Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 102549 August 10, 1992 EDWIN B. JAVELLANA, petitioner, vs. DEPARTMENT OF INTERIOR AND LOCAL GOVERNMENT AND LUIS T. SANTOS, SECRETARY, respondents. Reyes, Lozada and Sabado for petitioner.

GRIO-AQUINO, J.: This petition for review on certiorari involves the right of a public official to engage in the practice of his profession while employed in the Government. 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 Department of Local Government (DLG) Memorandum Circular No. 80 -38 dated June 10, 1980 in relation to DLG Memorandum Circular No. 74-58 and of Section 7, paragraph b, No. 2 of Republic Act No. 6713, otherwise known as the "Code of Conduct and Ethical Standards for Public Officials and Employees," and (2) for oppression, misconduct and abu se of authority. Divinagracia's complaint alleged that Javellana, an incumbent member of the City Council or Sanggunian Panglungsod of Bago City, an d 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 counse l in several criminal and civil cases in the city, without prior authority of the DLG Regional Director, in violation of DLG Memorandum Circular No. 80-38 which provides: MEMORANDUM CIRCULAR NO. 80-38 TO ALL: PROVINCIAL GOVERNORS, CITY AND MUNICIPALITY MAYORS, KLGCD REGIONAL DIRECTORS AND ALL CONCERNED SUBJECT: AMENDING MEMORANDUM CIRCULAR NO. 80-18 ON SANGGUNIAN SESSIONS, PER DIEMS, ALLOWANCES, STAFFING AND OTHER RELATED MATTERS In view of the issuance or Circular No. 5-A by the Joint Commission on Local Government Personnel Administration which affects certain provisions of MC 80-18, there is a need to amend said Memorandum Circular to substantially conform to the pertinent provisions of Circular No. 9-A. xxx xxx xxx C. Practice of Profession The Secretary (now Minister) of Justice in an Opinion No. 46 Series of 1973 stated inter alia that " members of local legislative bodies, other than the provincial governors or the mayors, do not keep regular office hours." "They merely attend meetings or sessions of the provincial board or the city or municipal council" and that provincial board members are not even required "to have an office in the provincial building." Consequently, they are not therefore to required to report daily as other regular gove rnment employees do, except when they are delegated to perform certain ad ministrative functions in the interest of public service by the Governor or Mayor as the case may be. For this reason, they may, therefore, be allowed to practice their professions provided that in so doing an authority . . . first be secured from the Regional Directors pursuant to Memorandum Circular No. 74-58, provided, however, that no government personnel, property, equipment or supplies shall be utilized in the practice of their professions. While being authorized to practice their professions, they should as much as possible attend regularly any and all sessions, which are not very often, of their Sanggunians for which they were elected as members by their constituents except in very extreme cases, e .g., doctors who are called upon to save a life. For this purpose it is desired that they always keep a calendar of the dates of the sessions, regular or special of their Sanggunians so that conflicts of attending court cases in the case of lawyers and Sangg unian sessions can be avoided . As to members of the bar the authority given for them to practice their profession shall always be subject to the restrictions provided for in Section 6 of Republic Act 5185. In all cases, the practice of any profession should be favorably recommended by the Sanggunian concerned as a body and by the provincial governors, city or municipal mayors, as the case may be . (Emphasis ours, pp. 28-30, Rollo.)

On August 13, 1990, a formal hearing of the complaint was held in Iloilo City in which the complainant, Engineer Divinagracia, and the respondent, Councilor Javellana, presented their respective evidence. Meanwhile, on September 10, 1990, Javellana requested the DLG for a permit to continue his practice of law for the reasons st ated in his letter-request. On the same date, Secretary Santos replied as follows: 1st Indorsement September 10, 1990 Respectfully returned to Councilor Erwin B. Javellana, Bago City, his within letter dated September 10, 1990, requesting for a permit to continue his practice of law for reasons therein stated, with this information that, as represented and consistent with law, we interpose no objection thereto, provided that such practice will not conflict or tend to conflict with his official functions . LUIS T. SANTOS Secretary. (p. 60, Rollo.) On September 21, 1991, Secretary Luis T. Santos issued Memorandum Circular No. 90-81 setting forth guidelines for the practice of professions by local elective officials as follows: TO: All Provincial Governors, City and Municipal Mayors, Regional Directors and All Concerned. SUBJECT: Practice of Profession and Private Employment of Local Elective Officials Section 7 of Republic Act No. 6713 (Code of Conduct and Ethical Standards for Public Officials and Employees), states, in par t, that "In addition to acts and omission of public officials . . . now prescribed in the Constitution and existing laws, the following shall constitute prohibited acts and transactions of any public officials . . . and are hereby declared to be unlawful: . . . (b) Public Officials . . . during their incumbency shall not : (1) . . . accept employment as officer, employee, consultant, counsel, broker, agent, trustee or nominee in any private enterprise regulated, supervised or licensed by their office unless expressly allowed by law; (2) Enga ge in the private practice of their profession unless authorized by the Constitution or law, provided that such practice will not confl ict or tend to conflict with their official functions: . . . xxx xxx xxx Under Memorandum Circular No. 17 of the Office of the President dated September 4, 1986, the authority to grant any permission, to accept private employment in any capacity and to exercise profession, to any government official shall be granted by the h ead of the Ministry (Department) or agency in accordance with Section 12, Rule XVIII of the Revised Civil Service Rules, which provides, in part, that: No officer shall engage directly in any . . . vocation or profession . . . without a written permission from the head of the Department: Provided, that this prohibition will be absolute in the case of those officers . . . whose duties and responsibilities require that their entire time be at the disposal of the Government: Provided, further, That if an employee is granted permission to engage in outside activities, the time so devoted outside of office should be fixed by the Chief of the agency to the end that it will not impair in anyway the efficiency of the officer or employee . . . subject to any additional conditions which the head of the office deems necessary in each particular case in the interest of the service, as expressed in the various issuances of the Civil Service Commission. Conformably with the foregoing, the following guidelines are to be observed in the grant of permission to the practice of profession and to the acceptance of private employment of local elective officials, to wit : 1) The permission shall be granted by the Secretary of Local Government; 2) Provincial Governors, City and Municipal Mayors whose duties and responsibilities require that their entire time be at the disposal of the government in conformity with Sections 141, 171 and 203 of the Local Government Code (BP 337), are prohibited to engage in the practice of their profession and to accept private employment during their incumbency: 3) Other local elective officials may be allowed to practice their profession or engage in private employment on a limited basis at the discretion of the Secretary of Local Government, subject to existing laws and to the following conditions: a) That the time so devoted outside of office hours should be fixed by the local chief executive concerned to the end that it will not impair in any way the efficiency of the officials concerned;

b) That no government time, personnel, funds or supplies shall be utilized in the pursuit of one's profession or private employment; c) That no conflict of interests between the practice of profession or engagement in private employment and the official duties of the concerned official shall arise thereby; d) Such other conditions that the Secretary deems necessary to impose on each particular case, in the interest of public service. (Emphasis supplied, pp. 31-32, Rollo.) 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 Supreme Court has the sole and exclusive authority to regulate the practice of law. In an order dated May 2, 1991, Javellana's motion to dismiss was denied by the pub lic respondents. His motion for reconsideration was likewise denied on June 20, 1991. Five months later or on October 10, 1991, the Local Government Code of 1991 (RA 7160) was signed into law, Section 90 of whic h provides: 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; (2) Appear as counsel in any criminal case wherein an officer or employee of the national or local government is accused of an offense committed in relation to his office; (3) Collect any fee for their appearance in administrative proceedings involving the local government unit of which he is an official; and (4) Use property and personnel of the Government except when the sanggunian member concerned is defending the interest of the Government. (c) Doctors of medicine may practice their profession even during official hours of work only on occasions of emergency: Provided, That the officials concerned do not derive monetary compensation therefrom. (Emphasis ours.) Administrative Case No. C-10-90 was again set for hearing on November 26, 1991. Javellana thereupon filed this petition for certiorari praying that DLG Memorandum Circulars Nos. 80-38 and 90-81 and Section 90 of the new Local Government Code (RA 7160) be declared unconstitutional and null void because: (1) they violate Article VIII, Section 5 of the 1987 Constitution, which provides: Sec. 5. The Supreme Court shall have the following powers: xxx xxx xxx (5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading, practice, and procedure in all courts, the admission to the practice of law, the Integrated Bar, and legal assistance to the underprivileged. Such rules sha ll provide a simplified and inexpensive procedure for the speedy disposition of cases, shall be uniform for all courts of the same grade, and shall not diminish, increase, or modify substantive rights. Rules of procedure of special courts and quasi-judicial bodies shall remain effective unless disapproved by the Supreme Court. (2) They constitute class legislation, being discriminatory against the legal and medical professions for only sanggunian members who are lawyers and doctors are restricted in the exercise of their profession while dentists, engineers, architects, teachers, opticians, mortic ians and others are not so restricted (RA 7160, Sec. 90 [b-1]). In due time, the Solicitor General filed his Comment on the petition and the petitioner submitted a Reply. After deliberating on the pleadings of the parties, the Court resolved to dismiss the petition for lack of merit. As a matter of policy, this Court accords great respect to the decisions and/or actions of administrative authorities not only because of the doctrine of separation of powers but also for their presumed knowledgeability and expertise in the enforcement of laws and regulations entrusted to their jurisdiction (Santiago vs. Deputy Executive Secretary, 192 SCRA 199, citing Cuerdo vs. COA, 166 SCRA 657). With respect to th e present case, we find no grave abuse of discretion on the part of the respondent, Department of Interior and Local Government (DILG), in issuing the questioned DLG Circulars Nos. 80-30 and 90-81 and in denying petitioner's motion to dismiss the administrative charge against him.

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 dism issal filed by Javiero and Catapang against City Engineer Divinagracia is in effect a complaint against the City Government of Bago City, their real emp loyer, 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 pe titioner violated Memorandum Circular No. 74-58 (in relation to Section 7[b-2] of RA 6713) 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 a nd 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 tho se 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 lawye rs, 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. SO ORDERED. Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Medialdea, Regalado, Davide, Jr., Romero, Nocon and Bellosillo, JJ., concur. EN BANC

[G.R. No. 135886. August 16, 1999]

VICTORINO SALCEDO II, petitioner, vs. COMMISSION ON ELECTIONS and ERMELITA CACAO SALCEDO, respondents. DECISION GONZAGA-REYES, J.: This is a petition for certiorari under Rule 65 of the 1997 Rules of Court of the e n banc Resolution of the Commission on Elections (Comelec) dated October 6, 1998, which reversed the earlier Resolution issued by its Second Division on August 12, 1998. From the pleadings and the annexes, the following uncontroverted facts have been established On February 18, 1968, Neptali P. Salcedo married Agnes Celiz, which marriage is evidenced by a certified true copy of the mar riage contract issued by the Municipal Civil Registrar of Ajuy, Iloilo.[1] Without his first marriage having been dissolved, Neptali P. Salcedo married private respondent Ermelita Cacao in a civil ceremony held on September 21, 1986.[2] 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. [3] 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. [4] However, on April 17, 1998, petitioner filed with the Comelec a petition [5] seeking the cancellation of private respondents certificate of candidacy 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 r ight to use said surname because she was not legally married to Neptali Salcedo. On May 13, 1998, private respondent was proclaimed as the duly elected mayor of Sara, Iloilo. [6] 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; that, upon learning of his existing marriage, she encouraged her husband to take steps to annul his marriage with Agnes Celiz because the latter had abandoned their marital home since 1972 and has not been heard from since that time; that on February 16, 1998, Neptali Salcedo filed a petition for declaration of presumptive death before Branch 66 of the Regional Trial Court of Barotac Viejo, Iloilo, which wa s granted by the court in its April 8, 1998 decision; that Neptali Salcedo and Jesus Aguirre are one and the same person; and that since 1986 up to the pre sent she has been using the surname Salcedo in all her personal, commercial and public transactions. [7] On August 12, 1998, the Comelecs Second Division ruled, by a vote of 2 to 1, [8] that 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. Consequently, the use by private respondent of the surname Salcedo constitutes material misrepresentation and is a ground for the cancellation of her certificate of candidacy. The pertinent portion of the Resolution reads as follows The only issue to be resolved is whether or not the use by respondent of the surname Salcedo in her certif icate 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 ce rtificate 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 mispresentation. 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. For the petitioner, this admission is supported by a marriage contract (attached as Annex C of the Petition) and a certificate of marriage (attached as Annex D of the petition) where the contracting parties are Jesus Aguirre and Ermelita Cacao. On the other hand, respondent tries to create the impression that Neptali Salcedo and Jesus Aguirre are one and the same per sons. This Commission, however, holds the view that regardless of whether Neptali Salcedo and Jesus Aguirre are the same p ersons, 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 and attached to the petition as Annex E. Respondent cannot seek refuge in her bare assumption that since Agnes Celiz was declared as presumptively dead by the Regional Trial Court of Barotac Viejo, Iloilo, she was free to marry Neptali Salcedo. In point of fact and law, there was considerably NO pronouncement to the effect 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. WHEREFORE, this Commission (SECOND DIVISION) RESOLVED, as it hereby RESOLVES, to CANCEL the Certificate of Candidacy of respo ndent for the position of Municipal Mayor of Sara, Iloilo in the May 11, 1998 elections. [9] However, in its e n banc Resolution dated October 6, 1998, the Comelec overturned its previous resolution, ruling that pri vate respondents certificate of candidacy did not contain any material misrepresentation. It disposed of the case in this manner The record shows that respondent Ermelita C. Salcedo married Neptali Salcedo on September 21, 1986. Under Article 370 of the Civil Code, the respondent may use her husbands surname. Hence, there is no material misrepresentation nor usurpation of anothers name. At any rate, its has been said that the filing of a certificate of candidacy is a technicality that should be enforc ed before the election, but can be disregarded after the electorate has made the choosing (Collado vs. Alonzo, 15 SCRA 526). This rule is in consonance with th e policy announced in many decisions that the rules and regulations, for the conduct of electio ns, are mandatory before the elections, but when it is sought to enforce them after the elections, they are held to be directory only (Lambonao vs. Tero, 15 SCRA 716). Futhermore, the municipal board of canvassers proclaimed the respondent last May 13, 19 98, as the duly elect mayor of the municipality of Sara, Province of Iloilo. Any defect in the respondents cerficate of candidacy should give way to the will of the electorate. WHEREFORE, the COMMISSION resolves to GRANT the instant Motion for Reconsideration. We REVERSE the resolution (Second Division) promulgated on August 12, 1998, cancelling the certificate of candidacy of the respondent Ermelita C. Salcedo. The proclamation of Ermelita C. Salcedo, as mayor of Sara, Iloilo, remains valid, there being no legal ground to set it aside.[10] This last resolution of the Comelec prompted petitioner to repair to this Court by way of a petition for certiorari under Rule 65, claiming that public respondents ruling was issued in grave abuse of its discretion. Contrary to petitioners contention, we are of the opinion that the main issue in this case is not whether or not private res pondent is entitled to use a specific surname in her certificate of candidacy, [11] but whether the use of such surname constitutes a material misrepresentation under section 78 of the Omnibus Election Code (the Code) so as to justify the cancellation of her certificate of candidacy. We hold that it does not. Every person aspiring to hold any elective public office must file a sworn certificate of candidacy. [12] One of the things which should be stated therein is that the candidate is eligible for the office. [13] In case there is a material misrepresentation in the certificate of candidacy, the Comelec is authorized to deny due course t o or cancel such certificate upon the filing of a petition by any person pursuant to section 78 of the Code which states that A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material 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. If the petition is filed within the statutory period and the candidate is subsequently declared by final judgment to be disqualified before the election, he 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 Comelec sh all 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. [14] The fifteen-day period in section 78 for deciding the petition is merely directory.[15] As stated in the law, in order to justify the cancellation of the certificate of candidacy under section 78, it is essential that the false representation mentioned therein pertain to a material matter for the sanction imposed by this provision would affect the substantive rights of a candidate - the right to run for the elective post for which he filed the certificate of candidacy. Although the law does not specify what would be considered as a material representation, the Court has interpreted this phrase in a line of decisions applying section 78 of the Code.

In Abella vs. Larrazabal, supra, a petition was filed with the Comelec seeking the disqualification of private respondent Larrazabal for alleged false statements in her certificate of candidacy regarding residence. The Court held that the challenge made against p rivate respondents claimed residence was properly classified as a proceeding under section 78, despite the fact that it was filed only on the very day o f the election.[16] Meanwhile, in Labo vs. Commission on Elections,[17] the disqualification proceeding filed by respondent pursuant to section 78 of the Code sought to cancel the certificate of candidacy filed by petitioner Ramon Labo, who ran for mayor of Baguio City in the last May 11, 1 992 elections, based on the ground that Labo made a false representation when he stated therein that he is natural-born citizen of the Philippines. The Court, speaking through Justice Abdulwahid A. Bidin, held that Labo, having failed to submit any evidence to prove his reacquisition of Philippine citizenship, is not a Filipino citizen and respondent Comelec did not commit any grave abuse of discretion in cancelling his certificate of candidacy. The Court went on to say that the possession of citizenship, being an indispensable requirement for holding public office, may not be dispensed with by the fac t of having won the elections for it strikes at the very core of petitioner Labos qualification to assume the contested office. A similar issue was dealt with in the Frivaldo vs. Commission on Elections cases[18] wherein Frivaldos qualification for public office was questioned in a petition filed by petitioner Raul R. Lee, praying that Frivaldo be disqualified from seeking or holding any p ublic office or position and that his certificate of candidacy be cancelled by reason of his not yet being a citizen of the Philippines. The Court held that Frivaldo had reacquired Philippine citizenship by virtue of his repatriation under P.D. 725 and was qualified to hold the position of governor of So rsogon. The Court has likened a proceeding under section 78 to a quo warranto proceeding under section 253 since they both deal with the qualifications of a candidate. In the case of Aznar vs. Commission on Elections,[19] wherein a petition was filed asking the Comelec to disqualify private respondent Emilio Osmena on the ground that he does not possess the requisite Filipino citizenship, the Court said There are two instances where a petition questioning the qualifications of a registered candidate to run for the office for which his certificate of candidacy was filed can be raised under the Omnibus Election Code (B.P. Blg. 881), to wit: (1) Before election, pursuant to Section 78 thereof which provides that: Section 78. Petition to deny due course or to cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material 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. and (2) After election, pursuant to Section 253 thereof, viz: Sec. 253. Petition for quo warranto . - Any voter contesting the election of any Member of the Batasang Pambansa [20], regional, provincial, or city officer on the ground of ineligibility or of disloyalty to the Republic of the Philippines shall file a s worn petition for quo warranto with the Commission within ten days after the proclamation of the results of the election . (emphasis supplied) The only difference between the two proceedings is that, under section 78, the qualifications for elective office are misrepresented in the certificate of candidacy and the proceedings must be initiated before the elections, whereas a petition for quo warranto under section 253 may be brought on the basis of two grounds - (1) ineligibility or (2) disloyalty to the Republic of the Philippines, and must be initiated within ten days after the proclamation of the election results. Under section 253, a candidate is ineligible if he is disqualified to be elected to office, [21] and he is disqualified if he lacks any of the qualifications for elective office. In still another case, where the petition to disqualify petitioner was based upon an alleged false representation in the ce rtificate of candidacy as to the candidates age, the Court once again drew a parallel between a petition for quo warranto and a petition to cancel a certificate of candidacy when it stated that if a person qualified to file a petition to disqualify a ce rtain candidate fails to file the petition within the 25-day period prescribed by Section 78 of the Code for whatever reasons, the elections laws do not leave him completely helpless as he has another chance to rais e the disqualification of the candidate by filing a petition for quo warranto within ten (10) days from the proclamation of the results of the election, as provided under Section 253 of the Code. [22] Therefore, it may be concluded that the material misrepresentation contemplated by section 78 of the Code refer to qualificat ions for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a candidate guilty of hav ing made a false representation in his certificate of candidacy are grave to prevent the candidate from running or, if elected, from serving, or to prosecute him for violation of the election laws.[23] It could not have been the intention of the law to deprive a person of such a basic and substantive political right to be vot ed for a public office upon just any innocuous mistake. Petitioner has made no allegat ions concerning private respondents qualifications to run for the office of mayor. Aside from his contention that she made a misrepresentation in the use of the surname Salcedo, petitioner does not claim that private respondent lacks the req uisite residency, age, citizenship or any other legal qualification necessary to run for a local elective office as provided for in the Local Govern ment Code.[24]Thus, petitioner has failed to discharge the burden of proving that the misrepresentation allegedly made by private respondent in her certific ate of candidacy pertains to a material matter. Aside from the requirement of materiality, a false representation under se ction 78 must consist of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible. [25] In other words, it must be made with an intention to deceive the electorate as to ones qualifications for public office. The use of a surname, when not intended to mislead or deceive the public as to ones identity, is not within the scope of the provision. There is absolutely no showing that the inhabitants of Sara, Iloilo were deceived by the use of such surname by private respondent. Petitioner does not allege that the electorate did not know who they were voting for when they cast their ballots in favor of Ermelita Cacao Salcedo or that they were fooled into voting for someone else by the use of such name. It may safely be assumed that the electorate knew who private respondent was, not only by name, but also by face and may have even been personally acquainted with her since she has been residing in the municipality of Sara, Iloilo since at least 1986.[26] Bolstering this assumption is the fact that she has been living with Neptali Salcedo, the mayor of Sara for three consecutive terms, since 1970 and the latter has held her out to the public as his wife. [27]

Also arguing ag ainst petitioners claim that private respondent intended to deceive the electorate is the fact that private respondent start ed using the surname Salcedo since 1986, several years before the elections. In her application for registration of her rice and corn milling business filed with the Department of Trade and Industry in 1993, private respondent used the name Ermelita Cacao Salcedo. [28] From 1987 to 1997, she also used the surname Salcedo in the income tax returns filed by herself and by Neptali Salcedo. [29] The evidence presented by private respondent on this point, which has remained uncontested by petitioner, belie the latters claims that private respondent merely adopted the surname S alcedo for purposes of improving her chances of winning in the local elections by riding on the popularity of her husba nd. Thus, we hold that private respondent did not commit any material misrepresentation by the use of the surname Salcedo in he r certificate of candidacy. Having disposed of the major issues, we will now proceed to tackle the secondary issues raised in t he petition. Petitioner claims that the following circumstances constitute grave abuse of discretion on the part of the Comelec: (1) the October 6, 1998 e n banc Resolution of the Comelec, sustaining the validity of private respondents certificate of can didacy, merely duplicated the dissenting opinion of Commissioner Desamito of the Second Division in the August 12, 1998 Resolution; (2) Chairman Pardo, the ponente of the en banc Resolution, and Commissioner Guiani, both members of the Second Division who ruled in favor of petitioner in the August 12, 1998 Resolution, reversed their positions in the en banc resolution; and (3) the e n banc Resolution was promulgated on the very same day that Chairman Pardo took his oath of office as Associate Justice of the Supreme Court. Petitioner does not indicate what legal provision or equitable principle the Comelec transgressed by the commission of these acts. We find nothing legally assailable with the Comelecs adoption in its e n banc Resolution of the reasoning contained in the dissenting opinion of Commissioner Desamito; nor is the en banc Resolution rendered infirm by the mere change of position adopted by Chairman Pardo and Guiani of the Second Division. Precisely, the purpose of a motion for reconsideration is to allow the adjudicator a second opportunity to review the case and to grapple with the issues therein, deciding anew a question previously raised. [30] There is no legal proscription imposed upon the deciding body against adopting a position contrary to one previously taken. Finally, the fact that the decision was promulgated on the day Chairman Pardo, the ponente of the en banc Resolution, took his oath of office as Associate Justice of the Supreme Court does not give ground to question the Comelec decision for then Chairman Pardo enjoys t he presumption of regularity in the performance of his official duties, a presumption which petitioner has failed to rebut. At any rate, the date of promulgation is not necessarily the date of signing. In upholding the validity of private respondents certificate of candidacy, we reiterate that [t]he sanctity of the people's will must be observed at all times if our nascent democracy is to be preserved. In any challenge having the effect of reversing a democratic voice, expressed through the ballot, this Court should be ever so vigilant in finding solutions which would give effect to the will of the majority, for sound public policy dictates that all elective offices are filled by those who have received the highest number of votes cast in an election. When a challenge to a winning candidate's qualifications however becomes inevitable, the ineligibility ought to be so noxious to the Constitution that giving effect to the apparent will of the people would ultimately do harm to our democratic institutions. [31] Since there appears to be no dispute as to private respondents qualifications to hold the office of municipal mayor, the will of the electorate must prevail. WHEREFORE, the Court hereby AFFIRMS the e n banc Resolution of the Commission on Elections dated October 6, 1998 denying the petition to cancel private respondents certificate of candidacy. No pronouncement as to costs. SO ORDERED. Davide, Jr., C. J., Bellosillo, Melo, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, and Ynares-Santiago, JJ., concur. Puno, J., in the result. Pardo, J., no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 179430 July 27, 2009

