Rules on Candidacy cases.docx

7/28/2019 Rules on Candidacy cases.docx

http://slidepdf.com/reader/full/rules-on-candidacy-casesdocx 1/66

EN BANC

[G.R. No. 86564. August 1, 1989.]

RAMON L. LABO, JR., petitioner , vs. THECOMMISSION ON ELECTIONS (COMELEC)EN BANC AND LUIS

LARDIZABAL,respondents .

Estelito P . Mendoza for petitioner.

Rillera and Quintana for private respondent.

SYLLABUS

1.SPECIAL CIVIL ACTION; QUO WARRANTO; PETITION FILEDTIMELY. — The Court has considered the arguments of the parties andholds that the petition for quo warranto was filed on time. We agreewith the respondents that the fee was paid during the ten-day period

as extended by the pendency of the petition when it was treated bythe COMELEC as a pre-proclamation proceeding which did not requirethe payment of a filing fee. At that, we reach this conclusion only onthe assumption that the requirement for the payment of the feesin quo warranto proceedings was already effective. There is no recordthat Res. No. 1450 was even published; and as for Res. No. 1996, thistook effect only on March 3, 1988, seven days after its publication inthe February 25, 1988 issues of the Manila Chronicle and the PhilippineDaily Inquirer, or after the petition was filed.

2.ID.; ID.; PAYMENT OF FILING FEES NECESSARY FOR CONFERMENTOF JURISDICTION; COURT MAY ALLOW PAYMENT WITHIN AREASONABLE TIME. — It is true that in the Manchester Case, werequired the timely payment of the filing fee as a precondition for thetimeliness of the filing of the case itself. In Sun Insurance Office, Ltd.v. Asuncion, however, this Court, taking into account the specialcircumstances of that case, reiterated the rule that the trial courtacquires jurisdiction over a case only upon the payment of theprescribed filing fee. However, this court may allow the payment of thesaid fee within a reasonable time. In the event of non-compliancetherewith, the case shall be dismissed. The same idea is expressed inRule 42, Section 18, of the COMELEC Rules of Procedure adopted onJune 20, 1988.

3.CIVIL PROCEDURE; ACTION; RESOLUTION ON THE MERITSINSTEAD OF REMANDING THE CASE TO THE TRIAL COURT FOR FURTHER PROCEEDINGS; AS DEMANDED BY THE DICTATES OFJUSTICE. — Remand of the case to the lower court for furtherreception of evidence is not necessary where the court is in a positionto resolve the dispute based on the records before it. On manyoccasions, the Court, in the public interest and the expeditious

administration of justice, has resolved actions on the merits instead of remanding them to the trial court for further proceedings, such aswhere the ends of justice would not be subserved by the remand of the case or when public interest demands an early disposition of thecase or where the trial court had already received all the evidence of the parties.

4.ID.; ID.; DOCTRINE OF RES JUDICATA NOT APPLICABLE TOQUESTIONS OF CITIZENSHIP; DEFENSE TO BE SEASONABLY INVOKED. — There is also the claim that the decision can no longer bereversed because of the doctrine of res judicata , but this too must bedismissed. This doctrine does not apply to questions of citizenship, asthe Court has ruled in several cases. Moreover, it does not appear thatit was properly and seasonably pleaded, in a motion to dismiss or inthe answer, having been invoked only when the petitioner filed his

reply to the private respondent's comment. Besides, one of therequisites of res judicata , to wit, identity of parties, is not present inthis case.

5.POLITICAL LAW; NATURALIZATION; ACQUISITION OF CITIZENSHIPBY NATURALIZATION. — The petitioner's contention that his marriageto an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or finding that heautomatically ceased to be a Filipino because of that marriage. Hebecame a citizen of Australia because he was naturalized as suchthrough a formal and positive process, simplified in his case because

he was married to an Australian citizen. As a condition for suchnaturalization, he formally took the Oath of Allegiance and/or madethe Affirmation of Allegiance.

6.ID.; CITIZENSHIP; MODES OF LOSING PHILIPPINE CITIZENSHIP. —CA No. 63 enumerates the modes by which Philippine citizenship maybe lost. Among these are: (1) naturalization in a foreign country; (2)express renunciation of citizenship; and (3) subscribing to an oath of allegiance to support the Constitution or laws of a foreign country, allof which are applicable to the petitioner. It is also worth mentioning inthis connection that under Article IV, Section 5, of the presentConstitution, "Dual allegiance of citizens is inimical to the nationalinterest and shall be dealt with by law."

7.ID.; ID.; ANNULMENT OF MARRIAGE TO A FOREIGNER NOT AN

AUTOMATIC RESTORATION OF PHILIPPINE CITIZENSHIP. —

Even if itbe assumed that, as the petitioner asserts, his naturalization in

Australia was annulled after it was found that his marriage to the Australian citizen was bigamous, that circumstance alone did notautomatically restore his Philippine citizenship. His divestiture of

Australian citizenship does not concern us here. That is a matterbetween him and his adopted country. What we must consider is thefact that he voluntarily and freely rejected Philippine citizenship andwillingly and knowingly embraced the citizenship of a foreign country.The possibility that he may have been subsequently rejected by

Australia, as he claims, does not mean that he has been automaticallyreinstated as a citizen of the Philippines.

8.ID.; ID.; MEANS OF REACQUIRING PHILIPPINE CITIZENSHIP. — Under CA No. 63 as amended by PD No. 725, Philippine citizenship

may be reacquired by direct act of Congress, by naturalization, or byrepatriation. It does not appear in the record, nor does the petitionerclaim, that he has reacquired Philippine citizenship by any of thesemethods.

9.ID.; ID.; LACK OF PHILIPPINE CITIZENSHIP ON THE DAY OF LOCALELECTIONS; GROUND FOR DISQUALIFICATION AS A CANDIDATE FORMAYOR. — The petitioner is not now, nor was he on the day of thelocal elections on January 18, 1988, a citizen of the Philippines. In facthe was not even a qualified voter under the Constitution itself becauseof his alienage. He was therefore ineligible as a candidate for mayor ofBaguio City under Section 42 of the Local Government Code.

10.ID.; ELECTION; QUALIFICATIONS OF CANDIDATE FOR PUBLICOFFICE, CONTENDING REQUIREMENTS. — The probability that many

of those who voted for the petitioner may have done so in the belief that he was qualified only strengthens the conclusion that the resultsof the election cannot nullify the qualifications for the office now heldby him. These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemedforfeited. In the case at bar, the citizenship and voting requirementswere not subsequently lost but were not possessed at all in the firstplace on the day of the election. The petitioner was disqualified fromrunning as mayor and, although elected, is not now qualified to serveas such.

11.ID.; ELECTION; CANDIDATE OBTAINING THE SECOND HIGHESTNUMBER OF VOTES; NOT QUALIFIED TO REPLACE THEDISQUALIFIED CANDIDATE; SANTOS RULING REVERSED. — Finally,there is the question of whether or not the private respondent, who



filed the quo warranto petition, can replace the petitioner as mayor. Hecannot. The simple reason is that as he obtained only the secondhighest number of votes in the election, he was obviously not thechoice of the people of Baguio City. Re-examining Santos v.Commission on Election, 137 SCRA 740 the Court finds, and so holds,that it should be reversed in favor of the earlier case of Geronimo v.Ramos, which represents the more logical and democratic rule. Therethe Court held it would be extremely repugnant to the basic concept of the constitutionally guaranteed right to suffrage if a candidate who hasnot acquired the majority or plurality of votes is proclaimed a winnerand imposed as the representative of a constituency, the majority of which have positively declared through their ballots that they do notchoose him.

D E C I S I O N

CRUZ, J p:

The petitioner asks this Court to restrain theCommission on Elections from looking into the question of hiscitizenship as a qualification for his office as Mayor of Baguio City.The allegation that he is a foreigner, he says, is not the issue.The issue is whether or not the public respondent has jurisdictionto conduct any inquiry into this matter, considering that thepetition for quo warranto against him was not filed ontime. cdphil

It is noteworthy that this argument is based on thealleged tardiness not of the petition itself but of the payment of the filing fee, which the petitioner contends was an indispensablerequirement. The fee is, curiously enough, all of P300.00 only.This brings to mind the popular verse that for want of a horse thekingdom was lost. Still, if it is shown that the petition was indeedfiled beyond the reglementary' period, there is no question thatthis petition must be granted and the challenge abated.

The petitioner's position is simple. He was proclaimedmayor-elect of Baguio City on January 20, 1988. The petitionfor quo warranto was filed by the private respondent on January

26,1988, but no filing fee was paid on that date. This fee wasfinally paid on February 10, 1988, or twenty-one days after hisproclamation. As the petition by itself alone was ineffectualwithout the filing fee, it should be deemed filed only when the feewas paid. This was done beyond the reglementary periodprovided for under Section 253 of the Omnibus Election Codereading as follows:

SEC. 253.Petition for quo warranto . — Anyvoter contesting the election of a Member of theBatasang Pambansa, regional, provincial, or cityofficer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shallfiles sworn petition for quo warranto with theCommission within ten days after theproclamation of the result of the election.

The petitioner adds that the payment of the filing fee isrequired under Rule 36, Section 5, of the Procedural Rules of theCOMELEC providing that —

Sec. 5.No petition for quo warranto shall begiven due course without the payment of afiling fee in the amount of Three Hundred Pesos(P300.00) and the legal research fee asrequired by law.

and stresses that there is abundant jurisprudence holding that thepayment of the filing fee is essential to the timeliness of the filingof the petition itself. He cites many rulings of the Court to thiseffect, specifically Manchester v. Court of Appeals. 1

For his part, the private respondent denies that thefiling fee was paid out of time. In fact, he says, it wasfiled ahead of time. His point is that when he filed his "Petition forQuo Warranto with Prayer for Immediate Annulment of Proclamation and Restraining Order or Injunction" on January 26,1988, the COMELEC treated it as a pre-proclamation controversyand docketed it as SPC Case No. 88-288. No docket fee was

collected although it was offered. It was only on February 8,1988, that the COMELEC decided to treat his petition as solelyfor quo warranto and re-docketed it as EPC Case No. 88-19,serving him notice on February 10, 1988. He immediately paidthe filing fee on that date.

The private respondent argues further that during theperiod when the COMELEC regarded his petition as a pre-proclamation controversy, the time for filing an election protestor quo warranto proceeding was deemed suspended underSection 248 of the Omnibus Election Code. 2 At any rate, he says,Rule 36, Section 5, of the COMELEC Rules of Procedure cited bythe petitioner, became effective only on November 15, 1988,seven days after publication of the said Rules in the OfficialGazette pursuant to Section 4, Rule 44 thereof. 3 These rulescould not retroact to January 26,1988, when he filed his petition

with the COMELEC. In his Reply, the petitioner argues that even if the

Omnibus Election Code did not require it, the payment of filingfees was still necessary under Res. No. 1996 and, before that,Res. No. 1450 of the respondent COMELEC, promulgated onJanuary 12, 1988, and February 26, 1980, respectively. To this,the private respondent counters that the latter resolution wasintended for the local elections held on January 30, 1980, and didnot apply to the 1988 local elections, which were supposed to begoverned by the first-mentioned resolution. However, Res. No.1996 took effect only on March 3, 1988, following the lapse of seven days alter its publication as required by RA No. 6646,otherwise known as the Electoral Reform Law of 1987, whichbecame effective on January 5,1988. Its Section 30 provides inpart:

Sec. 30.Effectivity of Regulations and Orders of the Commission . — The rules and regulationspromulgated by the Commission shall takeeffect on the seventh day after their publicationin the Official Gazette or in at least (2) dailynewspapers of general circulation in thePhilippines.

The Court has considered the arguments of the partiesand holds that the petition for quo warranto was filed on time.We agree with the respondents that the fee was paid during theten-day period as extended by the pendency of the petition whenit was treated by the COMELEC as a pre-proclamation proceedingwhich did not require the payment of a filing fee. At that, wereach this conclusion only on the assumption that therequirement for the payment of the fees in quo warranto proceedings was already effective. There is no recordthat Res. No. 1450 was even published; and as for Res. No. 1996,this took effect only on March 3, 1988, seven days after itspublication in the February 25, 1988 issues of the ManilaChronicle and the Philippine Daily Inquirer, or after the petitionwas filed. cdasia

The petitioner forgets Tañada v. Tuvera 4 when heargues that the resolutions became effective "immediately uponapproval" simply because it was so provided therein. We held inthat case that publication was still necessary under the dueprocess clause despite such effectivity clause.

In any event, what is important is that the filing feewas paid, and whatever delay there may have been is not

http://www.cdasiaonline.com/search/show_article/20874?search=%28gr%3A+%28G.R.+No.+86564%2A%29%29+OR+%28gr%3A+%28G.R.+No.+%3F%3F86564+%29%29#footnotes














imputable to the private respondent's fault or neglect. It is truethat in the Manchester Case, we required the timely payment of the filing fee as a precondition for the timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v.

Asuncion, 5 however, this Court, taking into account the specialcircumstances of that case, declared:

This Court reiterates the rule that the trial courtacquires jurisdiction over a case only upon thepayment of the prescribed filing fee. However,the court may allow the payment of the said fee

within a reasonable time. In the event of non-compliance therewith, the case shall bedismissed.

The same idea is expressed in Rule 42, Section 18, of the COMELEC Rules of Procedure adopted on June 20, 1988,thus:

Sec. 18.Non-payment of prescribed fees. — If the fees above prescribed are not paid, theCommission may refuse to take action thereonuntil they are paid and may dismiss the actionor the proceeding. (Emphasis supplied.)

The Court notes that while arguing the technical pointthat the petition for quo warranto should be dismissed for failureto pay the filing fee on time, the petitioner would at the sametime minimize his alleged lack of citizenship as "a futiletechnicality." It is regrettable, to say the least, that therequirement of citizenship as a qualification for public office canbe so demeaned. what is worse is that it is regarded as an evenless important consideration than the reglementary period thepetitioner insists upon.

This matter should normally end here as the sole issueoriginally raised by the petitioner is the timeliness of the quo warranto proceedings against him. However, as his citizenship isthe subject of that proceeding, and considering the necessity foran early resolution of that more important question clearly andurgently affecting the public interest, we shall directly address itnow in this same action.

The Court has similarly acted in a notable number of cases, thus:

From the foregoing brief statement of thenature of the instant case, it would appear thatour sole function in this proceeding should be toresolve the single issue of whether or not theCourt of Appeals erred in ruling that the motionfor new trial of the GSIS in question shouldindeed be deemed pro forma . But going overthe extended pleadings of both parties, theCourt is immediately impressed that substantial

justice may not be timely achieved, if we shoulddecide this case upon such a technical groundalone. We have carefully read all the allegations

and arguments of the parties, very ably andcomprehensively expounded by evidentlyknowledgeable and unusually competentcounsel, and we feel we can better serve theinterests of justice by broadening the scope of our inquiry, for as the record before us stands,we see that there is enough basis for us to endthe basic controversy between the parties hereand now, dispensing, however, with proceduralsteps which would not anyway affectsubstantially the merits of their respectiveclaims. 6

xxx xxx xxx

While it is the fault of the petitioner forappealing to the wrong court and therebyallowing the period for appeal to lapse, themore correct procedure was for the respondentcourt to forward the case to the proper courtwhich was the Court of Appeals for appropriateaction. Considering, however, the length of timethat this case has been pending, we apply therule in the case of Del Castillo v. Jaymalin, (112SCRA 629) and follow the principle enunciatedin Alger Electric, Inc. v. Court of Appeals, (135SCRA 37) which states:

". . . it is a cherished rule of procedure for this Court to alwaysstrive to settle the entire controversyin a single proceeding leaving no rootor branch to bear the seeds of futurelitigation. No useful purpose will beserved if this case is remanded to thetrial court only to have its decisionraised again to the Intermediate

Appellate Court and from there to thisCourt." (p. 43)

Only recently in the case of Beautifont, Inc., etal. v. Court of Appeals, et al. (G.R. No. 50141,January 29,1988), we stated that:

". . . But all those relevantfacts are now before this Court. Andthose facts dictate the rendition of averdict in the petitioner's favor. Thereis therefore no point in referring thecase back to the Court of Appeals.The facts and the legal propositionsinvolved will not change, nor shouldthe ultimate judgment. Considerabletime has already elapsed and, toserve the ends of justice, it is timethat the controversy is finally laid torest. (See Sotto v. Samson, 5 SCRA

733; Republic v. Paredes, 108 Phil.57; Lianga Lumber Co. v. LiangaTimber Co., Inc., 76 SCRA 197; Ericov. Heirs of Chigas, 98 SCRA 575;Francisco v. City of Davao, 12 SCRA628; Valencia v. Mabilangan, 105 Phil.162). 'Sound practice seeks toaccommodate the theory whichavoids waste of time, effort andexpense, both to the parties and thegovernment, not to speak of delay inthe disposal of the case (of:Fernandez v. Garcia, 92 Phil. 592,597). A marked characteristic of our

judicial set-up is that where thedictates of justice so demand . . . the

Supreme Court should act, and actwith finality.' (Li Siu Liat v. Republic,21 SCRA 1039, 1046, citing Samal v.CA, 99 Phil. 230 and U.S. v. Gimenez,34 Phil. 74). In this case, the dictatesof justice do demand that this Courtact, and act with finality." 7

xxx xxx xxx

Remand of the case to the lower court forfurther reception of evidence is not necessarywhere the court is in a position to resolve thedispute based on the records before it. On











many occasions, the Court, in the public interestand the expeditious administration of justice,has resolved actions on the merits instead of remanding them to the trial court for furtherproceedings, such as where the ends of justicewould not be subserved by the remand of thecase or when public interest demands an earlydisposition of the case or where the trial courthad already received all the evidence of theparties. 8

This course of action becomes all the more justified inthe present case where, to repeat for stress, it is claimed that aforeigner is holding a public office.

We also note in his Reply, the petitioner says:

In adopting private respondent's comment,respondent COMELEC implicitly adopted as "itsown" private respondent's repeated assertionthat petitioner is no longer a Filipino citizen. Inso doing, has not respondent COMELECeffectively disqualified itself, by reason of prejudgment, from resolving the petitionfor quo warranto filed by private respondent stillpending before it? 9

This is still another reason why the Court has seen fit torule directly on the merits of this case.

Going over the record, we find that there are twoadministrative decisions on the question of the petitioner'scitizenship. The first was rendered by the Commission onElections on May 12, 1982, and found the petitioner to be acitizen of the Philippines. 10 The second was rendered by theCommission on Immigration and Deportation on September 13,1988, and held that the petitioner was not a citizen of thePhilippines. 11

The first decision was penned by then COMELECChairman Vicente Santiago, Jr., with Commissioners Pabalate,

Savellano and Opinion concurring in full and CommissionerBacungan concurring in the dismissal of the petition "withoutprejudice to the issue of the respondent's citizenship being raiseda new in a proper case. "Commissioner Sagadraca reserved hisvote, while Commissioner Felipe was for deferring decision untilrepresentations shall have been made with the AustralianEmbassy for official verification of the petitioner's allegednaturalization as an Australian.

The second decision was unanimously rendered byChairman Miriam Defensor-Santiago and Commissioners Alanoand Geraldez of the Commission on Immigration andDeportation. prLL

It is important to observe that in the proceeding beforethe COMELEC, there was no direct proof that the herein petitionerhad been formally naturalized as a citizen of Australia. Thisconjecture, which was eventually rejected, was merely inferredfrom the fact that he had married an Australian citizen, obtainedan Australian passport, and registered as en alien with the CIDupon his return to this country in 1980.

On the other hand, the decision of the CID took intoaccount the official statement of the Australian Government dated

August 12, 1984, through its Consul in the Philippines, that thepetitioner was still an Australian citizen as of that date by reasonof his naturalization in 1976. That statement 12is reproduced infull as follows:

I, GRAHAM COLIN WEST, Consul of Australia inthe Philippines, by virtue of a certificate of appointment signed and sealed by the

Australian Minister of State for Foreign Affairson 19 October 1983, and recognized as such byLetter of Patent signed and sealed by thePhilippines Acting Minister of Foreign Affairs on23 November 1983, do hereby provide thefollowing statement in response to theSubpoena Testificandum dated 9 April 1984 inregard to the Petition for disqualification againstRAMON LABO, JR. Y LOZANO (SPC No. 84-73).and do hereby certify that the statement is trueand correct.

STATEMENT

A)RAMON LABO, JR. Y LOZANO, date of birth23 December 1934, was married in thePhilippines to an Australian citizen. As thespouse of an Australian citizen, he was notrequired to meet normal requirements for thegrant of citizenship and was granted Australian citizenship by Sydney on 28 July 1976 .

B)Any person over the age of 16 years who isgranted Australian citizenship must take an oath of allegiance or make an affirmation of allegiance . The wording of the oath of

affirmation is: "I. . . ., renouncing all otherallegiance . . . .," etc. This need not necessarilyhave any effect on his former nationality as thiswould depend on the citizenship laws of hisformer country.

C)The marriage was declared void in the Australian Federal Court in Sydney on 27 June1980 on the ground that the marriage had beenbigamous.

D)According to our records LABO is still an Australian citizen.

E)Should he return to Australia, LABO may facecourt action in respect of Section 50 of

Australian Citizenship Act 1948 which relates tothe giving of false or misleading information of a material nature in respect of an application for

Australian citizenship. If such a prosecution wassuccessful, he could be deprived of Australiancitizenship under Section 21 of the Act.

F)There are two further ways in which LABOcould divest himself of Australian citizenship:

(i)He could make adeclaration of Renunciation of

Australian citizenship under Section

18 of the Australian Citizenship Act,or

(ii)If he acquired anothernationality, (for example, Filipino) bya formal end voluntary act other thanmarriage, then he wouldautomatically lose his Australiancitizenship under Section 17 of the

Act.

IN WITNESS WHEREOF, I HAVE HEREUNTOSET MAY HAND AND SEAL OF THE

AUSTRALIAN EMBASSY, MANILA, THIS 12THDAY OF APRIL 1984.



















DONE AT MANILA IN THE PHILIPPINES.

(Signed)

GRAHAMC. WEST

Consul

This was affirmed later by the letter of February 1,

1988, addressed to the private respondent by the Department of Foreign Affairs reading as follows: 13

Sir:

With reference to your letter dated 1 February1988, I wish to inform you that inquiry madewith the Australian Government through theEmbassy of the Philippines in Canberra haselicited the following information:

1)That Mr. Ramon L. Labo,Jr. acquired Australian citizenship on28 July 1976.

2)That prior to 17 July1986, a candidate for Australiancitizenship had to either swear anoath of allegiance or make anaffirmation of allegiance which carriesa renunciation of "all otherallegiance."

Very trulyyours,

For theSecretaryof Foreign

Affairs:

(SGD)RODOLFOSEVERIN

O, JR

AssistantSecretary

The decision also noted the oath of allegiance taken byevery naturalized Australian reading as follows:

OATH OF ALLEGIANCE

I, A.B., renouncing all other allegiance, swear by Almighty God that I will be faithful and bear true allegiance to HerMajesty Elizabeth the Second, Queen of Australia, Her heirs andsuccessors according to law, and that I will faithfully observe thelaws of Australia and fulfill my duties as an Australian citizen. 14

and the Affirmation of Allegiance, which declares:

AFFIRMATION OF ALLEGIANCE

I, A.B., renouncing all other allegiance, solemnly and sincerely promise anddeclare that I will be faithful and bear trueallegiance to Her Majesty Elizabeth the Second,Queen of Australia, Her heirs and successorsaccording to law, and that I will faithfully

observe the Laws of Australia and fulfill myduties as an Australian citizen. 15

The petitioner does not question the authenticity of theabove evidence. Neither does he deny that he obtained AustralianPassport No. 754705, which he used in coming back to thePhilippines in 1980, when he declared before the immigrationauthorities that he was an alien and registered as such under

Alien Certificate of Registration No. B-323985. 16 He later askedfor the change of his status from immigrant to a returning formerPhilippine citizen and was granted Immigrant Certificate of

Residence No. 223809. 17 He also categorically declared that hewas a citizen of Australia in a number of sworn statementsvoluntarily made by him and. even sought to avoid the

jurisdiction of the barangay court on the ground that he was aforeigner. 18

The decision of the COMELEC in 1982 quaintlydismisses all these acts as "mistakes" that did not divest thepetitioner of his citizenship, although, as earlier noted, not all themember joined in this finding. We reject this ruling as totallybaseless. The petitioner is not an unlettered person who was notaware of the consequences of his acts, let alone the fact that hewas assisted by counsel when he performed these acts.

The private respondent questions the motives of theCOMELEC at that time and stresses Labo's political affiliation withthe party in power then, but we need not go into that now.

There is also the claim that the decision can no longerbe reversed because of the doctrine of res judicata , but this toomust be dismissed. This doctrine does not apply to questions of citizenship, as the Court has ruled in several cases. 19 Moreover,it does not appear that it was properly and seasonably pleaded, ina motion to dismiss or in the answer, having been invoked onlywhen the petitioner filed his reply 20 to the private respondent'scomment. Besides, one of the requisites of res judicata , to wit,identity of parties, is not present in this case.

The petitioner's contention that his marriage to an Australian national in 1976 did not automatically divest him of Philippine citizenship is irrelevant. There is no claim or findingthat he automatically ceased to be a Filipino because of thatmarriage. He became a citizen of Australia because he wasnaturalized as such through a formal and positive process,

simplified in his case because he was married to an Australiancitizen. As a condition for such naturalization, he formally took theOath of Allegiance and/or made the Affirmation of Allegiance,both quoted above. Renouncing all other allegiance, he swore "tobe faithful and bear true allegiance to Her Majesty Elizabeth theSecond, Queen of Australia. . . . , and to fulfill his duties as an

Australian citizen." cdll

The petitioner now claims that his naturalization in Australia made him at worst only a dual national and did notdivest him of his Philippine citizenship. Such a specious argumentcannot stand against the clear provisions of CA No. 63, whichenumerates the modes by which Philippine citizenship may belost. Among these are: (1) naturalization in a foreign country; (2)express renunciation of citizenship; and (3) subscribing to an oathof allegiance to support the Constitution or laws of a foreign

country, all of which are applicable to the petitioner. It is alsoworth mentioning in this connection that under Article IV, Section5, of the present Constitution, "Dual allegiance of citizens isinimical to the national interest and shall be dealt with by law."

Even if it be assumed that, as the petitioner asserts, hisnaturalization in Australia was annulled after it was found that hismarriage to the Australian citizen was bigamous, thatcircumstance alone did not automatically restore his Philippinecitizenship. His divestiture of Australian citizenship does notconcern us here. That is a matter between him and his adoptedcountry. What we must consider is the fact that he voluntarilyand freely rejected Philippine citizenship and willingly andknowingly embraced the citizenship of a foreign country. The



























possibility that he may have been subsequently rejected by Australia, as he claims, does not mean that he has beenautomatically reinstated as a citizen of the Philippines.

Under CA No. 63 as amended by PD No. 725, Philippinecitizenship may be reacquired by direct act of Congress, bynaturalization, or by repatriation. It does not appear in therecord, nor does the petitioner claim, that he has reacquiredPhilippine citizenship by any of these methods. He does not pointto any judicial decree of naturalization as to any statute directlyconferring Philippine citizenship upon him. Neither has he shownthat he has complied with PD No. 725, providing that:

. . . (2) natural-born Filipinos who have losttheir Philippine citizenship may reacquirePhilippine citizenship through repatriation byapplying with the Special Committee onNaturalization created by Letter of InstructionNo. 270, and, if their applications are approved, taking the necessary oath of allegiance to the Republic of the Philippines,after which they shall be deemed to havereacquired Philippine citizenship. TheCommission on Immigration and Deportationshall thereupon cancel their certificate of registration. (Emphasis supplied.)

That is why the Commission on Immigration andDeportation rejected his application for the cancellation of hisalien certificate of registration. And that is also the reason wemust deny his present claim for recognition as a citizen of thePhilippines.

The petitioner is not now, nor was he on the day of thelocal elections on January 18, 1988, a citizen of the Philippines. Infact, he was not even a qualified voter under the Constitutionitself because of his alienage. 21 He was therefore ineligible as acandidate for mayor of Baguio City under Section 42 of the LocalGovernment Code providing in material part as follows:

Sec. 42.Qualifications . — (1) An elective localofficial must be a citizen of the Philippines, atleast twenty-three years of age on election day,

a qualified voter registered as such in thebarangay, municipality, city or province wherehe proposes to be elected, a resident therein forat least one year at the time of the filing of hiscertificate of candidacy, and able to read andwrite English, Pilipino, or any other locallanguage or dialect.

The petitioner argues that his alleged lack of citizenshipis a "futile technicality" that should not frustrate the will of theelectorate of Baguio City who elected him by a "resonant andthunderous majority." To be accurate, it was not as loud as allthat, for his lead over the second-placer was only about 2,100votes. In any event, the people of that locality could not have,even unanimously, changed the requirements of the Local

Government Code and the Constitution. The electorate had nopower to permit a foreigner owing his total allegiance to theQueen of Australia, or at least a stateless individual owing noallegiance to the Republic of the Philippines, to preside over themas mayor of their city. Only citizens of the Philippines have thatprivilege over their countrymen.

The probability that many of those who voted for thepetitioner may have done so in the belief that he was qualifiedonly strengthens the conclusion that the results of the electioncannot nullify the qualifications for the office now held by him.These qualifications are continuing requirements; once any of them is lost during incumbency, title to the office itself is deemedforfeited. In the case at bar, the citizenship and votingrequirements were not subsequently lost but were not possessedat all in the first place on the day of the election. The petitioner

was disqualified from running as mayor and, although elected, isnot now qualified to serve as such. LLpr

Finally, there is the question of whether or not theprivate respondent, who filed the quo warranto petition, canreplace the petitioner as mayor. He cannot. The simple reason isthat as he obtained only the second highest number of votes inthe election, he was obviously not the choice of the people of Baguio City.

The latest ruling of the Court on this issue is Santos v.Commission on Elections, 22 decided in 1985. In that case, thecandidate who placed second was proclaimed elected after thevotes for his winning rival, who was disqualified as a turncoat andconsidered a non-candidate, were all disregarded as stray. Ineffect, the second placer won by default. That decision wassupported by eight members of the Court then, 23 with threedissenting 24 and another two reserving their vote.25 One wason official leave. 26

Re-examining that decision, the Court finds, and soholds, that it should be reversed in favor of the earlier case of Geronimo v. Ramos, 27 which represents the more logical anddemocratic rule. That case, which reiterated the doctrine firstannounced in 1912 in Topacio vs. Paredes, 28 was supported byten members of the Court, 29 without any dissent, although onereserved his vote, 30 another took no part, 31 and two otherswere an leave. 32 There the Court held:

". . . it would be extremely repugnant to thebasic concept of the constitutionally guaranteedright to suffrage if a candidate who has notacquired the majority or plurality of votes isproclaimed a winner and imposed as therepresentative of a constituency, the majority of which have positively declared through theirballots that they do not choose him.

Sound policy dictates that public elective officesare filled by those who have received thehighest number of votes cast in the election forthat office, and it is a fundamental idea in allrepublican forms of government that no onecan be declared elected and no measure can be

declared carried unless he or it receives amajority or plurality of the legal votes cast inthe election. (20 Corpus Juris 2nd, S 243, p.676.)

The fact that the candidate who obtained thehighest number of votes is later declared to bedisqualified or not eligible for the office to whichhe was elected does not necessarily entitle thecandidate who obtained the second highestnumber of votes to be declared the winner of the elective office. The votes cast for a dead,disqualified, or non-eligible person may not bevalid to vote the winner into office or maintainhim there. However, in the absence of a statute

which clearly asserts a contrary political andlegislative policy on the matter, if the voteswere cast in the sincere belief that thecandidate was alive, qualified, or eligible, theyshould not be treated as stray, void ormeaningless.

It remains to stress that the citizen of the Philippinesmust take pride in his status as such and cherish this priceless giftthat, out of more than a hundred other nationalities, God hasseen fit to grant him. Having been so endowed, he must notlightly yield this precious advantage, rejecting it for another landthat may offer him material and other attractions that he may notfind in his own country. To be sure, he has the right to renouncethe Philippines if he sees fit and transfer his allegiance to a state



















































with more allurements for him. 33 But having done so, he cannotexpect to be welcomed back with open arms once his taste for hisadopted country turns sour or he is himself disowned by it as anundesirable alien.

Philippine citizenship is not a cheap commodity that canbe easily recovered after its renunciation. It may be restored onlyafter the returning renegade makes a formal act of re-dedicationto the country he has abjured and he solemnly affirms once againhis total and exclusive loyalty to the Republic of the Philippines.This may not be accomplished by election to public office.

WHEREFORE, petitioner Ramon J. Labo, Jr. is herebydeclared NOT a citizen of the Philippines and thereforeDISQUALIFIED from continuing to serve as Mayor of Baguio City.He is ordered to VACATE his office and surrender the same to the

Vice-Mayor of Baguio City once this decision becomes final andexecutory. The temporary restraining order dated January 31,1989, is LIFTED.

Fernan, C . J . , Narvasa, Melencio-Herrera, Paras,Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, Griño-

Aquino, Medialdea and Regalado, JJ ., concur.

Separate Opinions

GUTIERREZ, JR., J . , concurring :

As in the case of Frivaldo v. Commission on Elections (G. R. No. 87193, June 23, 1989) and inspite of whatwould otherwise be insuperable procedural obstacles, I amconstrained to concur in the Court's decision so forcefully andfelicitously written by Mr. Justice Isagani A. Cruz. I do so becauseI cannot see how the Court can countenance a citizen of a foreigncountry or one who has renounced Filipino citizenship sitting asthe mayor of one of the most important cities in thePhilippines. dctai

What was raised to the Court was only the issue of theCOMELEC's jurisdiction to inquire into the citizenship of thepetitioner. Ordinarily, we would have limited ourselves tosustaining the jurisdiction of the COMELEC and remanding thecase for further proceedings and the rendition of a decision.Under Section 7, Article XI-A of the Constitution, a decision,order, or ruling of the COMELEC may be brought to the SupremeCourt on certiorari by the aggrieved party within thirty days fromreceipt of a copy thereof. No decision on the petitioner'scitizenship has been rendered and no decision can, as yet, beelevated to us for review. I, therefore, reiterate my statementin Frivaldo that my concurrence is limited only to cases involvingcitizenship and disloyalty but not to any of the many othergrounds for disqualification cited in my concurring opinion.

Our decision to disqualify the petitioner is particularlydistressing to me because I am impressed by the singularachievements in the beautification of Baguio City, in the peaceand order situation, and in the resurgence of civic pride so visible

to anyone who has gone up to Baguio since Mr. Labo assumedthe mayorship. However, I see no other way this case can beresolved except by adopting a pragmatic approach. It is beyonddispute that a non-citizen cannot be the mayor of Baguio City. I

join the rest of the Court.







EN BANC

[G.R. No. 88831. November 8, 1990.]

MATEO CAASI, petitioner , vs. THE HON.COURT OF APPEALS and MERITO C.MIGUEL, respondents .

[G.R. No. 84508. November 8, 1990.]

ANECITO CASCANTE, petitioner , vs.THE COMMISSION ON ELECTIONS andMERITO C. MIGUEL, respondents .

Ireneo B . Orlino for petitioner in G.R. Nos. 88831 & 84508.

Montemayor & Montemayor Law Office for private respondent.

SYLLABUS

1.POLITICAL LAW; SUFFRAGE AND ELECTIONS; ELIGIBILITY OFCANDIDATES; IMMIGRATION TO THE UNITED STATES,CONSTITUTED AN ABANDONMENT OF DOMICILE AND RESIDENCE INTHE PHILIPPINES. — In the case of Merito Miguel, the Court deems itsignificant that in the "Application for Immigrant Visa and AlienRegistration" (Optional Form No. 230, Department of State) whichMiguel filled up in his own handwriting and submitted to the USEmbassy in Manila before his departure for the United States in 1984,Miguel's answer to Question No. 21 therein regarding his "Length of intended stay (if permanently, so state)," Miguel's answer was,"Permanently ." On its face, the green card that was subsequentlyissued by the United States Department of Justice and Immigrationand Registration Service to the respondent Merito C. Miguel identifieshim in clear bold letters as a RESIDENT ALIEN. Despite his vigorous

disclaimer, Miguel's immigration to the United States in 1984constituted an abandonment of his domicile and residence in thePhilippines. For he did not go to the United States merely to visit hischildren or his doctor there, he entered the United States with theintention to live there permanently as evidenced by his application foran immigrant's (not a visitor's or tourist's) visa. Based on thatapplication of his, he was issued by the U.S. Government the requisitegreen card or authority to reside there permanently.

2.ID.; ID.; ID.; "IMMIGRATION" AND "IMMIGRANT", DEFINED. — "Immigration is the removing into one place from another; the act of immigrating, the entering into a country with the intention of residingin it. " An immigrant is a person who removes into a country for thepurpose of permanent residence . As shown infra 84, however, statutessometimes give a broader meaning to the term immigrant.'" (3 CJS

674.)

3.ID.; ID.; ID.; SECTION 68 OF THE OMNIBUS ELECTION CODE (B.P.BLG. 881), APPLICABLE TO THE CASE AT BAR, NOT SECTION 18,

ARTICLE IX OF THE 1987 CONSTITUTION. — Section 18, Article XI of the 1987 Constitution which provides that "any public officer oremployee who seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt withby law" is not applicable to Merito Miguel for he acquired the status of an immigrant of the United States before he was elected to publicoffice, not "during his tenure" as mayor of Bolinao, Pangasinan. Thelaw applicable to him is Section 68 of the Omnibus Election Code (B.P.Blg. 881), which provides: "Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to run forany elective office under this Code, unless such person has waived his

status as permanent resident or immigrant of a foreign country inaccordance with the residence requirement provided for in the electionlaws."

4.ID.; ID.; ID.; REQUIRED PRIOR WAIVER OF GREEN CARD,CONSTRUED. — To be "qualified to run for elective office" in thePhilippines, the law requires that the candidate who is a green cardholder must have "waived his status as a permanent resident orimmigrant of a foreign country." Therefore, his act of filing a certificateof candidacy for elective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant

of the United States. The waiver of his green card should bemanifested by some act or acts independent of and done prior to f ilinghis candidacy for elective office in this country. Without such priorwaiver, he was "disqualified to run for any elective office" (Sec. 68,Omnibus Election Code).

