, pp. 10-11; Rollo, pp. 12-13.

5 Comment of Public Respondent, at pp. 3-4.

6 As amended by the 1997 Rules on Civil Procedure.

7 Ramas vs. Comelec, 286 SCRA 189 at p. 205 [1998].

8 G.R. No. 128473, Resolution dated August 26, 1997.

9 Ibid., at p. 3.

10 COMELEC Resolution, p. 5; Rollo, p. 36.

11 AN ACT CHANGING THE TERM OF OFFICE OF BARANGAY OFFICIALS AND MEMBERS OF THE SANGGUNIANG KABATAAN FROM THREE (3) YEARS TO FIVE (5) YEARS, AMENDING FOR THE PURPOSE SECTION 43 OF REPUBLIC ACT NUMBERED SEVEN THOUSAND ONE HUNDRED SIXTY, OTHERWISE KNOWN AS THE LOCAL GOVERNMENT CODE OF 1991, AND FOR OTHER PURPOSES

12 Rollo, pp. 40-44.

13 Rollo, pp. 42-43.

14 Under Rule 39, § 4 of the Rules of Court, only judgments in actions for injunction, receivership, accounting and support are immediately executory and are not stayed by an appeal taken therefrom unless otherwise ordered by the trial court.

15 Verzosa vs. CA, 299 SCRA 100 at p. 109 [1998].

11. Lonzanida v. Comelec

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. 135150 July 28, 1999

ROMEO LONZANIDA, petitioner, vs.THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.

 GONZAGA-REYES, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void.1âwphi1.nêt

Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:

PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term.

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC

issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.

Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure.

Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be heard and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections.

The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local Government Code which bar a local government official from serving more than three consecutive terms in the same position speaks of "service of a term" and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks or "service of a term" which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification.

The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear the election protest after the petitioner's proclamation.

The petition has merit.

Sec. 8, Art. X of the Constitution provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official concerned was elected.

The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local government officials.

The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. 1 The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office. 2

The scope of the constitutional provision barring elective local officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs.COMELEC and Jose Capco, Jr. 3 where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon

the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the official's assumption of office is by reason of election. This Court stated: 4

Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again?

MR. DAVIDE. That is correct.

MR. GASCON. And the question that we left behind before — if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees' stand.

xxx xxx xxx

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of "the-term of office of elective local officials" and bars "such officials" from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that "voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected." The term served must therefore be one "for which the official concerned was elected." The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve."

This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual has served three consecutive terms

in an elective local office, he must also have beenelected to the same position for the same number of times before the disqualification can apply.

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.

The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. 6 Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election.

The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga vs. COMELEC and Trinidad 7 that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits.

Sec. 6 of RA 6646 specifically mandates that:

Sec. 6. Effects of disqualification Case. — any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed.

The court stated:

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R.A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect

harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court held —

Time and again this Court has given its imprimatur on the principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondent's petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumption of office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation .

Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside.

SO ORDERED.Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena and Ynares-Santiago, JJ., concur.Davide, Jr., C.J., is on leave.Pardo, J., took no part.

Footnotes

1 Records, Constitutional Commission, July 25, 1986, pp. 236, 238.

2 Ibid., pp. 236, 243-244; August 16, 1986, pp. 407-408.

3 G.R. No. 133495, September 3, 1998.

4 Ibid., pp. 7-8.

5 Torres vs. COMELEC, G.R. No. 121031, March 26, 1997; Ramirez vs. COMELEC; G.R. No. 122013, March 26, 1997.

6 Ramas vs. COMELEC, G.R. No. 130831, February 10, 1998.

7 G.R. No. 125629, March 25, 1998, 288 SCRA 76.

12. Aguinaldo v. Comelec

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 132774 June 21, 1999

RODOLFO E. AGUINALDO, FLORENCIO L. VARGAS, ROMEO I. CALUBAQUIB, AMADO T. GONZALES, SILVERIO C. SALVANERA, ALBERTA O. QUINTO, and AURORA V. ESTABILLO, petitioners, vs.COMMISSION ON ELECTIONS, respondent.

R E S O L U T I O N

QUISUMBING, J.:

Before us is a petition for prohibition under Rule 65 of the Revised Rules of Court, with a prayer for the issuance of a writ of preliminary injunction and/or a temporary restraining order.

Petitioners, at the time of the filing of the petition, were incumbent provincial or municipal officials in Cagayan. Petitioner Rodolfo E. Aguinaldo was governor; Florencio L. Vargas, vice governor; Romeo I. Calubaquib, member of the Sangguniang Panlalawigan; Amado T. Gonzales, member of the Sangguniang Panlalawigan; Silverio C. Salvanera, member of the Sangguniang Panlalawigan; Alberta O. Quinto, mayor of the municipality of Peñablanca; and Aurora V. Estabillo, mayor of the municipality of Sta. Praxedes.

Petitioners seek to prevent the COMELEC from enforcing during the 1998 elections Section 67 of the Omnibus Election Code (B.P. Blg. 881) "in accordance with its own tenor or as modified by paragraph 3 of Section 11 of Republic Act No. 8436.

Sec. 67 of the Omnibus Election Code reads:

Sec. 67. Candidates holding elective office. — Any elective official, whether national or local, running for any office other than the one which he is holding in a permanent capacity, except for President and Vice-President, shall be considered ipso facto resigned from his office upon the filing of his certificate of candidacy.

On the other hand, the third paragraph of Section 11 of R.A. No. 8436 reads:

Sec. 11. Official Ballot. — . . .

. . . Provided, That any elective official, whether national or local, running for any office other than the one he/she is holding in a permanent capacity, except for president and vice-president, shall be deemed resigned only upon the start of the campaign period corresponding to the position for which he/she is running; . . .

Petitioners contend that Section 67, of the Omnibus Election Code is violative of the equal protection clause of the Constitution, as its classification of persons running for office is not a valid classification, following the guidelines laid down by the Court in People v. Cayat. 1 According to the doctrine laid down in Cayat, for a classification to be valid, (1) it must be based upon substantial distinctions, (2) it must be germane to the purpose of the law, (3) it must not be limited to existing conditions only, and (4) it must apply equally to all members of the same class.

Petitioners contend that the classification in Section 67 is not based on substantial distinctions and, thus, violative of the equal protection clause of the Constitution.

According to petitioners, candidates for elective office are classified into the following groups under Section 67:

(a) First classification: an incumbent elective official who runs for the same position as his present incumbency . . . (and) another incumbent elective official running for another position; and

(b) Second Classification: an incumbent elective official who runs for president or vice-president . . . (and) another incumbent elective [official] running for any other position (i.e., not his incumbency nor for president or vice president) . . . 2

Petitioners argue that, in the first classification, the reelectionist is given an undue advantage since he is able to use the resources, prestige, and influence of his position. The same is not available to one seeking an office different from the one he is presently holding. This, according to petitioners, does not equalize the playing field for all candidates.

As regards the second classification, petitioners argue that there is no basis for giving candidates for president or vice president the "special privilege" 3 of remaining in office.

Petitioners claim that the classifications result into "absurd or unwanted and difficult situations" 4 and give the following examples: (1) a mayor who runs for president remains as mayor even though he is physically absent from his city or municipality because he campaigns nationwide; (2) a councilor or vice mayor who runs for mayor is considered resigned from his position although he remains physically present in his locality; (3) a president — a national official — who runs for a lower position is considered resigned from office, while the mayor — a local official — who runs for president is not.