JAMELA SALIC MARUHOM, Petitioner, vs. COMMISSION ON ELECTIONS, and MOHAMMADALI "Mericano" A. ABINAL, Respondents. DECI SI ON CHICO-NAZARIO, J.: Before Us is a Petition for Certiorari1 with Prayer for the Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction assailing the Resolution2 dated 21 August 2007 of the Commission on Elections (COMELEC) En Banc and Resolution3 dated 8 May 2007 of the COMELEC First Division, both pertaining to SPA No. 07-093. The facts gathered from the records are as follows: Petitioner Jamela Salic Maruhom (Maruhom) and private respondent Mohammadali "Mericano" A. Abinal (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 Certificates of Candidacy (COCs) for the said position with the COMELEC Election Officer of Marantao. 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 Section 78 of Batas Pambansa Bilang 881, 4 otherwise known as the Omnibus Election Code of the Philippines (OEC), 5 against Maruhom, which

was docketed as SPA No. 07-093. 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. 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 he r 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.6 Abinal also averred that Maruhom made false material representations in her registrations in Marawi and Marantao. 7 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. 8 Abinal further claimed that Maruhom also made false material representations in her COC. Maruhom wrote in her Marantao regist ration9 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 10 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." Moreover, Maruhom was registered in Marantao as "Hadja Jamelah Salic Abani." This was inconsistent with the Certificate of Nomination dated 23 March 2007, issued by Dr. O mbra A. Tamano, Lanao del Sur Provincial Chairman of Laban ng Demok ratikong 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 cou rse to, or cancellation of, the latters COC under Section 78 of the OEC.11 Maruhom filed before the COMELEC an Answer with Motion to Dismiss SPA No. 07-093 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. Maruhom also insisted that she did not make false material representations in her COC, because her complete name was "Salic, Jamelah, Abani, Mama, Esmail, Maruhom." Maruhom explained that "Salic" was her fathers surname; "Jamelah" was her first name; that "Abani, Mama, Esmail" were her paternal and maternal grandparents names; and "Maruhom" was her husbands surname. Hence, Maruhom asked the COMELEC to dismiss Abinals Petition in SPA No. 07 -093.12 After submission of the parties Position Papers and Memoranda, the COMELEC First Division issued a Resolution in SPA No. 07 -093 on 8 May 2007, granting Abinals Petition. The COMELEC First Division found that Maruho m had two subsisting registrations, one in Marawi, and another in Marantao. Maruhoms Marantao registration was void ab initio pursuant to COMELEC Minute Resolution No. 00-1513, issued on 25 July 2000.13 Since Maruhom was not a registered voter in Marantao, she was disqualified from being a mayoralty candidate therein. Thus, the COMELEC Firs t Division ordered the deletion of Maruhoms name from the list of offici al candidates for municipal mayor of Marantao. Maruhom filed a Motion for Reconsideration of the 8 May 2007 Resolution of the COMELEC First Division, to which Abinal filed an Opposition.14 The COMELEC First Division then referred Maruhoms Motion for Reconsideration to the COMELEC en banc for disposition.15 Meanwhile, the 14 May 2007 national and local elections were held, and Abinal won over Maruhom. Abinal was proclaimed the duly elected mu nicipal mayor of Marantao and, thereupon, assumed office. Maruhom filed an election protest against Abinal before the Regional Tria l Court (RTC) of Lanao del Sur, Branch 10, docketed as Election Case No. 1731-07.16 On 21 August 2007, the COMELEC En Banc issued a Resolution denying Maruhoms Motion for Reconsideration and affirming in toto the 8 May 2007 Resolution of the COMELEC First Division. The COMELEC En Banc further ordered the referral of the case to the COMELEC Law Department for investigation on the possible commission of an election offense by Maruhom. Aggrieved, Maruhom filed the instant Petition for Certiorari, under Rule 64 of the Revised Rules of Court, imputing grave abuse of discretion on the part of COMELEC, based on the following grounds: I. THE COMELEC HAS NO JURISDICTION TO DECLARE NULL AND VOID THE REGISTRATION OF THE PETITIONER AS A REGISTERED VOTER OF MARANTAO, LANAO DEL SUR IN THE MAY 14, 2007 ELECTIONS; II. THE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT DECLARED THE PETITIONER AS A DOUBLE REGISTRANT.17 The Petition at bar has no merit. Maruhom challenges in her Petition the jurisdiction of the COMELEC in declaring her registration in Marantao void. She asserts that Section 2, Article IX(c) of the Constitution prohibits the COMELEC from assuming jurisdiction or deciding issues involving the right to vote. Se ction 33 of Republic Act No. 8189, or the Voters Registration Act of 1996 (VRA ), confers upon the Municipal Trial Courts (MTCs) and Metropolitan Trial Courts (MeTCs) original and exclusive jurisdiction over all cases of inclusion and exclusion of voters in their respective cities or municipalities. Maruhom argues that the validity of her registration in Marantao can only be directly challenged in a petition for exclusion filed with the MTC of Marantao, an d cannot be collaterally attacked in the Petition for Disqualification and to Deny Due Course to or Cancel the Certificate of Candidacy filed by Abinal before the COMELEC. Maruhom further contends that the reliance by COMELEC on its "broad plenary powers to enforce and administer all laws relatin g to election" is baseless in light of the aforementioned Section 33 of the VRA. The Resolution dated 8 May 2007 of the COMELEC First Division and Resolution dated 21 August 2007 of the COMELEC En Banc amount to judicial legislation, since the COMELEC has no authority to prescribe what the law does not provide, its functions not being legislative.18

Maruhom, whether intentionally or inadvertently, is muddling the issues in this case. The present case is not about her being denied her right to register as a voter, but is all about her making false material representations in her COC, which would warrant the cancellation of th e same. Abinals Petition in SPA No. 07 -093 primarily prays that the COMELEC deny due course to or cancel Maruhoms COC under Sect ion 78 of the OEC, alleging that Maruhom made false material representations in her COC. 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. The 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 mat erial fact refers to a candidates eligibility or qualification for elective office like citizenship, residence or status as a registered voter .19 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.20 It is settled that the COMELEC has jurisdiction over a petition filed under Section 78 of the OEC. 21 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. 22 If the candidate states a material representation in the COC that is false, the COMELEC is empowered to deny due course to or cancel the COC. The person whose COC is denied due course or cancelled under Section 78 of the OEC is not treated as a candidate at all, as if su ch person never filed a COC.23 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 mu nicipality.26 Given Maruhoms double registration in Marawi and Marantao, then COMELEC should determine which registration was valid and wh ich one was null. COMELEC could not consider both registrations valid because it would then give rise to the 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 a nd 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. To foster honesty and credibility in the registrat ion of voters, so as to avoid the padding of vote registration, COMELEC laid down the rule in Minute Resolution No. 00-1513 that while the first registration of any 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. Maruhoms voter registration constitutes a material fact because it affects her eligibility to be elected as municipal mayor of Marantao. Section 39(a) of Republic Act No. 7160, otherwise known as the Local Government Code of 1991, 27 requires that an elective local official must be, among other things, a registered voter in the barangay, municipality, city or province where he intends to be elected. Several circumstances convince us that Maruhom was aware that she had a subsisting registration in Marawi and deliberately at tempted 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.28 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 t he position of mayor of said municipality. There is no showing that Maruhom informed or advised the election 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. lawphil Indeed, Maruhom made false material representations in her COC that she was a registered voter in Marantao and that she was e ligible to be a mayoralty candidate in said municipality. Maruhoms insistence that only the MTC has jurisdiction to rule on her voter registration is specious. It must be underscored that in addition to the express jurisdiction of COMELEC over petitions for cancellation of COCs, on the ground of false material repres entations, under Section 78 of the OEC, the Constitution also extends to COMELEC all the necessary and incidental powers for it to achieve the holding of free, order ly, honest, peaceful, and credible elections.29The determination, therefore, made by the COMELEC that Maruhoms Marawi registration is valid, while her Marantao registratio n is void, is only in accord with its explicit jurisdiction, or at the very least, its residual powers. Furthermore, as aptly pointed out by Abinal and COMELEC, through the Office of the Solicitor General, 30 the 8 May 2007 Resolution of the COMELEC First Division and the 21 August 2007 Resolution of the COMELEC en banc merely defeated Maruhoms intent to run for elective office, but it did not deprive her of her right to vote. Although Maruho ms registration in Marantao is void, her registration in Marawi still subsists. She may be barred from voting or running for mayor in the former, but she may still exercise her right to vote, or even run for an elective post, in the latter. Maruhom does not deny at all that she registered twice. However , Maruhom calls our attention to the fact that on 30 December 2003, she made a written request to the election officer of Marawi to cancel her registration therein as a voter. On 20 March 2007, she reiterated her request to the same election officer. On 23 March 2007, she also informed the COMELEC Law Department of her request for cancellation of her registration in Marawi. Thus, the failure of the election officer of Marawi to cancel Maruhoms voter registration in said municipality, despite repeated reque sts, should not be taken against the latter.31 It is true that Maruhom did make several requests for the cancellation of her Marawi registration, but without official action by the COMELEC thereon, they remain mere requests. They cannot simply be deemed granted. We take note that Maruhoms first request for cancellation o f her Marawi registration was submitted on 30 December 2003, and her next request was made only on 20 March 2007. Maruhom subsequently filed her COC

for the mayoralty position in Marantao on 28 March 2007. Far from convincing us that she had exercised due diligence in having her Marawi registration cancelled, we are more persuaded that Maruhom had not been assiduous in ensuring that her request for cancellation be acted upon by COMELEC. Maruhoms reiteration of her request for cancellation of her Marawi registration on 20 March 2007, three years and t hree months since her first request, and just a week prior to the filing of her COC for the mayoralty position in Marantao, reveals a harried attempt to comply with the eligi bility requirements for her candidacy than a sincere desire to right a wrong. COMELEC, thus, had more than enough basis to support its conclusion of Maruhom being a double registrant whose subsequent registration in Marantao was null and void, rendering her unfit to run as municipal mayor therein. Therefore, Maruhom, at the time she filed her COC, could not have honestly declared therein that she was a registered voter of Marantao and an eligible candidate for mayor of the said municipality. It is incumbent upon Maruhom to truthfully state her eligibility in her COC, es pecially so because the COC is filled up under oath.32 An elective office is a public trust. He who aspires for elective office should not make a mockery of the electoral process by falsely representing himself.33 The well-settled rule is that this Court will not interfere with a COMELEC decision/resolution unless the COMELEC is shown to have com mitted grave abuse of discretion. Correctly understood, grave abuse of discretion is such "capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, or an exercise of power in an arbitrary and despotic manner by reason of passion or personal hostility, or an e xercise of judgment so patent and gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act in a manner not at all in contemplation of law."34 Given our foregoing discussion, we find no capricious and whimsical exercise of judgment on the part of the COMELEC in rendering the assailed Resolutions in SPA No. 07-093. WHEREFORE, after due deliberation, the instant Petition for Certiorari is hereby DISMISSED. The Resolution dated 8 May 2007 of the COMELEC First Division and the Resolution dated 21 August 2007 of the COMELEC En Banc in SPA No. 07-093, are hereby AFFIRMED in toto. Costs against petitioner Jamela Salic Maruhom. SO ORDERED. MINITA V. CHICO-NAZARIO Associate Justice WE CONCUR: REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice ANTONIO T. CARPIO Associate Justice CONCHITA CARPIO MORALES Associate Justice ANTONIO EDUARDO B. NACHURA Associate Justice ARTURO D. BRION Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice RENATO C. CORONA Associate Justice PRESBITERO J. VELASCO, JR. Associate Justice TERESITA J. LEONARDO-DE CASTRO Associate Justice DIOSDADO M. PERALTA Associate Justice

LUCAS P. BERSAMIN Associate Justice CERTIFICATION Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice EN BANC

[G.R. No. 120295. June 28, 1996]

JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

[G.R. No. 123755. June 28, 1996]

RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents. DECISION PANGANIBAN, J.: The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogo n (i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed his lost Philippine citizenship thru repatriation; (ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he secured the most number of valid votes; or (iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent vacancy in the contested office has occurred"? In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprude nce on citizenship and elections, and upholds the superiority of substantial justice over pure legalisms. G.R. No. 123755. This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to revie w and annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated on December 19,19952 and another Resolution of the Comelec en bane promulgated February 23, 19963 denying petitioner's motion for reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition 4 with the Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason of not yet being a cit izen of the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the Second Division of the Comelec promulgated a Resolution 5 granting the petition with the following disposition:6 "WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate of candidacy is cancelled." The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the aforementioned Resolution of the Second Division. The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8.dated May 27, 1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon: Antonio H. Escudero, Jr. Juan G. Frivaldo RaulR.Lee Isagani P. Ocampo 51,060 73,440 53,304 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected Governor of Sorsogon. In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en 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 on June 29,1995 x x x." Accordingly, at 8:30 in the evening ofJune 30,1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in September 1994 had been granted." As such, when "the said order (dated June 21, 1995) (of the Comelec) x x x was released and received by Frivald o 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 x x x." In the alternative, he averred that pursuant to the two cases of Labo vs. Comelec,12 the Vice-Governor not Lee should occupy said position of governor. On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 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 provisions of Presidential Decree No. 725 xxx (is) qualified to hold the office of governor of Sorsogon"; thus: "PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition. Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant his proclamation. Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor of Sorsogon having garn ered the highest number of votes, and he having reacquired his Filipino citizenship by repatriation on June 30,1995 under the provisions of Presidential Decree No. 725 and, thus, qualified to hold the office of Governor of Sorsogon. Conformably with Section 260 of the Omnibus Election Code ( B.P. Blg. 881), the Clerk of the Commission is directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang Panlalawigan of the Province of Sorsogon of this resolutio n immediately upon the due implementation thereof." On December 26,1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its Resolution14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand briefly be capsulized in the following propositions": 15 "First - The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking cognizance of and deciding said petition; Second- The judicially declared disqualification of respondent was a continuing condition and rendered him ineligible to run for, to be elected to and to hold the Office of Governor; Third - The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as duly elected Govern or of Sorsogon."

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No. 123755, as follows: 1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines"; 2. Resolution17 of the Comelec en bane, promulgated on May 11, 1995; and 3. Resolution18 of the Comelec en bane, promulgated also on May 11, 1995 suspending the proclamation of, among others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above -mentioned resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:

"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not later than twenty -five days from the time of the filing of the certificate of candidacy and shall be decided, after notice and hearing, not later than fifteen days before the election." (Italics supplied.) the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by law," i.e., "not later than fifteen days before the election." Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the pe riod of fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void. By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the province of Sorsogon. On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their r espective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows: 1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when? 2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be elected to or hold the governorship of Sorsogon? 3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95 -317 considering that : said petition is not "a pre -proclamation case, an election protest or a quo warranto case"? 4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence? 5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within ( the period referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters raised are secondary to this. The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials, including that of provincial governor, thus: "Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay, municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the distr ict where he intends to be elected; a resident therein for at least one (1) year immediately preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (b) Candidates for the position of governor, vice governor or member of the sangguniang panlalawigan, or mayor, vice mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty-three (23) years of age on election day. xxx Court 20 xxx xxx

Inasmuch as Frivaldo had been declared by this as a non-citizen, it is therefore incumbent upon him to show that he has reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R. A. 7160). Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects. Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsog on, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he was judicially dec lared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on Elections to boot. Moreover, he now boasts of having successfully pa ssed through the third and last mode of reacquiring citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing

counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in addition to his a ble private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he not Lee should have been proclaimed as the duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his citizenship. En contrario, Lee argues that Frivaldo's repatriation is tainted ; with serious defects, which we shall now discuss in seriatim. First, Lee tells us that P.D. No. 725 had "been effectively repealed," asserting that "then President Corazon Aquino exercising legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential Decree or Executiv e Issuances as the same poses a serious and contentious issue of policy which the present government, in the exercise of prud ence and sound discretion, should best leave to the judgment of the first Congress under the 1987 Constitution," adding that in her memorandum dated March 27,1987 to the members of the Special Committee on Naturalization constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated April 11, 1975, as amended."23 This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is obvious that no express repeal was made because then President Aquino in her memorandum based on the copy furnished us by Lee did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they canno t co-exist."26 The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of her law -making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987 Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress once createdto deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new Congress. Any other in terpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee, would visit unmitigated violence not only upon s tatutory construction but on common sense as well. Second. Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's application therefor was "filed on June 29, 1995 x x x (and) was approved in just one day or on June 30, 1995 x x x," which "prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation with the Office of the President in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor General. However, the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances, it could not be said that there was "indecent haste" in the processing of his application. Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the per sonal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such allegation is simply baseless as there w ere many others who applied and were considered for repatriation, a list of whom was submitted by him to this Court , through a Manifestation28 filed on April 3, 1996. On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the pr oceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact, P.D. 725 29 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his country and his province prior to his naturalization in the United States a naturalization he insists was made necessary only to escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace and who, after the fall of the dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his talent and services to his people. So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of Frivaldo's re patriation should have been pursued before the Committee itself, and, failing there, in the Office of the President, pursuant to the doctrine of exhaustion of administrative remedies. Third. Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 10465430 which held that "both the Local Government Code and the Constitution require that only Philippine citizens can run and be elected to Public office" Obviously, however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not and NOT the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on. Under Sec. 39 of the Local Government Code, "(a)n elective local official must be: * a citizen of the Philippines; * a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected; * a resident therein for at least one (1) year immediately preceding the day of the election; * able to read and write Filipino or any other local language or dialect." * In addition, "candidates for the position of governor x x x must be at least twenty-three (23) years of age on election day." From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess ci tizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office, 31 and the purpose of the citizenship qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our p eople and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30, 1995 the very day32 the term of office of governor (and other elective officials) began he was therefore already qualified to be proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time, he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why then should such qualification be required at the time of election or at the time of the filing of the certificates of candidacies , as Lee insists? Literally, such qualifications unless otherwise expressly conditioned, as in the case of age and residence should thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the time he is proclaimed and at the start of his term in this case, on June 30, 1995. Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation, that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time of proclamation of the elected official and at the start of his term. But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all, Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered voter." And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter-much less a validly registered one if he was not a citizen at the time of such registration. The answer to this problem again lies in discerning the purpose of the requirement. If the law intended the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the law intended CITIZENSHIP to be a qualification distinct from bein g a VOTER, even if being a voter presumes being a citizen first. It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province x x x where he intends to be elected." It sh ould 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 prosp ective official is actually registered in the area he seeks to govern and not anywhere else. Before this Court, Frivaldo has repeatedly emphasized and Lee has not disputed that he "was and is a registered voter of Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration x x x In fact, he cast his vote in his precinct on May 8, 1995."36 So too, during the oral argument, his counsel stead -fastly maintained that "Mr. Frivaldo has always been a registered voter of Sorsogon. He has voted in 1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but the court dismi ssed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections including on May 8,1995.37 It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected. There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter, presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's pr oclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared" alienage. Hence, at such time, he was no longer ineligible. But to remove all doubts on this important issue, we also hold th at 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 exceptions 40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They operate on conditions already existing, and are necessarily retroactive in operation. Agpalo,42 on the other hand, says that curative statutes are "healing acts x x x curing defects and adding to the means of enforcing existing obligations x x x (and) are intended to supply defects, abridge superfluities in existing laws, and curb certain evils x x x By their very nature, curative statutes are retroactive xxx (and) reach back to past events to correct errors or irregularities and to render valid and effe ctive attempted acts which would be otherwise ineffective for the purpose the parties intended." On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do not come with in the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of statutes. 43 A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their Philippine citiz enship by marriage to aliens" and who could not, under the existing law (C. A. No. 63, as amended) avail of repatriation until "after the death of their hu sbands or the termination of their marital status" and who could neither be benefitted by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship xxx" because "such provision of the new Constitution does not apply to Filipino women who h ad married aliens before said constitution took effect." Thus, P.D. 725 granted a new right to these women the right to re-acquire Filipino citizenship even during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-acquire Philippine citizenship," because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo the tedious and cumbersome process of natura lization, but with the advent of P.D. 725 they could now re-acquire their Philippine citizenship under the simplified procedure of repatriation. The Solicitor General44 argues:

"By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96 Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041). In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C. A. No. 63 where in married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalizatio n. Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions are considered essentially remedial an d curative." In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof." 45 It is obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as important as the freedom of speech, liberty of abode, the right against unreasonable sea rches and seizures and other guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident purpose for -which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit or qualify the right of repatriation granted therein. At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said l aw was enacted on June 5,1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and appl ied for repatriation even later, on August 17, 1994? While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only the law itself (P.D. 725) which is tobe given retroactive effect, but even the repatriation granted under said law to Frivaldo on June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events i.e., situations and transactions existing even before the law came into being in order to benefit the greatest number of former Filipinos possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or retrospective manner to situations, events and transactions subsequent to the passage of such law. That is, the repatriation granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned, there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there is no showing that damage or prejudice to anyon e, or anything unjust or injurious would result from giving retroactivity to his repatriation. Neither has Lee shown that the re will result the impairment of any contractual obligation, disturbance of any vested right or breach of some constitutional guaranty. Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine l aws and whatever defects there were in his nationality should now be deemed mooted by his repatriation. Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were n ot to be given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any substantial lengt h of time, then the former Filipinos who may be stateless, as Frivaldo having already renounced his American citizenship was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or application of laws, it is to be presumed that the law -making body intended right and justice to prevail.47 And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation with in relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the government arising in connection with or as a result of h is being an alien, and accruing only during the interregnum between application and approval, a situation that is not present in the instant case. And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumst ances, there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification whether at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy (March 20, 1995) would become moot. Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch as he is considered as having been repatriated i.e., his Filipino citizenship restored as ofAugust 17, 1994, his previous registration as a voter is likewise deemed validated as of said date. It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of the Local Government Code would disqualify him "from running for any elective local posit ion?"49 We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long renounced and had long abandoned his American citizenship long before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship."50 On this point, we quote from the assailed Resolution dated December 19, 1995:51 "By the laws of the United States, petitioner Frivaldo lost his American citizenship when he took his oath of allegiance to the Philippine Govern ment when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government." These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciou sness or arbitrariness or abuse.52

The Second Issue: Is Lack of Citizenship a Continuing Disqualification?

Lee contends that the May 1,1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17,1995, no restraining order having bee n issued by this Honorable Court."54 Hence, before Lee "was proclaimed as the elected governor on June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings (which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien hav e also become final and executory way before the 1995 elections, and these "judicial pronouncements of his political status as an A merican citizen absolutely and for all time disqualified (him) from running for, and holding any public office in the Philippines." We do not agree. It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connectio n with the 1988 elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is final and can no lo nger be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution:55 "The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any 'final judgment' of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission said in its Order of June 21, 1995 ( implemented on June 30, 1995 ), directing the proclamation of Raul R. Lee, was that Frivaldo was not a Filipino citizen 'having been declared by the Supreme Court in its Order dated March 25, 1995, not a citizen of the Philippines. ' This declaration of the Supreme Court, however, was in connection with the 1992 elections." Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. Th is is because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law for the purpose. Hence, in Lee vs. Commissioner of Immigration, 56 we held: "Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the corresponding court or administrative authority decides therein as to such citizenship is generally not considered res judicata, hence it has to be threshed out again and again, as the occasion demands." The Third Issue: Comelec's Jurisdiction Over The Petition in SPC No. 95-317 Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95 -317 because the only "possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6, 1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's "recourse was to file either an election protest or a quo warranto action." This argument is not meritorious. The Constitution 57 has given the Comelec ample power to "exercise exclusive original jurisdiction over all contests relating to the elections, returns and qualifications of all elective x x x provincial x x x officia ls." Instead of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice it to say that this Court has invariably recognized the Commission's authority to hear and decide petition s for annulment of proclamations of which SPC No. 95-317 obviously is one.58Thus, in Mentang vs. COMELEC,59 we ruled: "The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be entertained by the COMELEC after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule, however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed candidate's assumption of office cannot deprive th e COMELEC of the power to make such declaration of nullity. (citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)" The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the proclama tion." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons: First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will," and in Aquino vs. COMELEC,61 Lee is "a second placer, xxx just that, a second placer." In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as follows: "The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected." But such holding is qualified by the next paragraph, thus:

"But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated May 9,1992 denying due course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of this case." The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on election d ay as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he was. Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety", in other words, that the vote rs intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-governor and not Lee should be proclaimed, since in losing the election, Lee was, to paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo: "The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate r eceiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office." Second. As we have earlier declared Frivaldo to have seasonably re-acquired his citizenship and inasmuch as he obtained the highest number of votes in the 1995 elections, henot Lee should be proclaimed. Hence, Lee's proclamation was patently erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were rendered beyond the fifteen (15) day period prescribed by Section 78 of the Omnibus Election Code which reads as follows: "Section 78. Petition to deny due course or to cancel a certificate of candidacy. A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusive ly 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" (italics supplied.) This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996, which both upheld his election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and decide petitions for disqualifications even after the el ections, thus: "SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the -winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong." (Italics supplied)

Refutation of Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated Ma rch 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an existing law. The existence and subsiste nce of P.D. 725 were recognized in the first Frivaldo case; 64 viz, "(u)nder CA No. 63 as amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe rea cquired by xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Co urt abetted a "mockery" of our two previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous rulings. Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were issued "not later than fifteen days before the election" as pre scribed by Section 78. In dismissing the petition in G.R. No. 120295, we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is merely directory," we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-day period prescribed therein. The present case however deals with the period during which the Comelec may decide such petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there is no question that Frivald o was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That is settled. But his supervening repatriation has changed his political status not in 1988 or 1992, but only in the 1995 elections. Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying tha t "informal renunciation or abandonment is not a ground to lose American citizenship." Since our courts are charged only with the duty of the determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans . It is basic in international law that a State determines ONLY those who are its own citizens not who are the citizens of other countries. 65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is bi nding and final. The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be declared winner because "Frivaldo's ineligibility for being an American was publicly known." First, there is absolutely no empirical evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and after the 1995 elections. How then can there be such "public" knowledge? Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of elective local officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently. Section 39, par. (a) thereof speaks of "e lective local official" while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were intended to apply to "candidates" and not elected officials, the legislatu re would have said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that th e citizenship qualification should be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc. Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the law specificall y provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor. In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Lo cal Government Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non -retroactivity, were already taken up rather extensively earlier in this Decision. Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree we must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this case so it can be followed, so it can rule! At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to elections: literal or liberal; the letter or the spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice; in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying election laws, it would be far bett er to err in favor of popular sovereignty than to be right in complex but little understood legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.