5.ID.; ID.; ID.; RESIDENCE REQUIREMENT; REASON THEREFOR. — The reason for Section 68 of the Omnibus Election Code is not hard tofind Residence in the municipality where he intends to run for electiveoffice for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for electivepublic office must possess (Sec. 42, Chap. 1, Title 2, Local GovernmentCode). Miguel did not possess that qualification because he was apermanent resident of the United States and he resided in Bolinao fora period of only three (3) months (not one year) after his return to thePhilippines in November 1987 and before he ran for mayor of thatmunicipality on January 18, 1988. In banning from elective publicoffice Philippine citizens who are permanent residents or immigrants ofa foreign country, the Omnibus Election Code has laid down a clearpolicy of excluding from the right to hold elective public office thosePhilippine citizens who possess dual loyalties and allegiance. The lawhas reserved that privilege for its citizens who have cast their lot withour country "without mental reservations or purpose of evasion." Theassumption is that those who are resident aliens of a foreign countryare incapable of such entire devotion to the interest and welfare of their homeland for with one eye on their public duties here, they mustkeep another eye on their duties under the laws of the foreign countryof their choice in order to preserve their status as permanent residentsthereof.

6.ID.; ID.; ID.; WAIVER OF IMMIGRANT STATUS, SHOULD BE AS

INDUBITABLE AS THE APPLICATION FOR IT. —

Miguel's applicationfor immigrant status and permanent residence in the U.S. and hispossession of a green card attesting to such status are conclusiveproof that he is a permanent resident of the U.S. despite his occasionavisits to the Philippines. The waiver of such immigrant status should beas indubitable as his application for it. Absent clear evidence that hemade an irrevocable waiver of that status or that he surrendered hisgreen card to the appropriate U.S. authorities before he ran for mayorof Bolinao in the local elections on January 18, 1988, our conclusion isthat he was disqualified to run for said public office, hence, his electionthereto was null and void.

D E C I S I O N

GRIÑO-AQUINO, J p:

These two cases were consolidated because they have the sameobjective; the disqualification under Section 68 of the OmnibusElection Code of the private respondent, Merito Miguel, for the positionof municipal mayor of Bolinao, Pangasinan, to which he was elected inthe local elections of January 18, 1988, on the ground that he is agreen card holder, hence, a permanent resident of the United States of

America, not of Bolinao. LLpr



G.R. No. 84508 is a petition for review on certiorari of the decisiondated January 13, 1988 of the COMELEC First Division, dismissing thethree (3) petitions of Anecito Cascante (SPC No. 87-551), CedericoCatabay (SPC No. 87-595) and Josefino C. Celeste (SPC No. 87-604),for the disqualification of Merito C. Miguel, filed prior to the localelections on January 18, 1988.

G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petitionfor review of the decision dated June 21, 1989, of the Court of Appealsin CA-G.R. SP No. 14531 dismissing the petition for quo warranto filedby Mateo Caasi, a rival candidate for the position of municipal mayor of

Bolinao, Pangasinan, also to disqualify Merito Miguel on account of hisbeing a green card holder.

In his answer to both petitions, Miguel admitted that he holds a greencard issued to him by the US Immigration Service, but he denied thathe is a permanent resident of the United States. He allegedly obtainedthe green card for convenience in order that he may freely enter theUnited States for his periodic medical examination and to visit hischildren there. He alleged that he is a permanent resident of Bolinao,Pangasinan that he voted in all previous elections, including theplebiscite on February 2, 1987 for the ratification of the 1987Constitution, and the congressional elections on May 18, 1987.

After hearing the consolidated petitions before it, the COMELEC, withthe exception of Commissioner Anacleto Badoy, Jr., dismissed the

petitions on the ground that:

"The possession of a green card by therespondent (Miguel) does not sufficientlyestablish that he has abandoned his residencein the Philippines. On the contrary, inspite (sic)of his green card, Respondent has sufficientlyindicated his intention to continuously reside inBolinao as shown by his having voted insuccessive elections in said municipality. As therespondent meets the basic requirements of citizenship and residence for candidates toelective local officials (sic) as provided for inSection 42 of the Local Government Code, thereis no legal obstacle to his candidacy for mayor

of Bolinao, Pangasinan." (p. 12, Rollo, G.R. No.84508)

In his dissenting opinion, Commissioner Badoy, Jr. opined that:

"A green card holder being a permanentresident of or an immigrant of a foreign countryand respondent having admitted that he is agreen card holder, it is incumbent upon him,under Section 68 of the Omnibus Election Code,to prove that he 'has waived his status as apermanent resident or immigrant' to bequalified to run for elected office. Thisrespondent has not done." (p. 13, Rollo, G.R.No. 84508.)

In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals andMerito Miguel, respondents," the petitioner prays for a review of thedecision dated June 21, 1989 of the Court of Appeals in CA-G.R. SPNo. 14531 "Merito C. Miguel, petitioner vs. Hon. Artemio R. Corpus,etc., respondents," reversing the decision of the Regional Trial Courtwhich denied Miguel's motion to dismiss the petition for quo warranto filed by Caasi. The Court of Appeals ordered the regional trialcourt to dismiss and desist from further proceeding in the quo warranto case. The Court of Appeals held: cdphil

". . . it is pointless for the Regional Trial Courtto hear the case questioning the qualification of the petitioner as resident of the Philippines,after the COMELEC has ruled that the petitionermeets the very basic requirements of citizenshipand residence for candidates to elective localofficials (sic) and that there is no legal obstacles(sic) for the candidacy of the petitioner,considering that decisions of the Regional TrialCourts on quo warranto cases under theElection Code are appealable to the COMELEC."(p. 22, Rollo, G.R. No. 88831.)

These two cases pose the twin issues of: (1) whether or not a greencard is proof that the holder is a permanent resident of the UnitedStates, and (2) whether respondent Miguel had waived his status as apermanent resident of or immigrant to the U.S.A. prior to the localelections on January 18, 1988.

Section 18, Article XI of the 1987 Constitution provides:

"Sec. 18.Public officers and employees owe theState and this Constitution allegiance at alltimes, and any public officer or employee whoseeks to change his citizenship or acquire thestatus of an immigrant of another

country during his tenure shall be dealt with bylaw."

In the same vein, but not quite, Section 68 of the Omnibus ElectionCode of the Philippines (B.P. Blg. 881) provides:

"SEC. 68.Disqualifications . . . Any person whois a permanent resident of or an immigrant to aforeign country shall not be qualified to run forany elective office under this Code, unless saidperson has waived his status as permanentresident or immigrant of a foreign country inaccordance with the residence requirementprovided for in the election laws. (Sec. 25,1971, EC)."

In view of current rumor that a good number of elective andappointive public officials in the present administration of PresidentCorazon C. Aquino are holders of green cards in foreign countries,their effect on the holders' right to hold elective public office in thePhilippines is a question that excites much interest in the outcome of this case. dctai

In the case of Merito Miguel, the Court deems it significant that in the"Application for Immigrant Visa and Alien Registration" (Optional FormNo. 230, Department of State) which Miguel filled up in his ownhandwriting and submitted to the US Embassy in Manila before hisdeparture for the United States in 1984, Miguel's answer to QuestionNo. 21 therein regarding his "Length of intended stay (if permanently,so state)," Miguel's answer was, "Permanently ."

On its face, the green card that was subsequently issued by the UnitedStates Department of Justice and Immigration and Registration Serviceto the respondent Merito C. Miguel identifies him in clear bold lettersas a RESIDENT ALIEN. On the back of the card, the upper portion, thefollowing information is printed:

"Alien Registration Receipt Card

"Person identified by this card is entitled to reside permanently and work in the UnitedStates." (Annex A pp. 189-190, Rollo of G.R.No. 84508.)



Despite his vigorous disclaimer, Miguel's immigration to the UnitedStates in 1984 constituted an abandonment of his domicile andresidence in the Philippines. For he did not go to the United Statesmerely to visit his children or his doctor there, he entered the UnitedStates with the intention to live there permanently as evidenced by hisapplication for an immigrant's (not a visitor's or tourist's) visa. Basedon that application of his, he was issued by the U.S. Government therequisite green card or authority to reside there permanently. cdrep

"Immigration is the removing into one placefrom another; the act of immigrating, the

entering into a country with the intention of residing in it.

" An immigrant is a person who removes into acountry for the purpose of permanent residence . As shown infra 84, however, statutessometimes give a broader meaning to the termimmigrant.'" (3 CJS 674.)

As a resident alien in the U.S., Miguel owes temporaryand local allegiance to the U.S., the country in which he resides(3 CJS 527). This is in return for the protection given to himduring the period of his residence therein.

"Aliens residing in the United States, while theyare permitted to remain, are in general entitledto the protection of the laws with regard totheir rights of person and property and to theircivil and criminal responsibility.

"In general, aliens residing in the United States,while they are permitted to remain, are entitledto the safeguards of the constitution withregard to their rights of person and propertyand to their civil and criminal responsibility.Thus resident alien friends are entitled to thebenefit of the provision of the Fourteenth

Amendment to the federal constitution that nostate shall deprive 'any person' of life, liberty, orproperty without due process of law, or deny to

'any person' the equal protection of the law,and the protection of this amendment extendsto the right to earn a livelihood by following theordinary occupations of life. So an alien isentitled to the protection of the provision of theFifth Amendment to the federal constitutionthat no person shall be deprived of life, liberty,or property without due process of law." (3 CJS529-530.)

Section 18, Article XI of the 1987 Constitution which provides that "anypublic officer or employee who seeks to change his citizenship oracquire the status of an immigrant of another country during histenure shall be dealt with by law" is not applicable to Merito Miguel forhe acquired the status of an immigrant of the United States before he

was elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.

The law applicable to him is Section 68 of the Omnibus Election Code(B.P. Blg. 881), which provides:

"xxx xxx xxx

"Any person who is a permanent resident of oran immigrant to a foreign country shall not bequalified to run for any elective office under thisCode, unless such person has waived his statusas permanent resident or immigrant of a foreigncountry in accordance with the residence

requirement provided for in the electionlaws." cdrep

Did Miguel, by returning to the Philippines in November 1987 andpresenting himself as a candidate for mayor of Bolinao in the January18, 1988 local elections, waive his status as a permanent resident orimmigrant of the United States?

To be "qualified to run for elective office" in the Philippines, the lawrequires that the candidate who is a green card holder must have"waived his status as a permanent resident or immigrant of a foreigncountry." Therefore, his act of filing a certificate of candidacy forelective office in the Philippines, did not of itself constitute a waiver of his status as a permanent resident or immigrant of the United States.The waiver of his green card should be manifested by some act or actsindependent of and done prior to filing his candidacy for elective officein this country. Without such prior waiver, he was "disqualified to runfor any elective office" (Sec. 68, Omnibus Election Code). LLjur

Respondent Merito Miguel admits that he holds a green card, whichproves that he is a permanent resident or immigrant of the UnitedStates, but the records of this case are starkly bare of proof that hehad waived his status as such before he ran for election as municipalmayor of Bolinao on January 18, 1988. We, therefore, hold that hewas disqualified to become a candidate for that office.

The reason for Section 68 of the Omnibus Election Code is not hard tofind Residence in the municipality where he intends to run for electiveoffice for at least one (1) year at the time of filing his certificate of candidacy, is one of the qualifications that a candidate for electivepublic office must possess (Sec. 42, Chap. 1, Title 2, Local GovernmentCode). Miguel did not possess that qualification because he was apermanent resident of the United States and he resided in Bolinao fora period of only three (3) months (not one year) after his return to thePhilippines in November 1987 and before he ran for mayor of thatmunicipality on January 18, 1988.

In banning from elective public office Philippine citizens who arepermanent residents or immigrants of a foreign country, the OmnibusElection Code has laid down a clear policy of excluding from the rightto hold elective public office those Philippine citizens who possess dual

loyalties and allegiance. The law has reserved that privilege for itscitizens who have cast their lot with our country "without mentalreservations or purpose of evasion." The assumption is that those whoare resident aliens of a foreign country are incapable of such entiredevotion to the interest and welfare of their homeland for with one eyeon their public duties here, they must keep another eye on their dutiesunder the laws of the foreign country of their choice in order topreserve their status as permanent residents thereof.

Miguel insists that even though he applied for immigration andpermanent residence in the United States, he never really intended tolive there permanently, for all that he wanted was a green card toenable him to come and go to the U.S. with ease. In other words, hewould have this Court believe that he applied for immigration to theU.S. under false pretenses; that all this time he only had one foot in

the United States but kept his other foot in the Philippines. Even if thatwere true, this Court will not allow itself to be a party to his duplicityby permitting him to benefit from it, and giving him the best of bothworlds so to speak.

Miguel's application for immigrant status and permanent residence inthe U.S. and his possession of a green card attesting to such statusare conclusive proof that he is a permanent resident of the U.S.despite his occasional visits to the Philippines. The waiver of suchimmigrant status should be as indubitable as his application for it.

Absent clear evidence that he made an irrevocable waiver of thatstatus or that he surrendered his green card to the appropriate U.S.authorities before he ran for mayor of Bolinao in the local elections onJanuary 18, 1988, our conclusion is that he was disqualified to run forsaid public office, hence, his election thereto was null and void. LLjur



WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No.14531 respectively, are hereby set aside. The election of respondentMerito C. Miguel as municipal mayor of Bolinao, Pangasinan is herebyannulled. Costs against the said respondent.

SO ORDERED.



EN BANC

[G.R. No. 93986. December 22, 1992.]

BENJAMINT. LOONG, petitioner , vs. COMMISSION ONELECTIONS, NURHUSSEIN UTUTALUM and ALIM BASHIR EDRIS,respondents .

SYLLABUS

1.CONSTITUTIONAL LAW; OMNIBUS ELECTION CODE; 25-DAY PERIOD PRESCRIBED BY SEC. 78 OF THE CODE CANNOT BESUPERSEDED BY THECOMELEC'S RULES OFPROCEDURE; COMELEC HAS NO LEGISLATIVE POWERS. — Section 74of the Omnibus Election Code ("Code" for brevity) provides that thecertificate of candidacy of the person filing it shall state, among others,the date of birth of said person. Section 78 of the same Code statesthat in case a person filing a certificate of candidacy has committedfalse representation, a petition to cancel the certificate of the aforesaid person may be filed within twenty-five (25) days from the time the certificate was filed . Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribed by Section 78 of the Omnibus Election Code. Wedo not agree with private respondent Ututalum's contention that thepetition for disqualification, as in the case at bar, may be filed at anytime after the last day for filing a certificate of candidacy but not laterthan the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure. Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate who commits any act declared bylaw to be a ground for disqualification may be disqualified fromcontinuing as a candidate. The grounds for disqualification asexpressed in Sections 12 and 68 of the Code are the following: "SEC.12. Disqualifications . — Any person who has been declared bycompetent authority insane or incompetent, or has been sentenced byfinal judgment for subversion, insurrection, rebellion or for any offensefor which he was sentenced to a penalty of more than eighteenmonths or for a crime involving moral turpitude, shall be disqualified to

be a candidate and to hold any office, unless he has been givenplenary pardon or granted amnesty." "SEC. 68. Disqualifications . — Any candidate who, in an action or protest in which he is a party isdeclared by final decision of a competent court guilty of, or found bythe Commission of having (a) given money or other materialconsideration to influence, induce or corrupt the voters or publicofficials performing electoral functions; (b) committed acts of terrorismto enhance his candidacy; (c) spent in his election campaign anamount in excess of that allowed by this Code; (d) solicited, receivedor made any contribution prohibited under Sections 89, 95, 96, 97 and104; or (e) violated any of Sections 80, 83, 85, 86 and 261,paragraphs d, e, k, v. and cc, sub-paragraph 6, shall be disqualifiedfrom continuing as a candidate, or if he has been elected, from holdingthe office. Any person who is a permanent resident of or an immigrantto a foreign country shall not be qualified to run for any elective officeunder this Code, unless said person has waived his status as

permanent resident or immigrant of a foreign country in accordancewith the residence requirement provided for in the election laws." Thepetition filed by private respondent Ututalum with therespondent Comelec to disqualify petitioner Loong on the ground thatthe latter made a false representation in his certificate of candidacy asto his age, clearly does not fall under the grounds of disqualification asprovided for in Rule 25 but is expressly covered by Rule 23 of theComelec Rules of Procedure governing petitions to cancel certificateof candidacy. Moreover, Section 3, Rule 25 which allows the filing of the petition at any time after the last day for the filing of certificates of candidacy but not later than the date of proclamation, is merely aprocedural rule issued by respondent Commission which, although aconstitutional body, has no legislative powers. Thus, it can notsupersede Section 78 of the Omnibus Election Code which is alegislative enactment.

2.SECTIONS 6 AND 7 OF REP. ACT NO. 6646 (ELECTORAL REFORMSLAW OF 1987) DO NOT MODIFY OR ALTER THE 25-DAY PERIODPRESCRIBED BY SEC. 78 OF THE OMNIBUS ELECTION CODE;NOWHERE IN SAID SECTIONS IS MENTION MADE OF THE PERIODFOR FILING DISQUALIFICATION CASES. — We also do not find meritin the contention of respondent Commission that in the light of theprovisions of Section 6 and 7 of Rep. Act. No. 6646, a petition to denydue course to or cancel a certificate of candidacy may be filed evenbeyond the 25-day period prescribed by Section 78 of the Code, aslong as it is filed within a reasonable time from the discovery of theineligibility. Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:"SEC. 6. Effect of Disqualification Case . — Any candidate who has beendeclared 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 acandidate is not declared by final judgment before an election to bedisqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with thetrial 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 wheneverthe evidence of his guilt is strong." "SEC. 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy . — The procedurehereinabove provided shall apply to petitions to deny due course to orcancel a certificate of candidacy as provided in Section 78 of BatasPambansa Blg. 881." It will be noted that nothing in Sections 6 or 7modifies or alters the 25-day period prescribed by Section 78 of theCode for filing the appropriate action to cancel a certificate of

candidacy on account of any false representation made therein. On thecontrary, said Section 7 affirms and reiterates Section 78 of the Code.We note that Section 6 refers only to the effects of a disqualificationcase which may be based on grounds other than that provided underSection 78 of the Code. But Section 7 of Rep. Act No. 6646 also makesthe effects referred to in Section 6 applicable to disqualification casesfiled under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act. No. 6646 is mention made of the period within which thesedisqualification cases may be filed.

3.PERIODS WITHIN WHICH A PETITION FOR DISQUALIFICATION OFCANDIDATES MUST BE FILED ARE PROVIDED FOR IN THE CODE INSEC. 78 AND SEC. 253 (PETITION FOR QUO WARRANTO ). — Thereare provisions in the Code which supply the periods within which apetition relating to disqualification of candidates must be filed, such asSection 78, already discussed, and Section 253 on petitions for quo

warranto . Thus, if a person qualified to file a petition to disqualify acertain candidate fails to file the petition within the 25-day periodprescribed by Section 78 of the Code for whatever reasons, theelection laws do not leave him completely helpless as he has anotherchance to raise the disqualification of the candidate by filing a petitionfor quo warranto within ten (10) days from the proclamation of theresults of the election, as provided under Section 253 of the Code.Section 1 of the Rules of Procedure similarly provides that any votercontesting the election of any regional, provincial or city official on theground of ineligibility or of disloyalty to the Republic of the Philippinesmay file a petition for quo warranto with the Electoral Contest

Adjudication Department. The petition may be filed within ten (10)days from the date the respondent is proclaimed (Section 2).

4.COMELEC HAS NO POWER TO REMEDY SO-CALLED "PROCEDURAL

GAP" IN THE LAW, ITS FUNCTION NOT BEING LEGISLATIVE. —

It istrue that the discovery of false representation as to material factsrequired to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day periodprescribed by Section 78 of the Code, through no fault of the personwho discovers such misrepresentations and who would want thedisqualification of the candidate committing the misrepresentation. Itwould seem, therefore, that there could indeed be a gap between thetime of the discovery of the misrepresentation, (when the discovery ismade after the 25-day period under Sec. 78 of the Code has lapsed)and the time when the proclamation of the results of the election ismade. During this so-called "gap" the would-be petitioner (who wouldseek the disqualification of the candidate) is left with nothing to doexcept to wait for the proclamation of the results, so that he couldavail of a remedy against the misrepresenting candidate, that is, by



filing a petition for quo warranto against him. Respondent Commissionsees this "gap" in what it, calls a procedural gap which, according to it,is unnecessary and should be remedied. At the same time, it can notbe denied that it is the purpose and intent of the legislative branch of the government to fix a definite time within which petitions forprotests related to eligibility of candidates for elective offices must befiled, as seen in Sections 78 and 253 of the Code. RespondentCommission may have seen the need to remedy this so-called"procedural gap", but it is not for it to prescribe what the law does notprovide, its function not being legislative. The question of whether thetime to file these petitions or protests is too short or ineffective is onefor the Legislature to decide and remedy.

5.FRIVALDO RULING NOT APPLICABLE TO THE CASE AT BAR;REASON. — We are aware that in Frivaldo vs . Comelec , this Court heldthat a petition to disqualify an elective official, on the ground that he isnot a Filipino citizen, may be filed at anytime , even beyond the periodprescribed by law, and even if he had already been proclaimed electedto the office and in fact had long been discharging the duties of saidoffice. But we disagree with respondent Commission thatthe Frivaldo ruling applies to the case at bar in all its connotations andimplications. For one, the ground for which disqualification is sought inthe present case is misrepresentation as to the required age of the candidate , whereas, in Frivaldo the ground for disqualification was lack of Philippine citizenship . This is an overriding and fundamentaldesideratum matched perhaps only by disloyalty to the Republic of thePhilippines.

6.SPA NO. 90-006 WAS FILED BEYOND THE 25-DAY PERIOD, ANDCOULD NOT BE TREATED AS A PETITION FOR QUO WARRANTO ;REASON. — In sum, SPA No. 90-006 was filed by private respondentUtutalum beyond the 25-day period (from the filing bypetitioner Loong of the questioned certificate of candidacy prescribedby Section 78 of the Code. It follows that the dismissal of said petitionfor disqualification is warranted. Further it would appear that we cannot treat SPA No. 90-006 as a petition for quo warranto (Section 253of the Code) for when it was filed with the respondent Commission, noproclamation of election results had as yet been made, hence, it waspremature.

D E C I S I O N

PADILLA, J p:

In this special civil action of certiorari, petitioner assails the Resolutiondated 15 May 1990 of the Commission on Elections (Second Division),issued in SPA No. 90-006 entitled "Nur Hussein Ututalum, petitioner vs.Benjamin Loong, respondent," a petition to disqualify Benjamin Loong,candidate for Regional Vice-Governor of the Autonomous Governmentin Muslim Mindanao. Said assailed resolution ruled that the respondentCommission has jurisdiction to hear and decide SPA No. 90-006.

On 15 January 1990, petitioner filed with the respondent Commissionhis certificate of candidacy for the position of Vice-Governor of theMindanao Autonomous Region in the election held on 17 February1990 (15 January 1990 being the last day for filing said certificate);herein two (2) private respondents (Ututalum and Edris) were alsocandidates for the same position.

On 5 March 1990 (or 16 days after the election), respondent Ututalumfiled before the respondent Commission (Second Division) a petition(docketed as SPA Case No. 90-006) seeking to disqualify petitioner forthe office of Regional Vice-Governor, on the ground that the lattermade a false representation in his certificate of candidacy as to hisage.

On 7 March 1990, the other candidate, respondent Edris, filed a"Petition in Intervention" in the said SPA No. 90-006, raising thereinissues similar to those raised by respondent Ututalum in his mainpetition.

On 19 March 1990, 1 petitioner Loong filed in SPA No. 90-006 hisanswer to the petition, seeking the dismissal of the petition, andalleging the following:

1.that it has not been the practice among theMuslim people in the community whererespondent was born to record the birth of achild with the Office of the Civil Registry; thatfollowing such practice, respondent's parentsdid not also record his birth with the said office;that, to be sure of his age qualification,respondent, before filing his certificate of candidacy consulted his mother and otherpersons who have personal knowledge of hisdate of birth and all assured respondent that hiscorrect date of birth is July 4, 1954. Cdpr

2.that respondent COMELEC has no jurisdictionbecause such petition is actually one which is todeny due course to or cancel a certificate of candidacy which, under Section 78 of the

Omnibus Election Code (BP 881), as amendedby Election Reforms Law of 1987, should havebeen filed within 25 days following the last dayfor filing of the certificate of candidacy.

On 30 March 1990, petitioner Loong also filed his "Answer to Petitionfor Intervention." 2

On 15 May 1990, the respondent Commission (Second Division)rendered the now assailed Resolution 3 (with two (2) Commissioners — Yorac and Flores concurring, and one Commissioner — Dimaampaodissenting), holding that:

"WHEREFORE, on the basis of the foregoing,the Commission on Elections (Second Division)holds that it has jurisdiction to try the instantpetition and the respondent's motion to dismisson the ground of lack of jurisdiction is herebydenied."

In its questioned resolution, respondent Commission held that, inconsonance with the ruling of this Court in Frivaldo vs . COMELEC 4 towit —

"The qualifications prescribed for elective officecannot be erased by the electorate alone. Thewill of the people as expressed through theballot cannot cure the vice of ineligibility, especially if they mistakenly

believed, as in this case, that the candidate was qualified ."

Sections 6 and 7 of Rep. Act No. 6646 5 (in relation to the saidFrivaldo ruling) should now mean that:

"1.When there is an allegation of falsification of an entry in a candidate's certificate of candidacy, and such alleged falsification refersto a fact concerning the candidate's eligibility torun for and hold an elective public office, apetition to declare such candidate ineligible isseasonable if it is brought within a reasonabletime of the discovery of ineligibility.

http://www.cdasiaonline.com/search/show_article/17060?search=%28title%3A+%28loong%29+AND+title%3A+%28comelec%29%29+OR+%28title%3A+%28loong%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnotes


















2.Such petition for a declaration of ineligibility isseasonable even if filed after the periodprescribed by law for attacking certificate of candidacy and before the proclamation of thecandidate sought to be disqualified. Thesubstantive issue of qualification cannot besubordinated to or defeated by the gap inprocedural rules. . . ." 6

Denying petitioner's motion for reconsideration of the abovecitedresolution, the respondent Commission issued Resolution dated 3 July

1990, 7 stating among others that —

"While the Frivaldo case referred to thequestion of respondent's citizenship, we holdthat the principle applies to discovery of violation of other requirements for eligibility,such as for instance the fact that a candidate isa holder of a green card or other certificates of permanent residence in another country, or, asin this case, that the candidate does notpossess the age qualification for the office."

On 3 July 1990, petitioner was proclaimed as the duly elected Vice-Governor of the Mindanao Autonomous Region. 8 Hence, this specialcivil action of certiorari filed by petitioner on 9 July 1990 to annul the

aforesaid resolutions of respondent Commission dated 15 May 1990and 3 July 1990, issued in SPA No. 90-006.

The principal issue in the case at bar, as we see it, is whether or notSPA No. 90-006 (a petition to cancel the certificate of candidacy of petitioner Loong) was filed within the period prescribed by law. cdrep

The undisputed facts are as follows: petitioner Loong filed hiscertificate of candidacy on 15 January 1990 (the last day for filing thesame), the election for officials of the Muslim Mindanao AutonomousRegion being on 17 February 1990 ; but private respondent Ututalumfiled the petition (SPA 90-006) to disqualify candidate Loong only on 5 March 1990 , or forty-nine (49) days from the date Loong's certificateof candidacy was filed (i.e. 15 January 1990), and sixteen (16) daysafter the election itself.

Petitioner Loong contends that SPA No. 90-006 was filed out of timebecause it was filed beyond the 25-day period prescribed by Section78 of the Omnibus Election Code. On the other hand, privaterespondent Ututalum alleges that SPA No. 90-006, though filed only on5 March 1990, was filed when no proclamation of winner had as yetbeen made and that the petition is deemed filed on time as Section 3,Rule 25 of the Comelec Rules of Procedure states that the petition todisqualify a candidate on grounds of ineligibility "shall be filed any dayafter the last day for filing of certificates of candidacy but not laterthan the date of proclamation."

On the part of respondent Commission, it held in its assailed resolutionthat the petition in SPA No. 90-006 was timely filed, applying Sections6 and 7 of Republic Act No. 6646, 9 and Section 2, Rule 23 of

the Comelec Rules of Procedure which states that the petition to denydue course to or cancel a certificate of candidacy must be filed withinfive (5) days following the last day for the filing of a certificate of candidacy, both read in the light of theFrivaldo ruling of this Court.

We find the present petition to be meritorious.

Sections 3 and 4 of Rep. Act No. 6734 (entitled, "An act providing foran organic act for the autonomous region in Muslin Mindanao")requires that the age of a person running for the office of ViceGovernor for the autonomous region shall be at least thirty-five (35)years on the day of the election. Private respondent Ututalum allegesthat petitioner Loong falls short of this age requirement, hence, on 5March 1990, he filed a petition to disqualify the petitioner.

Section 74 of the Omnibus Election Code ("Code" for brevity) providesthat the certificate of candidacy of the person filing it shall state,among others, the date of birth of said person. Section 78 of the sameCode states that in case a person filing a certificate of candidacy hascommitted false representation,a petition to cancel the certificate of the aforesaid person may be filed within twenty-five (25) days from the time the certificate was filed .

Clearly, SPA No. 90-006 was filed beyond the 25-day period prescribedby Section 78 of the Omnibus Election Code.

We do not agree with private respondent Ututalum's contention thatthe petition for disqualification, as in the case at bar, may be filed atany time after the last day for filing a certificate of candidacy but notlater than the date of proclamation, applying Section 3, Rule 25 of the Comelec Rules of Procedure.

Rule 25 of the Comelec Rules of Procedure refers to Disqualification of Candidates; and Section 1 of said rule provides that any candidate whocommits any act declared by law to be a ground for disqualificationmay be disqualified from continuing as a candidate. The grounds fordisqualification as expressed in Sections 12 and 68 of the Code are thefollowing:

"SECTION 12.Disqualification . — Any personwho has been declared by competent authorityinsane or incompetent, or has been sentencedby final judgment for subversion, insurrection,rebellion or for any offense for which he wassentenced to a penalty of more than eighteenmonths or for a crime involving moral turpitude,shall be disqualified to be a candidate and tohold any office, unless he has been givenplenary pardon or granted amnesty."

"SECTION 68.Disqualifications . — Any candidatewho, in an action or protest in which he is aparty is declared by final decision of acompetent court guilty of, or found by theCommission of having (a) given money or othermaterial consideration to influence, induce orcorrupt the voters or public officials performingelectoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent inhis election campaign an amount in excess of that allowed by this Code; (d) solicited, receivedor made any contribution prohibited underSections 89, 95, 96, 97 and 104; or (e) violatedany of Section 80, 83, 85, 86 and 261,paragraphs d, e, k, v. and cc, sub-paragraph 6,shall be disqualified from continuing as acandidate, or if he has been elected, fromholding the office. Any person who is apermanent resident of or an immigrant to a

foreign country shall not be qualified to run forany elective office under this Code, unless saidperson has waived his status as permanentresident or immigrant of a foreign country inaccordance with the residence requirementprovided for in the election laws."

The petition filed by private respondent Ututalum with therespondent Comelec to disqualify petitioner Loong on the ground thatthe latter made a false representation in his certificate of candidacy asto his age, clearly does not fall under the grounds of disqualification asprovided for in Rule 25 but is expressly covered by Rule 23 of the Comelec Rules of Procedure governing petitions to cancelcertificate of candidacy. Moreover, Section 3, Rule 25 which allows thefiling of the petition at any time after the last day for the filing of















certificates of candidacy but not later than the date of proclamation, ismerely a procedural rule issued by respondent Commission which,although a constitutional body, has no legislative powers. Thus, it cannot supersede Section 78 of the Omnibus Election Code which is alegislative enactment.

We also do not find merit in the contention of respondent Commissionthat in the light of the provisions of Section 6 and 7 of Rep. Act No.6646, a petition to deny due course to or cancel a certificate of candidacy may be filed even beyond the 25-day period prescribed bySection 78 of the Code, as long as it is filed within a reasonable

time from the discovery of the ineligibility.

Sections 6 and 7 of Rep. Act No. 6646 are here re-quoted:

"SECTION 6.Effect of Disqualification Case . — Any candidate who has been declared by final judgment to be disqualified shall not be votedfor, and the votes cast for him shall not becounted. If for any reason a candidate is notdeclared by final judgment before an election tobe disqualified and he is voted for and receivesthe winning number of votes in such election,the Court or Commission shall continue with thetrial and hearing of the action, inquiry, orprotest and, upon motion of the complainant or

any intervenor, may during the pendencythereof order the suspension of theproclamation of such candidate whenever theevidence of his guilt is strong." LLphil

"SECTION 7.Petition to Deny Due Course To or Cancel a Certificate of Candidacy . — Theprocedure hereinabove provided shall apply topetitions to deny due course to or cancel acertificate of candidacy as provided in Section78 of Batas Pambansa Blg. 881."

It will be noted that nothing in Sections 6 or 7 modifies or alters the25-day period prescribed by Section 78 of the Code for filing theappropriate action to cancel a certificate of candidacy on account of

any false representation made therein. On the contrary, said Section 7affirms and reiterates Section 78 of the Code.

We note that Section 6 refers only to the effects of a disqualificationcase which may be based on grounds other than that provided underSection 78 of the Code. But Section 7 of Rep. Act No. 6646 also makesthe effects referred to in Section 6 applicable to disqualification casesfiled under Section 78 of the Code. Nowhere in Sections 6 and 7 of Rep. Act. No. 6646 is mention made of the period within which thesedisqualification cases may be filed. This is because there are provisionsin the Code which supply the periods within which a petition relating todisqualification of candidates must be filed, such as Section 78, alreadydiscussed, and Section 253 on petitions for quo warranto .

Thus, if a person qualified to file a petition to disqualify a certain

candidate fails to file the petition within the 25-day period prescribedby Section 78 of the Code for whatever reasons, the election laws donot leave him completely helpless as he has another chance to raisethe disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code.Section 1,Rule 21 of the Comelec Rules of Procedure similarly provides that anyvoter contesting the election of any regional, provincial or city officialon the ground of ineligibility or of disloyalty to the Republic of thePhilippines may file a petition for quo warranto with the ElectoralContest Adjudication Department. The petition may be filed within ten(10) days from the date the respondent is proclaimed (Section 2).

It is true that the discovery of false representation as to material factsrequired to be stated in a certificate of candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day periodprescribed by Section 78 of the Code, through no fault of the personwho discovers such misrepresentations and who would want thedisqualification of the candidate committing the misrepresentation. Itwould seem, therefore, that there could indeed be a gap between thetime of the discovery of the misrepresentation, (when the discovery ismade after the 25-day period under Sec. 78 of the Code has lapsed)and the time when the proclamation of the results of the election ismade. During this so-called "gap" the would-be petitioner (who wouldseek the disqualification of the candidate) is left with nothing to doexcept to wait for the proclamation of the results, so that he couldavail of a remedy against the misrepresenting candidate, that is, byfiling a petition for quo warranto against him. Respondent Commissionsees this "gap" in what it, calls a procedural gap which, according to itis unnecessary and should be remedied.

At the same time, it can not be denied that it is the purpose and intentof the legislative branch of the government to fix a definite time withinwhich petitions for protests related to eligibility of candidates forelective offices must be filed, 10 as seen in Sections 78 and 253 of theCode. Respondent Commission may have seen the need to remedy thisso-called "procedural gap", but it is not for it to prescribe what the lawdoes not provide, its function not being legislative. The question of whether the time to file these petitions or protests is too short orineffective is one for the Legislature to decide and remedy.

We are aware that in Frivaldo vs . Comelec , 11 this Court held that apetition to disqualify an elective official, on the ground that he is not aFilipino citizen, may be filed at anytime , even beyond the periodprescribed by law, and even if he had already been proclaimed electedto the office and in fact had long been discharging the duties of saidoffice. But we disagree with respondent Commission thatthe Frivaldo ruling applies to the case at bar in all its connotations andimplications. For one, the ground for which disqualification is sought inthe present case is misrepresentation as to the required age of the candidate , whereas, in Frivaldo the ground for disqualification was lackof Philippine citizenship . This is an overriding and fundamentaldesideratum matched perhaps only by disloyalty to the Republic of thePhilippines.

Mr. Justice Gutierrez, Jr., in his concurring opinion in Frivaldo vs . Comelec 12 said:

"It is an established rule of long standing thatthe period fixed by law for the filing of a protest — whether quo warranto or election contest is — mandatory and jurisdictional.

"As a rule, the quo warranto petition seeking toannul the petitioner's election and proclamationshould have been filed within ten days after theproclamation of election results. The purpose of the law in not allowing the filing of protestsbeyond the period fixed by law is to have acertain and definite time within which petitions

against the results of an election should be filedand to provide summary proceedings for thesettlement of such disputes.

xxx xxx xxx

"I must emphasize, however, that myconcurrence is limited to a clear case of an alienholding an elective public office. And perhaps ina clear case of disloyalty to the Republic of thePhilippines. Where the disqualification is basedon age, residence, or any of the many groundsfor ineligibility, I believe that the ten-day periodshould be applied strictly."















In Aznar vs . Comelec , 13 the records show that private respondentfiled his certificate of candidacy on 19 November 1987 and that thepetitioner filed his petition for disqualification of said privaterespondent on 22 January 1988 . Since the petition for disqualificationwas filed beyond the twenty five-day period required in Section 78 of the Code, it was clear that said petition had been filed out of time. TheCourt also ruled that the petition for the disqualification of privaterespondent could not also be treated as a petition for quo warranto under Section 253 of the same Code as it wasunquestionably premature, considering that private respondent wasproclaimed Provincial Governor of Cebu only 3 March 1988 . However,as a matter of public interest to ascertain therespondent's citizenship and qualification to hold the public office towhich he had been proclaimed elected, the Court ruled on the meritsof the case.