Petitioners contend that the classifications "could have been made without sufficient study," 5 as the Omnibus Election Code was passed during the Marcos years, "when no one could honestly believe he could be elected president or even vice president." 6 Also during that time, members of the Batasang Pambansa could run for reelection indefinitely so it was not likely for any of them to run for a "lower" position. Petitioners say that Section 67 was "largely ignored as an innocous (sic) oddity." 7 Their "thesis therefore is that the provision did not get sufficient attention and analysis that would have brought out its constitutional infirmities." 8

Petitioners also argue that Section 67 effectively shortens the terms of office of elected officials, in violation of Article X, Section 8 of the Constitution, which provides:

Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.

Petitioners lament that "no relevant discussions"" seem to have been made in relation to the "re-enactment" of Section 67 of the Omnibus Election Code into Section II of R.A. No. 8436.

The COMELEC, on the other hand, asserts that the classification embodied in Section 67 is reasonable and based on substantial distinction. It points out that incumbents running for the same position are not considered resigned because the intention of the law is to allow them to continue serving their constituents and avoid a disruption in the delivery of essential services. Those running for different positions are considered resigned because they are considered to have abandoned their present position by their act of running for other posts.

For his part, the Solicitor General points out that the issue regarding Section 67 had already been passed upon by the Court in the case of Dimaporo v. Mitra, Jr. 10

Mohammad Ali Dimaporo was a congressman representing the second legislative district of Lanao del Sur. On January 15, 1990, he filed a certificate of candidacy for the position of governor of the Autonomous Region in Muslim Mindanao (ARMM). The COMELEC thereafter informed the House of Representatives of this matter. Then House Speaker Ramon V. Mitra, Jr. and the Secretary of the House of Representatives Camilo L. Sabio excluded his name from the roll of members.

Dimaporo lost in the ARMM elections. He wrote Mitra a letter expressing his desire to resume his functions as a member of the House of Representatives. It appears that this did not materialize; thus, Dimaporo filed a petition with the Supreme Court praying for his reinstatement.

Dimaporo claimed that his act of filing a certificate of candidacy for another position did not divest him of his seat as a member of the House of Representatives. He alleged that Section 67 of the Omnibus Election Code was no longer operative as it is violative of the Constitution. Dimaporo said Section 67 shortens the term of office of a congressman on a ground not provided for under Article XVIII, Section 2 of the Constitution, 11 in relation to Article VI, Section 7. 12

Dimaporo asserted that, as provided by law, the term of a member of the House of Representatives may only be shortened through the following:

(1) Forfeiture of his seat by holding any other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations or subsidiaries; 13

(2) Expulsion as a disciplinary action for disorderlybehavior; 14

(3) Disqualification as determined by resolution of the Electoral Tribunal in an election contest; 15 and

(4) Voluntary renunciation of office. 16

The Court proceeded to trace the history and examine the rationale behind Section 67. We then ruled:

. . . rather than cut short the term of office of elective public officials, this statutory provision seeks to ensure that such officials serve out their entire term of office by discouraging them from running for another public office and thereby cutting short their tenure by making it clear that should they fail in their candidacy, they cannot go back to their former position. This is consonant with the constitutional edict that all public officials must serve the people with utmost loyalty and not trifle with the mandate which they have received from their constituents.17

Indeed, we have dealt squarely with the issue of the validity of Section 67 of the Omnibus Election Code inDimaporo v. Mitra, Jr.

Sec. 67 was crafted with the intention of giving flesh to the constitutional pronouncement that public service is a public trust. The following portion of our ruling in Dimaporo is apropos:

Assemblyman Manuel M. Garcia, in answer to the query of Assemblyman Arturo Tolentino on the constitutionality of Cabinet Bill No. 2, 18 said:

MR. GARCIA (M.M.):

Thank you, Mr. Speaker.

Mr. Speaker, on the part of the Committee, we made this proposal based on constitutional grounds. We did not propose this amendment mainly on the rationale as stated by the Gentlemen from Manila that the officials running for office other than the ones they are holding will be considered resigned not because of abuse of facilities of power or the use of office facilities but

primarily because under our Constitution, we have this new chapter on accountability of public officers. . .

xxx xxx xxx

. . . This only means that all elective public officials should honor the mandate they have gotten from the people. . . a Batasan Member who hold (sic) himself out with the people and seek (sic) their support and mandate should not be allowed to deviate or allow himself to run for any other position unless he relinquishes or abandons his office. Because his mandate to the people is to serve for 6 years. Now, if you allow a Batasan or a governor or a mayor who was mandated to serve for 6 years to file for an office other than the one he was elected to, then, that clearly shows that he has not (sic) intention to service the mandate of the people which was placed upon him and therefore he should be considered ipso facto resigned. I think more than anything that is the accountability that the Constitution requires of elective public officials. . . 19

Sec. 67 is not violative of the Constitution as it does not unduly cut short the term of office of local officials. The situation that results with the application of Section 67 is covered by the term "voluntary renunciation".

Even then, the concept of voluntary renunciation of office under Section 7, Article VI of the Constitution is broad enough to include the situation envisioned in Section 67, Article IX of B.P. Blg. 881. As discussed by the Constitutional Commissioners:

MR. MAAMBONG:

Could I address the clarificatory question to the Committee? The term "voluntary renunciation" does not only appear in Section 3; it appears in Section 6.

MR. DAVIDE:

Yes.

MR. MAAMBONG:

It is also a recurring phrase all over the constitution. Could the Committee please enlighten us exactly what "voluntary renunciation" means? Is this akin to abandonment?

MR. DAVIDE:

Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at any given time on the second term.

MR. MAAMBONG:

Is the Committee saying that the term voluntary renunciation is more general than abandonment and resignation?

MR. DAVIDE:

It is more general, more embracing.

That the act, contemplated in Section 67, Article IX of B.P. Blg. 881, of filing a certificate of candidacy for another office constitutes an overt, concrete act of voluntary renunciation of the elective office presently being held is evident from this exchange between the Members of Parliament Arturo Tolentino and Jose Roño:

MR. ROÑO:

My reasonable ground is this: if you will make the person . . . my, shall we say, basis is that in one case the person is intending to run for an office which is different from his own, and therefore it should be considered, at least from the legal significance, an intention to relinquish his office.

MR. TOLENTINO:

Yes.

MR. ROÑO:

And in the other, because he is running for the same position, it is otherwise.

MR. TOLENTINO:

Yes, but what I cannot see is why are you going to compel a person to quit an office which he is only intending to leave? A relinquishment of office must be clear, must be definite.

MR. ROÑO:

Yes, sir. That's precisely, Mr. Speaker, what I'm saying that while I do not disagree with the conclusion that the intention cannot be enough, but I am saying that the filing of the certificate of candidacy is an overt act of such intention. It 's not just an intention: it's already there. 20

Our foregoing ruling in Dimaporo is still applicable in this case.

Petitioners further assert that Section 67 "could have been formulated without sufficient study (emphasis supplied)." Petitioners' choice of words betray their own uncertainty as to whether or not the implications of Section 67 were thoroughly analyzed before such section became law. Unfortunately for petitioners, uncertainties do not justify nullification of a law.

Moreover, it must be pointed out that this present petition is one for prohibition which is a preventive remedy. The act sought to be enjoined had already been accomplished with the holding of the 1998 elections. Prohibition, as a rule, does not lie to restrain an act that is already a fait accompli. 21

WHEREFORE, the instant petition is hereby dismissed for lack of merit.1âwphi1.nêt

SO ORDERED.

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

Puno and Pardo, JJ., took no part.

Panganiban, J., is on leave.

Footnotes1 68 Phil. 12 (1939).

2 Rollo, p. 10.

3 Id. at 12.

4 Ibid.

5 Rollo, p. 14.

6 Ibid.

7 Rollo, p. 15.

8 Ibid.

9 Ibid.

10 202 SCRA 779 (1991).

11 This provision reads, "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."

12 The Members of the House of Representatives shall be elected for a term of three years which shall begin, unless otherwise provided by law; at noon on the thirtieth day of June next following their election. . . .

