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Elective Officials
Qualification & Elections
Members of Sanggunian

Hermie Herrera et al. vs. COMELEC ( Under R.A. 7166 and Comelec Resolution No.
2313, the basis for division into districts shall be the number of inhabitants of the
province concerned and not the number of listed or registered voters as theorized
upon by petitioners )
G.R. No. 131499. November 17, 1999
PURISIMA, J. En Banc

Facts:
In view of the addition of the two (2) new municipalities, San Lorenzo and Sibunag, to the
Province of Guimaras, the Sangguniang Panlalawigan of Guimaras decided to have the
province subdivided into two provincial districts. Conformably, on March 25, 1996, it
passed Reso 68 requesting COMELEC to bring about the desired division.

Acting upon the said Reso Provincial Election Supervisor in the Province of Guimaras
conducted two consultative meetings on August 21,1996 and on October 2 of same year
with due notice to all elected provincial and municipal officials, barangay captains, barangay
kagawads, representatives of all political parties, and other interested parties.

Through secret balloting, a consensus was reached unanimously in favor of a division as

follows:

1. First District shall be composed of the Municipalities of Jordan Buenavista and San Diego with three
(3) Sangguniang Panlalawigan Members, and

2. The Second District shall be composed of the Municipalities of Jordan, Nueva Valencia and Sibunag
with three (3) Sangguniang Panlalawigan Members.

guided by the result of the consultative meetings, the Provincial Election Supervisor issued a
Memorandum recommending the division of the Province of Guimaras into (2) provincial
districts. On April 30, 1997, the Bureau of Local Government Finance of DOF ssued Memo
Circular 97-1 reclassifying several provinces including the Province of Guimaras, which was
reclassified from fifth class to fourth class province.

In line with such reclassification, the COMELEC issued, on November 3, 1997, the Reso 50
under attack, which allotted 8 Sangguniang Panlalawigan seats to the Province of Guimaras,
dividing it into two provincial districts

LGC as amended RA 8553

(b) The regular members of the sangguniang panlalawigan, sangguniang

panlungsod, and sangguniang bayan shall be elected by district as follows:
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"First and second-class provinces shall have ten (10) regular members; third and
fourth-class provinces, eight (8); and fifth and sixth-class provinces,

Reso 50 of COMELEC is the subject of the present Petition for Certiorari brought by
the petitioners, as taxpayers and residents of the Province of Guimaras.

Corollarily, COMELEC also promulgated Reso 31 which provides the rules and guidelines
for the apportionment by district of members of the Sangguniang Panlalawigan in
provinces with only one legislative district and Sangguniang Bayan of municipalities in
the Metro Manila area. The said Resolution provides, among others, that for provinces with
only one (1) legislative district:

a) The province shall be divided into two (2) Sanggunian districts for provincial
representation, as nearly as practicable according to the number of inhabitants based on the
1990 census of population.

Petitioners aver that the apportionment of the Province of Guimaras into two districts is not
equitable due to disproportionate representation. It is claimed that the districting embodied in
Resolution No. 2950 results in a disparity of representation in that, in the first district, there is
a ratio of one board member per 18,739 voters while in the second district, the ratio is one
board member per 14, 050 voters.

Issue:
1st Issue: Whether apportionment of the Province of Guimaras into two districts is not
equitable due to disproportionate representation?

2nd Issue: Whether municipalities be comprise each district a compact, contiguous and
adjacent area.

Held: 1st Issue NO.

Petitioners contention is untenable

Under R.A. 7166 and Comelec Resolution No. 2313, the basis for division into districts shall
be number of inhabitants of the province
the

concerned and not the number of listed or registered voters as theorized upon
by petitioners.

Thus, Comelec did not act with grave abuse of discretion in issuing the assailed Resolution
because clearly, the basis for the districting is the number of inhabitants of the Province of
Guimaras by municipality based on the official 1995 Census of Population as certified to by
Tomas P. Africa, Administrator of the National Statistics Office.
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Finally, petitioners maintain that the Comelec committed grave abuse of discretion when it
issued Resolution No. 2950 because thereunder, the municipalities which comprise each
district do not embrace a compact, contiguous and adjacent area.

2nd Issue: Whether municipalities which comprise each district do not embrace a
compact, contiguous and adjacent area.

Held: NO!

Petitioners asseveration is equally erroneous.

Under Comelec Resolution No. 2950, the towns of

Buenavista and
San Lorenzo were grouped together to form the first district and

the second district is composed of the municipalities of

Jordan,
Nueva Valencia and
Sibunag.

R.A. 7166 requires that each district must cover a compact, contiguous and adjacent
territory. Contiguous and/or adjacent means adjoining, nearby, abutting, having a common
border, connected, and/or touching along boundaries often for considerable distances.

Not even a close perusal of the map of the Province of Guimaras is necessary to defeat
petitioners stance. On its face, the map of Guimaras indicates that the municipalities of
Buenavista and San Lorenzo are adjacent or contiguous.

They touch along boundaries and are connected throughout by a common border.
Buenavista is at the northern part of Guimaras while San Lorenzo is at the east portion of the
province.

It would be different if the towns grouped together to form one district were Buenavista and
Nueva Valencia or Buenavista and Sibunag. In that case, the districting would clearly be
without any basis because these towns are not contiguous or adjacent. Buenavista is at the
north while Nueva Valencia and Sibunag are at the southern and southeastern part of the
province, respectively.

Premises studiedly considered in proper perspective, the Court is of the irresistible

conclusion, and so finds, that the respondent Comelec did not gravely abuse its discretion
when it issued Resolution No. 2950.

WHEREFORE, for lack of merit the petition under consideration is hereby DISMISSED. No
pronouncement as to costs
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Qualitfications

Victorino Salcedo vs. COMELEC & Ermelita Salcedo ( Ermelita married Neptali and the
latter has a valid subsisting Marriage; Ermelita stated in her C.O.C her last name as
Consequently, the use by
Salcedo; Her marriage with Neptali null and void;
the respondent of the surname Salcedo constitutes material
misrepresentation and is a ground for the cancellation of her
certificate of candidacy. )
G.R. No. 135886. August 16, 1999
GONZAGA-REYES, J. En Banc

Facts:
On February 18, 1968, Neptali P. Salcedo married Agnes Celiz. Without his first marriage
having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in
a civil ceremony held on September 21, 1986. Two days later, on September 23, 1986,
Ermelita Cacao contracted another marriage with a certain Jesus Aguirre, as shown by
a marriage certificate filed with the Office of the Civil Registrar.

Petitioner Victorino Salcedo II and private respondent Ermelita Cacao Salcedo both ran
for the position of mayor of the municipality of Sara, Iloilo in the May 11,
1998 elections, both of them having filed their respective certificates of candidacy on March
27, 1998. However, on April 17, 1998, petitioner filed with the Comelec a petition
seeking the cancellation of private respondents C.O.C on the ground that she had made
a false representation therein by stating that her surname was Salcedo.

Petitioner contended that private respondent had no right to use said surname
because she was not legally married to Neptali Salcedo. In her answer, private
respondent claimed that she had no information or knowledge at the time she married
Neptali Salcedo that he was in fact already married;

Comelec’s Second Division ruled use by private respondent of the surname Salcedo
constitutes material misrepresentation and is a ground for the cancellation of
her certificate of candidacy. since there is an existing valid marriage between Neptali
Salcedo and Agnes Celiz, the subsequent marriage of the former with private respondent is
null and void.

Issue: Whether use by respondent of the surname Salcedo in her certificate of candidacy
constitutes material misrepresentation under Section 78 in relation to Section 74 of the
Omnibus Election Code?
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Held: YES!

From all indications, it is to be fairly assumed that since there is an existing valid marriage
between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the
respondent is null and void.
Consequently, the use by the respondent of
the surname Salcedo constitutes material misrepresentation and is
a ground for the cancellation of her certificate of candidacy.

The only issue to be resolved is whether or not the use by respondent of the surname
Salcedo in her certificate of candidacy constitutes material misrepresentation under Section
78 in relation to Section 74 of the Omnibus Election Code.

Section 78 of the of the (sic) Omnibus Election Code reads:

A verified petition seeking to deny due course to or cancel a certificate of candidacy

may be filed by any person exclusively on the ground that any material misrepresentation
contained therein as required under Section 74 hereof is false. The petition may be filed at
any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days
before the election.

A candidates name or surname contained in the

certificate of candidacy is required under Section 74
of the Omnibus Election Code and is a material
misrepresentation.

Gleaned from the records, respondent admitted that she married Neptali Salcedo on
September 21, 1986 in a civil ceremony held in Sara, Iloilo and that she married Jesus
Aguirre on September 23, 1986.

This Commission, however, holds the view that regardless of whether Neptali Salcedo and
Jesus Aguirre are the same persons, the fact remains irrefutable is that at the time
respondent contracted marriage with Neptali Salcedo, the latter has a valid existing marriage
with Agnes Celiz and this was sufficiently established by a marriage contract executed on
February 18, 1968

Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was
declared as presumptively dead by the RTC of Barotac Viejo, Iloilo, she was free to marry
Neptali Salcedo.
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NO pronouncement to the effect

In point of fact and law, there was considerably
that the marriage of Neptali Salcedo and Agnes Celiz was annulled
by the court and that Salcedo became free to marry respondent.

From all indications, it is to be fairly assumed that since there is an existing valid marriage
between Neptali Salcedo and Agnes Celiz, the subsequent marriage of the former with the
respondent is null and void.

Consequently, the use by the respondent of the surname Salcedo

constitutes material misrepresentation and is a ground for the
cancellation of her certificate of candidacy.
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Ellan Cipriano et al vs. COMELEC et al ( COMELEC cannot motu propria DQ candidates;

law mandates that the candidate must be notified of the petition
against him and he should be given the opportunity to present
evidence in his behalf. This is the essence of due process. Due
process demands prior notice and hearing )
G.R. No. 158830. August 10, 2004
PUNO, J. En Banc

Facts:

On June 7, 2002, petitioner filed with the COMELEC her C.O.C as Chairman of the
Sangguniang Kabataan (SK) for the SK elections held on July 15, 2002. On the date of the
elections, July 15, 2002, the COMELEC issued Reso. 5363 adopting the recommendation
of the Commissions Law Department to deny due course to or cancel the certificates
of candidacy of several candidates for the SK elections, including petitioners.

The ruling was based on the findings of the Law Department that petitioner and all the other
candidates affected by said resolution were not registered voters in the barangay where
they intended to run.

Petitioner, nonetheless, was allowed to vote in the July 15 SK elections and her name
was not deleted from the official list of candidates. After the canvassing of votes, petitioner
was proclaimed by the Barangay Board of Canvassers the duly elected SK Chairman of
Barangay 38, Pasay City. She took her oath of office on August 14, 2002.

On August 19, 2002, petitioner, after learning of Reso 5363 filed with the COMELEC a
motion for reconsideration of said resolution. She argued that a certificate of candidacy may
only be denied due course or cancelled via an appropriate petition filed by any
registered candidate for the same position under Section 78 of the Omnibus Election Code
in relation to Sections 5 and 7 of RA 6646.

The Commission stated in Reso 84 its policy on proclaimed candidates found to be

ineligible for not being registered voters in the place where they were elected. It
explained:

Verily, the administrative inquiry of the Commission on the eligibility of candidates

starts from the time they filed their certificates of candidacy.

On the matter of petitions for disqualification, the provisions of COMELEC Resolution

No. 4801 are likewise clear:

(1) A verified petition to disqualify a candidate on the ground of ineligibility or

under Section 68 of the Omnibus Election Code may be filed at anytime before
proclamation of the winning candidate by any registered voter or any candidate for the
same office,
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(2) All disqualification cases filed on the ground of ineligibility shall survive,
although the candidate has already been proclaimed.

Clearly, by virtue of the above-quoted provisions, the proclamation of a

candidate who is found to be disqualified is also not a bar to the
Commissions power to order a proclaimed candidate to cease and desist from taking
his oath of office or from assuming the position to which he was elected.

COMELEC, on the other hand, defends its resolution by invoking its administrative
power to enforce and administer election laws. Thus, in the exercise of such power,
it may motu proprio deny or cancel the certificates of candidacy of
candidates who are found to be unqualified for the position they are seeking.

Issue: Whether COMELEC may motu proprio deny or cancel the certificates of candidacy of
candidates invoking its administrative power to enforce and administer election laws.?

Held: NO!

As an independent Constitutional Commission, it is clothed with the three

powers of government -

1. executive or administrative,
2. legislative, and
3. quasi-judicial powers.

The COMELEC is an institution created by the Constitution to govern the conduct of

elections and to ensure that the electoral process is clean, honest, orderly, and peaceful. It is
mandated to enforce and administer all laws and regulations relative to the conduct of an
election, plebiscite, initiative, referendum and recall.

The Commission may not, by itself, without the proper proceedings, deny due
course to or cancel a certificate of candidacy filed in due form. When a candidate files his
certificate of candidacy, the COMELEC has a ministerial duty to receive and acknowledge its
receipt

Nonetheless, Section 78 of the Omnibus Election Code allows any person to file before the
COMELEC a petition to deny due course to or cancel a certificate of candidacy on the
ground that any material representation therein is false.

Sec. 78. Petition to deny due course to or cancel a certificate of

candidacy. - A verified petition seeking to deny due course or to cancel a certificate of
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candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition
may be filed at any time not later than twenty-five days from the time of the filing of the
certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen
days before the election.

Under Rule 23 of the COMELEC Rules of Procedure, the petition shall be heard summarily
after due notice.

law mandates that the candidate must be

It is therefore clear that the
notified of the petition against him and he should be given the
opportunity to present evidence in his behalf. This is the essence
of due process. Due process demands prior notice and hearing.

Then after the hearing, it is also necessary that the tribunal shows substantial evidence to
support its ruling. In other words, due process requires that a party be given an opportunity
to adduce his evidence to support his side of the case and that the evidence should be
considered in the adjudication of the case.

Contrary to the submission of the COMELEC, the denial of due course or cancellation of
ones certificate of candidacy is not within the administrative
powers of the Commission, but rather calls for the exercise of its quasi-judicial
functions.

Administrative power is concerned with the work of applying policies and enforcing orders as
determined by proper governmental organs. We have earlier enumerated the scope of the
Commissions administrative functions.

On the other hand, where a power rests in judgment or discretion, so that it is of judicial
nature or character, but does not involve the exercise of functions of a judge, or is conferred
upon an officer other than a judicial officer, it is deemed quasi-judicial.

The determination whether a material representation in the certificate of candidacy is false or

not, or the determination whether a candidate is eligible for the position he is seeking
involves a determination of fact where both parties must be allowed to adduce
evidence in support of their contentions.

Because the resolution of such fact may result to a deprivation of ones right to run for public
office, or, as in this case, ones right to hold public office, it is only proper and fair that the
be notified of the proceedings against him and
candidate concerned
that he be given the opportunity to refute the allegations against
him.
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As an independent Constitutional Commission, it is clothed with the three

powers of government -

4. executive or administrative,
5. legislative, and
6. quasi-judicial powers.

Administrative powers of the COMELEC,

include the
● power to determine the number and location of polling places,
● appoint election officials and inspectors,
● conduct registration of voters,
● deputize law enforcement agencies and government instrumentalities to ensure free,
orderly, honest, peaceful and credible elections;
● register political parties, organization or coalitions, accredit citizens arms of the
Commission, prosecute election offenses, and
● recommend to the President the removal or imposition of any other disciplinary action
upon any officer or employee it has deputized for violation or disregard of its
directive, order or decision.

It also has direct control and supervision over all personnel involved in the conduct of
election.

Legislative authority
power to promulgate rules and regulations implementing the provisions of the Omnibus
Election Code or other laws which the Commission is required to enforce and administer

Quasi-judicial powers
it was granted

● exclusive original jurisdiction over all contests relating to the

elections, returns and qualifications of all elective regional,
provincial and city officials; and

● Appellate jurisdiction over all contests involving elective municipal officials decided by
trial courts of general jurisdiction, or involving elective barangay officials decided by
trial courts of limited jurisdiction.
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Raymund Bautista vs. COMELEC et al ( Since Bautista failed to qualify for the position
of Punong Barangay,the highest ranking sangguniang barangay
member, or in the case of his permanent disability, the second
highest ranking sangguniang member, shall become the Punong
Barangay )
G.R. Nos. 154796-97. October 23, 2003
CARPIO, J. En Banc

Facts:

On 10 June 2002, Bautista filed his C.O.C for Punong Barangay in Lumbangan for the 15
July 2002 barangay elections. Election Officer Josefina P. Jareo (Election Officer Jareo)
refused to accept Bautistas certificate of candidacy because he was not a
registered voter in Lumbangan.

In compliance with the trial courts order, Election Officer Jareo included Bautista in the
certified list of candidates for Punong Barangay. trial court ruled that Section 7 (g) of
COMELEC Resolution No. 4801[4] mandates Election Officer Jareo to include the name of
Bautista in the certified list of candidates until the COMELEC directs otherwise.

At the same time, Election Officer Jareo referred the matter of Bautistas inclusion in the
certified list of candidates with the COMELEC Law Department on 5 July 2002.

On 11 July 2002, the COMELEC Law Department recommended the cancellation of

not registered as a voter in
Bautistas certificate of candidacy since he was
Lumbangan. The COMELEC en banc failed to act on the COMELEC Law
Departments recommendation before the barangay elections on 15 July
2002.

During the 15 July 2002 barangay elections, Bautista and private respondent Divina
Alcoreza were candidates for the position of Punong Barangay in Lumbangan.

(719)
Bautista - highest number of votes
Alcoreza - second with 522 votes

Lumbangan Board of Canvassers (Board of Canvassers) proclaimed Bautista as the

elected Punong Barangay on 15 July 2002. On 16 August 2002, Bautista again took his
oath of office during a mass oath-taking ceremony administered by Nasugbu Municipal
Mayor Raymund Apacible.
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COMELEC issued Reso 04 ordered the COMELEC en banc resolved to cancel Bautistas
certificate of candidacy.

● deletion of Raymundo A. Bautistas (Bautista) name from the official list of candidates
for the position of Punong Barangay of Barangay Lumbangan, Nasugbu, Batangas

On the other hand, Reso 84 expressed COMELECs policy regarding proclaimed

candidates found to be ineligible for not being registered
voters in the place of their election, thus
ON PROCLAIMED CANDIDATES FOUND TO BE INELIGIBLE FOR BEING NOT
REGISTERED VOTERS IN THE PLACE WHERE THEY WERE ELECTED.

proclaimed candidate whose certificate of candidacy was

(a) For a
denied due course to or cancelled by virtue of a Resolution of the
Commission En Banc albeit such Resolution did not arrive on time.

1. To DIRECT the Election Officers concerned to implement the resolution of the

Commission deleting the name of the candidate whose certificate of candidacy
was denied due course;

2. To DIRECT the candidate whose name was ordered deleted to cease and desist
from taking his oath of office or from assuming the position to which he was
elected, unless a temporary restraining order was issued by the Supreme Court; and

3. To RECONVENE the Board of Canvassers for the purpose of proclaiming the

duly-elected candidates and correcting the Certificate of Canvass of
Proclamation.

proclaimed candidate who is subsequently declared

(b) For a
disqualified by the Commission in the disqualification case filed against him
prior to his proclamation.

1. To DIRECT the proclaimed disqualified candidate to cease and desist from taking
his oath of office or from assuming the position to which he was elected, unless a
temporary restraining order was issued by the Supreme Court; and

2. To RECONVENE the Board of Canvassers for the purpose of proclaiming the

duly-elected candidates and correcting the Certificate of Canvass of Proclamation.
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c) For a proclaimed candidate who is found to be ineligible only after his

proclamation (i.e., There is NO Resolution denying due course to or canceling his
no petition for disqualification pending
certificate of candidacy and there is
against him before his proclamation.)

1. To DISMISS any and all cases questioning the eligibility of such candidate for
LACK OF JURISDICTION, the proper remedy being a quo warranto case before the
metropolitan or municipal trial court.

COMELEC Commissioner Luzviminda Tancangco directed Election Officer Jareo to

(1) delete the name of Bautista from the official list of candidates for Punong
Barangay of Barangay Lumbangan;

(2) order the Board of Canvassers of Lumbangan to reconvene for the purpose
of proclaiming the elected Punong Barangay with due notice to all candidates concerned;
and

(3) direct the proclaimed disqualified candidate Bautista to cease and desist
from taking his oath of office or from assuming the position which he won in the elections,
citing COMELEC Resolution Nos. 5404 and 5584.

Consequently, Election Officer Jareo issued on 20 August 2002 an Order deleting the name
of Bautista from the list of candidates for Punong Barangay. The Order also prohibited
Bautista from assuming the position and discharging the functions of Punong Barangay of
Lumbangan pursuant to the COMELEC Resolutions.

The Board of Canvassers reconvened on 23 August 2002 and after making the necessary
proclaimed Alcoreza as
corrections in the Certificate of Canvass of Votes,

the winning Punong Barangay. Alcoreza thus assumed the post of

Punong Barangay of Lumbangan.

Bautista filed this petition for certiorari and prohibition with a prayer for the issuance of a
temporary restraining order.
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Issue:
1st Issue: Whether the COMELEC en banc committed grave abuse of discretion amounting
to excess or lack of jurisdiction in issuing Resolution Nos. 5404 and 5584

2nd Issue: ( Main ) Whether it was proper to proclaim Alcoreza as Punong Barangay in
view of the alleged disqualification of the winning candidate Bautista?

Held: 1st Issue: Whether the COMELEC en banc committed grave abuse of discretion
amounting to excess or lack of jurisdiction in issuing Resolution Nos. 5404 and 5584? YES!

Under Section 3, Rule 23 of the 1993 COMELEC Rules of Procedure, a petition for the
denial or cancellation of a certificate of candidacy must be heard summarily after due notice.
It is thus clear that cancellation proceedings involve the exercise of the quasi-judicial
functions of the COMELEC which the COMELEC in division should first
decide.

More so in this case where the cancellation proceedings originated not from a
petition but from a report of the election officer regarding the lack of
qualification of the candidate in the barangay election. The COMELEC en banc
cannot short cut the proceedings by acting on the case without a
prior action by a division because it denies due process to the
candidate.

Whether Bautista was a registered voter of Barangay

Lumbangan when he filed his certificate of candidacy

Under the Revised Administrative Code, one of the qualifications of an elective municipal
officer is that he must be a qualified voter in his municipality.

Section 2174. Qualifications of elective municipal officer. An elective municipal officer

must, at the time of the election, be a qualified voter in his municipality and must have been
resident therein for at least one year, and must not be less than twenty-three years of age.
He must also be able to read and write intelligently either English, Spanish, or the local
dialect.

However, under the Local Government Code of 1991, which took effect on 1 January 1992,
an elective local official, including a Punong Barangay, must not only be a qualified elector or
a qualified voter, he must also be a registered voter.

It is thus clear that the law as it now stands requires a candidate for Punong Barangay to
be a registered voter of the barangay where he intends to run for office.
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Bautista admitted in his affidavit dated 24 August 2002 that he was not a registered
voter of Barangay Lumbangan. Bautista failed to register during the general registration of
voters conducted by the COMELEC in 1997 since he was still out of the country during that
time

Bautista was remiss in his duty to ensure his right to

It is thus clear that
vote and to be voted for public office. As early as 2001, he was already aware
that his name was no longer included in the roster of registered voters. Yet, Bautista
chose not to register anew that year despite his knowledge that he
needed to register as a voter in the barangay to run for the office of
Punong Barangay.

Bautista was aware when he filed his certificate of candidacy for the office of Punong
Barangay that he lacked one of the qualifications that of being a registered voter in the
barangay where he ran formade a
office. He therefore

misrepresentation of a material fact when he made a

false statement in his certificate of candidacy that he
was a registered voter in Barangay Lumbangan.

He who aspires for elective office should not make a mockery of the electoral process by
falsely representing himself. The importance of a valid certificate of candidacy rests at
the very core of the electoral process.

Under Section 78 of the Omnibus Election Code, false

representation of a material fact in the certificate of candidacy is a
ground for the denial or cancellation of the certificate of
candidacy.

The material misrepresentation contemplated by

Section 78 refers to qualifications for elective office.
A candidate guilty of misrepresentation may be

(1) prevented from running, or

(2) if elected, prevented from serving, or

(3) prosecuted for violation of the election laws

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Invoking salus populi est suprema lex, Bautista argues that the peoples choice expressed in
Bautistas invocation of the liberal
the local elections deserves respect.
interpretation of election laws is unavailing.

Indeed, the electorate cannot amend or waive the qualifications prescribed by law for
will of the people as expressed through the ballot
elective office. The
cannot cure the vice of ineligibility. The fact that Bautista, a non-registered
voter, was elected to the office of Punong Barangay does not erase the fact that he lacks
one of the qualifications for Punong Barangay.

2nd Issue: ( Main ) Whether it was proper to proclaim Alcoreza as Punong Barangay in
view of the alleged disqualification of the winning candidate Bautist? NO!!

Whether it was proper to proclaim Alcoreza as Punong

Barangay in view of ineligibility of the winning candidate

Bautista subscribes to the view of the Solicitor General that under the law and jurisprudence,
the COMELEC cannot proclaim as winner the second placer in case of ineligibility of
the winning candidate.

Solicitor General submits that the disqualification of the winning candidate Bautista
does not result in the proclamation of Alcoreza who obtained the second highest
number of votes because Alcoreza was obviously not the choice of the electorate.

The Solicitor General emphasized that the COMELEC declared Bautista ineligible for the
post of Punong Barangay only after his election and proclamation as the winning
candidate.

This Court agrees with the view of the Solicitor General.

COMELEC cannot proclaim as winner the

It is now settled doctrine that the
candidate who obtains the second highest number of votes in case
the winning candidate is ineligible or disqualified

Exception is predicated on the concurrence of two assumptions, namely:

(1) the one who obtained the highest number of votes is disqualified; and

(2) the electorate is fully aware in fact and in law of a candidates

disqualification so as to bring such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate. ( Stray Votes )
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The facts warranting the exception to the rule do not obtain in the present case.

Although the COMELEC Law Department recommended to deny due course or to cancel
the certificate of candidacy of Bautista on 11 July 2002, the COMELEC en banc
failed to act on it before the 15 July 2002 barangay elections.

It was only on 23 July 2002 that the COMELEC en banc issued Resolution No. 5404,
adopting the recommendation of the COMELEC Law Department and directing the Election
Officer to delete Bautistas name from the official list of candidates.

Thus, when the electorate voted for Bautista as Punong Barangay on 15 July 2002, it was
no presumption that the
under the belief that he was qualified. There is
electorate agreed to the invalidation of their votes as stray votes in
case of Bautistas disqualification.

The Court cannot adhere to the theory of respondent Alcoreza that the votes cast in favor of
subsequent finding by the COMELEC
Bautista are stray votes. A

en banc that Bautista is ineligible cannot retroact to

the date of elections so as to invalidate the votes
cast for him.
LGC provides for the rule regarding permanent vacancy in the Office of the Punong
Barangay, thus:

SEC. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor, and Vice-Mayor.

If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or vice-mayor
concerned shall become the governor or mayor. If a permanent vacancy occurs in the offices of the governor,
vice-governor, mayor, or vice-mayor, the highest ranking sanggunian member or, in the case of his permanent
inability, the second highest ranking sanggunian member, shall become the governor, vice-governor, mayor or
vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled automatically by the other
sanggunian members according to their ranking as defined herein.

Since Bautista failed to qualify for the position of Punong Barangay,

the highest
ranking sangguniang barangay member, or in the case of his
permanent disability, the second highest ranking sangguniang
member, shall become the Punong Barangay. ( Sec 44. LGC )

WHEREFORE, we DISMISS the petition. Petitioner Raymundo A. Bautista is ineligible for

the position of Punong Barangay of Barangay Lumbangan for not being a registered voter of
Barangay Lumbangan. The proclamation of the second placer Divina Alcoreza as winner in
 18

lieu of Bautista is void. Instead, the highest ranking sangguniang barangay member of
Barangay Lumbangan shall assume the office of Punong Barangay of Lumbangan for the
unexpired portion of the term.

COMELEC divisions vs. COMELEC En Banc

COMELEC has jurisdiction to cancel the certificates of candidacy of disqualified candidates.
However, the COMELEC heard these cases first in division and not en banc in the first
instance.

jurisdiction over a petition to cancel a

Under the same Rules of Procedure,
certificate of candidacy lies with the COMELEC sitting in Division,
not en banc.

Cases before a Division may only be entertained by the COMELEC en banc when the
required number of votes to reach a decision, resolution, order or ruling is not obtained in the
Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings of the
COMELEC in Division are resolved by the COMELEC en banc.

A division of the COMELEC should have first heard this case. The COMELEC en banc can
only act on the case if there is a motion for reconsideration of the decision of the COMELEC
division. Hence, the COMELEC en banc acted without jurisdiction when it ordered the
cancellation of Bautistas certificate of candidacy without first referring the case to a division
for summary hearing.
 19

Jamela Maruhom vs. COMELEC & Abinal ( Maruhom made false material
representations in her COC that she was a registered voter in Marantao and that she
was eligible to be a mayoralty candidate in said municipality )
G. R. No. 179430 July 27, 2009
CHICO-NAZARIO, J. En Banc

Facts:
Petitioner Jamela Salic Maruhom and private respondent Mohammadali Abinal were
mayoralty candidates in the Municipality of Marantao, Lanao del Sur, for the 14 May 2007
national and local elections. Both Maruhom and Abinal filed their respective sworn C.O.C.for
the said position with the COMELEC Election Officer.

Abinal was then the incumbent Mayor of Marantao who was seeking re-election. On 1
April 2007, Abinal filed before the COMELEC a Petition for Disqualification and to Deny Due
Course to or Cancel the Certificate of Candidacy under Sec 78 Omnibus Election Code
against Maruhom, which was docketed as SPA 93.

Abinal alleged that Maruhom was a double registrant, being a

● registered voter in Precinct No. 0208A, Barangay Panggao Saduc, Marawi City and
● Precinct No. 0040A, Barangay Kialdan Proper, Marantao.

Panggao Saduc, Marawi City and Precinct No. 0040A, Barangay Kialdan Proper, Marantao.
Maruhom registered as a voter in Marawi on 26 July 2003. Only three days thereafter, on 29
July 2003, Maruhom registered again as a voter in Marantao, without canceling her
Marawi registration. There being double registration, Maruhoms subsequent
registration in Marantao was null and void ab initio. And, not being a registered voter in
Marantao, Maruhom was disqualified from running for municipal mayor of said municipality.

Abinal also averred that Maruhom made false material representations in her
registrations in Marawi and Marantao.Maruhom stated in her Marawi registration
that:

(1) she was Jamela H. Salic Maruhom;

(2) she was born on 5 April 1960;
(3) she was born in Marawi; and
(4) she had resided in Marawi for 43 years.

On the other hand, Maruhom indicated in her Marantao registration that:

(1) she was Hadja Jamelah Salic Abani;

(2) she was born on 3 September 1960;
(3) she was born in Marantao; and
(4) she had resided in Marantao for 42 years.
 20

Abinal further claimed that Maruhom also made false material representations in her
COC. Maruhom wrote in her Marantao registration that she was born on 3 September
1960; she was a registered voter in Precinct No. 0040A, Marantao; and her surname was
Abani and her maiden/maternal name was Salic.

In contrast, Maruhom declared in her COC that she was

● born on 5 April 1960;

● she was a registered voter in Precinct No. 0042A, Marantao; and
● her surname was Salic and her maiden/maternal name was Abani, Mama, Esmail,
Maruhom.

This was inconsistent with the Certificate of Nomination dated 23 March 2007, issued by Dr.
Tamano Provincial Chairman of Laban ng Demokratikong Pilipino, stating that Maruhoms full
name was Jamelah Abani Salic.

Abinal asserted that the aforementioned false material representations made by Maruhom
were valid grounds for denying due course to, or cancellation of, the latters COC under
Section 78 of the OEC

Maruhom filed before the COMELEC an Answer with Motion to Dismiss

SPA 93 contending that she was qualified to run as municipal mayor of Marantao, as she
had all the qualifications and none of the disqualifications provided by law. A candidate could
only be disqualified for a ground provided by law, and there was no law declaring double
registration as a ground for disqualification.

COMELEC First Div granting Abinals Petition COMELEC First Division found that Maruhom
had twosubsisting registrations, one in Marawi, and another in
Marantao. Maruhoms Marantao registration was void ab initio
pursuant to COMELEC Minute Resolution 13 issued on 25 July 2000. Since Maruhom was
not a registered voter in Marantao, she was disqualified from being a
mayoralty candidate therein.

issued on 25 July 2000. Since Maruhom was not a registered voter in Marantao, she was
disqualified from being a mayoralty candidate therein. Maruhom filed MR 8 May 2007.
Meanwhile, the 14 May 2007 national and local elections were held, and Abinal won over
Maruhom. Maruhom filed an election protest against Abinal before RTC.

On 21 August 2007, the COMELEC En Banc issued a Resolution denying Maruhoms MR

affirming in toto COMELEC First Div. Hence the case at bar.

Issue: Whether Maruhom is Disqualified due to her False misrepresentation in her COC
which would warrant the cancellation of the same.?
 21

Held: YES!

Evidence on record supports the following facts: Maruhom registered as a voter in Marawi
on 26 July 2003;[24] only three days after, on 29 July 2003, Maruhom again registered as a
voter in Marantao, without first canceling her registeration in Marawi;[25] and on 28 March
2007, Maruhom filed her COC declaring that she was a registered voter in Marantao and
eligible to run as a candidate for the position of mayor of said municipality.[26]

Given Maruhoms double registration in Marawi and Marantao, then COMELEC should
determine which registration was valid and which one was null. COMELEC could not
because it would then give rise to the
consider both registrations valid
anomalous situation where Maruhom could vote in two precincts at
the same time. This would be a dangerous precedent that would open the floodgates to
massive election cheating and fraud.

This was precisely the situation that the COMELEC intended to address when it issued its
Minute Resolution No. 00-1513 on 25 July 2000 seven years prior to the 14 May 2007
elections in which Maruhom intended to run. COMELEC laid down the rule in Minute
that while the first registration of any
Resolution No. 00-1513

voter subsists, any subsequent registration thereto

is void ab initio.
Following the clear and plain words of Minute Resolution No. 00-1513, therefore, Maruhoms
earlier registration in Marawi is deemed valid, while her subsequent registration in Marantao
Maruhom cannot be considered a
is void ab initio. Accordingly,

registered voter in Marantao and, thus, she made a

false representation in her COC when she claimed to
be one.
Maruhoms voter registration constitutes a material fact because it
affects her eligibility to be elected as municipal mayor of Marantao.

elective local
Section 39(a) of Republic Act No. 7160, LGC 1991, requires that an
official must be, among other things, a registered voter in the
barangay, municipality, city or province where he intends to be
elected.
 22

Deliberate intent to mislead, misinform or hide a fact on part of

Muharram

Several circumstances convince us that Maruhom was aware that she had a subsisting
registration in Marawi and deliberately attempted to conceal said fact, which would
have rendered her ineligible to run as mayoralty candidate in Marantao.

Before filing her COC, Maruhom requested the COMELEC to cancel her Marawi registration.
It is undisputed that by the time Maruhom filed her COC, the COMELEC had not yet acted
on her request for cancellation of her Marawi registration.

Despite knowing that her request for cancellation of her Marawi registration was still pending
before the COMELEC, Maruhom proceeded to declare, under oath, in her COC, that she
was a registered voter in Marantao and that she was eligible to run for the position of mayor
of said municipality.

no showing that Maruhom informed or advised the election

There is
officer of Marantao of her subsisting Marawi registration and her
pending request for cancellation of the same. Evidently, Maruhom would much rather sweep
the fact of her Marawi registration under the carpet, than deal with the complications arising
from it, which may very well put in jeopardy her intention to run for mayor of Marantao.

Indeed, Maruhom made false material representations in her COC that she was a registered
voter in Marantao and that she was eligible to be a mayoralty candidate in said municipality.

Under Section 78 of the OEC, a false representation of material fact in the

COC is a ground for the denial or cancellation of the COC.

False Representation

Must pertain to a material fact that affects the right of the

candidate to run for the election for which he filed his COC.
Such material fact refers to a

● Candidates eligibility or

● Qualification for elective office like

○ Citizenship,
○ Residence or
○ status as a registered voter.
 23

Aside from the requirement of materiality, the false representation must

consist of a

● Deliberate attempt to mislead, misinform, or

hide a fact that would otherwise render a
candidate ineligible.

In other words, it must be made with the intention to deceive the

electorate as to the would-be candidates qualifications for public office.

It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the
OEC. In the exercise of such jurisdiction, it is within the competence of the COMELEC to
determine whether false representation as to material facts was made in the COC.

Given Maruhoms double registration in Marawi and Marantao, then COMELEC should
determine which registration was valid and which one was null. COMELEC could not
because it would then give rise to the
consider both registrations valid
anomalous situation where Maruhom could vote in two precincts at
the same time. This would be a dangerous precedent that would open the floodgates to
massive election cheating and fraud.

This was precisely the situation that the COMELEC intended to address when it issued its
Minute Resolution No. 00-1513 on 25 July 2000 seven years prior to the 14 May 2007
elections in which Maruhom intended to run. COMELEC laid down the rule in Minute
that while the first registration of any
Resolution No. 00-1513

voter subsists, any subsequent registration thereto

is void ab initio.
Following the clear and plain words of Minute Resolution No. 00-1513, therefore, Maruhoms
earlier registration in Marawi is deemed valid, while her subsequent registration in Marantao
is void ab initio.

Accordingly, Maruhom cannot be considered a registered voter in Marantao and, thus, she
made a false representation in her COC when she claimed to be one.
 24

Ernesto Matugas vs. COMELEC & Robert Barbers ( The document containing the
notation of George Clarke does not prove that private respondent is indeed a
naturalized American citizen )
G.R. No. 151944. January 20, 2004
TINGA, J. En Banc

Facts:
On February 28, 2001, private respondent Robert Lyndon S. Barbers filed his C.O.C for the
position of Governor of Surigao del Norte for the May 14, 2001 elections. April 10, 2001,
petitioner Ernesto Matugas, himself a candidate for the same post, filed with the Commission
on Elections (COMELEC) a Petition to Disqualify private respondent as candidate. The
Petition alleged, among other grounds, that private respondent is not a Filipino citizen.

In support of this claim, petitioner offered in evidence a copy of a letter-request dated August
25, 2000 from a certain Jesus Agana, a confidential agent of the Bureau of Immigration,
addressed to one George Clarke, purportedly of the United States Embassy. Below the
subject was naturalized
request was the reply of said George Clarke stating that the
as an American citizen on October 11, 1991 in Los Angeles,
California.

Petitioner also presented a Certification[4] issued by the Bureau of Immigration and

Deportation (BID) dated 1 September 2000 containing Barbers travel records and indicating
in certain entries that private respondent is an American citizen.

In addition, petitioner submitted a Certification issued by the Special Committee on

Naturalization of the Office of the Solicitor General stating that, based on their records, there
is no pending petition by private respondent for repatriation. Neither has one been
granted in his favor.

In the meantime, private respondent garnered the highest number of votes in the
gubernatorial race. On May 17, 2001, petitioner filed a Motion for Suspension/Annulment of
Proclamation of private respondent. The Motion, however, was overtaken by subsequent
events when, on the following day, May 18, 2001, private respondent was proclaimed the
duly elected governor of Surigao del Norte.

2nd Div. COMELEC issued a Resolution dismissing for lack of merit the Petition to
Disqualify. While noting that the BID certification involving the travel records of Robert
Lyndon S. Barbers stated that he was an American, the COMELEC held that there is no
other independent evidence... to justify petitioners claim that respondent has renounced his
allegiance to the Philippines at any time.

COMELEC En Banc dismissed petitioner’s MR affirmed the Resolution of the Second

Division. Hence the case at bar.

Issue: Whether Barbers was aFilipino Citizen at time of elections hence qualified to run?
 25

Held: YES! Documentary evidence he submitted fails to establish that private

respondent is not a Filipino citizen.

Basic in the law of evidence is that one who alleges a fact has the burden of proving it.[9] In
administrative cases, the quantum of proof required is substantial evidence. Petitioner
did not overcome his burden. The documentary evidence he submitted fails to establish that
private respondent is not a Filipino citizen.

does not prove that

The document containing the notation of George Clarke
private respondent is indeed a naturalized American citizen.

For the purpose of their presentation in evidence, documents are either public or private.
Public documents include the written official acts or records of the official acts of the
sovereign authority, official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country.

The record of such public documents may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the record. The grant of United
States citizenship by naturalization is an official act of the United States.

Thedocument containing the record of this act is, therefore, a public

document and, following the rule cited above, this document can only be
evidenced by its official publication or a copy duly attested by the officer having legal custody
thereof.

Thenotation in the letter-inquiry of Jesus Agana is neither an official

publication of the document that contains the record of private respondents
naturalization, nor a copy attested by the officer who has legal custody of the record.
Petitioner did not show if Clarke, the notations alleged author, is the officer charged with the
custody of such record.

Furthermore, Section 7, Rule 130 of the Rules of Court states that when the original of a
document is in the custody of a public officer or is recorded in a public office, as in this case,
the contents of said document may be proved by a certified copy issued by the public officer
The subject letter-inquiry, which contains the
in custody thereof.
notation, appears to be a mere photocopy, not a certified copy.