EPILOGUE

In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No. 725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time, and Frivaldo's repatriation by virtue thereof to have been prop erly granted and thus valid and effective. Moreover, by reason of the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the pendency of which he was stateless, he having given ' up his U. S. nationality. Thus, in contemplation of law, he possessed the vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon is deemed to have been validated as of said d ate as well. The foregoing, of course, are precisely consistent with our holding that lack of the citizenship requirement is not a continuing disability or disqualifica tion to run for and hold public office. And once again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide petitions for annulment of proclamations. This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to t he manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign will. Consistently, we have held: "x x x (L)aws governing election contests must be liberally construed to the end that the will of the people in the ch oice of public officials may not be defeated by mere technical objections (citations omitted)." 67 The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of our democracy. I n any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to cause elective offices to be filled by those who a re the choice of the majority. To successfully challenge a winning candidate's qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonisti c68 to constitutional and legal principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would u ltimately create greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case, it would have been technically easy to find fault with his cause. The Court could have refused to grant r etroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he registered as a v oter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social e difice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating venerability in Philippine pol itical life. Concededly, he sought American citizenship only to escape the clutches of the dictatorsh ip. At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re -assume his nationality of birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming intention and burning desire to reembrace his native Philippines even now at the ripe old age of 81 years. Such lo yalty to and love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world. But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their overwhelming choice. WHEREFORE, in consideration of the foregoing: (1) The petition in G.R. No. 123755 is hereby DISMI SSED. The assailed Resolutions of the respondent Commission are AFFIRMED. (2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no merit. No costs. SO ORDERED. EN BANC

[G.R. No. 121592. July 5, 1996]

ROLANDO P. DELA TORRE, petitioner , vs. COMMISSION ON ELECTIONS and MARCIAL VILLANUEVA, respondents. RESOLUTION FRANCISCO, J. : Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the nullification of two resolutions issued by the Commission on Elections (COMELEC) allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95 -047, a case for disqualification filed against petitioner before the COMELEC. [1] The first assailed resolution dated May 6,1995 declared the petitioner disqualified from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the Local Government Code of 1991) [2] which provides as follows: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or mo re of imprisonment within two (2) years after serving sentence; (b) x x x xxx x x x.

In disqualifying the petitioner, the COMELEC held that: Documentary evidence x x x established that herein respondent (petitioner in this case) was found gui lty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated June 1,1990. Respondent appealed the said conviction with the Regional Trial Court x x x, which ho wever, affirmed respondents conviction in a Decision dated November 14,1990. Respondents conviction became final on January 18,1991. x x x xxx xxx

x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence involving violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the nature of the offense under P.D. 1612 wit h which respondent was convicted certainly involves moral turpitude x x x. [3] The second assailed resolution, dated August 28, 1995, denied petitioners moti on for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local Government Code does not apply to his case inasmuch as the probation granted him by the MTC on De cember 21, 1994 which

suspended the execution of the judgment of conviction and all other legal consequences flowing therefrom, rendered inapplicable Section 40 (a) as well.[4] The two (2) issues to be resolved are: 1. Whether or not the crime of fencing involves moral turpitude. 2. Whether or not a grant of probation affects Section 40 (a)s applicability. Particularly involved in the first issue is the first of two instances contemplated in Section 40 (a) when prior convi ction of a crime becomes a ground for disqualification - i, e., when the conviction by final judgment is for an offense involving moral turpitude. And in this connection, the Court has consistently adopted the definition in Blacks Law Dictionary of moral turpitude as: x x x an act of baseness, vileness, or depravity in the private duties which a man owes his fellowmen, or to society in gene ral, contrary to the accepted and customary rule of right and duty between man and woman or conduct contrary to j ustice, honesty, modesty, or good morals. [5] Not every criminal act, however, involves moral turpitude. It is for this reason that as to what crime involve s moral turpitude, is for the Supreme Court to determine.[6] In resolving the foregoing question, the Court is guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes mala prohibita do not[7], the rationale of which was set forth in Zari v. Flores,[8] to wit: It (moral turpitude) implies something immoral in itself, regardless of the fact that it is punishable by law or not. It must not be merely mala prohibita, but the act itself must be inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the moral turpitude. Moral turpitude does not, however, include such acts as are not of themselves immoral but whose illegality lies in their being po sitively prohibited.[9] This guideline nonetheless proved short of providing a clear -cut solution, for in International Rice Research Institute v. NLRC ,[10] the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. [11] The Court in this case shall nonetheless dispense with a review of the facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can likewise be achieved by analyzing the elements alone. Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as: a. x x x the act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft. [12] From the foregoing definition may be gleaned the elements of the crime of fencing which are: "1. A crime of robbery or theft has been committed; 2. The accused who is not a principal or accomplice in the crime of robbery or theft, buys, receives, possesses, keeps, acquires , conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which have been derived from the proceeds of the said crime; 3. The accused knows or should have known that the said article, item, object or anything of value has been derived from the pro ceeds of the crime of robbery or theft; and [Underscoring supplied.] 4. There is, on the part of the accused, intent to gain for himself or for another. [13] Moral turpitude is deducible from the third element. Actual knowledge by the fence of the fact that property received is stolen displays the same degree of malicious deprivation of ones rightful property as that which animated the robbery or theft which, by their very n ature, are crimes of moral turpitude. And although the participation of each felon in the unlawful taking differs in point in time and in degree, both the fence and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for gai n - thus deliberately reneging in the process private duties they owe their fellowmen or society in a manner contrary to x x x accepted and customary rule of right and duty x x x, justice, honesty x x x or good morals. The duty not to appropriate, or to return, anything acquired either by mistake or with malice is so basic it finds expression in some key provisions of th e Civil Code on Human Relations and Solutio Indebiti, to wit: Article 19. Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. Article 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same. Article 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public polic y shall compensate the latter for the damage. Article 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at the expense of the latter without just or legal ground, shall return the same to him.

Article 2154. If something is received when there is no right to demand it, and it was unduly delivered through mistake, the obligation to return it arises. The same underlying reason holds even if the fence did not have actual knowledge, but merely should have known the origin of the property received. In this regard, the Court held: When knowledge of the existence of a particular fact is an element of the offense, such knowledge is established if a person is awar e of the high probability of its existence unless he actually believes that it does not exist. On the other hand, the words should know denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in the performance of his duty to another or would govern his c onduct upon assumption that such fact exists.[14] [Italics supplied.] Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may h ave been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of s elling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that mere possession of any goods, x x x, object or anything of value which has b een the subject of robbery or thievery shall be prima facie evidence of fencing - a presumption that is, according to the Court, reasonable for no other natural or logical inference can arise from the established fact of x x x possession of the proceeds of the crime of robbery or theft. [15] All told, the COMELEC did not err in disqualifying the petitioner on the ground that the offense of fencing of which he had been previously convicted by final judgment was one involving moral turpitude. Anent the second issue where petitioner contends that his probation had the effect of suspending the applicability of Section 40 (a) of the Local Government Code, suffice it to say that the legal effect of probation is only to suspend the execution of the sentence. [16] Petitioners conviction of fencing which we have heretofore declared as a crime of moral turpitude and thus falling squarely under the disqualification found in Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality when the accused applies for probation, although it is not executory pending resolution of the application for probation. [17] Clearly then, petitioners theory has no merit. ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are AFFIRMED in toto. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Panganiban, and Torres, Jr., JJ., concur. Davide, Jr., Romero, Bellosillo, EN BANC Melo, Puno, Vitug, Kapunan, Mendoza, Hermosisima, Jr.,

[G.R. No. 148326. November 15, 2001]

PABLO C. VILLABER, petitioner, vs. COMMISSION ON ELECTIONS and REP. DOUGLAS R. CAGAS, respondents. DECISION SANDOVAL-GUTIERREZ, J.: In this petition for certiorari, Pablo C. Villaber, petitioner, seeks the nullification of two Resolutions of the Commission on Elections (COMELEC) in SPA-01-058. The first one was issued by its Second Division on April 30, 2001, disqualifying him as a candidate for the position of Congressman in the First District of the Province of Davao del Sur in the last May 14, 2001 elections, and cancelling his certificate of can didacy; and the second is the en banc Resolution dated May 10, 2001 denying his motion for reconsideration. Both petitioner Villaber and respondent Douglas R. Cagas were rival candidates for a congressional seat in the First District of Davao del Sur during the May 14, 2001 elections. Villaber filed his certificate of candidacy for Congressman on February 19, 2001, [1] while Cagas filed his on February 28, 2001.[2] On March 4, 2001, Cagas filed with the Office of the Provincial Election Supervisor, Commission On Elections (COMELEC), Davao del Sur, a consolidated petition[3] to disqualify Villaber and to cancel the latters certificate of candidacy. Cagas alleged in the said consolidated petition that on March 2, 1990, Villaber was convicted by the Regional Trial Court of Manila, Branch 15, in Criminal Case No. 86-46197 for violation of Batas Pambansa Blg. 22 and was sentenced to suffer one (1) year imprisonment. The check that bounced was in the sum of P100,000.00. [4] Cagas further alleged that this crime involves moral turpitude ; hence, under Section 12 of the Omnibus Election Code, he is disqualified to run for any public office. On appeal, the Court of Appeals (Tenth Division), in its Decision dated April 23, 1992 in CA -G.R. CR No. 09017,[5] affirmed the RTC Decision. Undaunted, Villaber filed with this Court a petition for review on certiorari assailing the Court of Appeals Decision, docketed as G.R. No. 106709. However, in its Resolution[6] of October 26, 1992, this Court (Third Division) dismissed the petition. On February 2, 1993, our Resolution became final and executory. [7] Cagas also asserted that Villaber made a false material representation in his certificate of candidacy that he is Eligible for the office I seek to be el ected which false statement is a ground to deny due course or cancel the said certificate pursuant to Section 78 of the Omnibus Election Code. In his answer[8] to the disqualification suit, Villaber countered mainly that his conviction has not become final and executory because the af firmed Decision was not remanded to the trial court for promulgation in his presence. [9] Furthermore, even if the judgment of conviction was already final and executory, it cannot be the basis for his disqualification since violation of B.P. Blg. 22 does not involve moral turpitude. After the opposing parties submitted their respective position papers, the case was forwarded to the COMELEC, Manila, for res olution.

On April 30, 2001, the COMELEC (Second Division), finding merit in Cagas petition, issued the challenged Resolution [10] in SPA 01-058 declaring Villaber disqualified as a candidate for and from holding any elective public office and canceling his certificate of candidacy. The COMELEC ruled that a conviction for violation of B.P Blg. 22 involves moral turpitude following the ruling of this Court en banc in the administrative case of People vs. Atty. Fe Tuanda .[11] Villaber filed a motion for reconsideration but was denied by the COMELEC en banc in a Resolution[12] dated May 10, 2001. Hence, this petition. The sole issue for our Resolution is whether or not violation of B.P. Blg. 22 involves moral turpitude . The COMELEC believes it is. In disqualifying petitioner Villaber from being a candidate for Congressman, the COMELEC applied Section 12 of the Omnibus Election Code which provides: Sec. 12. Disqualifications. - Any person who has been declared by competent authority insane or incompetent, or has been sentenced by final judgment for subversion, insurrection, rebellion, or for any offense for which he has been sentenced to a penalty of more than eightee n months, or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty. The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within t he same period he again becomes disqualified. (Emphasis ours) As to the meaning of moral turpitude, we have consistently adopted the definition in Blacks Law Dictionary as an act of baseness, vileness, or depravity in the private duties which a man owes his fellow men, or to society in general, contrary to the accepted and custo mary rule of right and duty between man and woman, or conduct contrary to justice, honesty, modesty, or good morals. [13] In In re Vinzon,[14] the term moral turpitude is considered as encompassing everything which is done contrary to justice, honesty, or good morals. We, however, clarified in Dela Torre vs. Commission on Elections[15] that not every criminal act involves moral turpitude, and that as to what crime involves moral turpitude is for the Supreme Court to determine. [16] We further pronounced therein that: in International Rice Research Institute vs. NLRC (221 SCRA 760 [1993]), the Court admitted that it cannot always be ascertained whether moral turpitude does or does not exist by merely classifying a crime as malum in se or as malum prohibitum. There are crimes which are mala in se and yet but rarely involve moral turpitude, and there are crimes which involve moral turpitude and are mala prohibita only. In the final analysis, whether or not a crime involves moral turpitude is ultimately a question of fact and frequently depends on all the circumstan ces surrounding the violation of the statute. (Emphasis ours) We reiterate here our ruling in Dela Torre[17] that the determination of whether a crime involves moral turpitude is a question of fact and frequently depends on all the circumstances surrounding the violation of the statute. In the case at bar, petitioner does not assail the facts and circumstances surrounding the commission of the crime. In effect, he admits all the elements of the crime for which he was convicted. At any rate, the question of whether or not the crime involves moral turpitude can be resolved by analyzing its elements alone, as we did in Dela Torre which involves the crime of fencing punishable by a special law. [18] Petitioner was charged for violating B.P. Blg. 22 under the following Information: That on or about February 13, 1986, in the City of Manila, Philippines, the said accused did then and there willfully, unlaw fully and feloniously make or draw and issue to Efren D. Sawal to apply on account or for value Bank of Philippine Islands (Plaza Cervantes, Manila) Check No. 958214 dated February 13, 1986 payable to Efren D. Sawal in the amount of P100,000.00, said accused well knowing that at the time of issue he did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment, which check, when presented for payment within ninety (90) days from the date thereof, was subsequently dishonored by the drawee bank for insufficiency of funds, and despite receipt of notice of such dishonor, said accused failed to pay said Efren D. Sawal the am ount of said check or to make arrangement for full payment of the same within five (5) b anking days after receiving said notice . (Emphasis ours) He was convicted for violating Section 1 of B.P. Blg. 22 which provides: SECTION 1. Checks without sufficient funds. - Any person who makes or draws and issues any check to apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment, shall be punished by imprisonment of not less than thirty days but not more than one (1) year or by a fine of not less than but not more than double the amount of the check which fine shall in no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of the court. (Emphasis ours). The elements of the offense under the above provision are: 1. The accused makes, draws or issues any check to apply to account or for value; 2. The accused knows at the time of the issuance that he or she does not have sufficient funds in, or credit with, the drawee bank for the payment of the check in full upon its presentment ; and 3. The check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or it would have been dishon ored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.[19]

The presence of the second element manifests moral turpitude. In People vs. Atty. Fe Tuanda [20] we held that a conviction for violation of B.P. Blg. 22 imports deceit and certainly relates to and affects the good moral character of a person. [21] The effects of the issuance of a worthless check, as we held in the landmark case of Lozano vs. Martinez,[22] through Justice Pedro L. Yap, transcends the private interests of the parties directly involved in the transaction and touches the interests of the community at large. The mischief it creates is not only a wrong to the payee or holder, but also an injury to the public since the circulation of valueless commercial papers can very well pollute the channels of trade and commerce, i njure the banking system and eventually hurt the welfare of society and the public interest. [23] Thus, paraphrasing Blacks definition, a drawer who issues an unfunded check deliberately reneges on his private duties he owes his fellow men or society in a manner contrary to accepted and customary rule of right and duty, justice, honesty or good morals. Petitioner contends that this Courts pronouncement in People v. Atty. Fe Tuanda ,[24] insofar as it states that conviction under B.P. Blg. 22 involves moral turpitude, does not apply to him since he is not a lawyer. This argument is erroneous. In that case, the Court of Appeals affirmed Atty. Fe Tuandas conviction for violation of B.P. Blg. 22 and, in addition, suspended her from the practice of law pursuant to Sections 27 and 28 of Rule 138 of the Revised Rules of Court. Her motion seeking the lifting of her suspension was denied by this Court on the ground that the said offense involves moral turpitude. There we said in part: We should add that the crimes of which respondent was convicted also import deceit and violation of her attorneys oath and the Code of Professional Responsibility, under both of which she was bound to obey the laws of the land. Conviction of a crime involving moral turpitude might not (as in the instant case, violation of B.P. Blg. 22 does not) relate to the exercise of the profession of a lawyer; however, it certainly relates to and affects the good moral characte r of a person convicted of such offense . x x x. [25] (Emphasis ours) Clearly, in Tuanda, this Court did not make a distinction whether the offender is a lawyer or a non-lawyer. Nor did it declare that such offense constitutes moral turpitude when committed by a member of the Bar but is not so when committed by a non -member. We cannot go along with petitioners contention that this Courts ruling in Tuanda has been abandoned or modified in the recent case of Rosa Lim vs. People of the Philippines, [26] which reiterated the ruling in Vaca vs. Court of Appeals. [27] In these two latter cases, the penalty of imprisonment imposed on the accused for violation of B.P. Blg. 22 was deleted by this Court. Only a fine was imposed. Petitioner insists that with the deletion of the prison sentence, the offense no longer involves moral turpitude. We made no such pronouncement. This is what we said in Rosa Lim: In Vaca v. Court of Appeals, we held that in determining the penalty to be imposed for violation of B.P. Blg. 22, the philosophy underlying the Indeterminate Sentence Law applies. The philosophy is to redeem valuable human material, and to prevent unnecessary deprivation of personal liberty and economic usefulness with due regard to the protection of the social order. There we deleted the prison sentence imposed on petitioners. We imposed on them only a fine double the amount of the check issued. We considered the fact that petitioners brought the appeal, believing in good faith, that no violation of B.P. Blg. 22 was committed, otherwise, they would have simply accepted the judgment of the trial court and applied for probation to evade prison term. We do the same here. We believe such would best serve the ends of crim inal justice. In fine, we find no grave abuse of discretion committed by respondent COMELEC in issuing the assailed Resolutions. WHEREFORE, the petition is DISMISSED. Costs against petitioner. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Buena, Ynares-Santiago, and De Leon, Jr., JJ., concur. Carpio, J., no part. EN BANC URBANO M. MORENO, Petitioner, G.R. No. 168550 Present: PANGANIBAN, C.J., PUNO, QUISUMBING, YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, GARCIA, and VELASCO, J., JJ. Promulgated: August 10, 2006 x------------------------------------------------------------------------------------ x DECISION

- versus -

COMMISSION ON ELECTIONS and NORMA L. MEJES, Respondents.

TINGA, J.: In this Petition [1] dated July 6, 2005, Urbano M. Moreno (Moreno) assails the Resolution [2] of the Commission on Elections (Comelec) en banc dated June 1, 2005, affirming the Resolution [3] of the Comelec First Division dated November 15, 2002 which, in turn, disqualified him from running for the elective office of Punong Barangay ofBarangay Cabugao, Daram, Samar in the July 15, 2002

Synchronized Barangay and Sangguniang Kabataan Elections. The following are the undisputed facts: Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from running for Punong Barangay on the ground that the latter was convicted by final judgment of the crime of Arbitrary Detention and was sentenced to suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Years and Four (4) Months by the Regional Trial Court, Branch 28 of Catbalogan, Samar on August 27, 1998. Moreno filed an answer averring that the petition states no cause of action because he was already granted probation. Allegedly, following the case of Baclayon v. Mutia,[4]the imposition of the sentence of imprisonment, as well as the accessory penalties, was thereby suspended. Moreno also argued that under Sec. 16 of the Probation Law of 1976 (Probation Law), the final discharge of the probation shall operate to restore to him all civil rights lost or suspended as a result of his conviction and to fully discharge his liability for any fine imposed. The order of the trial court dated December 18, 2000 allegedly terminated his probation and restored to him all the civil rights he lost as a result of his conviction, including the right to vote and be voted for in the July 15, 2002 elections.

The case was forwarded to the Office of the Provincial Election Supervisor of Samar for preliminary hearing. After due proceedings, the Investigating Officer recommended that Moreno be disqualified from running for Punong Barangay. The Comelec First Division adopted this recommendation. On motion for reconsideration filed with the Comelec en banc, the

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

Further, the Comelec en banc held that the provisions of the Local Government Code take precedence over the case of Baclayon v. Mutia cited by Moreno and the Probation Law because it is a much later enactment and a special law setting forth the qualifications and disqualifications of elective local officials. In this petition, Moreno argues that the disqualification under the Local Government Code applies only to those who have served their sentence and not to probationers because the latter do not serve the adjudged sentence. The Probation Law should allegedly be read as an exception to the Local Government Code because it is a special law which applies only to probationers. Further, even assuming that he is disqualified, his subsequent election as Punong Barangay allegedly constitutes an implied pardon of his previous misconduct. In its Comment[6] dated November 18, 2005 on behalf of the Comelec, the Office of the Solicitor General argues that this Court in Dela Torre v. Comelec[7] definitively settled a similar controversy by ruling that conviction for an offense involving moral turpitude stands even if the candidate was granted probation. The disqualification under Sec. 40(a) of the Local Government Code subsists and remains tota lly unaffected notwithstanding the grant of probation. Moreno filed a Reply to Comment [8] dated March 27, 2006, reiterating his arguments and pointing out material differences between his case and Dela Torre v. Comelecwhich allegedly warrant a conclusion favorable to him. According to Moreno, Dela Torre v. Comelec involves a conviction for violation of the Anti-Fencing Law, an offense involving moral turpitude covered by the first part of Sec. 40(a) of the Local Government Code. Dela Torre, the petitioner in that case, applied for probation nearly four (4) years after his conviction and only after appealing his co nviction, such that he could not have been eligible for probation under the law.

In contrast, Moreno alleges that he applied for and was granted probation within the period specified therefor. He never served a day of his sentence as a result. Hence, the disqualification under Sec. 40(a) of the Local Government Code does not apply to him. The resolution of the present controversy depends on the application of the phrase within two (2) years after serving senten ce found in Sec. 40(a) of the Local Government Code, which reads: Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position: (a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of imprisonment, within two (2) years after serving sentence ; [Emphasis supplied.] . . . .

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

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pronouncement therein that the grant of probation does not affect the disqualification under Sec. 40(a) of the Local Government Code was based primarily on the finding that the crime of fencing o f which petitioner was convicted involves moral turpitude, a circumstance which does not obtain in this case. At any rate, the phrase within two (2) years after serving sentence should have been interpreted and understood to apply both to those who have been sentenced by final judgment for an offense involving moral turpitude and to those who have been sentenced by final judgment for an offense punishable by one (1) year or more of imprisonment. The pla cing of the comma (,) in the provision means that the phrase modifies both parts of Sec. 40(a) of the Local Government Code. The Courts declaration on the effect of probation on Sec. 40(a) of the Local Government Code, we should add, ought to be con sidered an obiter in view of the fact thatDela Torre was not even entitled to probation because he appealed his conviction to the Regional Trial Court which, however, affirmed his conviction. It has been held that the perfection of an appeal is a relinquishment of the alternative remedy of availing of the Probation Law, the purpose of which is to prevent speculation or opportunism on the part of an accused who, although already eligible, did not at once apply for probation, but did so only after failing in his appeal. [9] Sec. 40(a) of the Local Government Code appears innocuous enough at first glance. The phrase service of sentence, understood in its general and common sense, means the confinement of a convicted

person in a penal facility for the period adjudged by the court. [10] This seemingly clear and unambiguous provision, however, has spawned a controversy worthy of this Courts attention because the Comelec, in the assailed resolutions, is alleged to have broadened the coverage of the law to include even those who did not serve a day of their sentence because they were granted probation. Moreno argues, quite persuasively, that he should not have been disqualified because he did not serve the adjudged sentence having b een granted probation and finally discharged by the trial court. In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not a sentence but is rather, in effect, a suspension of the imposition of sentence. We held that the grant of probation to petitioner suspended the imposition of the principal penalty of imprisonment, as well as the accessory penalties of suspension from public office and from the right to follow a profession or calling, and that of perpetual spec ial disqualification from the right of suffrage. We thus deleted from the order granting probation the paragraph which required that petitioner refrain from continuing with her teaching profession.

Applying this doctrine to the instant case, the accessory penalties of suspension from public office, from the right to follo w a profession or calling, and that of perpetual special disqualification from the right of suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional in its minimum period [11] imposed uponMoreno were similarly suspended upon the grant of probation.

It appears then that during the period of probation, the probationer is not even disqualified from running for a public offic e because the accessory penalty of suspension from public office is put on hold for the duration of the probation. Clearly, the period within which a person is under probation cannot be equated with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides that the grant of probation suspends the execution of the sentence. During the period of probation, [12] the probationer does not serve the penalty imposed upon him by the court but is merely required to comply with all the conditions prescribed in the probation order. [13] It is regrettable that the Comelec and the OSG have misapprehended the real issue in this case. They focused on the fact that Morenos judgment of conviction attained finality upon his application for probation instead of the question of whether his sentence h ad been served. The Comelec could have correctly resolved this case by simply applying the law to the letter. Sec. 40(a) of the Local Government Code unequivocally disqualifies only those who have been sentenced by final judgment for an offense punishable by imprisonment of one (1) year or more, within two (2) years after serving sentence. This is as good a time as any to clarify that those who have not served their sentence by reason of the grant of probation wh ich, we reiterate, should not be equated with service of sentence, should not likewise be disqualified from running for a local elective office because the two (2) -year period of ineligibility under Sec. 40(a) of the Local Government Code does not even begin to run. The fact that the trial court already issued an order finally discharging Moreno fortifies his position. Sec. 16 of the Probation Law provides that [t]he final discharge of the probationer shall operate to restore to him all civil rights lost or suspended as a result of h is conviction and to fully discharge his liability for any fine imposed as to the offense for which probation was granted. Thus, when Moreno was finally discharged upon the courts finding that he has fulfilled the terms and conditions of his probation, his case was dee med terminated and all civil rights lost or suspended as a result of his conviction were restored to him, including the right to run for public office.

Even assuming that there is an ambiguity in Sec. 40(a) of the Local Government Code which gives room for judicial interpretation,[14] our conclusion will remain the same. It is unfortunate that the deliberations on the Local Government Co de afford us no clue as to the intended meaning of the phrase service of sentence, i.e., whether the legislature also meant to disqualify those who have been granted probation. The Courts function, in the face of this seeming dissonance, is to interpret and harmonize the Probation Law and the Local Government

Code. Interpretare et concordare legis legibus est optimus interpretandi. Probation is not a right of an accused but a mere privilege, an act of grace and clemency or immunity conferred by the state, which is granted to a deserving defendant who thereby escapes the extreme rigors of the penalty imposed by law for the offense of which he was convicted.[15] Thus, the

Probation Law lays out rather stringent standards regarding who are qualified for probation. For instance, it provides that the benefits of probation shall not be extended to those sentenced to serve a maximum term of imprisonment of more than six (6) years; convicted of any offense against the security of the State; those who have previously been convicted by final judgment of an offense punished by imprisonment of not less than one (1) month and one (1) day and/or a fine of not less than P200.00; those who have been once on probation; and those who are already serving sentence at the time the substantive provisions of the Probation Law became applicable. [16] It is important to note that the disqualification under Sec. 40(a) of the Local Government Code covers offenses punishable by one (1) year or more of imprisonment, a penalty which also covers probationable offenses. In spite of this, the provision does not specifically disqualify probationers from running for a local elective office. This omission is significant because it offers a glimpse into the legislative intent to treat probationers as a distinct class of offenders not covered by the disqualification.