13 CONST., Art. VI, Sec. 13.

14 Id. at Sec. 16(3).

15 Id. at Sec. 17.

16 Id. at Sec. 7, par. 2.

17 Dimaporo v. Mitra, supra, at 790.

18 This cabinet bill became the basis for Section 67 of the Omnibus Election Code.

19 Dimaporo v. Mitra, Jr., supra, at 788-789.

20 Dimaporo v. Mitra, supra, at 792-793.

21 Vergara v. Rugue, 78 SCRA 312 (1977); Perez v. De la Cruz, 27 SCRA 587 (1996); Cabañero v. Torres, 61 Phil. 522 (1935).

13. Latasa v. ComelecEN BANC[G.R. No. 154829. December 10, 2003.]ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents.Jose Ventura Aspiras and Antonio N. Navidad for petitioner.Jerahmeel Libre and Clifford Equila for private respondent R. Sunga.Romualdo C. Garcia for Internor Atty. J. Penas.SYNOPSISPetitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During petitioner's third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos, and is now running for the first time for the position of city mayor. Private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the Commission on Elections (COMELEC) a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification against petitioner Latasa. Respondent Sunga alleged that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of Digos City since he had already been elected and served for three consecutive terms as mayor from 1992 to 2001. The COMELEC's First Division issued a Resolution canceling petitioner's certificate of candidacy for being in violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991. Petitioner filed his Motion for Reconsideration which remained unacted upon until the day of the elections. Petitioner was proclaimed winner on May 17, 2001, having garnered the most number of votes. Subsequently, the COMELEC en banc issued a Resolution denying petitioner's Motion for Reconsideration. Hence, the present petition.The Supreme Court dismissed the petition. According to the Court, the fact that the new city acquired a new corporate existence separate and distinct from that of the municipality does not mean that for the purpose of applying Article X, Section 8 of the Constitution, 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. 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. The inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. They are also the same inhabitants over whom he held power and authority as their chief executive for nine years. The Court also stressed that the framers of the Constitution specifically included an exception to the people's 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 which is the very scenario sought to be avoided by the Constitution, if not abhorred by it. DCTSEASYLLABUS1. POLITICAL LAW; LOCAL GOVERNMENT; THE FACT THAT THE NEW CITY ACQUIRED A NEW CORPORATE EXISTENCE SEPARATE AND DISTINCT FROM THAT OF A MUNICIPALITY DOES NOT MEAN THAT FOR THE PURPOSE OF APPLYING ARTICLE. X, SECTION 8 OF THE CONSTITUTION, THE OFFICE OF THE MUNICIPAL MAYOR WOULD NOW BE CONSTRUED AS A DIFFERENT LOCAL GOVERNMENT POST AS THAT OF THE CITY MAYOR. — The Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes that

the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials. True, the new city acquired a new corporate existence separate and distinct from that of the municipality. This does not mean, however, that for the purpose of applying the subject Constitutional provision, the office of the municipal mayor would now be construed as a different local government post as that of the office of the city mayor. As stated earlier, the territorial jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the inhabitants of the municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held power and authority as their chief executive for nine years. AEIHaS2. ID.; ID.; ALTHOUGH THERE WERE CHANGES IN THE POLITICAL AND ECONOMIC RIGHTS OF THE CITY OF DIGOS, NO SUBSTANTIAL CHANGE OCCURRED AS TO PETITIONER'S AUTHORITY AS CHIEF EXECUTIVE OVER THE INHABITANTS THEREOF. — In Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioner's authority as chief executive over the inhabitants of Digos. caIETS3. ID.; ID.; PETITIONER NEVER CEASED FROM ACTING AS CHIEF EXECUTIVE OF THE LOCAL GOVERNMENT UNIT AND FROM DISCHARGING HIS DUTIES AND RESPONSIBILITIES. — In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos. HCEaDI4. ID.; ID.; THE LAW CONTEMPLATES A REST PERIOD DURING WHICH THE LOCAL ELECTIVE OFFICIAL STEPS DOWN FROM OFFICE AND CEASES TO EXERCISE POWER OR AUTHORITY OVER THE INHABITANTS OF THE TERRITORIAL JURISDICTION OF A PARTICULAR LOCAL GOVERNMENT UNIT. — It is evident that in the above mentioned cases, there exists a rest period or a break in the service of the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the people's 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. TCIHSa5. ID.; ELECTION LAWS; THE FACT THAT A PLURALITY OR A MAJORITY OF THE VOTES ARE CAST FOR AN INELIGIBLE CANDIDATE AT A POPULAR ELECTION, OR THAT A CANDIDATE

IS LATER DECLARED TO BE DISQUALIFIED TO HOLD OFFICE, DOES NOT ENTITLE THE CANDIDATE WHO GARNERED THE SECOND HIGHEST NUMBER OF VOTES TO BE DECLARED ELECTED. — Respondent Sunga claims that applying the principle in Labo v. COMELEC, he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however, cannot be said of the present case. This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. EaHcDSD E C I S I O NAZCUNA, J p:This is a petition for certiorari under Rule 65 of the Rules of Court which seeks to challenge the resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01-059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa, respondent, and the Resolution of the COMELEC en banc denying herein petitioner's Motion for Reconsideration. The assailed Resolution denied due course to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run for mayor of Digos City, Davao del Sur Province in the May 14, 2001 elections, ordering that all votes cast in his favor shall not be counted, and if he has been proclaimed winner, declaring said proclamation null and void. cHAaECThe facts are fairly simple.Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. During petitioner's third term, the Municipality of Digos was declared a component city, to be known as the City of Digos. A plebiscite conducted on September 8, 2000 ratified Republic Act No. 8798 entitled, "An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos" or the Charter of the City of Digos. This event also marked the end of petitioner's tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of Digos. Hence, he took his oath as the city mayor.On February 28, 2001, petitioner filed his certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he is eligible therefor, and likewise disclosed that he had already served for three consecutive terms as mayor of the Municipality of Digos and is now running for the first time for the position of city mayor.On March 1, 2001, private respondent Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/or For Disqualification 1 against petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that he is eligible to run as mayor of

Digos City since petitioner had already been elected and served for three consecutive terms as mayor from 1992 to 2001.On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that he did not make any false representation in his certificate of candidacy since he fully disclosed therein that he had served as mayor of the Municipality of Digos for three consecutive terms. Moreover, he argued that this fact does not bar him from filing a certificate of candidacy for the May 14, 2001 elections since this will be the first time that he will be running for the post of city mayor.Both parties submitted their position papers on March 19, 2001. 3 On April 27, 2001, respondent COMELEC's First Division issued a Resolution, the dispositive portion of which reads, as follows:Wherefore, premises considered, the respondent's certificate of candidacy should be cancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitution and the Local Government Code of 1991. 4 Petitioner filed his Motion for Reconsideration dated May 4, 2001, 5 which remained unacted upon until the day of the elections, May 14, 2001. On May 16, 2001, private respondent Sunga filed an Ex Parte Motion for Issuance of Temporary Restraining Order Enjoining the City Board of Canvassers From Canvassing or Tabulating Respondent's Votes, and From Proclaiming Him as the Duly Elected Mayor if He Wins the Elections. 6 Despite this, however, petitioner Latasa was still proclaimed winner on May 17, 2001, having garnered the most number of votes. Consequently, private respondent Sunga filed, on May 27, 2001, a Supplemental Motion 7 which essentially sought the annulment of petitioner's proclamation and the suspension of its effects.On July 1, 2001, petitioner was sworn into and assumed his office as the newly elected mayor of Digos City. It was only on August 27, 2002 that the COMELEC en banc issued a Resolution denying petitioner's Motion for Reconsideration.Hence, this petition.It cannot be denied that the Court has previously held in Mamba-Perez v. COMELEC 8 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. IDTSaCOn the other hand, certain peculiarities in the present case reveal the fact that its very heart is something which this Court considers of paramount interest. This Court notes from the very beginning that petitioner himself was already entertaining some doubt as to whether or not he is indeed eligible to run for city mayor in the May 14, 2001 elections. In his certificate of candidacy, after the phrase "I am eligible," petitioner inserted a footnote and indicated:*Having served three (3) term[s] as municipal mayor and now running for the first time as city mayor. 9 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. 10 The spirit embodied in a Constitutional provision must not be attenuated by a rigid application of procedural rules.The present case raises a novel issue with respect to an explicit Constitutional mandate: whether or not petitioner Latasa is 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 examination of the historical background of the subject Constitutional provision reveals that the members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. In fact, they rejected a proposal set forth by Commissioner Edmundo Garcia that after serving three consecutive terms or nine years, there should be no further reelection for local and legislative officials. 11 The members, instead, adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term:MR. MONSOD: Madam President, I was reflecting on this issue earlier and I asked to speak because in this draft Constitution, we are recognizing people's power. We have said that now there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at the same time, we are prescreening candidates among whom they will choose. We are saying that this 48-member Constitutional Commission has decreed that those who have served for a period of nine years are barred from running for the same position.