In this case, the Petition to Disqualify is not supported by substantial evidence. Hence, the
COMELEC did not commit grave abuse of discretion in issuing the assailed Resolutions
dismissing the Petition. WHEREFORE, the Petition is DISMISSED.
 26

Manuel Japzon vs. COMELEC & Jaime Ty ( Court already found in the present case, Ty
has proven by substantial evidence that he had established residence/domicile in the
Municipality of General Macarthur, Eastern Samar, by 4 May 2006, a little over a year
prior to the 14 May 2007 local elections, in which he ran as a candidate for the Office
of the Mayor and in which he garnered the most number of votes )
G.R. No. 180088 January 19, 2009
CHICO-NAZARIO, J. En Banc

Facts:
Both petitioner Manuel B. Japzon (Japzon) and private respondent Jaime S. Ty (Ty) were
candidates for the Office of Mayor of the Municipality of General Macarthur, Eastern Samar,
in the local elections held on 14 May 2007. On 15 June 2007, Japzon instituted SPA 68 by
filing before the COMELEC a Petition[5] to disqualify and/or cancel Tys C.O.C on the
ground of material misrepresentation.

Japzon averred in his Petition that Ty was a former natural-born Filipino, having been
born on 9 October 1943 in (now the Municipality of General Macarthur, Easter Samar) to
spouses Ang Chim Ty (a Chinese) and Crisanta Aranas Sumiguin (a Filipino). Ty
eventually migrated to the United States of America (USA) and became a citizen
thereof. Ty had been residing in the USA for the last 25 years.

When Ty filed his Certificate of Candidacy on 28 March 2007, he falsely represented therein
that he was a resident of Barangay 6, Poblacion, General Macarthur, Eastern Samar, for one
year before 14 May 2007, and was not a permanent resident or immigrant of any foreign
country.

While Ty may have applied for the reacquisition of his Philippine citizenship, he never
actually resided in Barangay 6, Poblacion, General Macarthur, Eastern Samar, for a period
of one year immediately preceding the date of election as required under Section 39 of RA
7160.

In fact, even after filing his application for reacquisition of his Philippine citizenship, Ty
continued to make trips to the USA, the most recent of which was on 31 October 2006
lasting until 20 January 2007. Moreover, although Ty already took his Oath of Allegiance to
the Republic of the Philippines, he continued to comport himself as an American citizen
as proven by his travel records.

He had also failed to renounce his foreign citizenship as required by Republic Act No. 9225,
otherwise known as the Citizenship Retention and Reacquisition Act of 2003, or related
laws. Hence, Japzon prayed for in his Petition that the COMELEC order the
disqualification of Ty from running for public office and the cancellation of the latters
Certificate of Candidacy.
 27

In his Answer, admitted that he was a natural-born Filipino who went to the USA to work and
subsequently became a naturalized American citizen. Ty claimed, however, that prior to filing
his Certificate of Candidacy for the Office of Mayor of the Municipality of General Macarthur,
Eastern Samar, on 28 March 2007, he already performed the following acts:

(1) with the enactment of Republic Act No. 9225, granting dual citizenship to
natural-born Filipinos, Ty filed with the Philippine Consulate General in Los Angeles,
California, USA, an application for the reacquisition of his Philippine citizenship;

(2) on 2 October 2005, Ty executed an Oath of Allegiance to the Republic of

the Philippines before Noemi T. Diaz, Vice Consul of the Phil. Consulate General in
Los Angeles, California, USA

(3) Ty applied for a Philippine passport indicating in his application that his
residence in the Philippines was at A. Mabini St., Barangay 6, Poblacion, General
Macarthur, Eastern Samar. Tys application was approved and he was issued on 26
October 2005 a Philippine passport;

(4) on 8 March 2006, Ty personally secured and signed his Community Tax
Certificate (CTC) from the Municipality of General Macarthur, in which he stated that
his address was at Barangay 6, Poblacion, General Macarthur, Eastern Samar;

(5) thereafter, on 17 July 2006, Ty was registered as a voter in Precinct

0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar

(7) finally, Ty executed on 19 March 2007 a duly notarized Renunciation of

Foreign Citizenship.

Given the aforementioned facts, Ty argued that he had reacquired his Philippine citizenship
and renounced his American citizenship, and he had been a resident of the Municipality of
General Macarthur, Eastern Samar, for more than one year prior to the 14 May 2007
elections. Ty sought the dismissal of Japzons Petition.

Pending the submission by the parties of their respective Position Papers in SPA No.
07-568, the 14 May 2007 elections were already held. Ty acquired the highest number of
votes and was declared Mayor of the Municipality of General Macarthur.

COMELEC First Division rendered its Resolution dated 31 July 2007 in favor of Ty. The
COMELEC First Division found that Ty complied with the requirements of Sections 3 and 5
of Republic Act No. 9225 and reacquired his Philippine citizenship.

Philippine citizenship is an indispensable requirement for holding an elective

public office, and the purpose of the citizenship qualification is none other than to
ensure that no alien, i.e., no person owing allegiance to another nation, shall govern
our people and our country or a unit of territory thereof.
 28

COMELEC First Division also held that Ty did not commit material misrepresentation in
stating in his Certificate of Candidacy that he was a resident of Barangay 6, Poblacion,
General Macarthur, Eastern Samar, for at least one year before the elections on 14 May
2007.

Records showed that after taking an Oath of Allegiance before the Vice
Consul of the Philippine Consulate General on October 2, 2005, [Ty] applied and was
issued a Philippine passport on October 26, 2005; and secured a community tax
certificate from the Municipality of General Macarthur on March 8, 2006. Evidently,
[Ty] was already a resident of Barangay 6, Poblacion, General Macarthur,
Eastern Samar for more than one (1) year before the elections on May 14, 2007.

Japzon filed MR. COMELEC En Banc denied MR. affirming the assailed Resolution of the
COMELEC First Division. on the basis of the following ratiocination:

We have held that a Natural born Filipino who obtains foreign citizenship, and
subsequently spurns the same, is by clear acts of repatriation a Filipino Citizen and
hence qualified to run as a candidate for any local post.

Hence the case at bar.

Issue:
1st issue: Whether Ty was a filipino citizen at the time of election?
2nd issue: Whether Ty met the 1yr residency requirement under the LGC?

Held: 1st issue: Whether Ty was a filipino citizen at the time of election? YES

There is no dispute that Ty was a natural-born Filipino. He was born and raised in the
Municipality of General Macarthur, Eastern Samar, Philippines. However, he left to work in
the USA and eventually became an American citizen.

On 2 October 2005, Tyreacquired his Philippine citizenship by taking his

Oath of Allegiance to the Republic of the Philippines in accordance with
the provisions of Republic Act No. 9225. At this point, Ty still held dual
citizenship, i.e., American and Philippine.

It was only on 19 March 2007 that Ty renounced his American citizenship before a
notary public and, resultantly, became a pure Philippine citizen again. It bears to point out
that Republic Act No. 9225 governs the manner in which a natural-born Filipino may
reacquire or retain his Philippine citizenship despite acquiring a foreign citizenship, and
provides for his rights and liabilities under such circumstances.

A close scrutiny of said statute would reveal that it does not at all touch on the matter of
residence of the natural-born Filipino taking advantage of its provisions.
 29

Clearly, Republic Act No. 9225 treats citizenship

independently of residence. This is only logical and
consistent with the general intent of the law to allow for
dual citizenship. Since a natural-born Filipino may hold, at the same time, both
Philippine and foreign citizenships, he may establish residence either in the Philippines or in
the foreign country of which he is also a citizen.

Residency in the Philippines only becomes relevant

when the natural-born Filipino with dual citizenship
decides to run for public office.

Section 5(2) of Republic Act No. 9225 reads:

SEC. 5. Civil and Political Rights and Liabilities.

Those who retain or reacquire Philippine citizenship under this Act shall enjoy full
civil and political rights and be subject to all attendant liabilities and responsibilities
under existing laws of the Philippines and the following conditions:

(2) Those seeking elective public office in the Philippines shall meet the
qualifications for holding such public office as required by the Constitution
and existing laws

at the time of the filing of the certificate of

and,

candidacy, make a personal and sworn renunciation

of any and all foreign citizenship before any public
officer authorized to administer an oath.
Breaking down the afore-quoted provision, for a natural born Filipino, who reacquired or
retained his Philippine citizenship under Republic Act No. 9225, to run for
public office, he must:
(1) meet the qualifications for holding such public office as required by the
Constitution and existing laws; and
 30

make a personal and sworn renunciation of any and all

(2)
foreign citizenships before any public officer authorized to
administer an oath.

Ty complied with the second requirement is

That

beyond question. On 19 March 2007, he personally executed a Renunciation

of Foreign Citizenship before a notary public.

By the time he filed his Certificate of Candidacy for the Office of Mayor of the Municipality of
General Macarthur, Eastern Samar, on 28 March 2007, he had already effectively
renounced his American citizenship, keeping solely his Philippine citizenship.

The other requirement of Section 5(2) of Republic Act No. 9225 pertains to the qualifications
required by the Constitution and existing laws.

The challenge against Tys qualification to run as a candidate for the Office of Mayor of the
Municipality of General Macarthur, Eastern Samar, centers on his purported failure to meet
the one-year residency requirement in the said municipality.

Held; 2nd issue: Whether Ty met the 1yr residency requirement under the LGC? YES!

Tys intent to establish a new domicile of choice in the Municipality of General Macarthur,
Eastern Samar, Philippines, became apparent when,

● immediately after reacquiring his Philippine citizenship on 2 October 2005, he applied

for a Philippine passport indicating in his application that his residence in the
Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern
Samar.

● For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax
jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying
community tax and securing CTCs from the said municipality stating therein his
address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar.

● Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct
0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.

In addition, Ty has also been bodily present in the Municipality of General Macarthur,
Eastern Samar, Philippines, since his arrival on 4 May 2006, inarguably, just a little over a
year prior to the 14 May 2007 local elections.
 31

There isno basis for this Court to require Ty to stay in and never
leave at all the Municipality of General Macarthur, Eastern Samar,
for the full one-year period prior to the 14 May 2007 local elections so that
he could be considered a resident thereof.

To the contrary, the Court has previously ruled that absence from residence to pursue
studies or practice a profession or registration as a voter other than in the place where one is
elected, does not constitute loss of residence.

The Court also notes, that even with his trips to other countries, Ty was actually present in
the Municipality of General Macarthur, Eastern Samar, Philippines, for at least nine of the 12
months preceding the 14 May 2007 local elections.

of actual stay in a place is not necessarily determinative of

Even if length
the fact of residence therein, it does strongly support and is only consistent
with Tys avowed intent in the instant case to establish residence/domicile in
the Municipality of General Macarthur, Eastern Samar.

As this Court already found in the present case, Ty has proven by substantial evidence that
he had established residence/domicile in the Municipality of General Macarthur, Eastern
Samar, by 4 May 2006, a little over a year prior to the 14 May 2007 local elections, in which
he ran as a candidate for the Office of the Mayor and in which he garnered the most number
of votes.

Term Residence
The term residence is to be understood not in its common acceptation as referring to
dwelling or habitation, but rather to domicile or legal residence, that is, the place where a
party actually or constructively has his permanent home, where he, no matter where
eventually intends to return
he may be found at any given time,

and remain (animus manendi).

A domicile of origin is acquired by every person at birth. It is usually the place
where the childs parents reside and continues until the same is abandoned by acquisition of
new domicile (domicile of choice).

Court already acknowledged that for an individual to acquire American citizenship, he must
establish residence in the USA. Since Ty himself admitted that he became a naturalized
American citizen, then he must have necessarily abandoned the Municipality of General
Macarthur, Eastern Samar, Philippines, as his domicile of origin; and transferred to the
USA, as his domicile of choice.
 32

As has already been previously Tys

discussed by this Court herein,

reacquisition of his Philippine citizenship under

Republic Act No. 9225 had no automatic impact or
effect on his residence/domicile.

He could still retain his domicile in the USA, and he did not necessarily regain his domicile in
the Municipality of General Macarthur, Eastern Samar, Philippines.

Ty merely had the option to again establish his domicile in

the Municipality of General Macarthur, Eastern Samar, Philippines,
said place becoming his new domicile of choice.

The length of his residence therein shall be determined

● from the time he made it his domicile of choice,

and it shall not retroact to the time of his birth.
How then could it be established that Ty indeed established a new
domicile in the Municipality of General Macarthur, Eastern Samar,
Philippines?

In Papandayan, Jr. v. Commission on Elections Court provided a summation of the different

principles and concepts in jurisprudence relating to the residency qualification for elective
local officials.

The principle of animus revertendi has been used to determine

whether a candidate has an intention to return to the place where he seeks to
be elected. Corollary to this is a determination whether there has been an abandonment
of his former residence which signifies an intention to depart therefrom.

In Caasi v. Court of Appeals, this Court set aside the appealed orders of the
COMELEC and the Court of Appeals and annulled the election of the respondent as
Municipal Mayor of Bolinao, Pangasinan on the ground that respondents immigration to the
United States in 1984 constituted an abandonment of his domicile and residence in the
Philippines.
 33

Being a green card holder, which was proof that he was a permanent resident or
immigrant of the United States, and in the absence of any waiver of his status as such
before he ran for election on January 18, 1988, respondent was held to be disqualified under
68 of the Omnibus Election Code of the Philippines

In Co v. Electoral Tribunal of the House of Representatives, respondent Jose

Ong, Jr. was proclaimed the duly elected representative of the 2nd District of Northern
Samar. The House of Representatives Electoral Tribunal (HRET) upheld his election against
claims that he was not a natural born Filipino citizen and a resident of Laoang, Northern
Samar.
In sustaining the ruling of the HRET, this Court, citing Faypon v. Quirino, applied the
concept of animus revertendi or intent to return, stating that his absence from his residence
in order to pursue studies or practice his profession as a certified public accountant in Manila
or his registration as a voter other than in the place where he was elected did not constitute
loss of residence. The fact that respondent made periodical journeys to his home
province in Laoag revealed that he always had animus revertendi.

it is the fact of
Ultimately, the Court recapitulates in Papandayan, Jr. that

residence that is the decisive factor in determining whether or

not an individual has satisfied the residency qualification requirement.

The COMELEC, taking into consideration the very same pieces of evidence presently before
this Court, found that Ty was a resident of the Municipality of General Macarthur, Eastern
Samar, one year prior to the 14 May 2007 local elections.

It is axiomatic that factual findings of administrative agencies, such as the COMELEC, which
have acquired expertise in their field are binding and conclusive on the Court.
The assailed Resolutions dated 31 July 2007 and 28 September 2007 of the COMELEC
First Division and en banc, respectively, were both supported by substantial evidence and
are, thus, binding and conclusive upon this Court.

Tys intent to establish a new domicile of choice in

the Municipality of General Macarthur, Eastern
Samar, Philippines, became apparent when,
● immediately after reacquiring his Philippine citizenship on 2 October 2005, he applied
for a Philippine passport indicating in his application that his residence in the
Philippines was at A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern
Samar.

● For the years 2006 and 2007, Ty voluntarily submitted himself to the local tax
jurisdiction of the Municipality of General Macarthur, Eastern Samar, by paying
 34

community tax and securing CTCs from the said municipality stating therein his
address as A. Mabini St., Barangay 6, Poblacion, General Macarthur, Eastern Samar.

● Thereafter, Ty applied for and was registered as a voter on 17 July 2006 in Precinct
0013A, Barangay 6, Poblacion, General Macarthur, Eastern Samar.

Japzon maintains that Tys trips abroad during said period, i.e., to Bangkok, Thailand (from
14 to 18 July 2006), and to the USA (from 31 October 2006 to 19 January 2007), indicate
that Ty had no intention to permanently reside in the Municipality of General Macarthur,
Eastern Samar, Philippines.

The COMELEC First Division and en banc, as well as this Court, however, view these trips
differently. The fact that Ty did come back to the Municipality of General Macarthur, Eastern
Samar, Philippines, after said trips, is a further manifestation of his animus
manendi and animus revertendi.

WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED.

 35

GAUDENCIO Cordora vs. COMELEC & GUSTAVO Tambunting ( Natural born both
Filipino and American; Clearly, Tambunting possessed dual citizenship prior to
the filing of his certificate of candidacy before the 2001 elections. The fact that
Tambunting had dual citizenship did not disqualify him from running for public
office)
G.R. No. 176947 February 19, 2009
CARPIO, J. En Banc Not included in Syllabus

Facts:

In his complaint affidavit filed before the COMELEC Law Dep. Cordora
asserted that Tambunting made false assertions in the following
items:

● [Tambunting’s Certificate of Candidacy for the 2001 elections]and Annex B

[Tambunting’s Certificate of Candidacy for the 2004 elections] state, among
others, as follows, particularly Nos. 6, 9 and 12 thereof:

○ No. 6 – I am a Natural Born/Filipino Citizen

○ No. 9 – No. of years of Residence before May 14, 2001.

36 in the Philippines and 25 in the Constituency where I seek to be

elected

● No. 12 – I am ELIGIBLE for the office I seek to be elected.3

Tambunting lacked the required citizenship and residency

requirements. To disprove Tambunting’s claim of being a natural-born
Filipino citizen, Cordora presented a certification from the Bureau of Immigration
which stated that, in two instances,

● Tambunting claimed that he is an American: upon

arrival in the Philippines on 16 December 2000 and upon departure

from the Philippines on 17 June 2001.

According to Cordora,
 36

these travel dates confirmed that Tambunting acquired

American citizenship through naturalization in
Honolulu, Hawaii on 2 December 2000. Cordora concluded:

Tambuting maintained that he did not make any misrepresentation in his certificates
of candidacy. Tambunting presented a copy of his birth certificate

● he wasborn of a Filipino mother and an American

father.

● Tambunting further denied that he was naturalized as an American

citizen.

The certificate of citizenship conferred by the US government

after Tambunting’s father petitioned him through INS Form I-130

(Petition for Relative) merely confirmed

Tambunting’s citizenship which he acquired at
birth.

Tambunting’s possession of an American passport did not mean that

Tambunting is not a Filipino citizen.

Tambunting also took an oath of allegiance on 18 November

2003 pursuant to (R.A. No. 9225), or the Citizenship Retention and
Reacquisition Act of 2003.

● Tambunting further stated that he has resided in the Philippines since birth.

● Tambunting has imbibed the Filipino culture, has spoken the Filipino
language, and has been educated in Filipino schools.

● Tambunting maintained that proof of his loyalty and devotion to the Philippines
was shown by his service as councilor of Parañaque.
 37

To refute Cordora’s claim that the number of years of residency stated in

Tambunting’s certificates of candidacy is false because Tambunting lost his
residency because of his naturalization as an American citizen, Tambunting
contended that the residency requirement is not the same as
citizenship.

COMELEC Law Department recommended the dismissal of Cordora’s

complaint failed to substantiate his charges against Tambunting.

COMELEC En Banc affirmed the findings and the resolution of the

COMELEC Law Department. Commissioner Sarmiento pointed out that

Tambunting could be considered a dual citizen.

Moreover,Tambunting effectively renounced his

American citizenship when he filed his
certificates of candidacy in 2001 and 2004 and ran
for public office.

COMELEC En Banc dismissed Cordora’s MR

Hence the case at bar.

Cordora’s petition is not

● an action to disqualify Tambunting because of Tambunting’s failure to meet
citizenship and residency requirements.

● Neither is the present petition an action to declare Tambunting a non-Filipino

and a non-resident.

The present petition prosecute Tambunting for

seeks to

knowingly making untruthful statements in his

certificates of candidacy.
 38

Issue: Whether Tambuting is Qualified to run for public office even his is a dual
citizen by birth?

Held: YES!

The petition has no merit. We affirm the ruling of the

COMELEC En Banc.

Whether there is Probable Cause to Hold Tambunting for Trial for

Having Committed an Election Offense

no grave abuse of discretion in the COMELEC

There was

En Banc’s ruling that there is no sufficient and

convincing evidence to support a finding of probable cause to hold
Tambunting for trial for violation of Section 74 in relation to Section 262 of the
Omnibus Election Code.

Probable cause constitutes those facts and circumstances which would lead a
reasonably discreet and prudent man to believe that an offense has been
committed.

Determining probable cause is an intellectual activity premised on the prior

physical presentation or submission of documentary or testimonial proofs
either confirming, negating or qualifying the allegations in the complaint.6

Section 74 of the Omnibus Election Code reads as follows:

Contents of certificate of candidacy. —

The certificate of candidacy shall state that the person filing it is announcing
his candidacy for the office stated therein and that he is eligible for said office;
x x x the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines
and will maintain true faith and allegiance thereto; x x x x
 39

Section 262 of the Omnibus Election Code, on the other hand, provides that
violation of Section 74, among other sections in the
Code, shall constitute an election offense.

Tambunting’s Dual Citizenship

Tambunting does not deny that

● he is born of a Filipino mother and an American father.

● Neither does he deny that he underwent the process involved in INS Form
I-130 (Petition for Relative) because of his father’s citizenship.

● Tambunting claims that because of his parents’ differing citizenships, he is

both Filipino and American by birth.

Cordora, on the other hand, insists that Tambunting is a naturalized

American citizen.

We agree with Commissioner Sarmiento’s observation

that Tambunting possesses dual citizenship.

no longer
Because of the circumstances of his birth, it was
necessary for Tambunting to undergo the naturalization
process to acquire American citizenship.

only served to
The process involved in INS Form I-130

confirm the American citizenship which

Tambunting acquired at birth.
The certification from the Bureau of Immigration which Cordora presented contained
two trips where Tambunting claimed that he is an American.
However, the
same certification showed nine other trips where
Tambunting claimed that he is Filipino.
 40

Clearly, Tambunting possessed dual citizenship prior to the filing of

his certificate of candidacy before the 2001 elections.

did
The fact that Tambunting had dual citizenship
not disqualify him from running for
public office.

Requirements for dual citizens from birth who desire

to run for public office
We deem it necessary to reiterate our previous ruling in Mercado v. Manzano,
dual citizenship is not a ground for
wherein we ruled that

disqualification from running for any elective local

position.

We have to consider the present case in consonance with our rulings in

● Mercado v. Manzano,
● Valles v. COMELEC, and
● AASJS v. Datumanong.

Mercado and Valles involve similar operative facts as the present

case. Manzano and Valles, like Tambunting,
possessed dual citizenship by the circumstances of their birth.

Manzano was born to Filipino parents in the United States which follows the
doctrine of jus soli.

Valles was born to an Australian mother and a Filipino father in Australia.

 41

dual citizenship is
Our rulings in Manzano and Valles stated that

different from dual allegiance both by cause and, for

those desiring to run for public office, by effect.
● Dual citizenship is involuntary and arises when, as a result of the
concurrent application of the different laws of two or more states,

a person is simultaneously considered a national by the said states.

Thus, like any other natural-born Filipino, it is

enough for a person with dual citizenship who
seeks public office
to file his certificate of candidacy

and swear to the oath of allegiance

contained therein.

Dual allegiance, on the other hand, is brought about by the

individual’s active participation in the

naturalization process.
 42

AASJS states that, under R.A. No. 9225,

● a Filipino who becomes a naturalized citizen of another

country is

● allowed to retain his Filipino citizenship by swearing

to the supreme authority of the Republic of the
Philippines.

Theact of taking an oath of allegiance is an implicit

renunciation of a naturalized citizen’s foreign citizenship.
R.A. No. 9225, or the Citizenship Retention and Reacquisition Act of 2003, was
enacted years after the promulgation of Manzano and Valles

The oath found in Section 3 of R.A. No. 9225 reads as follows:

I __________ , solemnly swear (or affirm) that I will support and defend the Constitution of the Republic
of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of
the Philippines; and I hereby declare that I recognize and accept the supreme authority of the
Philippines and will maintain true faith and allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of evasion.

framers were not

In Sections 2 and 3 of R.A. No. 9225, the
concerned with dual citizenship per se,

status of naturalized citizens who maintain

but with the

their allegiance to their countries of origin even

after their naturalization.
 43

Section 5(3) of R.A. No. 9225 states that

● NATURALIZED citizens who reacquire Filipino citizenship and desire

to run for elective public office in the Philippines

● shall "meet the qualifications for holding such public office as required by the
Constitution and existing laws

● and, at the time of filing the certificate of candidacy, make a

personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an
oath"

aside from the oath of allegiance prescribed in

Section 3 of R.A. No. 9225.
The twin requirements of swearing to an Oath of Allegiance and executing a
Renunciation of Foreign Citizenship served as the bases for our recent rulings in

● Jacot v. Dal and COMELEC,

● Velasco v. COMELEC, and
● Japzon v. COMELEC,

all of which involve natural-born Filipinos who later became

naturalized citizens of another country and thereafter ran for
elective office in the Philippines.

Tambunting, a natural-born Filipino,

In the present case,
did not subsequently become a naturalized citizen
of another country.

Hence, the twin requirements in R.A. No. 9225

do not apply to him.
 44

Tambunting’s residency

Cordora concluded that Tambunting failed to meet the residency requirement

because of Tambunting’s naturalization as an American. Cordora’s reasoning fails
because Tambunting is not a naturalized American.

Moreover, residency, for the purpose of election laws, includes

the twin elements of the
1. fact of residing in a fixed place and

2. the intention to return there permanently, and

is not dependent upon citizenship.

In view of the above, we hold that Cordora failed to establish that

Tambunting indeed willfully made false entries in his certificates of
candidacy.

On the contrary, Tambunting sufficiently proved his innocence of the charge filed
Tambunting is eligible for the office which he
against him.

sought to be elected and fulfilled the citizenship and

residency requirements prescribed by law.
WHEREFORE, we DISMISS the petition. We AFFIRM the Resolutions of the
Commission on Elections En Banc dated 18 August 2006 and 20 February 2007 in
EO Case No. 05-17.

SO ORDERED.
 45

Jaun Frivaldo vs. COMELEC ( Being a former Filipino who has served the people
repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and whatever
defects there were in his nationality should now be deemed mooted by his
repatriation )
G.R. No. 120295. June 28, 1996
PANGANIBAN, J. En Banc.

Facts:
In March 20, 1995, private respondent Juan G. Frivaldo filed his C.O.C for the office of
Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul
R. Lee, another candidate, filed a petition with the Comelec praying that Frivaldo "be
disqualified from seeking or holding any public office or position by reason of not yet being a
citizen of the Philippines," and that his Certificate of Candidacy be cancelled.

Comelec promulgated a Resolution granting the petition with the following disposition.
Frivaldo is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that
he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is
cancelled.

MR by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his
candidacy continued and he was voted for during the elections held on said date. May
11, 1995, the Comelec en banc affirmed the aforementioned Resolution of the Second
Division.

Frivaldo garnered the highest number of votes. Lee filed in petition praying for his
proclamation as the duly-elected Governor of Sorsogon.

In an order dated June 21, 1995, but promulgated according to the petition "only on June 29,
1995," the Comelec en bane directed "the Provincial Board of Canvassers of Sorsogon to
reconvene for the purpose of proclaiming candidate Raul Lee as the winning
gubernatorial candidate in the province of Sorsogon

Frivaldo filed with the Comelec a new petition praying for the annulment of the June 30,
1995 proclamation of Lee and for his own proclamation. He alleged that on June 30,
1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines
after "his petition for repatriation under P.D. 725 which he filed with the Special Committee
on Naturalization in September 1994 had been granted."

As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released
and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no more
legal impediment to the proclamation (of Frivaldo) as governor

Comelec First Division promulgated the herein assailed Resolution holding that Lee, "not
having garnered the highest number of votes," was not legally entitled to be proclaimed as
duly-elected governor; and that Frivaldo, "having garnered the highest number of votes, and
xxx having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the
 46

provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of
Sorsogon.

Issue: Whether repatriation of Frivaldo valid and legal?

Held: YES!

On the basis of the parties' submissions, we are convinced that the presumption of regularity
in the performance of official duty and the presumption of legality in the repatriation of
Frivaldo have not been successfully rebutted by Lee

The Local Government Code of 1991 expressly requires Philippine citizenship as a

qualification for elective local officials, including that of provincial governor,

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore

incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses
the qualifications prescribed under the said statute (R. A. 7160). Under Philippine law,
citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation.

Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a
favorable decision from the Commission on Elections to boot. Moreover, he now boasts of
having successfully passed through the third and last mode of reacquiring citizenship: by
repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the
prime opposing counsel in the previous cases he lost, this time, as counsel for
co-respondent Comelec, arguing the validity of his cause

On the basis of the parties' submissions, we are convinced that the presumption of
regularity in the performance of official duty and the presumption of legality in the
repatriation of Frivaldo have not been successfully rebutted by Lee

The mere fact that the proceedings were speeded up is by itself not a ground to conclude
that such proceedings were necessarily tainted. After all, the requirements of repatriation
under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome.

This is not unusual since, unlike in naturalization where an alien covets a first-time entry into
Philippine political life, in repatriation the applicant is a former natural-born Filipino who is
merely seeking to reacquire his previous citizenship.

But perhaps the more difficult objection was the one raised during the oral argument to the
effect that the citizenship qualification should be possessed at the time the candidate
(or for that matter the elected official) registered as a voter. After all, Section 39, apart
from requiring the official to be a citizen, also specifies as another item of qualification, that
he be a "registered voter."
 47

And, under the law a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could
not have been a voter-much less a validly registered one if he was not a citizen at the time of
such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended the citizenship qualification to be possessed prior to election consistent with the
requirement of being a registered voter, then it would not have made citizenship a
SEPARATE qualification.

The answer to this problem again lies in discerning the purpose of the requirement. If the law
intended the citizenship qualification to be possessed prior to election consistent with the
requirement of being a registered voter, then it would not have made citizenship a
SEPARATE qualification.

law intended
The law abhors a redundancy. It therefore stands to reason that the
CITIZENSHIP to be a qualification distinct from being a VOTER,
even if being a voter presumes being a citizen first.

voter requirement was included as another

It also stands to reason that the
qualification (aside from "citizenship"), not to reiterate the need for nationality
but to require that the official be registered as a voter IN THE AREA OR TERRITORY he
seeks to govern, i.e., the law states:

"a registered voter in the barangay, municipality, city, or province x x x where he

intends to be elected."

It should be emphasized that the Local Government Code requires an elective official to be
a registered voter. It does not require him to vote actually.

Hence, registration not the actual voting is the core

of this "qualification." In other words, the law's purpose in this second
requirement is to ensure that the prospective official is

actually registered in the area he seeks to govern

and not anywhere else.
It is thus clear that Frivaldo is a registered voter in the province where he intended to be
elected.
 48

There is yet another reason why the prime issue of citizenship should be

reckoned from the date of proclamation, not necessarily the

date of election or date of filing of the certificate of candidacy.

Section 253 of of OEC, remedy of Quo Warranto can be availed of

"within ten days after proclamation" of the winning

candidate.
But to remove all doubts on this important issue, we also hold that

the repatriation of Frivaldo

RETRO ACTED to the date of the filing of his application

on August 17,1994.

It is true that under the Civil Code of the Philippines,39 "(l)aws shall have no retroactive
effect, unless the contrary is provided." But there are settled exceptions40 to this general
rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES
NEW RIGHTS

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal
interpretation of Philippine laws and whatever defects there were in his nationality should
now be deemed mooted by his repatriation.
 49

Ramon Labo vs. COMELEC & Ortega ( As aforesaid, the ineligibility of a candidate
receiving majority votes does not entitle the candidate receiving the next highest
number of votes to be declared elected. Ortega failed to satisfy the necessary
requisite of winning the election either by a majority or mere plurality of votes
sufficient to elevate him in public office as mayor of Baguio City. Having lost in the
election for mayor, petitioner Ortega was obviously not the choice of the people of
Baguio City.)
G.R. No. 105111 July 3, 1992
BIDIN, J. En Banc

Facts:
Shortly after petitioner Labo filed his certificate of candidacy, petitioner Ortega filed on March
26, 1992, a disqualification proceeding against Labo before COMELEC seeking to cancel
Labo's certificate of candidacy on the ground that Labo made a false representation when
he stated therein that he (Labo) is a "natural-born" citizen of the Philippines.

At the said hearing, Ortega presented the decision of this Court in Labo v. COMELEC
declaring Labo not a citizen of the Philippines. petitioner submitted his Answer claiming
Filipino citizenship.

Commission RESOLVED, as it hereby resolves, to grant the petition; respondent's (Labo's)

certificate of candidacy is hereby DENIED due course and ordered CANCELLED; the City
Election Registrar of Baguio City is hereby directed to delete the name of the
respondent (Labo) from the list of candidates for City Mayor of Baguio City.

Labo filed a motion to stay implementation of said resolution until after he shall have raised
the matter before this Court. On May 10, 1992, respondent Comelec issued an Order which
reads:

Acting on the "Urgent Ex-Parte Motion for Clarification", filed by respondent (Labo)
on May 9, 1992, the Commission resolves that the decision promulgated on May 9, 1992
disqualifying respondent Ramon L. Labo, Jr., shall become final and executory only after five
(5) days from promulgation pursuant to Rule 18, Section 13, Paragraph (b) of the Comelec
Rules of Procedure.

Accordingly, respondent (Labo) may still continue to be voted upon as candidate

for City Mayor of Baguio City on May 11, 1992 subject to the final outcome of this case in
the event the issue is elevated to the Supreme Court either on appeal or certiorari.

On May 13, 1992, respondent Comelec resolved, motu proprio to suspend the
proclamation of Labo in the event he wins in the elections for the City Mayor of Baguio.

Issue: Whether (Labo) may still continue to be voted upon as candidate for City Mayor of
Baguio City on May 11, 1992 even COMELEC ordered his cancellation of COOC not being a
natural born citizen of PHL?
 50

Held: NO!

At any rate, the fact remains that he has not submitted in the instant case any evidence, if
there be any, to prove his reacquisition of Philippine citizenship either before this Court or
the Comelec. On this score alone, We find no grave abuse of discretion committed by
respondent Comelec in cancelling his (Labo's) certificate of candidacy and declaring that he
is NOT a Filipino citizen pursuant to our ruling in the 1989 case of Labo v. Comelec

Petitioner Labo claims, however, that Sec. 72 of the Omnibus Election Code "operates as a
legislatively mandated special repatriation proceeding" and that it allows his proclamation as
the winning candidate since the resolution disqualifying him was not yet final at the time the
election was held.

The Court finds petitioner Labo's strained argument quixotic and

untenable. In the first place, Sec. 72 of the Omnibus Election Code has already been
repealed by Sec. 6 of RA No. 6646, to wit:

Sec. 6. Effect of Disqualification Case. —

Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted.

If for any reason a candidate is not declared by final judgment before an election to
be disqualified and he is voted for and receives the winning number of votes in such
election, the Court or the Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.

A perusal of the above provision would readily disclose that the Comelec can legally
suspend the proclamation of petitioner Labo, his reception of the winning number of
Labo failed to present
votes notwithstanding, especially so where, as in this case.
any evidence before the Comelec to support his claim of
reacquisition of Philippine citizenship.

Petitioner Labo's status has not changed in the case at bar. To reiterate, he (Labo) was
disqualified as a candidate for being an alien. His election does not automatically restore his
Philippine citizenship, the possession of which is an indispensable requirement for holding
public office (Sec. 39, Local Government Code).
 51

Petitioner Ortega posits the view that as a result of

such finality, the candidate receiving the next
highest number of votes should be declared Mayor
of Baguio City.
We hold in the negative.

The disqualification of petitioner Labo does not necessarily entitle petitioner Ortega as the
candidate with the next highest number of votes to proclamation as the Mayor of Baguio
City.

While Ortega may have garnered the second highest number of votes for the office of city
mayor, the fact remains that he was not the choice of the sovereign will. Petitioner Labo
was overwhelmingly voted by the electorate for the office of mayor in the belief that he was
then qualified to serve the people of Baguio City and his subsequent disqualification does
not make respondent Ortega the mayor-elect.

This is the import of the recent case of Abella v. Comelec (201 SCRA 253 [1991]), wherein
we held that:

While it is true that SPC No. 88-546 was originally a petition to deny due course to
the certificate of candidacy of Larrazabal and was filed before Larrazabal could be
proclaimed, the fact remains that the local elections of Feb. 1, 1988 in the province of Leyte
proceeded with Larrazabal considered as a bona fide candidate.

The voters of the province voted for her in the sincere belief that she was a qualified
candidate for the position of governor. Her votes was counted and she obtained the highest
number of votes.

The net effect is that petitioner lost in the election. He was repudiated by the
electorate. . . . What matters is that in the event a candidate for an elected position who is
not
voted for and who obtains the highest number of votes is disqualified for
possessing the eligibility requirements at the time of the election as
provided by law, the candidate who obtains the second highest number
of votes for the same position cannot assume the vacated position.

Our ruling in Abella applies squarely to the case at bar and we see no compelling reason to
depart therefrom. Like Abella, petitioner Ortega lost in the election. He was repudiated by the
electorate. He was obviously not the choice of the people of Baguio City.
 52

Thus, while respondent Ortega (GR No. 105111) originally filed a disqualification case with
the Comelec (docketed as SPA-92-029) seeking to deny due course to petitioner's (Labo's)
candidacy, the same did not deter the people of Baguio City from voting for petitioner Labo,
who, by then, was allowed by the respondent Comelec to be voted upon, the resolution for
his disqualification having yet to attain the degree of finality.

The rule, therefore, is:

● the ineligibility
of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest
number of votes to be declared elected. A minority or defeated
candidate cannot be deemed elected to the office.

It is therefore incorrect to argue that since a candidate has been disqualified, the votes
intended for the disqualified candidate should, in effect, be considered null and void

This would amount to disenfranchising the electorate in whom sovereignty resides. At the
risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide,
without any intention to misapply their franchise, and in the honest belief that Labo was then
qualified to be the person to whom they would entrust the exercise of the powers of the
government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume
the office.

EXCEPTION

The rule would have been different if the electorate fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm of notoriety,
would nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes by notoriously
misapplying their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed elected.

As a consequence of petitioners' ineligibility, a permanent vacancy in the contested office

by the vice-mayor, in accordance with
has occurred. This should now be filled
Sec. 44 of the Local Government Code, to wit:

Chapter 2. Vacancies and Succession

Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor
and Vice-Mayor. — (a) If a permanent vacancy occurs in the office of the governor or mayor,
the vice-governor or the vice-mayor concerned shall become the governor or mayor. . . .
(emphasis supplied)
 53

WHEREFORE, the instant petitions are DISMISSED for lack of merit. Petitioners both being
ineligible for the Office of the City Mayor of Baguio City and in view of the vacancy created in
said office, the vice-mayor elect of said city in the May 11, 1992 elections is hereby declared
Mayor of Baguio City after proclamation by the City Board of Canvassers. No costs.
 54

Casan Maquiling vs. COMELEC et al ( We therefore hold that Arnado, by using his US
passport after renouncing his American citizenship, has recanted the same Oath of
Renunciation he took. Section 40(d) of the Local Government Code applies to his
situation. He is disqualified not only from holding the public office but even from
becoming a candidate in the May 2010 elections. Instead of treating the Petition as an
action for the cancellation of a certificate of candidacy based on misrepresentation,15
the COMELEC First Division considered it as one for disqualification hence 2nd
highest votes shall succeed)
G.R. No. 195649 April 16, 2013
SERENO, CJ. En Banc

Facts:
Respondent Arnado is a natural born Filipino citizen. However, as a
consequence of his subsequent naturalization as a citizen of the United
States of America, he lost his Filipino citizenship.

Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the Consulate
General of the Philippines in San Franciso, USA and took the Oath of Allegiance to the
Republic of the Philippines on 10 July 2008. On the same day an Order of Approval of his
Citizenship Retention and Re-acquisition was issued in his favor.

On 3 April 2009 Arnado again took his Oath of Allegiance to the Republic and executed
an Affidavit of Renunciation of his foreign citizenship, which states:

I, Rommel Cagoco Arnado, do solemnly swear that I absolutely and

perpetually renounce all allegiance and fidelity to the UNITED STATES OF AMERICA
of which I am a citizen, and I divest myself of full employment of all civil and political
rights and privileges of the United States of America.

Arnado filed his Certificate of Candidacy for

On 30 November 2009,
Mayor of Kauswagan, Lanao del Norte, which contains, among others, the
following statements:

● I am a natural born Filipino citizen / naturalized Filipino citizen.

● I am not a permanent resident of, or immigrant to, a foreign country.

On 28 April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a
petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor
of Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national
elections.

Linog Contended that Arnado is not a resident of Kauswagan, Lanao del Norte and
that he is a foreigner, attaching thereto a certification issued by the Bureau of
Immigration dated 23 April 2010 indicating the nationality of Arnado as
"USA-American."
 55

To further bolster his claim of Arnado’s US citizenship, Balua presented in his Memorandum
a computer-generated travel record dated 03 December 2009

indicating that Arnado has been using his US Passport No.

057782700 in entering and departing the Philippines.

The said record shows that Arnado left the country on 14 April 2009 and returned on
25 June 2009, and again departed on 29 July 2009, arriving back in the Philippines
on 24 November 2009.

COMELEC 1st Div. issued an Order requiring the respondent to personally file his answer
and memorandum within three (3) days from receipt thereof.

After Arnado failed to answer the petition, Balua moved to declare him in default and to
present evidence ex-parte.