Further,

it should

be

mentioned that the present Local Government Code

was enacted in 1991, some seven (7) years

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

On this score, we agree with Moreno that the Probation Law should be construed as an exception to the Local Government Code. While the Local Government Code is a later law which sets forth the qualifications and disqualifications of local elective officials, the Pro bation Law is a special legislation which applies only to probationers. It is a canon of statutory construction that a later statute, general in its terms and not expressly repealing a prior special statute, will ordinarily not affect the special provisions of such earlier statute. [17] In construing Sec. 40(a) of the Local Government Code in a way that broadens the scope of the disqualification to include Moreno, the Comelec committed an egregious error which we here correct. We rule that Moreno was not disqualified to run

for Punong Barangay of Barangay Cabugao, Daram, Samar in the July 15, 2002 SynchronizedBarangay and Sangguniang Kabataan Elections. Finally, we note that Moreno was the incumbent Punong Barangay at the time of his conviction of the crime of Arbitrary Detention. He claims to have obtained a fresh mandate from the people of Barangay Cabugao, Daram, Samar in the July 15, 2002 elections. This situation calls to mind the poignant words of Mr. Justice now Chief JusticeArtemio Panganiban in Frivaldo v. Comelec[18] where he said that it would be far better to err in favor of popular sovereignty than to be right in complex but little understo od legalisms.

WHEREFORE, the petition is GRANTED. The Resolution of the Commission on Elections en banc dated June 1, 2005 and the Resolution of its First Division dated November 15, 2002, as well as all other actions and orders issued pursuant thereto, are ANNULLED and SET ASIDE. The Commission on Elections is directed to proceed in accordance with this Decision. No pronouncement as to costs. SO ORDERED.

DANTE O. TINGA Associate Justice

WE CONCUR: ARTEMIO V. PANGANIBAN Chief Justice

REYNATO S. PUNO Associate Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice

ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

CANCIO C. GARCIA Associate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

CERTIFICATION

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

ARTEMIO V. PANGANIBAN Chief Justice

EN BANC

[G.R. No. 135083. May 26, 1999]

ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents. DECISION MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza III. The results of the election were as follows: Eduardo B. Manzano Ernesto S. Mercado Gabriel V. Daza III 103,853 100,894 54,275[1]

The proclamation of private respondent was suspended in view of a pending petition for disqualification filed by a certain Er nesto Mamaril who alleged that private respondent was not a citizen of the Philippines but of the United States. In its resolution, dated May 7, 1998, [2] the Second Division of the COMELEC granted the petition of Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the ground that he is a dual citizen and, under 40(d) of the Local Government Code, persons with dual citizenship are disqualified from running for any elective position. The COMELECs Second Division said: What is presented before the Commission is a petition for disqualification of Eduardo Barrios Manzano as candidate for the of fice of Vice-Mayor of Makati City in the May 11, 1998 elections. The petition is based on the ground that the respondent is an American citizen based on the record of the Bureau of Immigration and misrepresented himself as a natural-born Filipino citizen. In his answer to the petition filed on April 27, 1998, the respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and alleged that he is a Filipino citizen because he was born in 1955 of a Filipino fathe r and a Filipino mother. He was born in the United States, San Francisco, California, on September 14, 1955, and is considered an American citizen und er US Laws. But notwithstanding his registration as an American citizen, he did not lose his Filipino citizenship. Judging from the foregoing facts, it would appear that respondent Manzano is both a Filipino and a US citizen. In other words, he holds dual citizenship. The question presented is whether under our laws, he is disqualified from the position for which he filed his certificate of candidacy. Is he eligible for the office he seeks to be elected? Under Section 40(d) of the Local Government Code, those holding dual citizenship are disqualified from running for any elective local position. WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice -Mayor of Makati City. On May 8, 1998, private respondent filed a motion for reconsideration. [3] The motion remained pending even until after the election held on May 11, 1998. Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the board of canvassers tabulated t he votes cast for vice mayor of Makati City but suspended the proclamation of the winner. On May 19, 1998, petitioner sought to intervene in the case for disqualification. [4] Petitioners motion was opposed by private respondent. The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the ruling of its Second Division and declared private respondent qualified to run for vice mayor of the City of Makati in the May 11, 1998 elections. [5] The pertinent portions of the resolution of the COMELEC en banc read: As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US citizenship by operation of the United States Constitution and laws under the principle of jus soli. He was also a natural born Filipino citizen by operation of the 1935 Philippine Constitution, as his father and mother were F ilipinos at the time of his birth. At the age of six (6), his parents brought him to the Philippines using an American passport as travel document. His parents also registered him as an alien with the Philippine Bureau of Immigration. He was issued an alien certificate of registration. This, however, did not result in the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not take an oath of allegiance to the United States. It is an undisputed fact that when respondent attained the age of majority, he registered himself as a voter, and voted in th e elections of 1992, 1995 and 1998, which effectively renounced his US citizenship under American law. Under Philippine law, he no longer had U.S. citizenship. At the time of the May 11, 1998 elections, the resolution of the Second Division, adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the highest number of votes among the candidates for vice -mayor of Makati City, garnering one hundred three thousand eight hundred fifty three (103,853) votes over his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two hundred seventy five (54,275) votes. In applying election laws, it would be far better to err in favor of the popular choice than be embroiled in complex legal issues involving private international law which may well be settled before the highest court (Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727). WHEREFORE, the Commission en banc hereby REVERSES the resolution of the Second Division, adopted on May 7, 1998, ordering the cancellation of the respondents certificate of candidacy. We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections. ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati. This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City. Petitioner contends that [T]he COMELEC en banc ERRED in holding that: A. Under Philippine law, Manzano was no longer a U.S. citizen when he: 1. 2. He renounced his U.S. citizenship when he attained the age of majority when he was already 37 years old; and, He renounced his U.S. citizenship when he (merely) registered himself as a voter and voted in the elections of 1992, 1995 and 1998.

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

I. PETITIONER'S RIGHT T O BRING T HIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot bring this suit to set aside the ruling denying his motion for intervention: Section 1. When proper and when may be permitted to intervene. Any person allowed to initiate an action or proceeding may, before or during the trial of an action or proceeding, be permitted by the Commission, in its discretion to intervene in such action or proceeding, if he has legal interest in the matter in litigation, or in the success of either of the parties, or an interest against both, or when he is so situated as to be adversely affected by such action or proceeding. .... Section 3. Discretion of Commission . In allowing or disallowing a motion for intervention, the Commission or the Division, in the exercise of its discretion, shall consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights of t he original parties and whether or not the intervenors rights may be fully protected in a separate action or proceeding. Private respondent argues that petitioner has neither legal interest in the matter in litigation nor an interest to protect b ecause he is a defeated candidate for the vice-mayoralty post of Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City even if the private respondent be ultimately disqualified by final and executory judgment. The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the proce edings before the COMELEC, there had already been a proclamation of the results of the election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only second to private respondent. The fact, however, is that there had been no proclamation at that time. Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the time he sought to intervene. The rule in Labo v. COMELEC, [6] reiterated in several cases,[7] only applies to cases in which the election of the respondent is contested, and the question is whether one who placed second to the disqualified candidate may be declared the winner. In the present case, at the time petitioner filed a Motion for Leave to File Intervention on May 20, 1998, there had been n o proclamation of the winner, and petitioners purpose was precisely to have private respondent disqualified from running for [an] elective local position under 40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of Makati City, was competent to bring the action, so was petitioner since the latter was a rival candidate for vice mayor of Makati City. Nor is petitioners interest in the matter in litigation any less because he filed a motion for intervention onl y on May 20, 1998, after private respondent had been shown to have garnered the highest number of votes among the candidates for vice mayor. That petitioner had a right to intervene at that stage of the proceedings for the disqualification against private respondent is clear from 6 of R.A. No. 6646, otherwise known as the Electoral Reforms Law of 1987, which provides: Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him s hall 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 receiv es the winning number of votes in such election, the Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong. Under this provision, intervention may be allowed in proceedings for disqualification even after election if there has yet been no final judgment rendered. The failure of the COMELEC en banc to resolve petitioners motion for intervention was tantamount to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the COMELEC en banc instead decided the merits of the case, the present petition properly deals not only

with the denial of petitioners motion for intervention but also with the substantive issues respecting private respondents alleged disqualification on the ground of dual citizenship. This brings us to the next question, namely, whether private respondent Manzano possesses dual citizenship and, if so, whethe r he is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CIT IZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under 40 of the Local Government Code of 1991 (R.A. No. 7 160), which declares as disqualified from running for any elective local position: . . . (d) Those with dual citizenship. This provision is incorporated in the Charter of the City of Makati.[8] Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him in this case, contends that through 40(d) of the Local Government Code, Congress has command[ed] in explicit terms the ineligibility of persons posse ssing dual allegiance to hold local elective office. To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result of the concurrent application of the different laws of two or more states, a person is simultaneously considered a national by the said states. [9] For instance, such a situation may arise when a person whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the following classes of citizens of the Philippines to possess dual citizenship: (1) Those born of Filipino fathers and/or mothers in foreign countries which follow the principle of jus soli; (2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of their fathers country such children are citizens of that country; (3) Those who marry aliens if by the laws of the latters country the former are considered citizens, unless by their ac t or omission they are deemed to have renounced Philippine citizenship. There may be other situations in which a citizen of the Philippines may, without performing any act, be also a citizen of ano ther state; but the above cases are clearly possible given the constitutional provisions on citizenship. Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by some positive act, loya lty to two or more states. While dual citizenship is involuntary, dual allegiance is the result of an individuals volition. With respect to dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical to the national interest and shall be dealt with by law. This provision was included in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity as follows:[10] . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I have circulated a memorandum to the Bernas Committee according to which a dual allegiance and I reiterate a dual allegiance is larger and more threatening than that of mere double citizenship which is seldom intentional and, perhaps, never insidious. That is often a function of the accident of mixed marriages or of birth on foreign soil. And so, I do not question double citizenship at all. What we would like the Committee to consider is to take constitutional cog nizance of the problem of dual allegiance. For example, we all know what happens in the triennial elections of the Federation of Filipino-Chinese Chambers of Commerce which consists of about 600 chapters all over the country. There is a Peking ticket, as well as a Taipei ticket. Not widely known is the fact that the Filipino-Chinese community is represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the Peoples Republic of China, they have the Associated Legislative Council for overseas Chinese wherein all of Southeast Asia including some European and L atin countries were represented, which was dissolved after several years because of diplomatic friction. At that time, the Filipino-Chinese were also represented in that Overseas Council. When I speak of double allegiance, therefore, I speak of this unsettled kind of allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts, may be said to be bound by a second allegiance, either to Peking or Taiwan. I also took close note of the concern expressed by some Commissioners yesterday, including Commissioner Villacorta, who were concerned about the lack of guarantees of thorough assim ilation, and especially Commissioner Concepcion who has always been worried about minority claims on our natural resources. Dual allegiance can actually siphon scarce national capital to Taiwan, Singapore, China or Malaysia, and this is already happ ening. Some of the great commercial places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese it is of common knowledge in Manila. It can mean a tragic capital outflow when we have to endure a capital famine which also means economic stagnation, worsening unemployment and soci al unrest. And so, this is exactly what we ask that the Committee kindly consider incorporating a new section, probably Section 5, in the article on Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW. In another session of the Commission, Ople spoke on the problem of these citizens with dual allegiance, thus: [11] . . . A significant number of Commissioners expressed their concern about dual citizenship in the sense that it implies a double allegiance under a double sovereignty which some of us who spoke then in a freewheeling debate thought would be repugnant to the sovereignty which perv ades the Constitution and to citizenship itself which implies a uniqueness and which elsewhere in the Constitution is defined in terms of rights and obligations exclusive to that citizenship including, of course, the obligation to rise to the defense of the State when it is threatened, and back of this, Commissioner Bernas, is, of course, the concern for national security. In the course of those debates, I think some noted the fact that as a result of the wave of naturalizations since the decision to establish diplomatic relations with the Peoples Republic of China was mad e in 1975, a good number of these naturalized Filipinos still

routinely go to Taipei every October 10; and it is asserted that some of them do renew their oath of allegiance to a foreign government maybe just to enter into the spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is commemorated. And so, I have detected a genuine and deep concern about double citizenship, with its attendant risk of double allegiance which is repugnant to our sovereignty and national sec urity. I appreciate what the Committee said that this could be left to the determination of a future legislature. But considering the scale of the problem, the real impact on the security of this country, arising from, let us say, potentially great numbers of double citize ns professing double allegiance, will the Committee entertain a proposed amendment at the proper time that will prohibit, in effect, or regulate double citizenship? Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional Co mmission was not with dual citizens per se but with naturalized citizens who maintain their allegiance to their countries of origin even after their naturalization. Hence, the phrase dual citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 mu st be understood as referring to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those with dual allegiance, who must, therefore, be subject to strict process with respect to the termination of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional Commission, pointed out: [D]ual citizenship i s just a reality imposed on us because we have no control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But whether or not she is considered a citizen of another country is something completely beyond our control. [12] By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other country of which they a re also citizens and thereby terminate their status as dual citizens. It may be that, from the point of view of the foreign state and of its laws, such an individual has not effectively renounced his foreign citizenship. That is of no moment as the following discussion on 40(d) between Senators Enrile and Pimentel clearly shows:[13] SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page 17: Any person with dual citizenship is d isqualified to run for any elective local position. Under the present Constitution, Mr. President, someone whose mother is a citizen of the Philippines but his father is a foreigner is a natural-born citizen of the Republic. There is no requirement that such a natural born citizen, upon reaching the age of majority, must elect or give up Philippine citizenship. On the assumption that this person would carry two passports, one belonging to the country of his or her father and one belon ging to the Republic of the Philippines, may such a situation disqualify the person to run for a local government position? SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment when he would want to run for public office, he has to repudiate one of his citizenships. SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of origin or the country of the father claims that person, nevertheless, as a citizen? No one can renounce. There are such countries in the world. SENATOR PIMENTEL. Well, the very fact that he is running for public office would, in effect, be an election for him of his desire to be considered as a Filipino citizen. SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require an election. Under the Constitution, a person whose mother is a citizen of the Philippines is, at birth, a citizen without any overt act to claim the citizenship. SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the Gentlemans example, if he does not renounce his other citizensh ip, then he is opening himself to question. So, if he is really interested to run, the first thing he should do is to say in the Certificate of Candidacy that: I am a Filipino citizen, and I have only one citizenship. SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr. President. He will always have one citizenship, and that is the citizenship invested upon him or her in the Constitution of the Republic. SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will prove that he also acknowledges other citizenships, then he will probably fall under this disqualification. This is similar to the requirement that an applicant for naturalization must renounce all allegiance and fidelity to any for eign prince, potentate, state, or sovereignty[14] of which at the time he is a subject or citizen before he can be issued a certificate of naturalization as a citizen of t he Philippines. In Parado v. Republic,[15] it was held: [W]hen a person applying for citizenship by naturalization takes an oath that he renounces his loyalty to any other country or government and solemnly declares that he owes his allegiance to the Republic of the Philippines, the condition imposed by law is satisfied and complied with. The determination whether such renunciation is valid or fully complies with the provisions of our Naturalization Law lies within the province and is an exclusive prerogative of our courts. The latter should apply the law duly enacted by the legislative department of the Republic. No foreign law may or should interfere with its operation and application. If the requirement of the Chinese Law of Nationality were to be read into our Naturalization Law, we would be applying not what our legislative department has deemed it wise to require, but what a foreign government has thought or intended to exact. That, of course, is absurd. It must be resisted by all means and at all cost. It would be a brazen encroachment upon the sovereign will and power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHI P

The record shows that private respondent was born in San Francisco, California on September 4, 1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a national both of the Philippines and of the United States. However, the COMELEC en banc held that, by participating in Philippine elections in 1992, 1995, and 1998, private respondent effectively renounced his U.S. citizenship under American law, so that now he is solely a Philippine national. Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made when private respondent was already 37 years old, it was ineffective as it should have been mad e when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American citizenship, the COMELEC must have in mind 349 of the Immigration and Nationality Act of the United States, which provided that A person who is a national of the United State s, whether by birth or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or participating in an election or plebiscite to determine the sovereignty over foreign territory. To be sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk[16] as beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a certificate of candidacy when he ran for his present post, private respondent elected Philippine citizenship and in effect renounced his American citizenship. Private respondents certificate of candidacy, filed on March 27, 1998, contained the following statements made under oath: 6. I AM A FILIPINO CITIZEN ( STATE IF NATURAL- BORN OR NATURALIZED) .... 10. 11. 12. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR . I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN COUNTRY. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL KNOWLEDGE. NATURAL-BORN

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively removing any disqualif ication he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was held: [17] It is not disputed that on January 20, 1983 Frivaldo became an American. Would the retroactivity of his repatriation not effectively give him dual citize nship, which under Sec. 40 of the Local Government Code would disqualify him from running for any elective local position? We answer this question in the negative, as there is cogent reason to hold that Frivaldo was really STATELESS at the time he took said oath of allegiance and even before that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he had long renounced and had long abandoned his American citizenship long before May 8, 1995. At best, Frivaldo was stateless in the interim when he abandoned and renounced his US citizenship but before he was repatriated to his Filipino citizenship. On this point, we quote from the assailed Resolution dated December 19, 1995: By the laws of the United States, petitioner Frivaldo lost h is American citizenship when he took his oath of allegiance to the Philippine Government when he ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath of allegiance to the Philippine Government. These factual findings that Frivaldo has lost his foreign nationality long before the elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic that such findings of the Commission are conclusive upon this Court, absent any showing of capriciou sness or arbitrariness or abuse. There is, therefore, no merit in petitioners contention that the oath of allegiance contained in private respondents certif icate of candidacy is insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioners contention that, to be effective, such renunciation should have been made upon private respondent reaching the age of majority since no law requires the election of Philippine citizenship to be made upon majority age. Finally, much is made of the fact that private respondent admitted that he is registered as an American citizen in the Bureau of Im migration and Deportation and that he holds an American passport which he used in his last travel to the United States on April 22, 1997. There is no merit in this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The acts attributed to him can be considered simply as the assertion of his American nationality before the termination of his American citizenship. What this Court said in Aznar v. COMELEC[18] applies mutatis mutandis to private respondent in the case at bar: . . . Considering the fact that admittedly Osmea was both a Filipino and an American, the mere fact that he has a Certificate stating he is an American does not mean that he is not still a Filipino. . . . [T]he Certification that he is an American does not mean that he is not still a Filipino, possessed as he is, of both nationalities or citizenships. Indeed, there is no express renunciation here of Philippine citizenship; truth to tell, there is even no implied renunciation of said citizenship. When We consider that the renu nciation needed to lose Philippine citizenship must be express, it stands to reason that there can be no such loss of Philippine citizenship when there is no renunciation, either express or implied . To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a permanent resident or immigrant of another country; that he will defend and support the Constitution of the Philippines and bear true faith and allegiance thereto and t hat he does so without mental reservation, private respondent has, as far as the laws of this country are concerned, effectively repudiated his American citizenship and anything which he may have said before as a dual citizen. On the other hand, private respondents oath of allegiance to the Philippines, when considered with the fact that he has spent his youth and adulthood, received his education, practiced his profession as an artist, and taken part in past elections in this country, leaves no doubt of his election of Philippine citizenship. His declarations will be taken upon the faith that he will fulfill his undertaking made under oath. Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago,[19] we sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in commercial documents executed abroad that he was a Portuguese national. A similar sanction can be taken against any one who, in electing Philippine citizenship, renou nces his foreign nationality, but subsequently does some act constituting renunciation of his Philippine citizenship. WHEREFORE, the petition for certiorari is DISMISSED for lack of merit.

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

[G.R. No. 130831. February 10, 1998]

ROBERTO D. RAMAS, Francisco N. ORAIZ, JR., BENERANDO F. MIRANDA, GEORGE V. BATERNA, TOMAS R. LACIERDA, SR., and PEDRO T. CALIMOT, JR., petitioners, vs. COMMISSION ON ELECTIONS, RAUL F. FAMOR, PONCIANO P. CAJETA, MERLYN U. RABE, CRESENCIA C. BOISER, EDGAR S. REVELO, and JULIETO B. MABASCOG, respondents. DECISION DAVIDE, JR., J.: The petitioners urge us in this special civil action for certiorari[1] under Rule 65 of the Rules of Court to set aside the 23 September 1997 Resolution [2] of public respondent Commission on Elections (hereafter COMELEC) in SPR No. 14-96,[3] which denied herein petitioners petition for certiorari and prohibition to set aside and annul the order of Branch 29 of the Regional Trial Court (RTC) of Pagadian City in Election Protest Cases Nos. 07-95 to 12-95, inclusive, granting execution pending appeal of the judgment therein. The petitioners and the private respondents were the official candidates of the Nationalist Peoples Coalition (NPC) and the Lakas-NUCD, respectively, for the elective municipal positions of Guipos, Zamboanga del Sur, in the elections of 8 May 1995. After the canvass of the election returns, the Municipal Board of Canvassers of Guipos declared and proclaimed the petitioners as the duly elected municipal officials, to wit: Petitioner Roberto D. Ramas Petitioner Francisco N. Oraiz --as Mayor as Vice Mayor as fifth Member of the Sangguniang Bayan (SB) as sixth Member of the SB as seventh Member of the SB as eighth Member of the SB

Petitioner Benerando F. Miranda -Petitioner George V. Baterna Petitioner Tomas R. Lacierda Petitioner Pedro T. Calimot, Jr. ----

Private respondents Raul F. Famor and Ponciano P. Cajeta, the losing candidates for mayor and vice mayor, respectively, as we ll as Merlyn U. Rabe, Crescencia C. Boiser, Edgar S. Revelo, and Julieto B. Mabascog, the 9 th, 10th, 11th, and 12th placers, respectively, for members of the SB, seasonably filed separate election protests with the RTC of Pagadian City. The cases were docketed as Election Protest Cases Nos. 07-95, 08-95, 09-95, 10-95, 11-95, and 12-95 and thereafter consolidated and jointly tried. On 16 May 1996, the trial court rendered a 103-page decision [4] declaring petitioner Miranda and all the private respondents except Mabascog as winners in the 8 May 1995 elections. The dispositive portion thereof reads as follows: WHEREFORE, judgment is hereby rendered declaring: 1. For Mayor, RAUL F. FAMOR, as winner with the margin of Two hundred Ninety Eight (298) votes over protestee Roberto Ramas, and as a consequence, the proclamation and oath taking of Protestee Roberto Ramas as Municipal Mayor of Guipos, Zamboanga d el Sur, as null and void and of no force and effect; 2. For Vice-Mayor, PONCIANO CAJETA, as winner, with a majority of Three Hundred Forty One (341) votes over that of protestee Francisco Oraiz, Jr., and as a consequence, his proclamation as Vice-Mayor of Guipos, Zamboanga del Sur, as null and void and of no force and effect; 3. For Members of the Sangguniang Bayan of Guipos, Zamboanga del Sur, the following are declared duly qualified and elected, as follows:

3.a Merlyn U. Rabe with 2,403 votes garnered; 3.b Benerando Miranda with 2,361 votes garnered; 3.c Edgar Revelo with 2,249 votes garnered; 3.d Cresencia C. Boiser with 2,238 votes garnered;

and as a consequence, the proclamation and taking of oath of George Baterna, Tomas Lacierda, Sr., and Pedro Calimot, Jr., are declared null and void and of no force and effect. With cost de officio. SO ORDERED. On 22 May 1996, private respondents Famor, Cajeta, Rabe, Revelo, and Boiser filed a Motion for Immediate Execution of Decisi on Pending Appeal[5] alleging as follows: 2. That pursuant to Section 2, Rule 39 of the Rules of Court, and the Supreme Court ruling in the case of Tomas Tobon Uy vs. COMELEC and Jose C. Neyre, G.R. No. 97108-09, March 4, 1992, and Daniel Garcia & Teodoro Ohara vs. Ernesto De Jesus & Cecilia David & Comelec, G.R. No. 88158, March 4, 1992 (SCRA Vol. 206, pages 779-801), Regional Trial Courts can order execution pending appeal. 3. That there are good reasons in granting the execution of the decision pending appeal; firstly, the appeal is merely dilatory, and it takes several years to terminate the appeal; that in most cases, the term of office will already expire before the appeal is finally decided. To construe otherwise would be to bring back the ghost of the grab -the-proclamation-prolong-the-protest techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. (See Estrada vs. Sto. Domingo, G.R. No. L-30570, 29 July 1969; Lagumbay vs. Comelec, G.R. No. L-25444, 31 January 1966, 16 SCRA 175); secondly, on the ground of public interest. It must be noted that the term of office of the contested positions is nearing expirations, hence, there is a need, then, for this joint decision to be immediately executory. (See Tomas Tobon Uy vs. Commission on Elections & Jose C. Neyra, 206 SCRA 779, G.R. No. L-97108-09, March 4, 1992) 4. That protestants [are] willing to put up bond in the amount of P500,000.00, to answer for any damages protestees may suffer in the event protestants [are] not entitled to the immediate execution. On 28 May 1996, the petitioners filed their Opposition to the Motion for Immediate Execution of the Consolidated Decision. [6] On that same day, they filed their respective Notices of Appeal. [7] The next day, or on 29 May 1996, the trial court issued an order [8] granting the motion for execution pending appeal. The order reads as follows: Acting upon the Motion for Execution of the decision pending appeal with the opposition thereto, the Court finds the Mot ion to be well taken and there being a good reason to grant the same, taking into consideration this involves the public interest and the near expiration of the term of office of two (2) years and the pendency of the protest which lasted for one (1) year. WHEREFORE, the Motion is granted, let a writ of execution be issued to enforce the decision of the Court pending appeal for t he reason aforecited. SO ORDERED. On even date, a Writ of Execution[9] was issued. Petitioners urgent motion to reconsider the order of execution was denied. [10] On 4 June 1996, the petitioners assailed the trial courts order granting execution pending appeal in a Petition for Certiorari and Prohibition with Prayer for Preliminary Injunction and/or Temporary Restraining Order [11] filed with the COMELEC. The case was docketed as SPR[12] No. 14-96. On 6 June 1996, the COMELEC issued an Order [13] requiring the respondents to answer the petition within ten days; setting for hearing the application for a writ of preliminary injunction on 2 July 1996; and ordering the issuance of a temporary restraining order directing private respondents Famor, Cajeta, Rabe, Boiser, and Revelo to cease and desist from assuming the positions of mayor, vice mayor, and councilors of Guipos, Zamboanga del Sur, respectively, until further orders from the Commission. A Temporary Restraining Order [14] was forthwith issued. Thereafter, on various dates, the following were filed by the parties before the COMELEC: a) private respondents Motion to Dissolve/Recall Temporary Restraining Order,[15] b) petitioners Opposition to the Motion t o Dissolve/Recall Temporary Restraining Order, [16] c) petitioners Urgent Motion to Cite Private Respondents for Contempt. [17] The above motions were heard by the COMELEC on 9 July 1996; after which the parties submitted their respective memoranda.[18] On 23 September 1997, respondent COMELEC promulgated a Resolution [19] denying the petition in SPR No. 14-96. It ratiocinated thus: The Court has find [ sic ] public interest and the pendency of the protest for one (1) year sufficient to grant execution pending appeal. In election cases, over and above the claims of the respective contestants is the deep public interest involved, the need to imperatively determine the correct expression of the will of the electorate. So much so that laws governing election protest must be literally interpreted to the end that the popular will expressed in t he election of public officers will not, by reason of purely technical objections, be defeated. [Calabig vs. Villanueva, 135 SCRA 300]. Our earlier pronouncements in Dictado vs. Cosico, SPR No. 2-93, July 29, 1993 and Aragdon vs. Balongo, et al., SPR No. 56- 96, January 7, 1997, may prov ide some enlightenment. We held: For while it is true that when an election protest is filed the protestee is only considered a presumptive winner until the protest is resolved in the same way, when protestant is adjudged the winner by a court of law but the case is on appeal with Commission, such appeal likewise makes the protestant a presumptive winner. Under the said Dictado and Aragdon doctrines, private respondents can be adjudged presumptive winners of the contested election, during the pendency of the appeal. The proclamation rendered by the board of canvassers suffices as basis for the right to assume, notwithstanding election protest. The proclaimed winners are simply presumptive winners pending the resolution of the election protest, and they still are able to assume office. A judgment favorable to the protestant renders the latter presumptive winner, notwithstanding the appeal therefrom.