The argument is that there may be other positions. But there are some people who are very skilled and good at legislation, and yet are not of a national stature to be Senators. They may be perfectly honest, perfectly competent and with integrity. They get voted into office at the age of 25, which is the age we provide for Congressmen. And at 34 years old we put them into pasture.Second, we say that we want to broaden the choices of the people. We are talking here only of congressional or senatorial seats. We want to broaden the people's choice but we are making prejudgment today because we exclude a certain number of people. We are, in effect, putting an additional qualification for office — that the officials must have not have served a total of more than a number of years in their lifetime. aCTcDSThird, we are saying that by putting people to pasture, we are creating a reserve of statesmen, but the future participation of these statesmen is limited. Their skills may be only in some areas, but we are saying that they are going to be barred from running for the same position.Madam President, the ability and capacity of a statesman depend as well on the day-to-day honing of his skills and competence, in intellectual combat, in concern and contact with the people, and here we are saying that he is going to be barred from the same kind of public service.I do not think it is in our place today to make such a very important and momentous decision with respect to many of our countrymen in the future who may have a lot more years ahead of them in the service of their country.If we agree that we will make sure that these people do not set up structures that will perpetuate them, then let us give them this rest period of three years or whatever it is. Maybe during that time, we would even agree that their fathers or mothers or relatives of the second degree should not run. But let us not bar them for life after serving the public for number of years. 12 The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:. . . I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. . . . 13 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. 14 In the present case, petitioner states that a city and a municipality have separate and distinct personalities. Thus they cannot be treated as a single entity and must be accorded different treatment consistent with specific provisions of the Local Government Code. He does not deny the fact that he has already served for three consecutive terms as municipal mayor. However, he asserts that when Digos was converted from a municipality to a city, it attained a different juridical personality. Therefore, when he filed his certificate of candidacy for city mayor, he cannot be construed as vying for the same local government post.For a municipality to be converted into a city, the Local Government Code provides:SECTION 450. Requisites for Creation. — (a) A municipality or a cluster of barangays may be converted into a component city it has an average annual income, as certified by the Department of Finance, of at least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991 constant prizes, and if it has either of the following requisites:(i) a contiguous territory of at least one hundred (100) square kilometers, as certified by the Land Management Bureau; or,(ii) a population of not less than one hundred fifty thousand (150,000) inhabitants, as certified by the National Statistics Office.Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at the time of said creation to less than the minimum requirements prescribed herein. AECDHS(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes and bounds. The requirement on land are shall not apply where the city proposed to be created is composed of one (1) or more island. The territory need not be contiguous if it comprises two (2) or more islands.(c) The average annual income shall include the income accruing to the general fund, exclusive of special funds, transfers, and non-recurring income. 15 Substantial differences do exist between a municipality and a city. For one, there is a material change in the political and economic rights of the local government unit when it is converted from a municipality to a city and undoubtedly, these changes affect the people as well. 16 It is precisely for this reason why Section 10, Article X of the Constitution mandates that no province, city, municipality, or barangay may be created, divided, merged, abolished, or its boundary substantially altered, without the approval by a majority of the votes cast in a plebiscite in the political units directly affected.As may be gleaned from the Local Government Code, the creation or conversion of a local government unit is done mainly to help assure its economic viability. Such creation or conversion is based on verified indicators:Section 7. Creation and Conversion. — As a general rule, the creation of a local government unit or its conversion from one level to another shall be based on verifiable indicators or viability and projected capacity to provide services, to wit:(a) Income. — It must be sufficient, based on acceptable standards, to provide for all essential government facilities and services and special functions commensurate with the size of its population, as expected of the local government unit concerned;(b) Population. — It shall be determined as the total number of inhabitants within the territorial jurisdiction of the local government unit concerned; and(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is separated by a local government unit independent of the others; properly identified by metes and bounds with technical descriptions; and sufficient to provide for such basic services and facilities to meet the requirements of its populace.Compliance with the foregoing indicators shall be attested to by the Department of Finance (DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of the Department of Environment and Natural Resources (DENR). 17 On the other hand, Section 2 of the Charter of the City of Digos provides:

Section 2. The City of Digos. — The Municipality of Digos shall be converted into a component city to be known as the City of Digos, hereinafter referred to as the City, which shall comprise the present territory of the Municipality of Digos, Davao del Sur Province. The territorial jurisdiction of the City shall be within the present metes and bounds of the Municipality of Digos. . . .Moreover, Section 53 of the said Charter further states:Section 53. Officials of the City of Digos. — The present elective officials of the Municipality of Digos shall continue to exercise their powers and functions until such a time that a new election is held and the duly-elected officials shall have already qualified and assumed their offices. . . . .As seen in the aforementioned provisions, this Court notes that the delineation of the metes and bounds of the City of Digos did not change even by an inch the land area previously covered by the Municipality of Digos. This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers and functions until elections were held for the new city officials. ECaHSITrue, 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.This Court must distinguish the present case from previous cases ruled upon this Court involving the same Constitutional provision.In Borja, Jr. v. COMELEC, 18 the issue therein was whether a vice-mayor who became the mayor by operation of law and who served the remainder of the mayor's term should be considered to have served a term in that office for the purpose of the three-term limit under the Constitution. Private respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor, he occupied the latter's post for the unexpired term. He was, thereafter, elected for two more terms. This Court therein held that when private respondent occupied the post of the mayor upon the incumbent's death and served for the remainder of the term, he cannot be construed as having served a full term as contemplated under the subject constitutional provision. The term served must be one "for which [the official concerned] was elected."It must also be noted that in Borja, the private respondent therein, before he assumed the position of mayor, first served as the vice-mayor of his local government unit. The nature of the responsibilities and duties of the vice-mayor is wholly different from that of the mayor. The vice-mayor does not hold office as chief executive over his local government unit. In the present case, petitioner, upon ratification of the law converting the municipality to a city, continued to hold office as chief executive of the same territorial jurisdiction. There were changes in the political and economic rights of Digos as local government unit, but no substantial change occurred as to petitioner's authority as chief executive over the inhabitants of Digos.In Lonzanida v. COMELEC, 19 petitioner was elected and served two consecutive terms as mayor from 1988 to 1995. He then ran again for the same position in the May 1995 elections, won and discharged his duties as mayor. However, his opponent contested his proclamation and filed an election protest before the Regional Trial Court, which ruled that there was a failure of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioner acceded to the order to vacate the post. During the May 1998 elections, petitioner therein again filed his certificate of candidacy for mayor. A petition to disqualify him was filed on the ground that he had already served three consecutive terms. This Court ruled, however, that petitioner therein cannot be