Neither motion was acted upon, having been overtaken by the 2010 elections where Arnado
garnered the highest number of votes and was subsequently proclaimed as the
winning candidate for Mayor of Kauswagan, Lanao del Norte. It was only after his
proclamation that Arnado filed his verified answer,

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy
COMELEC First Division considered it as
based on misrepresentation, the
one for disqualification. First Division disagreed with Arnado’s claim
that he is a Filipino citizen.

We find that although Arnado appears to have substantially complied with the requirements
Arnado’s act of consistently using his US passport
of R.A. No. 9225,
after renouncing his US citizenship on 03 April 2009 effectively
negated his Affidavit of Renunciation.

Arnado’scontinued use of his US passport is a strong indication that

Arnado had no real intention to renounce his US citizenship and that he only
executed an Affidavit of Renunciation to enable him to run for
office.

We cannot turn a blind eye to the glaring inconsistency between Arnado’s unexplained use
of a US passport six times and his claim that he re-acquired his Philippine citizenship and
renounced his US citizenship.
 56

As noted by the Supreme Court in the Yu case, "a passport is defined as

an official document of identity and nationality

issued to a person intending to travel or sojourn
in foreign countries."

Surely,one who truly divested himself of US

citizenship would not continue to avail of privileges
reserved solely for US nationals.
COMELEC En Banc held that under Section 6 of Republic Act No. 6646, the Commission
"shall continue with the trial and hearing of the action, inquiry or protest even after the
proclamation of the candidate whose qualifications for office is questioned."

COMELEC En Banc reversed and set aside the ruling of the First Division and granted
Arnado’s Motion for Reconsideration, respondent embraced his Philippine citizenship as
though he never became a citizen of another country. It was at that time, April 3, 2009, that
the respondent became a pure Philippine Citizen again.

The use of a US passport … does not operate to revert back his status as a
dual citizen prior to his renunciation as there is no law saying such.

More succinctly, the use of a US passport does not operate to "un-renounce"

what he has earlier on renounced. The First Division’s reliance in the case of In Re:
Petition for Habeas Corpus of Willy Yu v. Defensor-Santiago, et al. is misplaced. The
petitioner in the said case is a naturalized citizen who, after taking his oath as a
naturalized Filipino, applied for the renewal of his Portuguese passport.

Strict policy is maintained in the conduct of citizens who are not natural born,
who acquire their citizenship by choice, thus discarding their original citizenship. The
Philippine State expects strict conduct of allegiance to those who choose to be its
citizens

Hence the case at bar.

Issue:
1st Issue: Whether the use of a foreign passport after renouncing foreign citizenship affects
one’s qualifications to run for public office?
 57

2nd Issue: Whether Maquiling garnering the second highest votes should succeed Arnado
as stated on succession in the Local Government Code?

Held: 1st Issue: Whether the use of a foreign passport after renouncing foreign citizenship
affects one’s qualifications to run for public office. YES!!

The use of foreign passport after renouncing one’s foreign citizenship is a

positive and voluntary act of representation as to one’s nationality and
citizenship; it does not divest Filipino citizenship regained by repatriation.

After reacquiring his Philippine citizenship, Arnado renounced his American citizenship
by executing an Affidavit of Renunciation, thus completing the requirements for
he was
eligibility to run for public office. By renouncing his foreign citizenship,
deemed to be solely a Filipino citizen, regardless of the effect of
such renunciation under the laws of the foreign country.

However, this
legal presumption does not operate permanently and is
open to attack when, after renouncing the foreign citizenship, the
citizen performs positive acts showing his continued possession of
a foreign citizenship.

Arnado himself subjected the issue of his citizenship to attack when, after renouncing his
foreign citizenship, he continued to use his US passport to travel in and out of the country
before filing his certificate of candidacy on 30 November 2009.

The pivotal question to determine is

whether he was solely and exclusively a
Filipino citizen at the time he filed his certificate of candidacy,
thereby rendering him eligible to run for public office? NO!

Between 03 April 2009, the date he renounced his foreign citizenship, and 30 November
2009, the date he filed his COC, he used his US passport four times, actions
that run counter to the affidavit of renunciation he had earlier executed. By using his foreign
in
passport, Arnado positively and voluntarily represented himself as an American,
effect declaring before immigration authorities of both countries
that he is an American citizen, with all attendant rights and
privileges granted by the United States of America.

Therenunciation of foreign citizenship is not a hollow oath that can

simply be professed at any time, only to be violated the next day. It
 58

requires an absolute and perpetual renunciation of the foreign citizenship and a full
divestment of all civil and political rights granted by the foreign country which granted the
citizenship.

While the act of using a foreign passport is not one of the acts enumerated in
Commonwealth Act No. 63 constituting renunciation and loss of Philippine citizenship,35

it is nevertheless an act which repudiates the very oath of renunciation required for a
former Filipino citizen who is also a citizen of another country to be qualified to run for
a local elective position.

When Arnado used his US passport on 14 April 2009, or just eleven days after he renounced
his American citizenship,
he recanted his Oath of Renunciation36 that he
"absolutely and perpetually renounce(s) all allegiance and fidelity to the
UNITED STATES OF AMERICA"37 and that he "divest(s) himself of full
employment of all civil and political rights and privileges of the United States of America."38

We agree with the COMELEC En Banc that such act of using a foreign passport does not
divest Arnado of his Filipino citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado voluntarily and effectively reverted to
his earlier status as a dual citizen. Such reversion was not retroactive; it took place the
instant Arnado represented himself as an American citizen by using his US passport.

This act of using a foreign passport after renouncing one’s foreign citizenship is fatal to
Arnado’s bid for public office, as it effectively imposed on him a disqualification to run for an
elective local position.

Dual Citizenship acquired through a positive act of

applying for naturalization vs. Dual Citizenship by
virtue of birth
Arnado’s category of dual citizenship is that by which foreign citizenship
is acquired through a positive act of applying for naturalization. This
is distinct from those considered dual citizens by virtue of birth, who are not
required by law to take the oath of renunciation as the mere filing of the certificate of
candidacy already carries with it an implied renunciation of foreign citizenship.

Dual citizens by naturalization, on the other hand, are

required to take not only the Oath of Allegiance to the
 59

Republic of the Philippines but also to personally

renounce foreign citizenship in order to qualify as a
candidate for public office.
By the time he filed his certificate of candidacy on 30 November 2009, Arnado was a dual
citizen enjoying the rights and privileges of Filipino and American citizenship. He was
qualified to vote, but by the express disqualification under Section 40(d) of the Local
Government Code,40 he was not qualified to run for a local elective position.

Qualifications for public office are continuing requirements and must be possessed not only
at the time of appointment or election or assumption of office but during the officer's entire
tenure. Once any of the required qualifications is lost, his title may be seasonably
citizenship requirement for elective public office is a
challenged.
continuing one. It must be possessed not just at the time of the renunciation of the
foreign citizenship but continuously. Any act which violates the oath of renunciation opens
the citizenship issue to attack.
 60

2nd Issue: Whether Maquiling garnering the second highest votes should succeed Arnado
as stated on succession in the Local Government Code? NO!!!

Resolving the third issue necessitates revisiting Topacio v. Paredes which is the
jurisprudential spring of the principle that a second-placer cannot be proclaimed as the
winner in an election contest. This doctrine must be re-examined and its soundness once
again put to the test to address the ever-recurring issue that a second-placer who loses to
an ineligible candidate cannot be proclaimed as the winner in the elections.

The electorate’s awareness of the candidate’s disqualification is not

a prerequisite for the disqualification to attach to the candidate The
very existence of a disqualifying circumstance makes the candidate
ineligible

With Arnado being barred from even becoming a candidate, his certificate of candidacy is
thus rendered void from the beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his disqualification prior to the elections
because he filed his answer to the petition when the elections were conducted already and
he was already proclaimed the winner.

Succession

Instead of treating the Petition as an action for the cancellation of a certificate of candidacy
based on misrepresentation,15 the COMELEC First Division considered it as one for
disqualification

Maquiling is not a second-placer as he obtained the highest number of votes from

among the qualified candidates.

Even when the votes for the ineligible candidate are disregarded, the will of the electorate is
still respected, and even more so. The votes cast in favor of an ineligible candidate do not
constitute the sole and total expression of the sovereign voice. The votes cast in favor of
eligible and legitimate candidates form part of that voice and must also be respected.

As in any contest, elections are governed by rules that determine the qualifications and
disqualifications of those who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is voided and the laurel is awarded to
the next in rank who does not possess any of the disqualifications nor lacks any of the
qualifications set in the rules to be eligible as candidates.
 61

Rommel Arando vs. COMELEC & Capitan ( at the time he filed his CoC on October 1,
2012 for purposes of the May 13, 2013 elections, Arnado had yet to comply with said
second requirement. The Comelec also noted that while Arnado submitted an affidavit
dated May 9, 2013, affirming his April 3, 2009 Affidavit of Renunciation, the same
would not suffice for having been belatedly executed )
G.R. No. 210164, August 18, 2015
DEL CASTILLO, J. En Banc

Facts:
Petitioner Arnado is a natural-born Filipino citizen who lost his Philippine citizenship after he
was naturalized as citizen of the United States of America. Subsequently, and in preparation
for his plans to run for public office in the Philippines, Arnado applied for repatriation under
Republic Act No. 92255 (RA 9225) before the Consul General of the Philippines in San
Franciso, USA.

He took an Oath of Allegiance to the Republic of the Philippines on July 10, 2008 and, on
even date, an Order of Approval of Citizenship Retention and Re­acquisition was issued in
his favor. On April 3, 2009, Arnado executed an Affidavit of Renunciation of his foreign
citizenship. On November 30, 2009, Arnado filed his Certificate of Candidacy (CoC) for the
mayoralty post of Kauswagan, Lanao del Norte for the May 10, 2010 national and local
elections.

Linog C. Balua (Balua), another mayoralty candidate, however, filed a petition to disqualify
Arnado and/or to cancel his CoC on the ground, among others, that Arnado remained a US
citizen because he continued to use his US passport for entry to and exit from the
Philippines after executing aforesaid Affidavit of Renunciation.

While Balua's petition remained pending, the May 10, 2010 elections proceeded where
Arnado garnered the highest number of votes for the mayoralty post of Kauswagan. He was
proclaimed the winning candidate.

On October 5, 2010, the Comelec First Division issued a Resolution holding that Arnado's
continued use of his US passport effectively negated his April 3, 2009 Affidavit of
Renunciation. Thus, he was disqualified to run for public office for failure to comply with the
requirements of RA 9225. The Comelec First Division accordingly nullified his proclamation
and held that the rule on succession should be followed. Arnado moved for
reconsideration.

In the meantime, Casan Macode Maquiling (Maquiling), another mayoralty candidate who
garnered the second highest number of votes, intervened in the case. He argued that the
Comelec First Division erred in applying the rule on succession.

Comelec En Banc rendered a Resolution reversing the ruling of the Comelec First Division.
Maquiling then sought recourse to this Court by filing a petition docketed as G.R No.
195649.
 62

While G.R No. 195649 was pending, the period for the filing of CoCs for local elective
officials for the May 13, 2013 elections officially began. On October 1, 2012, Arnado
filed his CoC for the same position. Respondent Capitan also filed his CoC for the
mayoralty post of Kauswagan.

On April 16, 2013, this Court rendered its Decision in Maquiling. Voting 10-5, it annulled and
set aside the Comelec En Banc's February 2, 2011 Resolution, disqualified Arnado
from running for elective position, and declared Maquiling as the duly
elected mayor of Kauswagan, Lanao Del Norte in the May 10, 2010
elections. In so ruling, the majority of the Members of the Court opined that in his
subsequent use of his US passport, Arnado effectively disavowed or recalled his April 3,
2009 Affidavit of Renunciation.

issuance of this Court's April 16, 2013 Decision sets the stage for the present controversy.

On May 9, 2013 or shortly after the Court issued its Decision in Maquiling, Arnado executed
an Affidavit Affirming Rommel C. Arnado's "Affidavit of Renunciation Dated April3,
2009."8cralawrednad

The following day or on May 10, 2013, Capitan, Arnado's lone rival for the mayoralty post,
filed a Petition seeking to disqualify him from running for municipal mayor of
Kauswagan and/or to cancel his CoC based on the ruling of this Court in Maquiling.

The resolution of said petition was, however, overtaken by the May 13, 2013 elections where
Arnado garnered 8,902 votes (84% of the total votes cast) while Capitan obtained 1,707
(16% of the total votes cast) votes only. On May 14, 2013, Arnado was proclaimed as
the winning candidate.

Unfazed, Capitan filed another Petition this time seeking to nullify Arnado's proclamation. He
argued that with the April 16, 2013 Decision of this Court in Maquiling, there is no doubt that
Arnado is disqualified from running for any local elective office. Hence, Arnado's
proclamation is void and without any legal effect.

Ruling of the Comelec Second Division

Comelec Second Division promulgated a Resolution granting the petition in and disqualify
Arnado from running in the May 13, 2013 elections. Following Maquiling, it ratiocinated
that at the time he filed his CoC on October 1, 2012, Arnado still failed to comply with the
requirement of RA 9225 of making a personal and sworn renunciation of any and all foreign
citizenship.

While he executed the April 3, 2009 Affidavit of Renunciation, the same was deemed
withdrawn or recalled when he subsequently traveled abroad using his US passport, as held
in Maquiling
 63

Comelec Second Division also noted that Arnado failed to execute another Affidavit of
Renunciation for purposes of the May 13, 2013 elections. While a May 9, 2013 Affidavit
Affirming Rommel C. Arnado's "Affidavit of Renunciation dated April 3, 2009" was submitted
in evidence, the same would not suffice because it should have been executed on or before
the filing of the CoC on October 1, 2012.

Comelec En Banc affirmed the ruling of the Comelec Second Division. It accordingly
annulled the proclamation of Arnado and declared Capitan as the duly elected mayor
of Kauswagan.

Issues:

1st: Whether Arnado was disqualified for not FULLY COMPLIED WITH THE
REQUIREMENTS OF RA 9225 BEFORE THE FILING OF HIS COC ON OCTOBER 1,
2012?

2nd: Whether Capitan receiving the 2nd highest votes shall be proclaimed winner
disenfranchising 84% of the voters of Kauswagan who all voted Arnado? YES! SAME as
MAquiling CASE

Held: 1st: Whether Arnado was disqualified for not FULLY COMPLIED WITH THE
REQUIREMENTS OF RA 9225 BEFORE THE FILING OF HIS COC ON OCTOBER 1,
2012? YES!

Arnado has not yet satisfied the twin

requirements of Section 5(2) of RA 9225 at
the time he filed his CoC for the May 13, 2013
elections; subsequent compliance does not suffice.

Under Section 40(d) of the Local Government Code, a person with "dual
citizenship"is disqualified from running for any
elective local position.
In Mercado v. Manzano, it was clarified that the phrase "dual citizenship" in said Section
40(d) must be understood as referring to "dual allegiance.'' Subsequent,
Congress enacted RA 9225 allowing natural-born citizens of the Philippines who have lost
their Philippine citizenship by reason of their naturalization
abroad to reacquire Philippine citizenship and to enjoy full civil and political rights upon
compliance with the requirements of the law.
 64

They may now run for public office in the Philippines provided that they:

(1) meet the qualifications for holding such public office as required by the Constitution and
existing laws; and,

(2) make a personal and sworn renunciation of any and all foreign citizenships before any
public officer authorized to administer an oath prior to or at the time of filing of their CoC.

In the case at bench, the Comelec Second Division, as affirmed by the Comelec En
Banc, ruled that Arnado failed to comply with the second requisite of Section 5 (2) of RA
9225 because, as held in Maquiling v. Commission on Elections,47 his April 3, 2009 Affidavit
of Renunciation was deemed withdrawn when he used his US passport after executing said
affidavit.

Consequently, at the time he filed his CoC on October 1, 2012 for purposes of the May
13, 2013 elections, Arnado had yet to comply with said second requirement. The
Comelec also noted that while Arnado submitted an affidavit dated May 9, 2013,
affirming his April 3, 2009 Affidavit of Renunciation, the same would not suffice for
having been belatedly executed.

The circumstances surrounding the qualification of Arnado to run for public

office during the May 10, 2010 and May 13, 2013 elections, to reiterate for
emphasis, are the same. Arnado's use of his US passport in 2009 invalidated his
oath of renunciation resulting in his disqualification to run for mayor of Kauswagan in
the 2010 elections. Since then and up to the time he filed his CoC for the 2013
elections, Arnado had not cured the defect in his qualification.

Landslide election victory cannot

override eligibility requirements.

In Maquiling, this Court emphasized that popular vote does not cure the ineligibility of
a candidate. Thus, while in this case Arnado won by landslide majority during the
2013 elections, garnering 84% of the total votes cast, the same "cannot override
the constitutional and statutory requirements for qualifications and
disqualifications."

If in Velasco the Court ruled that popular vote cannot override the required
qualifications under Section 39 LGC,a fortiori, there is no reason why the
Court should not follow the same policy when it comes to disqualifications
enumerated under Section 40 of the same law
 65

After all, "[t]he qualifications set out in [Section 39] are roughly half of the
requirements for election to local public offices. The other half is contained in the
succeeding section which lays down the circumstances that disqualify local
candidates."

In fine, this Court finds no grave abuse of discretion on the part of the Comelec En
Banc in sustaining the Resolution of the Comelec Second Division disqualifying
Arnado from running in the May 13, 2013 elections and in accordingly setting aside
his proclamation as elected mayor of Kauswagan, Lanao del Norte and proclaiming
Capitan as the duly elected mayor of said municipality.

WHEREFORE, the instant Petition is hereby DISMISSED and the assailed Comelec
Resolutions are AFFIRMED. The Status Quo Ante Order issued by this Court is
LIFTED.
 66

Dominador Jalosjos Jr. vs.COMELEC & Agapito Cardino ( Jalosjos’ ineligibility existed on
the day he filed his certificate of candidacy )
G.R. No. 193237 October 9, 2012
CARPIO, J. En Banc

Facts:
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Zamboanga del Norte
in the May 2010 elections. Jalosjos was running for his third term. Cardino filed on 6
December 2009 a petition under Section 78 of the Omnibus Election Code to deny due
course and to cancel the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos
made a false material representation in his certificate of candidacy when he declared under
oath that he was eligible for the Office of Mayor.

Cardino claimed that long before Jalosjos filed his C.O.C, Jalosjos had already been
convicted by final judgment for robbery and sentenced to prisión mayor by RTC of
Cebu. Cardino asserted that Jalosjos has not yet served his sentence. Jalosjos admitted
his conviction but stated that he had already been granted
probation.
Cardino countered that the RTC revoked Jalosjos’ probation in an Order dated 19 March
1987. Jalosjos refuted Cardino and stated that the RTC issued an Order dated 5 February
2004 declaring that Jalosjos had duly complied with the order of probation. Jalosjos further
stated that during the 2004 elections the COMELEC denied a petition for disqualification filed
against him on the same grounds.

On 10 May 2010, the COMELEC First Division granted Cardino’s petition and cancelled
Jalosjos’ certificate of candidacy. COMELEC First Division concluded that

"Jalosjos has indeed committed material misrepresentation in his certificate of

candidacy when he declared, under oath, that he is eligible for the office he seeks to be
elected to when in fact he is not by reason of a final judgment in a criminal case, the
sentence of which he has not yet served."

COMELEC First Division found that Jalosjos’ certificate of compliance of probation was
fraudulently issued. thus, Jalosjos has not yet served his sentence. The penalty
indeterminate sentence of one year, eight
imposed on Jalosjos was the
months and twenty days of prisión correccional as minimum, to
four years, two months and one day of prisión mayor as maximum.

The COMELEC First Division ruled that Jalosjos "is not eligible by reason of his
disqualification as provided for in Section 40(a) of Republic Act No. 7160. "

COMELEC En Banc denied Jalosjos’ MR 11 August 2010,

 67

“Jalosjos is disqualified to run for an elective position or to hold public office. His
proclamation as the elected mayor in the May 10, 2010 election does not deprive the
Commission of its authority to resolve the present petition to its finality, and to oust him from
the office he now wrongfully holds.”

Jalosjos then filed a Manifestation on 1 June 2012 which stated that "he
has resigned
from the position of Mayor of the City of Dapitan effective 30 April
2012, which resignation was accepted by the Provincial Governor of Zamboanga del Norte,
Atty. Rolando E. Yebes." Jalosjos’ resignation was made "in deference with the provision of
the Omnibus Election Code in relation to his candidacy as Provincial Governor of
Zamboanga del Sur in May 2013."

Issue:
1st Issue: Whether Jalosjos was disqualified to run as candidate for Mayor?

2nd: Whether COMELEC acted with grave abuse of discretion amounting to lack or excess
of jurisdiction when it added to the dispositive portion of its 11 August 2010 Resolution that
the provisions of the Local Government Code on succession should apply ?

Held: 1st Issue: Whether Jalosjos was disqualified to run as candidate for Mayor? YES!

The perpetual special disqualification against Jalosjos arising from his criminal conviction by
proper ground for
final judgment is a material fact involving eligibility which is a

a petition under Section 78 of the Omnibus Election

Code.

Jalosjos’ certificate of candidacy was void from the

start since he was not eligible to run for any public office at the time
he filed his certificate of candidacy.

As a result of Jalosjos’ certificate of candidacy

being void ab initio, Cardino, as the only qualified
candidate, actually garnered the highest number of votes for the
position of Mayor.

The dissenting opinions affirm with modification the 10 May 2010 Resolution of the
COMELEC First Division and the 11 August 2010 Resolution of the COMELEC En
Banc.
 68

erroneously limit the remedy against

The dissenting opinions

Jalosjos to disqualification under Section 68 of the

Omnibus Election Code and apply the rule on succession under the Local
Government Code.

A false statement in a certificate of candidacy that a candidate is eligible

to run for public office is a false material representation which is a
ground for a petition under Section 78 of the same Code. Sections 74
and 78 read:

Sec. 74. Contents of certificate of candidacy. –

The certificate of candidacy shall state that the person filing it is announcing his candidacy for
the office stated therein and that he is eligible for said office;

if for Member of the Batasang Pambansa, the province, including its component cities, highly
urbanized city or district or sector which he seeks to represent; the political party to which he belongs;
civil status; his date of birth; residence; his post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of the Philippines and will maintain true faith
and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the
obligation imposed by his oath is assumed voluntarily, without mental reservation or purpose of evasion;
and that the facts stated in the certificate of candidacy are true to the best of his knowledge.

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. –

A verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by the person exclusively on the ground that any material representation contained therein as
required under Section 74 hereof is false. The petition may be filed at any time not later than
twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before the election.

Section 74 requires the candidate to state under oath in his

certificate of candidacy "that he is eligible for said office." A candidate
is eligible if he has a right to run for the public office.

If a candidate is not actually eligible because he is barred by final

judgment in a criminal case from running for public office, and he
still states under oath in his certificate of candidacy that he is
eligible to run for public office, then the candidate clearly makes a false material
representation that is a ground for a petition under Section 78.
 69

A sentence of prisión mayor by final judgment is a ground for

disqualification under Section 40 of the Local Government Code
and under Section 12 of the Omnibus Election Code.

material fact involving the eligibility of a candidate under

It is also a
Sections 74 and 78 of the Omnibus Election Code.

Thus, a person can file a petition under

● Section 40 of the Local Government Code or

● under either Section 12 or

● Section 78 of the Omnibus Election Code.

The pertinent provisions read:

Section 40, Local Government Code:

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

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

The penalty of prisión mayor automatically carries with it, by operation of law, the
accessory penalties of temporary absolute disqualification and
perpetual special disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of "deprivation of the right to vote in
any election for any popular elective office or to be elected to such office."

Both temporary absolute disqualification and

perpetual special disqualification constitute
ineligibilities to hold elective public office.
A person suffering from these ineligibilities is ineligible to run for elective public office, and
commits a false material representation if he states in his certificate of candidacy that he is
eligible to so run.

Perpetual special disqualification is a ground for a petition under Section 78 of the

Omnibus Election Code because this accessory penalty is an ineligibility, which means
that the convict is not eligible to run for public office, contrary to the statement that
Section 74 requires him to state under oath.
 70

"eligible" means having the right to run

As used in Section 74, the word

for elective public office, that is, having all the qualifications
and none of the ineligibilities to run for public office.
As this Court held in Fermin v. Commission on Elections,

● the false material representation may refer to "qualifications or eligibility."

One who suffers from perpetual special disqualification is ineligible to run for
public office. If a person suffering from perpetual special disqualification files a
certificate of candidacy stating under oath that "he is eligible to run for (public) office,"
as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78

As this Court explained in Fermin:

Lest ( Preventing ) it be misunderstood, the denial of due course to or the

not based on the lack of qualifications but on a
cancellation of the CoC is
finding that the candidate made a material representation that is
false, which may relate to the qualifications required of the
public office he/she is running for.

It is noted that the candidate states in his/her CoC that he/she is eligible for
the office he/she seeks. Section 78 of the OEC, therefore, is to be read in relation to
the constitutional and statutory provisions on qualifications or
eligibility for public office. If the candidate subsequently states a material
representation in the CoC that is false, the COMELEC, following the law, is empowered to
deny due course to or cancel such certificate.

Indeed, the Court has already likened a proceeding under Section 78 to a quo warranto
both deal with the eligibility
proceeding under Section 253 of the OEC since they
or qualification of a candidate, with the distinction mainly in the fact
that a "Section 78" petition is filed before proclamation, while a
petition for quo warranto is filed after proclamation of the winning
candidate.
 71

Conviction for robbery by final judgment with the penalty of prisión mayor, to which
perpetual special disqualification attaches by operation of law, is

● not a ground for a petition under Section 68 because robbery is

not one of the offenses enumerated in Section 68.

Section 68 refers only to election offenses

Insofar as crimes are concerned,
under the Omnibus Election Code and not to crimes under the Revised Penal
Code. For ready reference, we quote again Section 68 of the Omnibus Election Code:

Sec. 68. Disqualifications. — Any candidate who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty of, or found by the Commission of having (a) given money
or other material consideration to influence, induce or corrupt the voters or public officials performing electoral
functions;

(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in excess
of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc,
sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding the
office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.

There is absolutely nothing in the language of Section 68 that will justify including the
crime of robbery as one of the offenses enumerated in this Section. All the
offenses enumerated in Section 68 refer to offenses under the
Omnibus Election Code. The dissenting opinion of Justice Reyes gravely errs when
it holds that Jalosjos’ conviction for the crime of robbery under the Revised Penal Code is a
ground for "a petition for disqualification under Section 68 of the OEC and not for
cancellation of COC under Section 78 thereof.

This Court has already ruled that offenses punished in laws other
than in the Omnibus Election Code cannot be a ground for a
petition under Section 68.

In Codilla, Sr. v. de Venecia, the Court declared:

The jurisdiction of the COMELEC to disqualify candidates is limited to those

enumerated in Section 68 of the Omnibus Election Code. All other election offenses are
beyond the ambit of COMELEC jurisdiction.They are criminal and not administrative in
nature. (Emphasis supplied)
 72

A candidate for mayor during the 2010 local

elections certifies under oath four statements:
(1) a statement that the candidate is a natural born or naturalized Filipino citizen;

(2) a statement that the candidate is not a permanent resident of, or immigrant to, a
foreign country;

(3) a statement that the candidate is eligible for the office he seeks election; and

(4) a statement of the candidate’s allegiance to the Constitution of the Republic of the
Philippines.

We now ask: Did Jalosjos make a false statement of a material fact in his certificate of
candidacy when he stated under oath that he was eligible to run for mayor?

What is indisputably clear is that the false material representation of Jalosjos is a ground
for a petition under Section 78. However, since the false material representation arises
a petition under Section 12 of the
from a crime penalized by prisión mayor,
Omnibus Election Code or Section 40 of the Local Government
Code can also be properly filed.

The petitioner has a choice whether to anchor his petition on

● Section 12 or
● Section 78 of the Omnibus Election Code, or
● on Section 40 of the Local Government Code.

The law expressly provides multiple remedies and the choice of which remedy to adopt
belongs to the petitioner.

TheCOMELEC properly cancelled Jalosjos’ certificate of candidacy.

A void certificate of candidacy on the ground of ineligibility that
existed at the time of the filing of the certificate of candidacy can
never give rise to a valid candidacy, and much less to valid votes.

Jalosjos’ certificate of candidacy was cancelled

because he was ineligible from the start to run for
Mayor.
 73

Candidate Disqualified; Second highest number of

votes be declared winner
As an exceptional situation, however, the candidate with the second highest number of
votes (second placer) may be validly proclaimed as the winner in the elections should the
winning candidate be disqualified by final judgment before the elections, as clearly
provided in Section 6 of R.A. No. 6646

The same effect obtains when the electorate is fully aware, in fact and in law and within
the realm of notoriety, of the disqualification, yet they still voted for the disqualified
candidate. In this situation, the electorate that cast the plurality of votes in favor of the
notoriously disqualified candidate is simply deemed to have waived their right to vote.

While it is apparent from the undisputed facts that Cardino did indeed file a petition for denial
it is obvious as well, based
and/or the cancellation of Jalosjos’ CoC,

on the above discussions, that the ground he cited

was not appropriate for the cancellation of Jalosjos’
CoC but for his disqualification.
 74

Vivenne Tan vs. Bingbong Crisologo ( Voting ito, RA 9225 walang retoractive effec sa
voting rights if PHL citizen lost BEFORE RA 9225, Tan took an Oath of Allegiance to
the U.S.A. on 19 January 1993, prior to the enactment of R.A. No. 9225 on 29 August
2003. If we were to effect as retroactive Tan's Philippine citizenship to the date she
lost her Philippine citizenship, then the different use of the words "reacquire" and
"retain" in R.A. No. 9225 would effectively be futile )
G.R. No. 193993 November 8, 2017
MARTIRES, J. 3rd Div.

Facts:
On 19 January 1993, Tan, born to Filipino parents, became a naturalized citizen of the
United States of America. On 26 October 2009, Tan applied to be registered as a
voter in Quezon City. She indicated that she was a Filipino .Citizen by birth. Her
application was approved by the Election Registration Board (ERB) on 16 November 2009
making her a registered voter of Precinct 0853-A, Sto. Domingo, Quezon City.

On 30 November 2009, Tan took an Oath of Allegiance to the Republic of the Philippines
before a notary public in Makati City. The following day, or on 1 December 2009, she filed a
petition before the Bureau of Immigration (BI) for the reacquisition of her Philippine
citizenship. She stated in her petition that she lost her Philippine citizenship when she
became a naturalized American citizen. However, Tan executed a sworn declaration
renouncing her allegiance to the U.S.A.9 Thereafter, the BI confirmed her
reacquisition of Philippine citizenship.

On the same day, Tan filed her C.O.C for the 2010 National Elections to run as
congresswoman for the First District of Quezon City. On 28 December 2009, respondent
Crisologo filed a petition before the MeTC seeking the exclusion of Tan from the voter's list
because

(1) she was not a Filipino citizen when she registered as a voter; and

(2) she failed to meet the residency requirement of the law.

Tan countered that she is a natural-born citizen having been born to Filipino parents on 1
April 1968. Although she became a naturalized American citizen on 19 January 1993, Tan
claimed that since 1996 she had effectively renounced her American citizenship as she
had been continuously residing in the Philippines. She had also found employment within the
country and even set up a school somewhere in Greenhills.

MeTC rendered a decision excluding Tan from the voter's list. held that she was not a
Filipino citizen at the time that she registered as a voter. RTC reversed MeTC, dismissed for
lack of merit ut her questioned citizenship was cured when [Tan] made the following acts:

1) She took an oath of allegiance to the Republic of the Philippines on November 30,
2009; etc
 75

Crisologo filed a petition for certiorari before the CA.18 He argued that Tan should have
been excluded from the list of registered voters for failure to meet the citizenship and
residency requirement to be registered as a voter. CA reversed RTC and reinstated
MeTC’s decision. Hence the case at bar.

Issue: Whether whether Tan can be considered a Philippine citizen at the time she registered
as a voter?

Held: NO

In the light of factual circumstances of this case and considering the plain meaning of the
words "reacquire" and "retain," we find it fitting to address the seeming confusion brought
about by Section 2 of R.A. No. 9225.

In other words, by declaring "deemed to have not lost their Philippine citizenship," does this
mean that once Philippine citizenship is reacquired after taking the Oath of Allegiance
required in R.A. No. 9225, the effect on the citizenship status retroacts to the period before
taking said oath. We rule in the negative.
While the facts and issue in the case at bar do not involve the same matters discussed in
Maquiling and in Arnado, the Court's position on renunciation and its effect lead us to
conclude that once Philippine citizenship is renounced because of naturalization in a foreign
country, we cannot consider one a Filipino citizen unless and until his or her allegiance to the
Republic of the Philippines is reaffirmed.

Simply stated, right after a Filipino renounces allegiance to our

country, he or she is to be considered a foreigner. Note that Tan's
act of acquiring U.S. citizenship had been a conscious and
voluntary decision on her part

A natural-born Filipino citizen who

renounces his or her Philippine
citizenship, effectively becomes a
foreigner in the Philippines with no
political right to participate in
Philippine politics and governance.

The right to vote is reserved for Filipino citizens. The Constitution is clear on this matter:

Section 1. Suffrage may be exercised by all citizens of the Philippines, not

otherwise disqualified by law who are at least eighteen years of age, and who shall
have resided in the Philippines for at least one year and in the place wherein they
propose to vote for at least six months immediately preceding the election. No
 76

literacy, property, or other substantive requirement shall be imposed on the exercise

of suffrage.

This constitutional provision is reflected in R.A. No. 8189 this way: "[a]ll citizens of the
Philippines not otherwise disqualified by law who are at least eighteen (18) years of age, and
who shall have resided in the Philippines for at least one (1) year, and in the place
wherein they propose to vote, for at least six (6) months immediately preceding the
election, may register as a voter."

Without any doubt, only Filipino citizens are qualified to vote and may be included in
the permanent list of voters. Thus, to be registered a voter in the Philippines, the
registrant must be a citizen at the time he or she .filed the
application.

In the present case, it is undisputed that Tan filed her voter's registration
application on 26 October 2009, and that she only took her Oath of
Allegiance to the Republic of the Philippines on 30 November 2009, or
more than a month after the ERB approved her application.

In the light of factual circumstances of this case and considering the plain meaning of the
words "reacquire" and "retain," we find it fitting to address the seeming confusion brought
about by Section 2 of R.A. No. 9225.

In other words, by declaring "deemed to have not lost their Philippine citizenship," does this
mean that once Philippine citizenship is reacquired after taking the Oath of Allegiance
required in R.A. No. 9225, the effect on the citizenship status retroacts to the period before
taking said oath. We rule in the negative.

Renunciation or the relinquishment of one's

citizenship

requires a voluntary act for it to produce any legal effect. This willingness to disassociate
from a political community is manifested by swearing to an oath. If we were to consider the
words in the Oath of Allegiance as meaningless, the process laid out under the law to effect
naturalization would be irrelevant and useless.

Tan took an Oath of Allegiance to the U.S.A. on 19 January 1993, prior to the enactment of
R.A. No. 9225 on 29 August 2003. If we were to effect as retroactive Tan's Philippine
citizenship to the date she lost her Philippine citizenship, then the different use of the words
"reacquire" and "retain" in R.A. No. 9225 would effectively be futile.
 77

An interpretation giving R.A. No. 9225 a retroactive effect to those who have
lost their Philippine citizenship through naturalization by a foreign country prior to
R.A. No. 9225 (dapat AAFTER Kasi) would cause
confusion to what is stated in Section 3:

● "natural-born citizens by reason of their naturalization as citizens of a foreign country

are hereby deemed to have reacquired Philippine citizenship upon taking the
following oath of allegiance to the Republic."

To go beyond what the law says and interpret it in its ordinary and plain meaning would be
tantamount to judicial legislation.
 78

CICERON ALTAREJOS v. COMELEC

G.R. NO. 163256 : November 10, 2004
En Banc

Held: Altrejo’s reacquisition of citizenship retroacts to the day of his filing os

application or COC

Petitioner points out that

● hetook his Oath of Allegiance to the Republic of the Philippines on

December 17, 1997.

● In view thereof, he
ran and was even elected as Mayor of San Jacinto,
Masbate during the 1998 elections.

● He argues that if there was delay in the registration of his Certificate of Repatriation
with the Bureau of Immigration and with the proper civil registry, the same was
brought about by the inaction on the part of said offices since the records of the
Special Committee on Naturalization show that his Certificate of Repatriation and
Oath of Allegiance have long been transmitted to said offices.

Petitioner also asserts that the

● subsequent registration of his Certificate of Repatriation with the

Bureau of Immigration and with the Civil Registry of Makati City
prior to the May 10, 2004 elections

has the effect of curing the defect, if any, in the reacquisition of

his Filipino citizenship as his repatriation i

Section 2 of Republic Act No. 8171, thus:

SEC. 2. Repatriation shall be effected by

a. taking the necessary oath of allegiance to the Republic of the Philippines

b. and registration in the proper civil registry and in the Bureau

of Immigration.
 79

The Bureau of Immigration shall thereupon cancel the pertinent alien certificate of
registration and issue the certificate of identification as Filipino citizen to the
repatriated citizen.

repatriation is effected "by taking the oath of allegiance

The law is clear that
to the Republic of the Philippines and registration in the proper civil
registry and in the Bureau of Immigration."

In this case,

1. petitioner took his Oath of Allegiance on December 17, 1997,

Certificate of Repatriation was registered with the

2. but his
Civil Registry of Makati City only after six years or on
February 18, 2004, and with the Bureau of Immigration on
March 1, 2004.

Petitioner, therefore, completed all the requirements of repatriation only

after he filed his certificate of candidacy for a mayoralty
position,

but before the elections.

When does the citizenship qualification of a candidate for an elective office

apply?

time of
IN FRIVALDO V. COMELEC, Citizenship qualification as applying to the
PROCLAMATION of the elected official and AT THE START
OF his term.

the Court ruled that "the

repatriation of Frivaldo RETROACTED
to the date of the FILING OF HIS APLICATION

PRESENT CASE, Accordingly,

 80

● petitioner's repatriation retroacted to the date he filed his

application in 1997.

Petitioner was, therefore, qualified to run for a mayoralty

position in the government in the May 10, 2004 elections.
Apparently, the COMELEC was cognizant of this fact since it did not implement the
assailed Resolutions disqualifying petitioner to run as mayor of San Jacinto,
Masbate.
 81

Rommel Jalosjos vs. COMELEC & Dan Erasmo ( It is inevitable under these guidelines
and the precedents applying them that Jalosjos has met the residency requirement
for provincial governor of Zamboanga Sibugay )
April 24, 2012 G.R. No. 191970
ABAD, J. En Banc

Facts:
Petitioner Rommel Jalosjos was born in Quezon City on October 26, 1973. He migrated to
Australia in 1981 when he was eight years old and there acquired Australian citizenship.
On November 22, 2008, at age 35, he decided to return to the Philippines and lived with his
brother, Romeo, Jr., in Barangay Veterans Village, Ipil, Zamboanga Sibugay.

Four days upon his return, he took an oath of allegiance to the Republic of the Philippines,
resulting in his being issued a Certificate of Reacquisition of Philippine Citizenship by
the Bureau of Immigration. On September 1, 2009 he renounced his Australian
citizenship, executing a sworn renunciation of the same in compliance with Republic Act
(R.A.) 9225.

From the time of his return, Jalosjos acquired a residential property in the same village
where he lived and a fishpond in San Isidro, Naga, Zamboanga Sibugay. He applied for
registration as a voter in the Municipality of Ipil but respondent Dan Erasmo, Sr., the
Barangay Captain of Barangay Veterans Village, opposed the same.

Acting on the application, Election Registration Board approved it and included Jalosjos
name in COMELEC voters list for Precinct 0051F of Barangay Veterans Village, Ipil,
Zamboanga Sibugay. Undaunted, Erasmo filed before MCTC. in Ipil a petition for the
exclusion of Jalosjos name from the official voters list. After hearing, the MCTC
rendered a decision, denying the petition

On appeal, the Regional Trial Court (RTC) affirmed the MCTC decision. The RTC decision
became final and executory. On November 28, 2009 Jalosjos filed his COC for
Governor of Zamboanga Sibugay Province for the May 10, 2010 elections.

Erasmo promptly filed a petition to deny due course or to cancel Jalosjos COC on the
ground that the latter made material misrepresentation in the same since he failed to comply
with (1) the requirements of R.A. 9225 and (2) the one-year residency requirement of
LGC

After hearing, the Second Division of the COMELEC ruled that, while Jalosjos had regained
Philippine citizenship by complying with the requirements of R.A. 9225, he failed to prove the
residency requirement for a gubernatorial candidate. He failed to present ample proof of
a bona fide intention to establish his domicile in Ipil, Zamboanga Sibugay.

COMELEC En Banc affirmed the Second Divisions decision, ruling that Jalosjos had been a
mere guest or transient visitor in his brothers house and, for this reason, he cannot
claim Ipil as his domicile.
 82

Meanwhile, Jolosjos won the election and was proclaimed winner of the 2010 gubernatorial
race in the Province of Zamboanga Sibugay. Hence the case at bar.

Issue: Whether Jalosjos was able to present ample proof of a bona fide intention to establish
his domicile in Ipil, Zamboanga Sibugay?

Held: YES!

It is inevitable under these guidelines and the precedents applying them that Jalosjos has
met the residency requirement for provincial governor of Zamboanga Sibugay.