But the Court, in another case, in an EN BANC Resolution 14 affirmedthe dismissal by the COMELEC of the petitions for disqualification. Itappeared that on 2 March 1990, a petition to disqualify PadillaPundaodaya (SPA No. 90-004) was filed because of an allegedlyfalsified certificate of candidacy which he could not have personallyfiled on 15 January 1990 since he had been in Saudi Arabia since 24July 1987 and arrived in Manila only on 24 January 1990. The Courtheld that the disqualification petition was correctly treated bythe Commission on Elections as a petition to cancel a defectivecertificate of candidacy but the petition was filed out of time and couldnot anymore be entertained.

In sum, SPA No. 90-006 was filed by private respondent Ututalumbeyond the 25-day period (from the filing by petitioner Loong of thequestioned certificate of candidacy prescribed by Section 78 of theCode. It follows that the dismissal of said petition for disqualification iswarranted. Further it would appear that we can not treat SPA No. 90-006 as a petition for quo warranto (Section 253 of the Code) for whenit was filed with the respondent Commission, no proclamation of election results had as yet been made, hence, it was premature. LLphil

WHEREFORE, the petition is GRANTED. The resolutions of respondentCommission, dated 15 May 1990 and 3 July 1990, rendered in SPA No.

90-006 are hereby SET ASIDE.

SO ORDERED.











EN BANC

[G.R. No. 150605. December 10, 2002.]

EUFROCINO M. CODILLA,SR., petitioner , vs . HON. JOSE DE VENECIA,ROBERTO P. NAZARENO, in their officialcapacities as Speaker and Secretary-General of the House of Representatives,

respectively, and MA. VICTORIA L.LOCSIN, respondents .

Ramon R. Teleron and Rex Reynaldo C. Sandoval for petitioner.

Sixto S. Brillantes, Jr. for respondent Hon. Ma. V.A. Locsin.

The Solicitor General for public respondents.

Artemio A. Adasa Jr. and Gaudencio A. Mendoza, Jr. for petitioner Hon.De Venecia.

Leonardo B. Palicte for respondents.

SYNOPSIS

Petitioner Eufrocino M. Codilla, Sr., filed the present Petitionfor Mandamus and Quo Warranto directed against respondentsSpeaker Jose De Venecia and Secretary-General Roberto P. Nazarenoof the House of Representatives to compel them to implement thedecision of the Commission on Elections en banc by (a) administeringthe oath of office to petitioner as the duly-elected Representative of the 4th legislative district of Leyte, and (b) registering the name of thepetitioner in the Roll of Members of the House of Representatives, andagainst respondent Ma. Victoria L. Locsin for usurping, intruding into,and unlawfully holding and exercising the said public office on the

basis of a void proclamation.

The Supreme Court granted the petition. The Commission on ElectionsSecond Division gravely abused its power when it suspendedpetitioner's proclamation. Under Section 6 of R.A. No. 6646, theCOMELEC can suspend proclamation only when evidence of thewinning candidate's guilt is strong. In the case at bar, the COMELECSecond Division did not make any specific finding that evidence of petitioner's guilt is strong. Its only basis in suspending theproclamation of the petitioner is the "seriousness of the allegations" inthe petition for disqualification. More brazen is the proclamation of respondent Locsin which violates the settled doctrine that thecandidate who obtains the second highest number of votes may not beproclaimed winner in case the winning candidate is disqualified. Inevery election, the people's choice is the paramount consideration andtheir expressed will must at all times be given effect. When themajority speaks and elects into office a candidate by giving him thehighest number of votes cast in the election for the office, no one canbe declared elected in his place. The Court also ruled that theadministration of oath and the registration of the petitioner in the Rollof Members of the House of Representatives representing the 4thlegislative district of Leyte is no longer a matter of discretion on thepart of the public respondents. The facts are settled and beyonddispute: petitioner garnered 71,350 votes as against respondent Locsinwho only got 53,447 votes in the May 14, 2001 elections. TheCOMELEC Second Division initially ordered the proclamation of respondent Locsin; on Motion for Reconsideration the COMELEC en banc set aside the order of its Second Division and ordered theproclamation of the petitioner. The Decision of the COMELEC en banc has not been challenged before the Court by respondent Locsinand said Decision has become final and executory. AECcTS

SYLLABUS

1.POLITICAL LAW; ELECTION LAWS; OMNIBUS ELECTION CODE;DISQUALIFICATION PROCEEDINGS; PETITIONER WAS DENIED DUEPROCESS DURING THE ENTIRE PROCEEDINGS LEADING TO THEPROCLAMATION OF RESPONDENT. — Resolution No. 3402 clearlyrequires the COMELEC, through the Regional Election Director, to issuesummons to the respondent candidate together with a copy of thepetition and its enclosures, if any, within three (3) days from the filingof the petition for disqualification. Undoubtedly, this is to afford therespondent candidate the opportunity to answer the allegations in the

petition and hear his side. To ensure compliance with this requirementthe COMELEC Rules of Procedure requires the return of the summonstogether with the proof of service to the Clerk of Court of theCOMELEC when service has been completed. Thereafter, hearings, tobe completed within ten (10) days from the filing of the Answer, mustbe conducted. The hearing officer is required to submit to the Clerk of the Commission his findings, reports and recommendations within five(5) days from the completion of the hearing and reception of evidencetogether with the complete records of the case. The records of thecase do not show that summons was served on the petitioner. They donot contain a copy of the summons allegedly served on the petitionerand its corresponding proof of service. Furthermore, privaterespondent never rebutted petitioner's repeated assertion that he wasnot properly notified of the petition for his disqualification because henever received summons. Petitioner claims that prior to receiving atelegraphed Order from the COMELEC Second Division on May 22,2001, directing the District Board of Canvassers to suspend hisproclamation, he was never summoned nor furnished a copy of thepetition for his disqualification. He was able to obtain a copy of thepetition and the May 22 Order of the COMELEC Second Division bypersonally going to the COMELEC Regional Office on May 23, 2001.Thus, he was able to file his Answer to the disqualification case only onMay 24, 2001. DcaECT

2.ID.; ID.; ID.; ID.; COMMISSION ON ELECTIONS RULES OFPROCEDURE REQUIRING NOTICE AND SERVICE OF MOTIONS TO ALLPARTIES; NOT COMPLIED WITH IN CASE AT BAR. — In the instantcase, petitioner has not been disqualified by final judgment when theelections were conducted on May 14, 2001. The Regional ElectionDirector has yet to conduct hearing on the petition for hisdisqualification. After the elections, petitioner was voted in office by a

wide margin of 17,903. On May 16, 2001, however, respondent Locsinfiled a Most Urgent Motion for the suspension of petitioner'sproclamation. The Most Urgent Motion contained a statement to theeffect that a copy was served to the petitioner through registered mail.The records reveal that no registry receipt was attached to prove suchservice. This violates COMELEC Rules of Procedure requiring notice andservice of the motion to all parties.

3.ID.; ID.; ID.; ID.; THE COMMISSION ON ELECTIONS GRAVELY ABUSED ITS POWER WHEN IT SUSPENDED PETITIONER'SPROCLAMATION ABSENT ANY FINDING THAT THE EVIDENCE OF HISGUILT IS STRONG. — Under Section 6 of R.A. No. 6646, the COMELECcan suspend proclamation only when evidence of the winningcandidate's guilt is strong. In the case at bar, the COMELEC Second Division did not make any specific finding that evidence of petitioner's

guilt is strong . Its only basis in suspending the proclamation of thepetitioner is the "seriousness of the allegations " in the petition fordisqualification. Pertinent portion of the Order reads: "Without givingdue course to the petition . . . the Commission (2nd Division),pursuant to Section 72 of the Omnibus Election Code in relation toSection 6, Republic Act No. 6646 . . . and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders ." We hold that absent any finding that theevidence on the guilt of the petitioner is strong, the COMELEC SecondDivision gravely abused its power when it suspended his proclamation.

4.ID.; ID.; ID.; ID.; RESOLUTION DISQUALIFYING PETITIONER ISNOT BASED ON SUBSTANTIAL EVIDENCE; THE COMMISSIONGRIEVOUSLY ERRED IN DECIDING THE DISQUALIFICATION CASE



BASED ON SECTION 261 (a) AND (o), AND NOT ON SECTION 68 OFTHE OMNIBUS ELECTION CODE. — The Resolution of the COMELECSecond Division cannot be considered to be based on substantialevidence. It relied merely on affidavits of witnesses attached to thepetition for disqualification. As stressed, the COMELEC Second Divisiongave credence to the affidavits without hearing the affiants. Inreversing said Resolution, the COMELEC en banc correctly observed:"Lacking evidence of Codilla, the Commission (Second Division) madeits decisions based mainly on the allegation of the petitioner and thesupporting affidavits. With this lopsided evidence at hand, the resultwas predictable. The Commission (Second Division) had no choice.Codilla was disqualified." Worse, the Resolution of the COMELECSecond Division, even without the evidence coming from thepetitioner, failed to prove the gravamen of the offense for which hewas charged. Petitioner allegedly violated Section 68 (a) of theOmnibus Election Code. To be disqualified under the above-quotedprovision, the following elements must be proved: (a) the candidate,personally or through his instructions, must have given money or othermaterial consideration; and (b) the act of giving money or othermaterial consideration must be for the purpose of influencing,inducing, or corrupting the voters or public officials performingelectoral functions. In the case at bar, the petition for disqualificationalleged that (a) petitioner ordered the extraction, hauling anddistribution of gravel and sand, and (b) his purpose was to induce andinfluence the voters of Kananga and Matag-ob, Leyte to vote for him.These allegations are extraneous to the charge in the petition fordisqualification. More importantly, these allegations do not constitute a

ground to disqualify the petitioner based on Section 68 of the OmnibusElection Code. The jurisdiction of the COMELEC to disqualifycandidates is limited to those enumerated in Section 68 of theOmnibus Election Code. All other election offenses are beyond theambit of COMELEC jurisdiction. They are criminal and notadministrative in nature. Pursuant to Sections 265 and 268 of theOmnibus Election Code, the power of the COMELEC is confined to theconduct of preliminary investigation on the alleged election offensesfor the purpose of prosecuting the alleged offenders before the regularcourts of justice. The COMELEC Second Division grievously erred whenit decided the disqualification case based on Section 261 (a) and (o),and not on Section 68 of the Omnibus Election Code. EDISTc

5.ID.; ID.; ID.; ID.; VOTES CAST IN FAVOR OF PETITIONER CANNOTBE CONSIDERED "STRAY" CONSIDERING THAT HE HAS NOT BEENDECLARED DISQUALIFIED BY FINAL JUDGMENT. — Section 6 of R.A.No. 6646 and Section 72 of the Omnibus Election Code require a final

judgment before the election for the votes of a disqualified candidateto be considered "stray." Hence, when a candidate has not yet beendisqualified by final judgment during the election day and was votedfor, the votes cast in his favor cannot be declared stray. To do sowould amount to disenfranchising the electorate in whom sovereigntyresides. For in voting for a candidate who has not been disqualified byfinal judgment during the election day, the people voted forhim bonafide , without any intention to misapply their franchise, and inthe honest belief that the candidate was then qualified to be theperson to whom they would entrust the exercise of the powers of government. This principle applies with greater force in the case at barconsidering that thepetitioner has not been declared by final judgment

to be disqualified not only before but even after the elections . TheResolution of the COMELEC Second Division disqualifying the petitionerdid not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions andResolutions. cIHDaE

6.ID.; ID.; ID.; ID.; PROCLAMATION OF RESPONDENT VIOLATES THESETTLED DOCTRINE THAT THE SECOND PLACER COULD NOT TAKETHE PLACE OF THE DISQUALIFIED WINNER. — More brazen is theproclamation of respondent Locsin which violates the settled doctrinethat the candidate who obtains the second highest number of votesmay not be proclaimed winner in case the winning candidate isdisqualified. In every election, the people's choice is the paramountconsideration and their expressed will must at all times be given effect.

When the majority speaks and elects into office a candidate by givinghim the highest number of votes cast in the election for the office, noone can be declared elected in his place. Respondent Locsin proffers adistinction between a disqualification based on personal circumstancessuch as age, residence or citizenship and disqualification based onelection offenses. She contends that the election of candidates laterdisqualified based on election offenses like those enumerated inSection 68 of the Omnibus Election Code should be invalidatedbecause they violate the very essence of suffrage and as such, thevotes cast in his favor should not be considered. This contention iswithout merit. In the recent case of Trinidad v . COMELEC , this Courtruled that the effect of a judgment disqualifying a candidate, afterwinning the election, based on personal circumstances or Section 68 ofthe Omnibus Election Code is the same: the second placer could nottake the place of the disqualified winner.

7.ID.; ID.; ID.; ID.; THE ORDER SUSPENDING PETITIONER'SPROCLAMATION IS UNENFORCEABLE AS IT HAS NOT ATTAINEDFINALITY AND THEREFORE CANNOT BE USED AS THE BASIS FOR RESPONDENT'S ASSUMPTION IN OFFICE. — Since the petitionerseasonably filed a Motion for Reconsideration of the Order of theSecond Division suspending his proclamation and disqualifying him, theCOMELEC en banc was not divested of its jurisdiction to review thevalidity of the said Order of the Second Division. The said Order of theSecond Division was yet unenforceable as it has not attained finality;the timely filing of the motion for reconsideration suspends itsexecution. It cannot, thus, be used as the basis for the assumption in

office of the respondent as the duly elected Representative of the 4thlegislative district of Leyte.

8.ID.; ID.; ID.; ID.; THE HOUSE OF REPRESENTATIVES ELECTORALTRIBUNAL HAS NO JURISDICTION OVER THE CASE. — A petitionfor quo warranto may be filed only on the grounds of ineligibility anddisloyalty to the Republic of the Philippines. In the case at bar, neitherthe eligibility of the respondent Locsin nor her loyalty to the Republicof the Philippines is in question. There is no issue that she wasqualified to run, and if she won, to assume office. A petition for quo warranto in the HRET is directed against one who has been dulyelected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation . It is evident that respondent Locsin cannot be thesubject of quo warranto proceeding in the HRET. She lost the elections

to the petitioner by a wide margin. Her proclamation was a patentnullity. Her premature assumption to office as Representative of the4th legislative district of Leyte was void from the beginning. It is theheight of absurdity for the respondent, as a loser, to tell petitionerCodilla, Sr., the winner, to unseat her via a quo warranto proceeding.

9.REMEDIAL LAW; SPECIAL CIVIL ACTIONS; MANDAMUS; THE ADMINISTRATION OF OATH AND REGISTRATION OF PETITIONER INTHE ROLL OF MEMBERS OF THE HOUSE OF REPRESENTATIVES IS NOLONGER A MATTER OF DISCRETION ON THE PART OF PUBLICRESPONDENTS. — Under Rule 65, Section 3 of the 1997 Rules of CivilProcedure, any person may file a verified petitionfor mandamus "when any tribunal, corporation, board, officer orperson unlawfully neglects the performance of an act which the lawspecifically enjoins as a duty resulting from an office, trust, or station,or unlawfully excludes another from the use and enjoyment of a right

or office to which such other is entitled, and there is no other plain,speedy and adequate remedy in the ordinary course of law." For apetition for mandamus to prosper, it must be shown that the subjectof the petition for mandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, andthat the petitioner has a well-defined, clear and certain right towarrant the grant thereof. The distinction between a ministerial anddiscretionary act is well delineated. A purely ministerial act or duty isone which an officer or tribunal performs in a given state of facts, in aprescribed manner, in obedience to the mandate of a legal authority,without regard to or the exercise of his own judgment upon thepropriety or impropriety of the act done. If the law imposes a dutyupon a public officer and gives him the right to decide how or whenthe duty shall be performed, such duty is discretionary and notministerial. The duty is ministerial only when the discharge of the same



requires neither the exercise of official discretion or judgment. In thecase at bar, the administration of oath and the registration of thepetitioner in the Roll of Members of the House of Representativesrepresenting the 4th legislative district of Leyte is no longer a matterof discretion on the part of the public respondents. The facts aresettled and beyond dispute: petitioner garnered 71,350 votes asagainst respondent Locsin who only got 53,447 votes in the May 14,2001 elections. The COMELEC Second Division initially ordered theproclamation of respondent Locsin; on Motion for Reconsideration theCOMELEC en banc set aside the order of its Second Division andordered the proclamation of the petitioner. The Decision of theCOMELEC en banc has not been challenged before this Court byrespondent Locsin and said Decision has become final and executory.In sum, the issue of who is the rightful Representative of the 4thlegislative district of Leyte has been finally settled by the COMELEC en banc , the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land.There is no alternative to the rule of law except the reign of chaos and confusion . EcDATH

D E C I S I O N

PUNO, J p:

In a democracy, the first self-evident principle is that he who has beenrejected by the people cannot represent the people. Respondent Ma.

Victoria L. Locsin lost to petitioner Eufrocino M. Codilla, Sr. by 17,903votes in the May 14, 2001 elections as Representative of the 4thlegislative district of Leyte. The most sophisticated legal alchemycannot justify her insistence that she should continue governing thepeople of Leyte against their will. The enforcement of the sovereignwill of the people is not subject to the discretion of any official of theland. HcTDSA

This is a Petition for Mandamus and Quo Warranto directed againstrespondents Speaker Jose De Venecia and Secretary-General RobertoP. Nazareno of the House of Representatives to compel them toimplement the decision of the Commission on Elections en banc by (a)

administering the oath of office to petitioner as the duly-electedRepresentative of the 4th legislative district of Leyte, and (b)registering the name of the petitioner in the Roll of Members of theHouse of Representatives, and against respondent Ma. Victoria L.Locsin for usurping, intruding into, and unlawfully holding andexercising the said public office on the basis of a void proclamation.

The facts are uncontroverted. Petitioner and respondent Locsin werecandidates for the position of Representative of the 4th legislativedistrict of Leyte during the May 14, 2001 elections. At that time,petitioner was the Mayor of Ormoc City while respondent Locsin wasthe sitting Representative of the 4th legislative district of Leyte. OnMay 8, 2001, one Josephine de la Cruz, a registered voter of Kananga,Leyte, filed directly with the COMELEC main office a Petition forDisqualification 1 against the petitioner for indirectly soliciting votes

from the registered voters of Kananga and Matag-ob, Leyte, inviolation of Section 68(a) of the Omnibus Election Code. It was allegedthat the petitioner used the equipments and vehicles owned by theCity Government of Ormoc to extract, haul and distribute gravel andsand to the residents of Kananga and Matag-ob, Leyte, for the purposeof inducing, influencing or corrupting them to vote for him. Attached tothe petition are the (a) Affidavits of Basilio Bates, 2 Danilo D.Maglasang, 3 Cesar A. Laurente; 4 (b) Joint Affidavit of Agripino C.

Alferez and Rogelio T. Salvera; 5 (c) Extract Records from the PoliceBlotter executed by Police Superintendent Elson G. Pecho; 6 and (d)Photographs showing government dump trucks, haulers and surfacersand portions of public roads allegedly filled-in and surfaced throughthe intercession of the respondent. 7 The case was docketed as SPANo. 01-208 and assigned to the COMELEC's Second Division.

On May 10, 2001, the COMELEC Second Division issued anOrder delegating the hearing and reception of evidence on thedisqualification case to the Office of the Regional Director of Region

VIII. 8 On May 11, 2001, the COMELEC Second Division sent atelegram informing the petitioner that a disqualification case was filedagainst him and that the petition was remanded to the RegionalElection Director for investigation. 9

At the time of the elections on May 14, 2001, the Regional Election Director had yet to hear the disqualification case . Consequently,petitioner was included in the list of candidates for districtrepresentative and was voted for. The initial results showed thatpetitioner was the winning candidate. cHDaEI

On May 16, 2001, before the counting could be finished,respondent Locsin joined as intervenor in SPA No. 128 and filed a"Most Urgent Motion to Suspend Proclamation of Respondent [hereinpetitioner]" with the COMELEC Second Division. 10 Respondent Locsinalleged that "the evidence on record against respondent is very strongand unless rebutted remains." She urged the Commission to set thehearing of the disqualification case and prayed for the suspension of the proclamation of the respondent "so as not to render the presentdisqualification case moot and academic." A copy of the Motion was allegedly served on petitioner by registered mail but no registry receipt

was attached thereto . 11

On May 18, 2001, respondent Locsin filed a "Second Most Urgent Motion to Suspend Proclamation of Respondent" stating "there is clearand convincing evidence showing that the respondent is undoubtedlyguilty of the charges against him and this remains unrebutted by therespondent." A copy of the Motion was sent to the petitioner and thecorresponding registry receipt was attached to the pleading. 12 Therecords, however, do not show the date the petitioner received themotion. SIDTCa

On the same day , May 18, 2001, the COMELEC Second Division issuedan Ex-Parte Order 13 directing the Provincial Board of Canvassers of Leyte tosuspend the proclamation of petitioner in case he obtains thehighest number of votes by reason of "the seriousness of the

allegations in the petition for disqualification." 14 It also directed theRegional Election Director to speed up the reception of evidence andto forward immediately the complete records together with itsrecommendation to the Office of the Clerk of the Commission. 15 As aresult, petitioner was not proclaimed as winner even though the final election results showed that he garnered 71,350 votes as against respondent Locsin's 53,447 votes . 16

At the time that the COMELEC Second Division issued its Ordersuspending his proclamation, the petitioner has yet to be summonedto answer the petition for disqualification. Neither has said petitionbeen set for hearing. It was only on May 24, 2001 that petitioner wasable to file an Answer to the petition for his disqualification with theRegional Election Director, alleging that: (a) he has not received thesummons together with the copy of the petition; (b) he became aware

of the matter only by virtue of the telegram sent by the COMELECSecond Division informing him that a petition was filed against him andthat the Regional Election Director was directed to investigate andreceive evidence therewith; and (c) he obtained a copy of the petitionfrom the COMELEC Regional Office No. 8 at his owninstance. 17 Petitioner further alleged that the maintenance, repairand rehabilitation of barangay roads in the municipalities of Matag-oband Kananga were undertaken without his authority, participation ordirective as City Mayor of Ormoc. He attached in his Answer thefollowing: (a) Affidavit of Alex B. Borinaga; 18 (b) Copy of the Excerptfrom the Minutes of the Regular Session of Barangay Monterico;19 (c)

Affidavit of Wilfredo A. Fiel; 20 (d) Supplemental Affidavit of Wilfredo A. Fiel; 21 and (e) Affidavit of Arnel Y. Padayao. 22

http://www.cdasiaonline.com/search/show_article/2581?search=gr%3A+%28150605%2A%29#footnotes













































































On May 25, 2001, petitioner filed a Motion to Lift Order of Suspension , 23 alleging that (a) he did not receive a copy of theMotion to Suspend his Proclamation and hence, was denied the rightto rebut and refute the allegations in the Motion; (b) that he did notreceive a copy of the summons on the petition for disqualification andafter personally obtaining a copy of the petition, filed the requisiteanswer only on May 24, 2001; and (c) that he received the telegraphOrder of the COMELEC Second Division suspending his proclamationonly on May 22, 2001. He attached documentary evidence in supportof his Motion to Lift the Suspension of his proclamation, and requestedthe setting of a hearing on his Motion. 24

On May 30, 2001, an oral argument was conducted on the petitioner'sMotion and the parties were ordered to submit their respectivememoranda. 25 On June 4, 2001, petitioner submitted hisMemorandum 26 in support of his Motion assailing the suspension of his proclamation on the grounds that: (a) he was not afforded dueprocess; (b) the order has no legal and factual basis; and (c) evidenceof his guilt is patently inexistent for the purpose of suspending hisproclamation. He prayed that his proclamation as winningcongressional candidate be expediently made, even while thedisqualification case against him continue upon due notice andhearing. He attached the following additional evidence in hisMemorandum: (a) Copy of certification issued by PNP Senior InspectorBenjamin T. Gorre; 27 (b) Certification issued by Elena S. Aviles, CityBudget Officer; 28 (c) Copy of certification issued by Wilfredo A. Fiel,City Engineer of Ormoc; 29 (d) Joint Affidavit of Antonio Patenio and

Pepito Restituto; 30 and (e) Affidavits of Demetrio Brion, 31 IgmedioRita 32 and Gerardo Monteza. 33 Respondent Locsin's memorandumalso contained additional affidavits of his witnesses. 34

Petitioner's Motion to Lift the Order of Suspension, however, was not resolved . Instead, on June 14, 2001, the COMELEC Second Division promulgated its Resolution 35 in SPA No. 01-208 which found thepetitioner guilty of indirect solicitation of votes and orderedhis disqualification . It directed the"immediate proclamation of the candidate who garnered the highest number of votes . . . ." A copy of said Resolution was sent by fax to the counsel of petitioner in CebuCity in the afternoon of the following day. 36

By virtue of the said Resolution, the votes cast for petitioner, totaling 71,350, were declared stray even before said Resolution could gain

finality . On June 15, 2001, respondent Locsin was proclaimed as theduly elected Representative of the 4th legislative district of Leyte bythe Provincial Board of Canvassers of Leyte. It issued a Certificate of Canvass of Votes and Proclamation of the Winning Candidates forMember of the House of Representatives stating that "MA. VICTORIALARRAZABAL LOCSIN obtained a total of FIFTY THREE THOUSANDFOUR HUNDRED FORTY SEVEN (53,447) votes representingthe highest number of votes legally cast in the legislative district forsaid office." 37 Respondent Locsin took her oath of office on June 18,2001 and assumed office on June 30, 2001 .

On June 20, 2001, petitioner seasonably filed with the COMELEC en banc a Motion for Reconsideration 38 from the June 14, 2001Resolution of the COMELEC Second Division which ordered hisdisqualification, as well as an Addendum to the Motion for

Reconsideration. 39 Petitioner alleged in his Motion forReconsideration that the COMELEC Second Division erred: (1) indisqualifying petitioner on the basis solely of the dubious declaration of the witnesses for respondent Locsin; (2) in adopting in toto theallegations of the witnesses for respondent Locsin; and (3) inpromulgating the resolution in violation of its own rules of procedureand in directing therein the immediate proclamation of the secondhighest 'vote getter.' Respondent Locsin and her co-petitioner in SPANo. 01-208 filed a joint Opposition to the Motion forReconsideration. 40

On June 21, 2001, petitioner filed with the COMELEC en banc a Petition for Declaration of Nullity of Proclamation , 41 docketedas SPC No. 01-324 , assailing the validity of the proclamation of respondent Locsin who garnered only the second highest number of

votes . Respondent Locsin filed her Answer alleging that: (1) theCommission lost jurisdiction to hear and decide the case because of the proclamation of Locsin and that any question on the "election,returns, and qualification" of Locsin can only be taken cognizance of bythe House of Representatives Electoral Tribunal (HRET); (2) the caseshould be filed and heard in the first instance by a Division of theCommission and not directly by the Commission en banc ; and (3) theproclamation of Locsin was valid because she received the highestnumber of valid votes cast, the votes of Codilla being stray.

On June 28, 2001, petitioner filed an Urgent Manifestation 42 stating

that he was deprived of a fair hearing on the disqualification casebecause while the documentary evidence adduced in his Memorandumwas in support of his Motion for the lifting of the suspension of his proclamation, the COMELEC Second Division instead ruled on the maindisqualification case . In consonance with his prayer that a full-dresshearing be conducted on the disqualification case, he submitted

Affidavits of additional witnesses 43 which he claims would refute andsubstantially belie the allegations of petitioner's/intervenor's witnesses

A Reply, 44 Rejoinder 45 and Sur-Rejoinder 46 were respectively filedby the parties. Consequently, the motion for reconsideration in SPANo. 01-208 and the petition for declaration of nullity in SPC No. 01-324were submitted for resolution. cCaSHA

From the records, it appears that initially, a "Resolution" penned byCommissioner Rufino S.B. Javier, dated July 24, 2001, was submittedto the Office of the Chairman, dismissing the petition for declaration ofnullity for lack of jurisdiction and denying the motion forreconsideration filed by petitioner Codilla.47 Commissioners Florentino

A. Tuason, Jr. and Resurreccion Z. Borra submitted their respectivedissenting opinions 48 to the Javier resolution. It bears emphasis thatCommissioner Tuason, Jr. was the ponente of the Resolution of theCOMELEC Second Division which ordered the disqualification of petitioner but after considering the additional evidence presented bythe latter, he concluded that the totality of the evidence was clearly inpetitioner's favor. Equally worth mentioning is the fact thatCommissioner Ralph C. Lantion, who was the Presiding Commissionerof the Second Division, also dissented and voted to grant Codilla'smotion for reconsideration on the ground that "[T]he people of Leytehave spoken and I respect the electorate's will. . . ." 49

On August 29, 2001, then COMELEC Chairman Alfredo L. Benipayoissued a "Vote and Opinion and Summary of Votes" reversing the resolution of the Second Division and declaring the proclamation of respondent Locsin as null and void . The dispositive portion reads:

"JUDGMENT

WHEREFORE, in view of all the foregoingconsiderations, I concur with CommissionerResurreccion Z. Borra, Commissioner Florentino

A. Tuason, Jr. and Commissioner Ralph C.Lantion, in SPA No. 01-208, to GRANT themotion for reconsideration and to REVERSE the

resolution of the Commission (Second Division)promulgated on June 1, 2001, disqualifyingCodilla; and subsequently, in SPC No. 01-324,to GRANT the petition of Eufrocino M. Codilla,Sr., and declare as null and void theproclamation of losing candidate Locsin.

Accordingly:

1.On the Motion for Reconsideration of thedisqualification resolution against Codilla,promulgated by the Commission (Second Division ) on June 14, 2001 (SPA No. 01-208), Ivote:









































































































(a)to GRANT the Motion forReconsideration of respondent-movantEufrocino M. Codilla, Sr.,and to REVERSE theResolution of theCommission (Second Division ) promulgated onJune 14, 2001, forinsufficiency of evidence;

(b)to lift the order of suspension of proclamation of petitionerCodilla, issued by theCommission (Second Division ) on May 18, 2001,having been issued withouthearing and without anyfinding that the evidence of guilt of petitioner Codilla isstrong and, thus, null andvoid;

(c)to nullify the order contained in theResolution of theCommission (Second Division ) promulgated onJune 14, 2001, for "(t)he immediate proclamation of the candidate who garnered the highest number of votes, to the exclusion of respondent" and the concurrent order for "the Provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" the

same being violative of election laws, established jurisprudence, andresolutions of theCommission;

(d)to nullify the ruling contained inthe Resolution of theCommission (Second Division ) promulgated onJune 14, 2001, that thevotes of respondent Codillaare "considered stray and invalid" said ruling beingissued on the basis of aninapplicable decision, and

contrary to established jurisprudence;

(e)to order the Provincial Board of Canvassers of Leyte, uponthe finality of thisresolution, to reconveneand proclaim petitionerCodilla as the winningcandidate forRepresentative of theFourth Legislative district of Leyte to comply with itsministerial duty to proclaim

the candidate whogarnered the highest number of votes in the elections for that position ;and

(f)to order intervenor-oppositorLocsin, upon the finality of this resolution, to vacatethe office of Representativeof the House of

Representativesrepresenting the Fourthlegislative district of Leyteand, for this purpose, toinform the House of Representatives throughthe Honorable Speaker of this resolution for itsattention and guidance;and

2.On the petition for Declaration of Nullity of proclamation of respondent Ma. Victoria L.Locsin (SPC No. 01-324), I vote:

(a)to GRANT the petition of EufrocinoM. Codilla, Sr., and declareas null and void theproclamation of losingcandidate Locsin, theproclamation being violativeof election laws, established

jurisprudence, andresolutions of theCommission on Elections;

(b)to lift the order of suspension of proclamation of petitionerCodilla, issued by theCommission (Second

Division ) on May 18, 2001,in SPA No. 01-208, havingbeen issued withouthearing and without anyfinding that the evidence of guilt of petitioner Codilla isstrong and, thus, null andvoid;

(c)to nullify the order contained in theResolution of theCommission (Second Division ) promulgated onJune 14, 2001, in SPA No.01-208, for "(t)he immediate proclamation of

the candidate who garnered the highest number of votes, to the exclusion of respondent" and theconcurrent order for "the provincial Board of Canvasser (sic) of Leyte to immediately reconvene and thereafter proclaim forthwith the candidate who obtained the highest number of votes counting out the Respondent" thesame being violative of



election laws, established jurisprudence, andresolutions of theCommission;

(d)to nullify the ruling contained inthe Resolution of theCommission (Second Division ) promulgated onJune 14, 2001, in SPA No.01-208, that the votes of

respondent Codillaare "considered stray and invalid" said ruling beingissued on the basis of aninapplicable decision, andcontrary to established

jurisprudence;

(e)to order the provincial Board of Canvassers of Leyte, uponthe finality of thisresolution, to reconveneand proclaim petitionerCodilla as the winningcandidate forRepresentative of theFourth legislative district of Leyte he (sic) havinggarnered the highest number of votes in the elections for the position ;and

(f)to order respondent Locsin, uponthe finality of thisresolution, to vacate theoffice of Representative of the House of Representativesrepresenting the FourthLegislative district of Leyte

and, for this purpose, toinform the House of Representatives throughthe Honorable Speaker of this resolution for itsattention andguidance. CAacTH

Summary of Votes

Considering the FOUR (4) VOTES of theChairman and Commissioners Resurreccion Z.Borra, Florentino A. Tuason, Jr., and Ralph C.Lantion, to grant the Motion for Reconsiderationof Codilla and reverse the disqualification

Resolution of the Commission (Second Division )in SPA No. 01-208, promulgated on June 14,2001, and as an inevitable consequence, invoting to grant the petition for declaration of nullity of the proclamation of Ma. Victoria L.Locsin in SPC No. 01-324, the verdict/opinion of the Chairman and the three (3) Commissionerstaken together now stands, as it is, theMAJORITY DECISION of the Commission En Banc in both cases; andthe "Resolution" submitted by three (3)Commissioners, namely, Commissioner RufinoS.B. Javier, Commissioner Luzviminda G.Tancangco, and Commissioner Mehol K. Sadain,

is considered, as it is, the MINORITY DECISIONof the Commission En Banc in both cases.

The MAJORITY DECISION was arrived at afterproper consultation with those who joined themajority. The Chairman and the three (3)Commissioners comprising the majority decidedthat no one will be assigned to write a MajorityDecision. Instead, each one will write his ownseparate opinion. Commissioners Borra, Tuason,Jr. and the undersigned Chairman submitted

separate opinions. Commissioner Lantion wrotean explanation on his vote." 50

The aforequoted judgment was adopted in a "Vote of Adoption" signedby Commissioners Ralph C. Lantion, Resurreccion Z. Borra andFlorentino A. Tuason, Jr. 51

Respondent Locsin did not appeal from this decision annulling her proclamation. Instead, she filed a "Comment andManifestation" 52 with the COMELECen banc questioning theprocedure and the manner by which the decision was issued. Inaddition, respondent Locsin requested and was issued an opinion byHouse of Representatives Executive Director and Chief Legal CounselLeonardo B. Palicte III declaring that the COMELEC has no jurisdictionto nullify the proclamation of respondent Locsin after she had taken

her oath and assumed office since it is the HRET which is the sole judge of election, returns and qualifications of Members of theHouse. 53 Relying on this opinion, respondent Locsin submitted awritten privileged speech to the House during its regular session onSeptember 4, 2001, where she declared that she will not onlydisregard but will openly defy and disobey the COMELEC en banc resolution ordering her to vacate her position. 54

On September 6, 2001, the COMELEC en banc issued anOrder 55 constituting the members of the Provincial Board of Canvassers of Leyte to implement the aforesaid decision. It likewiseordered the Board to reconvene and "proclaim the candidate whoobtained the highest number of votes in the district, as the duly-elected Representative of the Fourth Legislative district of Leyte, andaccordingly issue a Certificate of Canvass and Proclamation of Winning

Candidate for Member of the House of Representatives . . . , based onthe city/municipal certificates of canvass submitted beforehand to theprevious Provincial Board of Canvassers of Leyte . . . ."

On September 12, 2001, petitioner Codilla was proclaimed by the Provincial Board of Canvassers as the duly-elected Representative of the 4th legislative district of Leyte , having obtained a total of 71,350votes representing the highest number of votes cast in thedistrict. 56 On the same day, petitioner took his oath of office beforeExecutive Judge Fortunito L. Madrona of the Regional Trial Court of Ormoc City. 57

On September 14, 2001, petitioner wrote the House of

Representatives, thru respondent Speaker De Venecia, informing theHouse of the August 29, 2001 COMELEC en banc resolution annullingthe proclamation of respondent Locsin, and proclaiming him as theduly-elected Representative of the 4th legislative district of Leyte. 58 Petitioner also served notice that "I am assuming the dutiesand responsibilities as Representative of the fourth legislative district oLeyte to which position I have been lawfully elected and proclaimed.On behalf of my constituents, I therefore expect that all r ights andprivileges intended for the position of Representative of the fourthlegislative district of Leyte be accorded to me, including all physicalfacilities and staff support." On the basis of this letter, aMemorandum 59 dated October 8, 2001 was issued by Legal AffairsDeputy Secretary-General Gaudencio A. Mendoza, Jr., for Speaker De

Venecia, stating that "there is no legal obstacle to complying with the






































duly promulgated — and now final and executory — COMELECDecision of August 29, 2001 . . . ."

These notwithstanding, and despite receipt by the House of Representatives of a copy of the COMELEC en banc resolution onSeptember 20, 2001, 60 no action was taken by the House on the letter-appeal of petitioner . Hence, petitioner sought the assistance of his party, LAKAS-NUCD-UMDP, which sent a letter 61 addressed torespondent Speaker De Venecia, dated October 25, 2001, and signedby Party President Teofisto T. Guingona, Jr., Secretary-GeneralHeherson T. Alvarez, and Region VIII Party Chairman Sergio Antonio F.

Apostol, requesting the House of Representatives to act decisively onthe matter in order that petitioner "can avail of whatever remedy isavailable should their action remain unfavorable or otherwiseundecisive."

In response, Speaker De Venecia sent a letter 62 dated October 30,2001, stating that:

"We recognize the finality of the COMELECdecision and we are inclined to sustain it.However, Rep. Locsin has officially notified theHOUSE in her privilege speech, inserted in theHOUSE Journal dated September 4, 2001, thatshe shall 'openly defy and disobey' theCOMELEC ruling. This ultimately means that

implementing the decision would result in thespectacle of having two (2) legislatorsoccupying the same congressional seat, a legalsituation, the only consideration, that effectivelydeters the HOUSE's liberty to take action.