considered as having been duly elected to the post in the May 1995 elections, and that said petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office.In the present case, petitioner Latasa was, without a doubt, duly elected as mayor in the May 1998 elections. Can he then be construed as having involuntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he did involuntarily relinquish his office as municipal mayor since the said office has been deemed abolished due to the conversion. However, the very instant he vacated his office as municipal mayor, he also assumed office as city mayor. Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped down from office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased from discharging his duties and responsibilities as chief executive of Digos.In Adormeo v. COMELEC, 20 this Court was confronted with the issue of whether or not an assumption to office through a recall election should be considered as one term in applying the three-term limit rule. Private respondent, in that case, was elected and served for two consecutive terms as mayor. He then ran for his third term in the May 1998 elections, but lost to his opponent. In June 1998, his opponent faced recall proceedings and in the recall elections of May 2000, private respondent won and served for the unexpired term. For the May 2001 elections, private respondent filed his certificate of candidacy for the office of mayor. This was questioned on the ground that he had already served as mayor for three consecutive terms. This Court held therein that private respondent cannot be construed as having been elected and served for three consecutive terms. His loss in the May 1998 elections was considered by this Court as an interruption in the continuity of his service as mayor. For nearly two years, private respondent therein lived as a private citizen. The same, however, cannot be said of petitioner Latasa in the present case. IAETSCFinally, in Socrates v. COMELEC, 21 the principal issue was whether or not private respondent Edward M. Hagedorn was qualified to run during the recall elections. Therein respondent Hagedorn had already served for three consecutive terms as mayor from 1992 until 2001 and did not run in the immediately following regular elections. On July 2, 2002, the barangay officials of Puerto Princesa convened themselves into a Preparatory Recall Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of candidacy for mayor in the recall election. A petition for his disqualification was filed on the ground that he cannot run for the said post during the recall elections for he was disqualified from running for a fourth consecutive term. This Court, however, ruled in favor of respondent Hagedorn, holding that the principle behind the three-term limit rule is to prevent consecutiveness of the service of terms, and that there was in his case a break in such consecutiveness after the end of his third term and before the recall election.It is evident that in the abovementioned cases, there exists a rest period or a break in the service of the local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.This Court reiterates that the framers of the Constitution specifically included an exception to the people's 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.Finally, respondent Sunga claims that applying the principle in Labo v. COMELEC, 22 he should be deemed the mayoralty candidate with the highest number of votes. On the contrary, this Court held in Labo that the disqualification of a winning candidate does not necessarily entitle the candidate with the highest number of votes to proclamation as the winner of the elections. As an obiter, the Court merely mentioned that the rule would have been different if the electorate, fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected. The same, however, cannot be said of the present case.This Court has consistently ruled that the fact that a plurality or a majority of the votes are cast for an ineligible candidate at a popular election, or that a candidate is later declared to be disqualified to hold office, does not entitle the candidate who garnered the second highest number of votes to be declared elected. The same merely results in making the winning candidate's election a nullity. 23 In the present case, moreover, 13,650 votes were cast for private respondent Sunga as against the 25,335 votes cast for petitioner Latasa. 24 The second placer is obviously not the choice of the people in that particular election. In any event, a permanent vacancy in the contested office is thereby created which should be filled by succession. 25 WHEREFORE, the petition is DISMISSED. No pronouncement as to costs.SO ORDERED.Davide, Jr., C .J ., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr. and Tinga, JJ ., concur.Footnotes 1. Annex D of Petition; Rollo, pp. 45-50. 2. Annex E of Petition; Rollo, pp. 56-68. 3. Annexes F and G of Petition; Rollo, pp. 69-97. 4. Annex A of the Petition; Rollo, pp. 22-25. 5. Annex C of the Petition; Rollo, pp. 34-40. 6. Annex H of the Petition; Rollo, pp. 98-100. 7. Annex J of the Petition; Rollo, pp. 105-110. 8. 317 SCRA 641, 647-648 (1999). 9. Annex A of the Petition; Rollo, p. 51.10. Valenzuela v. Court of Appeals, G.R. No. 131175, August 28, 2001.11. Borja, Jr. v. Commission on Elections, 295 SCRA 157, 163 (1998) citing 2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-237 (Session of July 25, 1986) (Statement of Commissioner Garcia).12. 2 RECORD OF THE CONSTITUTIONAL RECORD 238 (Session of July 25, 1986) (Statement of Commissioner Monsod).13. Id., at 239.14. Lonzanida v. Commission on Elections, 311 SCRA 602, 611 (1999).15. Section 450, Chapter 1, Title Three, Book III, Local Government Code.16. Miranda v. Aguirre, 314 SCRA 603, 610 (1999).17. Section 7, Chapter 2, Book I, Local Government Code.18. Supra note 11.19. Supra note 14.20. 376 SCRA 90 (2002).21. G.R. Nos. 154512, 154683, 155083-84, November 12, 2002.22. 211 SCRA 297, 309 (1992).23. Republic v. De la Rosa, 237 SCRA 785 (1994).

24. As certified by the City Election Officer, Annex K of the Petition; Rollo, p. 112.25. Reyes v. COMELEC, 254 SCRA 514 (1996).

C o p y r i g h t 2 0 0 3 C D T e c h n o l o g i e s A s i a I n c

14. Rivera v. ComelecRepublic of the Philippines

SUPREME COURTManila

EN BANC

G.R. No. 167591            May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs.COMELEC and MARINO "BOKING" MORALES, Respondents.

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

G.R. No. 170577            May 9, 2007

ANTHONY D. DEE, Petitioner, vs.COMELEC and MARINO "BOKING" MORALES, Respondents.

D E C I S I O N

SANDOVAL-GUTIERREZ, J.:

For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.

G.R. No. 167591

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES

In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy.

On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government Code.

In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and

b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999.

On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.

On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales’ motion for reconsideration and setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed.

Hence, this petition for certiorari.

G.R. No. 170577

ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503.

In his answer, respondent Morales raised the following defenses:

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and

b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat.1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for quo warranto on the ground that respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus:

Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x.

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during that term should not be counted.

On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division.

Hence, petitioner Dee’s instant petition for certiorari.

Both cases may be decided based on the same facts and issues.

It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms:

a) July 1, 1995 to June 30, 1998

b) July 1, 1998 to June 30, 2001

c) July 1, 2001 to June 30, 2004

d) July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. –

Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City.

Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre2 with identical facts, thus:

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente.

x x x

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’ assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest.

x x x

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

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis’ assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit

prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive terms for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was afailure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three-term limit rule applies to him.

Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated.

Here, respondent Morales invoked not only Lonzanida v. COMELEC,3 but also Borja, Jr. v. Commission on Elections4 which is likewise inapplicable. The facts in Borja are:

Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998.

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capco’s disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x

This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term" under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position.

Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections.

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,6 such circumstance does not constitute an interruption in serving the full term.

Section 8, Article X of the Constitution can not be more clear and explicit –

The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x

Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:

No local official shall serve for more than three consecutive terms in the same position. x x x

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.

In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x

x x x

It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutive term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it.

This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same position for three consecutive terms. Whether as "caretaker" or "de facto" officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely".

Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.

G.R. No. 167591 –

Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:

SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. – The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881.

in relation to Section 211 of the Omnibus Election Code, which provides:

SEC. 211. Rules for the appreciation of ballots. – In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voter’s will:

x x x

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

x x x

In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes.

G.R. No. 170577 –

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot.

Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

x x x

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111).

x x x

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. x x x

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales’ Certificate of Candidacy dated December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot.