The Local Government Code requires a candidate seeking the position of provincial
governor to be a resident of the province for at least one year before the election.[9] For
purposes of the election laws, the requirement of residence is synonymous with domicile,

There is no hard and fast rule to determine a candidates compliance with residency
requirement since the question of residence is a question of
intention.

Still, jurisprudence has laid down the following guidelines:

(a) every person has a domicile or residence somewhere;

(b) where once established, that domicile remains until he acquires a new one; and
(c) a person can have but one domicile at a time

It is inevitable under these guidelines and the precedents applying them that Jalosjos has
met the residency requirement for provincial governor of Zamboanga Sibugay.

One. The COMELEC appears hasty in concluding that Jalosjos failed to prove that he
successfully changed his domicile to Zamboanga Sibugay. The COMELEC points out that,
since he was unable to discharge the burden of proving Zamboanga Sibugay to be his
rightful domicile, it must be assumed that his domicile is either Quezon City or Australia.

is clear from the facts that Quezon City was Jalosjos

But it
domicile of origin, the place of his birth. It may be taken for granted that
he effectively changed his domicile from Quezon City to Australia when he migrated there at
the age of eight, acquired Australian citizenship, and lived in that country for 26 years.
Australia became his domicile by operation of law and by choice.
 83

On the other hand, when he came to the Philippines in November 2008 to live with his
evident that Jalosjos did so with intent
brother in Zamboanga Sibugay, it is
to change his domicile for good. He left Australia, gave up his
Australian citizenship, and renounced his allegiance to that
country.

he reacquired his old citizenship by taking an oath of allegiance

In addition,
to the Republic of the Philippines, resulting in his being issued a
Certificate of Reacquisition of Philippine Citizenship by the Bureau of
Immigration. By his acts, Jalosjos forfeited his legal right to live in Australia, clearly proving
that he gave up his domicile there.

And he has since lived nowhere else except in Ipil, Zamboanga

Sibugay.

Two. The COMELEC concluded that Jalosjos has not come to settle his domicile in Ipil
since he has merely been staying at his brothers house.

Indeed, the Court

But this circumstance alone cannot support such conclusion.
has repeatedly held that a candidate is not required to have a
house in a community to establish his residence or domicile in a
particular place.

It is sufficient that he should live there even if it be in a rented house or in the house of a
friend or relative.[15] To insist that the candidate own the house where he lives would make
property a qualification for public office. What matters is that Jalosjos has proved two things:
actual physical presence in Ipil and an intention of making it his domicile.

Further, it is not disputed that Jalosjos bought a residential lot in the same village where he
lived and a fish pond in San Isidro, Naga, Zamboanga Sibugay. He showed
correspondences with political leaders, including local and national party-mates, from where
he lived. Moreover, Jalosjos is a registered voter of Ipil by final judgment of the Regional
Trial Court of Zamboanga Sibugay.

Four. Jalosjos won and was proclaimed winner in the 2010 gubernatorial race for
Zamboanga Sibugay. The Court will respect the decision of the people of that province and
resolve all doubts regarding his qualification in his favor to breathe life to their manifest will.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the Resolution of the
COMELEC Second Division dated February 11, 2010 and the Resolution of the COMELEC
 84

En Banc dated May 4, 2010 that disqualified petitioner Rommel Jalosjos from seeking
election as Governor of Zamboanga Sibugay.

Disqualification
Condonation Doctrine ( Administrative cases )

Austere Panadero et al vs. COMELEC

G.R. No. 215548, April 05, 2016
REYES, J. En Banc

Facts:
In the Decision rendered by the Office of the Deputy Ombudsman for Luzon on September
30, 2009 and approved by then Ombudsman Ma. Merceditas N. Gutierrez on October 23,
2009,7 Limbona was among the persons found to be guilty of grave misconduct,
oppression and conduct prejudicial to the best interest of the service, which he
committed while he was still the Chairman of Barangay Kalanganan Lower, Pantar,
Lanao del Norte and in relation to the killing of Hadji Abdul Rasid Onos, the former
Municipal Vice Mayor of Pantar.

Limbona was meted the penalty of dismissal from public service, with the accessory
penalties of cancellation of eligibility, forfeiture of retirement benefits and perpetual
disqualification from re-employment in the government service. DILG Secretary was
directed to immediately implement the ruling against Limbona. Limbona moved for
reconsideration, but this was denied by the Ombudsman

On November 15, 2013, the Ombudsman issued an Order10 forwarding to the DILG
Secretary a copy of its Decision against Limbona for implementation, as it had become final
and executory in 2011. The order indicated that Limbona had been elected as Municipal
Mayor of Pantar.

Acting on the order, Usec. Panadero issued, on April 3, 2014, a Memorandum directing RD
Burdeos, as the RD of the DILG Region X Office, to cause the immediate implementation of
the Ombudsman decision insofar as Limbona was concerned.

RD Burdeos reported that he received from Limbona's counsel a copy of the Resolution12
dated June 6, 2013 issued by the COMELEC First Division, dismissing the petition for
disqualification filed against Limbona. In the COMELEC resolution, Limbona was
declared to still be qualified to run for public office, citing the case of Aguinaldo v.
Santos (Aguinaldo doctrine),

holding that "a public official cannot be removed for administrative misconduct
committed during a prior term, since his re-election to office operates as a condonation of
the officer's previous misconduct to the extent of cutting off the right to remove him therefor."

Usec. Panadero then sought clarification from Ombudsman Conchita Carpio-Morales on the
applicability of the Aguinaldo doctrine in Limbona's case in light of the COMELEC First
 85

Division's resolution.16 Pending receipt of the Ombudsman's reply, Usec. Panadero also
issued on even date a Memorandum,17 addressed to RD Burdeos, directing him to proceed
with the implementation of the Ombudsman's decision.
 86

Limbona, on the other hand, sought the Office of the President's (OP) revocation and/or
recall of the DILG Memoranda dated April 3, 2014 and April 30, 2014, relative to the
implementation of the Ombudsman's decision against him.19

On May 5, 2014, the DILG served the dismissal order of Limbona, which led to his removal
from office and the assumption to the mayoralty of then Vice Mayor Tago. Displeased by the
DILG's actions, Limbona filed with the COMELEC a petition to cite the petitioners for
indirect contempt.

Motion for reconsideration filed by Malik Alingan against the COMELEC First Division's
Resolution. COMELEC en banc disagreed with the First Division's application of the
Aguinaldo doctrine. It said that the doctrine on condonation could not apply in Limbona's
case because he was elected as Mayor for the term 2010-2013, which was different
from his position as Barangay Chairman in 2007-2010 when his administrative case was
filed.

The COMELEC en banc, nonetheless, declared that Limbona

was qualified to run
for public office because he was not removed from his post as
Barangay Chairman, and was able to finish his term prior to the
finality of the Ombudsman's decision.

Section 40(b) of the Local Government Code (LGC) disqualifies from running for any elective
local position "those removed from office as a result of an administrative case.

COMELEC en banc issued its Resolution citing the petitioners in indirect contempt. violation
of the final and executory resolution of the Comelec constitutes contempt. The [COMELEC]
already ruled that the Ombudsman Decision cannot be the cause of the disqualification or
ouster of [Limbona]. The [petitioners] completely disregarded the ruling despite their
knowledge and receipt of the Entry of Judgment thereof.

Issue:

1st Issue: Whether Panadero’s action in implementing Ombudsman's order constitute

indirect contempt since COMELEC En Banc declared Limbona is qualified to run?

2nd Issue: Whether Limbona was still qualified to run for Mayor?
 87

Held: 1st Issue: Whether Panadero’s action in implementing Ombudsman's order constitute
indirect contempt since COMELEC En Banc declared Limbona is qualified to run? NO!

The petitioners are not guilty of indirect contempt. In serving the dismissal order of of
Limbona and allowing Tago to assume the vacated mayoralty post, the
petitioners
could not be said to have disobeyed the resolutions of the
COMELEC in the disqualification case, much less did so, in a manner that was
characterized with contempt against the COMELEC.

COMELEC's stance, the COMELEC's Resolution in SPA No. 13-252 (DC) and the
Ombudsman's Decision in OMB-L-A-08-0530-H involved two distinct issues, such that the
implementation of one agency's ruling would not necessarily result in a violation of the other.

To be specific, SPA No. 13-252 (DC) was instituted to question the qualification of Limbona
as a candidate for the 2013 elections, an issue that was well within the jurisdiction of the
COMELEC

In order to properly resolve such issue, and given the arguments that were raised to seek his
disqualification, the COMELEC was called upon to refer to Section 40 of the LGC, which
reads:

(b) Those removed from office as a result o f an administrative case;

Notwithstanding Section 40(b) of the LGC, the COMELEC decided in favor of Limbona's
qualification only for the reason that he was not removed from office prior to 2013, but was
able to complete his term despite the Ombudsman case that was filed against him.

Notwithstanding Section 40(b) of the LGC, the COMELEC decided in favor of Limbona's
qualification only for the reason that he was not removed from office prior to 2013, but was
able to complete his term despite the Ombudsman case that was filed against him. The
Court underscores the fact that the COMELEC's decision to allow Limbona's candidacy was
not a disregard of the Ombudsman's Decision in OMB-L-A-08-0530-H.

Even as it declared Limbona qualified to run for the 2013 elections, the COMELEC could
not have set aside the consequences attached to the Ombudsman's finding of guilt.
Moreso, the Ombudsman's decision against Limbona was neither nullified nor set
aside by the ruling of the COMELEC.

The actions of the DILG, in tum, were mere implementation of the

Ombudsman's decision, as records indicated the failure to previously effect the
consequences attached to the finding of guilt. By acting on the Ombudsman's order to
implement its decision, the DILG neither argued nor declared Limbona to be disqualified
from the mayoralty.
 88

That Limbona was qualified to run for the 2013 elections, however, did not mean that he
could no longer be dismissed from the service as a result of his administrative case.

The DILG could still implement the Ombudsman's decision, as it did so, with the service of
the dismissal order upon Limbona, without disobeying the COMELEC. The Ombudsman's
decision even carried sanctions other than dismissal from the public service, such as the
accessory penalties of cancellation of eligibility, forfeiture of retirement benefits and
perpetual disqualification from re-employment in the government service.

While the administrative case was pertinent to the disqualification issue, these penalties
could not have been rendered ineffective simply by the .COMELEC's decision in the
disqualification case.

In any case, even granting that the issuances of the COMELEC should have barred the
DILG from the service of the dismissal order, the petitioners could not be considered guilty of
contempt. By jurisprudence, intent and good faith may be crucial in
contempt cases.

Contempt
power to punish for contempt is inherent in all courts and is essential to the preservation of
order in judicial proceedings and to the enforcement of judgments, orders, and mandates of
the court, and consequently, to the due administration of justice."

Contempt is defined as a

● disobedience to the court by acting in opposition to its authority, justice and dignity.

It signifies not only a willful disregard or disobedience of the court's orders, but such conduct
which tends to bring the authority of the court and the administration of law into disrepute or
in some manner to impede the due administration of justice.

The COMELEC is similarly vested with the power to punish for

contempt. Article VII, Section 52(e) of The Omnibus Election Code expressly gives it the
power to "[p]unish contempts provided for in the Rules of Court in the same procedure and
with the same penalties provided therein. Any violation of any final and executory decision,
order or ruling of the Commission shall constitute contempt thereof."

The petitioners were charged, cited and punished for a supposed indirect contempt
committed against the COMELEC. As defined by jurisprudence, indirect contempt is
one
● committed out of or not in the presence of the court that tends to belittle, degrade,
obstruct or embarrass the court and justice,
 89

as distinguished from direct contempt which is characterized by

● misbehavior committed in the presence of or so near a court or judge as to interrupt
the proceedings before the same.
 90

Roseller De Guzman vs. COMELEC & Dela Cruz ( petitioners Oath of Allegiance
and Certificate of Candidacy did not comply with Section 5(2) of R.A. No. 9225
which further requires those seeking elective public office in the Philippines to
make a personal and sworn renunciation of foreign citizenship. Petitioner
failed to renounce his American citizenship; as such, he is disqualified from
running for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007 elections )
G.R. No. 180048 June 19, 2009
YNARES-SANTIAGO, J. En Banc

Facts:
Petitioner De Guzman and private respondent Angelina DG. Dela Cruz were
candidates for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007 elections.
On April 3, 2007, private respondent filed against petitioner a petition for
disqualification alleging that petitioner is not a citizen of the Philippines, but an
immigrant and resident of the United States of America.

In his answer, petitioner admitted that he was a naturalized American. However, on

January 25, 2006, he applied for dual citizenship under Republic Act
No. 9225.

Upon approval of his application, he took his oath of allegiance to the Republic of the
Philippines on September 6, 2006. He argued that, having re-acquired Philippine
citizenship, he is entitled to exercise full civil and political rights. As such, he is
qualified to run as vice-mayor of Guimba, Nueva Ecija.

May 14, 2007 elections, private respondent won as vice-mayor. Petitioner filed an
election protest on grounds of irregularities and massive cheating. COMELEC First
Division rendered its June 15, 2007 Resolution disqualifying petitioner, which
reads as follows:

Section 3 of R.A. No. 9225 states:

Retention of Philippine Citizenship. Natural-born citizens of the Philippines who have lost their Philippine
citizenship by reason of their naturalization as citizens of a foreign country are hereby deemed to have
reacquired Philippine citizenship upon taking the following oath of allegiance to the Republic:

Hence under the provisions of the aforementioned law, respondent has validly
reacquired Filipino citizenship. By taking this Oath of Allegiance to the Republic of
the Philippines on September 6, 2006 before Mary Jo Bernardo Aragon, Deputy
Consul General at the Philippine Consulate General, Los Angeles, California
respondent was deemed a dual citizen, possessing both Filipino and American
citizenship.
 91

However, subparagraph (2), Section 5 of the aforementioned Act also

provides:

(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the time of the filing
of the certificate of candidacy, make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath.

As can be gleaned from the above cited provision, respondent [herein

petitioner] should have renounced his American citizenship before he can run for any
public elective position. This respondent did not do.

The Oath of Allegiance taken by respondent was for the purpose of

re-acquiring Philippine citizenship. It did not, at the same time, mean that respondent
has renounced his American citizenship.

Petitioner filed a motion for reconsideration but it was dismissed on October 9, 2007
by the COMELEC En Banc for having been rendered moot in view of private
respondents victory.

Thereafter, the trial court in Election Protest No. 07-01 rendered a Decision,[7] dated
November 26, 2007, declaring petitioner as the winner for the Vice-Mayoralty
position

Petitioner filed the instant petition for certiorari, alleging that the COMELEC acted
with grave abuse of discretion in disqualifying him from running as Vice-Mayor
because of his failure to renounce his American citizenship, and in dismissing the
motion for reconsideration for being moot.

Issue: Whether Petitioner a duel citizen, is disqualified from running as Vice-Mayor

because of his failure to renounce his American citizenship?

Held: YES!!

We find that petitioner is disqualified from running for public office in view of
his failure to renounce his American citizenship.

Philippine citizenship is an indispensable requirement for holding an elective office.

As mandated by law: An elective local official must be a citizen of the Philippines.

R.A. No. 9225 was enacted to allow re-acquisition and retention of Philippine
citizenship for:
 92

1) natural-born citizens who have lost their Philippine citizenship by

reason of their naturalization as citizens of a foreign country; and

2) natural-born citizens of the Philippines who, after the effectivity of

the law, become citizens of a foreign country.

The law provides that they are deemed to have re-acquired or retained their
Philippine citizenship upon taking the oath of allegiance. Petitioner falls under the
first category, being a natural-born citizen who lost his Philippine citizenship
upon his naturalization as an American citizen.

In the instant case, there is no question that petitioner re-acquired his Philippine
citizenship after taking the oath of allegiance on September 6, 2006. However, it
must be emphasized that R.A. No. 9225 imposes an additional requirement on those
who wish to seek elective public office, as follows:

● make a personal and sworn renunciation of

any and all foreign citizenship before any
public officer authorized to administer an
oath.
Contrary to petitioners claims, the filing of a certificate of candidacy does not ipso
facto amount to a renunciation of his foreign citizenship under R.A. No. 9225. Our
rulings in the cases of Frivaldo and Mercado are not applicable to the instant case
because R.A. No. 9225 provides for more requirements.

Thus, in Japzon v. COMELEC, the Court held that Section 5(2) of R.A. No. 9225
twin requirements of swearing to an Oath of
requires the

Allegiance and executing a Renunciation of Foreign

Citizenship,

Further, in Jacot v. Dal and COMELEC, the Court ruled that a candidates oath of allegiance
to the Republic of the Philippines and his Certificate of Candidacy do not substantially
comply with the requirement of a personal and sworn renunciation of foreign citizenship.
Thus:
 93

The law categorically requires persons seeking elective public office, who either
retained their Philippine citizenship or those who reacquired it, to make a personal and
sworn renunciation of any and all foreign citizenship before a public officer authorized to
administer an oath simultaneous with or before the filing of the certificate of candidacy.

Hence, Section 5(2) of Republic Act No. 9225 compels natural-born Filipinos, who
have been naturalized as citizens of a foreign country, but who reacquired or retained their
Philippine citizenship

(1) to take the oath of allegiance under Section 3 of Republic Act No. 9225, and

(2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before
an authorized public officer prior or simultaneous to the filing of their certificates of
candidacy, to qualify as candidates in Philippine elections.

oath of allegiance is different from the

renunciation of foreign citizenship
In the instant case, petitioners Oath of Allegiance and Certificate of Candidacy did
not comply with Section 5(2) of R.A. No. 9225 which further requires those seeking
elective public office in the Philippines to make a personal and sworn renunciation of
foreign citizenship. Petitioner failed to renounce his American citizenship; as such,
he is disqualified from running for vice-mayor of Guimba, Nueva Ecija in the May 14,
2007 elections.

WHEREFORE, the petition is DISMISSED. Petitioner is declared DISQUALIFIED

from running for Vice-Mayor of Guimba, Nueva Ecija in the May 14, 2007 elections
because of his failure to renounce his foreign citizenship pursuant to Section 5(2) of
R.A. No. 9225.
 94

Sofrino Albania vs. COMELEC ( Suspension not a ground for DQ; Since it should be a
petition to deny due course, such shall be filed 25 after filing hence petitioners
complaint already prescribed; no violation for three-term rule, not fully served first
term )
G.R. No. 226792 June 6, 2017
PERALTA, J. En Banc

Facts:
In the May 14, 2007 National and Local Elections, respondent Edgardo A. Tallado and Jesus
O. Typoco were both candidates for the position of Governor in Camarines Norte. Typoco
was proclaimed as the winner. Respondent questioned Typoco's proclamation by filing
with the COMELEC, a petition for correction of a manifest error.

Petition was decided in respondent's favor on March 5, 2010 and the latter assumed the
position of Governor of Camarines Norte from March 22, 2010 to June 30, 2010, the end of
the 2007-2010 term. Respondent ran again in the 2010 and 2013 National and Local
Elections where he won and served as Governor of Camarines Norte.

On October 16, 2015, respondent filed his Certificate of Candidacy 6 as Governor of

Camarines Norte in the May 9, 2016 National and Local elections. November 13, 2015,
petitioner, filed a petition 7 for respondent's disqualification from running as Governor based
on Rule 25 of COMELEC Reso 9523 on two grounds:

(1) he violated the three term limit I rule under Section 43 of RA No 7160,
otherwise known as the Local Government Code of 1991 (LGC)

(2) respondent's suspension from office for one year without pay, together
with its accessory penalties, after he was found guilty of oppression and grave abuse
of authority in the Ombudsman's Order dated October 2, 2015.

In his Verified Answer, respondent argued petition was filed only on November 13, 2015,
hence, the same had already prescribed and must be dismissed since

● petition was primarily based on his alleged violation of the three-term limit rule,
the same should have been filed as a petition to deny due course to or cancel
certificate of candidacy under Rule 23 of COMELEC Resolution 9523, in
relation to Section 78

and suspension from office is also not a ground for a petition for disqualification.
 95

COMELEC Second Division dismissed the petition for being filed out of time. It ruled that

a violation of the three-term limit rule and suspension from office as a result of an
administrative case are not grounds for disqualification of a candidate under the law;

that the alleged violation of three-term limit rule is a ground for ineligibility which
constituted false material representation under Section 78 of the OEC; and such petition
25 days from the time of filing of the COC, which
must be filed within
respondent failed to do.

Petitioner filed a MR with the COMELEC En Banc, which dismissed the same. COMELEC
En Banc echoed the Division's findings that the

● grounds relied upon by petitioner are not proper for a petition for disqualification but
one for denial of due course to or cancellation of respondent's COC, which was
filed out of time.

● It then continued to rule on the merits finding that respondent did not serve the full
2007-2010 term as Governor of Camarines Norte, thus, cannot be considered as
one term for purposes of counting the three-term threshold;

● and that the ground for a candidate's disqualification referred to by Section 40 (b) of
the LGC is the actual removal from office as a result of an administrative case,
and not mere suspension as imposed by the Ombudsman.

Issue: Whether COMELEC acted with grave abuse of discretion amounting to lack of
jurisdiction. in ruling that the grounds relied upon are not proper grounds for a petition for
disqualification?

Held: NO!

Grounds for disqualification of a candidate are found under Sections 12 and 68 of BP 881 as
well as Section 40 of LGC

Petitioner filed the petition for disqualification of respondent on the grounds that he allegedly
violated the three-term limit rule provided under the Constitution and the LGC; and that he
was suspended from office as a result of an administrative case. Notably, however, a reading
of the grounds enumerated under the above-quoted provisions for a candidate's
disqualification does not include the two grounds relied upon by petitioner.

Thus, the COMELEC Second Division was correct when it found that the
petition was not based on any of the grounds for disqualification as enumerated in
the foregoing statutory provisions.
 96

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

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

(b) Those removed from office as a result of an administrative case; .

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitive from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue
to avail of the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

Respondent's suspension from office is indeed not

a ground for a petition for disqualification as Section 40
(b) clearly speaks of removal from office as a result of an
administrative offense that would disqualify a candidate from running for any
elective local position.

In fact, the penalty of suspension cannot be a bar to the candidacy of the respondent so
suspended as long as he meets the qualifications for the office as provided under Section
66(b) of R.A. No. 7160, to wit:

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

(b) The penalty of suspension shall not exceed the unexpired term of the respondent
or a period of six (6) months for every administrative offense, nor shall said penalty be a bar
to the candidacy of the respondent so suspended as long as he meets the qualifications for
the office.
 97

25 days after filing to file a petition to deny due

course or cancell C.O.C
Since the petition filed was a petition to deny due course to or to cancel a certificate of
candidacy, such petition must be filed within 25 days from the time of filing of the COC, as
provided under Section 78 of the Omnibus Election Code. However, as the COMELEC
found, the petition was filed beyond the reglementary period, and dismissed the petition for
being filed out time. The COMELEC En Banc affirmed such dismissal.

We agree.

Section 74 of the OEC provides that the certificate of candidacy shall state that the person
filing it is announcing his candidacy for the office stated therein and that he is eligible for said
office. The word "eligible" in Section 74 means having the right to run for elective public
office, that is, having all the qualifications and none of the ineligibilities to run for the public
office. 20 And We had held 21 that a violation of the three-term limit rule is an ineligibility
which is a proper ground for a petition to deny due course to or to cancel a COC under
Section 78 of the Omnibus Election Code, to wit:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A

verified petition seeking to deny due course or to cancel a certificate of candidacy may be
filed by the person exclusively on the ground that any material representation contained
therein as required under Section hereof is false.

The petition may be filed at any time not later than twenty-five days from the time of
the filing of the certificate of candidacy and shall be decided, after due notice and hearing,
not later than fifteen days before the election.

As the petition filed is indeed a petition under Section 78 of the OEC, the filing of the same
must comply with the period prescribed therein, i.e., the filing of the same must be made not
later than twenty-five days from the time of the filing of the certificate of
candidacy.

However, the petition was filed only on November 13, 2015 which was already
beyond the period to file the same; thus, find no grave abuse of discretion
committed by the COMELEC in dismissing the petition for being filed out of
time.
 98

Petitioner's insistence that the petition filed with the COMELEC was based on Rule 25 of
COMELEC Resolution No. 9523 which provides:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a

party, is declared by final decision of a competent court, guilty of, or found by the
Commission to be suffering from any disqualification provided by law or the Constitution.

Section 3. Period to File Petition. - The Petition shall be filed any day after the last
day for filing of certificates of candidacy, but not later than the date of proclamation.

is not meritorious.

Rule 25 of Comelec Resolution No. 9523 refers to disqualification of candidates and the
provided in Sections 12 and 68 of the OEC
grounds thereof, which are those
and Section 40 of the LGC, as quoted in the early part of the decision.

a violation of the three-term limit rule is not included

To reiterate,
among the grounds for disqualification, but a ground for a petition
to deny due course to or cancel certificate of candidacy;

Thus, it is Rule 23 of COMELEC Resolution No. 9523 which is applicable,

NO violation of three-term limit rule

We held that two conditions must concur for the application of the disqualification of a
candidate based on violation of the three-term limit rule, which are:

(1) that the official concerned has been elected for three consecutive terms in the
same local government post, and

(2) that he has fully served three consecutive terms.

In this case, while respondent ran as Governor of Camarines Norte in the 2007 elections, he
did not win as such. It was only after he filed a petition for correction of manifest error that he
was proclaimed as the duly-elected Governor.

He assumed the post and served the unexpired term of his opponent from March 22, 2010
until June 30, 2010. Consequently, he did not hold the office for the full term of three years to
which he was supposedly entitled to.
 99

Thus, such period of time that respondent served as Governor did not
constitute a complete and full service of his term. The period when he was out of
office involuntarily interrupted the continuity of his service as Governor.

As he had not fully served the 2007-2010 term, and had not been elected for three
consecutive terms as Governor, there was no violation of the three-term limit rule when he
ran again in the 2016 elections.

We quote with approval the COMELEC En Banc's ruling

Applying the foregoing in the instant case, since Respondent did not serve the full
2007-2010 term, it cannot be considered as one term for purposes of counting the
three-term threshold. Consequently, Respondent cannot be said to have continuously served
as Governor for three consecutive terms prior to the 2016 elections.

x x x 27

WHEREFORE, the petition is DENIED. The Resolution dated August 24, 2016 of the
Commission on Elections En Banc is hereby AFFIRMED.

SO ORDERED.
 100

Term of office Sec. 43

Amelardo Abundo vs. COMELEC & Vega ( Petitioner Abelardo Abundo, Sr. is
DECLARED ELIGIBLE for the position of Mayor of Viga, Catanduanes to which he was
duly elected in the May 2010 elections and is accordingly ordered IMMEDIATELY
REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are
ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga,
Catanduanes, respectively, and shall revert to their original positions of Vice-Mayor
and First Councilor, respectively, upon receipt of this Decision )
G.R. No. 201716 January 8, 2013
VELASCO, JR., J. En Banc

Facts:
In both the 2001 and 2007 runs, he emerged and was proclaimed as the winning mayoralty
candidate and accordingly served the corresponding terms as mayor. In the 2004 electoral
derby, however, the Viga municipal board of canvassers initially proclaimed as winner one
Jose Torres (Torres), who, in due time, performed the functions of the office of mayor.

Abundo protested Torres’ election and proclamation. Abundo was eventually declared the
winner of the 2004 mayoralty electoral contest, paving the way for his assumption of office
starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007, or for a period
of a little over one year and one month.

Then came the May 10, 2010 elections where Abundo and Torres again opposed each other.
When Abundo filed his certificate of candidacy for the mayoralty seat relative to this electoral
contest, Torres lost no time in seeking the former’s disqualification to run, the corresponding
petition, predicated on the three-consecutive term limit rule.

On June 16, 2010, the COMELEC First Division issued a Resolution finding for Abundo, who
in the meantime bested Torres by 219 votes and was accordingly proclaimed 2010
mayor-elect of Viga, Catanduanes.

Meanwhile, on May 21, 2010, or before the COMELEC could resolve the adverted
disqualification case Torres initiated against Abundo, herein private respondent Ernesto R.
Vega (Vega) commenced a quo warranto action before the RTC-Br. 43 in Virac,
Catanduanes, docketed as Election Case No. 55, to unseat Abundo on essentially the same
grounds Torres raised in his petition to disqualify.

RTC declared Abundo ineligible to serve as municipal mayor, citing Aldovino, Jr. v.
COMELEC,10 found Abundo to have already served three consecutive mayoralty terms, to
wit, 2001-2004, 2004-2007 and 2007-2010, and, hence, disqualified for another, i.e., fourth,
consecutive term. To the RTC, the year and a month service constitutes a complete and full
service of Abundo’s second term as mayor.

On appeal Just like the RTC, the COMELEC’s Second Division ruled against Abundo on the
strength of Aldovino, Jr. and held that service of the unexpired portion of a term by a
 101

protestant who is declared winner in an election protest is considered as service for one full
term within the contemplation of the three-term limit rule. MR of petitioner denied by division

COMELEC En Banc affirmed division what the Constitution prohibits is for an elective official
to be in office for the same position for more than three consecutive terms and not to the
service of the term.

Issue: Whether service of a term less than the full three years by an elected official arising
from his being declared as the duly elected official upon an election protest is considered
as full service of the term for purposes of the application of the three consecutive
term limit for elective local officials?

Held: NO!

We find the petition meritorious. The consecutiveness of what otherwise would have been
Abundo’s three successive, continuous mayorship was effectively broken during the
2004-2007 term when he was initially deprived of title to, and was veritably disallowed to
serve and occupy, an office to which he, after due proceedings, was eventually declared to
have been the rightful choice of the electorate.

The three-term limit rule for elective local officials, a disqualification rule, is found in Section
8, Article X of the 1987 Constitution, which provides:

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

and is reiterated in Sec. 43(b) of RA 7160

To constitute a disqualification to run for an elective local office pursuant to the aforequoted
constitutional and statutory provisions, the following requisites must concur:

(1) that the official concerned has been elected for three consecutive terms in
the same local government post; and

(2) that he has fully served three consecutive terms.

As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec. 43(b) of the LGC,
voluntary renunciation of the office by the incumbent elective local official for any

length of time shall NOT, in determining service for three consecutive terms, be
considered an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
 102

In Aldovino, Jr., however, the Court stated the observation that the law "does not textually
state that voluntary renunciation is the only actual interruption of service that does not affect
‘continuity of service for a full term’ for purposes of the three-term limit rule."

As stressed in Socrates v. Commission on Elections, the principle behind the

three-term limit rule covers only consecutive terms and that what the Constitution
prohibits is a consecutive fourth term.

cannot, following his third

Put a bit differently, an elective local official
consecutive term, seek immediate reelection for a fourth term, albeit
he is allowed to seek a fresh term for the same position after the election where he could
have sought his fourth term but prevented to do so by reason of the prohibition.

There has, in fine, to be a break or interruption in the successive

terms of the official after his or her third term. An interruption
usually occurs when the official does not seek a fourth term,
immediately following the third.

Of course, the basic law is unequivocal that a "voluntary renunciation of the office for any
length of time shall NOT be considered an interruption in the continuity of service for the full
term for which the elective official concerned was elected." This qualification was made as a
deterrent against an elective local official intending to skirt the three-term limit rule by merely
resigning before his or her third term ends.

This is a voluntary interruption as distinguished from involuntary interruption which may be

brought about by certain events or causes.

Involuntary interruption is claimed to result from any of these events or causes:

1. succession or assumption of office by operation of law,

2. preventive suspension,
3. declaration of the defeated candidate as the winner in an election contest,
4. declaration of the proclaimed candidate as the losing party in an election contest,
5. proclamation of a non-candidate as the winner in a recall election,
6. removal of the official by operation of law, and other analogous causes.

The intention behind the three-term limit rule was

not only to abrogate the "monopolization of political power" and prevent elected officials from
breeding "proprietary interest in their position" but also to "enhance the people’s freedom of
 103

choice." In the words of Justice Vicente V. Mendoza, "while people should be protected from
the evils that a monopoly of power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.

In the present case, the Court finds Abundo’s case meritorious and declares that the
two-year period during which his opponent, Torres, was serving as mayor should be
considered as an interruption, which effectively removed Abundo’s case from the ambit of
the three-term limit rule.

This thus brings us to the second requisite of whether or not Abundo had served for "three
consecutive terms," as the phrase is juridically understood, as mayor of Viga, Catanduanes
immediately before the 2010 national and local elections. Subsumed to this issue is of
course the question of whether or not there was an effective involuntary interruption during
the three three-year periods, resulting in the disruption of the continuity of Abundo’s
mayoralty.

The facts of the case clearly point to an involuntary interruption during the July 2004-June
2007 term.

A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense, "

● a fixed and definite period of time which the law describes that an officer may hold an
office."

● "time during which the officer may claim to hold office as a matter of right, and fixes
the interval after which the several incumbents shall succeed one another."

● From paragraph (a) of Sec. 43, RA 7160,66 the term for local elected officials is three
(3) years starting from noon of June 30 of the first year of said
term.

Needless to stress, the almost two-year period during which Abundo’s opponent actually
served as Mayor is and ought to be considered an involuntary interruption of Abundo’s
continuity of service. An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of counting the three-term
threshold.
 104

The notion of full service of three consecutive terms is related to the concepts of interruption
of service and voluntary renunciation of service.

Interruption of Service The word interruption means

● temporary cessation
● intermission or
● suspension.
● To interrupt is to obstruct, thwart or prevent.

When the Constitution and the LGC of 1991 speak of interruption,

the reference is to the

● obstruction to the continuance of the service by the concerned elected official by

effectively cutting short the service of a term or giving a hiatus in the
occupation of the elective office.

Voluntary renunciation the word "renunciation"

● connotes the idea of waiver or abandonment of a known right.

● To renounce is to give up, abandon, decline or resign.

Voluntary renunciation of the office by an elective local official would

thus mean

● to give up or abandon the title to the office and to cut short the service of the term the
concerned elected official is entitled to.

Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of Mayor of Viga,
Catanduanes to which he was duly elected in the May 2010 elections and is accordingly
ordered IMMEDIATELY REINSTATED to said position. Withal, Emeterio M. Tarin and Cesar
O. Cervantes are ordered to immediately vacate the positions of Mayor and Vice-Mayor of
Viga, Catanduanes, respectively, and shall revert to their original positions of Vice-Mayor
and First Councilor, respectively, upon receipt of this Decision.
 105

(1) Assumption of Office by Operation of Law

This contemplates a situation wherein an elective local official fills by
succession a higher local government post permanently left vacant due to any of the
following contingencies, i.e.,

● when the supposed incumbent refuses to assume office,

● fails to qualify,
● dies,
● is removed from office,
● voluntarily resigns or
● is otherwise permanently incapacitated to discharge the functions of his office.

In Borja, Jr., Jose T. Capco, Jr.

(Capco) was elected vice-mayor of Pateros on January 18, 1988 for a term ending
June 30, 1992. On September 2, 1989, Capco became mayor, by operation of law, upon the
death of the incumbent mayor, Cesar Borja.

Capco was then elected and served as mayor for terms 1992-1995 and 1995-1998.
When Capco expressed his intention to run again for the mayoralty position during the 1998
elections, Benjamin U. Borja, Jr., who was then also a candidate for mayor, sought
Capco’s disqualification for violation of the three-term limit rule.

Finding for Capco, the Court held that for the disqualification rule to apply, "it is not
enough that an individual has served three consecutive
terms in an elective local office, he must also have been elected to
the same position for the same number of times before the disqualification can
apply."

There was, the Court ruled, no violation of the three-term limit, for Capco "was
not elected to the office of the mayor in the first term but simply found himself thrust into it by
operation of law"39 when a permanent vacancy occurred in that office.
 106

The Court arrived at a parallel conclusion in the case of Montebon v. COMELEC 2008

There, Montebon had been elected for three consecutive terms as municipal
councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, in January
2004, or during his second term, Montebon succeeded and assumed the position of
vice-mayor of Tuburan when the incumbent vice-mayor retired.

When Montebon filed his certificate of candidacy again as municipal

councilor, a petition for disqualification was filed against him based on the three-term limit
rule. The Court ruled that Montebon’s assumption of office as vice-mayor in January
2004was an interruption of his continuity of service
as councilor.

The Court emphasized that succession in local government office is by

operation of law and as such, it is an involuntary

severance from office. Since the law no less allowed
Montebon to vacate his post as councilor in order to
assume office as vice-mayor, his occupation of the higher office
cannot, without more, be deemed as a voluntary renunciation of his
position as councilor.

(2) Recall Election

In Adormeo v. COMELEC

Ramon Talaga, Jr. (Talaga) was elected and served as mayor of Lucena City during
terms 1992-1995 and 1995-1998. During the 1998 elections, Talaga lost to Bernard G.
Tagarao.

However, before Tagarao’s 1998-2001 term ended, a recall election was

conducted in May 2000 wherein Talaga won and served the unexpired term of Tagarao
until June 2001. When Talaga ran for mayor in 2001, his candidacy was challenged on the
ground he had already served as mayor for three consecutive terms for violation of the three
term-limit rule.

The Court held therein that the remainder of Tagarao’s term after the recall
should not be considered for
election during which Talaga served as mayor
purposes of applying the three-term limit rule. The Court emphasized that
the continuity of Talaga’s mayorship was disrupted by his defeat during the 1998 elections.
 107

A similar conclusion was reached by the Court in Socrates vs. COMELEC

The petitioners in that case assailed the COMELEC Resolution which declared
Edward Hagedorn qualified to run for mayor in a recall election.

It appeared that Hagedorn had been elected and served as mayor of Puerto
Princesa City for three consecutive terms: in 1992-1995, 1995-1998 and 1998-2001.
Obviously aware of the three-term limit principle, Hagedorn opted not to vie for the same
mayoralty position in the 2001 elections, in which Socrates ran and eventually won.

However, midway into his term, Socrates faced recall proceedings and in the recall
election held, Hagedorn run for the former’s unexpired term as mayor. Socrates sought
Hagedorn’s disqualification under the three-term limit rule.

In upholding Hagedorn’s candidacy to run in the recall election, the Court ruled:
After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes over his closest
opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of
Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private
citizen. This period is clearly an interruption in the continuity of Hagedorn’s service as mayor,
not because of his voluntary renunciation, but because of a legal prohibition.

The Court likewise emphasized in Socrates that "an elective local official cannot seek
immediate reelection for a fourth term. The prohibited election refers to the next regular
hence,
election for the same office following the end of the third consecutive term and,

any subsequent election, like recall election, is no

longer covered
 108

(3) Conversion of a Municipality into a City

On the other hand, the conversion of a municipality into a city does not
constitute an interruption of the incumbent official’s continuity of service. The Court
said so in Latasa v. COMELEC:

Arsenio A. Latasa was elected and served as mayor of the Municipality of Digos,
Davao del Sur for terms 1992-1995, 1995-1998, and 1998-2001. During his third term, Digos
was converted into a component city, with the corresponding cityhood law providing the
holdover of elective officials.

When Latasa filed his certificate of candidacy as mayor for the 2001 elections, the
Court declared Latasa as disqualified to run as mayor of Digos City for violation of the
three-term limit rule.

This Court believes that (Latasa) did involuntarily relinquish his office as municipal
mayor since the said office has been deemed abolished due to the conversion. However, the
very instant he vacated his office as municipal mayor, he also assumed office as city mayor.
Unlike in Lonzanida, where petitioner therein, for even just a short period of time, stepped
down from office, petitioner Latasa never ceased from acting as chief executive of the local
government unit. He never ceased from discharging his duties and responsibilities as chief
executive of Digos.

(4) Period of Preventive Suspension

In 2009, in the case Aldovino Jr. vs. COMELEC, the Court espoused the doctrine that the
period during which a local elected official is under preventive
suspension cannot be considered as an interruption of the
continuity of his service. The Court explained why so;

Strict adherence to the intent of the three-term limit rule demands that preventive
suspension should not be considered an interruption that allows an elective official’s stay in
office beyond three terms. A preventive suspension cannot simply be a term
interruption because the suspended official continues to stay in office although he is
barred from exercising the functions and prerogatives of the office within the suspension
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.
 109

(5) Election Protest

The Court’s pronouncements in

● Lonzanida v. Commission on Elections (1999),

● Ong v. Alegre (2006),
● Rivera III v. Commission on Elections (2007) and
● Dizon v. Commission on Elections48 (2009),

All protest cases, are illuminating

In Lonzanida vs. COMELEC

Lonzanida was elected and had served as municipal mayor of San Antonio,
Zambales in terms 1989-1992, 1992-1995 and 1995-1998. However, his proclamation
relative to the 1995 election was protested and was eventually declared by the RTC and
then by COMELEC null and void on the ground of failure of elections.

On February 27, 1998, or about three months before the May 1998 elections,
Lonzanida vacated the mayoralty post in light of a COMELEC
order and writ of execution it issued. Lonzanida’s opponent assumed office
for the remainder of the term.

In the May 1998 elections, Lonzanida again filed his certificate of candidacy. His
opponent, Efren Muli, filed a petition for disqualification on the ground that Lonzanida
had already served three consecutive terms in the same post. The Court, citing Borja
Jr., reiterated the two (2) conditions which must concur for the three-term limit to apply:

"1) that the official concerned has been elected for three consecutive terms in
the same local government post and

2) that he has fully served three consecutive terms."