It has already cost the private respondents and the people of Guipos, Zamboanga del Sur, more than a year before the protest was resolved in the lower court. Depriving the private respondents the assumption of the duties and functions ... will only resurrect the evils that the Court has long sought to contain the grab -the proclamation-prolong-the-protest technique. [Cf Gahol vs. Riodique, 64 SCRA 494, Estrada vs. Sto. Domingo, 28 SCRA 890, Lagumbay vs. COMELEC 16 SCRA 175]. We fail to find any abuse of discretion, grave or otherwise. In fact, the position of the Honorable Judge granting execution pending appeal by reason of public interest and more than a year pendency of the election protest appears to be even justified by the Court, as it found in Garcia vs. De Jesus [206 SCRA 779]: In retrospect, good reasons did in fact exist which justified the RT C Order granting execution pending appeal. Among others mentioned by the RTC are the combined considerations of the near expiration of the term of office, public interest, the pendency of the election contest for more than 3 years. Unsatisfied with the Resolution, the petitioners came to us via this petition wherein they allege that A RESPONDENT COMMISSION SERIOUSLY ERRED IN HOLDING THAT PETITIONERS FAILED TO ESTABLISH A CASE OF GRAVE ABUSE OF DISCRETION ON THE PART OF THE TRIAL COURT. 1. The questioned order itself of the trial court granting execution pending appeal which cited insufficient reasons is proof of such grav e abuse of discretion. B RESPONDENT COMMISSION ACTED ARBITRARILY AND IN EXCESS OF JURISDICTION WHEN, CONTRARY TO LAW AND THE COMMISSIONS OWN CASE PRECEDENTS, IT AFFIRMED AS GOOD REASONS NEAR EXPIRATION OF THE TERM AND A YEAR PENDENCY OF THE PROTEST. 1. The Dissenting Opinion enunciates the correct state of law on executions pending appeal. In the resolution of 11 November 1997, we ordered the parties to maintain the status quo prevailing at the time of the filing of the petition. In its Comment for public respondent COMELEC, the Office of the Solicitor General opines that the trial court was evidently guided by the decisions of this Court in Garcia v. De Jesus[20] andGahol v. Riodique [21] in holding that the combined grounds of (a) public interest, (b) the near expiration of the term of office, and (c) the pendency of the protest for one year constituted good reasons to grant private respondents motion for execution pending appeal. In their Comment, the private respondents maintain that the COMELEC acted in accordance with law and existing jurisprudence in den ying petitioners petition for certiorari and prohibition. They also allege that the petitioners are even guilty of forum shopping in filing the instant petition. The Omnibus Election Code of the Philippines (B.P. Blg. 881) and the other election laws [22] do not specifically provide for execution pending appeal of judgment in election cases, unlike the Election Code of 1971 whose Section 218 made express reference to the Rules of Court on execution pending appeal; thus: SEC. 218. Assumption of office notwithstanding an election contest. - Every candidate for a provincial, city, municipal or municipal district office duly proclaimed elected by the corresponding board of canvassers shall assume office, notwithstanding the pendency in the courts o f any contest against his election, without prejudice to the final decision thereon and applicable provisions of the Rules of Court regarding execution of judgment pending appeal. In Gahol v. Riodique,[23] we explicitly ruled that the assumption of office provided for in the aforementioned section is that of the protestant, whic h is made possible by the provisions of the Rules of Court regarding execution pending appeal, which is none other than Secti on 2 of Rule 39. The failure of the extant election laws to reproduce Section 218 of the Election Code of 1971 does not mean that execution of judgment pending appeal is no longer available in election cases. In election contests involving elective municipal officials, which are cognizable by courts of general jurisdiction; and those involving elective barangay officials, which are cognizable by courts of limited jurisdiction, [24] execution of judgment pending appeal under Section 2 of Rule 39 of the Rules of Court are permissible pursuant to Rule 143 of the Rules of Court, which is now Section 4, Rule 1 of the 1997 Rules of Civil Procedure. This Section 4 provides: SEC. 4. In what cases not applicable. -- These Rules shall not apply to election cases, land registration, cadastral, naturalization and insolvency proceedings, and other cases not herein provided for, except by analogy or in a suppletory character and whenever practicable and convenient. (R143a). As to election cases involving regional, provincial, and city officials, which fall within the exclusive original jurisdictio n of the COMELEC, [25] Section 3 of Article IX-C of the Constitution vests the COMELEC with the authority to promulgate its rules of procedure in order to expedite disposition of election cases, including pre-proclamation controversies. Additionally, Section 52(c), Article VII of the Omnibus Election Code empowers the COMELEC to promulgate rules and regulations implementing the provisions of the Code or other laws which it is re quired to enforce and administer. Accordingly, the COMEL EC promulgated the COMELEC Rules of Procedure. Section 1 of Rule 41 thereof expressly provides that [i]n the absence of any applicable provision in [said] Rules, the pertinent provisions of the Rules of Court in the Philippines shall be applicable by analogy or in a suppletory character and effect. This Court has explicitly recognized and given approval to execution of judgments pending appeal in election cases [26] filed under existing election laws. In those cases, the immediate execution was made in accordance with Section 2 of Rule 39 of the Rules of Court [27] reading as follows: SEC. 2. Execution pending appeal. -- On motion of the prevailing party with notice to the adverse party the court may, in its discretion, order execution to issue even before the expiration of the time to appeal, upon good reasons to be stated in a special order. If a record on appeal is filed thereafter, the motion and the special order shall be included therein. All that was required for a valid exercise of the discretion to allow execution pending appeal was that the immediate execution should be based upon good reasons to be stated in a special order. The rationale why such execution is allowed in election cases is, as stated in Gahol v. Riodique,[28] to

give as much recognition to the worth of a trial judges decision as that which is initially ascribed by the law to the procl amation by the board of canvassers. Thus: Why should the proclamation by the board of canvassers suffice as basis of the right to assume office, subject to future contingencies attendant to a protest, and not the decision of a court of justice? Indeed, when it is considered that the board of canvassers is composed of persons who are less technically prepared to make an accurate appreciation of the ballots, apart from their being more apt to yield to extraneous considerations , and that the board must act summarily, practically raising [ sic] against time, while, on the other hand, the judge has benefit of all the evidence the parties can offer and of admittedly better technical preparation and background, apart from his being allowed ample time for conscientious stud y and mature deliberation before rendering judgment, one cannot but perceive the wisdom of allowing the immediate execution of decisions in election cases adverse to the protestees, notwithstanding the perfection and pendency of appeals therefrom, as long as there are, in the sound discretion o f the court, good reasons therefor. To deprive trial courts of their discretion to grant execution pending appeal would, in the words of Tobon Uy v. COMELEC, bring back the ghost of the grab-the-proclamation-prolong the protest techniques so often resorted to by devious politicians in the past in their efforts to perpetuate their hold to an elective office. This would, as a consequence, lay to waste the will of the electorate. What are the recognized reasons for execution pending appeal in election cases? In Gahol v. Riodique, the motion for execution pending appeal recited the following reasons: (a) The full term for municipal officials elected in the November 1971 elections expires at the end of December 1975, thereby lea ving protestant no more than ten (10) months of the four-year-term to which she is rightfully entitled, within which she may be able to seat [ sic] and represent her constituency; In view of the results of the referendum which was held on February 27, 1975, President Ferdinand E. Marcos was granted the r ight to appoint local officials in lieu of the elective [ sic] ones and it is possible that protestants opportunity to occupy the seat may even be effectively reduced; Considering the fully-substantiated finding of massive fraud in the preparation of ballots cast in favor of the protestee consisting, among others, of ballots written by one and the same hand, any appeal that the protestee may interpose would be frivolous and defin itely dilatory in character; and Any further delay in protestants assumption of office would prejudice the electorate. In Tobon Uy v. COMELEC, where protestant Tobon Uy was credited with a slim margin of only five votes, this Court stated: In retrospect good reasons did, in fact, exist which justified the RTC Order, dated 10 January 1991, granting execution pending appeal. Among others mentioned by the RTC are the combined considerations of the near expiration of the term of office, public interest, the pende ncy of the election contest for more than three (3) years, and that TOBON UY had filed a bond in the amount ofP300,000.00 (Rollo, p. 46). In Malaluan v. COMELEC, [29] this Court declared: Without evaluating the merits o f the trial courts actual appreciation of the ballots contested in the election protest, we note on the face of its decision that the trial court relied on the findings of the National Bureau of Investigation (NBI) handwriting experts which findings private respondent did not even bother to rebut. We thus see no reason to disregard the presumption of regularity in the performance of official duty on the part of the trial court judge. Capping this combination of circumstances which impelled the grant of immediate execution is the undeniable urgency involved in the political situation in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC would undoubtedly cause the political vacuum in said municipality to persist, and so the trial court reasonably perceived execution pending appeal to be warranted and justified. In Gutierrez v. COMELEC ,[30] this Court sustained the trial courts finding of good reasons; thus: [T]he protestee died on April 6, 1996 and it [was] the Vice -Mayor who acted as Mayor after the protestee died and during the pendency of this case before this Court; the protestant have been found to be the true winner in the mayo ralty race for Tiwi, Albay and should have been sitting as such from July 1, 1995 to the present but was not able to sit; that as of today, one -third of the term has already expired; that public interest will be better served and it would be giving true meaning to the electoral will of Tiwi, Albay that their chosen Mayor, the protestant herein, should immediately sit as the Mayor and govern them instead of the Vice -Mayor. In Lindo v. COMELEC,[31] where the protestant obtained a margin of 200 votes as adjudged by the trial court, this Court affirmed as good reasons those relied upon by the trial court in granting execution pending appeal; thus: In its Order of execution, respondent RTC Judge Dilag cited two reasons to justify execution of his decision pending appeal, viz.: (1) the grant of execution would give substance and meaning to the peoples mandate, especially since the RTC has established private responde nts right to the office; and (2) barely 18 months is left on the tenure of the Ternate mayor and the people have the right to be governed by t heir chosen official. In the recent case of Gutierrez v. COMELEC [G.R. No. 126298, March 25, 1997], the same grounds for execution pending appeal of the decision in the protest case were relied upon by the trial court and we found them to be valid reasons for execution. In a nutshell, the following constitute good reasons, and a combination of two or more of them will suffice to grant execution pending appeal: (1) the public interest involved or the will of the electorate; (2) the shortness of the remaining portion of the term of the con tested office; and (3) the

(b)

(c)

(d)

length of time that the election contest has been pending. The filing of a bond, which was mentioned in Tobon Uy, does not constitute a good reason. [32] Nevertheless, the trial court may require the filing of a bond as a condition for the issuance of a corresponding writ of execution to answer for the payment of damages which the aggrieved party may suffer by reason of the execution pending appeal. In the instant case, the trial court relied on the following as good reasons for its grant of execution pending appeal: (1) public interest, (2) near expiration of the term of office involved, and (3) pendency of the election protest for one year. The trial court cannot, therefore, be said to have acted with grave abuse of discretion. Hence, the COMELEC acted correctly when it denied SPR No. 14-96. If any error was committed by the COMELEC, it was in the failure to resolve private respondents Motion To Dissolve/Recall Te mporary Restraining Order and the petitio ners opposition thereto, as well as the Urgent Motion to Cite for Contempt, although the motions were heard on 9 July 1996. Because of COMELECs inaction on the first motion, the temporary restraining order issued on 6 June 1996 was taken full advan tage of by the petitioners, who then refused to surrender to the prevailing private respondents their offices. This created an unwholesome spectacle: two sets of officials exercising the functions of the elective local positions of Guipos, Zamboanga del Sur. Such a situation was inimical to public interest and was a potential source of trouble and even bloodshed between the contending partisan forces. The COMELEC should have taken a more d rastic and positive action to prevent such a situation by complying strictly with the rule on restraining orders. Under Section 5, Rule 30 of the COMELEC Rules of Procedure and Section 5, Rule 58 of the Rules of Court, the lifetime of a restraining order is only twenty days. This period is nonextendible.[33] If the COMELEC wanted to restrain further the implementation of the trial courts order granting execution pending appeal and the wr it of execution, it should have, if warranted, issued a writ of preliminary injunction; but it did not. WHEREFORE, the instant civil action is DISMISSED for failure of the petitioners to show that respondent Commission on Elections had ac ted with grave abuse of discretion in rendering the challenged resolution of 23 September 1997 in SPR No. 14-96, which is hereby AFFIRMED. The status quo order of 11 November 1997 is LIFTED and the Commission on Elections is DIRECTED to forthwith cause the full implementation of the execution pending appeal, unless it shall have been rendered academic by a decision adverse to private respondents in the regular appeals filed by the pe titioners with said Commission. Costs against petitioners. SO ORDERED. Narvasa, C.J., Regalado, Romero, Quisumbing, and Purisima, JJ., concur . Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco, Panganiban, Martinez,

EN BANC [G.R. No. 140179. March 13, 2000] ROQUE FERMO, petitioner, vs. COMMISSION ON ELECTIONS and MANUEL D. LAXINA SR., respondents . DECISION GONZAGA-REYES, J.: Before us is a Petition for Certiorari (with prayer for the issuance of a restraining order or a writ of preliminary injunction) assailing the Resolution [1] of the Commission on Elections (COMELEC) [2] in SPR No. 4-99 entitled "MANUEL D. LAXINA, SR. vs. ROQUE FERMO and Hon. AMANTE T. BANDAYREL" which annulle d the order of the Metropolitan Trial Court (MTC) of Quezon City, Branch 40 granting petitioner Roque Fermos (FERMO) motion for execution pending appeal. The factual antecedents of this case are as follows: "Manuel Laxina, Sr. and Roque Fermo were both candidates for the position of Punong Barangay, Barangay Batasan Hills, District II, Quezon City, during the May 12, 1997 elections. The canvassed results showed Laxina obtaining 1,957 votes and Fermo getting 1,712 votes. With a plurality of 245 votes, Laxina was proclaimed duly elected to the post. Subsequently, Fermo filed an election protest questioning the results in four (4) clustered precincts of Capitol Bliss and twenty four (24) COA precincts on the gr ound that the elections therein was attended by massive fraud and serious irregularities. Summoned to answer, protestee Laxina filed his responsive pleading denying protestants allegations of anomalies and interpos ed the defense that the conduct of the elections in Barangay Batasan Hills, District II, Q uezon City, from the special registration of voters, the campaign as well as the voting and all the way to and until the counting, canvassing and tallying of votes and th e proclamation of the winning candidates during the recent barangay elections has been generally honest, orderly and peaceful, with the result of the elections being truly reflective of the will of the electorate in the said barangay.' Protestee then moved for the dismissal of the case on the ground that the same was filed beyond the ten day period allowed by law. The Court ruled that the case was seasonably filed, dismissed the motion to dismiss and ordered a judicial recount. For the p urpose, a revision committee was constituted. After all the proceedings were terminated, the Court a quo rendered its decision holding that Fermo won the contested post. The Courts decision was promulgated on January 8, 1999. On the same date, Laxina filed a Notic e of Appeal manifesting his intent to elevate the case to the Commission on Elections. On January 12, 1999, Roque Fermo filed a Motion for Execution pending Appeal grounded on the following averments: That a decision was promulgated by the Honorable Court on January 8, 1999 whereby the protestant Roque Fermo was declared the winner in the May 12, 1997 Barangay Election in Batasan Hills, District II by a plurality of ONE HUNDRED THIRTY FOUR (134) votes over protestee, Manuel Laxina;

That there is good and special reason for the issuance of a Writ of Execution Pending Appeal, i.e., the possibility that the term of the contested seat might have expired already long before the appeal has been decided; On January 19, 1999, Laxina opposed the motion maintaining that the Court had lost jurisdiction over the case because of the perfection of the appeal. On January 20, 1999, the Court issued an Order granting execution pending appeal, the pertinent part of which reads: The Court is clothed with discretionary power to execute judgment pending appeal upon good reasons. The good reasons mentioned in protestants Motion for Execution Pending Appeal is the possibility that the term of the contested seat of Barangay Captainship in Barangay Batasan Hills, Quezon City might have expired long before the appeal has been decided, considering also that the term of the contested office had past almost midway of the whole term. To do otherwise would not serve the end of justice." [3] Not satisfied with the decision of the MTC, respondent Manuel D. Laxina (LAXINA) appealed to the COMELEC, which reversed the order of the MTC granting herein petitioners motion for execution pending appeal. In reversing the MTC, the COMELEC found that the possibilit y that the term of the contested seat might expire by the time the appeal is decided was not a "good reason" to warrant execution pending appeal. Hence this petition with prayer for the issuance of a temporary restraining order or a writ of preliminary injunction where p etitioner assigns the following errors: "RESPONDENT COMELEC ACTED WITHOUT OR IN EXCESS OF JURISDICTION AND/OR WITH GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF JURISDICTION A. IN HOLDING THAT THE REASON INVOKED BY PETITIONER IN HIS MOTION FOR EXECUTION PENDING APPEAL, i.e., SHORTNESS OF TERM IS INSUFFICIENT OR DOES NOT QUALIFY AS "GOOD REASONS" TO WARRANT EXECUTION PENDING APPEAL. B. IN ANNULLING THE JANUARY 20, 1999 ORDER OF MTC GRANTING THE MOTION FOR EXECUTION PENDING APPEAL ON THE GROUND THAT THE MTC COMMITTED GRAVE ABUSE OF DISCRETION. C. IN ORDERING PETITIONER TO CEASE AND DESIST FROM FURTHER PERFORMING THE FUNCTIONS OF PUNONG BARANGAY AND TO RELINQUISH THE SAME TO PRIVATE RESPONDENT PENDING FINAL RESOLUTION OF THE LATTERS APPEAL, IN EFFECT, GRANTING EXEC UTION PENDING APPEAL IN FAVOR OF PRIVATE RESPONDENT WITHOUT ANY MOTION THEREFOR." [4] In support of his petition, FERMO maintains that the COMELEC acted with grave abuse of discretion in ruling that the possibility that the term of the contested seat might expire long before the appeal is decided is not a good reason to warrant execution pending appeal. FERMO s theory is that such reason taken together with the finding of the MTC that the election was tainted with fraud and irregularities is sufficient reason to grant execution pending appeal. He further argues that even assuming the COMELEC did not err in annulling the order of execution, the COMELEC should not have ordered him to relinquish the position as this is tantamount to granting execution pending appeal in favor of LAXINA who did not file any such motion for that purpose nor cite any "good reasons" therefor. Moreover, the order of COMELEC in effect prej udged the pending appeal of FERMO considering that it ordered LAXINA to discharge the functions of Punong Barangay pending the resolution of the appeal. On the other hand, private respondent LAXINA agrees with the COMELECs conclusion that the "shortness o f term" is not "good reason" to justify execution pending appeal. He argues that petitioners allegations are mere conjectures unsupported by any factual or legal ba sis. Public respondent COMELEC contends that since the term of Barangay officials was extended to five (5) years or until 2002, the reliance of the petitioner on the "shortness of term" to justify execution pending appeal is not justified. Moreover, the decision of the MTC "contains questionable rulings which casts doubt on its validity." It was not clearly established that petitioner in fact won. [5] The issue to be resolved in this petition is whether the COMELEC acted with grave abuse of discretion amounting to lack of or excess of jurisdiction in annulling the order of the MTC granting herein petitioners motion for execution pending appeal on the ground that there were no "good reasons" for the issuance therefor. We rule in the negative. Execution of judgments pending appeal in election cases is governed by Section 2, Rule 39 [6] of the Rules of Court which reads: "Sec. 2. Discretionary execution. (a) Execution of a judgment or final order pending appeal. - On motion of the prevailing party with notice to the adverse party filed in the trial court while it has jurisdiction over the case and is in possession of either the original record or the record on appeal, as the case may be, at the time of the filing of such motion, said court may, in its discretion, order execution of a judgment o r final order even before the expiration of the period to appeal. After the trial court has lost jurisdiction, the motion for execution pending appeal may be filed in the appellate court.