This Decision is immediately executory.

SO ORDERED.

ANGELINA SANDOVAL-GUTIERREZAssociate Justice

WE CONCUR:

REYNATO S. PUNOChief Justice

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAsscociate Justice

ANTONIO T. CARPIOAssociate Justice

(On leave)MA. ALICIA AUSTRIA-MARTINEZ

Asscociate Justice

(On leave)RENATO C. CORONA

Associate JusticeCONCHITA CARPIO MORALES

Asscociate Justice

ADOLFO S. AZCUNAAssociate Justice

DANTE O. TINGAAsscociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

(No part)CANCIO C. GARCIA

Asscociate Justice

PRESBITERO J. VELASCO, JR.Associate Justice

(No part)ANTONIO EDUARDO B. NACHURA

Asscociate Justice

C E R T I F I C A T I O N

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

REYNATO S. PUNOChief Justice

Footnotes1 The COMELEC Second Division, in its Resolution dated May 6, 2004 (Annex "A," Petition in G.R. No. 167591) ruled that respondent Morales’ term of office was not interrupted by the preventive suspension imposed upon him by the Ombudsman. This ruling was sustained by the COMELEC En Banc in its Resolution of May 14, 2005 (Annex "B," Petition in G.R. No. 167591).2 G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473.3 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

4 G.R. No. 133495, September 3, 1998, 295 SCRA 157.5 G.R. No. 147927, February 4, 2002, 376 SCRA 90.6 Supra.7 G.R. No. 154829, December 10, 2003, 417 SCRA 601.8 G.R. Nos. 105111 & 105384, July 3, 1992, 211 SCRA 297; Abella v. COMELEC, G.R. Nos. 100710 & 100739, September 3, 1991, 201 SCRA 253; and Benito v. COMELEC, G.R. No. 106053, August 17, 1994, 235 SCRA 436.

CONCURRING OPINION

TINGA, J.:

Respondent Marino Morales had already fully served three consecutive terms as mayor of Mabalacat, Pampanga as of 2004. He pleads that this Court not only uphold his election to a fourth consecutive term, but even affirm his right to be elected to a fifth. The Court has rightfully rejected this outlandish claim, violative as it is of the three –term limit rule provided in Section 8, Article X of the Constitution.1 While I concur with the judgment of the Court, I write separately to emphasize a few points I feel important.

Our jurisprudence on the constitutional term limits on local elective officials is recent in origin. In 1998, Borja v. COMELEC2 pronounced that "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."3 The rule was reiterated in Lonzanida v. COMELEC,4 where it was held that the two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. Both these cases featured two officials who were not able to fully serve three consecutive terms. In the first, the official concerned succeeded into office midway in his predecessor’s term by operation of law, while in the second the official involuntarily relinquished office prior to the completion of one of the consecutive terms.

It is Ong v. Alegre,5 decided last year, which governs in cases where the official concerned had actually fully served three consecutive terms. In truth, the decision today is but a reiteration of the doctrine we have already laid down in Ong, a case with facts similar to those at bar. The case expressly rebuts respondent’s claim that the subsequent nullification of his proclamation in 1998 could not have resulted in a "valid election". In both Ong and the case at bar, such nullification became final only after the expiration of the contested term.6 The Court in Ong stressed that the nullification "was without practical and legal use and value, having been promulgated after the term of the contested office has expired."7

Ong does not explicitly address the legal fiction adverted to in Lonzanida that the nullification of the proclamation results in "no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest."8 I submit though that a different rule should obtain if the official concerned had already fully served the contested term before the nullification could become final and the ensuing ouster from office, executory. That the official has fully served his term despite the challenge to his assumption of office, as is respondent’s situation, renders inconsequential and unnecessary any inquiry as to whether he was validly elected. Within that context, any subsequent finding that the official had in fact, finished the term and performed the functions of office only in the capacity as the "presumptive winner" holds no utile purpose.

It might be argued that a nullified proclamation evinces the absence of a valid election, which Borja and Lonzanida hold as a requirement for the constitutional term limit to apply. In that case, the lack of a valid election would still fail to negate any full service of term actually rendered by the official concerned, as may occur if the nullification becomes enforceable only after the expiration of the term. Normally, actual full service of the term

gives rise to the presumption that there was a valid election, and as a corollary, an invalid election should cause the official to relinquish office before full service of the term can be completed. It should indeed be recognized as an aberration if a court or the COMELEC would have the gall to promulgate a final and executory issuance nullifying an election only after the term of office for that election had already expired. Such recourse is not only an exercise in futility, but a demonstration of inutility.

The seeming confusion arises from a failure to recognize that the election for three terms for the same post as first requirement of the three-term limit rule, apart from serving as the basis for excluding succession by operation of law from the ambit of the rule as exemplified by Borja, is itself the initial expression of the second requirement which is the full service of three consecutive terms. The election dimension is only the initial element that gives rise to the operation of the three-term limit rule but once the election is voided the inevitable effect is that the term would not be fully served. It is this break of service that eventually takes the situation out of the three-term limit rule.

But if the anomaly is present, as it is in this case, should the aberrant nullification be allowed legal fruition as applied to constitutional term limits? Borja may have fostered due solicitude to the principle that the voters should have consciously elected the official to serve for three consecutive terms for the limits to take hold, yet the text of the Constitution itself demonstrates that the service of three consecutive terms already suffices. As earlier noted, full service of three terms normally equates to three consecutive valid elections, so the conflict should be rare. But if the conflict does arise, where the full service of three terms did not arise as a consequence of three consecutive valid elections, As earlier intimated, the full service dimension should bear greater impact than the valid election dimension. Full service of three terms is sufficient to put into effect the constitutional term limits for local elective officials. After all, the text of Section 8, Article X of the Constitution itself lays greater emphasis on the fact of service than on the fact of election.

It may be added that whatever private doubts of the framers may have had as to the wisdom of term limits, the Constitution itself imposes such term limits on every elective national and local office. The Constitution itself regulates through these limits the ability of voters to choose their representative officials. The system of term limits as a tool to democratize opportunity for public office as well as the field of voters’ choice is a policy move embedded by the people in the fundamental law of the land. As such, the scope and definition of term limits must be framed from the context of the Constitution itself.

In his ponencia in Latasa v. COMELEC,9 Justice Azcuna, himself a member of the 1986 Constitutional Commission, eloquently explained the constitutional purpose of term limits:

This Court reiterates that the framers of the Constitution specifically included an exception to the people’s 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.10

The same considerations should militate against the present cause of respondent. It cannot be denied that he has fully served without interruption as mayor for the last 12 years and, had his arguments been upheld, could do so for another three (3) years. His continued stay in office is abhorrent to the Constitution. Now even if the stale claim of the respondent that he was not validly elected to a second term is accepted for the nonce, it would not undo the fact that respondent did perform the functions of the public office during the entirety of his 1998-2001 term, and was at no point during that term, under legal compulsion to relinquish the same. The nullification of respondent’s 1998 proclamation was never enforced.

Thus, the original petition for disqualification in G.R. No. 167591 should be granted and respondent removed from office on what is now his fourth consecutive term. Pursuant to Section 44 of the Local Government Code, it should be the Vice-Mayor of Mabalacat who shall succeed into office since the disqualification of respondent has caused a permanent vacancy in the office of Mayor.

There is no basis to accept the claim of petitioner in G.R. No. 170577 that he, the "runner-up" in the 2004 mayoralty race, should be installed in lieu of respondent. The hornbook rule is that a second place candidate cannot be proclaimed as a substitute winner.1^vvphi1.net Said general rule remains unaffected even with the Court’s recent ruling in Cayat v. COMELEC.11 Cayat was predicated on a particular finding that that the order of the COMELEC disqualifying the candidate therein had become final even before election day, thus rendering the votes nonetheless cast in favor of that candidate as stray. No such finding exists in this case. While the COMELEC Second Division did disqualify Morales a few days before Election Day, 2004, the said decision was seasonably elevated to the COMELEC en banc, which in fact reversed the Second Division some months after the election and proclamation of Morales.