Court ruled that the foregoing requisites were absent in the case of Lonzanida. The
Court held that Lonzanida cannot be considered as having been duly elected to the post in
the May 1995 elections since his assumption of office as mayor "cannot be deemed to have
been by reason of a valid election but by reason of a void proclamation."

And as a corollary point, the Court stated that Lonzanida did not fully serve the
1995-1998 mayoral term having been ordered to vacate his post before the
a situation which amounts to an
expiration of the term,
involuntary relinquishment of office.
 110

Court deviated from the ruling in Lonzanida in

This

Ong v. Alegre owing to a variance in the factual situations

attendant.

In Ong v. Alegre ( Served full 3 consecutive terms )

Francis Ong (Ong) was elected and served as mayor of San Vicente, Camarines
Norte for terms 1995-1998, 1998-2001, and 2001-2004. During the 1998 mayoralty
elections, or during his supposed second term, the COMELEC nullified Ong’s
proclamation on the postulate that Ong lost during the 1998 elections.

However, the COMELEC’s decision becamefinal and executory on July 4,

2001, when Ong had fully served the 1998-2001 mayoralty term and was in
fact already starting to serve the 2001-2004 term as mayor-elect of
the municipality of San Vicente. In 2004, Ong filed his certificate of candidacy for the
same position as mayor, which his opponent opposed for violation of the three-term limit
rule.

Ong invoked the ruling in Lonzanida and argued that he could not be considered as
having served as mayor from 1998-2001 because he was not duly elected to the post and
merely assumed office as a "presumptive winner."

Dismissing Ong’s argument, the Court held that his assumption of office as mayor for
the term 1998-2001 constitutes "service for the full term" and hence, should be counted for
purposes of the three-term limit rule. The Court modified the conditions stated in Lonzanida
in the sense that Ong’s service was deemed and counted as service for a full term

because Ong’s proclamation was voided only after

the expiry of the term.

The Court noted that the COMELEC decision

which declared Ong as not having won the 1998
elections was "without practical and legal use and
value" promulgated as it was after the contested
term has expired.
 111

The Court further reasoned: Petitioner Francis Ong’s contention that he

was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under
protest did not make him less than a duly elected mayor. His proclamation as the duly
elected mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should legally be
taken as service for a full term in contemplation of the three-term rule.

difference between the case at bench and

The

Lonzanida is at once apparent. For one, in Lonzanida, the

● result of the mayoralty election was declared a nullity for the stated reason of
"failure of election", and,
● as a consequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified,
● followed by an order for him to vacate the office of mayor. For another,

● Lonzanida did not fully serve the 1995-1998 mayoral term, there
being an involuntary severance from office as a result of legal processes.

In fine, there was an effective interruption of the continuity of service.

Ong’s slight departure from Lonzanida would later find reinforcement in the consolidated
cases of Rivera III v. COMELEC and Dee v. Morales.

Therein, Morales was elected mayor of Mabalacat, Pampanga for the following
consecutive terms: 1995-1998, 1998-2001 and 2001-2004.

In relation to the 2004 elections, Morales again ran as mayor of the same town,
emerged as garnering the majority votes and was proclaimed elective mayor for term
commencing July 1, 2004 to June 30, 2007. A petition for quo warranto was
later filed against Morales predicated on the ground that he is ineligible to run for a
"fourth" term, having served as mayor for three consecutive terms.

In his answer, Morales averred that his supposed 1998-2001 term cannot be
considered against him, for, although he was proclaimed by the Mabalacat board of
canvassers as elected mayor vis-à-vis the 1998 elections and discharged the duties of
mayor until June 30, 2001, his proclamation was later nullified by the RTC of Angeles
City and his closest rival, Anthony Dee, proclaimed the duly elected mayor. Pursuing his
point, Morales parlayed the idea that he only served as a mere caretaker.
 112

The Court found Morales’ posture untenable and held

that the case of Morales presents a factual milieu similar with Ong, not with Lonzanida. For
ease of reference, the proclamation of Francis Ong, in Ong, was nullified, but after he,
like Morales, had served the three-year term from the start to the end of the term.
Hence, the Court concluded that Morales exceeded the three-term
limit rule,

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire
period notwithstanding the Decision of the RTC in the electoral protest case filed by
petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre,
such circumstance does not constitute an interruption in serving the full term.

Respondent Morales is now serving his fourth term. He has been mayor of
In just over a month,
Mabalacat continuously without any break since July 1, 1995.
by June 30, 2007, he will have been mayor of Mabalacat for twelve
(12) continuous years.

fact of being belatedly ousted, i.e.,

The Court ruled in Rivera that the
after the expiry of the term, cannot constitute an interruption in
Morales’ service of the full term; neither can Morales, as he argued, be
considered merely a "caretaker of the office" or a mere "de facto officer" for purposes of
applying the three-term limit rule.

In a related 2009 case of Dizon v. COMELEC the Court

would again find the same Mayor Morales as respondent in a disqualification proceeding
when he ran again as a mayoralty candidate during the 2007 elections
for a term ending June 30, 2010.

Having been unseated from his post by virtue of this Court’s ruling in Rivera, Morales
would argue this time around that the three-term limit rule was no longer applicable as to his
2007 mayoralty bid. This time, the Court ruled in his favor, holding that for
purposes of the 2007 elections, the three-term limit rule was no longer a disqualifying factor
as against Morales.
 113

Our ruling in the Rivera case served as Morales’ involuntary severance from office
with respect to the 2004-2007 term. Involuntary severance from office for any length of time
short of the full term provided by law amounts to an interruption of continuity of
service. Our decision in the Rivera case was promulgated on 9 May 2007 and was effective
immediately.

The next day, Morales notified the vice mayor’s office of our decision. The vice mayor
assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The assumption by
the vice mayor of the office of the mayor, no matter how short it may seem to Dizon,
interrupted Morales’ continuity of service. Thus, Morales did not hold office for the full term of
1 July 2004 to 30 June 2007.

To summarize, hereunder are the prevailing jurisprudence on issues affecting

consecutiveness of terms and/or involuntary interruption;

1. When a permanent vacancy occurs in an elective position and the official merely
assumed the position pursuant to the rules on succession under
the LGC, unexpired portion of the term of the
then his service for the

replaced official cannot be treated as one full term as

contemplated under the subject constitutional and statutory provision that service cannot be
counted in the application of any term limit (Borja, Jr.).

If the official runs again for the same position he held prior to his assumption of the higher
office, then his succession to said position is by operation of law and is considered
an involuntary severance or interruption (Montebon).

2. An elective official, who has served for three consecutive terms and who did not
later won
seek the elective position for what could be his fourth term, but
in a recall election, had an interruption in the
continuity of the official’s service.
For, he had become in the interim, i.e., from the end of the 3rd term up to the recall
election, a private citizen (Adormeo and Socrates).

3. The abolition of an elective local office due to the conversion of a municipality to a city
does not, by itself, work to interrupt the incumbent official’s continuity of service
(Latasa).
 114

4.Preventive suspension is not a term-interrupting

event as the elective officer’s continued stay and
entitlement to the office remain unaffected during
the period of suspension, although he is barred from
exercising the functions of his office during this period (Aldovino,
Jr.).

5. When a candidate is proclaimed as winner for an elective position and assumes office,

his term is interrupted when he loses in an election protest and

is ousted from office, thus disenabling him from serving what would otherwise be the
unexpired portion of his term of office had the protest been dismissed (Lonzanida and
Dizon).

6. When an official is defeated in an election protest and said decision becomes final
after said official had served the full term for said office, then his loss
does not constitute an interruption
in the election contest

since he has managed to serve the term from start

to finish.
His full service, despite the defeat, should be counted in the application of term limits
because the nullification of his proclamation came after the expiration of the term (Ong and
Rivera).
 115

COMELEC vs, Conrado Cruz et al ( To recapitulate, we find no merit in the respondents

retroactivity arguments because: (1) the challenged proviso did not provide for the
retroactive application to barangay officials of the three-term limit; Section 43(b) of
RA No. 9164 simply continued what had been there before; and (2) the constitutional
challenge based on retroactivity was not anchored on a constitutional standard but
on a mere statutory norm )
G.R. No. 186616 November 20, 2009
BRION, J. En Banc

Facts:
Before the October 29, 2007 Synchronized Barangay and Sangguniang Kabataan (SK)
Elections, some of the then incumbent officials of several barangays of Caloocan City filed
with the RTC a petition for declaratory relief to challenge the constitutionality of the proviso;

Sec. 2. Term of Office. The term of office of all barangay and sangguniang
kabataan officials after the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than three (3) consecutive
terms in the same position: Provided, however, That the term of office shall be
reckoned from the 1994 barangay elections. Voluntary renunciation of office for any
length of time shall not be considered as an interruption in the continuity of service
for the full term for which the elective official was elected.

based on the following arguments:

● The term limit of Barangay officials should be applied prospectively and not
retroactively.
● Implementation of paragraph 2 Section 2 of RA No. 9164 would be a violation of the
equal protection of the law.
● Barangay officials have always been apolitical.

RTC agreed with the respondents contention that the challenged proviso retroactively
applied the three-term limit for barangay officials. COMELEC moved to reconsider this
decision but the RTC denied the motion. Hence, the present petition on a pure question of
law.

Issue: Whether RA 9164 is valid and constitutional?

Held: YES! RTC legally erred when it declared the challenged proviso unconstitutional.

The Retroactive Application Issue

The respondents first objection to the challenged provisos constitutionality is its purported
retroactive application of the three-term limit when it set the 1994 barangay elections as a
reckoning point in the application of the three-term limit.
 116

The respondents argued that the term limit, although present in the previous laws, was not in
RA No. 7160 when it amended all previous barangay election laws. Hence, it was
re-introduced for the first time by RA No. 9164 (signed into law on March 19, 2002) and was
applied retroactively when it made the term limitation effective from the 1994 barangay
elections. As the appealed ruling quoted above shows, the RTC fully agreed with the
respondents position.

Our first point of disagreement with the respondents

and with the RTC is on their position that a retroactive application of the term
limitation was made under RA No. 9164.

Our own reading shows that no retroactive application was made because the
three-term limit has been there all along as early as the second barangay law (RA No.
6679) after the 1987 Constitution took effect; it was continued under the LGC and can still be
found in the current law. We find this obvious from a reading of the historical development of
the law.

The first law that provided a term limitation for barangay officials was RA No. 6653 (1988); it
imposed a two-consecutive term limit. After only six months, Congress, under RA No. 6679
(1988), changed the two-term limit by providing for a three-consecutive term limit. This
consistent imposition of the term limit gives no hint of any equivocation in the congressional
intent to provide a term limitation.

To recapitulate, we find no merit in the respondents retroactivity arguments because:

(1) the challenged proviso did not provide for the retroactive application to barangay
officials of the three-term limit; Section 43(b) of RA No. 9164 simply continued what had
been there before; and

(2) the constitutional challenge based on retroactivity was not anchored on a

constitutional standard but on a mere statutory norm.

WHEREFORE, premises considered, we GRANT the petition and accordingly AFFIRM the
constitutionality of the challenged proviso under Section 2, paragraph 2 of Republic Act No.
9164. Costs against the respondents.
 117

History of Brangays

Pursuant to Sec. 6 of Batas Pambansa Blg. 222, a

● Punong Barangay (Barangay Captain) and

● six Kagawads ng Sangguniang Barangay (Barangay Councilmen), who shall

constitute the presiding officer and

● members of the Sangguniang Barangay (Barangay Council) respectively

were first elected on May 17, 1982. They had a term of six years which began on
June 7, 1982. The Local Government Code of 1983 also fixed the term of office of local
elective officials at six years. Under this Code, the chief officials of the barangay
were the

● punong barangay,
● six elective sangguniang barangay members,
● the kabataang barangay chairman,
● a barangay secretary and
● a barangay treasurer.

B.P. Blg. 881, the Omnibus Election Code, reiterated that barangay officials shall hold office
for six years, and stated that their election was to be held on the second Monday of May
nineteen hundred and eighty eight and on the same day every six years thereafter.

Present, 1987 Consti

The 1987 Philippine Constitution extended constitutional recognition to barangays under
Article X, Section 1 by specifying barangays as one of the territorial and political subdivisions
of the country, supplemented by Section 8 of the same Article X

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

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

After the effectivity of the 1987 Constitution, the barangay election originally scheduled by
Batas Pambansa Blg. 881 on the second Monday of May 1988 was reset to the second
Monday of November 1988 and every five years thereafter by RA No. 6653.
 118

Section 2 of RA No. 6653 changed the term of office of barangay officials and introduced a
term limitation as follows:

SEC. 2. The term of office of barangay officials shall be for five (5) years from
the first day of January following their election. Provided, however, That no kagawad
shall serve for more than two (2) consecutive terms.

More than two (2) years after the 1989 barangay elections, RA No. 7160. This law started
the direct and separate election of the punong barangay by the qualified voters in the
barangay and not by the seven (7) kagawads from among themselves.

Subsequently or on February 14, 1998, RA No. 8524 changed the three-year term of office
of barangay officials under Section 43 of the LGC to five (5) years.

On March 19, 2002, RA No. 9164 introduced the following significant

changes:

1. the term of office of barangay officials was again fixed at three years on the
reasoning that the barangay officials should not serve a longer term than their
supervisors; and

2. the challenged proviso, which states that the 1994 election shall be the reckoning
point for the application of the three-term limit, was introduced.

Yet another change was introduced three years after or on July 25, 2005 when RA No. 9340
extended the term of the then incumbent barangay officials due to expire at noon of
November 30, 2005 under RA No. 9164 to noon of November 30, 2007. The
three-year term limitation provision survived all these changes.

Congress Plenary Power to

Legislate Term Limits for Barangay Officials and
Judicial Power
As reflected in the above-quoted deliberations of the 1987 Constitution, Congress has
plenary authority under the Constitution to determine by legislation not only the duration of
the term of barangay officials, but also the application to them of a consecutive term limit.
Congress invariably exercised this authority when it enacted no less than six (6)
barangay-related laws since 1987.
 119

Through all these statutory changes, Congress had determined at its discretion both the
length of the term of office of barangay officials and their term limitation. Given the textually
demonstrable commitment by the 1987 Constitution to Congress of the authority to
determine the term duration and limition of barangay officials under the Constitution, we
in its wisdom, decides
consider it established that whatever Congress,

on these matters are political questions beyond the

pale of judicial scrutiny,
Political questions refer to those questions which, under the Constitution,

● are to be decided by the people in their sovereign capacity, or

● in regard to which full discretionary authority has been delegated to the

legislative or executive branch of the government;

it is concerned with issues dependent upon the wisdom, not legality of a particular measure.
 120

Vacancies and Succession Secs.44-47

Lucky Damasen vs. Oscar Tumamao ( this Court cannot countenance Damasens
insistence in clinging to an appointment when he is in fact not a bona fide member of
the LDP )
G.R. No. 173165 February 17, 2010
PERALTA, J. 3rd Div.

Facts:
On December 2, 2004, Nelia Tumamao, the Vice-Mayor of San Isidro, Isabela, died.[3] As a
result, a permanent vacancy was created in the Office of the Vice-Mayor. Pursuant to Sec.
44 of RA 7160, Ligaya C. Alonzo was elevated to the position of Vice-Mayor, she being
the highest-ranking member of the Sangguniang Bayan, that is, the one who garnered the
highest number of votes for that office. As a result, a permanent vacancy was created in
the Sangguniang Bayan.

To fill up the ensuing vacancy in the Sangguniang Bayan, San Isidro Mayor Abraham T. Lim
recommended to Governor Padaca the appointment of respondent
Oscar G. Tumamao a member of the Laban ng Demokratikong Pilipino (LDP),
the same political party to which Alonzo belonged.

On May 5, 2005, petitioner Atty. Lucky Damasen (Damasen) became a member of the LDP.
Damasen was able to secure from LDP Provincial Chairman Balauag a letter of
nomination addressed to Governor Padaca for his appointment to the Sangguniang
Bayan. Damasen was appointed as Sangguniang Bayan member by Governor Padaca.

Damasen attended the Sangguniang Bayan session, but with Tumamao present
thereat, the Damasen was not duly recognized. Hence, in the afternoon of the
same day, Damasen filed with RTC a Petition for Quo Warranto with Prayer for the
Issuance of a Writ of Preliminary Injunction, seeking to be declared the rightful member of
the Sangguniang Bayan

Tumamao called to the witness stand his counsel Atty. Ernest Soberano who identified a
letter dated June 14, 2005, signed by LDP Provincial Chairman Balauag, which states that
Balauag was revoking her nomination of Damasen, and that she
the
was confirming Tumamaos nomination made by Mayor Lim.

Later, Tumamao presented Provincial Chairman Balauag who affirmed the contents of her
letter revoking the nomination of Damasen. RTC rendered a Decision ruling in favor of
Damasen, Atty. Lucky M. Damasen as the rightful person to have the right to occupy and
exercise the functions of Sangguniang Bayan member of San Isidro, Isabela,
 121

RTC based its decision on Sec. 45 (b) of RA 7160,[21] which provides for the rule on
succession in cases of permanent vacancies in the Sangguninan. The RTC ruled that the
evidence submitted by Damasen proved that the requirements to be able to qualify for the
position was fully complied with.

Moreover, the RTC held that the revocation of the political nomination issued by LDP
Provincial Chairman Balauag was done after Governor Padaca had acted on it and had
issued the appointment of Damasen.[23] Hence, the RTC declared that it could no longer
undo what Governor Padaca had done, absent any showing of grave abuse of discretion.

CA rendered a Decision reversing the appealed Decision. CA held that Damasen was
not entitled to assume the vacant position in the Sangguniang Bayan, thus:

While Atty. Damasen might have been appointed by Governor Padaca, this
appointment must fly in the face of the categorical and unbending sine qua non requirements
of the statute.

Indeed, Atty. Damasen was nominated simply by Ms. Balauag, the Provincial
Chairman of the LDP, who obviously is not the highest official of this political party. It cannot
escape notice that the quoted provision particularizes: highest official of the political party
concerned without any additional qualifying or restrictive words.

Hence the case at bar.

Issue: Whether Damasen has complied with the requirements of Sec. 45 (b) of RA 7160.

Held: NO

law applicable to herein petition is Sec. 45(b) of RA 7160, which provides for the rule on
succession in cases of permanent vacancies in the Sanggunian.

As can be gleaned from the above provision, the law provides for conditions for the rule of
succession to apply:

1. the appointee shall come from the same political party as that of the Sanggunian
member who caused the vacancy.

2. the appointee must have a nomination and a Certificate of Membership from the
highest official of the political party concerned.

It is the contention of Damasen that he has complied with the requirements of Sec. 45 (b) of
RA 7160.
 122

What is damning to the cause of Damasen, is the letter of Demaree J.B. Raval, the Deputy
Secretary Counsel of the LDP, addressed to Governor Padaca wherein it is categorically
stated that Damasen is not a bona fide member of the LDP,

Like the CA, this Court has no reason to doubt the veracity of the letter coming from
it appears that the
the LDP leadership. Quite clearly, from the tenor of the letter,
membership of Damasen still had to be approved by the LDP
National Council.

Thus, notwithstanding Damasens procurement of a Certificate of Membership from LDP

Provincial Chairman Balauag, to this Courts mind, the same merely started the process of
his membership in the LDP, and it did not mean automatic membership thereto.

In resolving the petition at bar, this Court is guided by Navarro v. Court of

Appeals[44](Navarro), where this Court explained the reason behind the rule of succession
under Sec. 45 (b) of RA 7160, to wit:

The reason behind the right given to a political party to nominate a replacement
where a permanent vacancy occurs in the Sanggunian is to maintain the party
representation as willed by the people in the election.

With the elevation of petitioner Tamayo, who belonged to REFORMA-LM, to the

position of Vice-Mayor, a vacancy occurred in the Sanggunian that should be filled up with
someone belonging to the political party of petitioner Tamayo. Otherwise, REFORMA-LMs
representation in the Sanggunian would be diminished. Xxx. As earlier pointed out, the
reason behind Par. (b), Sec. 45 of the Local Government Code is the maintenance of party
representation in the Sanggunian in accordance with the will of the electorate.

Since the permanent vacancy in the Sanggunian occurred because of the elevation of LDP
member Alonzo to vice-mayor, it follows that the person to succeed her should also belong
this Court cannot
to the LDP so as to preserve party representation. Thus,

countenance Damasens insistence in clinging to an

appointment when he is in fact not a bona fide
member of the LDP.

While the revocation of the nomination given to Damasen came after the fact of his
appointment, this Court cannot rule in his favor, because the very first requirement of Sec.
45 (b) is that the appointee must come from the political party as that of the Sanggunian
member who caused the vacancy. To stress, Damasen is not a bona fide member of the
LDP.
 123

In addition, appointing Damasen would not serve the will of the electorate. He himself
admitts that he was previously a member of the Lakas-CMD, and that he ran for the position
of Mayor under the said party on the May 2004 Elections. Likewise, he did not resign from
the said party when he joined the LDP, and even admitted that his joining the LDP was not
because of party ideals, but because he just wanted to.

How can the will of the electorate be best served, given the foregoing admissions of
Damasen? If this Court were to grant herein petition, it would effectively diminish the party
representation of the LDP in the Sanggunian, as Damasen would still be considered a
member of the Lakas-CMD, not having resigned therefrom, a scenario that defeats the
purpose of the law, and that ultimately runs contrary the ratio of Navarro.

Lastly, the records of the case reveal that Tumamao has the nomination[47] of Senator
Edgardo J. Angara, the Party Chairman and, therefore, the highest official of the LDP. In
addition, he is a member in good standing of the LDP.[48] Thus, given the foregoing, it is this
Courts view that Tumamao has complied with the requirements of law.

WHEREFORE, premises considered, the petition is DENIED. The June 14, 2006 Decision of
the Court of Appeals in CA-G.R. SP No. 90882, is AFFIRMED.
 124

Juan Victoria vs. COMELEC ( the ranking in the Sanggunian shall be determined on the
basis of the proportion of the votes obtained by each winning candidate of the total
number of registered voters who actually voted; In such a case, the Court has no
recourse but to merely apply the law. The courts may not speculate as to the probable
intent of the legislature apart from the words )
G.R. No. 109005 January 10, 1994
QUIASON, J. En Banc

Facts:
In the May 11, 1992 Elections, the following candidates from the first, second and third
districts of the Province of Albay were elected and proclaimed as members of the
Sangguniang Panlalawigan.

Due to the suspension of Governor Romeo Salalima of the Province of Albay, Vice-Governor
Danilo Azana automatically assumed the powers and functions of the governor, leaving
vacant his post as vice-governor. Under the law, Azana's position as vice-governor should
be occupied by the highest ranking Sangguniang member, a post being contested by
petitioner and private respondent.

In answer to private respondent's petition for his declaration as senior Sanggunian

member for the Province of Albay, the COMELEC issued a resolution dated January 22,
1993, certifying him as first in the order of ranking with petitioner herein as second
ranking member.

The COMELEC based its certification on the number of votes obtained by the Sanggunian
members in relation to the number of registered voters in the district. Thus, on February 15,
1993, Secretary Rafael M. Alunan III of the Department of Interior and Local Government
designated private respondent as acting Vice-Governor of the province.

Petitioner filed a motion for reconsideration of the COMELEC resolution which was denied.
Hence the case at bar.

Issue: Whether private respondent is the highest ranking Sannunian member thus qualified
to succeed as Vice Governor?

Held:

Petitioner claims that the ranking of the Sanggunian members should not only be based on
the number of votes obtained in relation to the total number of registered voters, but also on
the number of voters in the district who actually voted therein. He further argues that a
district may have a large number of registered voters but only a few actually voted, in which
case the winning candidate would register a low percentage of the number of votes
obtained.

We are not persuaded.

 125

Local Government provides

Sec. 44. Permanent Vacancies in the Office of the Governor, Vice-Governor, Mayor, and
Vice-Mayor. —

(a) If a permanent vacancy occurs in the office of the governor or mayor, the
vice-governor or vice-mayor concerned shall become governor or mayor.

If a permanent vacancy occurs in the offices of the governor, vice-governor, mayor, or

vice-mayor, the highest ranking Sanggunian member or, in case of his permanent
inability, the second highest ranking Sanggunian member, shall become the governor,
vice-governor, mayor or vice-mayor, as the case may be.

Subsequent vacancies in the said office shall be filled automatically by the other
Sanggunian members according to their ranking as defined herein.

For purposes of succession as provided in this Chapter, ranking in the Sanggunian

shall be determined on the basis of the proportion of votes obtained by each winning
candidate to the total number of registered voters in each district in the immediately
preceding local election.

The law is clear that

● on the basis of the

the ranking in the Sanggunian shall be determined
proportion of the votes obtained by each winning candidate of
the total number of registered voters who actually voted.

In such a case, the Court has no recourse but to merely apply the law. The courts may
not speculate as to the probable intent of the legislature apart from the words

Petitioner's contention is therefore untenable considering the clear mandate of the law, which
leaves no room for other interpretation but it must very well be addressed to the legislative
branch and not to this Court which has no power to change the law.

Considering the foregoing, we find no grave abuse of discretion on the part of the
COMELEC in issuing the Resolution dated January 22, 1993.

WHEREFORE, the petition is DISMISSED.

 126

Rodolfo Farinas vs. Angelo Barba ( The upshot of this is that in the case at bar, since
neither petitioner Al Nacino nor respondent Edward Palafox was appointed in the
manner indicated in the preceding discussion, neither is entitled to the seat in the
Sangguniang Bayan of San Nicolas, Ilocos Norte which was vacated by member
Carlito B. Domingo. )
G.R. No. 116763. April 19, 1996
MENDOZA, J. En Banc

Facts:
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte.
On March 24, 1994, he resigned after going without leave to the United States. To fill the
vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended
to the Governor of the province, petitioner Rodolfo C. Farias, the appointment of
respondent Edward Palafox.

A similar recommendation for the appointment of Edward Palafox was made by the
Sangguniang Bayan of San Nicolas but the recommendation was made to Mayor Barba.
The resolution, containing the recommendation, was submitted to the Sangguniang
Panlalawigan of Ilocos Norte purportedly in compliance with 56 of LGC.

Sangguniang Panlalawigan, purporting to act under this provision of the Local Government
Code, disapproved the resolution, for the reason that the authority and power to appoint
Sangguniang Bayan members are lodged in the Governor, and therefore, the Resolution
should be addressed to the Provincial Governor.

Accordingly, the Sangguniang Panlalawigan recommended to the Governor the appointment

of petitioner Al Nacino, vice Carlito Domingo, as member of the Sangguniang Bayan of
San Nicolas. On June 8, 1994, petitioner Governor appointed petitioner Nacino and swore
him in office that same day.

respondent Mayor Barba appointed respondent Edward Palafox to the same position on
June 8, 1994. The next day, June 9, 1994, respondent Palafox took his oath as member of
the Sangguniang Bayan.

petitioners filed with RTC a petition for quo warranto and prohibition. trial court rendered its
decision, upholding the appointment of respondent Palafox by respondent Mayor
Barba. It held:

Under the facts and circumstances as shown clearly in the case, there is no
doubt the law that is applicable is sub-section C of Section 45 of Republic Act No.
7160 otherwise known as the Local Government Code of 1991 which provides:

In case the permanent vacancy is caused by a Sanggunian Member who

does not belong to any political party, the Local Chief Executive shall upon the
recommendation of the Sanggunian concerned, appoint a qualified person to fill the
vacancy.
 127

MR by petitioner denied by RTC hence the case at bar.

Issue: Whether the Governor has the authority to appoint a person in Sanggunian Bayan in
case of permanent vacancy?

Held: YES upon recommendation of Sanggunian Bayan

For that matter, to follow private respondents interpretation would be to run into a similar, if
not greater, difficulty.

With reference to the phrase sangguniang concerned in 45(c), petitioners say it means, with
respect to a vacancy in the Sangguniang Bayan, the Sangguniang Panlalawigan.

We think that the phrase sanggunian concerned in 45(c) should more properly he
understood as referring to the Sanggunian in which the vacancy is
created. This is in keeping with the policy implicit in 45(a)(3).

Having determined that appointments in case of vacancies caused by Sanggunian members

who do not belong to any political party must be made in accordance with the
recommendation of the Sanggunians concerned where the vacancies
occur, the next question is: Is the appointing authority limited to the appointment of those
recommended to him?

We think an affirmative answer must be given to the question

The appointing authority is not bound to appoint anyone recommended to him by the
Sanggunian concerned. The power of appointment is a discretionary power. Since the
recommendation takes the place of nomination by political party, the recommendation must
likewise be considered a condition sine qua non for the validity of the appointment, by
analogy to the provision of 45(b).

The upshot of this is that in the case at bar, since neither

petitioner Al Nacino nor
respondent Edward Palafox was appointed in the manner indicated
in the preceding discussion, neither is entitled to the seat in the
Sangguniang Bayan of San Nicolas, Ilocos Norte which was
vacated by member Carlito B. Domingo.
 128

For while petitioner Al Nacino was appointed by the provincial governor, he was not
recommended by the Sangguniang Bayan of San Nicolas. On the other hand, respondent
Edward Palafox was recommended by the Sangguniang Bayan but it was the mayor and not
the provincial governor who appointed him.

WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it
dismisses petitioners action for quo warranto and prohibition, is AFFIRMED, but for different
reasons from those given by the trial court in its decision.
 129

Romeo Gamboa vs. Marcelo Aguirre et al ( Being the Acting Governor, the
Vice-Governor cannot continue to simultaneously exercise the duties of the latter
office, since the nature of the duties of the provincial Governor call for a full-time
occupant to discharge them )
G.R. No. 134213. July 20, 1999
YNARES-SANTIAGO, J. En Banc

Facts:
Sometime in August of 1995, the governor designated petitioner as Acting Governor for the
duration of the formers official trip abroad until his return. When the SP held its regular
session on September 6, 1995, respondents questioned the authority of petitioner to
preside therein in view of his designation as Acting Governor and asked him to vacate the
Chair.

Respondents filed before the lower court a petition for declaratory relief and prohibition.
Later, the trial court rendered a decision and declared petitioner as temporarily legally
incapacitated to preside over the sessions of the SP during the period that he is the
Acting Governor. Hence the case at bar.

Issue: Whether Petitioner, acting as Governor can still preside SP sessions?

Held: NO!

It may be noted that the Code provides only for modes of succession in case of permanent
vacancy in the office of the Governor and the Vice-Governor (whether single or
simultaneously) as well as in case of a temporary vacancy in the office of the Governor. But,
no such contingency is provided in case of temporary vacancy in the office of the
Vice-Governor, just like the 1983 Local Government Code

But the problem is, while in such capacity, does he temporarily relinquish the powers,
functions, duties and responsibilities of the Vice-Governor, including the power to preside
over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query
should be answered in the positive.
A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This
for purposes of exercising his legislative prerogatives and
means, that
powers, he is deemed as a non-member of the SP for the time
being.
 130

By tradition, the offices of the provincial Governor and Vice-Governor are

● essentially executive in nature,

whereas plain members of the provincial board perform functions partaking of

● a legislative character.

This is because the authority vested by law in the provincial boards involves primarily a
delegation of some legislative powers of Congress.

It has been held that if a Mayor who is out of the country is considered effectively absent, the
Vice-Mayor should discharge the duties of the mayor during the latters absence. This
doctrine should equally apply to the Vice-Governor since he is similarly situated as the
Vice-Mayor.

Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term
should be reasonably construed to mean effective absence,[15] that is, one that renders the
officer concerned powerless, for the time being, to discharge the powers and prerogatives of
his office.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously

exercise the duties of the latter office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them. Such is not only consistent with but
also appears to be the clear rationale of the new Code wherein the policy of performing dual
functions in both offices has already been abandoned.

To repeat, the creation of a temporary vacancy in the office of the Governor creates a
corresponding temporary vacancy in the office of the Vice-Governor whenever the
latter acts as Governor by virtue of such temporary vacancy. This event constitutes an
inability on the part of the regular presiding officer (Vice Governor) to preside during the SP
sessions, which thus calls for the operation of the remedy set in Article 49(b) of the Local
Government Code concerning the election of a temporary presiding officer.

The continuity of the Acting Governors (Vice-Governor) powers as presiding officer of the SP
is suspended so long as he is in such capacity. Under Section 49(b), (i)n the event of the
inability of the regular presiding officer to preside at the sanggunian session, the members
present and constituting a quorum shall elect from among themselves a temporary
presiding officer.
 131

Joel Miranda vs. Antonio Carreon et al ( But inefficiency or incompetence can only be
determined after the passage of sufficient time, hence, the probationary period of six
(6) months for the respondents; Indeed, to be able to gauge whether a subordinate is
inefficient or incompetent requires enough time on the part of his immediate superior
within which to observe his performance. This condition, however, was not observed
in this case. )
G.R. No. 143540. April 11, 2003
SANDOVAL-GUTIERREZ, J. En Banc

Facts:
In the early part of 1988, Vice Mayor Amelita Navarro, while serving as Acting Mayor of
the City of Santiago because of the suspension of Mayor Jose Miranda, appointed the
above-named respondents to various positions in the city government. Their
appointments were with permanent status and based on the evaluation made by the City
Personnel Selection and Promotion Board (PSPB) created pursuant to Republic Act No.
7160.[3] The (CSC) approved the appointments.

When Mayor Jose Miranda reassumed his post on March 5, 1998 after his suspension, he
considered the composition of the PSPB irregular since the majority party, to which he
belongs, was not properly represented.

He then formed a three-man special performance audit team to conduct a personnel

evaluation audit of those who were previously screened by the PSPB and those on
probation. After conducting the evaluation, the audit team submitted to him a report dated
June 8, 1998 stating that the respondents were found wanting in (their) performance.

three months after Mayor Miranda reassumed his post, he issued an order terminating
respondents services effective June 15, 1998 because they performed poorly during the
probationary period.

they
Respondents appealed to the CSC, contending that being employees on probation,
can be dismissed from the service on the ground of poor
performance only after their probationary period of six months, not
after three (3) months. They also denied that an evaluation on their performance was
conducted, hence, their dismissal from the service violated their right to due process.

CSC reversing the order of Mayor Miranda and ordering that respondents be reinstated to
their former positions with payment of backwages. His son Joel G. Miranda, herein
petitioner, substituted for him and was proclaimed Mayor of Santiago City. He then filed a
motion for reconsideration of the CSC. But Denied.

CA rendered a Decision affirming in toto the CSC Resolution. MR denied. Hence the case
at bar.

Issue: Whether the termination of respondents services is illegal?

 132

Held: YES!

The 1987 Constitution provides that no officer or employee of the civil service shall be
removed or suspended except for cause provided by law. Under the Revised Administrative
Code of 1987, a government officer or employee may be removed from the service on two
(2) grounds:

(1) unsatisfactory conduct and

(2) want of capacity.

While the Code does not define and delineate the concepts of these two grounds, however,
the Civil Service Law (Presidential Decree No. 807, as amended) provides specific grounds
for dismissing a government officer or employee from the service. Among these grounds
are

● inefficiency and
● incompetence in the performance of official duties.

In the case at bar, respondents were dismissed on the ground of poor performance. Poor
performance falls within the concept of inefficiency and incompetence in the performance of
official duties which, as earlier mentioned, are grounds for dismissing a government official
or employee from the service.

But inefficiency or incompetence can only be determined after the passage of

sufficient probationary period of six (6)
time, hence, the

months for the respondents.

Indeed, to be able to gauge whether a subordinate is inefficient or incompetent requires
enough time on the part of his immediate superior within which to observe his performance.
This condition, however, was not observed in this
case.
As aptly stated by the CSC, it is quite improbable that Mayor Jose Miranda could finally
determine the performance of respondents for only the first three months of the probationary
period.
 133

Julius Campol vs. onald Balao & Sianen ( This Court ORDERS Campol's reinstatement to
the position of Sangguniang Bayan Secretary of the Municipality of Boliney, Abra,
provided that he first resigns from his current employment. This Court also AWARDS
Campol backwages to be computed from the time that he was illegally dropped from
the rolls until he is reinstated to his positio )
G.R. No. 197634, November 28, 2016
JARDELEZA, J. 3rd Div.

Facts:
Campol served the Municipality of Boliney, Abra since 1999 as Secretary to the
Sangguniang Bayan. He held the position in a permanent capacity with salary grade 24.
During the 2004 elections, respondents Ronald S. Balao-as (Balao-as) and Dominador J.
Sianen (Sianen), respondents in this case, won as mayor and vice-mayor, respectively.

They assumed office in July 2004. Shortly after this, the SB passed a resolution
terminating Campolas SB Secretary on the ground that he was absent without approved
leave from August 1, 2004 to September 30, 2004.

CSC-Abra then wrote Sianen informing him that Campol cannot be removed from his
position because he is protected by the Administrative Code. Sangguniang Panlalawigan
(SP), followed this advice. DILG -Abra also took the same position.

Despite the unanimous position of these three agencies, Sianen issued Memorandum Order
No. 001, Series of 2004, which dropped Campol from the rolls. Campol challenged this
memorandum before the CSC-CAR, which ruled in his favor. Sianen, in tum, elevated the
matter before the CSC. The CSC granted his appeal and ruled that Campol was properly
dropped from the rolls.

Campol filed a petition for review under Rule 43 of the Rules of Court before the CA.13
Campol contested the allegation that he committed absences without any approved leave.
To substantiate his claim, Campol stated that he in fact received his salary for September
2004.

He also sought to prove, through the logbook of meetings that he kept as Secretary of the
SB, that he was present on August 2, 9, 16, 23, 30 and September 6, 13 and 20, 2004. He
also claimed that Sianen denied his application for sick leave from September 16 to 24, 2004
so as to make it appear that he was absent for more than 30 days.

Further, even assuming that his absences without leave were true, Campol challenged the
propriety of his summary dismissal arguing that he was deprived of his right to due process.

CA ruled that no ground exists to justify Campol's dismissal. However, while the CA
ruled that Campol was illegally dropped from the rolls, it refused to order his
reinstatement. The CA reasoned that since Campol was already gainfully employed
with the Public Attorney's Office (PAO) since October 2005, reinstatement was no
longer possible.
 134

It also held that Campol is entitled to backwages only from the time of his dismissal until
October 2005, prior to his employment with another government agency.

Issue: Whether Campol is entitled to reinstatement and to the payment of his backwages
from the time of his dismissal until he is reinstated?

Held: YES!

We rule that Campol should be reinstated. He must also be paid his backwages from the
time he was illegally dismissed until his reinstatement.

Thus, in accordance with the doctrine in the aforementioned cases, Campol should be
reinstated to his position as SB Secretary. In the event that another person has already been
appointed to his post, our ruling in Tañala should apply. In the eyes of the law, the position
never became vacant since Campol was illegally dropped from the rolls. Hence, the
incumbency of the person who assumed the position is only temporary and must give way to
Campol whose right to the office has been recognized by the proper authorities.

The Law on Reinstatement

Section 2, paragraph 3 of Article IX-B of the Constitution states -

No officer or employee of the civil service shall be removed or suspended

except for cause provided by law.

This constitutional provision captures the essence of security of tenure. An employee of the
civil service has the right to be protected in the possession and exercise of his or her office.
He or she cannot be removed from his or her employment save for
causes allowed by law.

A necessary consequence of the importance given to security of tenure is the rule that an
employee invalidly dismissed from service is entitled to reinstatement. The CA, however, in
its Decision, posits that there is an exception to this general rule. In refusing to order
Campol's reinstatement, the CA reasoned that he had already found another employment.
Thus, following the CA's logic, once an employee illegally dismissed has found a new
employment, reinstatement is no longer the rule.

The CA did not cite any law, rule or jurisprudence to support its ruling. A proper
adjudication of the issue presented before this Court requires an examination of the relevant
legal principles as applied in jurisprudence.
 135

We have reviewed our relevant pronouncements on this

matter and we found that as early as 1960, in Tan v. Gimenez, etc. and Aguilar, etc.,22 we
have pursued the doctrine that

● illegally dismissed from office

an employee of the civil service

has the right to reinstatement. Any other

employment he or she obtains while waiting for
the court to rule on the propriety of his or her
dismissal should not be construed as an
abandonment of his or her position.
This was echoed in Gonzales v. Hernandez, a 1961 case. In this case,

Gonzales was initially dismissed from service in the Department of Finance. During
the pendency of his appeal, he accepted employment in the GSIS. His dismissal was
eventually reversed and the penalty lowered to suspension.

We held in this case that his employment in the GSIS is no hindrance to his
reinstatement. We categorically stated that Gonzales had the right to live during his appeal
which necessarily means that he can accept any form of employment.

This was also our pronouncement in Tañala v. Legaspi. In the latter case, we even held
that the

● reinstatement of an illegally dismissed employee is proper even when another person

is already occupying the position. This is not a legal impediment to
reinstatement.

[W]hen a regular government employee was illegally suspended or dismissed, legally

speaking, his position never become vacant, hence there was no vacancy to which a new
incumbent could be permanently appointed it being considered that the incumbency of the
person appointed to the position is temporary and he has to give way to the employee
whose right to the office has been recognized by the competent authorities

The doctrine in Tan, Tañala, Gonzales, Salvador and Canonizado is the proper rule. It is
more in keeping with the constitutional value placed on security of tenure.
 136

Thus, in accordance with the doctrine in the aforementioned cases, Campol should be
reinstated to his position as SB Secretary. In the event that another person has already been
appointed to his post, our ruling in Tañala should apply. In the eyes of the law, the position
never became vacant since Campol was illegally dropped from the rolls. Hence, the
incumbency of the person who assumed the position is only temporary and must give way to
Campol whose right to the office has been recognized by the proper authorities.