Discretionary execution may only issue upon good reasons to be stated in a special order after due hearing." A valid exercise of the discretion to allow execution pending appeal requires that it should be based "upon good reasons to be stated in a special order." The following constitute "good reasons" and a combination of two or more of them will suffice to grant execution pending appeal: (1.) public interest involved or will of the electorate; (2.) the shortness of the remaining portion of the term of the contested office; and (3.) the length of time that t he election contest has been pending (emphasis supplied). [7] In Lauban vs. COMELEC[8], this Court ruled that "shortness of the remaining term of office and posting a bond are not good reasons for execution of a judgment pending appeal xxx". [9] In the present case, the petitioner relies solely on one ground to support his petition i.e. "shortness of term". We find that the COMELEC committed no reversible error in ruling that: "Shortness of term, alone and by itself cannot justify premature execution. It must be manifest in the decision sought to b e executed that the defeat of the protestee and the victory of the protestant has been clearly established." [10] Moreover, Republic Act No. 8524, [11] which took effect in 1998, has extended the term of office of barangay officials to five (5) years, and this negates, or removes the factual basis for the finding of the MTC that the term of the contested office "had past almost midway of the whole term." COMELEC Chairman Harriet Demetriou correctly points out in her SEPARATE CONCURRING OPINION [12] that: "Obviously, the court a quo erroneously assumed that the term of the barangay captains is only for three (3) years. Hence, the conclusion that the term of the contested office is almost in its midway. This, too, has no leg to stand on. It shall be worth stressing that Republic Act No. 8524 which took effect sometime in 1998 extended the term of office of barangay officials to five (5)years. Thus, it provides: Section 1. Section 43 of Republic Act No. 1760, otherwise known as the Local Government Code of 1991, is hereby amended to read as follows: SEC. 43. Term of Office. xxx xxxx

c the term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin after the regular election of barangay officials on the second Monday of May 1997 xxx xxx. Sec. 2. The provisions of this Act shall apply to the incumbent barangay officials xxx xxxx. Perfunctorily, the term of the contested office will expire in the year 2002 or more or less, three years from now. " [13] Petitioners argument that COMELECs nullification of the MTC order does not imply that LAXINA is entitled to discharge the f unctions of Punong Brangay and that FERMO should cease and desist from performing said functions is flawed. The order of the COMELEC annulling the grant of execu tion pending appeal would be inutile if it did not have the effect of authorizing LAXINA to discharge the functions of Punong Bara ngay during the pendency of the appeal. When the COMELEC nullified the writ of execution pending appeal in favor of FERMO, the decision of the MTC pro claiming FERMO as the winner of the election was stayed [14] and the " status quo" or the last actual peaceful uncontested situation preceding the controversy [15] was restored. Thus, the COMELEC correctly ordered FERMO to cease and desist from performing the functions of Punong Barangay considering th at LAXINA was the proclaimed winner of the election prior to FERMOs filing of the election protest. The order for FER MO to relinquish his post to LAXINA pending final resolution of the appeal is a logical and necessary consequence of the denial of execution pending appeal. Finally, there is nothing in the COMELEC Resolution which shows that the COMELEC made "conclusionary findings" which would in effect "pre-judge" the MTC decision itself. The Resolution categorically stated that the COMELEC shall not attempt to resolve who between LAXINA and FERMO has the right to occupy the contested seat for that question will appropriately be settled in the pending appeal. Although the Resolution cited certain "lapses patent on the decision itself" which "cast a cloud of uncertainty over the victory of Fermo", the observation was made to str ess that no other justification other than the "shortness of term" would justify premature execution. WHEREFORE, the instant petition is hereby DISMISSED for failure of the petitioner to show that respondent Commission on Elections acte d with grave abuse of discretion in rendering the challenged Resolution dated September 16, 1999 in SPR No. 4-99. Costs against petitioners. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Ynares -Santiago, and De Leon, Jr., JJ., concur. Pardo, J., abroad on official business. EN BANC

[G.R. No. 136351. July 28, 1999]

JOEL G. MIRANDA, petitioner, vs. ANTONIO M. ABAYA and the COMMISSION ON ELECTIONS, respondents. DECISION MELO, J .: Before us is a petition for certiorari with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction questioning the resolution of the Comelec En Banc dated December 8, 1998 in SPA Case No. 98-288 which disposed: ACCORDINGLY, judgment is hereby rendered to: 1. AMEND and RECTIFY the dispositive portion of the Resolution of the Commission (First Division) in SPA No. 98 -019 promulgated on May 5, 1998, to read as follows: WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the Petition. Respondent JOSE PEMPE MIRANDAs certificate of candidacy for the position of mayor of Santiago City in the May 11, 1998 national and local elections is hereby DENIED DUE COURSE AND/OR CANCELLED. SO ORDERED. 2. ANNUL the election and proclamation of respondent JOEL G. MIRANDA as mayor of Santiago City in the May 11, 1998 election and CANCEL the Certificate of Canvass and Proclamation (C.E. form 25) issued therefor; 3. DIRECT THE City board of Canvassers of Santiago City to RECONVENE, PREPARE a new certificate of canvass & proclamation and PROCLAIM the winning candidate among those voted upon as the duly elected mayor of Santiago City in the May 11, 1998 election; and 4. DIRECT the Clerk of Court of the Commission to furnish copies of this Decision to the Office of the Presid ent of the Philippines; the Department of Interior and Local Government; the Department of Finance, and the Secretary of the Sangguniang Panglunsod of Santiago City. SO ORDERED. (pp. 90-91, Rollo.) The aforementioned resolution dated December 8, 1998 reversed and set aside the earlier resolution of the First Division of the Comelec dated May 16, 1998, dismissing private respondents petition to declare the substitution of Jose Pempe Miranda by petitioner as candi date for the City of Santiagos mayoralty p ost void. Briefly, the pertinent factual backdrop is summarized as follows: On March 24, 1998, Jose Pempe Miranda, then incumbent mayor of Santiago City, Isabela, filed his certificate of candidacy f or the same mayoralty post for the synchronized May 11, 1998 elections. On March 27, 1998, private respondent Antonio M. Abaya filed a Petition to Deny Due Course to and/or Cancel Certificate of Ca ndidacy (pp. 2633, Rollo), which was docketed as SPA No. 98-019. The petition was GRANTED by the Comelec in its resolution dated May 5, 1998 (pp. 3643, Rollo ). The Comelec further ruled to DISQUALIFY Jose Pempe Miranda. On May 6, 1998, way beyond the deadline for filing a certificate of candidacy, petitioner Joel G. Miranda filed his certificate of candidacy for the mayoralty post, supposedly as a substitute for his father, Jose Pempe Miranda. During the May 11, 1998 elections, petitioner and private respondent vied for the mayoralty seat, with petitioner garnering 2 2,002 votes, 1,666 more votes than private respondent who got only 20, 336 votes. On May 13, 1998, private respondent filed a Petition to Declare Null and Void Substitution with Prayer for Issuance of Writ o f Preliminary Injunction and/or Temporary Restraining Order, which was docketed as SPA No. 98 -288. He prayed for the nullification of petitioners certificate of candidacy for being void ab initio because the certificate of candidacy of Jose Pempe Miranda, whom petitioner was supposed to substitute, had already been cancelled and denied due course. On May 16, 1998, Comelecs First Division dismissed SPA No. 98 -288 motu proprio (pp. 57-61, Rollo). Private respondent moved for reconsideration (pp. 62-72, Rollo ). On December 8, 1998, the Comelec En Banc rendered the assailed decision aforequoted, resolving to GRANT the motion for reconsideration, thus nullifying the substitution by petitioner Joel G. Miranda of his father as candidate for the mayoralty post of Santiago City. On December 9, 1998, petitioner sought this Courts intercession via a peti tion for certiorari, with prayer for the issuance of a temporary restraining order and/or writ of preliminary injunction. On December 11, 1998, the Court resolved to issue a temporary restraining order and to require respondents to comment on the petition. On December 14, 1998, private respondent filed his Comment (pp. 140-187 and 188-234, Rollo) and on February 16, 1999, the Comelec, through its counsel, the Solicitor General, filed its Comment (pp. 254 -265, Rollo). The Court required petitioner to file a consolidated reply within 10 days from notice, but petitioner twice asked for an extension of the period. Without granting the motions for extension of time to file consolidated reply, the Court decided to resolve the controversy in favor of petitioner. Tersely, the issues in the present case may be summarized as follows:

1. Whether the annulment of petitioners substitution and proclamation was issued without jurisdiction and/or with grave abuse o f discretion amounting to lack of jurisdiction; and 2. Whether the order of the Comelec directing the proclamation of the private respondent was issued with grave abuse of discreti on amounting to lack of jurisdiction. The Court finds neither lack of jurisdiction nor grave abuse of discretion attended the annu lment of the substitution and proclamation of petitioner. On the matter of jurisdiction, there is no question that the case at hand is within the exclusive original jurisdiction of th e Comelec. As early as in Herrera vs. Baretto (25 Phil. 245 [1913]), this Court had occasion to apply the following principles: Jurisdiction is the authority to hear and determine a cause the right to act in a case. Since it is the power to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the rightfulness of the decision made. Jurisdiction should therefore be distinguished from the exercise of jurisdiction. The authority to decide a cause at all, and not the decision rendered therein, is what makes up jurisdiction. Where there is jurisdiction over the subject matter, as we have said before, the decision of all other questions arising in the case is but an exercise of that jurisdiction. (p. 251) On the issue of soundness of the disposition in SPA No. 98-288, the Court find s that the Comelecs action nullifying the substitution by and proclamation of petitioner for the mayoralty post of Santiago City, Isabela is proper and legally sound. Petitioner insists that the substitution at bar is allowed under Section 77 of the Omnibus Election Code which provides: SEC. 77. Candidates in case of death, disqualification or withdrawal . If after the last day for the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cause, only a person belonging to, and certified by, the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for the office affected in accordance with the preceding sections not later than mid-day of the day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid-day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate, or, in the case of candidates to be voted for by the entire electorate of the country, with the Commission. Petitioner capitalizes on the fact that the Comelec ruled to disqualify Jose Pempe Miranda in the May 5, 1998 resolution an d he heavily relies upon the above-quoted provision allowing substitution of a candidate who has been disqualified for any cause. While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a c andidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. More importantly, under the express provisions of Section 77 of the Code, not just any person, but only an official candidate of a registered or accred ited political party may be substituted. In Bautista vs. Comelec (G.R. No. 133840, November 13, 1998) this Court explicitly ruled that a cancelled certificate does not give rise to a valid candidacy (p.13). A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. The law clearly provides: SEC. 73. Certificate of candidacy No person shall be eligible for any elective public office unless he files a sworn certificate of candidacy within the period fixed herein. By its express language, the foregoing provision of law is absolutely mandatory. It is but logical to say that any person who attempts to run for an elective office but does not file a certificate of candidacy, is not a candidate at all. No amount of votes would catapult him into office. In Gador vs. Comelec (95 SCRA 431 [1980]), the Court held that a certificate of candidacy filed beyond the period fixed by law is void, and the person who filed it is not, in law, a candidate. Much in the same manner as a person who filed no certificate of candidacy at all and a person who filed it out of time, a person whose certificate of candidacy is cancelled or denied due course is no candidate at all. No amount of votes should entitle him to the elective office aspired for. The evident purposes of the law in requiring the filing of certificates of candidacy and in fixing the t ime limit therefor are: (a) to enable the voters to know, at least sixty days before the regular election, the candidates among whom they are to make the choice, and (b) to avoid confusion and inconvenience in the tabulation of the votes cast. For if the law did not confine the choice or election by the voters to the duly registered candidates, there might be as many persons voted for as there are voters, and votes might be cast even for unknown or fictitious persons as a mark to identify the votes in favor of a candidate for another office in the same election. ( Monsale vs. Nico, 83 Phil. 758 [1949]) It is at once evident that the importance of a valid certificate of candidacy rests at the very core of the electoral process . It cannot be taken lightly, lest there be anarchy and chaos. Verily, this explains why the law provides for grounds for the cancellation and denial of due course to certificates of candidacy. After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

Also, under ejusdem generis rule, where a general word or phrase (such a s disqualification for any cause in this case) follows an enumeration of particular and specific words of the same class (such as the words dies and withdraws in the instant case) or where the l atter follow the former, the general word or phrase is to be construed to include, or to be restricted to persons, things or cases akin to, resembling, or of the same kind or class as those specifically mentioned (see: Vera vs. Cuevas, 90 SCRA 379 [1979]). A deceased candidate is required to have duly filed a valid certificate of candidacy, otherwise his political party would not be allowed to field a substitute candidate in his stead under Section 77 o f the Code. In the case of withdrawal of candidacy, the withdrawing candidate is required to have duly filed a valid certificate of candidacy in order to allow his political party to field a substitute candidate in his stead. Most reasonable it is then, under the foregoing rule, to hold that a valid certificate of candidacy is likewise an indispensable requisite in the case of a substitution of a disqualified candidate under the provisions of Section 77 of the Code, just as it is in the two previous instances. Furthermore, interpretatio talis in ambiguis semper freinda est, ut eviatur inconveniens et absurdum , meaning, where there is ambiguity, such interpretation as will avoid inconvenience and absurdity shall in all cases be adopted. To include those disqualified candidates whose certificate of candidacy had likewise been denied due course and/or cancelled among those who may be substituted under Section 77 of the Omnibus Election Code, leads to the absurdity where a substitute is allowed to take the place of somebody who had not been a candidate in the first placea person who did not have a valid certificate of candidacy prior to substitution. Nemo dat quod non habet . What right can a non-candidate pass on to his substitute? Clearly, there is none because no one can give what he does not have. Even on the most basic and fundamental principles, it is readily understood that the concept of a substitute presupposes the existence of the person to be substituted, for how can a person take the place of somebody who does not exist or who never was. The Court has no other choice but to rule that in all the instances enumerated in Section 77 of the Omnibus Election code, the existence of a valid certificate of candidacy seasonably filed is a requisite sine qua non. All told, a disqualified candidate may only be substituted if he had a valid certificate of candidacy in the first place because, if the disqualified candidate did not have a valid and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a person was not a candidate, he cannot be substituted under Section 77 of the Code. Besides, if we were to allow the so-called substitute to file a new and original certificate of candidacy beyond the period for the filing thereof, it would be a crystalline case of unequal protection of the law, an act a bhorred by our Constitution. From the foregoing discussion it is evident that the controversy at hand is not a simple case of hair -splitting. A candidate may not be qualified to run for election but may have filed a valid certificate of candidacy. Another candidate may likewise be not qualified and at the same time not have a valid certificate of candidacy, for which reason, said certificate of candidacy is also cancelled and/or denied due course. Or, a third candidate may be qualified but, his certificate of candidacy may be denied due course and/or cancelled. This is possible because the grounds for disqualification (see: Omnibus Election Code, Section 68 Disqualifications ) are totally separate and distinct from the grounds for cancellation and/or denying due course to a certificate of candidacy (Ibid., Section 69 nuisance candidates; and Section 78 material misrepresentation ). Only the candidate who had a valid certificate of candidacy may be substituted. The question to settle next is whether or not aside from Joel Pempe Mira nda being disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy had likewise been denied due course and cancelled. The Court rules that it was. Private respondents petition in SPA No. 98 -019 specifically prayed for the following: WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by respondent for the position of Mayor for the City of Santiago be not given due course and/or cancelled. Other reliefs just and equitable in the premises are likewise prayed for. (Rollo, p. 31; Emphasis ours.) In resolving the petition filed by private respondent specifying a very particular relief, the Comelec ruled favorably in the following manner: WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS the Petition. Respondent JOSE Pempe MIRANDA is hereby DISQUALIFIED from running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national and local electio ns. SO ORDERED. (p.43, Rollo; Emphasis ours.) From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998 in SPA No. 98 -019, it is sufficiently clear that the prayer specifically and particularly sought in the petition was GRANTED, there being no qualification on the matter whatsoever. The disqualification was simply ruled over and above the granting of the specific prayer for denial of due course and cancellation of the certificate of candidacy. It may be stressed at this instance that the legal consequences of this May 5, 1998 resolution are independent of the issue of whether or not the Comelec was correct in reviving SPA No. 98-019 by consolidating it with SPA No. 98-288 in its December 8, 1998 resolution. As regards the procedural matter in the present petition for certiorari, the following considerations are also in point: It may be relevantly stressed that the review powers of the Supreme Court over decisions of the Constitutional Commissions, in general, and the Commission on Elections, in particular, were rather particularly defined and limited by the 1987 Constitution, as they were also circumscribed in the 1973 Constitution, to a petition for review on certiorari under Rule 65. In Dario vs. Mison (176 SCRA 84 [1989]), the Court held: . . . We affirm the teaching of Aratuc vs. Commission of Elections, 88 SCRA 251 [1979]) as regards recourse to this Court with respect to rulings of the Civil Service Commission which is that judgments of the Commission may be brought to the Supreme Court through certiorari alone, under Rule 65 of the Rules of Court. In Aratuc, we declared:

It is at once evident from these constitutional and statutory modifications that there is a definite tendency to enhance and invigorate the role of the Commission on Elections as the independent constitutional body charged with the safeguarding of free, peaceful and honest elections. The framers of the new Constitution must be presumed to have definite knowledge of what it means to make the decisions, orders and rulings o f the Commission subject to review by the Supreme Court. And since instead of maintaining that provision intact, it ordained that the Commissions actuations be instead brought to the Supreme Court on certiorari, We cannot insist that there was no intent to change the nature of the remedy, conside ring that the limited scope of certiorari, compared to a review, is well known in remedial law. xxx It should also be noted that under the new Constitution, as under the 1973 Charter, any decision, order, or ruling of each C ommission may be brought to the Supreme Court on certiorari, which, as Aratuc tells us, technically connotes something less than saying that the same shall be subject to review by the Supreme Court, which in turn suggests an appeal by review by petition for review under Rule 45. Therefore, our jurisdiction over cases emanating from the Civil Service Commission is limited to complaints of lack or excess of jurisdiction or grave abuse of discretion tan tamount to lack or excess of jurisdiction, complaints that justify certiorariunder Rule 65. (pp. 111-112) To emphasize this procedural point, then Commissioner, later to become a distinguished Member of this Court, Mr. Justice Flor enz Regalado responded to Commissioner Bernas query during the deliberations of the 1987 Constitution thus ly: FR. BERNAS. So, for purposes of the record, now, what is the intention of the Committee? What are the grounds for certiorari? MR. REGALADO. The Committee refers specifically to a technical term of review by certiorari would be relying on the provision of Rule XLV [Should be LXV] of the Rules of Court that laid down the three grounds. (I RECORD OF THE CONSTITUTIONAL COMMISSION, p. 539, as cited in Bernas, S.J, The 1987 Constitution of the Republic of the Philippines: A Commentary, 1996 Edition, p. 903.) Thus, we have to be guided by jurisprudence relating to review by certiorari under Rule 65. Generally, certiorari lies where a court has acted without or in excess of jurisdiction or with grave abuse of discretion. Without jurisdiction refers to an absolute want of jurisdiction; excess of jurisdiction refers to the case where the court has jurisdiction, but it transcended the same or acted without any statutory authority; grave abuse of discretion implies such capricious and whimsi cal exercise of judgment as is equivalent to lack of jurisdiction. Even assuming for the sake of argument that the Comelec committed an error in the exercise of its jurisdiction in the present case, such is not within the province of certiorari, as a remedial measure, to correct. The only issue that may be taken cognizance of in the present case is whether or not the Comelec committed grave abuse of discretion in rendering the assailed decision. It is well-settled that an act of a court or tribunal may only be considered to have been done in grave abuse of discretion when the same was performed in a capricious or whimsical exercise of judgment which is equivalent to lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform a duty enjoined or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion or personal hostility (Intestate Estate of Carmen de Luna vs. Intermediate Appellate Court, 170 SCRA 246 [1989]; Litton Mills vs. Galleon Traders, 163 SCRA 489 [1988]; Butuan Bay Export Co. vs. Court of Appeals, 97 SCRA 297 [1980]). An error of judgment committed in the exercise of its legitimate jurisdiction is not the same as grave abuse of discretion. An abuse of discretion is not sufficient by itself to justify the issuance of a writ of certiorari. The abuse must be grave and patent, and it must be shown that the discretion was exercised arbitrarily and despotically ( Soriano vs. Atienza , 171 SCRA 284 [1989]). Petitioner posits that the Comelec committed grave abuse of discretion when it annulled the substitution by and proclamation of petitioner, who under Section 77 of the Omnibus Election Code, was allowed t o substitute for disqualified the candidate Jose Pempe Miranda. Petitioner also contends that it was an act of grave abuse of discretion for the Comelec to direct the proclamation of private respondent as the winning candidate in the May 11, 1998 election. Petitioner further faults the Comelec for amending the dispositive portion of its resolution in SPA No. 98 -019, which was not elevated to it on review, the same having already attained finality by then. While it may be conceded that the Comelec stepped overboard and acted in excess of its jurisdiction when it motu proprio took cognizance of SPA No. 98-019, the decision in which was by then already final, it does not necessarily follow that the Comelec also committed grave abuse of discretion in resolvin g to grant private respondents motion for reconsideration by nullifying the substitution of petitioner Joel G. Miranda. Evidently, what is under review before us in this certiorari proceedings is SPA No. 98-288, and not SPA No. 98-019. The question to answer is: will the Comelecs act which may constitute an excess of jurisdiction in SPA No. 98 -019 be tantamount to an act of grave abuse of discretion in its judgment in the separate and distinct case of SPA No. 98 -288 as well? Clearly, non sequitur. SPA No. 98-288 should be judged on its own accord, and not under the shadow of SPA No. 98-019. Comelec committed no grave abuse of discretion in resolving SPA No. 98 -288 in favor of private respondent. As earlier pointed out, the result in the dispositive portion of the December 8, 1998 resolution pertaining to the issues involved in SPA No. 98 -288 is correct insofar as it annulled the election and proclamation of Joel G. Miranda. But even assuming for the sake of argument that it is not, still, this supposed error does not constitute grave abuse of discretion which may be annulled and reversed in the present petition for certiorari. As earlier elucidated too, the crux of the Comelecs disposition in SPA No. 98 -288 is the fact that former candidate Jose Pempe Mirandas certificate of candidacy was denied due course and cancelled. There is no dispute that the complaint or petition filed by private respondent in SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of Jose Pempe Miranda ( Rollo , pp. 26-31). There is likewise no question that the said petition was GRANTED without any qualification whatsoever. It is rather clear, therefore, that whether or not the Comelec granted any further relief in SPA No. 98-019 by disqualifying the candidate,the fact remains that the said petition was granted and that the certificate of candidacy of Jose Pempe Miranda was denied due course and cancelled. In fact, it was not even necessary for the Comelec to reiterate this in its December 8, 1998 resolution. At best, the Comelecs motu proprio act of resurrecting SPA No. 98-019 should be treated as a mere surplusage. The fact that the certificate of candidacy of Joel Pempe Miranda was denied due course and cancelled did not depend on the en banc resolution dated

December 8, 1998 of the Comelec. It stems from the fact that the May 5, 1998 resolution GRANTED private respondents Petition to Deny Due Course to and/or Cancel Certificate of Candidacy. Verily, there is clear basis to find that there indeed was a blatant misrepresentation in the instant case and that it was a valid ground for the granting of the petition in SPA No. 98-019. Also, there appears to be sound basis to rule that a certificate of candidacy which has been denied due course on account of misrepresentation is, in every legal contemplation, no certificate at all. Ergo, there is nothing to substitute. If this judgment, rendered in the Comelecs rightful exercise of its jurisdiction in SPA No. 98 -288 may, at all, be considered flawed, this blemish would only constitute an error of judgment and definitely not grave abuse of discretion. And, of course, errors of judgment may not be corrected by certiorari. It may be noted that Commissioner Flores raised this supposed error in her dissenting opinion (pp. 93-99, Rollo). However, her legal opinion failed to convince the majority of the collegiate body and was not adopted by the Commission en banc. This Court in the present certiorari proceedings cannot substitute its judgment for that of the Comelec without violating the Constitution and the Rules of Court on the matter. The Comelecs decision is not subject to appeal to this Court. We may only strike out a Comelec decision if it was rendered without jurisdiction, in excess t hereof, or with grave abuse of discretion amounting to lack of jurisdiction. The Court cannot accede to the reasoning that this Court should now acquiesce and submit to the sovereign will of the elector ate, as expressed by their votes. We should always be reminded that ours is a government of laws not of men. If this Court should fold its arms and refuse to apply the law at every clamor of the majority of the supposed constituency, where shall order and justice lie? Without the least intention to degrade, where shall people power end, and where shall law and justice begin? Would the apparent results of the canvassing of votes justify this Court in refusing to apply the law instead? The answers to the foregoing are obvious. The Court cannot choose otherwise but to exercise its sacred duty to uphold the Constitution and the laws of the Republic for and under which it exists. Besides, only history will discern whether Jose Pempe Mirandas filing of a certificate of candidacy for a 4th term and the intended substitution by his son was a ploy to perpetrate the Mirandas in power by way of a political dynasty disdained and abhorred by our Constitution which declared: SEC. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be defined by law. (Article II, 1987 Constitution) The invalidation of petitioners supposed substitution of Jose Pempe Miranda brings about the disqualification of petitione r in the mayoralty race. In this regard, what was said in Nolasco vs. Commission on Elections (275 SCRA 763 [1997]) may be recalled: Our case law is now settled that in a mayoralty election, the candidate who obtained the second highest number of votes, in t his case Alarilla, cannot be proclaimed winner in case the winning candidate is disqualified. Thus, we reiterated the rule in the fairly recent case of Reyes v. Comelec (254 SCRA 514 [1996]), viz.: x x x xxx xxx

We likewise find no grave abuse of discretion on the part of the Comelec in denying petitioner Julius O. Garcias petition to be proclaim ed mayor in view of the disqualification of Renato U. Reyes. That the candidate who obtains the second highest number of votes may not be proclaimed winner in case the winning candidate is disqualified is now settled. The doctrinal instability caused by see-sawing rulings has since been removed. In the latest ruling on the question, this Court said: To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under the circumstances. Garcias plea that the votes case for Reyes be invalidated is without merit. The votes cast for Reyes are presumed to have been cast in the belief that Reyes was qualified and for that reason can be treated as stray, void and meaningless. The subsequent finding that he is disqualified cannot retroact to the date of the elections as to invalidate the votes cast for him. Consequently, respondent Comelec committed grave abuse of discretion insofar as it failed to follow the above doctrine, a des cendant of our ruling in Labo v. Comelec (176 SCRA 1 [1989]). (pp. 782-783) Thus, the Comelec committed grave abuse of discretion insofar as it failed to follow the above -cited settled ruling consistently applied by this Court since the case of Labo vs. Comelec (176 SCRA 1 [1989]), Aquino vs. Comelec , 248 SCRA 400 [1995], Reyes vs. Comelec (254 SCRA 514 [1996]); and Nolasco vs. Comelec (275 SCRA 763 [1997]). Even as the Court cannot accede to the contention that, in view of the election results pointing to petitioner as the ele ctors choice for the mayoralty post, we should now close our eyes to the pertinent provisions of the Omnibus Election Code on the matter, nevertheless, the Court duly notes that the said election results point to the fact that private respondent was not then the choice of the people of Santiago City, Isabela. This Court has no authority under any law to impose upon and compel the people of Santiago City to accept private respondent as their mayor. The law on succession under section 44 of Republic Act 7160, otherwise known as the Local Government Code, would then apply. Said provision relevantly states: 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 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 case of h is permanent disability, the second highest ranking sanggunian member, shall become 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 acc ording to their ranking as defined herein.

x x x. For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office, refuse s 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. For purposes of succession as provided in this Chapter, ranking in the sanggunian shall be determined on the basis of the pro portion of votes obtained by each winning candidate to the total number of registered voters in each district in the immediately preceding local election. WHEREFORE, the petition is hereby partly DENIED, insofar as the Comelec ruling to ANNUL the election and proclamation of petitioner is being AFFIRMED. The petition is, however, hereby GRANTED so as to MODIFY the resolution of the Comelec in SPA No. 98-288 by DELETING the portion directing the city board of canvassers to reconvene and proclaim the winning candidate from among those voted upon during the May 11, 1998 elections. The law on succession should be enforced. Accordingly, the restraining order issued in this case is forthwith LIFTED. SO ORDERED. Bellosillo, Mendoza, Quisumbing, Purisima, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur. Davide, Jr., C.J., on leave. Romero, and Panganiban, JJ., see dissenting opinion. Puno, and Vitug, JJ., joins dissenting opinion of J. Romero. Kapunan, and Pardo, JJ., no part. Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 154198 January 20, 2003

PETRONILA S. RULLODA, petitioner, vs. COMMISSION ON ELECTIONS (COMELEC), ELECTION OFFICER LUDIVICO L. ASUNCION OF SAN JACINTO, PANGASINAN; BARANGAY BOARD OF CANVASSERS OF BRGY. STO. TOMAS, SAN JACINTO, PANGASINAN, Board of Election Tellers of Prec. Nos. 30A/30A1, 31A, 31A1, and 32A1, and REMEGIO PLACIDO, respondents. YNARES-SANTIAGO, J.: In the barangay elections of July 15, 2002, Romeo N. Rulloda and Remegio L. Placido were the contending candidates for Barang ay Chairman of Sto. Tomas, San Jacinto, Pangasinan. On June 22, 2002, Romeo suffered a heart attack and passed away at the Mandaluyong City Medical Center. 1 His widow, petitioner Petronila "Betty" Rulloda, wrote a letter to the Commission on Elections on June 25, 2002 seeking permission to run as candidate for Barangay Chairman of Sto. Tomas in lieu of her late husband.2 Petitioners request was supported by the Appeal-Petition containing several signatures of people purporting to be members of the electorate of Barangay Sto. Tomas. 3 On July 14, 2002, Election Officer Ludivico L. Asuncion issued a directive to the Chairman and Members of the Barangay Board of Canvassers of Sto. Tomas as follows: Just in case the names "BETTY" or "PETRONILA" or the surname "RULLODA" is written on the ballot, read the same as it is writt en but add the words "NOT COUNTED" like "BETTY NOT COUNTED" or "RULLODA NOT COUNTED." 4 Based on the tally of petitioners watchers who were allowed to witness the canvass of votes during the July 15, 2002 electio ns, petitioner garnered 516 votes while respondent Remegio Placido received 290 votes.5 Despite this, the Board of Canvassers proclaimed Placido as the Barangay Chairman of Sto. Tomas.6 After the elections, petitioner learned that the COMELEC, acting on the separate requests of Andres Perez Manalaysay and Petr onila Rulloda to be substituted as candidates for Barangay Chairman of Barangay La Fuente, Sta. Rosa, Nueva Ecija and Barangay Sto. Tomas, San Jac into, Pangasinan, respectively, issued Resolution No. 5217 dated July 13, 2002 which states: PREMISES CONSIDERED, the Commission RESOLVED, as it hereby RESOLVES, to ADOPT the recommendation of the Law Department as follows: 1. To deny due course the Certificates of Candidacy of ANDRES PEREZ MANALAYSAY and PETRONILA S. RULLODA; and 2. To direct the Election Officer of Sta. Rosa, Nueva Ecija and San Jacinto, Pangasinan to delete the name of ANDRES PEREZ MANALAYSAY, candidate for Barangay Chairman in Barangay La Fuente, Sta. Rosa, Nueva Ecija; and the name of PETRONILA S. RULLODA, candidat e for Barangay Captain in Barangay Sto. Tomas, San Jacinto, Pangasinan. Let the Law Department implement this resolution.