In this light, the accepted wisdom is that the implementation of the COMELEC decision is a matter that can be best, and with finality,adjudicated by the Supreme Court, which,hopefully, shall act on it most expeditiously." (italics supplied)

Hence, the present petition for mandamus and quo warranto .

Petitioner submits that by virtue of the resolution of the COMELEC en banc which has become final and executory for failure of respondentLocsin to appeal therefrom, it has become the ministerial duty: (1) of the Speaker of the House of Representatives, as its AdministrativeHead and Presiding Officer, to implement the said resolution of theCOMELEC en banc by installing him as the duly-elected Representativeof the 4th legislative district of Leyte; and (2) of the Secretary-General,as official custodian of the records of the House, to formally registerhis name in the Roll of Members of the House and delete the name of respondent Locsin therefrom. Petitioner further contends thatrespondent Locsin has been usurping and unlawfully holding the publicoffice of Representative of the 4th legislative district of Leyteconsidering that her premature proclamation has been declared nulland void by the COMELEC en banc . He alleges that the action orinaction of public respondents has deprived him of his lawful right to

assume the office of Representative of the 4th legislative district of Leyte.

In his Comment, 63 public respondent Speaker De Venecia allegedthat mandamus will not lie to compel the implementation of theCOMELEC decision which is not merely a ministerial duty but onewhich requires the exercise of discretion by the Speaker of the Houseconsidering that: (1) it affects the membership of the House; and (2)there is nothing in the Rules of the House of Representatives whichimposes a duty on the House Speaker to implement a COMELECdecision that unseats an incumbent House member.

In his Comment, 64 public respondent Secretary-General Nazarenoalleged that in reading the name of respondent Locsin during the roll

call, and in allowing her to take her oath before the Speaker-elect andsit as Member of the House during the Joint Session of Congress, hewas merely performing official acts in compliance with theopinions 65 rendered by House of Representatives Chief Counsel andExecutive Director Leonardo C. Palicte III stating that the COMELEChas no jurisdiction to declare the proclamation of respondent Locsin asnull and void since it is the HRET which is the sole judge of all electionreturns and qualifications of Members of the House. He also contendsthat the determination of who will sit as Member of the House of Representatives is not a ministerial function and cannot, thus, becompelled by mandamus .

Respondent Locsin, in her Comment, 66 alleged that the SupremeCourt has no original jurisdiction over an action for quo warranto involving a member of the House of Representatives forunder Section 17, Article VI of the Constitution it is the HRET which isthe sole judge of all contests relating to the election, returns andqualifications of Members of the House of Representatives. Shelikewise asserts that this Court cannot issue the writof mandamus against a co-equal legislative department without grosslyviolating the principle of separation of powers. She contends that theact of recognizing who should be seated as a bona fide member of theHouse of Representatives is not a ministerial function but a legislativeprerogative, the performance of which cannot be compelledby mandamus . Moreover, the prayer for a writ of mandamus cannot bedirected against the Speaker and Secretary-General because they donot have the authority to enforce and implement the resolution of the

COMELEC.

Additionally, respondent Locsin urges that the resolution of theCOMELEC en banc is null and void for lack of jurisdiction. First, itshould have dismissed the case pending before it after herproclamation and after she had taken her oath of office. Jurisdictionthen was vested in the HRET to unseat and remove a Member of theHouse of Representatives. Second, the petition for declaration of nullity is clearly a pre-proclamation controversy and the COMELEC en banc has no original jurisdiction to hear and decide a pre-proclamationcontroversy. It must first be heard by a COMELEC Division. Third, thequestioned decision is actually a "hodge-podge" decision because of the peculiar manner in which the COMELEC disposed of the case.

Finally, respondent Locsin asserts that the matter of her qualification

and eligibility has been categorically affirmed by the HRET when itdismissed the quo warranto case filed against her, docketed as HRETCase No. 01-043, entitled "Paciano Travero vs. Ma. Victoria Locsin," onthe ground that "the allegations stated therein are not proper groundsfor a petition for quo warranto against a Member of the House of Representatives under Section 253 of the Omnibus Election Codeand Rule 17 of the HRET Rules, and that the petition was filedlate." 67

In his Reply, 68 petitioner asserts that the remedy of respondentLocsin from the COMELEC decision was to file a petitionfor certiorari with the Supreme Court, not to seek an opinion from theChief Legal Counsel of the House of Representatives; that the HREThas no jurisdiction over a petition for declaration of nullity of proclamation which is based not on ineligibility or disloyalty, but by

reason that the candidate proclaimed as winner did not obtain thehighest number of votes; that the petition for annulment of proclamation is a pre-proclamation controversy and, hence, falls withinthe exclusive jurisdiction of the COMELEC pursuant to Section 242 of B.P. Blg. 881 69 and Section 3, Article IX (C) of the Constitution; thatrespondent Speaker De Venecia himself recognizes the finality of theCOMELEC decision but has decided to refer the matter to the SupremeCourt for adjudication; that the enforcement and implementation of afinal decision of the COMELEC involves a ministerial act and does notencroach on the legislative power of Congress; and that the power todetermine who will sit as Member of the House does not involve anexercise of legislative power but is vested in the sovereign will of theelectorate.











































The core issues in this case are: (a) whether the proclamation of respondent Locsin by the COMELEC Second Division is valid; (b)whether said proclamation divested the COMELEC en banc of

jurisdiction to review its validity; and (c) assuming the invalidity of saidproclamation, whether it is the ministerial duty of the publicrespondents to recognize petitioner Codilla, Sr. as the legally electedRepresentative of the 4th legislative district of Leyte vice respondentLocsin.

I

Whether the proclamation of respondent Locsin is valid .

After carefully reviewing the records of this case, we find that theproclamation of respondent Locsin is null and void for the followingreasons:

First. The petitioner was denied due process during the entire proceedings leading to the proclamation of respondent Locsin.

COMELEC Resolution Nos. 3402 70 sets the procedure fordisqualification cases pursuant to Section 68 of the Omnibus ElectionCode, viz :

"C.PETITION TO DISQUALIFY A CANDIDATEPURSUANT TO SEC. 68 OF THEOMNIBUS ELECTION CODE ANDPETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SAME GROUNDS FOR DISQUALIFICATION

(1)The verified petition to disqualify acandidate pursuant to Sec.68 of the Omnibus ElectionCode and the verifiedpetition to disqualify acandidate for lack of qualifications or possessing

same grounds fordisqualification, may befiled any day after the lastday for filing of certificatesof candidacy but not laterthan the date of proclamation.

(2)The petition to disqualify acandidate pursuant to Sec.68 of the Omnibus ElectionCode shall be filed in ten(10) legible copies by any

citizen of voting age, orduly registered politicalparty, organization orcoalition of political partiesagainst any candidate whoin an action or protest inwhich he is a party isdeclared by final decision of a competent court guilty of,or found by theCommission of.

2.ahaving given money orother materialconsideration to

influence, induceor corrupt thevoters or publicofficialsperformingelectoralfunctions;

2.bhaving committed actsof terrorism toenhance his

candidacy; EHTSCD

2.chaving spent in hiselectioncampaign anamount in excessof that allowedby the OmnibusElection Code;

2.dhaving solicited,received or madeany contributionprohibited under

Sections 89, 95,96, 97 and 104 of the OmnibusElection Code;

2.ehaving violated any of Sections 80, 83,85, 86 and 261,paragraphs d, e,k, v, and cc, sub-paragraph 6 of the OmnibusElection Code,shall bedisqualified from

continuing as acandidate, or if he has beenelected, fromholding theoffice.

xxx xxx xxx

(4)Upon payment of the filing fee of P1,000.00 and legalresearch fee of P20.00, theoffices concerned shalldocket the petition andassign to it a docket

number which must beconsecutive, according tothe order of receipt andmust bear the year andprefixed as SPA with thecorresponding initial of thename of the office, i.e. SPA(RED) No. C01-001; SPA(PES) No. C01-001;

(5)Within three (3) days from filing of the petitions, the officesconcerned shall issuesummons to therespondent candidate







together with a copy of thepetition and its enclosures,if any;

(6)The respondent shall be giventhree (3) days from receiptof summons within whichto file his verified answer(not a motion to dismiss) tothe petition in ten (10)legible copies, serving a

copy thereof upon thepetitioner. Grounds forMotion to Dismiss may beraised as an affirmativedefense;

(7)The proceeding shall be summaryin nature. In lieu of thetestimonies, the partiesshall submit their affidavitsor counter-affidavits andother documentaryevidences including theirposition paper;

(8)The hearing must be completedwithin ten (10) days fromthe date of the filing of theanswer. The hearing officerconcerned shall submit tothe Clerk of theCommission through thefastest means of communication, hisfindings, reports andrecommendations withinfive (5) days from thecompletion of the hearingand reception of evidencetogether with the completerecords of the case;

(9)Upon receipt of the records of thecase of the findings, reportsand recommendation of thehearing officer concerned,the Clerk of theCommission shallimmediately docket thecase consecutively andcalendar the same for raffleto a division;

(10)The division to whom the case israffled, shall afterconsultation, assign the

same to a member whoshall pen the decision,within five (5) days fromthe date of consultation."

Resolution No. 3402 clearly requires the COMELEC, through theRegional Election Director, to issue summons to the respondentcandidate together with a copy of the petition and its enclosures, if any, within three (3) days from the filing of the petition fordisqualification. Undoubtedly, this is to afford the respondentcandidate the opportunity to answer the allegations in the petition andhear his side. To ensure compliance with this requirement, theCOMELEC Rules of Procedure requires the return of the summons

together with the proof of service to the Clerk of Court of theCOMELEC when service has been completed, viz :

"Rule 14.Summons

xxx xxx xxx

Section 5.Return . — When the service has beencompleted by personal service, the server shallgive notice thereof, by registered mail, to the

protestant or his counsel and shall return thesummons to the Clerk of Court concerned whoissued it, accompanied with the proof of service.

Section 6.Proof of Service . — Proof of service of summons shall be made in the manner providedfor in the Rules of Court in the Philippines."

Thereafter, hearings, to be completed within ten (10) days from thefiling of the Answer, must be conducted. The hearing officer isrequired to submit to the Clerk of the Commission his findings, reportsand recommendations within five (5) days from the completion of thehearing and reception of evidence together with the complete recordsof the case.

(a)Petitioner was not notified of the petition for his disqualification through the service of summons nor of the Motions to suspend his proclamation . TaDSCA

The records of the case do not show that summons was served on thepetitioner. They do not contain a copy of the summons allegedlyserved on the petitioner and its corresponding proof of service.Furthermore, private respondent never rebutted petitioner's repeatedassertion that he was not properly notified of the petition for hisdisqualification because he never received summons. 71 Petitionerclaims that prior to receiving a telegraphed Order from the COMELECSecond Division on May 22, 2001, directing the District Board of

Canvassers to suspend his proclamation, he was never summoned norfurnished a copy of the petition for his disqualification. He was able toobtain a copy of the petition and the May 22 Order of the COMELECSecond Division by personally going to the COMELEC Regional Officeon May 23, 2001. Thus, he was able to file his Answer to thedisqualification case only on May 24, 2001.

More, the proclamation of the petitioner was suspended in grossviolation of Section 72 of the Omnibus Election Code which provides:

"Sec. 72.Effects of disqualification cases and priority . — The Commission and the courts shallgive priority to cases of disqualification byreason of violation of this Act to the end that a final decision shall be rendered not later than

seven days before the election in which the disqualification is sought .

Any candidate who has been declared by final judgment to be disqualified shall not be votedfor, and the votes cast for him shall not becounted.Nevertheless, if for any reason, a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, his violation of the provisions of the preceding sections shall not prevent his proclamation and assumption to office." (italics supplied)






In the instant case, petitioner has not been disqualified by final judgment when the elections were conducted on May 14, 2001. TheRegional Election Director has yet to conduct hearing on the petitionfor his disqualification. After the elections, petitioner was voted inoffice by a wide margin of 17,903. On May 16, 2001, however,respondent Locsin filed a Most Urgent Motion for the suspension of petitioner's proclamation. The Most Urgent Motion contained astatement to the effect that a copy was served to the petitionerthrough registered mail. The records reveal that no registry receiptwas attached to prove such service. 72 This violates COMELEC Rulesof Procedure requiring notice and service of the motion to allparties, viz :

"Section 4.Notice . — Notice of a motion shall beserved by the movant to all parties concerned,at least three (3) days before the hearingthereof, together with a copy of the motion. Forgood cause shown, the motion may be heardon shorter notice, especially on matters whichthe Commission or the Division may dispose of on its own motion.

The notice shall be directed to the partiesconcerned and shall state the time and place of the hearing of the motion.

Section 5.Proof of Service . —

No motion shallbe acted upon by the Commission without proof of service of notice thereof, except when theCommission or a Division is satisfied that therights of the adverse party or parties are notaffected."

Respondent's Most Urgent Motion does not fall under the exceptions tonotice and service of motions. First, the suspension of proclamation of a winning candidate is not a matter which the COMELEC SecondDivision can dispose of motu proprio . Section 6 of R.A. No.6646 73 requires that the suspension must be "upon motion by thecomplainant or any intervenor," viz :

"Section 6.Effect of Disqualification Case . — Any

candidate who has been declared by final judgment to be disqualified shall not be votedfor, and the votes cast for him shall not becounted. If for any reason, a candidate is notdeclared by final judgment before an election tobe disqualified and he is voted for and receivesthe winning number of votes in suchelection, the Court or Commission (COMELEC) shall continue with the trial or 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." (italicssupplied)

Second, the right of an adverse party, in this case, the petitioner, isclearly affected. Given the lack of service of the Most Urgent Motion tothe petitioner, said Motion is a mere scrap of paper. 74 It cannot beacted upon by the COMELEC Second Division.

On May 18, 2001 at exactly 5:00 p.m., 75 respondent Locsin filed aSecond Most Urgent Motion for the suspension of petitioner'sproclamation. Petitioner was served a copy of the Second Motion againby registered mail. A registry receipt 76 was attached evidencingservice of the Second Most Urgent Motion to the petitioner but it doesnot appear when the petitioner received a copy thereof. That sameday, the COMELEC Second Division issued an Order suspending theproclamation of petitioner. Clearly, the petitioner was not given anyopportunity to contest the allegations contained in the petition for

disqualification. The Order was issued on the very same day theSecond Most Urgent Motion was filed. The petitioner could not havereceived the Second Most Urgent Motion, let alone answer the sameon time as he was served a copy thereof by registered mail.

Under Section 6 of R.A. No. 6646, the COMELEC can suspendproclamation only when evidence of the winning candidate's guilt isstrong. In the case at bar, the COMELEC Second Division did not makeany specific finding that evidence of petitioner's guilt is strong . Its onlybasis in suspending the proclamation of the petitioner is the"seriousness of the allegations " in the petition for disqualification.Pertinent portion of the Order reads:

"Without giving due course to the petition . . .the Commission (2nd Division), pursuant toSection 72 of the Omnibus Election Code inrelation to Section 6, Republic Act No. 6646 . . .and considering the serious allegations in the petition, hereby directs the Provincial Board of Canvassers of Leyte to suspend the proclamation of respondent, if winning, until further orders ." 77 (italics supplied)

We hold that absent any finding that the evidence on the guilt of thepetitioner is strong, the COMELEC Second Division gravely abused itspower when it suspended his proclamation.

(b)The COMELEC Second Division did not give ample opportunity to the petitioner to adduce evidence in support of his defense in the petition for his disqualification.

All throughout the proceeding, no hearing was conducted on thepetition for disqualification in gross violation of Section 6 of R.A. No.6646 which specifically enjoins the COMELEC to "continue with the triaor hearing of the action, inquiry, or protest." This is also in violation of COMELEC Resolution No. 3402 requiring the Regional ElectionDirector to complete the hearing and reception of evidence within ten(10) days from the filing of the Answer, and to submit his findings,reports, and recommendations within the five (5) days fromcompletion of the hearing and the reception of evidence.

Petitioner filed a Motion to Lift the Order of Suspension of hisproclamation on May 25, 2001. Although an oral argument on thisMotion was held, and the parties were allowed to file their respectivememoranda, the Motion was not acted upon. Instead, the COMELECSecond Division issued a Resolution on the petition for disqualificationagainst the petitioner. It was based on the following evidence: (a) theaffidavits attached to the Petition for Disqualification; (b) the affidavitsattached to the Answer; and (c) the respective memoranda of theparties.

On this score, it bears emphasis that the hearing for Motion to Lift theOrder of Suspension cannot be substituted for the hearing in thedisqualification case. Although intrinsically linked, it is not to besupposed that the evidence of the parties in the main disqualificationcase are the same as those in the Motion to Lift the Order of Suspension. The parties may have other evidence which they maydeem proper to present only on the hearing for the disqualificationcase. Also, there may be evidence which are unavailable during thehearing for the Motion to Lift the Order of Suspension but which maybe available during the hearing for the disqualification case.

In the case at bar, petitioner asserts that he submitted hisMemorandum merely to support his Motion to Lift the Order of Suspension. It was not intended to answer and refute thedisqualification case against him. This submission was sustained by the























COMELEC en banc . Hence, the members of the COMELEC en banc concluded, upon consideration of the additional affidavitsattached in his Urgent Manifestation, that the evidence to disqualifythe petitioner was insufficient. More specifically, the ponente of thechallenged Resolution of the COMELEC Second Division held: IcaHTA

"Indeed, I find from the records that the May30, 2001 hearing of the COMELEC (SecondDivision) concerns only the incident relating tothe Motion to Lift Order of Suspension of Proclamation. It also appears that the order for

the submission of the parties' respectivememoranda was in lieu of the parties' oralargument on the motion. This would explain thefact that Codilla's Memorandum refers mainly tothe validity of the issuance of the order of suspension of proclamation. There is, however,no record of any hearing on the urgent motionfor the suspension of proclamation. Indeed, it was only upon the filing of the Urgent Manifestation by Codilla that the Members of the Commission (Second Division) and other Members of the Commission en banc had the opportunity to consider Codilla's affidavits. This time, Codilla was able to present his side, thus,completing the presentation of evidentiary documents from both sides." 78 (italics

supplied)

Indeed, careful reading of the petitioner's Memorandum shows that heconfined his arguments in support of his Motion to Lift the Order of Suspension. In said Memorandum, petitioner raised the followingissues: (a) he was utterly deprived of procedural due process, andconsequently, the order suspending his proclamation is null and void;(b) the said order of suspension of proclamation has no legal andfactual basis; and (c) evidence of guilt on his part is patently inexistentfor the purpose of directing the suspension of his proclamation. 79 Heurged the COMELEC Second Division to conduct a full dress hearing onthe main disqualification case should the suspension be lifted. 80

(c)the Resolution of the COMELEC Second Division disqualifying the petitioner is

not based on substantial evidence.

The Resolution of the COMELEC Second Division cannot be consideredto be based on substantial evidence. It relied merely on affidavits of witnesses attached to the petition for disqualification. As stressed, theCOMELEC Second Division gave credence to the affidavits withouthearing the affiants. In reversing said Resolution, the COMELEC en banc correctly observed:

"Lacking evidence of Codilla, the Commission(Second Division) made its decisions basedmainly on the allegation of the petitioner andthe supporting affidavits. With this lopsidedevidence at hand, the result was predictable.The Commission (Second Division) had no

choice. Codilla was disqualified." 81

Worse, the Resolution of the COMELEC Second Division, even withoutthe evidence coming from the petitioner, failed to prove the gravamenof the offense for which he was charged. 82

Petitioner allegedly violated Section 68 (a) of the Omnibus ElectionCode which reads:

"Section 68.Disqualifications . — Any candidatewho, in action or protest in which he is a partyis declared by final decision of a competentcourt guilty of, or found by the Commission of

having (a) given money or other materialconsideration to influence, induce or corrupt thevoters or public officials performing officialfunctions, . . . shall be disqualified fromcontinuing as candidate, or if he has beenelected, from holding office"

To be disqualified under the above-quoted provision, the followingelements must be proved: (a) the candidate, personally or through hisinstructions, must have given money or other material consideration;and (b) the act of giving money or other material consideration must

be for the purpose of influencing, inducing, or corrupting the voters orpublic officials performing electoral functions. AIDcTE

In the case at bar, the petition for disqualification alleged that (a)petitioner ordered the extraction, hauling and distribution of gravel andsand, and (b) his purpose was to induce and influence the voters of Kananga and Matag-ob, Leyte to vote for him. Pertinent portion of thepetition reads:

"[T]he respondent [herein petitioner], withinthe election period, took advantage of hiscurrent elective position as City Mayor of OrmocCity by illegally and unlawfully using during theprohibited period, public equipments andvehicles belonging to and owned by the City

Government of Ormoc City in extracting,hauling and distributing gravel and sand to theresidents and voters of the Municipalities of Kananga and Matag-ob Leyte, well within theterritorial limits of the 4th Congressional Districtof Leyte, which acts were executed withoutperiod, and clearly for the illicit purpose of unduly inducing or directly corrupting variousvoters of Kananga and Matag-ob, within the 4thlegislative district of Leyte, for the precisepurpose of inducing and influencing thevoters/beneficiaries of Kananga and Matag-ob,Leyte to cast their votes for saidrespondent." 83

The affidavits relied upon by the COMELEC Second Division failed toprove these allegations. For instance, Cesar A. Laurente merely statedthat he saw three (3) ten-wheeler dump trucks and a HyundaiPayloader with the markings "Ormoc City Government" extracting andhauling sand and gravel from the riverbed adjacent to the propertyowned by the Codilla family. 84

Agripino C. Alferez and Rogelio T. Sulvera in their Joint Affidavit merelystated that they saw white trucks owned by the City Government of Ormoc dumping gravel and sand on the road of Purok 6, San Vicente,Matag-ob, Leyte. A payloader then scattered the sand and gravelunloaded by the white trucks. 85

On the other hand, Danilo D. Maglasang, a temporary employee of theCity Government of Ormoc assigned to check and record the delivery

of sand and gravel for the different barangays in Ormoc, stated asfollows:

"3.That on April 20, 2001, I was ordered byEngr. Arnel Padayo, an employee of the CityEngineering Office, Ormoc City to go toTagaytay, Kangga (sic ), Leyte as that will bethe source of the sand and gravel. I inquiredwhy we had to go to Kananga but Engr.Padayao said that it's not a problem as it wasMayor Eufrocino M. Codilla, Sr. who ordered thisand the property is owned by the family of Mayor Codilla. We were to deliver sand andgravel to whoever requests from MayorCodilla." 86






































Similarly, the Affidavit of Basilio Bates cannot prove the offensecharged against the petitioner. He alleged that on April 18, 2001, awhite truck with the marking "City Government of Ormoc" came to hislot at Montebello, Kananga, Leyte and unloaded mixed sand and thatthe driver of the truck told him to "vote for Codilla as a (sic )congressman during election." 87 His statement is hearsay. He has nopersonal knowledge of the supposed order of the petitioner todistribute gravel and sand for the purpose of inducing the voters tovote for him. The same could be said about the affidavits of Randy T.Merin, 88 Alfredo C. De la Peña, 89 Miguel P. Pandac, 90 PaquitoBregeldo, Cristeta Alferez, Glicerio Rios, 91 Romulo Alkuino,Sr., 92 Abner Casas, 93 Rita Trangia, 94 and JudithErispe 95 attached to respondent Locsin's Memorandum on the Motionto Lift the Suspension of Proclamation.

Also valueless are the affidavits of other witnesses 96 of respondentLocsin, all similarly worded, which alleged that the petitioner orderedthe repair of the road in Purok 6, Barangay San Vicente, Matag-ob,Leyte and the flattening of the area where the cockfights were to beheld. These allegations are extraneous to the charge in the petition fordisqualification. More importantly, these allegations do not constitute aground to disqualify the petitioner based on Section 68 of the OmnibusElection Code.

To be sure, the petition for disqualification also ascribed other electionoffenses against the petitioner, particularly Section 261 of the OmnibusElection Code, viz :

"Section 261.Prohibited Acts . — The followingshall be guilty of an election offense:

(a)Vote-buying and vote-selling . — (1) Anyperson who gives, offers or promisesmoney or anything of value, gives orpromises any office or employment,franchise or grant, public or private,or make or offers to make anexpenditure, directly or indirectly, orcause an expenditure to be made to

any person, association, corporation,entity or community in order toinduce anyone or the public ingeneral, to vote for or against anycandidate or withhold his vote in theelection, or to vote for or against anyaspirant for the nomination or choiceof a candidate in a convention orsimilar selection process of a politicalparty. caIACE

xxx xxx xxx

(o)Use of public funds, money deposited in trust, equipment, facilities owned or

controlled by the government for an election campaign . — Any personwho uses under any guisewhatsoever directly or indirectly, . . .(3) any equipment, vehicle, facility,apparatus, or paraphernalia owned bythe government or by its politicalsubdivisions, agencies includinggovernment-owned or controlledcorporations, or by the Armed Forcesof the Philippines for any electioncampaign or for any partisan politicalactivity . . . ."

However, the jurisdiction of the COMELEC to disqualify candidates islimited to those enumerated in Section 68 of the Omnibus ElectionCode. All other election offenses are beyond the ambit of COMELEC

jurisdiction. 97 They are criminal and not administrative in nature.Pursuant to Sections 265 and 268 of the Omnibus Election Code, thepower of the COMELEC is confined to the conduct of preliminaryinvestigation on the alleged election offenses for the purpose of prosecuting the alleged offenders before the regular courts of

justice, viz :

"Section 265.Prosecution . — The Commission

shall, through its duly authorized legal officers,have the exclusive power to conduct preliminaryinvestigation of all election offenses punishableunder this Code, and to prosecute the same.The Commission may avail of the assistance of other prosecuting arms of thegovernment: Provided, however , That in theevent that the Commission fails to act on anycomplaint within four months from his filing, thecomplainant may file the complaint with theoffice of the fiscal or with the Ministry of Justicefor proper investigation and prosecution, if warranted.

xxx xxx xxx

Section 268.Jurisdiction . — The regional trialcourt shall have the exclusive original

jurisdiction to try and decide any criminal actionor proceeding for violation of this Code, exceptthose relating to the offense of failure toregister or failure to vote which shall be underthe jurisdictions of metropolitan or municipaltrial courts. From the decision of the courts,appeal will lie as in other criminal cases."

The COMELEC Second Division grievously erred when it decided thedisqualification case based on Section 261(a) and (o), and not onSection 68 of the Omnibus Election Code.

(d)Exclusion of the votes in favor of the petitioner and the proclamation of respondent Locsin was done with undue haste .

The COMELEC Second Division ordered the exclusion of the votes castin favor of the petitioner, and the proclamation of the respondentLocsin, without affording the petitioner the opportunity to challengethe same. In the morning of June 15, 2001, the Provincial Board of Canvassers convened, and on the strength of the said Resolutionexcluding the votes received by the petitioner, certified thatrespondent Locsin received the highest number of votes. On this basisrespondent Locsin was proclaimed.

Records reveal that the petitioner received notice of the Resolution of

the COMELEC Second Division only through his counsel via a facsimilemessage in the afternoon of June 15, 2001 98 when everything wasalready fait accompli . Undoubtedly, he was not able to contest theissuance of the Certificate of Canvass and the proclamation of respondent Locsin. This is plain and simple denial of due process.

The essence of due process is the opportunity to be heard. When aparty is deprived of that basic fairness, any decision by any tribunal inprejudice of his rights is void.

Second. The votes cast in favor of the petitioner cannot be considered "stray" and respondent cannot be validly proclaimed on that basis.



















































The Resolution of the COMELEC Second Division in SPA No. 01-208contains two dispositions: (1) it ruled that the petitioner wasdisqualified as a candidate for the position of Congressman of theFourth District of Leyte; and (2) it ordered the immediate proclamationof the candidate who garnered the highest number of votes, to theexclusion of the respondent [herein petitioner].

As previously stated, the disqualification of the petitioner is null andvoid for being violative of due process and for want of substantialfactual basis. Even assuming, however, that the petitioner was validlydisqualified, it is still improper for the COMELEC Second Division to

order the immediate exclusion of votes cast for the petitioner as stray,and on this basis, proclaim the respondent as having garnered thenext highest number of votes.

(a)The order of disqualification is not yet final,hence, the votes cast in favor of the petitioner cannot be considered "stray."

Section 6 of R.A. No. 6646 and Section 72 of the Omnibus ElectionCode require a final judgment before the election for the votes of adisqualified candidate to be considered "stray." Hence, when acandidate has not yet been disqualified by final judgment during theelection day and was voted for, the votes cast in his favor cannot bedeclared stray. To do so would amount to disenfranchising the

electorate in whom sovereignty resides. 99 For in voting for acandidate who has not been disqualified by final judgment during theelection day, the people voted for him bona fide , without any intentionto misapply their franchise, and in the honest belief that the candidatewas then qualified to be the person to whom they would entrust theexercise of the powers of government. 100

This principle applies with greater force in the case at bar consideringthat the petitioner has not been declared by final judgment to be disqualified not only before but even after the elections . TheResolution of the COMELEC Second Division disqualifying the petitionerdid not attain finality, and hence, could not be executed, because of the timely filing of a Motion for Reconsideration. Section 13, Rule 18 of the COMELEC Rules of Procedure on Finality of Decisions andResolutions reads:

"Sec. 13.Finality of Decisions or Resolutions . — (a) In ordinary actions, special proceedings,provisional remedies and special reliefs, adecision or resolution of the Commission en banc shall become final and executory afterthirty (30) days from its promulgation.

(b)In Special Actions and Special Cases adecision or resolution of theCommission en banc shall becomefinal and executory after five (5) daysin Special Actions and Special Casesand after fifteen (15) days in all otherproceedings, following their

promulgation.

(c)Unless a motion for reconsideration is seasonably filed, a decision or resolution of a Division shall become final and executory after the lapse of five (5) days in Special Actions and Special Cases and after fifteen (15) days in all other actions or proceedings, following its promulgation." (italics supplied)

In this wise, COMELEC Resolution No. 4116, 101 issued in relation tothe finality of resolutions or decisions in disqualification cases,provides:

"This pertains to the finality of decisions orresolutions of the Commission en banc ordivision, particularly on Special Actions(Disqualification Cases).

Special Action cases refer to the following:

(a)Petition to deny due course to a certificate of candidacy;

(b)Petition to declare a candidate as a nuisancecandidate;

(c)Petition to disqualify a candidate; and

(d)Petition to postpone or suspend an election.

Considering the foregoing and in order to guidefield officials on the finality of decisions orresolutions on special action cases

(disqualification cases) the Commission,RESOLVES, as it is hereby RESOLVED, asfollows:

(1)the decision or resolution of the En Banc of the Commission ondisqualification cases shallbecome final and executoryafter five (5) days from itspromulgation unlessrestrained by the SupremeCourt;

(2)the decision or resolution of aDivision on disqualification

cases shall become finaland executory after thelapse of five (5) days unlessa motion forreconsideration isseasonably filed;

(3)where the ground fordisqualification case is byreason of non-residence,citizenship, violation of election laws and otheranalogous cases and on theday of the election theresolution has not becomefinal and executory the BEIshall tally and count thevotes for such disqualifiedcandidate;

(4)the decision or resolution of the En Banc on nuisancecandidates, particularlywhether the nuisancecandidate has the samename as the bona fide candidate shall beimmediately executory;














(5)the decision or resolution of aDIVISION on nuisancecandidate, particularlywhere the nuisancecandidate has the samename as thebona fide candidate shall beimmediately executory afterthe lapse of five (5) daysunless a motion forreconsideration isseasonably filed. In whichcase, the votes cast shallnot be considered stray butshall be counted and talliedfor the bona fide candidate.

All resolutions, orders and rules inconsistent herewith are hereby modified or repealed."

Considering the timely filing of a Motion for Reconsideration, theCOMELEC Second Division gravely abused its discretion in ordering theimmediate disqualification of the petitioner and ordering the exclusionof the votes cast in his favor. Section 2, Rule 19 of the COMELEC Rules

of Procedure is very clear that a timely Motion for Reconsiderationshall suspend the execution or implementation of the resolution, viz :

Section 2.Period for filing Motion for Reconsideration . — A motion to reconsider adecision, resolution, order, or ruling of aDivision shall be filed within five (5) days fromthe promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution,order or ruling." (italics supplied)

(b)Respondent Locsin, as a mere second placer,cannot be proclaimed.

More brazen is the proclamation of respondent Locsin which violatesthe settled doctrine that the candidate who obtains the second highestnumber of votes may not be proclaimed winner in case the winningcandidate is disqualified. 102 In every election, the people's choice isthe paramount consideration and their expressed will must at all timesbe given effect. When the majority speaks and elects into office acandidate by giving him the highest number of votes cast in theelection for the office, no one can be declared elected in hisplace. 103 In Domino v. COMELEC , 104 this Court ruled, viz :

"It would be extremely repugnant to the basicconcept of the constitutionally guaranteed rightto suffrage if a candidate who has not acquiredthe majority or plurality of votes is proclaimedwinner and imposed as representative of a

constituency, the majority of which havepositively declared through their ballots thatthey do not choose him. To simplisticallyassume that the second placer would havereceived that (sic ) other votes would be tosubstitute our judgment for the mind of thevoters. He could not be considered the firstamong the qualified candidates because in afield which excludes the qualified candidate, theconditions would have substantially changed.

xxx xxx xxx

The effect of a decision declaring a personineligible to hold an office is only that theelection fails entirely, that the wreath of victorycannot be transferred from the disqualifiedwinner to the repudiated loser because the lawthen as now only authorizes a declaration infavor of the person who has obtained a pluralityof votes, and does not entitle the candidatereceiving the next highest number of votes tobe declared elected. In such case, the electorshave failed to make a choice and the election isa nullity. To allow the defeated and repudiatedcandidate to take over the elective positiondespite his rejection by the electorate is todisenfranchise the electorate without any faulton their part and to undermine the importanceand meaning of democracy and the people'sright to elect officials of their choice." 105

Respondent Locsin proffers a distinction between a disqualificationbased on personal circumstances such as age, residence or citizenshipand disqualification based on election offenses. She contends that theelection of candidates later disqualified based on election offenses likethose enumerated in Section 68 of the Omnibus Election Code shouldbe invalidated because they violate the very essence of suffrage andas such, the votes cast in his favor should not be considered. 106

This contention is without merit. In the recent case of Trinidad v.COMELEC , 107 this Court ruled that the effect of a judgmentdisqualifying a candidate, after winning the election, based on personacircumstances or Section 68 of the Omnibus Election Code is the samethe second placer could not take the place of the disqualified winner.

II

Whether the proclamation of respondent Locsin divested the COMELEC en banc of jurisdiction to

review its validity.

Respondent Locsin submits that the COMELEC en banc has no jurisdiction to annul her proclamation. She maintains that the

COMELEC en banc has been divested of jurisdiction to review thevalidity of her proclamation because she has become a member of theHouse of Representatives. Thus, she contends that the proper forumto question her membership to the House of Representatives is theHouse of Representative Electoral Tribunal (HRET).

We find no merit in these contentions.

First. The validity of the respondent's proclamation was a core issue inthe Motion for Reconsideration seasonably filed by the petitioner.

In his timely Motion for Reconsideration with the COMELEC en banc ,petitioner argued that the COMELEC Second Division erred thus:

"(1)in disqualifying petitioner on the basis solelyof the dubious declaration of the witnesses forrespondent Locsin;

(2)in adopting in toto the allegations of thewitnesses for respondent Locsin; and

(3)in promulgating the resolution in violation of its own rules of procedure and in directing therein the immediate proclamation of the second highest 'vote getter."' (italics supplied)

In support of his third assignment of error, petitioner argued that "theSecond Division's directive for the immediate proclamation of the
























second highest vote-getter is premature considering that theResolution has yet to become final and executory." 108 Clearly, thevalidity of respondent Locsin's proclamation was made a central issuein the Motion for Reconsideration seasonably filed by the petitioner.Without doubt, the COMELEC en banc has the jurisdiction to rule onthe issue.

The fact that the Petition for Nullity of Proclamation was filed directlywith the COMELEC en banc is of no moment. Even without saidPetition, the COMELEC en banc could still rule on the nullity of respondent's proclamation because it was properly raised in the Motion

for Reconsideration.

Section 3, Article IX-C of the 1987 Constitution empowers theCOMELEC en banc to review, on motion for reconsideration, decisionsor resolutions decided by a division, viz :

"Sec. 3.The Commission on Elections may sit en banc or in two divisions, and shall promulgateits rules of procedure in order to expeditedisposition of election cases, including pre-proclamation controversies. All such electioncases shall be heard and decided in division,provided that motions for reconsideration of decision shall be decided by the Commission en banc ."

Pursuant to this Constitutional mandate the COMELEC Rules of Procedure provides:

"Rule 19.Motions for Reconsideration. —

Section 1.Grounds for Motion for Reconsideration . — A motion forreconsideration may be filed on the groundsthat the evidence is insufficient to justify thedecision, order or ruling, or that the saiddecision, order or ruling is contrary to law.

Section 2.Period for filing Motion for

Reconsideration . —

A motion to reconsider adecision, resolution, order, or ruling of aDivision shall be filed within five (5) days fromthe promulgation thereof. Such motion, if not pro forma, suspends the execution or implementation of the decision, resolution,order or ruling."

Section 3.Form and Contents of Motion for Reconsideration . — The motion shall be verifiedand shall point out specifically the findings orconclusions of the decision, resolution, order orruling which are not supported by the evidenceor which are contrary to law, making expressreference to the testimonial or documentary

evidence or to the provisions of law alleged tobe contrary to such findings or resolutions.

Section 4.Effect of Motion for Reconsideration on Period to Appeal . — A motion to reconsider adecision, resolution, order or ruling when notpro forma , suspends the running of the period toelevate the matter to the Supreme Court.

Section 5.How Motion for Reconsideration Disposed Of. — Upon the filing of a motion toreconsider a decision, resolution, order or rulingof a Division, the Clerk of Court concerned shall,within twenty-four (24) hours from the filingthereof, notify the Presiding Commissioner. The

latter shall within two (2) days thereafter certifythe case to the Commission en banc .