Law on Backwages
Campol is entitled to the payment of backwages from the time of his illegal dismissal until he
is reinstated to his position. The CA erred in ruling that the backwages should only cover the
period of his illegal dismissal until his new employment with the PAO.

In Civil Service Commission v. Gentallan

An illegally dismissed government employee who is later ordered reinstated is

from the time of her
entitled to backwages and other monetary benefits

illegal dismissal up to her reinstatement.

This is only fair and just because an employee who is reinstated after having been
illegally dismissed is considered as not having left her office and should be given the
corresponding compensation at the time of her reinstatement.

Thus, the Decision, in refusing to award backwages from Campol's dismissal

until his actual reinstatement, must be reversed. There is no legal nor
employee of the civil service who is
jurisprudential basis for this ruling. An
ordered reinstated is also entitled to the full payment of his or her
backwages during the entire period of time that he or she was
wrongfully prevented from performing the duties of his or her position and
from enjoying its benefits.

This is necessarily so because, in the eyes of the law, the employee never truly left the
office. Fixing the backwages to five years or to the period of time until the employee found a
new employment is not a full recompense for the damage done by the illegal dismissal of an
employee. Worse, it effectively punishes an employee for being dismissed without his or her
fault.
 137

In cases twin award of reinstatement and

like this, the

payment of full backwages are dictated by the

constitutional mandate to protect civil service
employees' right to security of tenure.

Anything less than this falls short of the justice due

to government employees unfairly removed from
office. This is the prevailing doctrine and should be
applied in Campol's case.

no need to deduct
This entitlement to full backwages also means that there is
Campol's earnings from his employment with PAO from the award.
The right to receive full backwages means exactly this-

● that it corresponds to Campol's salary at the time of his dismissal until his
reinstatement. Any income he may have obtained during the litigation of the case
shall not be deducted from this amount.

This is consistent with our ruling that an employee illegally dismissed has the right to live and
to find employment elsewhere during the pendency of the case. At the same time, an
employer who illegally dismisses an employee has the obligation to pay him or her what he
or she should have received had the illegal act not be done. It is an employer's price or
penalty for illegally dismissing an employee.

We note that even in labor law, this is now the prevailing rule. What is determinative is the
employer's obligation to pay full backwages. We said, "[i]t is an obligation of the employer
because it is 'the price or penalty the employer has to pay for illegally dismissing his
employee."47

We rule that employees in the civil service should be accorded this same right. It is
only by imposing this rule that we will be able to uphold the constitutional right to security of
tenure with full force and effect.

Through this, those who possess the power to dismiss employees in the civil service will be
reminded to be more circumspect in exercising their authority as a breach of an employee's
right to security of tenure will lead to the full application of law and jurisprudence to ensure
that the employee is reinstated and paid complete backwages.
 138

Local Legislation Sec. 48-59, 188, 511

Wilfredo Mosqueda et al vs. Pilipino Banana Growers

( WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari
for their lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in
C.A.-G.R. CV No. 01389-MIN. declaring Ordinance No. 0309-07 UNCONSTITUTIONAL;
PERMANENTLY ENJOINS respondent City of Davao, and all persons or entities acting
in its behalf or under its authority, from enforcing and implementing Ordinance No.
0309-07; and ORDERS the petitioners to pay the costs of suit. SO ORDERED. )
G.R. No. 189185, August 16, 2016
BERSAMIN, J. En Banc

Facts:
After several committee hearings and consultations with various stakeholders, the
Sangguniang Panlungsod of Davao City enacted Ordinance No. 0309, Series of 2007, to
impose a ban against aerial spraying as an agricultural practice by all agricultural entities
within Davao City. City Mayor Rodrigo Duterte approved the ordinance on February 9,
2007. The ordinance took effect on March 23, 2007 after its publication in the newspaper
Mindanao Pioneer. Pursuant to Section 5 of the ordinance, the ban against aerial spraying
would be strictly enforced three months thereafter.

The Pilipino Banana Growers and Exporters Association, Inc. (PBGEA) and two of its
members, namely: Davao Fruits Corporation and Lapanday Agricultural and Development
Corporation (PBGEA, et al.), filed their petition in the RTC to challenge the constitutionality
of the ordinance, and to seek the issuance of provisional reliefs through a TRO. They
alleged that the ordinance exemplified the

● unreasonable exercise of police power;

● violated the equal protection clause;
● amounted to the confiscation of property without due process of law;
● and lacked publication pursuant] to Section 5116 of Republic Act No. 7160

RTC rendered judgment declaring Ordinance No. 0309-07 valid and constitutional, RTC
opined that the City of Davao had validly exercised police power13 under the General
Welfare Clause of the Local Government Code;14 that the ordinance, being based on a valid
classification, was consistent with the Equal Protection Clause;

CA promulgated its assailed decision reversing the judgment of the RTC.22 It declared
Section 5 of Ordinance No. 0309-07 as void and unconstitutional for being
unreasonable and oppressive;

CA did not see any established relation between the purpose of protecting the public and the
environment against the harmful effects of aerial spraying, on one hand, and the imposition
of the ban against aerial spraying of all forms of substances, on the other.
 139

It ruled that the maintenance of the 30-meter buffer zone within and around the agricultural
plantations under Section 6 of Ordinance No. 0309-07 constituted taking of property
without due process because

● the landowners were thereby compelled to cede portions of their property without just
compensation;
● that the exercise of police power to require the buffer zone was invalid because there
was no finding that the 30-meter surrounding belt was obnoxious to the public
welfare;
● and that, accordingly, Ordinance No. 0309-07 was unconstitutional because of the
absence of a separability clause.

Issue: Whether Ordinance No. 0309-07 Sec. 5 in imposing a ban on aerial spraying as an
agricultural practice in Davao City is constitutional?

Held: NO

Aerial spraying has become an agricultural practice in Davao City since the establishment of
the banana plantations in 1960. The DTI has issued a statement to the effect that the ban
against aerial spraying in banana plantations "is expected to kill the banana industry," affects
the socio-economic development of the barangays hosting the affected plantations, and has
a disastrous impact on export trading.

The DTI has forecasted that the ban would discourage the entry of new players in the
locality, which would have a potential drawback in employment generation.

Ordinance No. 0309-07 violates the Due Process

Clause
A valid ordinance must not only be enacted within the corporate powers of the local
government and passed according to the procedure prescribed by law.108 In order to
declare it as a valid piece of local legislation, it must also comply with the following
substantive requirements, namely:

(1) it must not contravene the Constitution or any statute;

(2) it must be fair, not oppressive;

(3) it must not be partial or discriminatory;

(4) it must not prohibit but may regulate trade;

(5) it must be general and consistent with public policy; and

(6) it must not be unreasonable.

 140

In the State's exercise of police power, the property rights of

individuals may be subjected to restraints and burdens in order to fulfill the objectives of the
Government. A local government unit is considered to have properly exercised its police
powers only if it satisfies the following requisites,

(1) the interests of the public generally, as

distinguished from those of a particular class, require the interference of the State;
and
● first requirement refers to the Equal Protection
Clause

(2) employed are reasonably

the means

necessary for the attainment of the object

sought to be accomplished and not unduly
oppressive.

● second, to the Due Process Clause of the

Constitution.

Substantive due process requires that a valid ordinance must have a

sufficient justification for the Government's action.

The respondents challenge Section 5 of Ordinance No. 0309-07 for being

unreasonable and oppressive in that it sets the effectivity of the ban at three months
after publication of the ordinance. They allege that three months will be inadequate time to
shift from aerial to truck-mounted boom spraying, and effectively deprives them of efficient
means to combat the Black Sigatoka disease.

The petitioners counter that the period is justified considering the urgency of protecting the
health of the residents.

We find for the respondents.

The impossibility of carrying out a shift to another mode of pesticide application within three
months can readily be appreciated given the vast area of the affected plantations and the
corresponding resources required therefor. To recall, even the RTC recognized the
impracticality of attaining a full-shift to other modes of spraying within three months in view of
the costly financial and civil works required for the conversion.
 141

The required civil works for the conversion to truck-mounted boom spraying alone will
consume considerable time and financial resources given the topography and geographical
features of the plantations.117 As such, the conversion could not be completed within the
short timeframe of three months.

The respondents posit that the requirement of maintaining a buffer

zone under Section 6 of the ordinance violates due process for
being confiscatory; and that the imposition unduly deprives all agricultural
landowners within Davao City of the beneficial use of their property that amounts to taking
without just compensation. The position of the respondents is
untenable.

The establishment of the buffer zone is required for the purpose of minimizing the effects of
aerial spraying within and near the plantations. Although Section 3(e) of the ordinance
requires the planting of diversified trees within the identified buffer zone, the requirement
cannot be construed and deemed as confiscatory requiring payment of just compensation.

A landowner may only be entitled to compensation if the taking amounts to a permanent

denial of all economically beneficial or productive uses of the land. The respondents cannot
be said to be permanently and completely deprived of their landholdings because they can
still cultivate or make other productive uses of the areas to be identified as the buffer zones.

Ordinance No. 0309-07 violates the Equal Protection

Clause

The constitutional right to equal protection requires that all persons or things similarly
situated should be treated alike, both as to rights conferred and responsibilities imposed. It
requires public bodies and institutions to treat similarly situated individuals in a similar
manner.

The concept of equal justice under the law demands that the State governs impartially, and
not to draw distinctions between individuals solely on differences that are irrelevant to the
legitimate governmental objective
 142

The guaranty of equal protection envisions equality among equals determined according to a
valid classification.122 If the groupings are characterized by substantial distinctions that
make real differences, one class may be treated and regulated differently from another.123
In other word, a valid classification must be:

(1) based on substantial distinctions;

(2) germane to the purposes of the law;

(3) not limited to existing conditions only; and

(4) equally applicable to all members of the class.

Based on these parameters, we find for the respondents.

The reasonability of a distinction and sufficiency of the justification given by the Government
for its conduct is gauged by using the means-end test. This test requires analysis of:

(1) the interests of the public that generally require its exercise, as distinguished from those
of a particular class; and

(2) the means employed that are reasonably necessary for the accomplishment of the
purpose and are not unduly oppressive upon individuals

To determine the propriety of the classification, courts resort to three levels of scrutiny,
viz: the

● rational scrutiny,
● intermediate scrutiny and
● strict scrutiny.

The rational basis scrutiny (also known as the rational relation test or
rational basis test) demands

● that the classification reasonably relate to the legislative purpose.127 The rational
basis test often applies in cases involving economics or social welfare,128 or to any
other case not involving a suspect class.
 143

Intermediate or heightened review. When the classification puts a

quasi-suspect class at a disadvantage, it will be treated under intermediate or heightened
review.

Classifications based on gender or illegitimacy receives intermediate scrutiny.130 To survive

intermediate scrutiny, the law must not only further an important governmental interest and
be substantially related to that interest, but the justification for the classification must be
genuine and must not depend on broad generalizations

The strict scrutiny review applies when a legislative classification impermissibly

interferes with the exercise of a fundamental right or operates to the peculiar class
disadvantage of a suspect class. The Government carries the burden to prove that the
classification is necessary to achieve a compelling state interest, and that it is the least
restrictive means to protect such interest.

WHEREFORE, the Court DENIES the consolidated petitions for review on certiorari for their
lack of merit; AFFIRMS the decision promulgated on January 9, 2009 in C.A.-G.R. CV No.
01389-MIN. declaring Ordinance No. 0309-07 UNCONSTITUTIONAL; PERMANENTLY
ENJOINS respondent City of Davao, and all persons or entities acting in its behalf or under
its authority, from enforcing and implementing Ordinance No. 0309-07; and ORDERS the
petitioners to pay the costs of suit.

SO ORDERED.
 144

Arnold Vicencio vs. Reynaldo Villar et al ( Ordinance No. 15-2003 is clear and precise and
leaves no room for interpretation. It only authorized the then City Vice-Mayor to enter
into consultancy contracts in the specific areas of concern. Further, the
appropriations for this particular item were limited to the savings for the period June
to December 2003 )
G.R. No. 182069 July 3, 2012
Sereno, J En Banc

Facts:
On 30 October 2003, the City Council or the Sangguniang Panglungsod ng Malabon (SPM),
presided over by Hon. Benjamin Galauran, then acting Vice-Mayor, adopted and
approved City Ordinance No. 15-2003 entitled

“An Ordinance Granting Authority to the City Vice- Mayor, Hon. Jay Jay Yambao, to
Negotiate and Enter into Contract for Consultancy Services for Consultants in the
Sanggunian Secretariat Tasked to Function in their Respective Areas of Concern

On 9 December 2003 and 1 March 2004, the City of Malabon, represented by Hon.
Galauran, entered into separate Contracts for Consultancy Services with Ms. Jannette O.
Vijiga et al. Subsequently, during the May 2004 elections, petitioner was elected City
Vice-Mayor of Malabon. at the same time, the head of the Sanggunian Secretariat.

To complement the manpower requirements of the existing Sanggunian Secretariat,

petitioner deemed it necessary to hire the services of consultants with the end view of
augmenting and upgrading its performance capability for the effective operation of the
legislative machinery of the city.

Petitioner thus wrote a letter dated 19 July 2004 to Atty. Danilo T. Diaz , the City Legal
Officer of Malabon, inquiring as to whether it was still necessary for the SPM to ratify a newly
entered contract of consultancy services between it and the candidate for the consultancy
position.

Atty. Diaz then responded to the said inquiry through a letter dated 26 July 2004, which
categorically stated that ratification was no longer necessary, provided that the services to
be contracted were those stipulated in the ordinance. ₱792,000 was earmarked for
consultancy services under the Legislative Secretariat.

On 1 February 2005, petitioner, representing the City Government of Malabon City, entered
into Contracts for Consultancy Services with Ms. Jennifer S. Catindig. another Contract for
Consultancy Services was entered into between Mr. Marvin T. Amiana10 and the city
government.

After the signing of their respective contracts, the three consultants rendered consultancy
services to the SPM. Thereafter, they were correspondingly paid for their services pursuant
to the contracts therefor.
 145

On 19 December 2005, Audit Observation Memorandum (AOM) No. 2005-12-01911 was

issued by Ms. Atenie F. Padilla, Supervising Auditor of the City Auditor’s Office, Malabon
City, disallowing the amount of three hundred eighty-four thousand nine hundred eighty
pesos (₱384,980) for being an improper disbursement.
 146

The AOM disclosed the following pertinent findings:

● City Ordinance No. 15-2003 dated October 30, 2003 was used as basis of authority
in hiring consultants. Analysis of the said City Ordinance revealed that it specifically
authorized the former Vice-Mayor, Hon. Mark Allan Jay G. Yambao to enter into a
contract for consultancy services in the Sangguniang Secretariat covering the period
June to December 2003 only.

Said ordinance does not give authority to the incumbent City Vice-Mayor Arnold
D. Vicencio to hire consultants for CY 2005

On 12 May 2006, respondent Elizabeth S. Zosa issued Notice of Disallowance

Aggrieved by the disallowance, petitioner appealed it to the Adjudication and

Settlement Board (ASB) of the COA. It appears that the letter of petitioner was
treated as an appeal to the Commission Proper of the COA and was subsequently denied.
Hence the case at bar.

Issue: Whether petitioner had the authority to enter into the consultancy contracts pursuant
to Ordinance No. 15-2003?

Held: NO!

Under Section 456 of R.A. 7160, or the Local Government Code, the following are the
powers and duties of a city vice-mayor:

Under this provision, therefore, there is no

inherent authority on the part of the
city vice-mayor to enter into contracts on behalf of the local
government unit, unlike that provided for the city mayor.

Thus, authority of the vice-mayor to enter into

the

contracts on behalf of the city was strictly

circumscribed by the ordinance granting it.
Ordinance No. 15-2003 specifically authorized
Vice-Mayor Yambao to enter into contracts for
consultancy services.
 147

As this is not a power or duty given under the law to the Office of the Vice-Mayor, Ordinance
No. 15-2003 cannot be construed as a “continuing authority” for any
person who enters the Office of the Vice- Mayor to enter into subsequent, albeit similar,
contracts.

Ordinance No. 15-2003 is clear and precise and leaves no room for interpretation. It only
authorized the then City Vice-Mayor to enter into consultancy contracts in the
specific areas of concern. Further, the appropriations for this particular item were limited to
the savings for the period June to December 2003.

his was an additional limitation to the power granted to Vice-Mayor Yambao to contract on
behalf of the city. The fact that any later consultancy contract would necessarily require
further appropriations from the city council strengthens the contention that the power granted
under Ordinance No. 15-2003 was limited in scope.

WHEREFORE, the Commission on Audit Decision dated 4 January 2008 is hereby

AFFIRMED.
 148

Samahan ng mga Progresibong Kabataan vs. Q.C.

( In particular, the Quezon City Ordinance provides for adequate exceptions that
enable minors to freely exercise their fundamental rights during the prescribed curfew
hours, and therefore, narrowly drawn to achieve the State's purpose. Section 4 (a) of
the said ordinance, i.e., "[t]hose accompanied by their parents or guardian", has also
been construed to include parental permission as a constructive form of
accompaniment and hence, an allowable exception to the curfew measure; )
G.R. No. 225442 August 8, 2017
PERLAS-BERNABE, J. En Banc

Facts:
Following the campaign of President Rodrigo Roa Duterte to implement a nationwide curfew
for minors, several local governments in Metro Manila started to strictly implement their
curfew ordinances on minors through police operations which were publicly known as part of
"Oplan Rody." Among those local governments that implemented curfew ordinances were
respondents: (a) Navotas City, City of Manila and (c) Quezon City,

Petitioners,9 spearheaded by the Samahan ng mga Progresibong Kabataan (SPARK) - an

association of young adults and minors that aims to forward a free and just society, in
particular the protection of the rights and welfare of the youth and minors10 - filed this
present petition, arguing that the Curfew Ordinances are unconstitutional because they:

(a) result in arbitrary and discriminatory enforcement, and thus, fall under
the void for vagueness doctrine;

(b) suffer from overbreadth by proscribing or impairing legitimate activities

of minors during curfew hours;

(c) deprive minors of the right to liberty and the right to travel without
substantive due process and;

(d) deprive parents of their natural and primary right in rearing the youth
without substantive due process. In addition, petitioners assert that the Manila
Ordinance contravenes RA 9344, as amended by RA 10630.

More specifically, petitioners posit that the Curfew Ordinances encourage arbitrary and
discriminatory enforcement as there are no clear provisions or detailed standards on
how law enforcers should apprehend and properly determine the age of the alleged curfew
violators.

They further argue that the law enforcer's apprehension depends only on his physical
assessment, and, thus, subjective and based only on the law enforcer's visual
assessment of the alleged curfew violator.
 149

While petitioners recognize that the Curfew Ordinances contain provisions indicating the
activities exempted from the operation of the imposed curfews, i.e., exemption of working
students or students with evening class, they contend that the lists of exemptions do
not cover the range and breadth of legitimate activities or reasons as to why minors
would be out at night, and, hence, proscribe or impair the legitimate activities of minors
during curfew hours.

They argue that the prohibition of minors on streets during curfew hours will not per se
protect and promote the social and moral welfare of children of the community.

Issue: Whether the Curfew Ordinances are unconstitutional?

Held: YES! Partly Granted

A. Void for Vagueness.

petitioners' invocation of the void for vagueness doctrine
In this case,
is improper,

Before resolving the issues pertaining to the rights of minors to travel and of parents to rear
their children, This Court must first tackle petitioners' contention that the Curfew
Ordinances are void for vagueness.

Petitioners submit that the Curfew Ordinances are void for not containing
sufficient enforcement parameters, which leaves the enforcing authorities with
unbridled discretion to carry out their provisions. They claim that the lack of procedural
guidelines in these issuances led to the questioning of petitioners Ronel and Mark Leo, even
though they were already of legal age.

They maintain that the enforcing authorities apprehended the suspected curfew offenders
based only on their physical appearances and, thus, acted arbitrarily.

The arguments are untenable.

A statute or act suffers from the defect of vagueness when

● it lacks comprehensible standards that men of

common intelligence must necessarily guess at
its meaning and differ as to its application.

It is repugnant to the Constitution in two (2) respects:

 150

(1) it violates due process for failure to accord persons, especially the parties
targeted by it, fair notice of the conduct to avoid; and

(2) it leaves law enforcers unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government muscle.

petitioners' invocation of the void for vagueness doctrine

In this case,
is improper, considering that they do not properly identify any provision in any of
the Curfew Ordinances, which, because of its vague terminology, fails to provide fair
warning and notice to the public of what is prohibited or required so that one may act
accordingly.

The void for vagueness doctrine is premised on due process

considerations, which are absent from this particular claim.

In one case, it was opined that:

The vagueness doctrine is a specie of "unconstitutional uncertainty," which

may involve "procedural due process uncertainty cases" and "substantive due
process uncertainty cases." "Procedural due process uncertainty" involves cases
where the statutory language was so obscure that it failed to give adequate warning
to those subject to its prohibitions as well as to provide proper standards for
adjudication.

Such a definition encompasses the vagueness doctrine. This perspective

rightly integrates the vagueness doctrine with the due process clause, a necessary
interrelation since there is no constitutional provision that explicitly bars statutes that
are "void-for-vagueness.

Essentially, petitioners only bewail the lack of enforcement parameters to guide the local
authorities in the proper apprehension of suspected curfew offenders.
They do not
assert any confusion as to what conduct the subject ordinances
prohibit or not prohibit but only point to the ordinances' lack of
The mechanisms related to the
enforcement guidelines.
implementation of the Curfew Ordinances are,
however, matters of policy that are best left for the
political branches of government to resolve.
 151

Verily, the objective of curbing unbridled enforcement is not the sole consideration in a void
petitioners must show that this
for vagueness analysis; rather,

perceived danger of unbridled enforcement stems

from an ambiguous provision in the law that allows
enforcement authorities to second-guess if a particular conduct is prohibited or not
prohibited.

As above-mentioned, petitioners fail to point out any ambiguous standard in any of the
provisions of the Curfew Ordinances, but rather, lament the lack of detail on how the age of a
suspected minor would be determined. Thus, without any correlation to any vague legal
provision, the Curfew Ordinances cannot be stricken down under the void for vagueness
doctrine.

Besides, petitioners are mistaken in claiming that there are no sufficient standards to
identify suspected curfew violators. While it is true that the Curfew Ordinances do not
explicitly state these parameters, law enforcement agents are still bound to follow the
prescribed measures found in statutory law when implementing ordinances. Specifically, RA
9344, as amended, provides:

Section 7. Determination of Age. - x x x The age of a child may be determined

from the child's birth certificate, baptismal certificate or any other pertinent
documents. In the absence of these documents, age may be based on information
from the child himself/herself, testimonies of other persons, the physical appearance
of the child and other relevant evidence.

This provision should be read in conjunction with · the Curfew Ordinances because RA
10630 (the law that amended RA 9344) repeals all ordinances inconsistent with statutory
law.53 Pursuant to Section 57-A of RA 9344, as amended by RA 10630,54 minors caught in
violation of curfew ordinances are children at risk and, therefore, covered by its provisions.55
It is a long-standing principle that "[c]onformity with law is one of the essential requisites
for the validity of a municipal ordinance." Hence, by necessary implication,
ordinances should be read and implemented in conjunction with related statutory law.
 152

B. Right of Parents to Rear their

Children.
Petitioners submit that the Curfew Ordinances are unconstitutional because they deprive
parents of their natural and primary right in the rearing of the youth without substantive due
process. In this regard, they assert that this right includes the right to determine whether
minors will be required to go home at a certain time or will be allowed to stay late outdoors.
Given that the right to impose curfews is primarily with parents and not with the State, the
latter's interest in imposing curfews cannot logically be compelling.57

Petitioners' stance cannot be sustained.

Section 12, Article II of the 1987 Constitution articulates the State's policy relative to the
rights of parents in the rearing of their children:

Section 12. The State recognizes the sanctity of family life and shall protect
and strengthen the family as a basic autonomous social institution. It shall equally
protect the life of the mother and the life of the unborn from conception. The natural
and primary right and duty of parents in the rearing of the youth for civic efficiency
and the development of moral character shall receive the support of the
Government.

While parents have the primary role in child-rearing, it should be stressed that "when actions
concerning the child have a relation to the public welfare or the well-being of the child, the
[Sltate may act to promote these legitimate interests."66 Thus, "[i]n
cases in which
harm to the physical or mental health of the child or to public
safety, peace, order, or welfare is demonstrated, these legitimate
state interests may override the parents' qualified right to control
the upbringing of their children.

As our Constitution itself provides, the State is mandated to support parents in the exercise
of these rights and duties. State authority is therefore, not exclusive of, but rather,
complementary to parental supervision.

As parens patriae, the State has the inherent right

and duty to aid parents in the moral development of
their children,
 153

C. Right to Travel.
Petitioners further assail the constitutionality of the Curfew Ordinances based on the minors'
right to travel. They claim that the liberty to travel is a fundamental right, which, therefore,
necessitates the application of the strict scrutiny test.

Further, they submit that even if there exists a compelling State interest, such as the
prevention of juvenile crime and the protection of minors from crime, there are other
less restrictive means for achieving the government's interest.

In addition, they posit that the Curfew Ordinances suffer from overbreadth by proscribing
or impairing legitimate activities of minors during curfew hours.

Petitioner's submissions are partly meritorious.

At the outset,Court rejects petitioners' invocation of the
the
overbreadth doctrine, considering that petitioners have not claimed
any transgression of their rights to free speech or any inhibition of
speech-related conduct.

In Southern Hemisphere Engagement Network, Inc. v. AntiTerrorism Council(Southern

Hemisphere),80 this Court explained that "the application of the overbreadth doctrine is
limited to a facial kind of challenge and, owing to the given rationale of a facial challenge,
applicable only to free speech cases,

In the more recent case of SpousesImbong v. Ochoa, Jr.,86 it was opined that "[f]acial
challenges can only be raised on the basis of overbreadth and not on vagueness. Southern
Hemisphere demonstrated how vagueness relates to violations of due process rights,
whereas facial challenges are raised on the basis of overbreadth and limited to the realm of
freedom of expression."

That being said, this Court finds it improper to undertake an overbreadth analysis in this
case, there being no claimed curtailment of free speech. On the contrary, however, this
Court finds proper to examine the assailed regulations under the
strict scrutiny test.
 154

The right to travel is recognized and guaranteed as a fundamental right88 under Section 6,
Article III of the 1987 Constitution, to wit:

Section 6. The liberty of abode and of changing the same within the limits
prescribed by law shall not be impaired except upon lawful order of the court. Neither
shall the right to travel be impaired except in the interest of national security, public
safety, or public health, as may be provided by law.

Nevertheless, grave and overriding considerations of public interest justify restrictions even if
made against fundamental rights. Specifically on the freedom to move from one place to
another, jurisprudence provides that this right is not absolute. As the 1987 Constitution itself
reads, the State96 may impose limitations on the exercise of this right, provided that they:

(1) serve the interest of national security, public safety, or public health; and

(2) are provided by law.

The stated purposes of the Curfew Ordinances, specifically the promotion of juvenile safety
and prevention of juvenile crime, inarguably serve the interest of public
safety. The restriction on the minor's movement and activities within the confines of their
residences and their immediate vicinity during the curfew period is perceived to reduce the
probability of the minor becoming victims of or getting involved in crimes and
criminal activities.

As to the second requirement, i.e., that the limitation "be provided by law," our legal system
is replete with laws emphasizing the State's duty to afford special protection to children,

For these reasons, the State is justified in setting restrictions

on the minors' exercise of their travel rights, provided, they are singled out on reasonable
grounds.

In Bellotti,117the US Supreme Court identified three (3) justifications for the differential
treatment of the minors' constitutional rights. These are:

first, the peculiar vulnerability of children;

second, their inability to make critical decisions in an informed and mature

manner; an

third, the importance of the parental role in child rearing

 155

Philippine jurisprudence has developed three (3) tests of judicial

scrutiny to determine the reasonableness of classifications.

1. strict scrutiny test

Applies when a classification either

(i) interferes with the exercise of fundamental rights, including the basic liberties
guaranteed under the Constitution, or

(ii) burdens suspect classes.

2. intermediate scrutiny test

Applies when a

● classification does not involve suspect classes or fundamental rights, but requires
heightened scrutiny, such as in classifications based on gender and legitimacy.

3. rational basis test

applies to all other subjects not covered by the first two tests.

Considering that the right to travel is a fundamental right in our legal system guaranteed no
less by our Constitution, the strict scrutiny test is the applicable test.127 At this juncture, it
should be emphasized that minors enjoy the same constitutional rights as adults; the fact
that the State has broader authority over minors than over adults does not trigger the
application of a lower level of scrutiny.

The strict scrutiny test as applied to minors entails a consideration of the peculiar
circumstances of minors as enumerated in Bellotti vis-a-vis the State's duty as parens
patriae to protect and preserve their well-being with the compelling State interests justifying
the assailed government act.
 156

Under the strict scrutiny test, a legislative classification that interferes with the exercise of a
fundamental right or operates to the disadvantage of a suspect class is presumed
unconstitutional. government has the burden of
Thus, the

proving that the classification

1. is necessary to achieve a compelling State interest, and

2. is the least restrictive means to protect such interest or the means chosen is
narrowly tailored to accomplish the interest.

a. Compelling State Interest.

Similar to the City of Charlottesville in Schleifer, the local governments of Quezon City and
Manila presented statistical data in their respective pleadings showing the alarming
prevalence of crimes involving juveniles, either as victims or perpetrators, in their respective
localities.139

Based on these findings, their city councils found it necessary to enact curfew ordinances
pursuant to their police power under the general welfare clause.140 In this light, the Court
thus finds that the local governments have not only conveyed but, in fact, attempted to
substantiate legitimate concerns on public welfare, especially with respect to minors. As
such, a compelling State interest exists for the enactment and enforcement of the Curfew
Ordinances.

first requirement of the strict scrutiny test

With the

satisfied,

b. Least Restrictive Means/ Narrowly Drawn.

The second requirement of the strict scrutiny test stems from the fundamental premise that
citizens should not be hampered from pursuing legitimate activities in the exercise of
their constitutional rights. While rights may be restricted, the restrictions must be minimal or
only to the extent necessary to achieve the purpose or to address the State's compelling
interest

Although treated differently from adults, the foregoing standard

applies to regulations on minors as they are still accorded the
freedom to participate in any legitimate activity, whether it be
social, religious, or civic.
 157

Thus, in the present case, each of the ordinances must be narrowly tailored as to ensure
minimal constraint not only on the minors' right to travel but also on their other constitutional
rights.

US court declared a curfew ordinance unconstitutional impliedly for not being narrowly
drawn, resulting in unnecessary curtailment of minors' rights to freely exercise their religion
and to free speech.145 It observed

After a thorough evaluation of the ordinances' respective provisions, this Court finds that only
the Quezon City Ordinance meets the above-discussed requirement,
while the Manila and Navotas Ordinances do not.

This Court observes that these two ordinances are not narrowly drawn in that their
exceptions are inadequate and therefore, run the risk of overly restricting the minors'
fundamental freedoms. To be fair, both ordinances protect the rights to education, to gainful
employment, and to travel at night from school or work.

However, even with those safeguards, the Navotas Ordinance and, to a greater extent, the
Manila Ordinance still do not account for the reasonable exercise of the minors' rights of
association, free exercise of religion, rights to peaceably assemble, and of free expression,
among others.

The exceptions under the Manila Ordinance are too limited, and thus, unduly trample upon
protected liberties. The Navotas Ordinance is apparently more protective of constitutional
rights than the Manila Ordinance;

As compared to the first two (2) ordinances, the list of exceptions

under the Quezon City Ordinance is more narrowly drawn to sufficiently
protect the minors' rights of association, free exercise of religion, travel, to peaceably
assemble, and of free expression.

To note, there is no lack of supervision when a parent duly authorizes his/her minor child to
run lawful errands or engage in legitimate activities during the night, notwithstanding curfew
hours.

As astutely observed by Senior Associate Justice Antonio T. Carpio and Associate Justice
Marvic M.V.F. Leonen during the deliberations on this case, parental permission is implicitly
considered as an exception found in Section 4, item (a) of the Quezon City Ordinance,

● i.e., "[t]hose accompanied by their parents or guardian", as accompaniment should

be understood not only in its actual but also in its constructive sense.
 158

As the Court sees it, this should be the reasonable construction of this exception so as to
reconcile the juvenile curfew measure with the basic premise that State interference is not
superior but only complementary to parental supervision. After all, as the Constitution itself
prescribes, the parents' right to rear their children is not only natural but primary.

In sum, while the Court finds that all three Curfew Ordinances have passed the first prong
of the strict scrutiny test - that is, that the State has sufficiently shown a compelling interest
to promote juvenile safety and prevent juvenile crime in the concerned localities, only
the Quezon City Ordinance has passed the second prong of the strict
scrutiny test, as it is the only issuance out of the three which provides for the least restrictive
means to achieve this interest

In particular, Quezon City Ordinance provides for adequate

the
exceptions that enable minors to freely exercise their fundamental
rights during the prescribed curfew hours, and therefore, narrowly drawn to achieve the
State's purpose. Section 4 (a) of the said ordinance, i.e., "[t]hose accompanied by their
parents or guardian", has also been construed to include parental permission as a
constructive form of accompaniment and hence, an allowable exception to the curfew
measure; the manner of enforcement, however, is left to the discretion of the local
government unit.

In fine, the Manila and Navotas Ordinances are declared unconstitutional and thus, null and
void, while the Quezon City Ordinance is declared as constitutional and thus, valid in
accordance with this Decision.

For another, the Court has determined that the Manila Ordinance's penal provisions
imposing reprimand and fines/imprisonment on minors conflict with Section 57-A of RA
9344, as amended. Hence, following the rule that ordinances should always conform with
the law, these provisions must be struck down as invalid.

WHEREFORE, the petition is PARTLYGRANTED. The Court hereby declares Ordinance No.
8046, issued by the local government of the City of Manila, and Pambayang Ordinansa Blg.
No. 99-02, as amended by Pambayang Ordinansa Blg. 2002-13 issued by the local
government of Navotas City, UNCONSTITUTIONAL and, thus, NULL and VOID; while
Ordinance No. SP-2301, Series of 2014, issued by the local government of the Quezon City
is declared CONSTITUTIONAL and, thus, VALID in accordance with this Decision.
 159

Disciplinary Actions
RA 6770 Ombudsman Sec. 58, 60-68

OMBUDSMAN vs. Rolson Rodriguez ( , the body in which the complaint is

filed first, and which opts to take cognizance of the case, acquires jurisdiction
to the exclusion of other tribunals exercising concurrent
jurisdiction; In this case, since the complaint was filed first in the Ombudsman,
and the Ombudsman opted to assume jurisdiction over the complaint, the
Ombudsmans exercise of jurisdiction is to the exclusion of the
sangguniang bayan exercising concurrent jurisdiction )
G.R. No. 172700 July 23, 2010
Carpio, J 2nd Div.

Facts:
On 26 August 2003, the Ombudsman in Visayas received a complaint[4] for abuse of
authority, dishonesty, oppression, misconduct in office, and neglect of duty against Rolson
Rodriguez, punong barangay in Brgy. Sto. Rosario, Binalbagan, Negros Occidental. On 1
September 2003, the sangguniang bayan of Binalbagan, Negros Occidental, through
vice-mayor Jose G. Yulo, received a similar complaint against Rodriguez.

Rodriguez filed a motion to dismiss the case filed in the sangguniang bayan on the ground
that the allegations in the complaint were without factual basis and did not constitute any
violation of law and violated the rule against forum shopping.

Rodriguez filed on 24 October 2003 a motion to dismiss the case filed in the
Ombudsman on the grounds of litis pendentia and forum shopping. He alleged that the
sangguniang bayan had already acquired jurisdiction over his person as early as 8
September 2003.

Complainants filed a motion to withdraw the complaint lodged in the sangguniang

bayan on the ground that they wanted to prioritize the complaint filed in the
Ombudsman. Municipal vice-mayor dismissed the case filed in the sangguniang bayan.

Ombudsman stated that a motion to dismiss was a prohibited pleading under Section 5 (g)
Rule III of Administrative Order No. 17. The Ombudsman reiterated its order for Rodriguez to
file his position paper.

In his position paper, Rodriguez insisted that the sangguniang bayan still continued to
exercise jurisdiction over the complaint filed against him. complainants maintained there
was no more complaint pending in the sangguniang bayan since the latter had granted their
motion to withdraw the complaint. In a rejoinder

Ombudsman found Rodriguez guilty of dishonesty and oppression. It imposed on

Rodriguez the penalty of dismissal from the service with forfeiture of all benefits,
 160

disqualification to hold public office, and forfeiture of civil service eligibilities. Rodriguez filed
a motion for reconsideration. Ombudsman denied MR.

CA set aside for lack of jurisdiction the Decision of the Ombudsman and directed the
sangguniang bayan to proceed with the hearing on the administrative case. CA reasoned
that the sangguniang bayan had acquired primary jurisdiction over the person of
Rodriguez to the exclusion of the Ombudsman.

appellate court noted that the sangguniang bayan served on Rodriguez a notice, requiring
the latter to file an answer, on 8 September 2003 while the Ombudsman did so two days
later or on 10 September 2003. Hence the case at bar.

Issue: Whether CA erred in dismissing the case before the Ombudsman for lack of
jurisdiction?

Held: YES!

Section 15 of Republic Act No. 6770, otherwise known as the Ombudsman Act of 1989,
states:

Sec. 15. Powers, Functions, and Duties. The Ombudsman shall have the
following powers, functions, and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper, or inefficient. It has primary
jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of this
primary jurisdiction, it may take over, at any stage, from any investigatory agency of
Government, the investigations of such cases.

Primary jurisdiction of the Ombudsman to investigate any act or omission of a public officer
or employee applies only in cases cognizable by the Sandiganbayan. In cases cognizable
by regular courts, the Ombudsman has concurrent jurisdiction with other investigative
agencies of government.

Republic Act No. 8249, otherwise known as An Act Further Defining the Jurisdiction of the
Sandiganbayan, limits the cases that are cognizable by the Sandiganbayan to public officials
occupying positions corresponding to salary grade 27 and higher.

The Sandiganbayan has no jurisdiction over private respondent who, as punong barangay, is
occupying a position corresponding to salary grade 14 under Republic Act No. 6758.

Under Republic Act No. 7160, otherwise known as the Local Government Code, the
sangguniang panlungsod or sangguniang bayan has disciplinary authority over any elective
barangay official, to wit:
 161

SEC. 61. Form and Filing of Administrative Complaints. A verified complaint

against any erring elective official shall be prepared as follows:

(c) A complaint against any elective barangay official shall be filed before
the sangguniang panlungsod or sangguniang bayan concerned whose decision
shall be final and executory.

Clearly, the Ombudsman has concurrent jurisdiction with the sangguniang bayan over
administrative cases against elective barangay officials occupying positions below salary
grade 27, such as private respondent in this case.

The Court held therein that the rule against forum shopping applied only to judicial cases or
proceedings, not to administrative cases.[30] Thus, even if complainants filed in the
Ombudsman and the sangguniang bayan identical complaints against private respondent,
they did not violate the rule against forum shopping because their complaint was in the
nature of an administrative case.

In administrative cases involving the concurrent jurisdiction of two or more disciplining

the body in which the complaint is filed first, and which opts to
authorities,
take cognizance of the case, acquires jurisdiction to the exclusion of other
tribunals exercising concurrent jurisdiction.

In this case, since the complaint was filed first in the Ombudsman, and the Ombudsman
Ombudsmans exercise of
opted to assume jurisdiction over the complaint, the
jurisdiction is to the exclusion of the sangguniang bayan
exercising concurrent jurisdiction.

It is a hornbook rule that jurisdiction is a matter of law. Jurisdiction, once acquired, is not lost
upon the instance of the parties but continues until the case is terminated.[32] When herein
complainants first filed the complaint in the Ombudsman, jurisdiction was already vested on
the latter. Jurisdiction could no longer be transferred to the sangguniang bayan by virtue of a
subsequent complaint filed by the same complainants.

As a final note, under Section 60 of the Local Government Code, the sangguniang bayan
has no power to remove an elective barangay official. Apart from the Ombudsman, only
a proper court may do so. Unlike the sangguniang bayan, the powers of the
Ombudsman are not merely recommendatory. The Ombudsman is
clothed with authority to directly remove an erring public official other than
members of Congress and the Judiciary who may be removed only by impeachment.

WHEREFORE, we GRANT the petition. We SET ASIDE the 8 May 2006 Decision of the
Court of Appeals in CA-G.R. SP No. 00528. We AFFIRM the 21 September 2004 Decision
of the Ombudsman (Visayas) in OMB-V-A-03-0511-H.
 162

Franklin Alejandro vs. Ombudsman ( Since the complaint against the petitioner was
initially filed with the Office of the Ombudsman, the Ombudsman's exercise of
jurisdiction is to the exclusion of the sangguniang bayan whose exercise of
jurisdiction is concurrent )
G.R. No. 173121 April 3, 2013
BRION, J. 2nd Div.