It is suggested by petitioner in G.R. No. 170577 that the general rule should nonetheless not apply to this case, owing to the obiter dicta in Labo v. COMELEC12 that perhaps the second placer could possibly be declared the winner "if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected."13

It should weigh that the Court has never to date applied the Labo obiter in order to elevate the second placer into office. This is because the bar set therein is actually quite high. It entails a conclusion that the voters intentionally wasted their ballots knowing that, in spite of their vote for him or her, the candidate was ineligible.14 As phrased, the Labo obiter requires a finding of spectacular flagrancy on the part of the voting public. In order to actualize the Labo obiter to seat a second placer, the Court has to be prepared to impugn the character and mental acuity of the voters in the particular territory.

The standard in the Labo obiter is not that the voters were deceived into believing that the candidate was eligible, it is that the voters were well aware that the candidate was disqualified yet still chose to cast a vote they knew would be counted as stray in favor of the candidate. Such votes, under the Labo obiter, could not have been cast with the intention to install the candidate into office, but instead were elected to stroke the ego of the candidate.

Ironically, a losing candidate who proposes the application of the Labo obiter to his or her benefit will have to, in the process, denigrate the good faith and intelligence of the voting public. If that strikes as incongruous, it may be because that the general rule in Labo that the second placer can never assume the office is so intrinsically sound, it should take a convergence of highly unusual, absurd or malevolent circumstances in order that the exception may be properly had. No harm to the legal order would have ensued if the Labo obiter did not exist in our jurisprudence.

It cannot be assumed that the people of Mabalacat knew that respondent was running for a fourth consecutive legal term and even if the assumption is accepted, it cannot immediately translate into a "notorious" awareness that he was disqualified from running for the office, especially since there was a ruling, albeit it did not obtain finality before the expiration of his second term, that decreed that he had actually lost the 1998 elections. Besides, in Labo itself, the people of Baguio, by the same measure, knew that Labo had been previously disqualified from running as Mayor in 1988 due to his citizenship predicament, yet still voted him into office anyway when he ran again in 1992. Still, the Court declined to install the second placer in lieu of Labo. I see no need for a different result to obtain in this case.

WHEREFORE, I VOTE to grant the petition in G.R. No. 167591 and to DISMISS the petition in G.R. No. 170577.

DANTE O. TINGAAssociate Justice

Footnotes1 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 officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected.2 356 Phil. 467 (1998).3 Id. at 478.4 370 Phil. 625 (1999).5 G.R. Nos. 163295 & 163354, 23 January 2006, 479 SCRA 473.6 The decision of the Angeles City RTC declaring that respondent had actually lost the 1998 elections was promulgated only on 2 April 2001, and more pertinently, became final and executory only on 6 August 2001, or after the expiration of the 1998-2001 term of office.7 Ong v. Alegre, supra note 5, at 482.8 Lonzanida v. COMELEC, supra note 4, at 637.9 G.R. No. 154829, 10 December 2003, 417 SCRA 601.10 Id. at 614-615.11 G.R. No. 163776, 24 April 2007.12 G.R. No. 105111 & 105384, 3 July 1992, 211 SCRA 297. See also Latasa v. COMELEC, supra note 9, at 615.13 Id. at 312.14 See Frivaldo v. COMELEC, G.R. Nos. 120295 & 123755, 26 June 1996, 257 SCRA 727, 764.

SEPARATE OPINION

VELASCO, JR., J.:

In Borja Jr. v. Commission on Elections, we held the requisites for the three (3)-term limit to apply, thus: "[I]t is not enough that an individual has served three consecutive terms in an elective local office, he must also have beenelected to the same position for the same number of times before the disqualification can apply."1 And inLonzanida v. Commission on Elections, we reiterated these two (2) conditions which must concur for the three (3)-term limit to apply: "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."2

In my view, these requisites prescribed in Borja, Jr. and reiterated in Lonzanida, more particularly the first condition, have been modified in the later case of Ong v. Alegre3 where we held in gist that where a proclaimed candidate had served the full term of office but was either disqualified or his/her proclamation voided only after the term of the contested office had expired, such service is counted and is legally taken as service for a full term in contemplation of the three (3)-term rule. Lonzanida applied the two requisites prescribed in Borja, Jr. by explicating that the requisite valid election is not met if the proclamation is subsequently voided in an election protest. Then came Ong which is factually akin to Lonzanida except for the fact that Ong was able to serve the full term while Lonzanida did not. A second look over the Lonzanida facts unmistakably reveals

that although the Zambales RTC initially declared the San Antonio, Zambales mayoral election as null and void due to "failure of election," the Commission on Elections (COMELEC), on appeal, decided the protest on the merits, voided the 1995 proclamation of Lonzanida, and declared his opponent Alvez the duly elected mayor of San Antonio, Zambales.4 This nullification is therefore similar to the invalidation of the Ong proclamation. If Lonzanida were strictly applied to Ong, then the first condition of a valid election would not be satisfied as both proclamations in Lonzanida and Ong were voided. It is for this reason that I take the view that the Lonzanida ruling, finding no valid election due to the void proclamation, has been superseded or supplanted by the Ong ruling.

Therefore, the present rule is as long as there is a proclamation made by the canvassing board or the COMELEC, such declaration of the winner results in a valid election that applies and corresponds to the service actually rendered by the proclaimed official. This substantially complies with the prescribed valid election regardless of whether the nullification came prior to or after the term’s expiration. The reason is the election of the proclaimed winner to the local government position is legal and valid until annulled in the protest or quo warranto proceedings. Consequently, the service of the official prior to nullification by virtue of such proclamation is for all intents and purposes based on a valid election. The proclaimed winner, who takes his oath, assumes the position, and serves in said capacity by virtue of the proclamation, is a de jure official by virtue of a presumptively legal proclamation until voided. He is not merely a de facto official who is a person who has been declared winner by the court or by the COMELEC in an election protest and assumed office based on said protest and who has thereafter been adjudged not entitled to the office.5 Even if an election protest is filed, the proclaimed winner is accepted as the duly elected official and the legal occupant of the office possessed with the authority to exercise its powers and prerogatives until ordered to abdicate. To prevent perpetuity in the position and to avoid circumvention of the three (3)-term limit rule, the first condition on valid election embraces the situation where a candidate has been proclaimed and served in the position even though the proclamation is subsequently voided before or after the lapse of the term.

Moreover, the second sentence of Section 8, Article X of the Constitution refers to "service for the full term for which he was elected." A proclaimed winner, though his/her victory is under protest, is actually serving the term of the office for which s/he was proclaimed as the elected candidate. This equitable construction must be applied to enlarge the letter of the provision to attain its intended objective or carry out its intent.

Likewise, nowhere in Sec. 43 of the Local Government Code is it stated that the service by a local elective official shall be by virtue of a valid election. It can broadly refer to a proclamation of the election of a candidate though later on protested. The liberal interpretation extended to this provision is necessary to include situations which are clearly within the spirit or reason of the provision itself. By such liberal application, the provision will receive a fair and reasonable interpretation so as to attain the intent, spirit, and purpose of the law.6

With respect to the situation where a protestant is declared the winner in an election protest and serves the unexpired portion of the term, such service, with certitude, is by virtue of a valid election. Hence, the first condition is met.