Section 6.Duty of the Clerk of Court of the Commission to set Motion for Hearing . — TheClerk of Court concerned shall calendar themotion for reconsideration for the resolution of the Commission en banc within ten (10) daysfrom the certification thereof." (italics supplied)

Since the petitioner seasonably filed a Motion for Reconsideration of the Order of the Second Division suspending his proclamation anddisqualifying him, the COMELEC en banc was not divested of its

jurisdiction to review the validity of the said Order of the SecondDivision. The said Order of the Second Division was yet unenforceableas it has not attained finality; the timely filing of the motion forreconsideration suspends its execution. It cannot, thus, be used as thebasis for the assumption in office of the respondent as the duly electedRepresentative of the 4th legislative district of Leyte.

Second. It is the House of Representatives Electoral Tribunal (HRET) which has no jurisdiction in the instant case.

Respondent contends that having been proclaimed and having takenoath as representative of the 4th legislative district of Leyte, anyquestion relative to her election and eligibility should be broughtbefore the HRET pursuant to Section 17 of Article VI of the 1987Constitution. 109

We reject respondent's contention.

(a)The issue on the validity of the Resolution of the COMELEC Second Division has not yet been resolved by the COMELEC en banc.

To stress again, at the time of the proclamation of respondent Locsin,the validity of the Resolution of the COMELEC Second Division wasseasonably challenged by the petitioner in his Motion forReconsideration. The issue was still within the exclusive jurisdiction of

the COMELEC en banc to resolve. Hence, the HRET cannot assume jurisdiction over the matter. IEaCDH

In Puzon vs. Cua , 110 even the HRET ruled that the "doctrinal rulingthat once a proclamation has been made and a candidate-elect hasassumed office, it is this Tribunal that has jurisdiction over an electioncontest involving members of the House of Representatives, could not have been immediately applicable due to the issue regarding the validity of the very COMELEC pronouncements themselves." This isbecause the HRET has no jurisdiction to review resolutions or decisionsof the COMELEC, whether issued by a division or en banc .

(b)The instant case does not involve the election and qualification of respondent Locsin.

Respondent Locsin maintains that the proper recourse of the petitioneris to file a petition for quo warranto with the HRET.

A petition for quo warranto may be filed only on the grounds of ineligibility and disloyalty to the Republic of the Philippines. 111 In thecase at bar, neither the eligibility of the respondent Locsin nor herloyalty to the Republic of the Philippines is in question. There is noissue that she was qualified to run, and if she won, to assume office.

















A petition for quo warranto in the HRET is directed against one whohas been duly elected and proclaimed for having obtained the highest number of votes but whose eligibility is in question at the time of such proclamation . It is evident that respondent Locsin cannot be thesubject of quo warranto proceeding in the HRET. She lost the electionsto the petitioner by a wide margin. Her proclamation was a patentnullity. Her premature assumption to office as Representative of the4th legislative district of Leyte was void from the beginning. It is theheight of absurdity for the respondent, as a loser, to tell petitionerCodilla, Sr., the winner, to unseat her via a quo warranto proceeding.

III

Whether it is the ministerial duty of the public respondents to recognize petitioner Codilla, Sr.as the legally elected Representative of the 4th

legislative district of Leyte vice respondent Locsin.

Under Rule 65, Section 3 of the 1997 Rules of Civil Procedure, anyperson may file a verified petition for mandamus "when any tribunal,corporation, board, officer or person unlawfully neglects theperformance of an act which the law specifically enjoins as a dutyresulting from an office, trust, or station, or unlawfully excludesanother from the use and enjoyment of a right or office to which suchother is entitled, and there is no other plain, speedy and adequate

remedy in the ordinary course of law." 112 For a petitionfor mandamus to prosper, it must be shown that the subject of thepetition formandamus is a ministerial act or duty, and not purely discretionary on the part of the board, officer or person, and that thepetitioner has a well-defined, clear and certain right to warrant thegrant thereof.

The distinction between a ministerial and discretionary act is welldelineated. A purely ministerial act or duty is one which an officer ortribunal performs in a given state of facts, in a prescribed manner, inobedience to the mandate of a legal authority, without regard to or theexercise of his own judgment upon the propriety or impropriety of theact done. If the law imposes a duty upon a public officer and gives himthe right to decide how or when the duty shall be performed, suchduty is discretionary and not ministerial. The duty is ministerial only

when the discharge of the same requires neither the exercise of officialdiscretion or judgment." 113

In the case at bar, the administration of oath and the registration of the petitioner in the Roll of Members of the House of Representativesrepresenting the 4th legislative district of Leyte is no longer a matterof discretion on the part of the public respondents. The facts aresettled and beyond dispute: petitioner garnered 71,350 votes asagainst respondent Locsin who only got 53,447 votes in the May 14,2001 elections. The COMELEC Second Division initially ordered theproclamation of respondent Locsin; on Motion for Reconsideration theCOMELEC en banc set aside the order of its Second Division andordered the proclamation of the petitioner. The Decision of theCOMELEC en banc has not been challenged before this Court byrespondent Locsin and said Decision has become final and executory.

In sum, the issue of who is the rightful Representative of the 4thlegislative district of Leyte has been finally settled by the COMELEC en banc , the constitutional body with jurisdiction on the matter. The rule of law demands that its Decision be obeyed by all officials of the land.There is no alternative to the rule of law except the reign of chaos and confusion .

IN VIEW WHEREOF, the Petition for Mandamus is granted. PublicSpeaker of the House of Representatives shall administer the oath of petitioner EUFROCINO M. CODILLA, SR., as the duly-electedRepresentative of the 4th legislative district of Leyte. Public respondentSecretary-General shall likewise register the name of the petitioner inthe Roll of Members of the House of Representatives after he has

taken his oath of office. This decision shall be immediatelyexecutory. EHSADa

SO ORDERED.











EN BANC

[G.R. No. 154512. November 12, 2002.]

VICTORINO DENNIS M. SOCRATES, Mayorof Puerto Princesa City, petitioner , vs . THECOMMISSION ON ELECTIONS, THEPREPARATORY RECALL ASSEMBLY (PRA)of Puerto Princesa City, PRA Interim

Chairman Punong Bgy. MARK DAVIDHAGEDORN, PRA Interim SecretaryPunong Bgy. BENJAMIN JARILLA, PRAChairman and Presiding Officer PunongBgy. EARL S. BUENVIAJE and PRASecretary Punong Bgy. CARLOS ABALLA,JR., respondents .

[G.R. No. 154683. November 12, 2002.]

VICENTE S. SANDOVAL, JR., petitioner , vs.THE COMMISSION ONELECTIONS, respondent .

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

MA. FLORES P. ADOVO, MERCY E. GILOand BIENVENIDO OLLAVE, SR., petitioners ,vs. THE COMMISSION ON ELECTIONS, andEDWARD S. HAGEDORN, respondents .

Stephen V. Jaromay for petitioners.

George Erwin M. Garcia, Dela Cruz Albano & Associates and M.M.Lazaro & Associates for E.S. Hagedorn.

The Solicitor General for public respondent.

Edwin B. Gastanes for petitioner in G.R. No. 154512.

Aristotle Q. Sarmiento for petitioner in G.R. No. 154683.

SYNOPSIS

Out of the 528 members of the then incumbent barangay officials of Puerto Princesa, 312 convened themselves into a Preparatory Recall

Assembly (PRA) to initiate the recall of then Puerto Princesa Mayor

Victorino Dennis Socrates. The PRA passed Resolution No. 01-02,which declared their loss of confidence in Socrates and called for hisrecall. Thereafter, the COMELEC scheduled the campaign period andthe recall election. Mr. Edward M. Hagedorn filed his certificate of candidacy and eventually won the recall election. The issues involvedin these consolidated petitions are: (1) whether the COMELECcommitted grave abuse of discretion in giving due course to the recallresolution and in scheduling the recall election for mayor in PuertoPrincesa; and (2) whether Hagedorn was qualified to run for mayordespite serving three consecutive full terms immediately prior to recallelection.

The Supreme Court ruled that it is bound by the findings of fact of theCOMELEC on matters within its competence and expertise unless thefindings were patently erroneous, which was not present in the case at

bar. Therefore, there was no grave abuse of discretion committed bythe COMELEC in upholding the validity of the Recall Resolution and inscheduling the recall election. The Court lifted the temporaryrestraining order enjoining the proclamation of the winning candidatefor mayor in the recall election in Puerto Princesa. According to theCourt, what the Constitution prohibits is an immediate reelection for afourth term following three consecutive terms. A recall election mid-way in a term following the third consecutive term is a subsequentelection but not an immediate re-election after the third term.

SYLLABUS

1.POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCALOFFICIALS; THREE-TERM LIMIT; CONSTRUED. — The three-term limitrule for elective local officials is found in Section 8, Article X of theConstitution. This three-term limit rule is reiterated in Section 43 (b) ofRA No. 7160, otherwise known as the Local Government Code. Theseconstitutional and statutory provisions have two parts. The first partprovides that an elective local official cannot serve for more than threeconsecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second partstates that voluntary renunciation of office for any length of time doesnot interrupt the continuity of service. The clear intent isthatinvoluntary severance from office for any length of time interruptscontinuity of service and prevents the service before and after the

interruption from being joined together to form a continuous service orconsecutive terms. After three consecutive terms, an elective localofficial cannot seek immediate reelection for a fourth term. Theprohibited election refers to the next regular election for the sameoffice following the end of the third consecutive term. Any subsequentelection , like a recall election, is no longer covered by the prohibitionfor two reasons. First, a subsequent election like a recall election is nolonger an immediate reelection after three consecutive terms. Second,the intervening period constitutes an involuntary interruption in thecontinuity of service. Clearly, what the Constitution prohibits isan immediate reelection for a fourth term following three consecutiveterms. The Constitution, however, does not prohibit a subsequentreelection for a fourth term as long as the reelection is not immediatelyafter the end of the third consecutive term. A recall election mid-wayin the term following the third consecutive term is a subsequentelection but not an immediate reelection after the third term. Neither

does the Constitution prohibit one barred from seeking immediatereelection to run in any other subsequent election involving the sameterm of office. What the Constitution prohibits is a consecutive fourthterm. The debates in the Constitutional Commission evidently showthat the prohibited election referred to by the framers of theConstitution is the immediate reelection after the third term, not anyother subsequent election. DHTECc

2.ID.; ID.; ID.; ID.; INTERRUPTION IN THE CONTINUITY OF SERVICEMUST BE INVOLUNTARY; APPLICATION IN CASE AT BAR. — In Lonzanida v. Comelec , the Court had occasion to explaininterruption of continuity of service in this manner: ". . . The secondsentence of the constitutional provision under scrutiny states,"Voluntary renunciation of office for any length of time shall not beconsidered as an interruption in the continuity of service for the full

term for which he was elected." The clear intent of the framers of theconstitution to bar any attempt to circumvent the three-term limit by avoluntary renunciation of office and at the same time respect thepeople's choice and grant their elected official full service of a term isevident in this provision. Voluntary renunciation of a term does notcancel the renounced term in the computation of the three-termlimit; 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 . . . . ." In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his serviceas mayor. The Constitution does not require the interruption or hiatusto be a full term of three years. The clear intent is thatinterruption "for any length of time," as long as the cause is



involuntary, is sufficient to break an elective local official's continuity of service.

3.ID.; ID.; ID.; ID.; RECALL ELECTION; WINNER THEREOF COULDNOT BE CREDITED WITH FULL TERM FOR THE PURPOSE OFCOUNTING CONSECUTIVENESS OF THE ELECTIVE OFFICIAL'S TERMOF OFFICE. — We held in Adormeo that the period an elective localofficial is out of office interrupts the continuity of his service andprevents his recall term from being stitched together as a seamlesscontinuation of his previous two consecutive terms. In the instantcase, we likewise hold that the nearly 15 months Hagedorn was out of

office interrupted his continuity of service and prevents his recall termfrom being stitched together as a seamless continuation of his previousthree consecutive terms. The only difference between Adormeo and theinstant case is the time of the interruption. In Adormeo , theinterruption occurred after the first two consecutive terms. In theinstant case, the interruption happened after the first threeconsecutive terms. In both cases, the respondents were seekingelection for a fourth term. In Adormeo , the recall term of Talaga beganonly from the date he assumed office after winning the recall election.Talaga's recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, thenhe would have been disqualified to run in the 2001 elections becausehe would already have served three consecutive terms prior to the2001 elections. One who wins and serves a recall term does not servethe full term of his predecessor but only the unexpired term. Theperiod of time prior to the recall term, when another elective official

holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office .

4.ID.; ID.; ID.; ID.; ID.; THE UNEXPIRED TERM IS IN ITSELF ONETERM FOR PURPOSE OF THREE-TERM LIMIT. — The concept of termlimits is in derogation of the sovereign will of the people to elect theleaders of their own choosing. Term limits must be construed strictly togive the fullest possible effect to the sovereign will of the people. Asthis Court aptly stated in Borja, Jr. v. Comelec : "Thus, a considerationof the historical background of Art. X, §8 of the Constitution revealsthat the members of the Constitutional Commission were as muchconcerned with preserving the freedom of choice of the people as they

were with preventing the monopolization of political power . Indeed,they rejected a proposal put forth by Commissioner Edmundo F. Garciathat after serving three consecutive terms or nine years there shouldbe no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term . Monsod warned against 'prescreening candidates[from] whom the people will choose' as a result of the proposed,absolute disqualification, considering that the draft constitutioncontained provisions 'recognizing people's power.'" A necessaryconsequence of the interruption of continuity of service is the start of anew term following the interruption. An official elected in recallelection serves the unexpired term of the recalled official. Thisunexpired term is in itself one term for purposes of counting the three-term limit.

PUNO, J., concurring opinion :

1.POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCALOFFICIALS; THREE-TERM LIMIT; CONDITIONS FOR DISQUALIFICATIONS AS A RESULT THEREOF. — In the recent caseof Adormeo vs. COMELEC, et al ., we ruled that a mayor who assumedoffice via a recall election and served the unexpired portion of themayoralty term is not considered to have served a full term forpurposes of applying the three-term limit. . . . Citingthe Borja andLonzanida rulings , we ruled that Talaga, Jr. was notdisqualified as the two conditions for disqualifications, namely (1) the

elective official concerned was elected for three consecutive terms inthe same post and (2) he has fully served three consecutive terms,were not met. We did not consider Talaga Jr.'s service of theunexpired portion of Tagarao's term as service of a full term forpurposes of the three term limit. We also ruled that he did not servefor three consecutive terms as there was a break in his service whenhe lost to Tagarao in the 1998 elections. EHTISC

2.ID.; ID.; ID.; ID.; PRINCIPAL REASONS FOR THE ENACTMENTTHEREOF, CONSTRUED. —The deliberations of the ConCom and theruling case law of Borja, Lonzanida and Adormeo show that there are

two principal reasons for the three term limit for elective local officials:(1) to prevent political dynasties perpetuated by the undue advantageof the incumbent and (2) to broaden the choice of the people byallowing candidates other than the incumbent to serve the people.Likewise evident in the deliberations is the effort to balance betweentwo interests, namely, the prevention of political dynasties andbroadening the choice of the people on the one hand, and respectingthe freedom of choice and voice of the people, on the other; thus, thecalibration between perpetual disqualification after three consecutiveterms as proposed by Commissioner Garcia, and setting a limit onimmediate reelection and providing for a hibernation period. In allthree cases — Borja, Lonzanida and Adormeo — we ruled that the"term" referred to in the three term limit is service of a full term of three years for elective local officials. This ruling furthers the intent of the ConCom to prevent political dynasties as it is the serviceof consecutive full terms that makes service continuous and which

opens the gates to political dynasties limiting the people's choice of leaders. In the words of Commissioner Ople, ". . . we want to preventfuture situations where, as a result of continuous service and frequent reelections , officials from the President down to the municipal mayortend to develop a proprietary interest in their positions and toaccumulate those powers and perquisites that permit them to stay onindefinitely or to transfer these posts to members of their families in asubsequent election. I think that is taken care of because we put a gapon the continuity or unbroken service of all of these officials ." Thus,ConCom set the limit on consecutive full terms to no more than three.Otherwise stated, it is a fourth consecutive full term that is prohibited .

3.ID.; ID.; ID.; WHAT IS PROHIBITED IS THE SERVICE OF A FOURTHCONSECUTIVE FULL TERM AS CONTEMPLATED BY LAW. — Even atextual analysis of Art. X, Sec. 8 will yield the interpretation that what

is prohibited is the service of a fourth consecutive full term. Petitionersare correct in foisting the view that "term" is a fixed and definiteperiod of time prescribed by law or the Constitution during which thepublic officer may claim to hold office as a r ight. It is a fixed anddefinite period of time to hold office, perform its functions, and enjoyits privileges and emoluments until the expiration of the period. Inascertaining what "term" means for elective local officials, theConstitution itself provides in Art. X, Sec. 8 that it means a fixed,definite, and full period of three, years, viz : "Sec. 8. The term of officeof elective local officials, except barangay officials, which shall bedetermined by law, shall be three years . . . " Although one or morepersons may discharge the duties of the office during this fixed three-year period, the term is not divided into smaller terms by the numberof incumbents who may fill the office. It is one and indivisible, andterm follows term in successive cycles of three years each. If theincumbent or the one elected to the office fills a higher vacant office,

refuses to assume office, fails to qualify, dies, is removed from office,voluntary resigns or is otherwise permanently incapacitated todischarge the functions of his office, thereby creating a permanentvacancy, the term would remain unbroken until the recurring electionfor the office. The provisions on voluntary renunciation under Art. X,Sec. 8 and other articles of the Constitution bolster the interpretationthat for purposes of applying the three term limit, service of a full term of three years is contemplated. Likewise, because "term" isunderstood to be a fixed, definite, and full-period, the Constitution, in

Art. VI, Sec. 9, uses the qualifier "unexpired term" to refer to only aportion of a term. Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase "unexpired term" to mean the remainder of theterm. Thus, when Art. X, Sec. 8 of the Constitution states that ". . . nosuch (local elective) official shall serve for more than three consecutiveterms," it consistently means that it allows service of a maximum



of three consecutive full terms and prohibits service of aminimum fourth consecutive full term .

4.ID.; ID.; ID.; ID.; ASSUMPTION OF OFFICE THROUGH A RECALLELECTION IS NOT IN REALITY A SERVICE OF FULL TERM;RATIONALE. — It is my respectful submission that the Constitution andthe Local Government Code of 1991 proscribe a local official who hasbeen thrice consecutively elected in regular elections and has servedthree full terms in the same position, from running in the regular election succeeding his third consecutive term. It is this situation thatis prohibited because it makes possible service of more than three

consecutive and continuous full terms, i.e., service of a fourth consecutive full term . We cannot overstress that it is thiscontinuousness that the ConCom feared would open the gates to thetwo evils sought to be avoided: the incumbent's use of his undueadvantage to put up a political dynasty and limiting the people's choiceof leaders. It is in this context of regular elections that our obiter dictum in the Lonzanida case , which petitioners harp on, should beunderstood. In that case, we opined that "[a]s finally voted upon, itwas agreed that an elective local government official should be barredfrom running for the same post after three consecutive terms. After ahiatus of at least one term, he may again run for the same office."Indeed, insofar as regular local elections are concerned, which werethe elections involved in that case, there should be a hiatus of at leastone full term of three years. On the other hand, in the case of a localofficial who assumes office through a recall election — whether afterhis first, second, or third consecutive term — there is a break in his

service caused by the election of the incumbent who was recalled.Even in the case of a local official who initially assumes office via recallelection, then wins the two succeeding regular elections and servestwo full terms in the same post, he is not prohibited from seekinganother reelection and serving another full term. This is so because hisservice of the remainder of the incumbent's term via recall election isnot, in reality and in law, a full term continuing on to his threesucceeding full terms. Local officials who assume office via recallelection serve only the unexpired portion of the incumbent's term andthis service is not counted as a full term, despite the Constitutionalmandate that the term of office of elective local officials is three years.Such is the design because Art. XVIII, Secs. 2 and 5 of theConstitution also prescribe synchronization of regular national and localelections beginning on the second Monday of May 1992, which isaccomplished if the local official who assumes office through recallelection serves only the incumbent's unexpired term. As we ruled in

the Adormeo case , service of an unexpired term is considered serviceof a full term only with respect to Representatives (and Senators)because unlike local government officials, Representatives cannot berecalled. It is continuous prolonged stay in office that breeds politicaldynasties. Understandable therefore, insofar as Representatives whocannot be recalled are concerned, service of an unexpired term isstrictly counted as service of a full term because the purpose of theConCom was to limit the right to run and be elected in Congress.

MENDOZA, J., separate opinion :

1.POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCALOFFICIALS; THREE-TERM LIMIT; TERM DURING WHICH A RECALLELECTION WAS HELD SHOULD NOT BE COUNTED IN THECOMPUTATION THEREOF; RATIONALE. — I submit with respect that

the term during which a recall election is held should not be counted incomputing the three-term limit not only when the recall election occurswithin three consecutive terms, as this Court has already held, but alsowhen such election is held during the fourth term immediatelyfollowing three consecutive terms. The reason for this is that theelective local official cannot be said to have served "for more thanthree consecutive terms" because of the break in his service. Whatprevents the fourth term from being counted in determining the three-term limit is the lack of continuity, or the break, in the "service of thefull term." I must stress that the Constitution does not say "service formore than three terms" but "service for more thanthree consecutive terms." acCTIS

2.ID.; ID.; ID.; ID.; PURPOSE THEREOF. — As the discussion of theConstitutional Commission on Art. X. Sec. 8 shows, the three-term limitis aimed at preventing the monopolization or aggrandizement of political power and the perpetration of the incumbent in office. Thisabuse is likely to arise from a prolonged stay in power. It is not likelyto arise if the service is broken, albeit it is for more than three terms.

3.ID.; ID.; ID.; ID.; REQUIREMENTS; CONSTRUED. — Hence, theapplication of the constitutional ban on the holding of elective localoffice for three consecutive terms requires in my view (1) election in aregular election for three consecutive terms and (2) service for the fullterms, each consisting of three years, for which the official is elected.The first requirement is intended to give the electorate the freedom toreelect a candidate for a local elective position as part of theirsovereign right (the right of suffrage) to choose those whom theybelieve can best serve them. This is the reason the framers of ourConstitution rejected Scheme No. 1, which was to ban reelection afterthree successive terms, and adopted Scheme No. 2, which is about "noimmediate reelection after three successive terms." On the other hand,the second requirement is intended to prevent the accumulation of power resulting from too long a stay in office.

DAVIDE, JR., C.J., concurring and dissenting opinion :

1.POLITICAL LAW; LOCAL GOVERNMENT CODE; ELECTIVE LOCALOFFICIALS; THREE-TERM LIMIT; FOURTH TERM PROHIBITIONCOVERS THE PERIOD PERTAINING TO IT; CASE AT BAR. — The ponencia is then correct when it holds that the three-term limitbars an immediate reelection for a fourth term. But I disagree when itrules that in the case of Hagedorn he did not seek an immediatereelection for a fourth term because he was not a candidate forreelection in the May 2001 election. It forgets that what would havebeen his fourth term by virtue of the May 2001 election was for theperiod from 30 June 2001 to 30 June 2004.

2.ID.; ID.; ID.; ID.; INVOLUNTARY SEVERANCE FROM OFFICE; NOT APPLICABLE IN CASE AT BAR. — The flaw in the ruling results from anapparent confusion between term and election, the root cause of which is the attempt to distinguish "voluntary renunciation" of office

from "involuntary severance" from office and the term to which itrelates. . . . The dichotomy made in the ponencia between "voluntaryrenunciation of the office" as used in Section 8 of Article V of theConstitution and Section 43(b) of R.A. No. 7160 and "involuntaryseverance from office" is unnecessary, if not misplaced. From thediscussion in the ponencia , the latter is made to apply to the bannedterm, i.e., the fourth term immediately following three consecutiveterms. Speaking now of Hagedorn, he cannot have suffered"involuntary severance from office" because there was nothing to besevered; he was not a holder of an office either in a de jure or de facto capacity. He knew he was disqualified from seeking a thirdreelection to office. Disqualification is, definitely, not synonymouswith involuntary severance . Even if we concede that involuntary severance is an act which interrupts the continuity of a term forpurposes of applying the three-term principle the rule laid downin Lonzanida vs. COMELEC (311 SCRA 609 [1999]), cited in

the ponencia , page 17, is not applicable in the case of Hagedorn. Theinvoluntary severance referred to in that case was one that took placeduring any of the three terms; hence, the term during which itoccurred should be excluded in the computation. In the case of Hagedorn, no such involuntary severance took place during any of histhree terms brought about by his election in 1992 and reelections in1995 and 1998. ITcCaS

3.ID.; ID.; ID.; ID.; VOLUNTARY RENUNCIATION, NOT CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF SERVICE; PURPOSETHEREOF. — More importantly, the voluntary renunciation referred toin Section 8, Article X of the Constitution and Section 43(b) of R.A. No.7160 its one that takes place at any time during either the first,second, or third term of the three consecutive terms. This is very clear



from the last clause of Section 8, Article X of the Constitution, whichreads: "shall not be considered as an interruption in the continuity of his service for the full term for which he was elected ." The purpose of the provision is to prevent an elective local official from voluntaryresigning from office for the purpose of circumventing the rule on thebelief that the term during which he resigned would be excluded in thecounting of the three-term rule. In short, the provision excluded isintended to impose a penalty on one who flouts the rule or make amockery of it by the simple act of resigning.

4.ID.; ID.; ID.; ID.; THREE-TERM LIMIT CANNOT BE SUBVERTED IN A

RECALL ELECTION; CASE AT BAR. —

A declaration that Hagedorn isqualified to seek reelection in a recall election to remove the Mayorwho was elected for a term for which Hagedorn was constitutionallyand statutorily disqualified to be reelected to or to hold is to subvertthe rationale of the three-consecutive-term rule and make a mockeryof it. Worse, it abets destructive endless partisan politics and unsoundgovernance. An elective local official who is disqualified to seek afourth term because of the three-term limit but obsessed to hold on topower would spend the first year of the fourth term campaigning forthe recall of the incumbent in the second year of said term. This wouldnot be a problem if the disqualified official has a solid following and astrong political machinery. Interestingly, in this case, as stated on page3 of theponencia , the President of the Associationof Barangay Captains of Puerto Princesa City is one Mark David M.Hagedorn and he was designated by the Preparatory Recall Assemblyas Interim Chairman.

D E C I S I O N

CARPIO, J p:

The Case

Before us are consolidated petitions for certiorari 1 seeking thereversal of the resolutions issued by the Commission on Elections("COMELEC" for brevity) in relation to the recall election for mayor of

Puerto Princesa City, Palawan.

The Antecedents

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

On the same date, the PRA passed Resolution No. 01-02 ("Recall

Resolution" for brevity) which declared its loss of confidence inSocrates and called for his recall. The PRA requested the COMELEC toschedule the recall election for mayor within 30 days from receipt of the Recall Resolution.

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

On August 14, 2002, the COMELEC en banc 3 promulgated aresolution dismissing for lack of merit Socrates' petition. The COMELECgave due course to the Recall Resolution and scheduled the recallelection on September 7, 2002.

On August 21, 2002, the COMELEC en banc promulgated ResolutionNo. 5673 prescribing the calendar of activities and periods of certainprohibited acts in connection with the recall election. The COMELECfixed the campaign period from August 27, 2002 to September 5, 2002or a period of 10 days.

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

On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) andMerly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC,docketed as SPA No. 02-492, to disqualify Hagedorn from running inthe recall election and to cancel his certificate of candidacy. On August30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed apetition-in-intervention in SPA No. 02-492 also seeking to disqualifyHagedorn. On the same date, a certain Genaro V. Manaay filedanother petition, docketed as SPA No. 02-539, against Hagedornalleging substantially the same facts and involving the same issues.The petitions were all anchored on the ground that "Hagedorn isdisqualified from running for a fourth consecutive term, having beenelected and having served as mayor of the city for three (3)consecutive full terms immediately prior to the instant recall electionfor the same post." Subsequently, SPA Nos. 02-492 and 02-539 wereconsolidated.

In a resolution promulgated on September 20, 2002, the COMELEC's

First Division 4 dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC declared Hagedorn qualified to run in the recallelection. The COMELEC also reset the recall election from September7, 2002 to September 24, 2002.

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

Hence, the instant consolidated petitions.

G.R. No. 154512

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

Socrates alleges that the COMELEC gravely abused its discretion inupholding the Recall Resolution. Socrates cites the followingcircumstances as legal infirmities attending the convening of the PRAand its issuance of the Recall Resolution: (1) not all members of thePRA were notified of the meeting to adopt the resolution; (2) the proofof service of notice was palpably and legally deficient; (3) themembers of the PRA were themselves seeking a new electoralmandate from their respective constituents; (4) the adoption of theresolution was exercised with grave abuse of authority; and (5) thePRA proceedings were conducted in a manner that violated his and the

public's constitutional right to information.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC ResolutionNo. 5673 dated August 21, 2002 insofar as it fixed the recall electionon September 7, 2002, giving the candidates only a ten-day campaignperiod. He prayed that the COMELEC be enjoined from holding therecall election on September 7, 2002 and that a new date be fixedgiving the candidates at least an additional 15 days tocampaign. AEDcIH

















In a resolution dated September 3, 2002, the Court en banc enjoinedthe COMELEC from implementing Resolution No. 5673 insofar as itfixed the date of the recall election on September 7, 2002. The Courtdirected the COMELEC to give the candidates an additional fifteen 15days from September 7, 2002 within which to campaign.

Accordingly, on September 9, 2002, the COMELEC en banc issuedResolution No. 5708 giving the candidates an additional 15 days fromSeptember 7, 2002 within which to campaign. Thus, the COMELECreset the recall election to September 24, 2002.

G.R. Nos. 155083-84

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

Petitioners argue that the COMELEC gravely abused its discretion inupholding Hagedorn's qualification to run for mayor in the recallelection despite the constitutional and statutory prohibitions against afourth consecutive term for elective local officials.

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

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

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

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

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

The Issues

The issues for resolution of the Court are:

1.In G.R. No. 154512, whether the COMELECcommitted grave abuse of discretionin giving due course to the RecallResolution and scheduling the recallelection for mayor of Puerto Princesa.

2.In G.R. Nos. 155083-84, whether Hagedorn isqualified to run for mayor in the recallelection of Puerto Princesa onSeptember 24, 2002.

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

First Issue : Validity of the Recall Resolution.

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

"On various dates, in the month of June 2002,the proponents for the Recall of incumbent CityMayor Victorino Dennis M. Socrates sent noticesof the convening of the PRA to the membersthereof pursuant to Section 70 of the LocalGovernment Code. Copies of the said notice are

in Volumes I and II entitled Notices to PRA.Likewise, Proof of Service for each of the saidnotices were attached to the Petition andmarked as Annex "G" of Volumes II and III of the Petition.

Notices were likewise posted in conspicuousplaces particularly at the Barangay Hall. Photosestablishing the same were attached to thePetition and marked as Annex "H". Theproponents likewise utilized the broadcast massmedia in the dissemination of the convening of the PRA.

Notices of the convening of the Puerto Princesa

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

xxx xxx xxx

The City Election Officer of Puerto Princesa Cityin her Certification dated 10 July 2002 certifiedthat upon a 'thorough and careful verification of the signatures appearing in PRA Resolution 01-02, . . . the majority of all members of the PRAconcerned approved said resolution.' Shelikewise certified 'that not a single

member/signatory of the PRA complained orobjected as to the veracity and authenticity of their signatures.'

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated10 July 2002, stated, 'upon proper review, alldocuments submitted are found in order.'

The Acting Director IV, Region IV, in his studydated 30 July 2002 submitted the followingrecommendations:

'This Office, after evaluating the

documents filed, finds the instantPetition sufficient in form andsubstance. That the PRA was validlyconstituted and that the majority of all members thereof approvedResolution No. 01-02 calling for therecall of Mayor Victorino Dennis M.Socrates.'

xxx xxx xxx

This Court is bound by the findings of fact of the COMELEC on matterswithin the competence and expertise of the COMELEC, unless thefindings are patently erroneous. In Malonzo v. COMELEC , 5 which also






dealt with alleged defective service of notice to PRA members, weruled that —

"Needless to state, the issue of propriety of thenotices sent to the PRA members is factual innature, and the determination of the same istherefore a function of the COMELEC. In theabsence of patent error, or seriousinconsistencies in the findings, the Court shouldnot disturb the same. The factual findings of theCOMELEC, based on its own assessments and

duly supported by gathered evidence, areconclusive upon the court, more so, in theabsence of a substantiated attack on thevalidity of the same."

In the instant case, we do not find any valid reason to hold thatthe COMELEC's findings of fact are patently erroneous.

Socrates also claims that the PRA members had no authority to adoptthe Recall Resolution on July 2, 2002 because a majority of PRAmembers were seeking a new electoral mandate inthe barangay elections scheduled on July 15, 2002. This argumentdeserves scant consideration considering that when the PRA membersadopted the Recall Resolution their terms of office had not yet expired.They were all de jure sangguniang barangay members with no legal

disqualification to participate in the recall assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted thePRA proceedings violated his constitutional right to information onmatters of public concern. Socrates, however, admits receiving noticeof the PRA meeting and of even sending his representative andcounsel who were present during the entire PRA proceedings.Proponents of the recall election submitted to the COMELEC the RecallResolution, minutes of the PRA proceedings, the journal of the PRAassembly, attendance sheets, notices sent to PRA members, andauthenticated master list of barangay officials in Puerto Princesa.Socrates had the right to examine and copy all these public records inthe official custody of the COMELEC. Socrates, however, does notclaim that the COMELEC denied him this right. There is no legal basis

in Socrates' claim that respondents violated his constitutional right toinformation on matters of public concern.

Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and inscheduling the recall election on September 24, 2002.

Second Issue: Hagedorn's qualification to run for mayor in the recall election of September 24, 2002.

The three-term limit rule for elective local officials is found in Section8, Article X of the Constitution, which states: EHaCTA

"Section 8.The term of office of elective local

officials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuityof his service for the full term for which he waselected."

This three-term limit rule is reiterated in Section 43 (b) of RA No.7160, otherwise known as the Local Government Code, whichprovides:

"Section 43.Term of Office . — (a) . . .

(b)No local elective official shall serve for morethan three (3) consecutive terms in the sameposition. Voluntary renunciation of the office forany length of time shall not be considered as aninterruption in the continuity of service for thefull term for which the elective official waselected."

These constitutional and statutory provisions have two parts. The firstpart provides that an elective local official cannot serve for more thanthree consecutive terms. The clear intent is that only consecutive

terms count in determining the three-term limit rule. The second partstates that voluntary renunciation of office for any length of time doesnot interrupt the continuity of service. The clear intent isthat involuntary severance from office for any length of time interruptscontinuity of service and prevents the service before and after theinterruption from being joined together to form a continuous service orconsecutive terms.

After three consecutive terms, an elective local official cannotseek immediate reelection for a fourth term. The prohibited electionrefers to the next regular election for the same office following the endof the third consecutive term. Any subsequent election , like a recallelection, is no longer covered by the prohibition for two reasons. First,a subsequent election like a recall election is no longer an immediatereelection after three consecutive terms. Second, the interveningperiod constitutes an involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would beno further election after three terms, or whether there would be "no immediate reelection " after three terms. This is clear from thefollowing deliberations of the Constitutional Commission:

"THE PRESIDENT:

The Acting Floor Leader is recognized.

MR. ROMULO: 6

We are now ready to discuss the two issues, asindicated on the blackboard, andthese are Alternative No. 1 wherethere is no further election after atotal of three terms and AlternativeNo. 2 where there is no immediate reelection after three successive terms ." 7

The Journal of the Constitutional Commission reports the followingmanifestation on the term of elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulomanifested that the Body would proceed to theconsideration of two issues on the term of Representatives and local officials , namely: 1)

Alternative No. 1 (no further reelection after atotal of three terms), and 2) Alternative No. 2(no immediate reelection after three successive terms )." 8

The framers of the Constitution used the same "no immediatereelection" question in voting for the term limits of Senators 9 and Representatives of the House. 10



















Clearly, what the Constitution prohibits is an immediate reelection for afourth term following three consecutive terms. The Constitution,however, does not prohibit a subsequent reelection for a fourth termas long as the reelection is not immediately after the end of the thirdconsecutive term. A recall election mid-way in the term following thethird consecutive term is a subsequent election but not an immediatereelection after the third term.

Neither does the Constitution prohibit one barred from seekingimmediate reelection to run in any other subsequent election involvingthe same term of office. What the Constitution prohibits is

a consecutive fourth term. The debates in the ConstitutionalCommission evidently show that the prohibited election referred to bythe framers of the Constitution is the immediate reelection after thethird term, not any other subsequent election.

If the prohibition on elective local officials is applied to any electionwithin the three-year full term following the three-term limit, thenSenators should also be prohibited from running in any election withinthe six-year full term following their two-term limit. The constitutionalprovision on the term limit of Senators is worded exactly like the termlimit of elective local officials, thus:

"No Senator shall serve for more than twoconsecutive terms. Voluntary renunciation of the office for any length of time shall not be

considered as an interruption in the continuityof his service for the full term for which he waselected." 11

In the debates on the term limit of Senators, the following exchange inthe Constitutional Convention is instructive:

"GASCON: 12

I would like to ask a question with regard to theissue after the second term. We willallow the Senator to rest for a periodof time before he can run again?

DAVIDE: 13

That is correct.

GASCON:

And the question that we left behind before — if the Gentleman will remember — was:How long will that period of rest be?Will it be one election which is threeyears or one term which is six years?

DAVIDE:

If the Gentleman will remember, CommissionerRodrigo expressed the view thatduring the election following theexpiration of the first 12 years,whether such election will be on thethird or on the sixth year thereafter,this particular member of the Senatecan run. So, it is not really a period of hibernation for six years . That wasthe Committee's stand.

GASCON:

So, effectively, the period of rest would be three years at the least ." 14 (Emphasis supplied)

The framers of the Constitution thus clarified that a Senator canrun after only three years 15 following his completion of twoterms. The framers expressly acknowledged that the prohibitedelection refers only to the immediate reelection , and not to anysubsequent election, during the six-year period following the twoterm limit. The framers of the Constitution did not intend "theperiod of rest" of an elective official who has reached his term

limit to be the full extent of the succeeding term.