SO ORDERED.7 The above-quoted Resolution cited as authority the COMELECs Resolution No. 4801 dated May 23, 2002, setting forth the guidelines on th e filing of certificates of candidacy in connection with the July 15, 2002 synchronized Barangay and Sangguniang Kabataan elections, more particularly Section 9 thereof which reads: Sec. 9. Substitution of candidates. There shall be no substitution of candidates for barangay and sangguniang kabataan officials.8 Hence, petitioner filed the instant petition for certiorari, seeking to annul Section 9 of Resolution No. 4801 and Resolution No. 5217, both of the COMELEC, insofar as they prohibited petitioner from running as substitute candidate in lieu of her deceased husband; to nullify the proclamation of respondent; and to proclaim her as the duly elected Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan. Private respondent Remegio Placido filed his Comment, arguing that since the barang ay election is non-partisan, substitution of candidates is not allowed. Moreover, petitioner did not file any certificate of candidacy; hence, there was only one candidate for Barangay Cha irman of Sto. Tomas, namely, respondent Placido.9 Public respondent COMELEC also filed its Comment. It contends that its Resolution No. 4801 was issued not pursuant to its quasi -judicial functions but as an incident of its inherent administrative functions over the conduct of the barangay elections. Therefore, the same may not be the subject of review in a petition for certiorari. Further, the COMELEC alleges that it did not commit grave abuse of discretion in denying due cours e to petitioners certificate of candidacy and in proclaiming respondent considering that he was the only candidate for Barangay Chairman of Sto. Tomas. 10 We find merit in the petition. At the outset, there is no dispute that petitioner garnered 516 votes while respondent got only 290 votes. Respondents did no t deny this in their respective Comments. In our jurisdiction, an election means the choice or selection of candidates to public office by popular vote through the use of the ballot, and the elected officials which are determined through the will of the electorate. An election is the embodiment of the popular will, the expression of the sovereign power of the people. The winner is the candidate who has obtained a majority or plurality of valid votes cast in the election. Soun d policy dictates that public elective offices are filled by those who receive the highest number of votes cast in the election for that office. For, in all republican forms of government the basic idea is that no one can be declared elected and no measure can be declared carried unless he or it receives a major ity or plurality of the legal votes cast in the election.11 Respondents base their argument that the substitution of candidates is not allowed in barangay elections on Section 77 of the Omnibus Elections Code, which states: Section 77. Candidates in case of death, disqualification or withdrawal of another. If after the last day of the filing of certificates of candidacy, an official candidate of a registered or accredited political party dies, withdraws or is disqualified for any cau se, only a person belonging to, and certified by the same political party may file a certificate of candidacy to replace the candidate who died, withdrew or was disqualified. The substitute candidate nominated by the political party concerned may file his certificate of candidacy for t he office affected in accordance with the preceding sections not later than mid-day of the election. If the death, withdrawal or disqualification should occur between the day before the election and mid -day of election day, said certificate may be filed with any board of election inspectors in the political subdivision where he is a candidate or, in the case of candidates to be voted by the entire electorate of the count ry, with the Commission. Private respondent argues that inasmuch as the barangay election is non-partisan, there can be no substitution because there is no political party from which to designate the substitute. Such an interpretation, aside from being non sequitur, ignores the purpose of election laws which is to give effect to, rather than frustrate, the will of the voters.12 It is a solemn duty to uphold the clear and unmistakable mandate of the people. It is well-settled that in case of doubt, political laws must be so construed as to give life and spirit to the popular mandate freely expressed thro ugh the ballot.13 Contrary to respondents claim, the absence of a specific provision governing substitution of candidates in barangay election s can not be inferred as a prohibition against said substitution. Such a restrictive construction cannot be read into the law where the same is not written. Indeed, there is more reason to allow the substitution of candidates where no political parties are involved than when political considerations or party affiliations reign, a fact that must have been subsumed by law. Private respondent likewise contends that the votes in petitioners favor can not be counted because she did not file any cer tificate of candidacy. In other words, he was the only candidate for Barangay Chairman. His claim is refuted by the Memorandum of the COMELEC Law Department as well as the assailed Resolution No. 5217, wherein it indubitably appears that petitioners letter -request to be allowed to run as Barangay Chairman of Sto. Tomas in lieu of her late husband was treated as a certificate of candidacy.14 To reiterate, it was petitioner who obtained the plurality of votes in the contested election. Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the electorate. Laws governing e lection contests must be liberally construed to the end that the will of the people in the choice of public officials may not be defeated by mere technical objections. 15 Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any interpr etation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but also the correct ascertainment of the results. 16 WHEREFORE, in view of the foregoing, the instant petition is GRANTED. The assailed Resolution No. 5217 of the Commission on Elections, insofar as it denied due course to petitioners certificate of candidacy, is declared NULL and VOID. The proclamation of respondent Remegio L. Placido as

Barangay Chairman of Sto. Tomas, San Jacinto, Pangasinan is SET ASIDE, and the Board of Canvassers of the said Barangay is OR DERED to proclaim petitioner as the duly elected Barangay Chairman thereof. SO ORDERED. Bellosillo, Puno, Vitug, Mendoza, Sandoval-Gutierrez, Carpio , Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur. Davide, Jr., and Quisumbing, JJ., in the result, pro hac vice only. Panganiban, J., in the result. EN BANC

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

BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents. DECISION MENDOZA, J.: This case presents for determination the scope of the constitutional provision barring elective officials, with the exception of barangay of ficials, from serving more than three consecutive terms. In particular, the question is whether a vice-mayor who succeeds to the office of mayor by operation of law and serves the remainder of the term is considered to have served a term in that office for the purpose of the three -term limit. Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending June 30, 1998. [1] On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that. On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respo ndent Capco disqualified from running for reelection as mayor of Pateros. [2] However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. [3] The majority stated in its decision: In both the Constitution and the Local Government Code, the three-term limitation refers to the term of office for which the local official was elected. It made no reference to succession to an office to which he was not elected. In the case before the Commission, respondent Capco was not elected to the position of mayor in the January 18, 1988 local elections. He succeeded to such office by operation of law and served for the unexpired term of his predecessor. Consequently, such succession into office is not counted as one (1) term for purposes of the computation of the three-term limitation under the Constitution and the Local Government Code. Accordingly, private respondent was voted for in the elections. He received 16,558 votes against petitioners 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers. This is a petition for certiorari brought to set aside the resolution, dated May 7, 1998, of he COMELEC and to seed a declaration that private respondent is disqualified to serve another term as Mayor of Pateros, Metro Manila. Petitioner co ntends that private respondent Capcos service as mayor from September 2, 1989 to June 30, 992 should be considered as servic e for full one term, and since he thereafter served from 1992 to 1998 two more terms as mayor, he should be considered to have serv ed three consecutive terms within the contemplation of Art. X, 8 of the Constitution and 43(b) of the Local Government Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989, private respondent became the mayor and thereafter served the remainder of the term. Petitioner argues that it is irrelevant that private respondent became mayor by succession because the purpose of the constitutional pro vision in limiting the number of terms elective local officials may serve is to prevent a monopolization of political power. This contention will not bear analysis. Article X, 8 of the Constitution provides: SEC. 8. The term of office of elective local officials, except barangay officials, which shall be determined by l aw, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160): Sec. 43. Term of Office - . . . (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official con cerned was elected.

First, to prevent the establishment of political dynasties is not the only policy embodied in the constitutional provision in question. The other policy is that of enhancing the freedom of choice of the people. To consider, therefore, only stay in office regardless of how the official concerned came to that office whether by election or by succession by operation of law would be to disregard one of the purposes of the constitutional provision in question. Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that the me mbers of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. [4] Monsod warned against prescreening candidates [from] whom the people will choose as a result of the proposed absolute disqualification, considering that the draft constitution provision recognizing peoples power. [5] Commissioner Blas F. Ople, who supported the Monsod proposal, said: The principle involved is really whether this Commission shall impose a temporary or a perpetual disqualification on those wh o have served their terms in accordance with the limits on consecutive service as decided by the Constitutional Commission. I would be very wary about this Commission exercising a sort of omnipotent power in order to disqualify those who will already have served their terms from perpetuatin g themselves in office. I think the Commission achieves its purpose in establishing safeguards against the excessive accumulation of power as a result of consecutive terms. We do put a cap on consecutive service in the case of the President, six years; in the case of the Vice-President, unlimited; and in the case of the Senators, one reelection. In the case of the Members of Congress, both from the legislative districts and from the party list and sectoral representation, this is now under discussion and later on the policy concerning local officials will be taken up by the Committee on Local Governments. The principle remains the same. I think we want to prevent future situations where, as a result of continuous service and frequent reelections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their position and to accumulate those powers and perquisites t hat permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. I think that is taken care of because we put a gap on the continuity or the unbroken service of all of these officials. But where we now decide to put these prospective servants of the people or politicians, if we want to use the coarser term, under a perpetual disqualification, I have a feeling that we are taking away too much from the people, whereas we should be giving as much to the people as we can in terms of their own freedom of choice. [6] Other commissioners went on record against perpetually disqualifying elective officials who have served a certain number of terms as this would deny the right of the people to choose. As Co mmissioner Yusup R. Abubakar asked, why should we arrogate unto ourselves the right to decide what the people want?[7] Commisioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to "allow the people to exercise their own sense of proportion and [rely] on their own strength to curtail power when it overreaches itself. [8] Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual disqualification after serving a number of terms] to the premise accepted by practically everybody here that our people are politically mature? Should we use this assumption only when it is convenient for us, and not when it may also lead to a freedom of choice for the people and for politicians who may aspire to serve them longer? [9] Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of reelection. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before if the Gentlemen will remember- was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, this particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees stand. [10] Indeed, a fundamental tenet of representative democracy is that the people should be allowed to choose whom they please to govern them. [11] To bar the election of a local official because he has already served three terms, although the first as a result of succession by operation of law rather than election, would therefore be to violate this principle. Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art. X, 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such official[s] from serving for more than three consecutive terms. The second sentence, in explaining when an elective local official may be deemed to have served his full term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be one for which [the official concerned] was elected. The purpose of this provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. Conversely, if he is not serving a term for which he was elected because he is simply continuing the service of the official he succeeds, such official cannot be considered to have fully served the term now withstanding his voluntary renunciation of office prior to its expiration. Reference is made to Commissioner Bernas comment on Art. VI, 7, which similarly bars members of the House of Representative s from serving for more than three terms. Commissioner Bernas states that if one is elected Representative to serve the unexpired term of another, that unexpired term, no matter how short, will be considered one term for the purpose of computing the number of successive terms allowed. [12] This is actually based on the opinion expressed by Commissioner Davide in answer to a query of Commissioner Suarez: For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? Commissioner Davide said: Yes,

because we speak of term and if there is a special election, he will serve only for the unexpired portion of that particula r term plus one more term for the Senator and two more terms for the Members of the Lower House. [13] There is a difference, however, between the case of a vice -mayor and that of a member of the House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is removed from office. The vice-mayor succeeds to the mayorship by operation of law. [14] On the other hand, the Representative is elected to fill the vacancy. [15] In a real sense, therefore, such Representative serves a term for which he was elected. As the purpose of the constitutional provision is to limit the right ot be elected and to serve in Congress, his service of the unexpired term is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X, 8 with regard to elective local officials, the case of a Representative who succeeds another confirms the theory. Petitioner also cites Art. VII, 4 of the Constitution which provides for succession of the Vice -President to the Presidency in case of vacancy in that office. After stating that The President shall not be eligible for any reelection, this provision says that No person who has succ eeded as President and has served as such for more than four years shal l be qualified for election to the same office at any time. Petitioner contends that, by analogy, the vicemayor should likewise be considered to have served a full term as mayor if he succeeds to the latters office and serves for the remainder of the term. The framers of the Constitution included such a provision because, without it, the Vice -President, who simply steps into the Presidency by succession would be qualified to run for President even if he has occupied that office for more than four years. The absence of a similar provision in Art. X, 8 on elective local officials throws in bold relief the difference between the two cases. It underscores the constitutional intent to cover only the terms of office to which one may have been elected for purpose of the three-term limit on local elective officials, disregarding for this purpose service by automatic succession. There is another reason why the Vice-President who succeeds to the Presidency and serves in that office for more than four years is ineligible for election as President. The Vice-President is elected primarily to succeed the President in the event of the latters death, permanent disability, removal or resignation. While he may be appointed to the cabinet, his becoming so is entirely dependent on the good graces of the President. In running for VicePresident, he may thus be said to also seek the Presidency. For their part, the electors likewise choose as Vice -President the candidate who they think can fill the Presidency in the event it becomes vacant. Hence, service in the presidency for more than four years may rightly be considered as service for a full term. This is not so in the case of the vice-mayor. Under the local Government Code, he is the presiding officer of the sanggunian and he appoints all officials and employees of such local assembly. He has distinct powers and functions, succession to mayorship in the event of vacancy therein being only one of them.[16] It cannot be said of him, as much as of the Vice -President in the event of a vacancy in the Presidency, that in running for vice-mayor, he also seeks the mayorship. His assumption of the mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in that office should not be counted in the application of any term limit. To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to serve in the same elective position. Consequently, it is not enough that an individual hasserved three consecutive terms in an elective local office, he must also have been elected to the same position for the same number of times before the disqualification can apply. This point can be made clearer by considering the following cases or situations: Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death of the incumbent. Six months before the next election, he resigns and is twice elected thereafter. Can he run again for mayor in the next election. Yes, because although he has already first served as mayor by succession and subsequently resigned from office before the ful l term expired, he has not actually served three full terms in all for the purpose of applying the term limit. Under Art. X, 8, voluntary renunciation of the office is not considered as an interruption in the continuity of his service for the full term only if the term is one for which he was elected. Since A is only completing the service of the term for which the deceased and not he was elected. A cannot be considered to have completed one term. His resignation constitutes an interruption of the full term. Case No. 2. Suppose B is elected Mayor and, during his first term, he is twice suspended for misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term in the next election? Yes, because he has served only two full terms successively. In both cases, the mayor is entitled to run for reelection because the two conditions for the application of the disqualificatio n provisions have not concurred, namely, that the local official concerned has been elected three consecutive times and that he has fully served three consecutive terms. In the first case, even if the local official is considered to have served three full terms notwithstanding his resignation before t he end of the first term, the fact remains that he has not been elected three times. In the second case, the local official has been elected three consecutive times, but he has not fully served three consecutive terms. Case No. 3. The case of vice-mayor C who becomes mayor by succession involves a total failure of the two conditions to concur for the purpose of applying Art. X 8. Suppose he is twice elected after that term, is he qualified to run again in the next election? Yes, because he was not elected to the office of the mayor in the first term but simply found himself thrust int o it by operation of law. Neither had he served the full term because he only continued the service, interrupted by the death , of the deceased mayor. To consider C in the third case to have served the first term in full and therefore ineligible to run a third time for reelection would be not only to falsify reality but also to unduly restrict the right of the people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the people can remedy the situation by simply not reelecting him for another term. But if, on the other hand, he proves to be a good mayor, there will be no way the people can return him to office (even if it is just the third time he is standing for reelection) if his service o f the first term is counted as one of the purpose of applying the term limit. To consider C as eligible for reelection would be in accord with the understanding of the Constitutional Commission that while the people s hould be protected from the evils that a monopoly of political powe r may bring about, care should be taken that their freedom of choice is not unduly curtailed. WHEREFORE, the petition is DISMISSED.

SO ORDERED. Narvasa, C.J., Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Martinez, Quisumbing and Purisima, JJ., concur. Regalado, J., on official leave. EN BANC

[G.R. No. 135150. July 28, 1999]

ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, repondents. DECISION GONZAGA-REYES, J.: This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the Petition to Disqualify Mayor alty Candidate Romeo Lonzanida of San Antonio, Zambales. Eufemio Muli, petitioner, vs. Romeo Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he has been proclaimed winner the said proclamation is declared null and void. Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision dated January 9, 1997 declared a failure of elections. The court ruled: PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure of election. Accordingly, the office of the mayor of the Mun icipality of San Antonio, Zambales is hereby declared vacant. Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and after a revision and re appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling 1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which obeyed, and Alvez assumed office for the remainder of the term. In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanidas assumption of office by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the t erm, should be counted as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998. Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the COMELEC decision dated November 13, 1997 in EAC no. 6-97 entitled Juan Alvez, ProtestantAppellee vs. Romeo Lonzanida, Protestee-Appellant, wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate regional trial court under Rule 36 of the COMELEC Rules of Procedure. Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation of the party sought to be disqualified may still be herd and decided by the COMELEC after the election and proclamation of the said party without distinction as to the alleged ground for disqualification, whet her for acts constituting an election offense or for ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were issued within the commissions jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioners assumption of office in 1995 should be considered as service of one full term because he discharged the duties of mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections. The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I of the Local Government Code which bar a lo cal government official from serving more than three consecutive terms i n the same position speaks of service of a term and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the rights and duties of mayor from 1995 to 1998 which should be cou nted as service of one full term, albeit he was later unseated, because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de facto mayor for the 1995-1998 term is inconsequential in the application of the thre e term limit because the prohibition speaks of service of a term which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for disqualification is filed after the elections and so the instant

petition for disqualification which was filed before the elections may be resolved by the COMELEC thereafter regardless of th e imputed basis of disqualification. The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to 1998 although he assumed office as mayor for that period because he was no t lawfully elected to the said office. Moreover, the petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term. As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC cease d to have jurisdiction to hear the election protest after the petitioners proclamation. The petition has merit. Section 8, Art. X of the Constitution provides: Sec. 8. The term of office of elective local officials, except barangay officials, which shall be determined by law shall be three years and no such officials shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service fo r the full term for which he was elected. Section 43 of the Local Government Code (R.A. No. 7160) restates the same rule: Sec. 43. Term of Office. (b) No local elective official shall serve for more than three consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective officia l concerned was elected. The issue before us is whether petitioner Lonzanida s assumption of office as mayor of San Antonio Zambales from May 1995 to March 1998 may be considered as service of one full term for the purpose of applying the three -term limit for elective local government officials. The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same position aft er serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of massive political power by an elective loca l government official in a given locality in order to perpetuate his tenure in office. The delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to infuse new blood in the political arena by disqualifying officials from running fo r the same office after a term of nine years. The mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political territory and is most likely to form a political dynasty. [1] The drafters however, recognized and took note of the fact that some local government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same office after serving nine consec utive years may deprive the people of qualified candidates to choose from. As finally voted upon, it was agreed that an elective local government official should be barred from running for the same post after three consecutive terms. After a hiatus of at least one term, he may again run for the same office. [2] The scope of the constitutional provision barring elective officials with the exception of barangay officials from serving more than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr., vs. COMELEC and Jose Capco, Jr. [3] where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office for the purpose of computing the three ter m limit. This court pointed out that from the discussions of the Constitutional Convention it is evident that the delegates proceeded from the premise that the officials assumption of offic e is by reason of election. This Court stated: [4] Two ideas emerge from a consideration of the proceedings of the Constitutional Commission. The first is the notion of service of term, derived from the concern about the accumulation of power as a result of a prolonged stay in office. The second is the idea of election, derived from the concern that the right of the people to choose those whom they wish to govern them be preserved. It is likewise noteworthy that, in discuss ing term limits, the drafters of the Constitution did so on the assumption that the officials concerned were serving by reason of election. This is clear from the following exchange in the Constitutional Commission concerning term limits, now embodied in Art. VI sections 4 and 7 of the Constitution, for members of Congress: MR. GASCON. I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? MR. DAVIDE. That is correct. MR. GASCON. And the question that we left behind before-if the Gentlemen will remember-was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third year or on the sixth year thereafter, his particular member of the Senate can run. So it is not really a period of hibernation for six years. That was the Committees stand. xxxx xxxx xxxx

Second, not only historical examination but textual analysis as well supports the ruling of the COMELEC that Art X, section 8 contemplates service by local officials for three consecutive terms as a result of election. The first sentence speaks of the term of office of elective local officials and bars such officials from serving for more than three consecutive terms. The second sentence, in explaining when an elective official may be deemed to have served his full term of office, states that voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. The term served must therefore be one for which the the official co ncerned was elected. The purpose of the provision is to prevent a circumvention of the limitation on the number of terms an elective official may serve. This Court held that two conditions for the application of the disqualification must concur: 1) that the official concerned has been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive terms. It stated:

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as th e right to serve in the same elective position. Consequently, it is not enough that an individual has servedthree 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. It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to vacate the post by reason of the COMELEC de cision dated November 13, 1997 on the election protest against the petitioner which declared his opponent Juan Alvez, the d uly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term. The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently declared void is no proclamation at all [5] and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election protest. [6] Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because he was not duly elected to the post; h e merely assumed office as presumptive winner, which presumption was later overturned by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections. Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post be fore the expiration of the term. The respondents contention that the petitioner should be deemed to have served one full term from May 1995 -1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from office for any length of time short of the full term porvided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995 -1998 mayoral term. In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of office from May 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside. The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected. We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to any po litical maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the execution of the regional trial courts decision declaring the position of mayor vacant and ordering the vice mayor to assume office while the appeal was pending with the COMELEC. Such delay which is not here shown to have been intentionally sought by the petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local government post in the succeeding mayoral election. The petitioners contention that the COMELEC ceased to have jurisdiction o ver the petition for disqualification after he was proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998 elections and was resolved on Ma y 21, 1998 or after the petitioners procla mation. It was held in the case of Sunga vs. COMELEC and Trinidad [7] that the proclamation nor the assumption of office of a candidate against whom a petition for disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and to resolve it on the merits. Section 6 of RA 6646 specifically mandates that: Sec. 6. Effects of disqualification Case.- any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the court or commission shall continue with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong. This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the said candidat e and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been proclaimed. The court stated: Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualifica tion case to its conclusion, i.e., until judgment is rendered thereon. The word shall signified that this requirement of the law is mandatory, operating to impose a positive duty which must be enforced. Theimplication is that the COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in providing for the outright dismissal of the disqualification case which remains unresolved after the election, Silvestre vs. Duavit in effect disallows what R. A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to forsee. A candidate guilty of election offenses would be undeservedly rewarded, instead of punished, by the dismissal of thedisqualification case against him simply because the investigating body was unable, for any reason caused upon it, to determine before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the commission of election offenses would not be decided before the election. This scenario is productive of more fraud which certainly is not the main intent and purpose of the law. The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case. In Aguam v. COMELEC this Court heldTime and again this Court has given its imprimatur on th e principle that COMELEC is with authority to annul any canvass and proclamation which was illegally made. The fact that a candidate proclaimed has assumed office, we have said, is no bar to the exercise of such power. It of course may not be availed of where there has been a valid proclamation. Since private respondents petition before the COMELEC is precisely directed at the annulment of the canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by the Constitu tion and law to COMELEC xxx Really, were a victim of a proclamation to be precluded from challenging the validity thereof after that proclamation and the assumpt ion of office thereunder, baneful effects may easily supervene. It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may no longer be the subject of a separate investigation. ACCORDINGLY, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the 1998 mayoral elections are hereby set aside. SO ORDERED. Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, and Ynares-Santiago, JJ., concur. Davide, Jr., CJ., on leave. Pardo, J., no part. EN BANC

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

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

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

VICENTE S. SANDOVAL, JR., petitioner , vs. THE COMMISSION ON ELECTIONS, respondent .