Facts:
During the anti-water pilferage operation, the PNP-CIDG discovered that MICO’s car-wash
boys indeed had been illegally getting water from an MWSI fire hydrant. The PNP-CIDG
arrested the car-wash boys and confiscated the containers used in getting water. The
petitioner, Alfredo’s father and the Barangay Chairman , Binondo, Manila, interfered with the
PNP-CIDG’s operation by ordering several men to unload the confiscated containers.

On August 5, 2003, the respondent Office of the Ombudsman Fact-Finding and Intelligence
Bureau, after conducting its initial investigation, filed with the Office of the Overall Deputy
Ombudsman an administrative complaint against the petitioner for his blatant refusal to
recognize a joint legitimate police activity, and for his unwarranted intervention.

Deputy Ombudsman found the petitioner guilty of grave misconduct and ordered his
dismissal from the service. The Deputy Ombudsman ruled that the petitioner cannot
overextend his authority as Barangay Chairman and induce other people to disrespect
proper authorities. The Deputy Ombudsman also added that the petitioner had tolerated the
illegal acts of MICO’s car-wash boys. Mr of petitioner denied.

CA dismissed the petition for premature filing. The CA ruled that the petitioner failed to
exhaust proper administrative remedies because he did not appeal the Deputy
Ombudsman’s decision to the Ombudsman. CA denied MR. Hence the case at bar.

Issue: Whether Ombudsman has jurisdiction to order his dismissal from the service since
under Republic Act No. (RA) 7160?

Held: YES!!

The Ombudsman has concurrent jurisdiction over

administrative cases which are within the
jurisdiction of the regular courts or administrative
agencies
 163

Office of the Ombudsman was created by no less than the Constitution.18 It is tasked to
exercise disciplinary authority over all elective and appointive officials, save only for
impeachable officers. While Section 21 of The Ombudsman Act19 and the Local
Government Code both provide for the procedure to discipline elective officials, the seeming
conflicts between the two laws have been resolved in cases decided by this Court.

In Hagad v. Gozo-Dadole, we pointed out that

● "there is nothing in the Local Government Code to indicate that it has repealed,
whether expressly or impliedly, the pertinent provisions of the Ombudsman Act. The
two statutes on the specific matter in question are not so inconsistent x x x as to
compel us to only uphold one and strike down the other." The two laws may be
reconciled by understanding the primary jurisdiction and concurrent jurisdiction of the
Office of the Ombudsman.

Consequently, as we held in Office of the Ombudsman v. Rodriguez,23 any act or omission

of a public officer or employee occupying a salary grade lower than 27 is within the
concurrent jurisdiction of the Ombudsman and of the regular courts or other investigative
agencies.

In administrative cases involving the concurrent jurisdiction of two or more disciplining

authorities, the body where the complaint is filed first, and which opts to take cognizance of
the case, acquires jurisdiction to the exclusion of other tribunals exercising concurrent
jurisdiction.25 In this case, the petitioner is a Barangay Chairman, occupying a position
corresponding to salary grade 14

(c) A complaint against any elective barangay official shall be filed before the sangguniang
panlungsod or sangguniang bayan concerned whose decision shall be final and executory.
[italics supplied]

Since the complaint against the petitioner was initially filed with the
Office of the Ombudsman, the Ombudsman's exercise of
jurisdiction is to the exclusion of the sangguniang bayan whose
exercise of jurisdiction is concurrent.
 164

The Ombudsman has the power to impose

administrative sanctions

Section 15 of RA 677027 reveals the manifest intent of the lawmakers to give the Office of
the Ombudsman full administrative disciplinary authority. This provision covers the
entire range of administrative activities attendant to administrative adjudication,
including, among others, the authority to

● receive complaints,
● conduct investigations,
● hold hearings in accordance with its rules of procedure,
● summon witnesses and require the production of documents,
● place under preventive suspension public officers and employees pending an
investigation,
● determine the appropriate penalty imposable on erring public officers or employees
as warranted by the evidence, and, necessarily, impose the corresponding penalty.

These powers unmistakably grant the Office of the Ombudsman the power to directly impose
administrative sanctions; its power is not merely recommendatory. We held in Office of the
Ombudsman v. Apolonio29 that:

It is likewise apparent that under RA 6770, the lawmakers intended to provide the Office of
the Ombudsman with sufficient muscle to ensure that it can effectively carry out its mandate
as protector of the people against inept and corrupt government officers and employees.

The Office was granted the power to punish for contempt in accordance with the
Rules of Court. It was given disciplinary authority over all elective and appointive
officials of the government and its subdivisions, instrumentalities and agencies (with the
exception only of impeachable officers, members of Congress and the Judiciary). Also, it can
preventively suspend any officer under its authority pending an investigation when the case
so warrants.
 165

Edgardo Flores vs. Sanggu Panlalawigan of Pampanga

( petitioner, before filing with the Court of Appeals his petition for
certiorari, should have waited for respondent Governor Lapids
action on the recommendation of respondent Sangguniang
Panlalawigan that he be preventively suspended from office;)
G.R. No. 159022. February 23, 2005
SANDOVAL-GUTIERREZ, J. 3rd Div.

Facts:
December 19, 2001, an administrative complaint for dishonesty and gross misconduct
against then Mayor Edgardo G. Flores of Minalin, Pampanga was filed with the Sangguniang
Panlalawigan of the same province, one of the respondents herein. The complainants were
the municipal councilors of Minalin,

Administrative complaint against petitioner alleged that on August 1, 2001, he executed

Purchase Request No. 1 for the acquisition of a communication equipment amounting to
P293K without any Resolution or Ordinance enacted by the Sangguniang Bayan of Minalin.

While the bidding was still being conducted, Kai Electronics delivered the communication
equipment to the municipality of Minalin. The Notice of Award of Bid to Kai Electronics states
that the bidding took place also on August 1, 2001 when respondent executed the Purchase
Request No. 1. The communication equipment delivered by Kai was overpriced by more
than one hundred percent (100%) or in the amount of P129,600.00.

respondent Sangguniang Panlalawigan issued an Order recommending to Governor Manuel

M. Lapid of Pampanga, also a respondent, that petitioner be preventively suspended from
office for a period of sixty (60) days.

Without seeking a reconsideration of the Order of respondent Sangguniang Panlalawigan,

petitioner sent a letter dated September 12, 2002 to respondent Governor Lapid requesting
him to veto the same.

Also, without waiting for respondent Governor Lapids action on his letter, petitioner, on
September 24, 2002, filed with the Court of Appeals a petition for certiorari,[3] docketed as
CA-G.R. SP No. 72958. He contended that respondent Sangguniang Panlalawigan acted
with grave abuse of discretion in issuing the Order of preventive suspension, hence, the
same should be nullified.

CA held that he failed to exhaust all administrative remedies before going to court. MR by
petitioner also denied by CA. Hence the case at bar.

Issue: Whether CA erred in dismissing the petition, prematurely filed as petitioner failed to
exhaust first all administrative remedies?
 166

Held: NO!

The administrative complaint against petitioner was filed with respondent Sangguniang
Panlalawigan of Pampanga in accordance with the above provision.

After receiving the Order of respondent Sangguniang Panlalawigan preventively suspending

him from office, petitioner should have filed a motion for reconsideration in order to give the
latter the opportunity to correct itself if there was any error on its part. Such motion is a
condition sine qua non before filing a petition for certiorari under Rule 65 of the 1997 Rules
of Civil Procedure, as amended.

Section 1 of the same Rule requires that petitioner must not only show that respondent
Sangguniang Panlalawigan, in issuing the questioned Order, acted without or in excess of its
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, but
that there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course
of law. We have held that the plain and adequate remedy referred to in Section 1 of Rule 65
is a motion for reconsideration of the assailed Order or Resolution.

Petitioner may not arrogate to himself the determination of whether a motion for
reconsideration is necessary or not.[8] To dispense with the requirement of filing a motion
for reconsideration, petitioner must show a concrete, compelling, and valid reason for doing
so.[9] This, petitioner failed to do. Thus, the Court of Appeals correctly held that petitioner
should have first interposed a motion for reconsideration of the questioned Order issued by
respondent Sangguniang Panlalawigan.

petitioner, before filing with the Court of Appeals his

We must add that
petition for certiorari, should have waited for respondent Governor
Lapids action on the recommendation of respondent Sangguniang
Panlalawigan that he be preventively suspended from office;

and on his letter requesting the Governor to veto the questioned Order, considering that the
latter is the one empowered by law to impose preventive suspension upon him. Section 63
of the Local Government Code of 1991 partly provides:

Petitioner has not shown any valid and compelling reason why, without waiting for the
Governors action on the matter, he immediately filed with the Court of Appeals a petition for
certiorari. By doing so, petitioner effectively deprived the Governor of his duty to take
appropriate action on the controversy.

It is a well-settled rule that where, as here, the petitioner has available remedies within the
administrative machinery against the action of an administrative board, body, or officer, the
intervention of the courts can be resorted to by him only after having exhausted all such
remedies. The rationale of this rule rests upon the presumption that the administrative body,
if given the chance to correct its mistake or error, may amend its decision on a given matter
and decide it properly.
 167

Eduardo Joson et al vs. Executive Sec. et al ( Petitioner's right to a formal investigation

was not satisfied when the complaint against him was decided on the basis of
position papers. There is nothing in the Local Government Code and its Implementing
Rules and Regulations nor in A.O. No. 23 that provide that administrative cases
against elective local officials can be decided on the basis of position papers )
G.R. No. 131255. May 20, 1998
PUNO, J. 2nd Div.

Facts:
private respondents filed with the Office of the President a letter-complaint dated September
13, 1997 charging petitioner with grave misconduct and abuse of authority. Private
respondents alleged that

● petitioner belligerently barged into the Hall; petitioner angrily kicked the door and
chairs in the Hall and uttered threatening words at them; close behind petitioner were
several men with long and short firearms who encircled the area

Private respondents claim that this incident was an offshoot of their resistance to a pending
legislative measure supported by petitioner that the province of Nueva Ecija obtain a loan of
P150 million from the Philippine National Bank;

private respondents opposed the loan because the province of Nueva Ecija had an
unliquidated obligation of more than P70 million incurred without prior authorization from
the Sangguniang Panlalawigan; that the provincial budget officer and treasurer had earlier
disclosed that the province could not afford to contract another obligation

Private respondents prayed for the suspension or removal of petitioner; for an emergency
audit of the provincial treasury of Nueva Ecija; and for the review of the proposed loan in
light of the financial condition of the province,

President Ramos noted that the situation of "12 Sep at the Session Hall," i.e., the refusal of
the members of the Sangguniang Panlalawigan to approve the proposed loan, did not
appear to justify "the use of force, intimidation or armed followers." He thus instructed the
then Secretary of the Interior and Local Governments (SILG) Robert Barbers to "[t]ake
appropriate preemptive and investigative actions," but to "[b]reak not the peace."

On recommendation of Secretary Barbers, Executive Secretary Ruben Torres issued an

order, by authority of the President, placing petitioner under preventive suspension for
sixty (60) days pending investigation of the charges against him.

Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor until such time
as petitioner's temporary legal incapacity shall have ceased to exist. Undersecretary
Sanchez issued an order denying petitioner's "Motion to Dismiss"

Secretary of the Interior and Local Governments rendered a resolution on the case finding
him guilty of the offenses charged. Executive Secretary, by authority of the President,
 168

adopted the findings and recommendation of the DILG Secretary. He imposed on

petitioner the penalty of suspension from office for six (6) months without pay,

Issue: Whether 8 Resolution of the Executive Secretary finding petitioner guilty as charged
and imposing on him the penalty of suspension from office for six (6) months from office
without pay Valid?

Held: NO!

Petitioner claims that the suspension was made without formal investigation pursuant to the
provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion To Conduct Formal
Investigation" three months before the issuance of the order of suspension and this motion
was denied by the DILG

The denial of petitioner's Motion to Conduct Formal Investigation is erroneous. Petitioner's

right to a formal investigation is spelled out in the following provisions of A.O. No. 23, viz:

"SEC. 3 Evaluation. Within twenty (20) days from receipt of the complaint and
answer, the Investigating Authority shall determine whether there is a prima facie case to
warrant the institution of formal administrative proceedings.

The records show that on August 27, 1997, petitioner submitted his Answer Ad Cautelam
where he disputed the truth of the allegations. Undersecretary Sanchez admitted petitioner's
Answer Ad Cautelam but treated it as a position paper. On October 15, 1997, petitioner filed
a Motion to Conduct Formal Investigation. Petitioner reiterated this motion on October 29,
1997. Petitioner's motion was denied

Therejection of petitioner's right to a formal investigation denied

him procedural due process. Section 5 of A. O. No. 23 provides that at the
preliminary conference, the Investigating Authority shall summon the parties to consider
whether they desire a formal investigation. This provision does not give the Investigating
Authority the discretion to determine whether a formal investigation would be conducted.

An erring elective local official has rights akin to the constitutional rights of an
accused. These rights are essentially part of procedural due process. The local elective
official has the

(1) right to appear and defend himself in person or by counsel;

(2) the right to confront and cross-examine the witnesses against him; and

(3) the right to compulsory attendance of witness and the production of documentary
evidence.
 169

These rights are reiterated in the Rules Implementing the Local Government Code[70] and in
A.O. No. 23.[71] Well to note, petitioner formally claimed his right to a formal investigation
after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.

Petitioner's right to a formal investigation was not satisfied when the

complaint against him was decided on the basis of position papers. There is nothing in the
Local Government Code and its Implementing Rules and Regulations nor in A.O. No. 23 that
provide that administrative cases against elective local officials can be decided on the basis
of position papers.

A.O. No. 23 states that the Investigating Authority may require the parties to submit their
respective memoranda but this is only after formal investigation and hearing.

The jurisprudence cited by the DILG in its order denying petitioner's motion for a formal
Administrative
investigation applies to appointive officials and employees.

disciplinary proceedings against elective

government officials are not exactly similar to those
against appointive officials
In the Local Government Code, the entire Title II of Book I of the Code is
devoted to elective officials. It provides for their qualifications and election,
vacancies and succession, local legislation, disciplinary actions, and recall.

Appointive officers and employees are covered in Title III of Book I of the
Code entitled "Human Resources and Development." All matters pertinent to human
resources and development in local government units are regulated by "the civil
service law and such rules and regulations and other issuances promulgated thereto,
unless otherwise provided in the Code.

adjudication of administrative complaints against

The "investigation and
appointive local officials and employees as well as their suspension and removal"
are "in accordance with the civil service law and rules and other pertinent laws,"
the results of which "shall be reported to the Civil Service Commission."

The provisions for administrative disciplinary actions against elective local officials are
markedly different from appointive officials.[87] The rules on the removal and suspension of
elective local officials are more stringent. The procedure of requiring position papers in lieu
of a hearing in administrative cases is expressly allowed with respect to appointive officials
but not to those elected. An elective official, elected by popular vote, is directly responsible
to the community that elected him. T
 170

Complaint Filed before O.P., Proper

Section 60 of Chapter 4, Title II, Book I of the Local Government Code enumerates the
grounds for which an elective local official may be disciplined, suspended or removed from
office.

When an elective local official commits an act that falls under the grounds for disciplinary
action, the administrative complaint against him must be verified and filed with any of the
following:

"Sec. 61. Form and Filing of Administrative Complaints.-- A verified complaint

against any erring local elective official shall be prepared as follows:

An administrative complaint against an erring elective official must be

verified and filed with the proper government office.

A complaint against an elective provincial or city official must be

filed with the Office of the President.

A complaint against an elective municipal official must be filed with the

Sangguniang Panlalawigan

while that of a barangay official must be filed before the Sangguniang

Panlungsod or Sangguniang Bayan.

In the instant case, petitioner Joson is an elective official of the province of Nueva Ecija. The
letter-complaint against him was therefore properly filed with the Office of the President.

petitioner questions the jurisdiction and authority of the DILG Secretary over the case. He
contends that under the law, it is the Office of the President that has jurisdiction over the
letter-complaint and that the Court of Appeals erred in applying the alter-ego principle
because the power to discipline elective local officials lies with the President, not with
the DILG Secretary.
 171

Jurisdiction over administrative disciplinary actions against elective local officials is lodged in
two authorities: the Disciplining Authority and the Investigating Authority. This is explicit from
A.O. No. 23, to wit:

"Sec. 2. Disciplining Authority. All administrative complaints, duly verified,

against elective local officials mentioned in the preceding Section shall be acted upon
by the President. The President, who may act through the Executive Secretary, shall
hereinafter be referred to as the Disciplining Authority."

Sec. 3. Investigating Authority. The Secretary of the Interior and Local

Government is hereby designated as the Investigating Authority. He may constitute
an Investigating Committee in the Department of the Interior and Local Government
for the purpose.

Disciplining Authority is the

Pursuant to these provisions, the

President of the Philippines, whether acting by himself or through

the Executive Secretary.

TheSecretary of the Interior and Local Government is

the Investigating Authority, who may act by himself
or constitute an Investigating Committee.
The Secretary of the DILG, however, is not the exclusive Investigating Authority. In lieu of the
DILG Secretary, the Disciplining Authority may designate a Special Investigating Committee.

The power of the President over administrative disciplinary cases against elective local
officials is derived from his power of general supervision over local governments

The power to discipline evidently includes the power to investigate. As the Disciplining
President has the power derived from the Constitution
Authority, the
itself to investigate complaints against local government officials.

A. O. No. 23, however, delegates the power to investigate to the DILG or a Special
Investigating Committee, as may be constituted by the Disciplining Authority. This is not
undue delegation, contrary to petitioner Joson's claim. The President remains the
What is delegated is the power to
Disciplining Authority.

investigate, not the power to discipline.

 172

Moreover, power of the DILG to investigate

the

administrative complaints is based on the alter-ego

principle or the doctrine of qualified political agency.
This doctrine is corollary to the control power of the President.[56] The power of control is
provided in the Constitution, thus:

"Sec. 17. The President shall have control of all the executive departments,
bureaus, and offices. He shall ensure that the laws be faithfully executed."

Control is said to be the very heart of the power of the presidency. Each head of a
department is, and must be, the President's alter ego in the matters of that department
where the President is required by law to exercise authority.

The procedure how the Disciplining and Investigating Authorities should exercise their
powers is distinctly set forth in the Local Government Code and A.O. No. 23. Section 62 of
the Code provides:

"Sec. 62. Notice of Hearing.--

(a) Within seven (7) days after the administrative complaint is filed, the
Office of the President or the sanggunian concerned, as the case may be,
shall require the respondent to submit his verified answer
within fifteen (15) days from receipt thereof,

In the case at bar, petitioner claims that the DILG Secretary usurped the power of the
President when he required petitioner to answer the complaint. Undisputably, the
letter-complaint was filed with the Office of the President but it was the DILG Secretary who
ordered petitioner to answer.

Strictly applying the rules, the Office of the President did not comply with the
provisions of A.O. No. 23. The Office should have first required petitioner to file his answer.
Thereafter, the complaint and the answer should have been referred to the Investigating
Authority for further proceedings. Be that as it may, this procedural lapse is not fatal.
 173

Disciplinary Actions
Ombudsman

Manuel Lapid vs. CA et al ( Ombudsman Act gives parties the right to appeal from its
decisions should generally carry with it the stay of these decisions pending appeal.
Otherwise, the essential nature of these judgments as being appealable would be
rendered nugatory. Petitioner was charged administratively before the Ombudsman
and accordingly the provisions of the Ombudsman Act should apply in his case. )
G.R. No. 142261. June 29, 2000
GONZAGA-REYES, J.

Facts:
On the basis of an unsigned letter dated July 20, 1998, allegedly originating from the Mga
Mamamayan ng Lalawigan ng Pampanga, addressed to NBI, the latter initiated an open
probe on the alleged illegal quarrying in Pampanga & exaction of exorbitant fees purportedly
perpetrated by unscrupulous individuals with the connivance of high-ranking government
officials.

NBI Report was endorsed to the respondent Ombudsman. a complaint was filed charging
petitioner Gov. Manuel M. Lapid et al with alleged Dishonesty, Grave Misconduct and
Conduct Prejudicial to the Best Interest of the Service for allegedly

● having conspired between and among themselves in demanding and collecting from
various quarrying operators in Pampanga a control fee, control slip, or monitoring fee
of P120.00 per truckload of sand, gravel, or other quarry material, without a duly
enacted provincial ordinance authorizing the collection thereof and without issuing
receipts for its collection.

Ombudsman issued an Order dated January 13, 1999 preventively suspending petitioner
Lapid et al for a period of six (6) months without pay pursuant to Sec. 24 of RA 6770. DILG
implemented the suspension of petitioner Lapid.

Ombudsman rendered a decision in the administrative case finding the petitioner

administratively liable for misconduct. Office of the Ombudsman denied MR.

Petitioner then filed a petition for review with CA praying for the issuance
of a temporary restraining order to enjoin the Ombudsman from enforcing the questioned
decision. CA issued temporary restraining order. Court of Appeals issued a resolution[10]
denying the petitioners prayer for injunctive relief.

DILG implemented the assailed decision of the Ombudsman and the

highest ranking Provincial Board Member of Pampanga, Edna David, took her oath of office
as O.I.C.- Governor of the Province of Pampanga.
 174

Petitioner argued that the respondent court exceeded the bounds of its jurisdiction.
Proceeding from the premise that the decision of the Ombudsman had not yet become
final, the petitioner argued that the writs of prohibition and mandamus may be issued
against the respondent DILG for prematurely implementing the assailed decision.

Solicitor-General Regarding the issue of the immediate enforcement of decision of

Ombudsman, maintains that the said decision is governed by Section 12, Rule 43 of the
Rules of Court and is therefore, immediately executory.

For its part, the Office of the Ombudsman maintains that the Ombudsman Law and its
rules are silent as to the execution of decisions rendered
implementing
by the Ombudsman considering that the portion of the said law
cited by petitioner pertains to the finality of the decision

The Office of the Ombudsman also stated that it has uniformly adopted the provisions in the
Local Government Code and Administrative Code that decisions in administrative
disciplinary cases are immediately executory.

Issue: Whether decision of the Office of the Ombudsman finding herein petitioner
administratively liable for misconduct and imposing upon him a penalty of one (1) year
suspension without pay is immediately executory pending appeal?

Held: NO!

It is clear from the above provisions that the punishment imposed upon petitioner, i.e.
not among those listed as
suspension without pay for one year, is

final and unappealable, hence, immediately

executory. Section 27 states that all provisionary orders of the Office of the
Ombudsman are immediately effective and executory; and that any order, directive or
decision of the said Office

● imposing the penalty of censure or

● reprimand or
● suspension of not more than one months salary is final and unappealable.

The clear import of these statements taken together is that all other decisions of the Office of
the Ombudsman which impose penalties that are not enumerated in the said section 27 are
not final, unappealable and immediately executory.

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto[18]
has voided Section 27 of R.A. 6770 and Section 7, Rule III of Administrative Order No. 07.
As such, the review of decisions of the Ombudsman in administrative cases is now governed
 175

by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section 12[19]
thereof, the immediately executory character of the decision or order appealed from.

respondents failed to establish the existence of a law mandating the immediate execution of
a decision of the Office of the Ombudsman in an administrative case where the penalty
imposed is suspension for one year.

A judgment becomes final and executory by operation of law. Section 27 of the

Ombudsman Act provides that any order, directive or decision of the Office of the
Ombudsman imposing a penalty of public censure or reprimand, or suspension of
not more than one months salary shall be final and unappealable.

In all other cases, the respondent therein has the right to appeal to
the Court of Appeals within ten (10) days from receipt of the written
notice of the order, directive or decision. In all these other cases therefore,
the judgment imposed therein will become final after the lapse of the reglementary
period of appeal if no appeal is perfected or, an appeal therefrom having been taken,
the judgment in the appellate tribunal becomes final.

In other words, the fact that the Ombudsman Act gives parties the right to appeal
from its decisions should generally carry with it the stay of these decisions pending
appeal. Otherwise, the essential nature of these judgments as being appealable
would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become executory
only after it has become final and executory, execution pending appeal being an
exception to this general rule.

It is the contention of respondents however that with respect to decisions of

quasi-judicial agencies and administrative bodies, the opposite is true. It is
argued that the general rule with respect to quasi-judicial and administrative
agencies is that the decisions of such bodies are immediately executory even
pending appeal.

The contention of respondents is misplaced.

The contention of respondents is misplaced. There is no general legal principle that

mandates that all decisions of quasi-judicial agencies are immediately executory. Decisions
rendered by the Securities and Exchange Commission[24] and the Civil Aeronautics
Board,[25] for example, are not immediately executory and are stayed when an appeal is
filed before the Court of Appeals
 176

On the other hand, the decisions of the

● Civil Service Commission, under the Administrative Code, and the

● Office of the President under the Local Government Code

are immediately executory even pending appeal

which respondents cite,
because the pertinent laws under which the decisions were
rendered mandate them to be so. The provisions of the last two cited laws
expressly provide for the execution pending appeal of their final orders or decisions. The
Local Government Code, under Section 68 thereof provides as follows:

Section 68. Execution Pending Appeal.

An appeal shall not prevent a decision from becoming final and

executory. The respondent shall be considered as having been placed under
preventive suspension during the pendency of an appeal in the event he wins such
appeal. In the event the appeal results in an exoneration, he shall be paid his salary
and such other emoluments during the pendency of the appeal.

Petitioner was charged administratively before the

Ombudsman and accordingly the provisions of the
Ombudsman Act should apply in his case.
Section 68 of the Local Government Code only applies to
administrative decisions rendered by the Office of the President or
the appropriate Sanggunian against elective local government
officials.

Similarly, the provision in the Administrative Code of 1987 mandating execution

pending review applies specifically to administrative decisions of the Civil
Service Commission involving members of the Civil Service.
 177

There is no basis in law for the proposition that the provisions of the
Administrative Code of 1987 and the Local Government Code on execution
pending review should be applied suppletorily to the provisions of the
Ombudsman Act as there is nothing in the Ombudsman Act which provides for
such suppletory application.

Courts may not, in the guise of interpretation, enlarge the scope of a statute and
include therein situations not provided or intended by the lawmakers. An omission at
the time of enactment, whether careless or calculated, cannot be judicially supplied
however later wisdom may recommend the inclusion.

And while in one respect, the Ombudsman Law, the Administrative Code of 1987
and the Local Government Code are in pari materia insofar as the three laws relate
or deal with public officers, the similarity ends there. It is a principle in statutory
construction that

● where there are two statutes that apply to a particular case, that which was
specially designed for the said case must prevail over the other.

In the instant case, the acts attributed to petitioner could have been the subject of
administrative disciplinary proceedings before the Office of the President under the
Local Government Code or before the Office of the Ombudsman under the
Ombudsman Act.

Considering however, that petitioner was charged under the

Ombudsman Act, it is this law alone which should govern his case.

WHEREFORE, the Motions for Reconsideration filed by the Office

of the Solicitor General and the Office of the Ombudsman are
hereby DENIED for lack of merit.
 178

COA Butuan City vs. Agapito Hinampas et al ( powers of the Ombudsman are not merely
recommendatory. His office was given teeth to render this constitutional body not
merely functional but also effective. Thus, we hold that under Republic Act No. 6770
and the 1987 Constitution, the Ombudsman has the constitutional power to directly
remove from government service an erring public official other than a member of
Congress and the Judiciary )
G.R. No. 158672 August 7, 2007
GARCIA, J. En Banc

Facts:
Teodoro A. Gapuzan filed a letter-complaint with the OOMB alleging anomalies in the
conduct of public biddings by the Office of the District Engineer, et al and the collusion
of licensed private contractor Engr. Rafael A. Candol, representing JTC Development,
Construction and Supply and NBS Construction under a joint venture agreement.

letter-complaint alleged that, despite these firms being holders of small licenses entitled only
to projects costing not more than P3M on a single undertaking, Engr. Candol was awarded
seven (7) projects of more than P3M each,

Ombudsman endorsed the aforesaid letter-complaint to COA Region XII, Caraga

Administrative Region, Butuan City, for an audit investigation. special audit report
recommended the filing of criminal charges against

● Engr. Candol and the members of the Agusan del Sur 1st Engineering District
Pre-Qualification, Bids and Awards Committee (PBAC),

● as well as the institution of administrative charges against the same PBAC members,
for negligence and failure to properly validate the veracity/authenticity of the
documents submitted in the pre-qualification process of JTC and NBS, resulting in
the award of seven (7) projects to unqualified contractors.

Ombudsman found sufficient evidence to warrant the filing of criminal cases against Engr.
Candol, et al

Ombudsman, e finds respondents Agapito A. Hinampas, et al GUILTY of gross neglect of

duty, grave misconduct and conduct prejudicial to the best interest of the service and are
hereby meted the penalty of SUSPENSION from office for one (1) year without pay, effective
upon the finality hereof. Respondent’s MR denied by Ombudsman.

CA reversed that of the Ombudsman on the following grounds:

1. The Ombudsman cannot implement its decisions in administrative disciplinary

cases pursuant to the obiter dictum in Tapiador v. Office of the Ombudsman,
et al.
 179

Issue: Whether the disciplinary power of the Ombudsman is indeed merely

recommendatory in nature, as ruled by the CA?

Held: NO!

The answer, as laid out by recent jurisprudence, is a resounding NO. As this Court has
already held in Ledesma v. CA7 and Estarija v. Ranada,8 the so-called Tapiador "doctrine,"
upon which the assailed CA decisions are based, is mere obiter.

Tapiador case takes note of the following Section of the Constitution:

Section 13. The Office of the Ombudsman shall have the following powers, functions,
and duties:

(3) Direct the officer concerned to take appropriate action against a public official or
employee at fault, and recommend his removal, suspension, demotion, fine,
censure, or prosecution, and ensure compliance therewith.

The word "recommend" must be taken in conjunction with the phrase "and ensure
compliance therewith." In Ledesma v. CA, we had this to say:

[A] cursory reading of Tapiador reveals that the main point of the case was
the failure of the complainant therein to present substantial evidence to prove the
charges of the administrative case. The statement that made reference to the power
of the Ombudsman is, at best, merely an obiter dictum and, as it is unsupported by
sufficient explanation, is susceptible to varying interpretations, as what precisely is
before us in this case. Hence, it cannot be cited as a doctrinal declaration of
this Court nor is it safe from judicial examination.

[T]he Constitution does not restrict the powers of the Ombudsman in Section 13, Article XI of
the 1987 Constitution, but allows the Legislature to enact a law that would spell out the
powers of the Ombudsman. Through the enactment of Rep. Act No. 6770, specifically
lawmakers gave the Ombudsman such powers to
Section 15, par. 3, the
sanction erring officials and employees, except members of
Congress, and the Judiciary.

The powers of the Ombudsman are not merely recommendatory. His office was given teeth
to render this constitutional body not merely functional but also effective. Thus, we hold that
under Republic Act No. 6770 and the 1987 Constitution, the Ombudsman has the
constitutional power to directly remove from government service an erring public
official other than a member of Congress and the Judiciary.

In G.R. Nos. 160410 and 161099, the CA affirmed the findings of facts by the Ombudsman,
relying only on the Tapiador obiter to reverse and set aside the Ombudsman's actions as
 180

being beyond the ambit of his authority. There is no question, therefore, that the
assailed decisions in those cases should be annulled and the Ombudsman's
decisions therein reinstated.
 181

Disciplinary Actions
The Courts

Dinah Barriga vs. Sandigan ( Sandiganbayan still has exclusive original jurisdiction
over the cases lodged against her. It must be stressed that a public officer who is not
in charge of public funds or property by virtue of her official position, or even a
private individual, may be liable for malversation or illegal use of public funds or
property if such public officer or private individual conspires with an accountable
public officer to commit malversation or illegal use of public funds or property )
G.R. Nos. 161784-86. April 26, 2005
CALLEJO, SR., J.: 2nd Div.

Facts:
Office of the Ombudsman filed a motion with the Sandiganbayan for the admission of the
three Amended Informations appended thereto. charged petitioner Dinah C. Barriga et al
the Municipal Accountant and the Municipal Mayor, respectively, of Carmen, Cebu, with
malversation of funds and illegal use of public funds.

Sandigan granted the motion and admitted amended information. The petitioner filed a
Motion to Quash said Amended Informations Sandiganbayan has no jurisdiction over
the said crimes. Moreover, her position as municipal accountant is classified as
Salary Grade (SG) 24.

Sandigan denied Motion to Quash. Office of the Special Prosecutor illegal use of public
funds are classified as crimes committed by public officers in relation to their office, which by
their nature fall within the jurisdiction of the Sandiganbayan.

Issue: Whether Sandigan has jurisdiction of the case even petitioners fall under Salary
Grade 24?

Held: YES!

We agree with the ruling of the Sandiganbayan that based on the allegations of the
Amended Informations and Rep. Act No. 8249, it has original jurisdiction over the crimes of
malversation and illegal use of public funds charged in the Amended Informations subject of
this petition.

Rep. Act No. 8249,[13] which amended Section 4 of Presidential Decree No. 1606, provides,
inter alia, that the Sandiganbayan has original jurisdiction over crimes and felonies
committed by public officers and employees, at least one of whom belongs to any of the five
categories thereunder enumerated at the time of the commission of @such crimes.
 182

There are two classes of public office-related crimes under subparagraph (b) of Section 4 of
Rep. Act No. 8249:

1. Those crimes or felonies in which the public office is a constituent element as

defined by statute and the relation between the crime and the offense is such that, in
a legal sense, the offense committed cannot exist without the office;

2. Such offenses or felonies which are intimately connected with the public office and
are perpetrated by the public officer or employee while in the performance of his
official functions, through improper or irregular conduct.

The Sandiganbayan has original jurisdiction over criminal cases involving crimes and
felonies under the first classification. Considering that the public office of the accused is by
statute a constituent element of the crime charged, there is

● no need for the Prosecutor to state in the Information specific factual allegations of
the intimacy between the office and the crime charged, or that the accused
committed the crime in the performance of his duties.

However, the Sandiganbayan likewise has original jurisdiction over criminal cases involving
crimes or felonies committed by the public officers and employees enumerated in Section (a)
(1) to (5) under the second classification if the Information contains specific factual
allegations showing the intimate connection between the offense charged and the public
office of the accused, and the discharge of his official duties or functions - whether improper
or irregular.

The requirement is not complied with if the Information merely alleges that the accused
committed the crime charged in relation to his office because such allegation is merely a
conclusion of law.

Two of the felonies that belong to the first classification are malversation defined and
penalized by Article 217 of RPC and the illegal use of public funds or property defined and
public office of the
penalized by Article 220 of the same Code. The

accused is a constituent element in both felonies.

We agree with the ruling of the Sandiganbayan that the public office of the accused
Municipal Mayor Virginio E. Villamor is a constituent element of malversation and illegal use
of public funds or property. Accused mayors position is classified as SG 27.
 183

Since the Amended Informations alleged that the petitioner conspired with her co-accused,
the municipal mayor, in committing the said felonies, the fact that her position as municipal

accountant is classified as SG 24 and as such is not an accountable officer is of

no moment;
Sandiganbayan still has exclusive original jurisdiction over the cases lodged against
her. It must be stressed that a public officer who is not in charge of public funds or property
by virtue of her official position, or even a private individual, may be liable for malversation or
if such public officer or private
illegal use of public funds or property
individual conspires with an accountable public officer to commit
malversation or illegal use of public funds or property.
 184

Disciplinary Actions
Removal

the power to remove erring

Ramir Pablico vs. Alejandro Villapando (

elective local officials from service is lodged

exclusively with the courts; Hence Article 124 (b), Rule XIX, of the
Rules and Regulations Implementing the Local Government Code, insofar as it vests
power on the disciplining authority to remove from office erring elective local
is void for being repugnant to the last paragraph of Section
officials,
60 of the Local Government Code of 1991.
G.R. No. 147870. July 31, 2002
YNARES-SANTIAGO, J. En Banc

Facts:
Solomon B. Maagad, and Renato M. Fernandez, both members of the Sangguniang Bayan
of San Vicente, Palawan, filed with the Sangguniang Panlalawigan of
Palawan an administrative complaint against respondent Alejandro A. Villapando, then
Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of
the Constitution.

Complainants alleged that respondent, on behalf of the municipality, entered into a

consultancy agreement with Orlando M. Tiape, a defeated mayoralty candidate in the May
1998 elections. They argue that the consultancy agreement amounted to an appointment
to a government position within the prohibited one-year period under Article IX-B,
Section 6, of the 1987 Constitution.

Sangguniang Panlalawigan of Palawan found respondent

guilty of the administrative charge and imposed on him the penalty of dismissal
from service. Respondent appealed to the Office of the President which affirmed the
decision of the Sangguniang Panlalawigan of Palawan.

CA declared void the assailed decisions of the Office of the President and the
Sangguniang Panlalawigan of Palawan, MR denied. and ordered petitioner to vacate
the Office of Mayor of San Vicente, Palawan. MR denied. Hence the case at bar.

Issue: Whether local legislative bodies and/or the Office of the President, on appeal, validly
impose the penalty of dismissal from service on erring elective local officials?
 185

Held: NO

The pertinent portion of Section 60 of the Local Government Code of 1991 provides:

Section 60. Grounds for Disciplinary Actions.

An elective local official may be disciplined, suspended, or removed from

office on any of the following grounds:

An elective local official may be removed from office on the grounds

enumerated above by order of the proper court.

clear from the last paragraph of the aforecited

It is

provision that the penalty of dismissal from service upon an erring

elective local official may be decreed only by a court of law.

Thus, in Salalima, et al. v. Guingona, et al. we held that [t]he Office of the President is
without any power to remove elected officials, since such power is exclusively vested
in the proper courts as expressly provided for in the last paragraph of the aforequoted
Section .

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government
Code, however, adds that

● (b) An elective local official may be removed from office on the grounds enumerated
in paragraph (a) of this Article

[The grounds enumerated in Section 60, Local Government Code of 1991] by order
of the proper court or the disciplining authority whichever first acquires jurisdiction to
the exclusion of the other. The disciplining authority referred to pertains to the
Sangguniang Panlalawigan/Panlungsod/Bayan and the Office of the President.

As held in Salalima,[13] this grant to the disciplining authority of the power to remove
elective local officials is clearly beyond the authority of the Oversight Committee that
No rule or regulation may alter, amend,
prepared the Rules and Regulations.
or contravene a provision of law, such as the Local Government Code.

Implementing rules should conform, not clash, with the law that
they implement, for a regulation which operates to create a rule out
of harmony with the statute is a nullity.
 186

Even Senator Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code
of 1991, expressed doubt as to the validity of Article 124 (b), Rule XIX of the implementing
rules. Verily, the clear legislative intent to make the subject power of removal a judicial
prerogative is patent from the deliberations in the Senate

the power to remove erring

It is beyond cavil, therefore, that

elective local officials from service is lodged

exclusively with the courts.
Hence Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local
Government Code, insofar as it vests power on the disciplining authority to remove from
is void for being repugnant to the last
office erring elective local officials,
paragraph of Section 60 of the Local Government Code of 1991.

The law on suspension or removal of elective public officials must be strictly construed and
applied, and the authority in whom such power of suspension or removal is vested must
exercise it with utmost good faith, for what is involved is not just an ordinary public official but
one chosen by the people through the exercise of their constitutional right of suffrage.

Their will must not be put to naught by the caprice or partisanship of the disciplining
authority. Where the disciplining authority is given only the power to suspend and not the
power to remove, it should not be permitted to manipulate the law by usurping the power to
remove.
 187

Recall Secs 69-75

Felipe Evardone vs. COMELEC et al

G.R. No. 94010 December 2, 1991
PADILLA, J. En Banc

Facts:
Felipe Evardone is the mayor of the Municipality of Sulat, Eastern Samar, having been
elected to the position during the 1988 local elections. He assumed office immediately after
proclamation.

On 14 February 1990, Alexander R. Apelado, et al filed a petition for the recall of Evardone
with the Office of the Local Election Registrar, Municipality of Sulat. respondent COMELEC
issued Reso. 57 signing of the petition for recall against incumbent Mayor Evardone of the
said Municipality.

Evardone filed before this Court a petition for prohibition with urgent prayer for
immediate issuance of restraining order and/or writ of preliminary injunction, it was
only on 15 July 1990 that the field agent of the respondent COMELEC received the
telegraphic notice of the TRO ( pursuant to respondent COMELEC's Reso. 72 )—a day
after the completion of the signing process sought to be temporarily stopped by the
TRO.

respondent COMELEC nullified the signing process held in Sulat, Eastern Samar for being
violative of the order (the TRO) of this Court. COMELEC denied MR.

Issue: Whether TRO issued by COMELEC pursuant to respondent COMELEC's Reso.

72, Valid?

Held: YES!

Article XVIII, Section 3 of the 1987 Constitution express provides that all existing laws
not inconsistent with the 1987 Constitution shall remain operative, until amended,
repealed or revoked

Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of local
elective officials. Section 59 expressly authorizes the respondent COMELEC to conduct and
supervise the process of and election on recall and in the exercise of such powers,
promulgate the necessary rules and regulations.

The Election Code contains no special provisions on the manner of conducting elections for
the recall of a local official. Any such election shall be conducted in the manner and under
the rules on special elections, unless otherwise provided by law or rule of the COMELEC. 5
Thus, pursuant to the rule-making power vested in respondent COMELEC, it promulgated
Resolution No. 2272 on 23 May 1990.
 188

We therefore rule that Resolution No. 2272 promulgated by respondent COMELEC is valid
and constitutional. Consequently, the respondent COMELEC had the authority to approve
the petition for recall and set the date for the signing of said petition.