In the case of Hagedorn, his candidacy in the recall election onSeptember 24, 2002 is not an immediate reelection after his thirdconsecutive term which ended on June 30, 2001. The immediatereelection that the Constitution barred Hagedorn from seeking referredto the regular elections in 2001. Hagedorn did not seek reelection inthe 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995and 1998 elections and served in full his three consecutive terms asmayor of Puerto Princesa. Under the Constitution and the LocalGovernment Code, Hagedorn could no longer run for mayor in the2001 elections. The Constitution and the Local Government Codedisqualified Hagedorn, who had reached the maximum three-term

limit, from running for a fourth consecutive term as mayor. Thus,Hagedorn did not run for mayor in the 2001 elections. 16 Socrates ranand won as mayor of Puerto Princesa in the 2001 elections. AfterHagedorn ceased to be mayor on June 30, 2001, he became a privatecitizen until the recall election of September 24, 2002 when he won by3,018 votes over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002,the mayor of Puerto Princesa was Socrates. During the same period,Hagedorn was simply a private citizen. This period is clearly aninterruption in the continuity of Hagedorn's service as mayor, notbecause of his voluntary renunciation, but because of a legalprohibition. Hagedorn's three consecutive terms ended on June 30,2001. Hagedorn's new recall term from September 24, 2002 to June30, 2004 is not a seamless continuation of his previous three

consecutive terms as mayor. One cannot stitch together Hagedorn'sprevious three-terms with his new recall term to make the recall terma fourth consecutive term because factually it is not. An involuntaryinterruption occurred from June 30, 2001 to September 24, 2002which broke the continuity or consecutive character of Hagedorn'sservice as mayor.

In Lonzanida v. Comelec , 17 the Court had occasion to explaininterruption of continuity of service in this manner:

". . . The second sentence of the constitutionalprovision under scrutiny states, "Voluntaryrenunciation of office for any length of time shall not be considered as an interruptionin the continuity of service for the full term for

which he was elected." The clear intent of theframers of the constitution to bar any attemptto circumvent the three-term limit by avoluntary renunciation of office and at the sametime respect the people's choice and grant theirelected official full service of a term is evident inthis provision. Voluntary renunciation of a termdoes not cancel the renounced term in thecomputation 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 . . . " (Emphasis supplied)




















In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted aninterruption in the continuity of his service as mayor. TheConstitution does not require the interruption or hiatus to be a fullterm of three years. The clear intent is that interruption "for any length of time ," as long as the cause is involuntary, is sufficient tobreak an elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga , 18 aunanimous Court reiterated the rule that an interruption consisting of aportion of a term of office breaks the continuity of service of an

elective local official. In Adormeo , Ramon Y. Talaga, Jr. had servedtwo consecutive full terms as mayor of Lucena City. In his third bid forelection as mayor in 1998, Talaga lost to Bernard G. Tagarao.However, in the recall election of May 12, 2000, Talaga won andserved the unexpired term of Tagarao from May 12, 2000 to June 30,2001. When Talaga ran again for mayor in the 2001 elections,Raymundo Adormeo, the other candidate for mayor, petitioned forTalaga's disqualification on the ground that Talaga had already servedthree consecutive terms as mayor. TAaEIc

Thus, the issue in Adormeo was whether Talaga's recall term was acontinuation of his previous two terms so that he was deemed to havealready served three consecutive terms as mayor. The Court ruled thatTalaga was qualified to run in the 2001 elections, stating that theperiod from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talaga's recallterm as mayor was not consecutive to his previous two terms becauseof this interruption, there having been a break of almost two yearsduring which time Tagarao was the mayor.

We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his recallterm from being stitched together as a seamless continuation of hisprevious two consecutive terms. In the instant case, we likewise holdthat the nearly 15 months Hagedorn was out of office interrupted hiscontinuity of service and prevents his recall term from being stitchedtogether as a seamless continuation of his previous three consecutiveterms. The only difference between Adormeo and the instant case isthe time of the interruption. In Adormeo , the interruption occurredafter the first two consecutive terms. In the instant case, theinterruption happened after the first three consecutive terms. In both

cases, the respondents were seeking election for a fourth term.

In Adormeo , the recall term of Talaga began only from the date heassumed office after winning the recall election. Talaga's recall termdid not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then he would have beendisqualified to run in the 2001 elections because he would alreadyhave served three consecutive terms prior to the 2001 elections. Onewho wins and serves a recall term does not serve the full term of hispredecessor but only the unexpired term. The period of time prior tothe recall term, when another elective official holds office, constitutesan interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or

credited with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office .

In the same manner, Hagedorn's recall term does not retroact toinclude the tenure in office of Socrates. Hagedorn can only bedisqualified to run in the September 24, 2002 recall election if therecall term is made to retroact to June 30, 2001, for only then can therecall term constitute a fourth consecutive term. But to considerHagedorn's recall term as a full term of three years, retroacting toJune 30, 2001, despite the fact that he won his recall term only lastSeptember 24, 2002, is to ignore reality. This Court cannot declare asconsecutive or successive terms of office which historically andfactually are not.

Worse, to make Hagedorn's recall term retroact to June 30, 2001creates a legal fiction that unduly curtails the freedom of the people tochoose their leaders through popular elections. The concept of termlimits is in derogation of the sovereign will of the people to elect theleaders of their own choosing. Term limits must be construed strictly togive the fullest possible effect to the sovereign will of the people. Asthis Court aptly stated in Borja, Jr. v. Comelec :

"Thus, a consideration of the historicalbackground of Art. X, §8 of the Constitutionreveals that the members of the Constitutional

Commission were as much concernedwith preserving the freedom of choice of the people as they were with preventing the monopolization of political power . Indeed, theyrejected a proposal put forth by CommissionerEdmundo F. Garcia that after serving threeconsecutive terms or nine years there should beno further reelection for local and legislativeofficials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term . Monsod warned against 'prescreeningcandidates [from] whom the people will choose'as a result of the proposed absolute

disqualification, considering that the draftconstitution contained provisions 'recognizingpeople's power.''' 19 (Emphasis supplied)

A necessary consequence of the interruption of continuity of service isthe start of a new term following the interruption. An official elected inrecall election serves the unexpired term of the recalled official. Thisunexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in theConstitutional Commission:

"SUAREZ: 20

For example, a special election is called for a

Senator, and the Senator newlyelected would have to serve theunexpired portion of the term. Wouldthat mean that serving the unexpiredportion of the term is alreadyconsidered one term? So, half a term,which is actually the correctstatement, plus one term woulddisqualify the Senator concerned fromrunning? Is that the meaning of thisprovision on disqualification, MadamPresident?

DAVIDE:

Yes, because we speak of 'term,' and if there isa special election, he will serve onlyfor the unexpired portion of thatparticular term plus one more termfor the Senator and two more termsfor the Members of the LowerHouse." 21

Although the discussion referred to special elections for Senators andRepresentatives of the House, the same principle applies to a recallelection of local officials. Otherwise, an elective local official whoserves a recall term can serve for more than nine consecutive yearscomprising of the recall term plus the regular three full terms. A localofficial who serves a recall term should know that the recall term is in














itself one term although less than three years. This is the inherentlimitation he takes by running and winning in the recall election.

In summary, we hold that Hagedorn is qualified to run in theSeptember 24, 2002 recall election for mayor of Puerto Princesabecause:

1.Hagedorn is not running for immediatereelection following his threeconsecutive terms as mayor whichended on June 30, 2001; HCITDc

2.Hagedorn's continuity of service as mayor wasinvoluntarily interrupted from June30, 2001 to September 24, 2002during which time he was a privatecitizen;

3.Hagedorn's recall term from September 24,2002 to June 30, 2004 cannot bemade to retroact to June 30, 2001 tomake a fourth consecutive termbecause factually the recall term isnot a fourth consecutive term; and

4.Term limits should be construed strictly togive the fullest possible effect to theright of the electorate to choose theirleaders.

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

SO ORDERED.



EN BANC

[G.R. No. 184836. December 23, 2009.]

SIMON B. ALDOVINO, JR., DANILO B.FALLER AND FERDINAND N.TALABONG, petitioners , vs . COMMISSIONON ELECTIONS AND WILFREDO F. ASILO, respondents .

DECISION

BRION, J p:

Is the preventive suspension of an elected public official aninterruption of his term of office for purposes of the three-term limitrule under Section 8, Article X of the Constitution and Section 43 (b) of Republic Act No. 7160 (RA 7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled thatpreventive suspension is an effective interruption because it rendersthe suspended public official unable to provide complete service for thefull term; thus, such term should not be counted for the purpose of thethree-term limit rule.

The present petition 1 seeks to annul and set aside this COMELECruling for having been issued with grave abuse of discretion amountingto lack or excess of jurisdiction.

THE ANTECEDENTS

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena City for three consecutive terms: for the 1998-2001, 2001-

2004, and 2004-2007 terms, respectively. In September 2005 orduring his 2004-2007 term of office, the Sandiganbayan preventivelysuspended him for 90 days in relation with a criminal case he thenfaced. This Court, however, subsequently lifted the Sandiganbayan's suspension order; hence, he resumed performing the functions of his office and finished his term.

In the 2007 election, Asilo filed his certificate of candidacy for thesame position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller,and Ferdinand N. Talabong (the petitioners) sought to deny duecourse to Asilo's certificate of candidacy or to cancel it on the groundthat he had been elected and had served for three terms; hiscandidacy for a fourth term therefore violated the three-term limit ruleunder Section 8, Article X of the Constitution and Section 43 (b) of RA7160. EAHDac

The COMELEC's Second Division ruled against the petitioners and in Asilo's favour in its Resolution of November 28, 2007. It reasoned outthat the three-term limit rule did not apply, as Asilo failed to rendercomplete service for the 2004-2007 term because of the suspensionthe Sandiganbayan had ordered.

The COMELEC en banc refused to reconsider the Second Division'sruling in its October 7, 2008 Resolution; hence, the PRESENTPETITION raising the following ISSUES:

1.Whether preventive suspension of anelected local official is an

interruption of the three-termlimit rule; and

2.Whether preventive suspension isconsidered involuntaryrenunciation as contemplated inSection 43 (b) of RA 7160

Thus presented, the case raises the direct issue of whether Asilo'spreventive suspension constituted an interruption that allowedhim to run for a 4th term.

THE COURT'S RULING

We find the petition meritorious.

General Considerations

The present case is not the first before this Court on the three-termlimit provision of the Constitution, but is the first on the effect of preventive suspension on the continuity of an elective official's term.To be sure, preventive suspension, as an interruption in the term of anelective public official, has been mentioned as an example in Borja v.Commission on Elections. 2 Doctrinally, however, Borja is not a controlling ruling; it did not deal with preventive suspension, but with the application of the three-term rule on the term that an elective official acquired by succession.

a.The Three-term Limit Rule:The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section 8.The term of office of elective localofficials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuity

of his service for the full term for which he waselected.

Section 43 (b) of RA 7160 practically repeats the constitutionalprovision, and any difference in wording does not assume anysignificance in this case.

As worded, the constitutional provision fixes the term of a localelective office and limits an elective official's stay in office to no more than three consecutive terms. This is the first branch of the ruleembodied in Section 8, Article X.

Significantly, this provision refers to a "term" as a period of time —three years — during which an official has title to office and canserve. Appari v. Court of Appeals, 3 a Resolution promulgated onNovember 28, 2007, succinctly discusses what a "term" connotes, asfollows: TcCEDS

The word "term" in a legal sense means afixed and definite period of time whichthe law describes that an officer may holdan office. According to Mechem, the term of office is the period during which an office maybe held. Upon expiration of the officer's term,unless he is authorized by law to holdover, hisrights, duties and authority as a public officermust ipso facto cease. In the law of publicofficers, the most and natural frequent methodby which a public officer ceases to be such is by















the expiration of the terms for which he waselected or appointed. [Emphasis supplied].

A later case, Gaminde v. Commission on Audit, 4 reiterated that"[T]he term means the time during which the officer may claim tohold office as of right, and fixes the interval after which theseveral incumbents shall succeed one another."

The "limitation" under this first branch of the provision is expressed inthe negative — "no such official shall serve for more than threeconsecutive terms." This formulation — no more than three consecutive terms

—is a clear command suggesting the existence of

an inflexible rule. While it gives no exact indication of what to "serve. .. three consecutive terms" exactly connotes, the meaning is clear — reference is to the term, not to the service that a public official mayrender. In other words, the limitation refers to the term.

The second branch relates to the provision's express initiative toprevent any circumvention of the limitation through voluntaryseverance of ties with the public office; it expressly statesthat voluntary renunciation of office "shall not be considered as aninterruption in the continuity of his service for the full term for whichhe was elected." This declaration complements the term limitation mandated by the first branch.

A notable feature of the second branch is that it doesnot textually state that voluntary renunciation is the only actualinterruption of service that does not affect "continuity of service for afull term" for purposes of the three-term limit rule. It is a puredeclaratory statement of what does not serve as an interruption of service for a full term, but the phrase "voluntary renunciation," byitself, is not without significance in determining constitutional intent.

The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon, decline, or resign. 5 It is an act that emanates from its author, as contrasted toan act that operates from the outside. Read with the definition of a"term" in mind, renunciation, as mentioned under the second branchof the constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office. The descriptiveword "voluntary" linked together with "renunciation" signifies an act of

surrender based on the surenderee's own freely exercised will; in otherwords, a loss of title to office by conscious choice. In the context of the three-term limit rule, such loss of title is not considered aninterruption because it is presumed to be purposely sought to avoidthe application of the term limitation.

The following exchanges in the deliberations of the ConstitutionalCommission on the term "voluntary renunciation" shed further light onthe extent of the term "voluntary renunciation": DHAcET

MR. MAAMBONG.

Could I address the clarificatory question to theCommittee? This term "voluntary

renunciation" does not appear inSection 3 [of Article VI]; it alsoappears in Section 6 [of Article VI].

MR DAVIDE.

Yes.

MR. MAAMBONG.

It is also a recurring phrase all over theConstitution. Could the Committeeplease enlighten us exactly what

"voluntary renunciation" mean? Isthis akin to abandonment?

MR. DAVIDE.

Abandonment is voluntary. In other words, hecannot circumvent the restriction bymerely resigning at any given time onthe second term.

MR. MAAMBONG.

Is the Committee saying that the term"voluntary renunciation" is moregeneral than abandonment andresignation?

MR. DAVIDE.

It is more general, more embracing. 6

From this exchange and Commissioner Davide's expansiveinterpretation of the term "voluntary renunciation," the framers'intent apparently was to close all gaps that an elective official

may seize to defeat the three-term limit rule, in the way thatvoluntary renunciation has been rendered unavailable as a modeof defeating the three-term limit rule. Harking back to the text of the constitutional provision, we note further that CommissionerDavide's view is consistent with the negative formulation of thefirst branch of the provision and the inflexible interpretation thatit suggests.

This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us theclear intent to make term limitation a high priority constitutionalobjective whose terms must be strictly construed and which cannot bedefeated by, nor sacrificed for, values of less than equal constitutionalworth. We view preventive suspension vis-à-vis term limitation withthis firm mindset.

b.Relevant Jurisprudence on theThree-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us alead into the concepts within the provision's contemplation, particularlyon the "interruption in the continuity of service for the full term" that itspeaks of.

Lonzanida v. Commission on Elections 7 presented the question of whether the disqualification on the basis of the three-term limit appliesif the election of the public official (to be strictly accurate, theproclamation as winner of the public official) for his supposedly thirdterm had been declared invalid in a final and executory judgment. Weruled that the two requisites for the application of the disqualification

(viz., 1. that the official concerned has been elected for threeconsecutive terms in the same local government post; and 2. that hehas fully served three consecutive terms) were not present. In soruling, we said: DHIaTS

The clear intent of the framers of theconstitution to bar any attempt to circumventthe three-term limit by a voluntary renunciationof office and at the same time respect thepeople's choice and grant their elected officialfull service of a term is evident in this provision.

Voluntary renunciation of a term does notcancel the renounced term in the computationof the three termlimit; 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 didnot fully serve the 1995-1998 mayoral term.[Emphasis supplied]

Our intended meaning under this ruling is clear: it is severancefrom office, or to be exact, loss of title, that renders the three-term limit rule inapplicable.

Ong v. Alegre 8 and Rivera v. COMELEC, 9 like Lonzanida, alsoinvolved the issue of whether there had been a completed term forpurposes of the three-term limit disqualification. These cases,however, presented an interesting twist, as their final judgments in theelectoral contest came after the term of the contested office hadexpired so that the elective officials in these cases were nevereffectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus

was never validly elected), the Court concluded that there wasnevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the finaldecision that the third-termer lost the election was without practicaland legal use and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed andcontinuously exercised the functions of the office from the start to theend of the term. The Court noted in Ong the absurdity and thedeleterious effect of a contrary view — that the official (referring to thewinner in the election protest) would, under the three-term rule, beconsidered to have served a term by virtue of a veritably meaninglesselectoral protest ruling, when another actually served the termpursuant to a proclamation made in due course after an election. Thisfactual variation led the Court to rule differently from Lonzanida .

In the same vein, the Court in Rivera rejected the theory that theofficial who finally lost the election contest was merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved thatSection 8, Article X of the Constitution is violated and its purposedefeated when an official fully served in the same position for threeconsecutive terms. Whether as "caretaker" or "de facto" officer, heexercised the powers and enjoyed the perquisites of the office thatenabled him "to stay on indefinitely." ITEcAD

Ong and Rivera are important rulings for purposes of the three-termlimitation because of what they directly imply. Although the electionrequisite was not actually present, the Court still gave full effect to thethree-term limitation because of the constitutional intent to strictlylimit elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively,these cases teach us to strictly interpret the term limitation rule in

favor of limitation rather than its exception.

Adormeo v. Commission on Elections 10 dealt with the effect of recallon the three-term limit disqualification. The case presented thequestion of whether the disqualification applies if the official lost in theregular election for the supposed third term, but was elected in a recallelection covering that term. The Court upheld the COMELEC's rulingthat the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the election for the third term.

Socrates v. Commission on Elections 11 also tackled recall vis-à-vis thethree-term limit disqualification. Edward Hagedorn served three full

terms as mayor. As he was disqualified to run for a fourth term, he didnot participate in the election that immediately followed his third term.In this election, the petitioner Victorino Dennis M. Socrates was electedmayor. Less than 1 1/2 years after Mayor Socrates assumed thefunctions of the office, recall proceedings were initiated against him,leading to the call for a recall election. Hagedorn filed his certificate of candidacy for mayor in the recall election, but Socrates sought hisdisqualification on the ground that he (Hagedorn) had fully servedthree terms prior to the recall election and was therefore disqualifiedto run because of the three-term limit rule. We decided in Hagedorn'sfavor, ruling that:

After three consecutive terms, an elective localofficial cannot seek immediate reelection fora fourth term. The prohibited election refers tothe next regular election for the same officefollowing the end of the third consecutive term.

Any subsequent election , like a recallelection, is no longer covered by the prohibitionfor two reasons. First, a subsequent electionlike a recall election is no longer animmediate reelection after threeconsecutive terms. Second, theintervening period constitutes aninvoluntary interruption in the continuityof service.

When the framers of the Constitution debatedon the term limit of elective local officials, thequestion asked was whether there would be nofurther election after three terms, or whetherthere would be "no immediate reelection" after three terms.

xxx xxx xxx

Clearly, what the Constitution prohibits isan immediate reelection for a fourth termfollowing three consecutive terms. TheConstitution, however, does not prohibit asubsequent reelection for a fourth term as long

as the reelection is not immediately after theend of the third consecutive term. A recallelection mid-way in the term following the thirdconsecutive term is a subsequent election butnot an immediate reelection after the thirdterm. DcaCSE

Neither does the Constitution prohibit onebarred from seeking immediate reelection torun in any other subsequent election involvingthe same term of office. What the Constitutionprohibits is a consecutive fourth term. 12

Latasa v. Commission on Elections 13 presented the novel question of whether a municipal mayor who had fully served for three consecutive

terms could run as city mayor in light of the intervening conversion of the municipality into a city. During the third term, the municipality wasconverted into a city; the cityhood charter provided that the electiveofficials of the municipality shall, in a holdover capacity, continue toexercise their powers and functions until elections were held for thenew city officials. The Court ruled that the conversion of themunicipality into a city did not convert the office of the municipalmayor into a local government post different from the office of the citymayor — the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of voters whoelected the municipal mayor for 3 consecutive terms; and they werethe same inhabitants over whom the municipal mayor held power andauthority as their chief executive for nine years. The Court said:



























This Court reiterates that the framers of the Constitution specifically included anexception to the people's freedom tochoose those who will govern them inorder to avoid the evil of a single personaccumulating excessive power over aparticular territorial jurisdiction as aresult of a prolonged stay in the sameoffice. To allow petitioner Latasa to vie for theposition of city mayor after having served forthree consecutive terms as a municipal mayorwould obviously defeat the very intent of theframers when they wrote this exception. Shouldhe be allowed another three consecutive termsas mayor of the City of Digos, petitioner wouldthen be possibly holding office as chief executive over the same territorial jurisdictionand inhabitants for a total of eighteen consecutive years. This is the veryscenario sought to be avoided by theConstitution, if not abhorred by it. 14 aSEDHC

Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if arest period or break in the service between terms or tenure in a givenelective post intervened. In Lonzanida, the petitioner was a privatecitizen with no title to any elective office for a few months before the

next mayoral elections. Similarly, in Adormeo and Socrates, the privaterespondents lived as private citizens for two years and fifteen months,respectively. Thus, these cases establish that the law contemplates a complete break from office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v.Commission on Elections, 15 where the highest-ranking municipalcouncilor succeeded to the position of vice-mayor by operation of law.The question posed when he subsequently ran for councilor waswhether his assumption as vice-mayor was an interruption of his termas councilor that would place him outside the operation of the three-term limit rule. We ruled that an interruption had intervened so that hecould again run as councilor. This result seemingly deviates from the

results in the cases heretofore discussed since the elective officialcontinued to hold public office and did not become a private citizenduring the interim. The common thread that identifies Montebon withthe rest, however, is that the elective official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be councilor — an interruption thateffectively placed him outside the ambit of the three-term limit rule.

c.Conclusion Based on Lawand Jurisprudence

From all the above, we conclude that the "interruption" of a termexempting an elective official from the three-term limit rule is one thatinvolves no less than the involuntary loss of title to office. The electiveofficial must have involuntarily left his office for a length of time,

however short, for an effective interruption to occur. This has to bethe case if the thrust of Section 8, Article X and its strict intent are tobe faithfully served, i.e., to limit an elective official's continuous stay inoffice to no more than three consecutive terms, using "voluntaryrenunciation" as an example and standard of what does not constitutean interruption.

Thus, based on this standard, loss of office by operation of law, beinginvoluntary, is an effective interruption of service within a term, as weheld inMontebon. On the other hand, temporary inability ordisqualification to exercise the functions of an elective post, even if involuntary, should not be considered an effective interruption of aterm because it does not involve the loss of title to office or at least aneffective break from holding office; the office holder, while retaining

title, is simply barred from exercising the functions of his office for areason provided by law.

An interruption occurs when the term is broken because the officeholder lost the right to hold on to his office, and cannot be equatedwith the failure to render service. The latter occurs during an officeholder's term when he retains title to the office but cannot exercise hisfunctions for reasons established by law. Of course, the term "failureto serve" cannot be used once the right to office is lost; without theright to hold office or to serve, then no service can be rendered so thanone is really lost. cHDEaC

To put it differently although at the risk of repetition, Section 8, ArticleX — both by structure and substance — fixes an elective official's termof office and limits his stay in office to three consecutive terms as aninflexible rule that is stressed, no less, by citing voluntary renunciationas an example of a circumvention. The provision should be read in thecontext of interruption of term, not in the context of interruptingthe full continuity of the exercise of the powers of the elective positionThe "voluntary renunciation" it speaks of refers only to the electiveofficial's voluntary relinquishment of office and loss of title to thisoffice. It does not speak of the temporary "cessation of the exercise ofpower or authority" that may occur for various reasons, withpreventive suspension being only one of them. To quote Latasa v.Comelec: 16

Indeed, [T]he 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 theterritorial jurisdiction of a particular localgovernment unit. [Emphasis supplied].

Preventive Suspension andthe Three-Term Limit Rule

a.Nature of Preventive Suspension

Preventive suspension — whether under the Local GovernmentCode, 17 the Anti-Graft and Corrupt Practices Act, 18 or theOmbudsman Act 19 — is aninterim remedial measure to address the

situation of an official who have been charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for eventual guilt or liability.

Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and given the gravity of theoffense, there is a possibility that the continuance in office of therespondent could influence the witnesses or pose a threat to the safetyand integrity of the records and other evidence." Under the Anti-Graft and Corrupt Practices Act, it is imposed after a valid information (thatrequires a finding of probable cause) has been filed in court, whileunder the Ombudsman Act, it is imposed when, in the judgment of theOmbudsman, the evidence of guilt is strong; and (a) the chargeinvolves dishonesty, oppression or grave misconduct or neglect in theperformance of duty; or (b) the charges would warrant removal fromthe service; or (c) the respondent's continued stay in office may

prejudice the case filed against him.

Notably in all cases of preventive suspension, the suspended official isbarred from performing the functions of his office and does not receivesalary in the meanwhile, but does not vacate and lose title to hisoffice; loss of office is a consequence that only results upon aneventual finding of guilt or liability.

Preventive suspension is a remedial measure that operates underclosely-controlled conditions and gives a premium to the protection of the service rather than to the interests of the individual office holder. Even then, protection of the service goes only as far asa temporary prohibition on the exercise of the functions of the official'soffice; the official is reinstated to the exercise of his position as soon



























as the preventive suspension is lifted. Thus, while a temporaryincapacity in the exercise of power results, no position is vacated whena public official is preventively suspended. This was what exactlyhappened to Asilo. HTCSDE

That the imposition of preventive suspension can be abused is a realitythat is true in the exercise of all powers and prerogative under theConstitution and the laws. The imposition of preventive suspension,however, is not an unlimited power; there are limitations built into thelaws 20 themselves that the courts can enforce when these limitationsare transgressed, particularly when grave abuse of discretion is

present. In light of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension fromthe extreme situation — that it can totally deprive an elective officeholder of the prerogative to serve and is thus an effective interruptionof an election official's term.

Term limitation and preventive suspension are two vastly differentaspects of an elective officials' service in office and they do notoverlap. As already mentioned above, preventive suspension involvesprotection of the service and of the people being served, and preventsthe office holder from temporarily exercising the power of his office.Term limitation, on the other hand, is triggered after an elective officialhas served his three terms in office without any break. Its companionconcept — interruption of a term — on the other hand, requires loss of title to office. If preventive suspension and term limitation orinterruption have any commonality at all, this common point may bewith respect to the discontinuity of service that may occur in both. Buteven on this point, they merely run parallel to each other and neverintersect; preventive suspension, by its nature, is a temporary incapacity to render service during an unbroken term ; in the context of term limitation, interruption of service occurs after there has been a break in the term.

b.Preventive Suspension and the Intent of the Three-Term Limit Rule

Strict adherence to the intent of the three-term limit rule demands thatpreventive suspension should not be considered an interruption thatallows an elective official's stay in office beyond three terms. A

preventive suspension cannot simply be a term interruption becausethe suspended official continues to stay in office although he is barredfrom exercising the functions and prerogatives of the office within thesuspension period. The best indicator of the suspended official's continuity in office is the absence of a permanent replacement and the lack of the authority to appoint one since no vacancy exists.

To allow a preventively suspended elective official to run for a fourthand prohibited term is to close our eyes to this reality and to allow aconstitutional violation through sophistry by equating the temporaryinability to discharge the functions of office with the interruption of term that the constitutional provision contemplates. To be sure, manyreasons exist, voluntary or involuntary — some of them personal andsome of them by operation of law — that may temporarily prevent anelective office holder from exercising the functions of his office in the

way that preventive suspension does. A serious extended illness,inability through force majeure, or the enforcement of a suspension asa penalty, to cite some involuntary examples, may prevent an officeholder from exercising the functions of his office for a time withoutforfeiting title to office. Preventive suspension is no different because itdisrupts actual delivery of service for a time within a term. Adoptingsuch interruption of actual service as the standard to determineeffective interruption of term under the three-term rule raises at leastthe possibility of confusion in implementing this rule, given the manymodes and occasions when actual service may be interrupted in thecourse of serving a term of office. The standard may reduce theenforcement of the three-term limit rule to a case-to-case and possiblysee-sawing determination of what an effective interruption is. ASHECD

c.Preventive Suspension and Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, doesnot involve a voluntary act on the part of the suspended official,except in the indirect sense that he may have voluntarily committedthe act that became the basis of the charge against him. From thisperspective, preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does itcontain the element of renunciation or loss of title to office as it merelyinvolves the temporary incapacity to perform the service that an

elective office demands. Thus viewed, preventive suspension is —

byits very nature — the exact opposite of voluntary renunciation; it isinvoluntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy conclusion therefore is thatthey are, by nature, different and non-comparable.

But beyond the obvious comparison of their respective natures is themore important consideration of how they affect the three-term limitrule.

Voluntary renunciation, while involving loss of office and the totalincapacity to render service, is disallowed by the Constitution as aneffective interruption of a term. It is therefore not allowed as a modeof circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effectiveinterruption of a term and should therefore not be a reason to avoidthe three-term limitation. It can pose as a threat, however, if we shalldisregard its nature and consider it an effective interruption of a term.Let it be noted that a preventive suspension is easier to undertakethan voluntary renunciation, as it does not require relinquishment orloss of office even for the briefest time. It merely requires an easilyfabricated administrative charge that can be dismissed soon after apreventive suspension has been imposed. In this sense, recognizingpreventive suspension as an effective interruption of a term can serveas a circumvention more potent than the voluntary renunciation thatthe Constitution expressly disallows as an interruption.

Conclusion

To recapitulate, Asilo's 2004-2007 term was not interrupted by theSandiganbayan-imposed preventive suspension in 2005, as preventivesuspension does not interrupt an elective official's term. Thus, theCOMELEC refused to apply the legal command of Section 8, Article X ofthe Constitution when it granted due course to Asilo's certificate of candidacy for a prohibited fourth term. By so refusing, the COMELECeffectively committed grave abuse of discretion amounting to lack orexcess of jurisdiction; its action was a refusal to perform a positiveduty required by no less than the Constitution and was one undertakenoutside the contemplation of law. 21 CIaDTE

WHEREFORE, premises considered, we GRANT the petition andaccordingly NULLIFY the assailed COMELEC rulings. The privaterespondent Wilfredo F. Asilo is declared DISQUALIFIED to run, andperforce to serve, as Councilor of Lucena City for a prohibited fourth

term. Costs against private respondent Asilo.

SO ORDERED.

Puno, C.J., Carpio, Carpio Morales, Nachura, Peralta, Corona, Velasco,Jr., Bersamin, Del Castillo and Villarama, Jr., JJ., concur.

Leonardo-de Castro and Abad, JJ., concur.

Separate Opinions











LEONARDO-DE CASTRO, J., concurring :

I concur with the well-written ponencia of Honorable Justice Arturo D.Brion which holds that "preventive suspension" is not equivalent to an"involuntary renunciation" of a public office for the purpose of applyingSection 8, Article X of the Constitution. However, I wish to furtherelucidate my concurrence to the views of Justice Brion and give myreflections on the implications of the outcome of the case for which anelective public official is suspendedpendente lite, which I believe isrelevant to the issue on hand.

The aforementioned provision of Article X reads as follows:

Section 8.The term of office of elective localofficials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuityof his service for the full term for which he waselected.

The minority view considers "preventive suspension" as an "involuntaryrenunciation" of an elective public official's term of office, such thateven if he was elected thrice to serve for three (3) consecutive terms,he may still run for a fourth term because his service was interruptedby his preventive suspension. However, according to this view, hiscontinuation in office for such fourth term will depend on hisexoneration in the case where he was preventively suspended. Inother words, the suspended public official will be deemed disqualifiedto run for a fourth term only upon his conviction which will retroact tothe date when he filed his certificate of candidacy for his fourth term.This means that even if he runs and wins a fourth term and thereafteris convicted in the case in which he was previously preventivelysuspended, he will be deemed to have renounced voluntarily his fourthterm.

I concur with Justice Brion's view that Borja v. Commission on Elections is not the controlling precedent on preventive suspensionbecause this matter was not squarely raised in the said case and that

the consideration of preventive suspension from the perspective of voluntary or involuntary renunciation is inappropriate. cCSHET

Nonetheless, I would like to venture into the effect of the acquittal orconviction of the preventively suspended public officer to furthersupport my position that "preventive suspension" does not partake of the nature of "involuntary renunciation" of an office.

The language of Section 8, Article X of the Constitution implies that aninterruption in the continuity of the service of elective officials is a validground for him to run for a fourth consecutive term. The sameprovision of the Constitution is explicit and categorical in its declarationthat "voluntary renunciation" of elective position for any length of timeis not to be considered as an interruption in the continuity of service of an elective official. Conversely, "involuntary renunciation of office" can

be deemed an interruption in the continuity of the service of theelective official which would render him eligible to run for a fourthterm.

In my opinion, preventive suspension cannot be considered as an"involuntary renunciation" of an elective position. One who has beenelected to a public office for three (3) consecutive terms is prohibitedto run for the same position for a fourth term, notwithstanding hispreventive suspension during any of his first three (3) consecutiveterms. Since preventive suspension is not akin to involuntaryrenunciation, the rule should hold true irrespective of his acquittal orconviction in the case in which an elective official was preventivelysuspended.

There is an inherent difference between "renunciation" and "preventivesuspension" even if the former is involuntary. The former connotes anact of abandonment or giving up of a position by a public officer whichwould result in the termination of his service, whereas the lattermeans that a public officer is prevented by legal compulsion, not by hisown volition, from discharging the functions and duties of his office,but without being removed or separated from his office. The term of office of a preventively suspended public officer subsists becausepreventive suspension does not create a vacancy in his office. AsJustice Brion puts it, he does not become a private citizen while he isunder preventive suspension. The continuity of the term of thesuspended official during the period of his preventive suspension,whether rendered administrative or court proceedings, is recognizedby law and jurisprudence, such that a public officer who is acquitted ofthe charges against him, is entitled to receive the salaries and benefitswhich he failed to receive during the period of his preventivesuspension (Section 64, Local Government Code of 1991, Republic Act(R.A.) No. 7160; Section 13, R.A. 3019, as amended; Tan v.Department of Public Works and Highways, G.R. No. 143289, Nov. 11,2004, 442 SCRA 192, 202).

If the suspended public officer is convicted of the charges, still there isno interruption of service within the three (3) consecutive terms,within the meaning of the Constitution which will warrant his runningfor a fourth term. Here, it is not the preventive suspension but hishaving committed a wrongdoing, which gave ground for his removalfrom office or for forfeiture of the remainder of his term which can be

considered as voluntary renunciation of his office. The commission of acrime or an administrative infraction which is a ground for the removalfrom office of a public officer is akin to his "voluntary renunciation" of his office. He may be deemed, by his willful wrongdoing, whichbetrayed public trust, to have thereby voluntarily renounced his officeunder the provision of Section 8, Article X of the Constitution. TcSaHC

I beg to disagree with the proposition that the suspended publicofficial should be allowed to run for a fourth time and if convicted, heshould be considered to have voluntarily renounced his fourth term.My reason is that the crime was committed not during his fourth termbut during his previous term. The renunciation should refer to the termduring which the crime was committed. The commission of the crime istantamount to his voluntary renunciation of the term he was thenserving, and not any future term. Besides, the electorate should not be

placed in an uncertain situation wherein they will be allowed to votefor a fourth term a candidate who may later on be convicted andremoved from office by a judgment in a case where he was previouslypreventively suspended.

In view of the foregoing, I reiterate my concurrence with the majorityopinion that preventive suspension, regardless of the outcome of thecase in which an elective public officer has been preventivelysuspended, should not be considered as an interruption of the serviceof the said public officer that would qualify him to run for a fourthterm.

ABAD, J., concurring :

I join the majority opinion and add a few thoughts of my own.

The Facts

Respondent Wilfredo F. Asilo won three consecutive elections ascouncilor of Lucena City, specifically from 1998 to 2001, from 2001 to2004, and from 2004 to 2007. During his last term or on October 3,2005, the Sandiganbayan ordered him placed under preventivesuspension for ninety days in connection with a crime of which he hadbeen charged. After about thirty-seven days, however, or onNovember 9, 2005, this Court lifted the order of suspension andallowed Asilo to resume the duties of his office.



Believing that his brief preventive suspension interrupted his fullservice in office and allowed him to seek a fourth term as councilorbecause of it, Asilo filed a certificate of candidacy for the same office inthe 2007 elections. When this was questioned, both the SecondDivision of the Commission on Elections and its En Banc ruled that thethree-term limit did not apply to Asilo's case since the Sandiganbayan'sorder of preventive suspension did not allow him to complete the thirdterm for which he was elected in 2004.

The Issue

The issue in this case is whether or not respondent Asilo's preventivesuspension during his third term as councilor, which shortened thelength of his normal service by thirty-seven days, allowed him to runfor a fourth consecutive term for the same office. IHSTDE

Discussion

The issue in this case revolves around Section 8 of Article X of the1987 Constitution:

The term of office of elective localofficials, except barangay officials, whichshall 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 forany length of time shall not be consideredas an interruption in the continuity of hisservice for the full term for which he waselected.

The first part states that no local official shall serve for more thanthree consecutive terms.

The second, on the other hand, states that voluntary renunciation of office shall not be considered an interruption in the continuity of hisservice for the full term for which he was elected. 1

That the first part is a prohibitory rule is not in question. This is quiteclear. It says that no local official can serve for more than three terms.Traditionally, politicians find ways of entrenching themselves in theiroffices and the consensus is that this practice is not ideal for goodgovernment. Indeed, the Constitution expresses through the three-term limit rule a determination to open public office to others andbring fresh ideas and energies into government as a matter of policy.The mandate of this Court in this case is to enforce suchconstitutionally established prohibition.

Actually, what creates the mischief is the statement in the second partof Section 8 that "voluntary renunciation" of office shall not beconsidered an interruption in the continuity of his service for the fullterm for which the local official was elected. The dissenting opinioninfers from this that "any service short of full service of threeconsecutive terms, save for voluntary renunciation of office, does not

bar an elective local official from running again for the same localgovernment post." In other words, elected politicians whose servicesare cut in the course of any term by "involuntary renunciation" areeligible for a fourth term.