However, an instance where there is no valid election is when an elective official succeeds to a higher office due to death, disqualification, or incapacity of the incumbent as s/he serves by operation of law7 and not by election. Such is the case of Vice Mayor Capco who became mayor of Pateros due to the demise of then Mayor Cesar Borja in the Borja, Jr. case. Another situation not covered by the three (3)-term limit rule is when a candidate won in a recall election and served the unexpired portion of the term as in the case of Mayor Ramon Y. Talaga, Jr. of Lucena City. His victory in the recall election was not considered a term of office because the continuity of his mayoralty was disrupted by his defeat in the 1998 elections.8

Now, focusing on the second condition laid down in Borja, Jr. as applied in Lonzanida that the official must have served the full three (3)-year term for local elective officials, we find that this prescription was likewise followed in Ong.

It is my view which is shared by the Solicitor General in Lonzanida9 that the service of the official for the greater part of the term should be considered as "service of a term" under Sec. 8, Art. X of the Constitution and Sec. 43 (b), Chapter 1 of Republic Act No. (RA) 7160 otherwise known as the Local Government Code. Those who occupy an elective position to which they have been proclaimed and have served for more than two (2) years are deemed to have fully served the term in contemplation of the three (3)-term rule regardless of whether the proclamation is subsequently voided or s/he is subsequently disqualified.

Sec. 8, Art. X of the Constitution simply says "no such official shall serve for more than three consecutive terms." It does not say full service of the three terms. Likewise, Sec. 43 of RA 7160 provides that "no local elective official shall serve for more than three consecutive terms in the same position." Again, there is no mention of full service. The two provisions should be liberally construed to mean that service of the greater portion of the term is substantial compliance with the prescribed service under Sec. 8, Art. X of the Constitution and Section 43, Chapter 1 of RA 7160.

The substantial compliance rule is defined as "[c]ompliance with the essential requirements, whether of a contract or of a statute."10 In our jurisdiction, we have applied this rule or principle in numerous issues relative to the scope and application of constitutional and legal provisions. In particular, we applied the rule in criminal cases to comply with the constitutional requirement that the accused be informed of the charge against him/her as embodied in the Information filed with the court.11 In other cases, we applied the rule both primarily in compliance with the essential statutory requirements and in liberally construing and applying remedial laws for just and compelling reasons in order to promote the orderly administration of justice.12 We see no reason why the doctrine of substantial compliance should not be applied to the provisions in question. Indeed, the realization of the laudable goal behind the three (3)-term limit rule is imperative to foil any scheme to monopolize political power and circumvent the proscription against perpetual stay in elective positions. As tersely explained in Borja, Jr.:

I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate those powers and perquisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or the unbroken service of all of these officials.13

In Ong and Lonzanida, as in this case, the ruling was that the second condition should be satisfied by the full service of the entire term. Such strict interpretation of the constitutional provision in Sec. 8, Art. X and the provision in Sec. 43 of RA 7160 however does not support and enhance the commendable objective behind the three (3)-term limit but even weakens it. To define service as full service of the entire three (3) years of the term would tolerate, entice, and, in effect, sanction circumvention of the three (3)-term ceiling as not all proclaimed winners are able to fully serve the term. Many proclaimed winners have been ordered to vacate their offices prior to the expiry date of the term and hence, are not effectively covered by Lonzanida and Ong. This situation would become even more prevalent when the newly crafted special rules for election contests take effect on May 15, 2007 in time for the 2007 elections as election contests are required to be decided by the trial courts in six (6) months.14 Take for example Lonzanida: while the protestant Avez won the case and assumed the elective office, it was only for a paltry couple of months as the position was vacated by Lonzanida only in April of the election year. Consequently, Lonzanida was not credited that term despite practically serving all of it. The fact that prior to his ouster he was elected and served two full terms means that Lonzanida was eligible to run for another three terms after his ouster or disqualification. If Lonzanida were successful

for his bid for a three-year term, he would thereafter practically have been in position for 18 consecutive years except for an intervening period of over two months. Indeed, if he were credited the full term although he served only the greater portion of it, he would have been barred by the three (3)-term limit. This position would be more in keeping with the intent of the framers of the Constitution in setting the three (3)-term limit to curtail permanence in office and monopoly of power. Indeed, "[t]he fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic law and of the people adopting it."15

With regard to the service of more than two (2) years in the local elective position as benchmark in the determination of the length of service under the three (3)-term limit rule, two (2) years out of the full three (3)-year term constitutes 66% of the term. This is reasonable and fair for it clearly comprises a greater part of the three (3)-year term. Even the members of the 1986 Constitutional Commission had accepted this yardstick when they approved the provision that "no person who has succeeded as President and has served as such for more than four years shall be qualified for election to the same office at any time."16 Four (4) years out of the six (6)-year term for the president is also 66%. Thus, service for a period of more than two (2) years in the term is a fair standard in determining the application of the three (3)-term limit.

In sum and substance, I find that the first requirement of a valid election encompasses the proclamation of a local elective official as a valid election to the position the official was elected. On the second condition, I opine that service of more than two (2) years in the elective position constitutes substantial compliance of the service prescribed under Sec. 8, Art. X of the Constitution and Sec. 43, Chapter I of the Local Government Code.

While respondent Morales was ousted from office for having served more than three (3) consecutive terms (1995-1998, 1998-2001, and 2001-2004), the obvious outcome however from the interregnum of 2004-2007 is that he is qualified to run for a fresh three terms (2007-2010, 2010-2013, and 2013-2016). If we had applied the Lonzanida ruling, Morales would only be allowed to run for the last time for the term 2007-2010 under the three (3)-term quota since there would be a gap in his service during the 1998-2001 term due to a void proclamation. It is because of unique and diverse possibilities that can arise from the application of the three (3)-term limit––that a revisit and elucidation of the Borja, Jr. doctrine on the prescribed valid election and full service of term are in order.

With the foregoing premises, I concur in the result.

PRESBITERO J. VELASCO, JR.

Footnotes1 G.R. No. 133495, September 3, 1998, 295 SCRA 157, 169.2 G.R. No. 135150, July 28, 1999, 311 SCRA 602, 611; applied and reiterated in the later cases of Ong v. Alegre, G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473; and Adormeo v. Comelec, G.R. No. 147927, February 4, 2002, 376 SCRA 90.3 G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473, 482-483.4 Supra note 2, at 605. The pertinent portion reads:

In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled:

"PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant."

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the remainder of the term.

5 Malaluan v. Comelec, G.R. No. 120193, March 6, 1996, 254 SCRA 397, 407.6 Agpalo, Statutory Construction 223; citation omitted.7 R.A. No. 7160, "An Act Providing for a Local Government Code of 1991," Sec. 44.8 See Adormeo v. Comelec, G.R. No. 147927, February 4, 2002, 376 SCRA 90.9 Supra note 2, at 607.10 H. Black, Black’s Law Dictionary 1428 (6th ed., 1990).11 See Olivarez v. Court of Appeals, G.R. No. 163866, July 29, 2005, 465 SCRA 465.12 See Kasapian ng Malayang Manggagawa sa Coca-Cola (KASAMMA-CCO)-CFW Local 245 v. Court of Appeals, G.R. No. 159828, April 19, 2006, 487 SCRA 487; Testate Estate of the Late Alipio Abada v. Abaja, G.R. No. 147145, January 31, 2005, 450 SCRA 264; Gutierrez v. Secretary of the Department of Labor and Employment, G.R. No. 142248, December 16, 2004, 447 SCRA 107.13 Supra note 1, at 164; quoted from then Commissioner Blas F. Ople.14 A.M. No. 07-4-15-SC, Rules of Procedure in Election Contests Before the Courts Involving Elective Municipal and Barangay Officials, April 24, 2007.15 Sarmiento v. Mison, G.R. No. 79974, December 17, 1987, 156 SCRA 549, 552; citation omitted.16 Constitution, Art. VII, Sec. 4.