2nd Issue: Whether the TRO issued by this Court rendered nugatory the signing process of
the petition for recall held pursuant to Resolution No. 2272?

Held: NO!

Indeed, this Court issued a TRO on 12 July 1990 but the signing of the petition for recall took
place just the same on the scheduled date through no fault of the respondent COMELEC
and Apelado, et al. The signing process was undertaken by the constituents of the
Municipality of Sulat and its Election Registrar in good faith and without knowledge of the
TRO earlier issued by this Court. As attested by Election Registrar Sumbilla, about 2,050 of
the 6,090 registered voters of Sulat, Eastern Samar or about 34% signed the petition for
recall.

As held in Parades vs. Executive Secretary there is no turning back the

clock.

Loss of confidence is the formal withdrawal by an electorate of their trust in a person's ability
to discharge his office previously bestowed on him by the same electorate. 10 The
constituents have made a judgment and their will to recall the incumbent mayor (Evardone)
has already been ascertained and must be afforded the highest respect. Thus, the signing
process held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P.
Evardone of said municipality is valid and has legal effect.
 189

Alroben Goh vs. Lucilo Bayron & COMELEC ( 1987 Constitution expressly provides the
COMELEC with the power to "[e]nforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum, and recall; The
1987 Constitution not only guaranteed the COMELEC's fiscal autonomy, but also
granted its head, as authorized by law, to augment items in its appropriations from its
savings. The 2014 GAA provides such authorization to the COMELEC Chairman )
G.R. No. 212584 November 25, 2014
CARPIO, J. En Banc

Facts:
On 17 March 2014, Goh filed before the COMELEC a recall petition against Mayor Bayron
due to loss of trust and confidence brought about by "gross violation of pertinent
provisions of the Anti-Graft and Corrupt Practices Act etc.

COMELEC promulgated Reso. 64. found the recall petition sufficient in form and substance,
but suspended the funding of any and all recall elections until the resolution of the
funding issue. 28 April 2014, Mayor Bayron filed with the COMELEC an Omnibus Motion
for Reconsideration and for Clarification which prayed for the dismissal of the recall petition
for lack of merit.

Goh filed a Comment/Opposition COMELEC promulgated Resolution 82 as follows:

The power of recall for loss of confidence is exercised by the registered voters of a
local government unit to which the local elective official subject to such recall belongs. The
exercise of this power is subject to the following limitations provided for by law:

(a) any elective local official may be the subject of a recall election only once
during his term of office for loss of confidence; and

(b) [n]o recall shall take place within one (1) year from the date of the
official's assumption to office or one (1) year immediately preceding a regular election

Because of the cost implications involved, the achievability of pursuing a recall

proceeding to its conclusion will depend on the availability of funds at the disposal of
COMELEC

The conduct of recall is one of several constitutional mandates of the Commission.

Unfortunately, it cannot now proceed with the conduct of recall elections as it does not have
an appropriation or legal authority to commit public funds for the purpose.
 190

All expenses incident to Recall elections shall be for the account of the Commission.

It is important to note that the Local Government Code (LGC) specifically provides for the
expenses in the conduct of recall elections, to wit:

" SECTION 75. Expenses Incident to Recall Elections. -

All expenses incident to recall elections shall be borne by the COMELEC. for this
purpose, there shall be included in the annual General Appropriations Act a
contingency fund at the disposal of the COMELEC for the conduct ofrecall election."

Hence, the Commission is mandated to shoulder ALL expenses relative to the conduct
of recall elections. Expenses in recall elections, unlike the other exercises mandated by the
(C]onstitution to be administered by the Commission, is specifically treated in a special
law -the LGC.

Issue: Whether COMELEC committed grave abuse of suspending the funding of any and all
recall elections until the resolution of the funding issue?

Held: YES!

We grant the petition. We hold that the COMELEC committed grave abuse of discretion
in issuing Resolution Nos. 9864 and 9882. The 2014 GAA provides the line item
appropriation to allow the COMELEC to perform its constitutional mandate of
no need for supplemental legislation to
conducting recall elections. There is
authorize the COMELEC to conduct recall elections for 2014.

COMELEC's Fiscal Autonomy

1987 Constitution expressly provides the COMELEC with the power to "[e]nforce and
administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum, and recall."

The 1987 Constitution not only guaranteed the COMELEC's fiscal autonomy, but also
granted its head, as authorized by law, to augment
items in its appropriations from its savings. The 2014 GAA
provides such authorization to the COMELEC Chairman.

Goh further states that COMELEC's personnel themselves admitted to the existence of a
contingency fund for the lawful conduct of recall elections.
 191

WHEREFORE, the petition is GRANTED.

We PARTIALLY REVERSE and SET ASIDE Resolution No. 9864 insofar as it directed the
suspension of any and all proceedings in the recall petition. We REVERSE and SET ASIDE
Resolution No. 9882, and DIRECT the Commission on Elections to immediately carry out the
recall elections of Mayor Lucilo R. Bayron of Puerto Princesa City, Palawan in accordance
with the provisions of the Local Government Code and COMELEC Resolution No. 7505.

This Decision is immediately executory.

 192

Huma Resources Board Secs. 76-97

Sanggu, Bayan of San Andres Catanduanes vs. CA & Antonio

( The position shall be deemed vacated only upon acceptance of the resignation; It is
not disputed that private respondents resignation letter was addressed only to the
municipal mayor of San Andres, Catanduanes )
G.R. No. 118883. January 16, 1998
PANGANIBAN, J. 3rd Div.

Facts:
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay,
San Andres, Catanduanes in March 1989. He was later elected president of the Association
of Barangay Councils (ABC) for the Municipality of San Andres, Catanduane. In that capacity
and pursuant to the Local Government Code of 1983, he was appointed by the President as
member of the Sangguniang Bayan of the Municipality of San Andres.

Meanwhile, then Sec. Santos DILG declared the election for the president of the Federation
of the Association of Barangay Councils (FABC) of the same province, in which private
respondent was a voting member, void for want of a quorum.

Hence, a reorganization of the provincial council became necessary. Conformably, the DILG
secretary designated private respondent as a temporary member of the Sangguniang
Panlalawigan of the Province of Catanduanes, effective June 15, 1990.

In view of his designation, private respondent resigned as a member of the

Sangguniang Bayan. He tendered his resignation dated June 14, 1990 to Mayor
Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the
provincial governor, the DILG and the municipal treasurer.

Pursuant to Section 50 of the 1983 Local Government Code[7] (B.P. Blg. 337), Nenito F.
Aquino, then vice-president of the ABC, was subsequently appointed by the provincial
governor as member of the Sangguniang Bayan in place of private respondent. Aquino
assumed office on July 18, 1990 after taking his oath.

Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC
president was reversed by the Supreme Court in Taule vs. Santos. In the same case, the
appointment of Private Respondent Antonio as sectoral representative to the
Sangguniang Panlalawigan was declared void, because he did not possess the basic
qualification that he should be president of the federation of barangay councils. This ruling of
the Court became final and executory on December 9, 1991.

private respondent sought from the DILG a definite ruling relative to his right to resume his
office as member of the Sangguniang Bayan.
 193

In view of the foregoing, considering that the annuled designation is only an

additional duty to your primary function, which is the ABC President, we find no legal
obstacle if you re-assume your representation in the sanggunian bayan as ex-officio
member.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to
re-assume office as sectoral representative.

private respondent filed a petition for certiorari and mandamus with preliminary mandatory
injunction and/or restraining order before the RTC. trial court rendered its decision holding
that Augusto T. Antonios resignation from the Sangguniang Bayan was ineffective and
inoperative, no acceptance thereof by the proper authorities.

CA affirmed the trial courts ruling It held that private respondents resignation was not
accepted by the proper authority, who is the President of the Philippines.

In sum, was there a complete and effective resignation? If not, was there an abandonment of
office?

Issue: Whether respondents resignation as ex-officio member of Petitioner Sangguniang

Bayan ng San Andres, Catanduanes is deemed complete so as to terminate his official
relation thereto?

Held: YES! But through voluntary abandonment but not valid resignation

First Issue: Validity of Resignation

In Ortiz vs. COMELEC, we defined resignation as

the act of giving up or the act of an officer by which he declines his

office and renounces the further right to use it.

It is an expression of the incumbent in some form, express or implied, of the

intention to surrender, renounce, and relinquish the office and the acceptance by
competent and lawful authority.

To constitute a complete and operative resignation from public office, there must
be:

(a) an intention to relinquish a part of the term;

(b) an act of relinquishment; and

(c) an acceptance by the proper authority.

The last one is required by reason of Article 238 of the Revised Penal Code.
 194

The records are bereft of any evidence that private respondents

resignation was accepted by the proper authority.

From the time that he was elected as punong barangay up to the time he resigned as a
member of Sangguniang Bayan, the governing law was B.P. 337 or the Local
Government Code of 1983.

While said law was silent as to who specifically should accept the resignation of an
appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules
states that the [r]esignation of sanggunian members shall be acted upon by the
sanggunian concerned, and a copy of the action taken shall be furnished the official
responsible for appointing a replacement and the Ministry of Local Government.

The position shall be deemed vacated only upon

acceptance of the resignation.
It is not disputed that private respondents resignation letter was addressed only to the
municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies were
furnished the provincial governor, the municipal treasurer and the DILG. Neither the mayor
nor the officers who had been furnished copies of said letter expressly acted on it.

On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and
applicable, the mayor should have referred or endorsed the latter to the Sangguniang Bayan
for proper action. In any event, there is no evidence that the resignation was accepted by
any government functionary or office.

Under established jurisprudence, resignations, in the absence of statutory provisions as to

whom they should be submitted, should be tendered to the appointing person or body.

Private respondent, therefore, should have submitted his letter of resignation to the
President or to his alter ego, the DILG secretary. Although he supposedly furnished the latter
a copy of his letter, there is no showing that it was duly received, much less, that it was acted
upon. The third requisite being absent, there was therefore no valid and complete
resignation.

Second Issue: Abandonment of Office

While we agree with Respondent Court that the resignation was not valid absent any
acceptance thereof by the proper authority, we nonetheless hold that Private Respondent
Antonio has effectively relinquished his membership in the Sangguniang Bayan due to his
voluntary abandonment of said post.
 195

Abandonment of an office has been defined as the voluntary relinquishment of an office by

the holder, with the intention of terminating his possession and control thereof.[32] Indeed,
abandonment of office is a species of resignation; while resignation in general is a formal
relinquishment, abandonment is a voluntary relinquishment through nonuser.[33] Nonuser
refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to
exercise an easement or an office
 196

Ismael Mathay Jr. vs. CA & CSC et al ( power to appoint is vested in the local chief
Civil Service Commissions power is limited
executive;

to approving or disapproving an appointment )

G.R. No. 124374. December 15, 1999
YNARES-SANTIAGO, J. En Banc

Facts:
During his term as Mayor of Quezon City, Mr. Brigido R. Simon appointed private
respondents to positions in the Civil Service Unit (CSU) of the local government of Quezon
City. Civil Service Units were created pursuant to Presidential Decree No. 51 which was
allegedly signed into law on November 15 or 16, 1972.

On February 23, 1990, the Secretary of Justice rendered Opinion No. 33, stating that
Presidential Decree No. 51 was never published in the Official Gazette. Therefore,
conformably with our ruling in Tanada vs. Tuvera the presidential decree is deemed never
in force or effect and therefore cannot at present, be a basis for establishment of the CSUs.

June 4, 1990, the Civil Service Commission issued Memorandum Circular No. 30, directing
all Civil Service Regional or Field Offices to recall, revoke and disapprove within one year
from issuance of the said Memorandum, all appointments in CSUs created pursuant to
Presidential Decree No. 51 on the ground that the same never became law. Among those
affected by the revocation of appointments are private respondents in these three
petitions.

Mayor Brigido R. Simon remedied the situation by offering private respondents contractual
appointments for the period of June 5, 1991 to December 31, 1991. The appointments were
renewed by Mayor Simon for the period of January 1, 1992 to June 30, 1992.

On May 11, 1992, petitioner Ismael A. Mathay, Jr. was elected Mayor of Quezon City. On
July 1, 1992, Mayor Mathay again renewed the contractual appointments of all private
respondents effective July 1 to July 31, 1992. Upon their expiry, these appointments,
however, were no longer renewed.

The non-renewal by Quezon City Mayor Ismael A. Mathay, Jr. of private respondents
appointments became the seed of discontent from which these three consolidated petitions
grew.

After the non-renewal of their appointments, private respondents in these two petitions
appealed to the Civil Service Commission. The CSC issued separate resolutions holding that
the reappointment of private respondents to the DPOS was automatic, pursuant to the
provision on absorption in Quezon City Ordinance No. NC-140, Series of 1990,[5] and
ordering their reinstatement to their former positions in the DPOS
 197

In the instant petition for review, petitioner asserts that the Court of Appeals erred when it
ruled that respondent Civil Service Commission has the authority to direct him to reinstate
private respondents in the DPOS.

Isse: Whether CSC has the authority to direct him to DPOS?

Held: NO!

The law applicable is B.P. 337 or the old Local Government Code and not the Local
Government Code of 1992 which became effective only on January 1, 1992, when the
material events in this case transpired.

Applying the said law, we find that the Civil Service Commission erred when it applied
the directives of Ordinance NC-140 and in so doing ordered petitioner to reinstate private
respondents to positions in the DPOS. Section 3 of the said Ordinance is invalid for being
inconsistent with B.P. 337.

The provisions of B.P. 337 are clear. As stated above, the

● power to appoint is vested in the local chief executive.

The power of the city council or sanggunian, on the other hand, is limited to creating,
consolidating and reorganizing city officers and positions supported by local funds.

By ordering petitioner to reinstate private respondents pursuant to Section 3 of the

Ordinance, the Civil Service Commission substituted its own judgment for that of the
appointing power. This cannot be done. In a long line of cases, we have consistently ruled
Civil Service Commissions power is limited to
that the

approving or disapproving an appointment.

Once the Civil Service Commission attests whether the person chosen to fill a vacant
position is eligible, its role in the appointment process necessarily ends. The Civil Service
Commission cannot encroach upon the discretion vested in the appointing authority.
 198

Roberto Flores et al vs. Franklin Drilon & Gordon ( As incumbent elective official,
respondent Gordon is ineligible for appointment to the position of Chairman of the
Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however
remains Mayor of Olongapo City Art IX Sec. 7b )
G.R. No. 104732 June 22, 1993
BELLOSILLO, J. En Banc

Facts:
The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known BCDA under which
respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief
Executive Officer of the SBMA is challenged in this original petition with prayer for
prohibition, preliminary injunction and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and other operational expenses
attached to the office.

Paragraph (d) reads —

(d) Chairman administrator —

The President shall appoint a professional manager as administrator of the

Subic Authority with a compensation to be determined by the Board subject to the
approval of the Secretary of Budget, who shall be the ex oficio chairman of the
Board and who shall serve as the chief executive officer of the Subic Authority:

Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as
the chairman and chief executive officer of the Subic Authority

Petitioners, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics
infringes on the following constitutional and statutory provisions:

A. Sec. 7, first par., Art. IX-B, of the Constitution, "[n]o elective official shall be
eligible for appointment or designation in any capacity to any public officer or position
during his tenure, because the City Mayor of Olongapo City is an elective official and
the subject posts are public offices;

B. Sec. 16, Art. VII, of the Constitution, which provides that "[t]he President
shall appoint all other officers of the Government whose appointments are not
otherwise provided for by law, and those whom he may be authorized by law to
appoint", since it was Congress through the questioned proviso and not the President
who appointed the Mayor to the subject posts

C. Sec. 261. Prohibited Acts. — The following shall be guilty of an election

offense: . . . (g) Appointment of new employees, creation of new position, promotion,
or giving salary increases. — During the period of forty-five days before a regular
 199

election and thirty days before a special election, or the reason that the
appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period
prior to the 11 May 1992 Elections

Issue: whether the proviso in Sec. 13, par. (d), of R.A. 7227 violates the
constitutional proscription against appointment or designation of elective officials to
other government posts?

Held: YES!!!

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any

capacity to any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position,

no appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one
person, so that a public officer or employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation that a public office is a full-time
job.

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a
situation where a local elective official will work for his appointment in an executive position
in government, and thus neglect his constituents

In the case before us, the subject proviso directs the President to appoint an elective
official, i.e., the Mayor of Olongapo City, to other government posts (as Chairman of the
Board and Chief Executive Officer of SBMA).

it needs
Since this is precisely what the constitutional proscription seeks to prevent,

no stretching of the imagination to conclude that the

proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an elective official may be
most beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a
local elective official to another post if so allowed by law or by the primary functions of his
office.8 But, the contention is fallacious.
 200

Section 94 of the LGC is not determinative of the constitutionality of Sec. 13, par. (d), of R.A.
7227, for no legislative act can prevail over the fundamental law of the
land.

Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that
section sought to be declared unconstitutional, we need not rule on its validity. Neither
can we invoke a practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by
law or by the primary functions of his office, ignores the clear-cut difference in the wording of
the two (2) paragraphs of Sec. 7, Art. IX-B, of the Constitution.

While the second paragraph authorizes holding of multiple offices by an appointive

official when allowed by law or by the primary functions of his position,

the first paragraph appears to be more stringent by not providing any exception to the
rule against appointment or designation of an elective official to the government post,
except as are particularly recognized in the Constitution itself, e.g.,

● the President as head of the economic and planning agency;

● the Vice-President, who may be appointed Member of the Cabinet; and,

● a member of Congress who may be designated ex officio member of the

Judicial and Bar Council.

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not
accidental when drawn, and not without reason. It was purposely sought by the drafters of
the Constitution as shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr.

Presiding Officer, is that the prohibition is more strict with respect to
elective officials, because in the case of appointive officials, there may be a
law that will allow them to hold other positions.

The distinction being clear, the exemption allowed to appointive officials in the second
paragraph cannot be extended to elective officials who are governed by the first paragraph.
 201

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of
Olongapo City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive
Secretary,

where we stated that the prohibition against the holding of any other office or employment by
the President, Vice-President, Members of the Cabinet, and their deputies or assistants
during their tenure, as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend
additional duties and functions required by the primary functions of the officials concerned,
who are to perform them in an ex officio capacity as provided by law, without receiving any
additional compensation therefor.

This argument is apparently based on a wrong

premise.
Congress did not contemplate making the subject SBMA posts as ex officio or
automatically attached to the Office of the Mayor of Olongapo City without need of
appointment.

The phrase "shall be appointed" unquestionably shows the intent to make the SBMA posts
appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it been the
legislative intent to make the subject positions ex officio, Congress would have, at least,
avoided the word "appointed" and, instead, "ex officio" would have been used.

As incumbent elective official, respondent Gordon is ineligible for appointment to the position
of Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto
pursuant to a legislative act that contravenes the Constitution cannot be sustained. He
however remains Mayor of Olongapo City,

and his acts as SBMA official are not necessarily null and void; he may be considered a de
facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of
policy and justice, will hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised
 202

Practice of Profession Secs 31 & 90

Wilfred Catu vs. Vicente Rellosa ( Punong Brgy may practice his profession; But Must
get prior authority from CSC; should have therefore obtained the prior written
permission of the Secretary of Interior and Local Government )
A.C. No. 5738 February 19, 2008
CORONA, J. 1st Div.

Facts:
Complainant Wilfredo M. Catu is a co-owner of a lot and the building erected thereon at
Malate Manila. His mother and brother, Regina Catu and Antonio Catu, contested the
possession of Elizabeth C. Diaz-Catu[2] and Antonio Pastor[3] of one of the units in the
building. The latter ignored demands for them to vacate the premises.

Thus, a complaint was initiated against them in the Lupong Tagapamayapa.

Respondent, as punong barangay of Barangay 723, summoned the parties to
conciliation meetings. When the parties failed to arrive at an amicable settlement,
respondent issued a certification for the filing of the appropriate action in court.

Thereafter, Regina and Antonio filed a complaint for ejectment against Elizabeth and Pastor
in the Metropolitan Trial Court of Manila, Branch. Respondent entered his appearance as
counsel for the defendants in that case.

Because of this, complainant filed the instant administrative complaint,[6] claiming that
respondent committed an act of impropriety as a lawyer and as a public officer when he
stood as counsel for the defendants despite the fact that he presided over the conciliation
proceedings between the litigants as punong barangay.

complaint was referred to IBP. After evaluating the contentions of the parties, the IBP-CBD
found sufficient ground to discipline respondent.

Subsequently, however, he represented Elizabeth and Pastor in the ejectment case filed
against them by Regina and Antonio. In the course thereof, he prepared and signed
pleadings including the answer with counterclaim, pre-trial brief, position paper and notice of
appeal. By so doing, respondent violated Rule 6.03 of the Code of Professional
Responsibility

Rule 6.03 A lawyer shall not, after leaving government service, accept
engagement or employment in connection with any matter in which he intervened
while in said service.
 203

Issue: Whether Respondent is prohibited to appear as counsel for the defendants in that
case?

Held: NO! BUT FAILED TO GET AN AUTHORITY TO PRACTICE FROM DILG HENCE not
allowed

SECTION 90 OF RA 7160, NOT SECTION 7(B)(2) OF RA 6713, GOVERNS THE

PRACTICE OF PROFESSION OF ELECTIVE LOCAL GOVERNMENT OFFICIALS

For elective local government officials, Section 90 of RA 7160[12] governs:

SEC. 90. Practice of Profession. (a) All governors, city and municipal mayors
are prohibited from practicing their profession or engaging in any occupation other
than the exercise of their functions as local chief executives.

(b) Sanggunian members may practice their professions, engage in any

occupation, or teach in schools except during session hours: Provided, That
sanggunian members who are members of the Bar shall not:

(1) Appear as counsel before any court in any civil case wherein a local
government unit or any office, agency, or instrumentality of the government is the
adverse party;

This is a special provision that applies specifically to the practice of profession by elective
local officials. As a special law with a definite scope (that is, the practice of profession by
elective local officials), it constitutes an exception to Section 7(b)(2) of RA 6713, the general
law on engaging in the private practice of profession by public officials and employees.

Under RA elective local officials

7160, of provinces, cities,
municipalities and barangays are the following:

● the governor,
● the vice governor and
● members of the sangguniang panlalawigan for provinces;

● the city mayor,

● the city vice mayor and
● the members of the sangguniang panlungsod for cities;

● the municipal mayor,

● the municipal vice mayor and
● the members of the sangguniang bayan for municipalities and

● the punong barangay,

● the members of the sangguniang barangay and
 204

● the members of the sangguniang kabataan for barangays.

Of these elective local officials,

● governors,
● city mayors and
● municipal mayors

are prohibited from practicing their profession or engaging in any

occupation other than the exercise of their functions as local chief executives.

This is because they are required to render full time service. They should
therefore devote all their time and attention to the performance of their official duties.

On the other hand,

● members of the sangguniang panlalawigan,

● sangguniang panlungsod or
● sangguniang bayan

may practice their professions, engage in any

occupation, or teach in schools except during session
hours.

In other words, they may practice their professions, engage in any occupation, or teach
in schools outside their session hours. Unlike governors, city mayors and municipal
mayors, members of the sangguniang panlalawigan, sangguniang panlungsod or
sangguniang bayan are required to hold regular sessions only at least once a week.

Since the law itself grants them the authority to practice their professions, engage in
any occupation or teach in schools outside session hours, there is no longer any
need for them to secure prior permission or authorization from any other person or
office for any of these purposes.
 205

While, as already discussed, certain local elective officials (like governors, mayors,
provincial board members and councilors) are expressly subjected to a total or partial
proscription to practice their profession or engage in any occupation,

no such interdiction is made on the punong barangay and the members of the
sangguniang barangay. Expressio unius est exclusio alterius.

Since they are excluded from any prohibition, the presumption is that they are allowed to
practice their profession. And this stands to reason because they are not mandated to serve
full time. In fact, the sangguniang barangay is supposed to hold regular sessions only twice
a month.

Accordingly, as punong barangay, respondent was not forbidden to practice his

profession. However, he should have procured prior permission or authorization from the
head of his Department, as required by civil service regulations.

A LAWYER IN GOVERNMENT SERVICE WHO IS NOT PROHIBITED

TO PRACTICE LAW MUST SECURE PRIOR AUTHORITY FROM THE
HEAD OF HIS DEPARTMENT

A civil service officer or employee whose responsibilities do not require his time to be fully at
the disposal of the government can engage in the private practice of law only with the written
permission of the head of the department concerned.

As punong barangay, respondent should have therefore obtained the prior written
permission of the Secretary of Interior and Local Government before he entered
his appearance as counsel for Elizabeth and Pastor. This he failed to do. before he entered
his appearance as counsel for Elizabeth and Pastor. This he failed to do.

The failure of respondent to comply with Section 12, Rule XVIII of the Revised Civil Service
Rules constitutes a violation of his oath as a lawyer: to obey the laws. Lawyers are servants
of the law, vires legis, men of the law. Their paramount duty to society is to obey the law and
promote respect for it.

In acting as counsel for a party without first securing the required written permission,
respondent not only engaged in the unauthorized practice of law but also violated civil
service rules which is a breach of Rule 1.01 of the Code of Professional Responsibility:
 206

Edwin Javellana vs. DILG ( Hence, judgment against City Engineer Divinagracia would
actually be a judgment against the City Government. By serving as counsel for the
complaining employees and assisting them to prosecute their claims against City
Engineer Divinagracia, the petitioner violated Memorandum Circular No. 74-58
prohibiting a government official from engaging in the private practice of his
profession, if such practice would represent interests adverse to the government )
G.R. No. 102549 August 10, 1992
GRIÑO-AQUINO, J. En Banc

Facts:
Attorney Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental.
On October 5, 1989, City Engineer Ernesto C. Divinagracia filed Administrative Case No.
C-10-90 against Javellana for:

1. violation of the "Code of Conduct and Ethical Standards for Public Officials and
Employees," and for
2. oppression, misconduct and abuse of authority.

Divinagracia's complaint alleged that Javellana, an incumbent member of the City Council or
Sanggunian Panglungsod of Bago City, and a lawyer by profession, has continuously
engaged in the practice of law without securing authority for that purpose from the
Regional Director, Department of Local Government, as required by DLG Memorandum
Circular No. 80-38 in relation to DLG Memorandum Circular No. 74-58 of the same
department.

that on July 8, 1989, Javellana, as counsel for Antonio Javiero and Rolando Catapang, filed
a case against City Engineer Ernesto C. Divinagracia of Bago City for "Illegal Dismissal and
Reinstatement with Damages" putting him in public ridicule; that Javellana also appeared as
counsel in several criminal and civil cases in the city, without prior authority of the DLG
Regional Director

Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to continue
his practice of law for the reasons stated in his letter-request. DILG interpose no objection
thereto, provided that such practice will not conflict or tend to conflict with his official
functions.

On March 25, 1991, Javellana filed a Motion to Dismiss the administrative case against
him on the ground mainly that DLG Memorandum Circulars Nos. 80-38 and 90-81 are
unconstitutional because the SC has the sole and exclusive authority to regulate the
practice of law. Javellana's motion to dismiss was denied by the public respondents. His
motion for reconsideration was likewise denied

Five months later or on October 10, 1991, the Local Government Code of 1991 (RA 7160)
was signed into law, Section 90

Issue: Whether Councilor Javellana is prohibited to appear as counsel for the complainant?
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Held: YES!

In the first place, complaints against public officers and employees relating or incidental to
the performance of their duties are necessarily impressed with public interest for by express
constitutional mandate, a public office is a public trust. The complaint for illegal dismissal
filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint
against the City Government of Bago City, their real employer, of which petitioner Javellana
is a councilman.

Hence, judgment against City Engineer Divinagracia would actually be a judgment against
the City Government. By serving as counsel for the complaining employees and assisting
them to prosecute their claims against City Engineer Divinagracia, the petitioner violated
Memorandum Circular No. 74-58

prohibiting a government official from

engaging in the private practice of his
profession, if such practice would represent
interests adverse to the government.
Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG
Memorandum Circular No. 90-81 violate Article VIII, Section 5 of the Constitution is
completely off tangent.

Neither the statute nor the circular trenches upon the Supreme Court's power and authority
to prescribe rules on the practice of law. The Local Government Code and DLG
Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to
avoid conflicts of interest between the discharge of their public duties and the private
practice of their profession, in those instances where the law allows it.

Section 90 of the Local Government Code does not discriminate against lawyers and
doctors. It applies to all provincial and municipal officials in the professions or engaged in
any occupation.

Section 90 explicitly provides that sanggunian members "may practice their professions,
engage in any occupation, or teach in schools expect during session hours." If there are
some prohibitions that apply particularly to lawyers, it is because of all the professions, the
practice of law is more likely than others to relate to, or affect, the area of public service.

WHEREFORE, the petition is DENIED for lack of merit. Costs against the petitioner.
 208

Republic vs. Richard Rambuyong ( Section 2 of the Administrative Code of 1987 is clear
and unambiguous. It categorically provides that the term "instrumentality" includes
government-owned or controlled corporations )
GR No. 167810, Oct 04, 2010
DEL CASTILLO, J.

Facts:
Alfredo Y. Chu (Chu) filed a case for collection of a sum of money and/or damages against
NPC which was raffled to RTC Zamboanga Sibugay Appearing as counsel for Chu is Atty.
Richard B. Rambuyong who was then the incumbent Vice-Mayor of Ipil, Zamboanga
Sibugay.

Thereafter, NPC filed a Motion for Inhibition[3] of Atty. Rambuyong arguing that under
Section 90 (b), (1) of Republic Act (RA) No. 7160, sanggunian members are prohibited "to
appear as counsel before any court wherein x x x any office, agency or instrumentality of the
government is the adverse party." NPC contended that being a government-owned or
controlled corporation, it is embraced within the term "instrumentality."

RTC ruled Sec. 90 of R.A. 7160 does not include government-owned or controlled
corporations as among the political units against which lawyer members of the Sanggunian
cannot appear as counsel of the adverse party. motion is DENIED due course, Atty. Richard
B. Rambuyong, who is the incumbent Vice-Mayor of the Municipality of Ipil, Zamboanga
Sibugay, is not disqualified to continue acting as counsel for the plaintiff in this case.

MR Denied. CA dismissed the petition for lack of merit.

Issue: Whether whether NPC is an instrumentality of government such that Atty.

Rambuyong, as a sanggunian member, should not appear as counsel against it?

Held: YES

Section 2 of the Administrative Code of 1987 is clear and unambiguous. It categorically

provides that the term "instrumentality" includes government-owned or controlled
corporations.

Given the categorical words of both the law and jurisprudence, to still go to extra-ordinary
lengths to interpret the intention of the lawmakers and come out with the construction that a
government-owned or controlled corporation like the NPC is not included within the term
"instrumentality of the government" is grave abuse of discretion.
 209

Finally, Section 446 of the Local Government Code provides that

"[t]he sanggnniang bayan, the legislative body of the municipality, shall be composed
of the municipal vice mayor as the presiding officer x x x." Thus, pursuant to Sec. 90 (b), (1)
Atty. Rambuyong, as sanggunian member,
of the Local Government Code,
cannot appear as counsel of a party adverse to the NPC, which is
an instrumentality of government.

WHEREFORE, the petition is GRANTED. The May 20, 2004 Decision and April 13,2005
Resolution of the Court of Appeals in CA-G.R. SP No. 72800 are REVERSED and SET
ASIDE. Atty. Richard B. Rambuyong is disqualified from appearing in Civil Case No. 1-197.
 210

Enrique Garcia vs. COMELEC et al ( We reject respondents' narrow and literal reading
of the above provision for it will collide with the Constitution and will subvert the
intent of the lawmakers in enacting the provisions of the Local Government Code of
1991 on initiative and referendum; The Constitution clearly includes not only
ordinances but resolutions as appropriate subjects of a local initiative. Section 32 of
Article VI provides in luminous language )
G.R. No. 111230 September 30, 1994
PUNO, J. En Banc

Facts:
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the Sangguniang Bayan ng Morong,
Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special
Economic Zone in accord with Republic Act No. 7227.

petitioners filed a petition 2 with the Sangguniang Bayan of Morong to annul Pambayang
Kapasyahan Blg. 10, Serye 1993. municipality of Morong did not take any action on the
petition within thirty (30) days after its submission.

Petitioners then resorted to their power of initiative under the Local Government Code of
1991. They started to solicit the required number of signatures to cause the repeal of said
resolution.

Unknown to the petitioners, however, the Honorable Edilberto M. de Leon, Vice Mayor and
Presiding Officer of the Sangguniang Bayan ng Morong, wrote a letter dated June 11, 1993
to the Executive Director of COMELEC requesting the denial of " . . . the petition for a local
initiative and/or referendum because the exercise will just promote divisiveness, counter
productive and futility."

COMELEC en banc resolved to deny the petition for local initiative on the ground that its
subject is "merely a resolution and not an ordinance." COMELEC resolutions are sought
to be set aside in the petition at bench.

Issue: Whether COMELEC erred in denyig petition for local initiative?

Held: YES!

In any event, the framers of our 1987 Constitution realized the value of initiative and
referendum as an ultimate weapon of the people to negate government malfeasance and
misfeasance and they put in place an overarching system. Thus, thru an initiative, the
people were given the power to amend the Constitution itself.

Sec. 2 of Art. XVII provides:

"Amendments to this Constitution may likewise be directly proposed by the

people through initiative upon a petition of at least 12% of the total number of
 211

registered voters, of which every legislative district must be represented by at least

three per centum of the registered voters therein."

Likewise, thru an initiative, the people were also endowed with the power to enact or reject
any act or law by congress or local legislative body.

In light of this legal backdrop, the essential issue to be resolved in the case at bench is
whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of Morong,
Bataan is the proper subject of an initiative?

Respondents take the negative stance as they contend that under the Local Government
Code of 1991 only an ordinance can be the subject of initiative. They rely on section 120,
Chapter 2, Title XI, Book I of the Local Government Code of 1991 which provides: "Local
Initiative Defined. — Local initiative is the legal process whereby the registered voters of a
local government unit may directly propose, enact, or amend any ordinance."

We reject respondents' narrow and literal reading of

the above provision for it will collide with the Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local Government Code of 1991 on initiative
and referendum.

The Constitution clearly includes not only ordinances but resolutions as appropriate subjects
of a local initiative. Section 32 of Article VI provides in luminous language:

"The Congress shall, as early as possible, provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people can directly propose and enact laws or
approve or reject any act or law or part thereof passed by the Congress, or local
legislative body . . ."

An act includes a resolution.

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Prohibited Interest

Edgar Teves vs. Sandigan ( his interest in the Valencia Cockpit is direct and is,
therefore, prohibited under Section 89(2) of the LGC of 1991 )
G.R. No. 154182. December 17, 2004
DAVIDE, JR., C.J. En Banc

Facts:
Edgar former Mayor of Valencia, Negros Oriental, and his wife Teresita Z. Teves seeks to
annul and set aside Decision of the Sandiganbayan convicting them of violation of Section
3(h) of the Anti-Graft Law for possessing direct pecuniary interest in the Valencia
Cockpit and Recreation Center in Valencia.

Upon their arraignment on 12 May 1997, the petitioners pleaded not guilty. Pre-trial and trial
were thereafter set. Sandiganbayan promulgated a decision[8] (1) convicting
petitioners Edgar and Teresita Teves of violation of Section 3(h) of the Anti-Graft Law;

The conviction was anchored on the finding that the petitioners possessed pecuniary
interest in the said business enterprise on the grounds that

(a) nothing on record appears that Mayor Teves divested himself of his
pecuniary interest in said cockpit;

(b) as of April 1992, Teresita Teves was of record the owner/licensee of the
cockpit; and

(c) since Mayor Teves and Teresita remained married to each other from 1983
until 1992, their property relations as husband and wife, in the absence of evidence
to the contrary, was that of the conjugal partnership of gains.

Hence, the cockpit is a conjugal property over which the petitioners have pecuniary interest.
This pecuniary interest is prohibited under Section 89(2) of R.A. 7160,, and
thus falls under the prohibited acts penalized in Section 3(h) of the Anti-Graft Law.

On 26 August 2002, the petitioners filed the instant petition for review on certiorari[10]
seeking to annul and set aside the 16 July 2002 Decision of the Sandiganbayan. Hence the
case at bar.

Issue: Whether Sandiganbayan committed serious and palpable errors in convicting them
for having pecuniary interest in the cockpit business?
 213

Held:

Section 3(h) of the Anti-Graft Law provides:

Section 3. Corrupt practices of public officers. In addition to acts or

omissions of public officers already penalized by existing law, the following shall
constitute corrupt practices of any public officer and are hereby declared to be
unlawful:

(h) Directly or indirectly having financial or pecuniary interest in any

business, contract or transaction in connection with which he intervenes or takes part
in his official capacity, or in which he is prohibited by the Constitution or by any law
from having any interest.

The essential elements set out in the afore-quoted legislative definition of the crime of
violation of Section 3(h) of the Anti-Graft Law are as follows:

1. The accused is a public officer;

2. He has a direct or indirect financial or pecuniary interest in any business,

contract, or transaction;

3. He either

a. intervenes or takes part in his official capacity in

connection with such interest; or

b. is prohibited from having such interest by the

Constitution or by any law.

There are, therefore, two modes by which a public officer who has a direct or indirect
financial or pecuniary interest in any business, contract, or transaction may violate Section
3(h) of the Anti-Graft Law.

The first mode is if

● in connection with his pecuniary interest in any business, contract or transaction,

the public officer intervenes or takes part in his official capacity.

The second mode is when

● he is prohibited from having such interest by the Constitution or any law.

 214

We quote herein the Sandiganbayans declaration regarding petitioners culpability anent

the first mode ( Issuing of license ):
Sandiganbayan found that the charge against Mayor Teves for causing the
issuance of the business permit or license to operate the Valencia Cockpit and
Recreation Center is not well-founded.

This is based, and rightly so, on the additional finding that only the
Sangguniang Bayan could have issued a permit to operate the Valencia Cockpit in
the year 1992.

Sangguniang Bayan that has the authority to issue a license for the
establishment, operation, and maintenance of cockpits. Unlike in the old LGC, Batas
Pambansa Blg. 337, wherein the municipal mayor was the presiding officer of the
Sangguniang Bayan,[16] under the LGC of 1991, the mayor is not so anymore and is
not even a member of the Sangguniang Bayan.

A fortiori, there is no legal basis to convict Teresita Teves as a co-conspirator

in the absence of a finding that Mayor Teves himself is guilty of the offense charged.
In short, the Sandiganbayan correctly absolved the petitioners of the charge based
on the first mode. And there is no need to belabor this point.

convicted the petitioners of violation

Sandiganbayan, however,

of Section 3(h) of the Anti-Graft Law based on the

second mode.
It reasoned that the evidence overwhelmingly evinces that Mayor Teves had a
pecuniary interest in the Valencia Cockpit, which is prohibited under Section 89(2) of
the LGC of 1991.

The information accuses petitioner Edgar Teves, then Municipal Mayor of

Valencia, Negros Oriental, of causing, while in the performance and taking advantage
of his official functions, and conspiring and confederating with his wife the issuance
of the appropriate business permit/license to operate the Valencia Cockpit and
Recreation Center in favor of one Daniel Teves.

The last part of the dispositive portion of the information states that said
accused Edgar Y. Teves having a direct financial or pecuniary interest therein
 215

considering the fact that said cockpit arena is actually owned and operated by him
and accused Teresita Teves.

A careful reading of the information reveals that the afore-quoted last part
thereof is merely an allegation of the second element of the crime, which is, that
he has a direct or indirect financial or pecuniary interest in any business,
contract or transaction.

Hence, we agree with the petitioners that the charge was for unlawful
intervention in the issuance of the license to operate the Valencia Cockpit. There was
no charge for possession of pecuniary interest prohibited by law.

However, the evidence for the prosecution has established that petitioner Edgar Teves, then
mayor of Valencia, Negros Oriental,[18] owned the cockpit in question.

Absent any evidence that he divested himself of his ownership over the cockpit, his
ownership thereof is rightly to be presumed because a thing once proved to exist continues
as long as is usual with things of that nature.

His affidavit dated 27 September 1990 declaring that effective January 1990 he turned over
the management of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no
not
longer devote a full time as manager of the said entity due to other work pressure is
sufficient proof that he divested himself of his ownership over the
cockpit.

Only the management of the cockpit was transferred to Teresita Teves effective January
Being the owner of the cockpit, his interest over
1990.

it was direct.
Even if the ownership of petitioner Edgar Teves over the cockpit were transferred to his wife,
still he would have a direct interest thereon because, as correctly held by respondent
Sandiganbayan, they remained married to each other from 1983 up to 1992, and as such
property relation can be presumed to be that of conjugal
their
partnership of gains in the absence of evidence to the contrary.
 216

Hence, his interest in the Valencia Cockpit is direct and is, therefore, prohibited under
Section 89(2) of the LGC of 1991, which reads:

Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be

unlawful for any local government official or employee, directly or indirectly, to:

(2) Hold such interests in any cockpit or other games licensed by a local
government unit.

The offense proved, therefore, is the second mode of violation of Section 3(h) of the
Anti-Graft Law, which is possession of a prohibited interest. But can the petitioners be
convicted thereof, considering that it was not charged in the information?

The answer is in the affirmative in view of the variance doctrine embodied in Section 4, in
relation to Section 5, Rule 120, Rules of Criminal Procedure, which both read