Relying on its above inference, the dissenting opinion claims thatpreventive suspension is, by default, an "involuntary renunciation" of an elective official's term of office since he does not choose to bepreventively suspended. Preventive suspension cuts into the full termof the elected official and gives him justification for seeking a fourthterm.

But, there is in reality no such thing as "involuntary" renunciation.Renunciation is essentially "formal or voluntary." It is the act, says

Webster, "of renouncing; a giving up formally or voluntarily, often at asacrifice, of a right, claim, title, etc." 2 If the dissenting opinion insistson using the term "involuntary renunciation," it could only mean"coerced" renunciation, i.e., renunciation forced on the elected official.With this meaning, any politician can simply arrange for someone tomake him sign a resignation paper at gun point. This will justify hisrunning for a fourth term. But, surely, the law cannot be mocked inthis way. jur2005

Parenthetically, there can be other causes for "involuntaryrenunciation," interruption of service that is not of the elected official's

making. For instance, through the fault of a truck driver, the electedofficial's car could fall into a ditch and put the official in the hospital fora week, cutting his service in office against his will. Temporary illnesscan also interrupt service. Natural calamities like floods andearthquakes could produce the same result. Since these are"involuntary renunciations" or interruptions in the elective official'sservice, it seems that he would, under the dissenting opinion's theory,be exempt from the three-year rule. But surely, Section 8 could nothave intended this for it would overwhelm the constitutional banagainst election for more than three consecutive terms.

Actually, though, "voluntary renunciation," the term that the law usessimply means resignation from or abandonment of office. The electedofficial who voluntarily resigns or abandons his duties freely renouncesthe powers, rights, and privileges of his position. The opposite of "voluntary renunciation" in this context would be "removal fromoffice," a sanction imposed by some duly authorized person or body,not an initiative of or a choice freely made by the elected official.Should "removal from office" be the test, therefore, for determininginterruption of service that will warrant an exception to the three-termlimit rule?

Apparently not, since an elected official could be removed from officethrough recall (a judgment by the electorates that he is unfit tocontinue serving in office), 3 criminal conviction by final

judgment, 4 and administrative dismissal. 5 Surely, the Constitutioncould not have intended to reward those removed in this way with theopportunity to skip the three-year bar.

The only interruption in the continuity of service of an elected official

that does not amount to removal is termination of his service byoperation of law. This is exemplified in the case of Montebon v.COMELEC, 6 where this Court deemed the highest-ranking councilor'sthird term as such "involuntarily" interrupted when he succeeded asvice mayor by operation of law upon the latter's retirement. This Courtconsidered the ranking councilor eligible to run again as councilor forthe succeeding term.

But Montebon cannot be compared with Asilo's case since Montebon'sterm as councilor ended by operation of law when the vice mayorretired and Montebon had to step into his shoes. 7 Asilo's term, on theother hand, did not end when the Sandiganbayan placed him underpreventive suspension. He did not vacate his office. It merely enjoinedhim in the meantime from performing his duties and exercising hispowers. His term ran the full course; it was not cut.

It might be correct to say that the will of the electorates is for Asilo toserve the full term of his office. But, given the presumption that theelectorates knew of the law governing preventive suspension whenthey elected him, it must be assumed that they elected him subject tothe condition that he can be preventively suspended if the occasionwarrants. Such suspension cannot, therefore, be regarded as adesecration of the people's will.

It does not matter that the preventive suspension imposed on theelected official may later on prove unwarranted. The law provides theproper remedy for such error. Here, the Supreme Court supplied thatremedy. It set aside the preventive suspension imposed on Asilo bythe Sandiganbayan. There is, on the other hand, no law that allows anelected official to tack to his term of office the period of service he had































lost by reason of preventive suspension just so he can make up for theloss. The dissenting opinion's position would create a rule that willallow Asilo, who lost thirty-seven days of service because of thatsuspension, a right to be re-elected to a fourth consecutive term of one thousand ninety-five days (365 days x 3). DcSTaC

In Borja, Jr. v. COMELEC, 8 this Court cited a hypothetical situationwhere B is elected Mayor and, during his first term, he is twicesuspended for misconduct for a total of one year. If he is twicereelected after that, can he run for one more term in the nextelection? This Court answered in the affirmative, stating as reason

that B successfully served only two full terms. 9

But such interpretation of the law wounds its very spirit for, in effect, itwould reward the elected official for his misconduct. Fr. Joaquin G.Bernas, S.J., a recognized constitutionalist, is also not swayed by it. Hepoints out that when an elected official is suspended, he shortensneither his term nor his tenure. He is still seen as the rightful holder of the office and, therefore, must be considered as having served a fullterm during the period of suspension. 10

ACCORDINGLY , I submit that preventive suspension did not interrupt Asilo's term of office from 2004-2007 and it cannot be considered anexception to the three-term limit rule. Thus, Asilo is disqualified fromrunning in the 2007 elections for violation of that rule pursuant toSection 8, Article X of the Constitution. I vote to GRANT the petition.















EN BANC

[G.R. No. 147927. February 4, 2002.]

RAYMUNDO M. ADORMEO, petitioner , vs .COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents .

Silvestre L. Tagarao, Ignacio E. Camba and Romeo A. Dato forpetitioner.

The Solicitor General for public respondent.

Dante H. Diamante for private respondent.

SYNOPSIS

Petitioner and private respondent were the only candidates who filedtheir certificates of candidacy for mayor of Lucena City in the May 14,2001 elections. Private respondent was elected mayor in May 1992. He

served the full term. Again, he was re-elected in 1995-1998. In theelection of 1998 he lost to Bernard Tagarao. In the recall election of May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001.

Petitioner filed a petition to disqualify Talaga from running for Mayorfor the May 14, 2001 elections on the ground that the latter waselected and had served as city mayor for three (3) consecutive terms.

The Supreme Court held that respondent was not elected for three (3)consecutive terms. For nearly two years he was a private citizen. Thecontinuity of his mayorship was disrupted by his defeat in the 1998elections. Neither can respondent's victory in the recall election bedeemed a violation of Section 8, Article X of the Constitution as"voluntary renunciation" for clearly it was not. Hence, private

respondent was not disqualified to run for mayor in the May 14, 2001elections.

SYLLABUS

1.POLITICAL LAW; ELECTION LAWS; DISQUALIFICATION; THREE-TERM RULE; CONDITIONS FOR THE APPLICATION. — The issuebefore us was already addressed in Borja, Jr. vs. COMELEC , 295 SCRA157, 169 (1998), where we held, To recapitulate, the term limit forelective 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 hasserved threeconsecutive terms in an elective local office, he must also have

been elected to the same position for the same number of timesbefore the disqualification can apply. . . . Likewise, in the caseof Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said, ThisCourt held that the two conditions for the application of thedisqualification must concur: a) that the official concerned has beenelected for three consecutive terms in the same local government postand 2) that he has fully served three consecutive terms.

2.CONSTITUTIONAL LAW; LOCAL GOVERNMENT; ELECTIVE LOCALOFFICIALS; VOLUNTARY RENUNCIATION OF OFFICE DOES NOTCANCEL THE RENOUNCED TERM IN THE COMPUTATION OF THETHREE-TERM LIMIT; CASE AT BAR. — Neither can respondent's victoryin the recall election be deemed a violation of Section 8, Article X of the Constitution as "voluntary renunciation" for clearly it is not.In Lonzanida vs. COMELEC, we said: . . . The second sentence of the

constitutional provision under scrutiny states, "Voluntary renunciationof office for any length of time shall not be considered as aninterruption in the continuity of service for the full term for which hewas elected." The clear intent of the framers of the constitution to barany attempt to circumvent the three-term limit by a voluntaryrenunciation of office and at the same time respect the people's choiceand grant their elected official full service of a term is evident in thisprovision. Voluntary renunciation of a term does not cancel therenounced term in the computation of the three-term limit; conversely,involuntary severance from office for any length of time short of thefull term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the nextmayoral elections, not by voluntary renunciation but in compliancewith the legal process of writ of execution issued by the COMELEC tothat effect. Such involuntary severance from office is an interruption ofcontinuity of service and thus, the petitioner did not fully serve the1995-1998 mayoral term. aTcESI

D E C I S I O N

QUISUMBING, J p:

Before us is a petition for certiorari , with a prayer for a writ of preliminary injunction and/or temporary restraining order, to nullifyand set aside the resolution dated May 9, 2001 of public respondentCommission on Elections in Comelec SPA No. 01-055, which grantedthe motion for reconsideration and declared private respondent Ramon

Y. Talaga, Jr., qualified to run for Mayor in Lucena City for the May 14,2001 election. Petitioner prays that votes cast in private respondent'sfavor should not be counted; and should it happen that privaterespondent had been already proclaimed the winner, his proclamationshould be declared null and void.

The uncontroverted facts are as follows:

Petitioner and private respondent were the only candidates who filedtheir certificates of candidacy for mayor of Lucena City in the May 14,

2001 elections. Private respondent was then the incumbent mayor.

Private respondent Talaga, Jr. was elected mayor in May 1992. Heserved the full term. Again, he was re-elected in 1995-1998. In theelection of 1998, he lost to Bernard G. Tagarao. In the recall electionof May 12, 2000, he again won and served the unexpired term of Tagarao until June 30, 2001.

On March 2, 2001, petitioner filed with the Office of the ProvincialElection Supervisor, Lucena City a Petition to Deny Due Course to orCancel Certificate of Candidacy and/or Disqualification of Ramon Y.Talaga, Jr., on the ground that the latter was elected and had servedas city mayor for three (3) consecutive terms as follows: (1) in theelection of May 1992, where he served the full term; (2) in the electionof May 1995, where he again served the full term; and, (3) in the

recall election of May 12, 2000, where he served only the unexpiredterm of Tagarao after having lost to Tagarao in the 1998 election.Petitioner contended that Talaga's candidacy as Mayor constituted aviolation of Section 8, Article X of the 1987 Constitution whichprovides:

Sec. 8. — The term of office of elective localofficials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuityof his service for the full term for which he waselected.



On March 9, 2001, private respondent responded that he was notelected City Mayor for three (3) consecutive terms but only for two (2)consecutive terms. He pointed to his defeat in the 1998 election byTagarao. Because of his defeat the consecutiveness of his years asmayor was interrupted, and thus his mayorship was not for threeconsecutive terms of three years each. Respondent added that hisservice from May 12, 2001 until June 30, 2001 for 13 months andeighteen (18) days was not a full term, in the contemplation of the lawand the Constitution. He cites Lonzanida vs. COMELEC , G.R. No.135150, 311 SCRA 602, 611 (1999), as authority to the effect that toapply disqualification under Section 8, Article X of the Constitution, two(2) conditions must concur, to wit: (a) that the official concerned hasbeen elected for three consecutive terms in the same local governmentpost, and (b) that he has fully served three (3) consecutive terms.

On April 20, 2001, the COMELEC, through the First Division, foundprivate respondent Ramon Y. Talaga, Jr. disqualified for the position of city mayor on the ground that he had already served three (3)consecutive terms, and his Certificate of Candidacy was orderedwithdrawn and/or cancelled.

On April 27, 2001, private respondent filed a motion forreconsideration reiterating that "three (3) consecutive terms" meanscontinuous service for nine (9) years and that the two (2) years servicefrom 1998 to 2000 by Tagarao who defeated him in the election of 1998 prevented him from having three consecutive years of service.He added that Tagarao's tenure from 1998 to 2000 could not beconsidered as a continuation of his mayorship. He further alleged thatthe recall election was not a regular election, but a separate specialelection specifically to remove incompetent local officials.

On May 3, 2001, petitioner filed his Opposition to private respondent'sMotion for Reconsideration stating therein that serving the unexpiredterm of office is considered as one (1) term. 1 Petitioner furthercontended that Article 8 of the Constitution speaks of "term" and doesnot mention "tenure": The fact that private respondent was notelected in the May 1998 election to start a term that began on June30, 1998 was of no moment, according to petitioner, and what mattersis that respondent was elected to an unexpired term in the recallelection which should be considered one full term from June 30, 1998to June 30, 2001. IDEScC

On May 9, 2001, the COMELEC en banc ruled in favor of privaterespondent Ramon Y. Talaga, Jr. It reversed the First Division's rulingand held that 1) respondent was not elected for three (3) consecutiveterms because he did not win in the May 11, 1998 elections; 2) that hewas installed only as mayor by reason of his victory in the recallelections; 3) that his victory in the recall elections was not considereda term of office and is not included in the 3-term disqualification rule,and 4) that he did not fully serve the three (3) consecutive terms, andhis loss in the May 11, 1998 elections is considered an interruption inthe continuity of his service as Mayor of Lucena City.

On May 19, 2001, after canvassing, private respondent was proclaimedas the duly elected Mayor of Lucena City.

Petitioner is now before this Court, raising the sole issue:

WHETHER OR NOT PUBLIC RESPONDENTCOMELEC ACTED WITH GRAVE ABUSE OFDISCRETION AMOUNTING TO LACK OR EXCESSOF JURISDICTION WHEN IT ISSUED ITSRESOLUTION DATED MAY 9, 2001, DECLARINGPRIVATE RESPONDENT RAMON Y. TALAGA, JR.,QUALIFIED TO RUN FOR MAYOR IN LUCENACITY FOR THE MAY 14, 2001 ELECTIONS. 2

Stated differently, was private respondent disqualified to run for mayorof Lucena City in the May 14, 2001 elections? 3 This issue hinges onwhether, as provided by the Constitution, he had already served threeconsecutive terms in that office.

Petitioner contends that private respondent was disqualified to run forcity mayor by reason of the three-term rule because the unexpiredportion of the term of office he served after winning a recall election,covering the period May 12, 2000 to June 30, 2001 is considered a fullterm. He posits that to interpret otherwise, private respondent wouldbe serving four (4) consecutive terms of 10 years, in violation of

Section 8, Article X of 1987 Constitution 4and Section 43 (b) of R.A.7160, known as the Local Government Code.

Section 43.Term of Office . —

xxx xxx xxx

(b)No local elective official shall serve for morethan three (3) consecutive terms in the sameposition. Voluntary renunciation of the office forany length of time shall not be considered as aninterruption in the continuity of service for thefull term for which the elective officialconcerned was elected.

Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a second re-election in1998 and between June 30, 1998 to May 12, 2000, during Tagarao'sincumbency, he was a private citizen, thus he had not been mayor for3 consecutive terms.

In its comment, the COMELEC restated its position that privaterespondent was not elected for three (3) consecutive terms having losthis third bid in the May 11, 1998 elections, said defeat is aninterruption in the continuity of service as city mayor of Lucena.

The issue before us was already addressed in Borja, Jr. vs. COMELEC ,295 SCRA 157, 169 (1998), where we held,

To recapitulate, the term limit for elective localofficials 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 notenough that an individual has served threeconsecutive terms in an elective local office, hemust also have been elected to the sameposition for the same number of times beforethe disqualification can apply. This point can bemade clearer by considering the following caseor situation:

xxx xxx xxx

Case No. 2 .Suppose B is elected mayor and,during his first term, he is twice suspended formisconduct for a total of 1 year. If he is twicereelected after that, can he run for one more term in the next election?

Yes, because he has served only two full terms successively.

xxx xxx xxx

To consider C as eligible for reelection would bein accord with the understanding of theConstitutional Commission that while the people

http://www.cdasiaonline.com/search/show_article/1941?search=gr%3A+%28G.R.+No.+147927%2A%29#footnotes
















should be protected from the evils that amonopoly of political power may bring about,care should be taken that their freedom of choice is not unduly curtailed.

Likewise, in the case of Lonzanida vs. COMELEC , 311 SCRA 602, 611(1999), we said,

This Court held that the two conditions for theapplication of the disqualification must concur:a) that the official concerned has been electedfor three consecutive terms in the same localgovernment post and 2) that he has fully servedthree consecutive terms.

Accordingly, COMELEC's ruling that private respondent was not electedfor three (3) consecutive terms should be upheld. For nearly two yearshe was a private citizen. The continuity of his mayorship was disruptedby his defeat in the 1998 elections. AEDHST

Patently untenable is petitioner's contention that COMELEC in allowingrespondent Talaga, Jr. to run in the May 1998 election violates ArticleX, Section 8 of 1987 Constitution. 5 To bolster his case, respondentadverts to the comment of Fr: Joaquin Bernas, a ConstitutionalCommission member, stating that in interpreting said provision that "if one is elected representative to serve the unexpired term of another,that unexpired, no matter how short, will be considered one term forthe purpose of computing the number of successive terms allowed." 6

As pointed out by the COMELEC en banc , Fr. Bernas' comment ispertinent only to members of the House of Representatives. Unlikelocal government officials, there is no recall election provided formembers of Congress. 7

Neither can respondent's victory in the recall election be deemed aviolation of Section 8, Article X of the Constitution as "voluntaryrenunciation" for clearly it is not. In Lonzanida vs. COMELEC , we said:

. . .The second sentence of the constitutionalprovision under scrutiny states, "Voluntary

renunciation of office for any length of time shall not be considered as an interruptionin the continuity of service for the full term forwhich he was elected." The clear intent of theframers of the constitution to bar any attemptto circumvent the three-term limit by avoluntary renunciation of office and at the sametime respect the people's choice and grant theirelected official full service of a term is evident inthis provision. Voluntary renunciation of a termdoes not cancel the renounced term in thecomputation of the three term limit; conversely,involuntary severance from office for any lengthof time short of the full term provided by lawamounts to an interruption of continuity of service. The petitioner vacated his post a few

months before the next mayoral elections, notby voluntary renunciation but in compliancewith the legal process of writ of executionissued by the COMELEC to that effect. Suchinvoluntary severance from office is aninterruption of continuity of service and thus,the petitioner did not fully serve the 1995-1998mayoral term. 8

WHEREFORE, the instant petition is hereby DISMISSED. The resolutionof public respondent Commission on Elections dated May 9, 2001, inComelec SPA No. 01-055 is AFFIRMED. Costs againstpetitioner. EAcTDH

SO ORDERED.



















EN BANC

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

BENJAMIN U. BORJA,JR., petitioner , vs . COMMISSION ONELECTIONS and JOSE T. CAPCO,JR., respondents .

SYLLABUS

1.POLITICAL LAW; LOCAL GOVERNMENT; TERM OF OFFICE OFELECTIVE LOCAL OFFICIALS; PROHIBITION AGAINST SERVING FOR MORE THAN THREE CONSECUTIVE TERMS; TO BAR THE ELECTIONOF A LOCAL OFFICIAL BECAUSE HE HAS ALREADY SERVED THREETERMS, ALTHOUGH THE FIRST AS A RESULT OF SUCCESSION BY OPERATION OF LAW RATHER THAN ELECTION WOULD BE A

VIOLATION OF THE PEOPLE'S RIGHT TO CHOOSE THOSE WHOMTHEY PLEASE TO GOVERN THEM. — A fundamental tenet of representative democracy is that the people should be allowed tochoose those whom they please to govern them. To bar the election of a local official because he has already served three terms, although

the first as a result of succession by operation of law rather thanelection, would therefore be to violate this principle.

2.ID.; ID.; ID.; ID.; ARTICLE X, SECTION 8 OF THE 1987CONSTITUTION CONTEMPLATES SERVICE BY LOCAL OFFICIALS FOR THREE CONSECUTIVE TERMS AS A RESULT OF ELECTION. — Not onlyhistorical examination but textual analysis as well supports the rulingof the COMELECthat Art. X, Section 8 contemplates service by localofficials for three consecutive terms as a result of election. The firstsentence speaks of "the term of office of elective local officials" andbars "such official[s]" from serving for more than three consecutiveterms. The second sentence, in explaining when an elective localofficial may be deemed to have served his full term of office, statesthat "voluntary renunciation of the office for any length of time shallnot be considered as an interruption in the continuity of his service for

the full term for which he was elected ." The term served musttherefore be one "for which [the official concerned] was elected." Thepurpose of this provision is to prevent a circumvention of the limitationon the number of terms an elective local official may serve.Conversely, if he is not serving a term for which he was electedbecause he is simply continuing the service of the official he succeeds,such official cannot be considered to have fully served the termnotwithstanding his voluntary renunciation of office prior to itsexpiration. DCcHAa

D E C I S I O N

MENDOZA, J p:

This case presents for determination the scope of the constitutionalprovision barring elective local officials, with the exception of barangayofficials, from serving more than three consecutive terms. Inparticular, the question is whether a vice-mayor who succeeds to theoffice of mayor by operation of law and serves the remainder of theterm is considered to have served a term in that office for the purposeof the three-term limit. cda

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. OnSeptember 2, 1989, he became mayor, by operation of law, upon thedeath of the incumbent, Cesar Borja. On May 11, 1992, he ran and

was elected mayor for a term of three years which ended on June 30,1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. 1

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections.Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor,sought Capco's disqualification on the theory that the latter wouldhave already served as mayor for three consecutive terms by June 30,1998 and would therefore be ineligible to serve for another term afterthat. cdtai

On April 30, 1998, the Second Division of the Commission onElections ruled in favor of petitioner and declared private respondentCapco disqualified from running for reelection as mayor of Pateros. 2 However, on motion of private respondent,the COMELEC en banc, voting 5-2, reversed the decision and declaredCapco eligible to run for mayor in the May 11, 1998 elections. 3 Themajority stated in its decision:

In both the Constitution and the LocalGovernment Code, the three-term limitationrefers to the term of office for which the localofficial was elected. It made no reference tosuccession to an office to which he was notelected. In the case before the Commission,

respondent Capco was not elected to theposition of Mayor in the January 18, 1988 localelections. He succeeded to such office byoperation of law and served for the unexpiredterm of his predecessor. Consequently, suchsuccession into office is not counted as one (1)term for purposes of the computation of thethree-term limitation under the Constitution andthe Local Government Code.

Accordingly, private respondent was voted for in the elections. Hereceived 16,558 votes against petitioner's 7,773 votes and wasproclaimed elected by the Municipal Board of Canvassers. Cdpr

This is a petition for certiorari brought to set aside the resolution,

dated May 7, 1998, of the COMELEC and to seek a declaration thatprivate respondent is disqualified to serve another term as mayor of Pateros, Metro Manila.

Petitioner contends that private respondent Capco's service as mayorfrom September 2, 1989 to June 30, 1992 should be considered asservice for one full term, and since he thereafter served from 1992 to1998 two more terms as mayor, he should be considered to haveserved three consecutive terms within the contemplation of Art. X, §8of the Constitution and §43(b) of the Local Government Code.Petitioner stresses the fact that, upon the death of MayorCesar Borja on September 2, 1989, private respondent became themayor and thereafter served the remainder of the term. Petitionerargues that it is irrelevant that private respondent became mayor bysuccession because the purpose of the constitutional provision in

limiting the number of terms elective local officials may serve is toprevent a monopolization of political power.

This contention will not bear analysis. Article X, §8 of the Constitutionprovides: cda

SEC. 8.The term of office of elective localofficials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuity

http://www.cdasiaonline.com/search/show_article/12694?search=%28title%3A+%28borja%29+AND+title%3A+%28comelec%29%29+OR+%28title%3A+%28borja%29+AND+title%3A+%28%22Commission+on+Elections%22%29%29#footnotes












of his service for the full term for which he waselected.

This provision is restated in 43(b) of the Local Government Code(R.A. No. 7160):

SEC. 43.Term of Office . —

(b)No local elective official shall serve for morethan three (3) consecutive terms in the same

position. Voluntary renunciation of the office forany length of time shall not be considered as aninterruption in the continuity of service for thefull term for which the elective officialconcerned was elected. . .

First, to prevent the establishment of political dynasties is not the onlypolicy embodied in the constitutional provision in question. The otherpolicy is that of enhancing the freedom of choice of the people. Toconsider, therefore, only stay in office regardless of how the officialconcerned came to that office — whether by election or by successionby operation of law — would be to disregard one of the purposes of the constitutional provision in question. Cdpr

Thus, a consideration of the historical background of Art. X, §8 of the

Constitution reveals that the members of the ConstitutionalCommission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolizationof political power. Indeed, they rejected a proposal put forth byCommissioner Edmundo F. Garcia that after serving three consecutiveterms or nine years there should be no further reelection for local andlegislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barredfrom running for the same position in the succeeding election followingthe expiration of the third consecutive term. 4 Monsod warned against"prescreening candidates [from] whom the people will choose" as aresult of the proposed absolute disqualification, considering that thedraft constitution contained provisions "recognizing people's power." 5

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether thisCommission shall impose a temporary or aperpetual disqualification on those who haveserved their terms in accordance with the limitson consecutive service as decided by theConstitutional Commission. I would be verywary about this Commission exercising a sort of omnipotent power in order to disqualify thosewho will already have served their terms fromperpetuating themselves in office. I think theCommission achieves its purpose in establishingsafeguards against the excessive accumulationof power as a result of consecutive terms. Wedo put a cap on consecutive service — in thecase of the President, six years; in the case of

the Vice-President, unlimited; and in the case of the Senators, one reelection. In the case of theMembers of Congress, both from the legislativedistricts and from the party list and sectoralrepresentation, this is now under discussion andlater on the policy concerning local officials willbe taken up by the Committee on LocalGovernments. The principle remains the same. Ithink we want to prevent future situationswhere, as a result of continuous service andfrequent reelections, officials from the Presidentdown to the municipal mayor tend to develop aproprietary interest in their positions and toaccumulate those powers and perquisites thatpermit them to stay on indefinitely or to

transfer these posts to members of theirfamilies in a subsequent election. I think that istaken care of because we put a gap on thecontinuity or the unbroken service of all of these officials. But where we now decide to putthese prospective servants of the people orpoliticians, if we want to use the coarser term,under a perpetual disqualification, I have afeeling that we are taking away too much fromthe people, whereas we should be giving asmuch to the people as we can in terms of theirown freedom of choice. . . 6

Other commissioners went on record against "perpetuallydisqualifying" elective officials who have served a certain number of terms as this would deny the right of the people to choose. AsCommissioner Yusup R. Abubakar asked, "why should we arrogateunto ourselves the right to decide what the people want?" 7

Commissioner Felicitas S. Aquino spoke in the same vein when shecalled on her colleagues to "allow the people to exercise their ownsense of proportion and [rely] on their own strength to curtail powerwhen it overreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave[perpetual disqualification after serving a number of terms] to thepremise accepted by practically everybody here that our people arepolitically mature? Should we use this assumption only when it isconvenient for us, and not when it may also lead to a freedom of choice for the people and for politicians who may aspire to serve themlonger?" 9

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

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concernedwere serving by reason of election. This is clear from the followingexchange in the Constitutional Commission concerning term limits,now embodied in Art. VI, §§ 4 and 7 of the Constitution, for membersof Congress: cda

MR. GASCON.

I would like to ask a question withregard to the issue after the secondterm. We will allow the Senator torest for a period of time before hecan run again?

MR. DAVIDE.

That is correct.

MR. GASCON.

And the question that we left behindbefore — if the Gentlemen willremember — was: How long will thatperiod of rest be? Will it be oneelection which is three years or oneterm which is six years?






















MR. DAVIDE.

If the Gentlemen will remember,Commissioner Rodrigo expressed theview that duringthe election following the expirationof the first 12 years, whethersuch election will be on the third yearor on the sixth year thereafter, thisparticular member of the Senatecan run . So, it is not really a period of

hibernation for six years. That wasthe Committee's stand. 10

Indeed, a fundamental tenet of representative democracy is that thepeople should be allowed to choose those whom they please to governthem. 11 To bar the election of a local official because he has alreadyserved three terms, although the first as a result of succession byoperation of law rather than election, would therefore be to violate thisprinciple.

Second, not only historical examination but textual analysis as wellsupports the ruling of the COMELEC that Art. X, §8 contemplatesservice by local officials for three consecutive terms as a result of election. The first sentence speaks of "the term of officeof elective local officials" and bars "such official[s]" from serving for

more than three consecutive terms. The second sentence, inexplaining when an elective local official may be deemed to haveserved his full term of office, states that "voluntary renunciation of theoffice for any length of time shall not be considered as an interruptionin the continuity of his service for the full term for which he was elected ." The term served must therefore be one "for which [theofficial concerned] was elected." The purpose of this provision is toprevent a circumvention of the limitation on the number of terms anelective local official may serve. Conversely, if he is not serving a termfor which he was elected because he is simply continuing the serviceof the official he succeeds, such official cannot be considered to havefully served the term notwithstanding his voluntary renunciation of office prior to its expiration. cdasia

Reference is made to Commissioner Bernas' comment on Art. VI, §7,

which similarly bars members of the House of Representatives fromserving for more than three terms. Commissioner Bernas states that "if one is elected Representative to serve the unexpired term of another,that unexpired term, no matter how short, will be considered one termfor the purpose of computing the number of successive termsallowed." 12

This is actually based on the opinion expressed by CommissionerDavide in answer to a query of Commissioner Suarez: "For example, aspecial election is called for a Senator, and the Senator newly electedwould have to serve the unexpired portion of the term. Would thatmean that serving the unexpired portion of the term is alreadyconsidered one term? So, half a term, which is actually the correctstatement, plus one term would disqualify the Senator concerned fromrunning? Is that the meaning of this provision on disqualification,Madam President?" Commissioner Davide said: "Yes, because we

speak of "term," and if there is a special election, he will serve only forthe unexpired portion of that particular term plus one more term forthe Senator and two more terms for the Members of the LowerHouse." 13

There is a difference, however, between the case of a vice-mayor andthat of a member of the House of Representatives who succeedsanother who dies, resigns, becomes incapacitated, or is removed fromoffice. The vice-mayor succeeds to the mayorship by operation of law." 14 On the other hand, the Representative is elected to fill thevacancy. 15 In a real sense, therefore, such Representative serves aterm for which he was elected. As the purpose of the constitutionalprovision is to limit the right to be elected and to serve in Congress,his service of the unexpired term is rightly counted as his first term.

Rather than refute what we believe to be the intendment of Art. X, §8with regard to elective local officials, the case of a Representative whosucceeds another confirms the theory. LexLib

Petitioner also cites Art. VII, §4 of the Constitution which provides forsuccession of the Vice-President to the Presidency in case of vacancyin that office. After stating that "The President shall not be eligible forany reelection," this provision says that "No person who has succeededas President and has served as such for more than four years shall bequalified for election to the same office at any time." Petitionercontends that, by analogy, the vice-mayor should likewise be

considered to have served a full term as mayor if he succeeds to thelatter's office and serves for the remainder of the term.

The framers of the Constitution included such a provision because,without it, the Vice-President, who simply steps into the Presidency bysuccession, would be qualified to run for President even if he hasoccupied that office for more than four years. The absence of a similarprovision in Art. X, §8 on elective local officials throws in bold relief thedifference between the two cases. It underscores the constitutionalintent to cover only the terms of office to which one may havebeen elected for purposes of the three-term limit on local electiveofficials, disregarding for this purpose service by automaticsuccession .

There is another reason why the Vice-President who succeeds to thePresidency and serves in that office for more than four years is

ineligible for election as President. The Vice-President is electedprimarily to succeed the President in the event of the latter's death,permanent disability, removal, or resignation. While he may beappointed to the cabinet, his becoming so is entirely dependent on thegood graces of the President. In running for Vice-President, he maythus be said to also seek the Presidency. For their part, the electorslikewise choose as Vice-President the candidate who they think can fillthe Presidency in the event it becomes vacant. Hence, service in thePresidency for more than four years may rightly be considered asservice for a full term. prcd

This is not so in the case of the vice-mayor. Under the LocalGovernment Code, he is the presiding officer of the sanggunian and heappoints all officials and employees of such local assembly. He hasdistinct powers and functions, succession to mayorship in the event of

vacancy therein being only one of them. 16 It cannot be said of him,as much as of the Vice-President in the event of a vacancy in thePresidency, that, in running for vice-mayor, he also seeks themayorship. His assumption of the mayorship in the event of vacancy ismore a matter of chance than of design. Hence, his service in thatoffice should not be counted in the application of any term limit.

To recapitulate, the term limit for elective local officials must be takento 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 anindividual has served three consecutive terms in an elective localoffice, he must also have been elected to the same position for thesame number of times before the disqualification can apply. This pointcan be made clearer by considering the following cases or situations:

Case No . 1 . Suppose A is a vice-mayor whobecomes mayor by reason of the death of theincumbent. Six months before the next election,he resigns and is twice elected thereafter. Canhe run again for mayor in the next election?

Yes, because although he has already firstserved as mayor by succession andsubsequently resigned from office before thefull term expired, he has not actually servedthree full terms in all for the purpose of applying the term limit. Under Art. X, §8,voluntary renunciation of the office is notconsidered as an interruption in the continuityof his service for the full term only if the term is




























one "for which he was elected." Since A is onlycompleting the service of the term for which thedeceased and not he was elected, A cannot beconsidered to have completed one term. Hisresignation constitutes an interruption of the fullterm.

Case No . 2 . Suppose B is elected mayor and,during his first term, he is twice suspended formisconduct for a total of 1 year. If he is twicereelected after that, can he run for one more term in the next election?

Yes, because he has served only two full termssuccessively.

In both cases, the mayor is entitled to run for reelection because thetwo conditions for the application of the disqualification provisionshave not concurred, namely, that the local official concerned has beenelected three consecutive times and that he has fully served threeconsecutive terms. In the first case, even if the local official isconsidered to have served three full terms notwithstanding hisresignation before the end of the first term, the fact remains that hehas not been elected three times. In the second case, the local officialhas been elected three consecutive times, but he has notfullyserved three consecutive terms. LibLex

Case No . 3 . The case of vice-mayor C whobecomes mayor by succession involves a totalfailure of the two conditions to concur for thepurpose of applying Art. X, §8. Suppose he istwice elected after that term, is he qualified torun again in the next election?

Yes, because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of law. Neither hadhe served the full term because he onlycontinued the service, interrupted by the death,of the deceased mayor.

To consider C in the third case to have served the first term in full andtherefore ineligible to run a third time for reelection would be not onlyto falsify reality but also to unduly restrict the right of the people tochoose whom they wish to govern them. If the vice-mayor turns out tobe a bad mayor, the people can remedy the situation by simply notreelecting him for another term. But if, on the other hand, he provesto be a good mayor, there will be no way the people can return him tooffice (even if it is just the third time he is standing for reelection) if his service of the first term is counted as one for the purpose of applying the term limit.

To consider C as eligible for reelection would be in accord with the

understanding of the Constitutional Commission that while the peopleshould be protected from the evils that a monopoly of political powermay bring about, care should be taken that their freedom of choice isnot unduly curtailed. LLjur

WHEREFORE, the petition is DISMISSED.

SO ORDERED.



EN BANC

[G.R. No. 163295. January 23, 2006.]

FRANCIS G. ONG, petitioner , vs . JOSEPHSTANLEY ALEGRE and COMMISSION ONELECTIONS, respondents .

[G.R. No. 163354. January 23, 2006.]

ROMMEL G. ONG, petitioner , vs . JOSEPHSTANLEY ALEGRE and COMMISSION ONELECTIONS, respondents .

D E C I S I O N

GARCIA, J p:

Before the Court are these two separate petitions under Rule 65 of theRules of Court to nullify and set aside certain issuances of theCommission on Elections (COMELEC) en banc .

The first, docketed as G.R. No. 163295, is a petitionfor certiorari with petitioner Francis G. Ong impugning theCOMELEC en banc resolution 1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion forreconsideration of the resolution dated March 31, 2004 2 of theCOMELEC's First Division.

The second, G.R. No. 163354, is for certiorari , prohibitionand mandamus , with application for injunctive relief, filed by petitionerRommel Ong, brother of Francis, seeking, among other things, to stop

the COMELEC from enforcing and implementing its aforesaid May 7,2004 en banc resolution in SPA Case No. 04-048 pending the outcomeof the petition in G.R. No. 163295.

Per its en banc Resolution of June 1, 2004, the Court ordered theconsolidation of these petitions.

The recourse stemmed from the following essential and undisputedfactual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) andpetitioner Francis Ong (Francis) were candidates who filed certificatesof candidacy for mayor of San Vicente, Camarines Norte in the May10, 2004 elections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Officea Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy 3 of Francis. Docketed as SPA Case No. 04-048, thepetition to disqualify was predicated on the three-consecutive termrule, Francis having, according to Alegre, ran in the May 1995, May1998, and May 2001 mayoralty elections and have assumed office asmayor and discharged the duties thereof for three (3) consecutive fullterms corresponding to those elections.

To digress a bit, the May 1998 elections saw both Alegre and Francisopposing each other for the office of mayor of San Vicente, CamarinesNorte, with the latter being subsequently proclaimed by COMELECwinner in that contest. Alegre subsequently filed an election protest,docketed as Election Case No. 6850 before the Regional Trial Court

(RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as theduly elected mayor in that 1998 mayoralty contest, 4 albeit thedecision came out only on July 4, 2001, when Francis had fully servedthe 1998-2001 mayoralty term and was in fact already starting toserve the 2001-2004 term as mayor-elect of the municipality of San

Vicente. TaSEHC

Acting on Alegre's petition to disqualify and to cancel Francis'certificate of candidacy for the May 10, 2004 elections, the FirstDivision of the COMELEC rendered on March 31, 2004 aresolution 5 dismissing the said petition of Alegre, rationalizing as

follows:

We see the circumstances in the case nowbefore us analogous to those obtaining in thesample situations addressed by the HighestCourt in the Borja case. Herein, one of therequisites for the application of the three termrule is not present. Francis Ong might haveindeed fully served the mayoral terms of 1995to 1998; 1998 to 2001 and 2001 to 2004. Themayoral term however, from 1998 to 2001cannot be considered his because he was notduly elected thereto. The [RTC] of Daet,Camarines Norte, Branch 41 has voided hiselection for the 1998 term when it held, in itsdecision that Stanley Alegre was the "legallyelected mayor in the 1998 mayoraltyelection in San Vicente, Camarines Norte."This disposition had become final after the[COMELEC] dismissed the appeal filed by Ong,the case having become moot and academic.

xxx xxx xxx

On the basis of the words of the Highest Courtpronounced in the Lonzanida case andapplicable in the case at bench, Ong could notbe considered as having served as mayor from1998 to 2001 because "he was not duly electedto the post; he merely assumed office as a

presumptive winner; which presumption waslater overturned . . . when [the RTC] decidedwith finality that [he] lost in the May 1998elections." (Words in bracket and emphasis inthe original).

Undaunted, Alegre filed a timely motion for reconsideration,contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs.Comelec and Lonzanida vs. Comelec, infra .

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, aresolution 6 reversing the March 31, 2004 resolution of the COMELEC'sFirst Division and thereby (a) declaring Francis "as disqualified to run for mayor of San Vicente, Camarines Norte in the . . . May 10, 2004 ";

(b) ordering the deletion of Francis' name from the official list of candidates; and (c) directing the concerned board of electioninspectors not to count the votes cast in his favor.

The following day, May 8, Francis received a fax machine copy of theaforecited May 7, 2004 resolution, sending him posthaste to seek theassistance of his political party, the Nationalist People's Coalition,which immediately nominated his older brother, RommelOng (Rommel), as substitute candidate. At about 5:05 p.m. of thevery same day — which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for theposition of mayor, as substitute candidate for his brother Francis.

The following undisputed events then transpired:



























1.On May 9, 2004, or a day before the May 10 elections, Alegre fileda Petition to Deny Due Course to or Cancel Certificate of Rommel Ong.

2.Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed aletter 7 to Provincial Election Supervisor (PES) of Camarines Norte LizaZ. Cariño and Acting Election Officer Emily G. Basilonia in which heappealed that, owing to the COMELEC's inaction on Alegre's petition tocancel Rommel's certificate of candidacy, the name "Rommel Ong " beincluded in the official certified list of candidates for mayor of San

Vicente, Camarines Norte. The desired listing was granted by the PESCarino. SEcADa

3.On May 10, 2004, Alegre wrote 8 to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV and V,seeking clarification on the legality of the action thus taken by the PESCariño. Responding, Commissioner Garcillano issued a Memorandumunder date May 10, 2004 9 addressed to PES Liza D. Zabala-Cariño,ordering her to implement the resolution of the COMELEC en banc inSPA No. 04-048 promulgated on May 7, 2004. 10 Said Memorandumpartly stated:

The undersigned ADOPTS the recommendationof Atty. Alioden D. Dalaig [Director IV, LawDepartment], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In

the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course ," and elaborated furtherthat:

". . . there is an existing policy of theCommission not to include the nameof a substitute candidate in thecertified list of candidates unless thesubstitution is approved by theCommission.

In view, thereof, it is recommendedthat 1) the substitute certificate of candidacy of Rommel Ong Gan Ong,

should be denied due course; and 2)the election officer be directed todelete his name from the list of candidates."

The above position of the Commission was inline with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) whichstates:

"There can no valid substitutionwhere a candidate is excluded notonly by disqualification but also bydenial and cancellation of hiscertificate of candidacy."

In view thereof, you are hereby directed tofaithfully implement the said Resolution of theCommission En Banc in SPA No. 04-048promulgated on May 7, 2004. (Emphasis in theoriginal; words in bracket added].

4.Owing to the aforementioned Garcillano Memorandum, it wouldseem that the Chairman of the Municipal Board of Canvasser of San

Vicente issued an order enjoining all concerned not to canvass thevotes cast for Rommel, prompting the latter to file a protest with thatBoard. 11

5.On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente,Camarines Norte. 12

On May 12, 2004, Francis filed before the Court a petitionfor certiorari , presently docketed as G.R. No. 163295. His brotherRommel's petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R.No. 163295 and G.R. No. 163354 were consolidated. 13

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissingprivate respondent Alegre's Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong , for being moot andacademic. 14

The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuseof discretion amounting to lack or excess of jurisdiction in issuing its enbanc resolution dated May 7, 2004 declaring petitioner Francis asdisqualified to run for Mayor of San Vicente, Camarines Norte in theMay 10, 2004 elections and consequently ordering the deletion of hisname from the official list of candidates so that any vote cast in hisfavor shall be considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuseof discretion when it denied due course to Rommel's certificate of candidacy in the same mayoralty election as substitute for his brotherFrancis. cISAHT

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis's assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001should be considered as full service for the purpose of the three-termlimit rule.

Respondent COMELEC resolved the question in the affirmative.Petitioner Francis, on the other hand, disagrees. He argues that, whilehe indeed assumed office and discharged the duties as Mayor of San

Vicente for three consecutive terms, his proclamation as mayor-elect inthe May 1998 election was contested and eventually nullified per thedecision of the RTC of Daet, Camarines Norte dated July 4, 2001.Pressing the point, petitioner argues, citingLonzanida vs. Comelec 15 ,that a proclamation subsequently declared void is no proclamation atall and one assuming office on the strength of a protestedproclamation does so as a presumptive winner and subject to the finaloutcome of the election protest.

The three-term limit rule for elective local officials is found in Section8, Article X of the 1987 Constitution, which provides:

Sec. 8.The term of office of elective localofficials, except barangay officials, which shallbe determined by law, shall be three years andno such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuityof his service for the full term for which he waselected.

Section 43 (b) of the Local Government Code restates the same rule asfollows:

Sec. 43.Term of Office.







































xxx xxx xxx

(b)No local elective official shall serve for morethan three consecutive years in the sameposition. Voluntary renunciation of the office forany length of time shall not be considered aninterruption in the continuity of service for thefull term for which the elective officialconcerned was elected.

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

With the view we take of the case, the disqualifying requisites arepresent herein, thus effectively barring petitioner Francis from runningfor mayor of San Vicente, Camarines Norte in the May 10, 2004elections. There can be no dispute about petitioner Francis Ong havingbeen duly elected mayor of that municipality in the May 1995 andagain 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 hereincontroversy revolves around the 1998-2001 mayoral term, albeit therecan also be no quibbling that Francis ran for mayor of the samemunicipality in the May 1998 elections and actually served the 1998-

2001 mayoral term by virtue of a proclamation initially declaring himmayor-elect of the municipality of San Vicente. The question thatbegs to be addressed, therefore, is whether or not Francis'sassumption of office as Mayor of San Vicente, CamarinesNorte from July 1, 1998 to June 30, 2001, may be consideredas one full term service in the context of the consecutivethree-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 servedin contemplation of the three-term limit prescribed by theconstitutional and statutory provisions, supra , barring local electiveofficials from being elected and serving for more than threeconsecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election ProtestCase No. 6850, 17 that it was Francis' opponent (Alegre) who "won " inthe 1998 mayoralty race and, therefore, was the legally elected mayorof San Vicente. However, that disposition, it must be stressed, waswithout practical and legal use and value, having been promulgatedafter the term of the contested office has expired. Petitioner Francis'contention that he was only a presumptive winner in the 1998mayoralty derby as his proclamation was under protest did not makehim less than a duly elected mayor. His proclamation by the MunicipalBoard of Canvassers of San Vicente as the duly elected mayor in the1998 mayoralty election coupled by his assumption of office and hiscontinuous exercise of the functions thereof from start to finish of theterm, should legally be taken as service for a full term in contemplationof the three-term rule. EcAISC

The absurdity and the deleterious effect of a contrary view is not hardto discern. Such contrary view would mean that Alegre would — underthe three-term rule — be considered as having served a term by virtueof a veritably meaningless electoral protest ruling, when anotheractually served such term pursuant to a proclamation made in duecourse after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court'sruling in, Lonzanida vs. Comelec , 18 citing Borja vs. Comelec 19 .In Lonzanida , petitioner Lonzanida was elected and served for twoconsecutive terms as mayor of San Antonio, Zambales prior to the May8, 1995 elections. He then ran again for the same position in the May1995 elections, won and discharged his duties as Mayor. However, hisopponent contested his proclamation and filed an election protestbefore the RTC of Zambales, which, in a decision dated January 9,

1997, ruled that there was a failure of elections and declared theposition vacant. The COMELEC affirmed this ruling and petitionerLonzanida acceded to the order to vacate the post. Lonzanida assumedthe office and performed his duties up to March 1998 only. Now,during the May 1998 elections, Lonzanida again ran for mayor of thesame town. A petition to disqualify, under the three-term rule, wasfiled and was eventually granted. There, the Court held that Lonzanidacannot be considered as having been duly elected to the post in theMay 1995 election, and that he did not fully serve the 1995-1998mayoralty term by reason of involuntary relinquishment of office. Asthe Court pointedly observed, Lonzanida "cannot be deemed to haveserved 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 onceapparent. For one, in Lonzanida , the result of the mayoralty electionwas declared a nullity for the stated reason of "failure of election ",and, as a consequence thereof, the proclamation of Lonzanida asmayor-elect was nullified, followed by an order for him to vacate theoffice of mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from officeas a result of legal processes. In fine, there was an effectiveinterruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in thepresent case. But more importantly, here, there was actually nointerruption or break in the continuity of Francis' service respecting the1998-2001 term. Unlike Lonzanida, Francis was never unseated duringthe term in question; he never ceased discharging his duties andresponsibilities as mayor of San Vicente, Camarines Norte for theentire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in theMay 10, 2004 elections for the mayoralty post of San Vicente anddenying due course to his certificate of candidacy by force of theconstitutional and statutory provisions regarding the three-term limitrule for any local elective official cannot be sustained. What theCOMELEC en banc said in its May 7, 2004 assailed Resolutioncommends itself for concurrence:

As correctly pointed out by Petitioner-Movant[Alegre]in applying the ruling inthe Borja and Lonzanidacases in the instantpetition will be erroneous because the factualmilieu in those cases is different from the oneobtaining here. Explicitly, the three-term limitwas not made applicable in the casesof Borja and Lonzanida because there was aninterruption in the continuity of service of thethree consecutive terms. Here, Respondent Ongwould have served continuously for threeconsecutive terms, from 1995 to 2004. His fullterm from 1998 to 2001 could not be simplydiscounted on the basis that he was not dulyelected thereto on account of void proclamationbecause it would have iniquitous effects

producing outright injustice and inequality as itrewards a legally disqualified and repudiatedloser with a crown of victory. (Word in bracketadded; emphasis in the original)

Given the foregoing consideration, the question of whether or not thenCommissioner Virgilio Garcillano overstepped his discretion when heissued the May 10, 2004 Memorandum, ordering the implementationof aforesaid May 7, 2004 COMELEC en banc resolution even before itsfinality 20 is now of little moment and need not detain us anylonger. HCTDIS

Just as unmeritorious as Francis' petition in G.R. No. 163295 isRommel's petition in G.R. No. 163354 in which he (Rommel)























challenges the COMELEC's act of not including his name as a substitutecandidate in the official list of candidates for the May 10, 2004elections. As it were, existing COMELEC policy 21provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution.

Not to be overlooked is the Court's holding in Miranda vs. Abaya , 22 that a candidate whose certificate of candidacy has beencancelled or not given due course cannot be substituted by anotherbelonging to the same political party as that of the former, thus:

While there is no dispute as to whether or not anominee of a registered or accredited politicalparty may substitute for a candidate of thesame party who had been disqualified for anycause, this does not include those cases wherethe certificate of candidacy of the person to besubstituted had been denied due course andcancelled under Section 78 of the Code.

Expressio unius est exclusio alterius . While thelaw enumerated the occasions where acandidate may be validly substituted, there isno mention of the case where a candidate isexcluded not only by disqualification but also bydenial and cancellation of his certificate of candidacy. Under the foregoing rule, there canbe no valid substitution for the latter case,much in the same way that a nuisancecandidate whose certificate of candidacy isdenied due course and/or cancelled may not besubstituted. If the intent of the lawmakers wereotherwise, they could have so easily andconveniently included those persons whosecertificates of candidacy have been denied duecourse and/or cancelled under the provisions of Section 78 of the Code.

xxx xxx xxx

A person without a valid certificate of candidacycannot be considered a candidate in much thesame way as any person who has not filed anycertificate of candidacy at all can not, by anystretch of the imagination, be a candidate at all.

xxx xxx xxx

After having considered the importance of acertificate of candidacy, it can be readilyunderstood why in Bautista [Bautista vs.Comelec , G.R. No. 133840, November 13, 1998]we ruled that a person with a cancelled

certificate is no candidate at all. Applying thisprinciple to the case at bar and considering thatSection 77 of the Code is clear and unequivocalthat only an official candidate of a registered oraccredited party may be substituted, theredemonstrably cannot be any possiblesubstitution of a person whose certificate of candidacy has been cancelled and denied duecourse.

In any event, with the hard reality that the May 10, 2004 electionswere already passé , Rommel Ong's petition in G.R. No. 163354 isalready moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed enbanc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.











EN BANC

[G.R. No. 154829. December 10, 2003.]

ARSENIO A. LATASA, petitioner , vs .COMMISSION ON ELECTIONS, andROMEO 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.

SYNOPSIS

Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and 1998. Duringpetitioner's third term, the Municipality of Digos was declared acomponent 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 consecutiveterms as mayor of the Municipality of Digos, and is now running forthe first time for the position of city mayor. Private respondent RomeoM. Sunga, also a candidate for city mayor in the said elections, filedbefore the Commission on Elections (COMELEC) a Petition to Deny DueCourse, Cancel Certificate of Candidacy and/or For Disqualificationagainst petitioner Latasa. Respondent Sunga alleged that petitionerfalsely represented in his certificate of candidacy that he is eligible torun as mayor of Digos City since he had already been elected andserved for three consecutive terms as mayor from 1992 to 2001. TheCOMELEC's First Division issued a Resolution canceling petitioner'scertificate of candidacy for being in violation of the three (3)-term ruleproscribed by the 1987 Constitution and the Local Government Code of 1991. Petitioner filed his Motion for Reconsideration which remainedunacted 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 denyingpetitioner's Motion for Reconsideration. Hence, the present petition.

The Supreme Court dismissed the petition. According to the Court, thefact that the new city acquired a new corporate existence separate anddistinct from that of the municipality does not mean that for thepurpose of applying Article X, Section 8 of the Constitution, the officeof the municipal mayor would now be construed as a different localgovernment 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 asthose in the city. The inhabitants are the same group of voters whoelected petitioner Latasa to be their municipal mayor for threeconsecutive terms. They are also the same inhabitants over whom he

held power and authority as their chief executive for nine years. TheCourt also stressed that the framers of the Constitution specificallyincluded an exception to the people's freedom to choose those whowill govern them in order to avoid the evil of a single personaccumulating excessive power over a particular territorial jurisdictionas a result of a prolonged stay in the same office. To allow petitionerLatasa to vie for the position of city mayor after having served forthree consecutive terms as a municipal mayor would obviously defeatthe very intent of the framers when they wrote this exception. Shouldhe 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 atotal of eighteen consecutive years which is the very scenario soughtto be avoided by the Constitution, if not abhorred by it.

SYLLABUS

1.POLITICAL LAW; LOCAL GOVERNMENT; THE FACT THAT THE NEWCITY ACQUIRED A NEW CORPORATE EXISTENCE SEPARATE ANDDISTINCT FROM THAT OF A MUNICIPALITY DOES NOT MEAN THATFOR THE PURPOSE OF APPLYING ARTICLE. X, SECTION 8 OF THECONSTITUTION, THE OFFICE OF THE MUNICIPAL MAYOR WOULDNOW BE CONSTRUED AS A DIFFERENT LOCAL GOVERNMENT POST

AS THAT OF THE CITY MAYOR. — The Court notes that the delineationof the metes and bounds of the City of Digos did not change even byan 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 electionswere held for the new city officials. True, the new city acquired a newcorporate existence separate and distinct from that of the municipalityThis does not mean, however, that for the purpose of applying thesubject Constitutional provision, the office of the municipal mayorwould now be construed as a different local government post as thatof 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 asthose in the city. These inhabitants are the same group of voters whoelected petitioner Latasa to be their municipal mayor for threeconsecutive terms. These are also the same inhabitants over whom heheld power and authority as their chief executive for nine years.

2.ID.; ID.; ALTHOUGH THERE WERE CHANGES IN THE POLITICAL AND ECONOMIC RIGHTS OF THE CITY OF DIGOS, NO SUBSTANTIALCHANGE OCCURRED AS TO PETITIONER'S AUTHORITY AS CHIEFEXECUTIVE OVER THE INHABITANTS THEREOF. — In Borja , theprivate respondent therein, before he assumed the position of mayor,first served as the vice-mayor of his local government unit. The natureof the responsibilities and duties of the vice-mayor is wholly differentfrom 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 acity, continued to hold office as chief executive of the same territorial

jurisdiction. There were changes in the political and economic rights ofDigos as local government unit, but no substantial change occurred asto petitioner's authority as chief executive over the inhabitants of Digos. caIETS

3.ID.; ID.; PETITIONER NEVER CEASED FROM ACTING AS CHIEFEXECUTIVE OF THE LOCAL GOVERNMENT UNIT AND FROMDISCHARGING HIS DUTIES AND RESPONSIBILITIES. — In the presentcase, petitioner Latasa was, without a doubt, duly elected as mayor inthe May 1998 elections. Can he then be construed as havinginvoluntarily relinquished his office by reason of the conversion of Digos from municipality to city? This Court believes that he didinvoluntarily relinquish his office as municipal mayor since the saidoffice has been deemed abolished due to the conversion. However, thevery instant he vacated his office as municipal mayor, he also assumedoffice as city mayor. Unlike in Lonzanida , where petitioner therein, foreven just a short period of time, stepped down from office, petitionerLatasa never ceased from acting as chief executive of the localgovernment unit. He never ceased from discharging his duties andresponsibilities as chief executive of Digos. HCEaDI

4.ID.; ID.; THE LAW CONTEMPLATES A REST PERIOD DURING WHICHTHE LOCAL ELECTIVE OFFICIAL STEPS DOWN FROM OFFICE ANDCEASES TO EXERCISE POWER OR AUTHORITY OVER THEINHABITANTS OF THE TERRITORIAL JURISDICTION OF APARTICULAR LOCAL GOVERNMENT UNIT. — It is evident that in theabove mentioned cases, there exists a rest period or a break in theservice of the local elective official. In Lonzanida , petitioner thereinwas a private citizen a few months before the next mayoral elections.Similarly, in Adormeo and Socrates , the private respondents thereinlived as private citizens for two years and fifteen months respectively.Indeed, the law contemplates a rest period during which the localelective official steps down from office and ceases to exercise power orauthority over the inhabitants of the territorial jurisdiction of aparticular local government unit. This Court reiterates that the framers



of the Constitution specifically included an exception to the people'sfreedom to choose those who will govern them in order to avoid theevil of a single person accumulating excessive power over a particularterritorial jurisdiction as a result of a prolonged stay in the same office.To allow petitioner Latasa to vie for the position of city mayor afterhaving served for three consecutive terms as a municipal mayor wouldobviously defeat the very intent of the framers when they wrote thisexception. Should he be allowed another three consecutive terms asmayor of the City of Digos, petitioner would then be possibly holdingoffice as chief executive over the same territorial jurisdiction andinhabitants for a total of eighteen consecutive years. This is the veryscenario sought to be avoided by the Constitution, if not abhorred byit. TCIHSa

5.ID.; ELECTION LAWS; THE FACT THAT A PLURALITY OR AMAJORITY 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 NOTENTITLE THE CANDIDATE WHO GARNERED THE SECOND HIGHESTNUMBER OF VOTES TO BE DECLARED ELECTED. — Respondent Sungaclaims that applying the principle in Labo v. COMELEC , he should bedeemed the mayoralty candidate with the highest number of votes. Onthe contrary, this Court held in Labo that the disqualification of awinning candidate does not necessarily entitle the candidate with thehighest number of votes to proclamation as the winner of theelections. As an obiter, the Court merely mentioned that the rule wouldhave been different if the electorate, fully aware in fact and in law of a

candidate's disqualification so as to bring such awareness within therealm of notoriety, would nonetheless cast their votes in favor of theineligible candidate. In such case, the electorate may be said to havewaived the validity and efficacy of their votes by notoriouslymisapplying their franchise or throwing away their votes, in whichcase, the eligible candidate obtaining the next higher number of votesmay be deemed elected. The same, however, cannot be said of thepresent case. This Court has consistently ruled that the fact that aplurality or a majority of the votes are cast for an ineligible candidateat a popular election, or that a candidate is later declared to bedisqualified to hold office, does not entitle the candidate who garneredthe second highest number of votes to be declared elected. The samemerely results in making the winning candidate's election a nullity. Inthe present case, moreover, 13,650 votes were cast for privaterespondent Sunga as against the 25,335 votes cast for petitionerLatasa. The second placer is obviously not the choice of the people in

that particular election. In any event, a permanent vacancy in thecontested office is thereby created which should be filled bysuccession.

D E C I S I O N

AZCUNA, J p:

This is a petition for certiorari under Rule 65 of the Rules of Courtwhich seeks to challenge the resolution issued by the First Division of the Commission on Elections (COMELEC) dated April 27, 2001 in SPACase 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. Theassailed Resolution denied due course to the certificate of candidacy of petitioner Arsenio A. Latasa, declaring him disqualified to run formayor of Digos City, Davao del Sur Province in the May 14, 2001elections, ordering that all votes cast in his favor shall not be counted,and if he has been proclaimed winner, declaring said proclamation nulland void.

The 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. Duringpetitioner's third term, the Municipality of Digos was declared acomponent city, to be known as the City of Digos. A plebisciteconducted on September 8, 2000 ratified Republic Act No. 8798entitled, " An Act Converting the Municipality of Digos, Davao del Sur Province into a Component City to be known as the City of Digos " orthe 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 toserve 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 forcity mayor for the May 14, 2001 elections. He stated therein that he iseligible therefor, and likewise disclosed that he had already served forthree consecutive terms as mayor of the Municipality of Digos and isnow running for the first time for the position of city mayor.

On March 1, 2001, private respondent Romeo M. Sunga, also acandidate for city mayor in the said elections, filed before theCOMELEC 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 inhis certificate of candidacy that he is eligible to run as mayor of DigosCity since petitioner had already been elected and served for threeconsecutive terms as mayor from 1992 to 2001.

On March 5, 2001, petitioner Latasa filed his Answer, 2 arguing that hedid not make any false representation in his certificate of candidacysince he fully disclosed therein that he had served as mayor of theMunicipality of Digos for three consecutive terms. Moreover, he arguedthat this fact does not bar him from filing a certificate of candidacy forthe May 14, 2001 elections since this will be the first time that he willbe 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 aResolution, the dispositive portion of which reads, as follows:

Wherefore , premises considered, therespondent's certificate of candidacy should becancelled for being a violation of the three (3)-term rule proscribed by the 1987 Constitutionand 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 ExParte Motion for Issuance of Temporary Restraining Order Enjoiningthe City Board of Canvassers From Canvassing or TabulatingRespondent's Votes, and From Proclaiming Him as the Duly ElectedMayor if He Wins the Elections. 6 Despite this, however, petitionerLatasa was still proclaimed winner on May 17, 2001, having garneredthe most number of votes. Consequently, private respondent Sunga

filed, on May 27, 2001, a Supplemental Motion 7 which essentiallysought the annulment of petitioner's proclamation and the suspensionof its effects.

On July 1, 2001, petitioner was sworn into and assumed his office asthe newly elected mayor of Digos City. It was only on August 27, 2002that the COMELEC en banc issued a Resolution denying petitioner'sMotion for Reconsideration.

Hence, this petition.

It cannot be denied that the Court has previously held in Mamba-Perezv . COMELEC 8 that after an elective official has been proclaimed aswinner of the elections, the COMELEC has no jurisdiction to pass upon

































his qualifications. An opposing party's remedies after proclamationwould be to file a petition forquo warranto within ten days after theproclamation. IDTSaC

On the other hand, certain peculiarities in the present case reveal thefact that its very heart is something which this Court considers of paramount interest. This Court notes from the very beginning thatpetitioner himself was already entertaining some doubt as to whetheror not he is indeed eligible to run for city mayor in the May 14, 2001elections. In his certificate of candidacy, after the phrase "I ameligible," petitioner inserted a footnote and indicated:

*Having served three (3) term[s] as municipalmayor and now running for the first time as citymayor. 9

Time and again, this Court has held that rules of procedure are onlytools designed to facilitate the attainment of justice, such that whenrigid application of the rules tend to frustrate rather than promotesubstantial justice, this Court is empowered to suspend their operation.We will not hesitate to set aside technicalities in favor of what is fairand just. 10

The spirit embodied in a Constitutional provision must not beattenuated by a rigid application of procedural rules.

The present case raises a novel issue with respect to an explicitConstitutional mandate: whether or not petitioner Latasa is eligible torun as candidate for the position of mayor of the newly-created City of Digos immediately after he served for three consecutive terms asmayor of the Municipality of Digos.

As a rule, in a representative democracy, the people should be allowedfreely to choose those who will govern them. Article X, Section 8 of theConstitution 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 localofficials, except barangay officials, which shallbe determined by law, shall be three years and

no such official shall serve for more than threeconsecutive terms. Voluntary renunciation of the office for any length of time shall not beconsidered as an interruption in the continuityof his service for the full term for which he waselected.

An examination of the historical background of the subjectConstitutional provision reveals that the members of the ConstitutionalCommission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolizationof political power. In fact, they rejected a proposal set forth byCommissioner Edmundo Garcia that after serving three consecutiveterms or nine years, there should be no further reelection for local andlegislative officials. 11 The members, instead, adopted the alternative

proposal of Commissioner Christian Monsod that such officials besimply barred from running for the same position in the succeedingelection following the expiration of the third consecutive term:

MR. MONSOD : Madam President, I wasreflecting on this issue earlier and I asked tospeak because in this draft Constitution, we arerecognizing people's power. We have said thatnow there is a new awareness, a new kind of voter, a new kind of Filipino. And yet at thesame time, we are prescreening candidatesamong whom they will choose. We are sayingthat this 48-member Constitutional Commissionhas decreed that those who have served for a

period of nine years are barred from running forthe same position.

The argument is that there may be otherpositions. But there are some people who arevery skilled and good at legislation, and yet arenot of a national stature to be Senators. Theymay be perfectly honest, perfectly competentand with integrity. They get voted into office atthe age of 25, which is the age we provide forCongressmen. And at 34 years old we put them

into pasture.

Second, we say that we want to broaden thechoices of the people. We are talking here onlyof congressional or senatorial seats. We want tobroaden the people's choice but we are makingprejudgment today because we exclude acertain number of people. We are, in effect,putting an additional qualification for office — that the officials must have not have served atotal of more than a number of years in theirlifetime.

Third, we are saying that by putting people topasture, we are creating a reserve of

statesmen, but the future participation of thesestatesmen is limited. Their skills may be only insome areas, but we are saying that they aregoing to be barred from running for the sameposition.

Madam President, the ability and capacity of astatesman depend as well on the day-to-dayhoning of his skills and competence, inintellectual combat, in concern and contact withthe people, and here we are saying that he isgoing to be barred from the same kind of publicservice.

I do not think it is in our place today to make

such a very important and momentous decisionwith respect to many of our countrymen in thefuture 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 thesepeople do not set up structures that willperpetuate them, then let us give them this restperiod of three years or whatever it is. Maybeduring that time, we would even agree thattheir fathers or mothers or relatives of thesecond degree should not run. But let us notbar them for life after serving the public fornumber of years. 12

The framers of the Constitution, by including this exception, wanted toestablish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Oplestated during the deliberations:

. . . I think we want to prevent future situationswhere, as a result of continuous service andfrequent re-elections, officials from thePresident down to the municipal mayor tend todevelop a proprietary interest in their positionsand to accumulate these powers and perquisitesthat permit them to stay on indefinitely or to


















transfer these posts to members of theirfamilies in a subsequent election. . . . 13

An elective local official, therefore, is not barred from running again infor same local government post, unless two conditions concur: 1.) thatthe official concerned has been elected for three consecutive terms tothe same local government post, and 2.) that he has fully served threeconsecutive terms. 14

In the present case, petitioner states that a city and a municipalityhave separate and distinct personalities. Thus they cannot be treatedas a single entity and must be accorded different treatment consistentwith specific provisions of the Local Government Code. He does notdeny the fact that he has already served for three consecutive termsas municipal mayor. However, he asserts that when Digos wasconverted from a municipality to a city, it attained a different juridicalpersonality. Therefore, when he filed his certificate of candidacy forcity mayor, he cannot be construed as vying for the same localgovernment post.

For a municipality to be converted into a city, the Local GovernmentCode provides:

SECTION 450 .Requisites for Creation . — (a) Amunicipality or a cluster of barangays may beconverted into a component city it has anaverage annual income, as certified by theDepartment of Finance, of at least Twentymillion pesos (P20,000,000.00) for the last two(2) consecutive years based on 1991 constantprizes, and if it has either of the followingrequisites:

(i)a contiguous territory of at leastone hundred (100) square kilometers,as certified by the Land ManagementBureau; or,

(ii)a population of not less than onehundred fifty thousand (150,000)inhabitants, as certified by theNational Statistics Office.

Provided , That, the creation thereof shall notreduce the land area, population, and income of the original unit or units at the time of saidcreation to less than the minimum requirementsprescribed herein. AECDHS

(b)The territorial jurisdiction of a newly-createdcity shall be properly identified by metes andbounds. The requirement on land are shall notapply where the city proposed to be created iscomposed of one (1) or more island. Theterritory need not be contiguous if it comprises

two (2) or more islands.

(c)The average annual income shall include theincome accruing to the general fund, exclusiveof special funds, transfers, and non-recurringincome. 15

Substantial differences do exist between a municipality and a city. Forone, there is a material change in the political and economic rights of the local government unit when it is converted from a municipality to acity and undoubtedly, these changes affect the people as well. 16 It isprecisely for this reason why Section 10, Article X of the Constitutionmandates that no province, city, municipality, or barangay may becreated, divided, merged, abolished, or its boundary substantially

altered, without the approval by a majority of the votes cast in aplebiscite in the political units directly affected.

As may be gleaned from the Local Government Code, the creation orconversion of a local government unit is done mainly to help assure itseconomic viability. Such creation or conversion is based on verifiedindicators:

Section 7 .Creation and Conversion . — As ageneral rule, the creation of a local governmentunit or its conversion from one level to anothershall be based on verifiable indicators orviability and projected capacity to provideservices, to wit:

(a)Income. — It must be sufficient,based on acceptable standards, toprovide for all essential governmentfacilities and services and specialfunctions commensurate with the sizeof its population, as expected of thelocal government unit concerned;

(b)Population. — It shall bedetermined as the total number of inhabitants within the territorial

jurisdiction of the local governmentunit concerned; and

(c)Land Area. — It must becontiguous, unless it comprises two(2) or more islands or is separated bya local government unit independentof the others; properly identified bymetes and bounds with technicaldescriptions; and sufficient to providefor such basic services and facilities tomeet the requirements of itspopulace.

Compliance with the foregoing indicators shallbe attested to by the Department of Finance(DOF), the National Statistics Office (NSO), andthe Lands Management Bureau (LMB) of theDepartment of Environment and NaturalResources (DENR). 17

On the other hand, Section 2 of the Charter of the City of Digosprovides:

Section 2 .The City of Digos . — The Municipalityof Digos shall be converted into a componentcity to be known as the City of Digos,hereinafter referred to as the City, which shallcomprise the present territory of the

Municipality of Digos, Davao del Sur Province.The territorial jurisdiction of the City shall bewithin the present metes and bounds of theMunicipality of Digos. . . .

Moreover, Section 53 of the said Charter further states:

Section 53 .Officials of the City of Digos . — Thepresent elective officials of the Municipality of Digos shall continue to exercise their powersand functions until such a time that a newelection is held and the duly-elected officialsshall have already qualified and assumed theiroffices. . . . .























As seen in the aforementioned provisions, this Court notes that thedelineation of the metes and bounds of the City of Digos did notchange even by an inch the land area previously covered by theMunicipality of Digos. This Court also notes that the elective officials of the Municipality of Digos continued to exercise their powers andfunctions until elections were held for the new city officials.

True, the new city acquired a new corporate existence separate anddistinct 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 thesame as that of the municipality. Consequently, the inhabitants of themunicipality are the same as those in the city. These inhabitants arethe same group of voters who elected petitioner Latasa to be theirmunicipal mayor for three consecutive terms. These are also the sameinhabitants over whom he held power and authority as their chief executive for nine years.

This Court must distinguish the present case from previous cases ruledupon 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 theremainder 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 theConstitution. Private respondent in that case was first elected as vice-mayor, but upon the death of the incumbent mayor, he occupied thelatter's post for the unexpired term. He was, thereafter, elected fortwo more terms. This Court therein held that when private respondentoccupied the post of the mayor upon the incumbent's death andserved for the remainder of the term, he cannot be construed ashaving served a full term as contemplated under the subjectconstitutional provision. The term served must be one "for which [theofficial 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 responsibilitiesand duties of the vice-mayor is wholly different from that of the

mayor. The vice-mayor does not hold office as chief executive over hislocal government unit. In the present case, petitioner, upon ratificationof the law converting the municipality to a city, continued to holdoffice as chief executive of the same territorial jurisdiction. There werechanges in the political and economic rights of Digos as localgovernment unit, but no substantial change occurred as to petitioner'sauthority as chief executive over the inhabitants of Digos.

In Lonzanida v . COMELEC, 19 petitioner was elected and served twoconsecutive terms as mayor from 1988 to 1995. He then ran again forthe same position in the May 1995 elections, won and discharged hisduties as mayor. However, his opponent contested his proclamationand filed an election protest before the Regional Trial Court, whichruled that there was a failure of elections and declared the position of mayor vacant. The COMELEC affirmed this ruling and petitioneracceded to the order to vacate the post. During the May 1998

elections, petitioner therein again filed his certificate of candidacy formayor. A petition to disqualify him was filed on the ground that he hadalready served three consecutive terms. This Court ruled, however,that petitioner therein cannot be considered as having been dulyelected to the post in the May 1995 elections, and that said petitionerdid 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, dulyelected as mayor in the May 1998 elections. Can he then be construedas having involuntarily relinquished his office by reason of theconversion of Digos from municipality to city? This Court believes thathe did involuntarily relinquish his office as municipal mayor since thesaid office has been deemed abolished due to the conversion.

However, the very instant he vacated his office as municipal mayor, healso assumed office as city mayor. Unlike in Lonzanida , wherepetitioner therein, for even just a short period of time, stepped downfrom office, petitioner Latasa never ceased from acting as chief executive of the local government unit. He never ceased fromdischarging his duties and responsibilities as chief executive of Digos.

In Adormeo v . COMELEC, 20 this Court was confronted with the issueof whether or not an assumption to office through a recall electionshould be considered as one term in applying the three-term limit rule.Private respondent, in that case, was elected and served for twoconsecutive terms as mayor. He then ran for his third term in the May1998 elections, but lost to his opponent. In June 1998, his opponentfaced recall proceedings and in the recall elections of May 2000,private respondent won and served for the unexpired term. For theMay 2001 elections, private respondent filed his certificate of candidacy for the office of mayor. This was questioned on the groundthat he had already served as mayor for three consecutive terms. ThisCourt held therein that private respondent cannot be construed ashaving been elected and served for three consecutive terms. His loss inthe May 1998 elections was considered by this Court as an interruptionin the continuity of his service as mayor. For nearly two years, privaterespondent therein lived as a private citizen. The same, however,cannot be said of petitioner Latasa in the present case. IAETSC

Finally, in Socrates v . COMELEC, 21 the principal issue was whether ornot private respondent Edward M. Hagedorn was qualified to runduring the recall elections. Therein respondent Hagedorn had alreadyserved for three consecutive terms as mayor from 1992 until 2001 anddid not run in the immediately following regular elections. On July 2,2002, the barangay officials of Puerto Princesa convened themselvesinto a Preparatory Recall Assembly to initiate the recall of theincumbent mayor, Victorino Dennis M. Socrates. On August 23, 2002,respondent Hagedorn filed his certificate of candidacy for mayor in therecall election. A petition for his disqualification was filed on theground that he cannot run for the said post during the recall electionsfor he was disqualified from running for a fourth consecutive term.This Court, however, ruled in favor of respondent Hagedorn, holdingthat the principle behind the three-term limit rule is to preventconsecutiveness of the service of terms, and that there was in his case

a break in such consecutiveness after the end of his third term andbefore the recall election.

It is evident that in the abovementioned cases, there exists a restperiod or a break in the service of the local elective official.In Lonzanida , petitioner therein was a private citizen a few monthsbefore the next mayoral elections. Similarly, in Adormeo and Socrates ,the private respondents therein lived as private citizens for two yearsand fifteen months respectively. Indeed, the law contemplates a restperiod during which the local elective official steps down from officeand ceases to exercise power or authority over the inhabitants of theterritorial jurisdiction of a particular local government unit.

This Court reiterates that the framers of the Constitution specificallyincluded an exception to the people's freedom to choose those who

will govern them in order to avoid the evil of a single personaccumulating excessive power over a particular territorial jurisdictionas a result of a prolonged stay in the same office. To allow petitionerLatasa to vie for the position of city mayor after having served forthree consecutive terms as a municipal mayor would obviously defeatthe very intent of the framers when they wrote this exception. Shouldhe be allowed another three consecutive terms as mayor of the City ofDigos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for atotal of eighteenconsecutive years. This is the very scenario sought tobe 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 heldin Labo that the disqualification of a winning candidate does notnecessarily entitle the candidate with the highest number of votes toproclamation as the winner of the elections. As an obiter, the Courtmerely mentioned that the rule would have been different if theelectorate, fully aware in fact and in law of a candidate'sdisqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligiblecandidate. In such case, the electorate may be said to have waived thevalidity and efficacy of their votes by notoriously misapplying theirfranchise or throwing away their votes, in which case, the eligiblecandidate obtaining the next higher number of votes may be deemedelected. The same, however, cannot be said of the present case.

This Court has consistently ruled that the fact that a plurality or amajority of the votes are cast for an ineligible candidate at a popularelection, or that a candidate is later declared to be disqualified to holdoffice, does not entitle the candidate who garnered the second highestnumber of votes to be declared elected. The same merely results inmaking the winning candidate's election a nullity. 23 In the presentcase, moreover, 13,650 votes were cast for private respondent Sungaas against the 25,335 votes cast for petitioner Latasa. 24 The secondplacer is obviously not the choice of the people in that particularelection. In any event, a permanent vacancy in the contested office isthereby created which should be filled by succession. 25

WHEREFORE, the petition is DISMISSED. No pronouncement as tocosts.

SO ORDERED.











Documents

Rules on Candidacy cases.docx