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

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents. DECISION CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari[1] seeking the reversal of the resolutions issued by the Commission on Elections (COMELEC for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves i nto a Preparatory Recall Assembly (PRA for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate the recall[2] of Victorino Dennis M. Socrates (Socrates for brevity) who assumed office as Puerto Princesas mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the Association of Barangay Captains, as interim chair of the PRA. On the same date, the PRA passed Resolution No. 01-02 (Recall Resolution for brevity) which declared its loss of confidence in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from receipt of the Recall Resolution. On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02 -010 (RC), to nullify and deny due course to the Recall Resolution. On August 14, 2002, the COMELEC en banc[3] promulgated a resolution dismissing for lack of merit Socrates petition. The COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and periods of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002 to September 5, 2002 or a period of 10 days. On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity) filed his certificate of candidacy for mayor in the recall el ection. On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and Merly E. Gilo (Gilo for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the recall election and to cancel his certificate of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. (Ollave for brevity) filed a pe tition-in-intervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions were all anchored on the ground that Hagedorn is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms immediately prior to the inst ant recall election for the same post. Subsequently, SPA Nos. 02 -492 and 02-539 were consolidated. In a resolution promulgated on September 20, 2002, the COMELECs First Division [4] dismissed for lack of merit SPA Nos. 02-492 and 02539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall election from September 7, 2002 to September 24, 2002. On September 23, 2002, the COMELEC e n banc promulgated a resolution denying the motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election. Hence, the instant consolidated petitions. G.R. No. 154512 Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002. Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and legally deficient; (3) the members of th e PRA were themselves seeking a new electoral mandate from their respective constituents; (4) the adoption of the resolu tion was exercised with grave abuse of authority; and (5) the PRA proceedings were conducted in a manner that violated his and the publics constitutional right to information. G.R. No. 154683 Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Reso lution No. 5673 dated August 21, 2002 insofar as it fixed the recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an additional 15 days to campaign. In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No. 5673 insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the candidates an additional fifteen 15 days from September 7, 2002 within which to campaign. Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an additional 15 days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002. G.R. Nos. 155083-84 Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. They likewise prayed for the issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election. Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorns qualification to run for mayor in th e recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials. In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning candidate in t he recall election until further orders from the Court. Petitioners were required to post a P20,000 bond. On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave. In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively.

Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to a ssume office to give effect to the will of the electorate. On October 1, 2002, the Court granted Socrates motion for leave to file a petition for intervention.

The Issues

The issues for resolution of the Court are: 1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall Resolution and scheduling the recall election for mayor of Puerto Princesa. 2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on September 24, 2002. In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only 10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15 day s for the campaign period as prayed for by petitioner.

First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite th e absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC, however, found that On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M. Socra tes sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said notices were attached to the Petition and marked as Annex G of Volumes II and III of the Petition. Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were attached to the Petition and marked as Annex H. The proponents likewis e utilized the broadcast mass media in the dissemination of the convening of the PRA. Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials, and DILG officials]. xxx The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a thorough and careful verification of the signatures appearing in PRA Resolution 01-02, x x x the majority of all members of the PRA concerned approved said resolution. She likewise certified that not a single member/signatory of the PRA complained or objected as to the veracity and authenticity of their signatures. The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, upon pro per review, all documents submitted are found in order. The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations: This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA was validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M. Socrates. x x x . This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC, unl ess the findings are patently erroneous. In Malonzo v. COMELEC,[5] which also dealt with alleged defective service of notice to PRA members, we ruled that Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by gathered evidence, are conclusive upo n the court, more so, in the absence of a substantiated attack on the validity of the same. In the instant case, we do not find any valid reason to hold that the COMELECs findings of fact are patently erroneous. Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to infor mation on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending his representative and counsel who were pre sent during the entire PRA proceedings. Proponents of the recall election submitted to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets, notices sent to PRA members, and authenticated master list of barangay of ficials in Puerto Princesa. Socrates had the right to examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the COMELEC denied him this right. There is no legal basis in Socrates claim that respondents violated his constitution al right to information on matters of public concern. Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution an d in scheduling the recall election on September 24, 2002.

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

The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides: Section 43. Term of Office. (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the offic e for any length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official was elected. These constitutional and statutory provisions have two parts. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no further election after three terms, or whether there would be no immediate reelection after three terms. This is clear from the following deliberations of the Constitutional Commission: THE PRESIDENT: The Acting Floor Leader is recognized.

MR. ROMULO:[6] We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative No. I where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate reelection after three successive terms.[7] The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials: MANIFESTATION OF MR. ROMULO Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2) Alternative No. 2 (no immediate reelection after three successive terms ). [8] The framers of the Constitution used the same no immediate reelection question in voting for the term limits of Senators[9] and Representatives of the House.[10] Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate reelection after the third term. Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelectionafter the third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three -year full term following the three-term limit, then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit. The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials, thus: No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. [11] In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive: GASCON:[12] I would like to ask a question with regard to the issue after the second term. We will allow the Senator to rest for a period of time before he can run again? DAVIDE:[13] That is correct.

GASCON: And the question that we left behind before - if the Gentleman will remember - was: How long will that period of rest be? Will it be one election which is three years or one term which is six years? DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the view that during the election following the expiration of the first 12 years, whether such election will be on the third or on the sixth year thereafter, this particular member of the Senate can run. So, it is not really a period of hibernation for six years. That was the Committees stand. GASCON: So, effectively, the period of rest would be three years at the least. [14] (Emphasis supplied)

The framers of the Constitution thus clarified that a Senator can run after only three years[15] following his completion of two terms. The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend the period of rest of an elective official who has reached his term limit to be the full extent of the succeeding term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections. Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutiv e terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the maximum three -term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001 elections. [16] Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall election of September 24, 20 02 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 Hagedorns service as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his previous three consecutive terms as mayor. One cannot stitch together Hagedorns previous three -terms with his new recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from June 30, 2001 to September 24, 2002 which broke the c ontinuity or consecutive character of Hagedorns service as mayor. In Lonzanida v. Comelec,[17] the Court had occasion to explain interruption of continuity of service in this manner: x x x The second sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office for any length of time shall not be considered as an interruption in the continuity of service for the full term for which he was elected. The clear intent of the framers of the constitution to bar any attempt to circumvent the three -term limit by a voluntary renunciation of office and at the same time respect the peoples choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely, involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of continuity of service . x x x. (Emphasis supplied) In Hagedorns case, the nearly 15 -month period he was out of office, although short of a full term of three years, constituted an interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term of three years. The clear intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient to break an elective local officials continuity of service. In the recent case of Adormeo v. Comelec and Talaga ,[18] a unanimous Court reiterated the rule that an interruption consisting of a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for mayor, petitioned for Talagas disqualification on the ground that Talaga had already served three consecutive terms as mayor. Thus, the issue in Adormeo was whether Talagas recall term was a continuation of his previous two terms so that he was deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of his service as mayor. Talagas recall term as mayor was not consecutive to his previous two terms because of this interruption, there having been a break of almost two years during which time Tagarao was the mayor . We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prev ents his recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case, we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference between Adormeo and the instant case is the time of the

interruption. In Adormeo, the interruption occurred after the first two consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the respondents were seeking election for a fourth term. In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talagas recall term did not retroact to include the tenure in office of his predecessor. If Talagas recall term was made to so retroact, then he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited with the full term of three years for purposes of c ounting the consecutiveness of an elective officials terms in office. In the same manner, Hagedorns recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then can the recall term constitute a fourth consecutive term. But to consider Hagedorns recall term as a full term of three years, retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This Court cannot declare as consecutive or successive terms of office which historically and factually are not. Worse, to make Hagedorns recall term retroact to June 30, 2001 cr eates a legal fiction that unduly curtails the freedom of the people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec: Thus, a consideration of the historical background of Art. X, 8 of the Constitution reveals that t he members of the Constitutional Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against prescreening candidates [from] whom the people will choose as a result of the proposed absolute disqualification, considering that the draft constitution contained provisions recognizing people's power. [19] (Emphasis supplied) A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission: SUAREZ:[20] For example, a special election is called for a Senator, and the Senator newly elected would have to serve the unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term? So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is that the meaning of this provision on disqualification, Madam President? DAVIDE: Yes, because we speak of term, and if there is a special election, he will serve only for the unexpired portion o f that particular term plus one more term for the Senator and two more terms for the Members of the Lower House. [21] Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine consecutive years comprising of t he recall term plus the regular three full terms. A local official who serves a recall term should know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running and winning in the recall election. In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa because: 1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ende d on June 30, 2001; 2. Hagedorns continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002 during wh ich time he was a private citizen; 3. Hagedorns recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and 4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to c hoose their leaders. WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining order issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in the recall election of September 24, 2002 is lifted. No costs. SO ORDERED. Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio-Morales, and Callejo, Sr., JJ., concur. Davide, Jr., C.J., see concurring and dissenting opinion. Puno, J., see concurring opinion. Vitug, J., in the result. Mendoza, J., in the result, without to the filing of separate opinion. Austria-Martinez, J., on leave. Corona, J., no part - prior consultation. Azcuna, J., joins the separate opinion of C.J. Davide.

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 167591 May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners, vs. COMELEC and MARINO "BOKING" MORALES, Respondents. x---------------------------------------------x G.R. No. 170577 May 9, 2007

ANTHONY D. DEE, Petitioner, vs. COMELEC and MARINO "BOKING" MORALES, Respondents. DECI SI ON SANDOVAL-GUTIERREZ, J.: For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amend ed, assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc. G.R. No. 167591 ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his Certificate of Candidacy. On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the Commission on Elections (COMELEC) a petition to cancel respondent Morales Certificate of Candidacy on the ground that he was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated Section 8, Article X of the Constitution and Section 43 (b) o f Republic Act (R.A.) No. 7160, also known as the Local Government Code. In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July 1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1, 1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons: a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by the Regio nal Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case (EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999. On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was can celled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration. On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales motion for reconsideration and settin g aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch 57, Angeles City declared respondent Morales proclamation void, his discharge of the duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has been severed. Hence, this petition for certiorari. G.R. No. 170577 ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July 1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a petition for quo warr anto against the said

respondent. Petitioner alleged that respondent Morales, having served as mayor for three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503. In his answer, respondent Morales raised the following defenses: a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision that his procla mation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an interruption in the continuity of his service as municipal mayor of Mabalacat. 1 In its Decision dated November 22, 2004, the RTC dismissed petitioner Dees petition for quo warranto on the ground that resp ondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in the May 1998 elections for the term 1998 to 2001, thus: Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term 1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was declared the duly elected Mayor of Mabalacat, Pa mpanga in the Decision promulgated on April 2, 2001 in Election Protest EPC No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x. Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dis missing the appeal. It held that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his proclamation was declared void by the RTC, Branch 57 of Angeles City. He o nly served as a caretaker, thus, his service during that term should not be counted. On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated Novembe r 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division. Hence, petitioner Dees instant petition for certiorari. Both cases may be decided based on the same facts and issues. It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms: a) July 1, 1995 to June 30, 1998 b) July 1, 1998 to June 30, 2001 c) July 1, 2001 to June 30, 2004 d) July 1, 2004 to June 30, 2007 THE PRINCIPAL ISSUE. Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his proclamation was declared void by the RTC, Branch 57 of Angeles City. Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre 2 with identical facts, thus: To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente, Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1 998 mayoralty contest, albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998 -2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elected for the municipality of San Vicente. xxx A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis assumption of office as mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three -term limit rule. Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disa grees. He argues that, while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner

argues, citing Lonzanida v. Comelec, that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. xxx For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the o fficial concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms. With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring pet itioner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis assum ption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service in the context of the consecutive three-term limit rule. We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elec ted and serving for more than three consecutive terms for the same position. It is true that the RTC- Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contenti on that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election cou pled 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 serv ice for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually se rved such term pursuant to a proclamation made in due course after an election. Petitioner cites, but, to our mind, cannot seek refuge from the Courts ruling in Lonzanida v. Comelec, citing Borja v. Comel ec. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proc lamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 8, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post . Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same tow n. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office . As the Court pointedly observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term." The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of Lonzanida as mayor -elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In fine, there was an effective interruption of the continuity of servi ce. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998 -2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period cover ing the 1998-2001 term. It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared void by the RTC of Daet, Camarin es Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998 to 2001 is for the full term. Clearly, the three -term limit rule applies to him. Indeed, there is no reason why this ruling should not also apply to respondent Morales who is similarly situated. Here, respondent Morales invoked not only Lonzanida v. COMELEC, 3 but also Borja, Jr. v. Commission on Elections 4 which is likewise inapplicable. The facts in Borja are: Private respondent Jose T. Capco was elected vice -mayor of Pateros on January 18, 1998 for a term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another term of three years ending Jun e 30, 1998. On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11, 1998 elections, Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos disqualification on the theory that the latter would have already served as mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner and declared private respondent Capco disqualified from running for reelection as mayor of Pateros. However, on motion of private respondent, the COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. x x x This Court held that Capcos assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term " under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that position. Similarly, in Adormeo v. COMELEC, 5 this Court ruled that assumption of the office of mayor in a recall election for the remaining term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7 160 (the Local Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as mayor. He was a "private citizen" for a time before running for mayor in the recall elections. Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case filed by petitione r Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, 6 such circumstance does not constitute an interruption in serving the full term. Section 8, Article X of the Constitution can not be more clear and explicit The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three consecutive terms. x x x Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides: No local official shall serve for more than three consecutive terms in the same position. x x x Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July 1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years. In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus: The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations: x x x I think we want to prevent future situations where, as a result of continuous service and frequent re -elections, officials from the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a subsequent election. x x x xxx It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respond ents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law contemplates a rest period during which the local ele ctive official steps down from office and ceases to exercise power or authority over the inhabitants of the ter ritorial jurisdiction of a particular local government unit. This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choo se those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutiv e term as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated when an official serves in the same p osition for three consecutive terms. Whether as "caretaker" or "de facto " officer, he exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely". Respondent Morales should be promptly ousted from the position of mayor of Mabalacat. G.R. No. 167591 Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The eff ect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus: SECTION 6. Effect of Disqualification Case. Any candidate who has been declared by final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or Commission shall continue with the trial an d hearing of the action, inquiry, or protest and, upon motion of the complainant or any inte rvenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence of guilt is strong.

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas Pambansa Blg. 881. in relation to Section 211 of the Omnibus Election Code, which provides: SEC. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the following rules, bearing in mind that the object of the election is to obtain the expression of the voters will: xxx 19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot. xxx In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a ca ndidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes. G.R. No. 170577 Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo warranto has become moot. Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the remaining portion of the 2004 to 2007 term. In Labo v. Comelec, 8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus: The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate re ceiving the next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office. xxx It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified cand idate should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides. At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the office. Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number than the 27,471 vote s cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No. 105111). xxx As a consequence of petitioners ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit: Sec. 44. Permanent vacancies in the Offices of the Governor, Vice -Governor, Mayor and Vice-Mayor. (a) If a permanent vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor or mayor. x x x WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated December 30, 2003 is cancell ed. In view of the vacancy in the Office of the Mayor in Mabalacat, Pampanga, the vice-mayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R. No. 170577 is DISMISSED for being moot. This Decision is immediately executory. SO ORDERED. ANGELINA SANDOVAL-GUTIERREZ Associate Justice WE CONCUR:

REYNATO S. PUNO Chief Justice

LEONARDO A. QUISUMBING Associate Justice

CONSUELO YNARES-SANTIAGO Asscociate Justice

ANTONIO T. CARPIO Associate Justice

(On leave) MA. ALICIA AUSTRIA-MARTINEZ Asscociate Justice

(On leave) RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Asscociate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Asscociate Justice

MINITA V. CHICO-NAZARIO Associate Justice

(No part) CANCIO C. GARCIA Asscociate Justice

PRESBITERO J. VELASCO, JR. Associate Justice

(No part) ANTONIO EDUARDO B. NACHURA Asscociate Justice

CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultatio n before the case was assigned to the writer of the opinion of the Court. REYNATO S. PUNO Chief Justice

Footnotes The COMELEC Second Division, in its Resolution dated May 6, 2004 (Annex "A," Petition in G.R. No. 167591) ruled that responde nt Morales term of office was not interrupted by the preventive suspension imposed upon him by the Ombudsman. This ruling was sustained by the COMELEC En Banc in its Resolution of May 14, 2005 (Annex "B," Petition in G.R. No. 167591).
1 2

G.R. Nos. 163295 & 163354, January 23, 2006, 479 SCRA 473. G.R. No. 135150, July 28, 1999, 311 SCRA 602. G.R. No. 133495, September 3, 1998, 295 SCRA 157. G.R. No. 147927, February 4, 2002, 376 SCRA 90. Supra. G.R. No. 154829, December 10, 2003, 417 SCRA 601.

G.R. Nos. 105111 & 105384, July 3, 1992, 211 SCRA 297; Abella v. COMELEC, G.R. Nos. 100710 & 100739, September 3, 1991, 201 SCRA 253; and Benito v. COMELEC, G.R. No. 106053, August 17, 1994, 235 SCRA 436.
8

The Lawphil Project - Arellano Law Foundation

CONCURRING OPINION TINGA, J.: Respondent Marino Morales had already fully served three consecutive terms as mayor of Mabalacat, Pampanga as of 2004. He ple ads that this Court not only uphold his election to a fourth consecutive term, but even affirm his right to be elected to a fifth. The Court has rightfully rejected this outlandish claim, violative as it is of the three term limit rule provided in Section 8, Article X of the Constitution. 1 While I concur with the judgment of the Court, I write separately to emphasize a few points I feel important. Our jurisprudence on the constitutional term limits on local elective officials is recent in origin. In 1998, Borja v. COMELEC2pronounced that "it is not enough that an individual has served three consecutive terms in an elective local office, he must also have been elected to t he same position for the same number of times before the disqualification can apply." 3 The rule was reiterated in Lonzanida v. COMELEC, 4 where it was held that the two conditions for the application of the disqualification must concur: (1) that the official concerned has been elected for three consecutive terms in the same local government post and (2) that he has fully served three consecutive terms. Both these cases featured two officials who were not able to fully serve three consecutive terms. In the first, the official concerned succeeded into office midway in his predecessor s term by operation of law, while in the second the official involuntarily relinquished office prior to the completion of one of the consecutive terms. It is Ong v. Alegre,5 decided last year, which governs in cases where the official concerned had actually fully served three consecutive terms. In truth, the decision today is but a reiteration of the doctrine we have already laid down in Ong, a case with facts si milar to those at bar. The case expressly rebuts respondents claim that the subsequent nullification of his proclamation in 1998 could not have resulted in a "valid election ". In both Ong and the case at bar, such nullification became final only after the expiration of the contested term. 6 The Court in Ong stressed that the nullification "was without practical and legal use and value, having been promulgated after the term of the contested office has expired." 7 Ong does not explicitly address the legal fiction adverted to in Lonzanida that the nullification of the proclamation results in "no proclamation at all and while a proclaimed candidate may assume office on the strength of the proclamation of the Board of Canvassers he is only a pr esumptive winner who assumes office subject to the final outcome of the election protest." 8 I submit though that a different rule should obtain if the official concerned had already fully served the contested term before the nullification could become final and the ensuing ouster from office, executory. That the official has fully served his term despite the challenge to his assumption of office, as is respondents situation, renders inconsequentia l and unnecessary any inquiry as to whether he was validly elected. Within that context, any subsequent finding that the official had in fact, finished the term and performed the functions of office only in the capacity as the "presumptive winner" holds no utile purpose. It might be argued that a nullified proclamation evinces the absence of a valid election, which Borja and Lonzanida hold as a requirement for the constitutional term limit to apply. In that case, the lack of a valid election would still fail to negate any full service of term actually rendered by the official concerned, as may occur if the nullification becomes enforceable only after the expiration of the term. Normally, actual full service of the term gives rise to the presumption that there was a valid election, and as a corollary, an invalid election should cause the official to relinquish office before full service of the term can be completed. It should indeed be recognized as an aberration if a court or the COMELEC would have the gall to p romulgate a final and executory issuance nullifying an election only after the term of office for that election had already expired. Such recourse is not only an exercis e in futility, but a demonstration of inutility. The seeming confusion arises from a failure to recognize that the election for three terms for the same post as first requirement of the three-term limit rule, apart from serving as the basis for excluding succession by operation of law from the ambit of the rule as exemplified by Borja, is itself the initial expression of the second requirement which is the full service of three consecutive terms. The election dimension is only the initial element that gives rise to the operation of the three-term limit rule but once the election is voided the inevitable effect is that the term would not be fully served. It is this break of service that eventually takes the situation out of the three-term limit rule. But if the anomaly is present, as it is in this case, should the aberrant nullification be allowed legal fruition as applied to constitutional term limits? Borja may have fostered due solicitude to the principle that the voters should have consciously elected the official to serve for t hree consecutive terms for the limits to take hold, yet the text of the Constitution itself demonstrates that the service of three consecutive terms already suffices. As earlier noted, full service of three terms normally equates to three consecutive valid elections, so the conflict should be rare. But if the conf lict does arise, where the full service of three terms did not arise as a consequence of three consecutive valid elections, As earlier intimated, the full service dimension s hould bear greater impact than the valid election dimension. Full service of three terms is sufficient to put into effect the const itutional term limits for local elective officials. After all, the text of Section 8, Article X of the Constitution itself lays greater emphasis on the fact of servic e than on the fact of election. It may be added that whatever private doubts of the framers may have had as to the wisdom of term limits, the Constitution itself imposes such term limits on every elective national and local office. The Constitution itself regulates through these limits the ability of vot ers to choose their representative officials. The system of term limits as a tool to democratize opportunity for public office as well as the field of voters choice is a policy move embedded by the people in the fundamental law of the land. As such, the scope and definition of term limits must be framed from the context of the Constitution itself. In his ponencia in Latasa v. COMELEC, 9 Justice Azcuna, himself a member of the 1986 Constitutional Commiss ion, eloquently explained the constitutional purpose of term limits: This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom to choo se those who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three consecutiv e terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario sought to be avoided by the Constitution, if not abhorred by it. 10 The same considerations should militate against the present cause of respondent. It cannot be denied that he has fully served without interruption as mayor for the last 12 years and, had his arguments been upheld, could do so for another three (3) years. His continued stay in office is abhorrent to the

Constitution. Now even if the stale claim of the respondent that he was not validly elected to a second term is accepted for the nonce, it would not undo the fact that respondent did perform the functions of the public office during the entirety of his 1998 -2001 term, and was at no point during that term, under legal compulsion to relinquish the same. The nullification of respondents 1998 proclamation was never enforced. Thus, the original petition for disqualification in G.R. No. 167591 should be granted and respondent removed from office on what is n ow his fourth consecutive term. Pursuant to Section 44 of the Local Government Code, it should be the Vice -Mayor of Mabalacat who shall succeed into office since the disqualification of respondent has caused a permanent vacancy in the office of Mayor. There is no basis to accept the claim of petitioner in G.R. No. 170577 that he, the "runner -up" in the 2004 mayoralty race, should be installed in lieu of respondent. The hornbook rule is that a second place candidate cannot be proclaimed as a substitute winner. 1^vvphi1.net Said general rule remains unaffected even with the Courts recent ruling in Cayat v. COMELEC. 11 Cayat was predicated on a particular finding that that the order of the COMELEC disqualifying the candidate therein had become final even before election day, thus rendering the votes nonetheless cast in favor of that candidate as stray. No such finding exists in this case. While the COMELEC Second Division did disqualify Morales a few days before Election Day, 2004, the said decision was seasonably elevated to the COMELEC en banc, which in fact reversed the Second Division some months after the election and proclamation of Morales. It is suggested by petitioner in G.R. No. 170577 that the general rule should nonetheless not apply to this case, owing to th e obiter dicta in Labo v. COMELEC12 that perhaps the second placer could possibly be declared the winner "if the electorate fully aware in fact and in law of a c andidate'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 misapply ing their franchise or throwing away their votes, in which case, the eligible candidate obtaining the next higher number of votes may be deemed elected." 13 It should weigh that the Court has never to date applied the Labo obiter in order to elevate the second placer into office. This is because the bar set therein is actually quite high. It entails a conclusion that the voters intentionally wasted their ballots knowing that, in spite of their vote for him or her, the candidate was ineligible.14 As phrased, the Labo obiter requires a finding of spectacular flagrancy on the part of the voting public. In order to actualize the Labo obiter to seat a second placer, the Court has to be prepared to impugn the character and mental acuity of the voters in the particular territory. The standard in the Labo obiter is not that the voters were deceived into believing that the candidate was eligible, it is that the voters were well aware that the candidate was disqualified yet still chose to cast a vote they knew would be counted as stray in favor of the candid ate. Such votes, under the Labo obiter, could not have been cast with the intention to install the candidate into office, but instead were elected to stroke the ego of the candidate. Ironically, a losing candidate who proposes the application of the Labo obiter to his or her benefit will have to, in the process, denigrate the good faith and intelligence of the voting public. If that strikes as incongruous, it may be because that the general rule in Labo that t he second placer can never assume the office is so intrinsically sound, it should take a convergence of highly unusual, absurd or malevolent circumstances in order that the exception may be properly had. No harm to the legal order would have ensued if the Labo obiter did not exist in our jurisprud ence. It cannot be assumed that the people of Mabalacat knew that respondent was running for a fourth consecutive legal term and even if the assumption is accepted, it cannot immediately translate into a "notorious" awareness that he was disqualified from running for the office, especially since there was a ruling, albeit it did not obtain finality before the expiration of his second term, that decreed that he had actually lost th e 1998 elections. Besides, in Labo itself, the people of Baguio, by the same measure, knew that Labo had been previously disqualified from running as Mayor in 1988 due to his citizenship predicament, yet still voted him into office anyway when he ran again in 1992. Still, the Court declined to install the secon d placer in lieu of Labo. I see no need for a different result to obtain in this case. WHEREFORE, I VOTE to grant the petition in G.R. No. 167591 and to DISMISS the petition in G.R. No. 170577. DANTE O. TINGA Associate Justice EN BANC

FRANCIS G. ONG,

G.R. No. 163295 Present:

Petitioner,

PANGANIBAN, C.J. PUNO, QUISUMBING, YNARES-SANTIAGO, - versus SANDOVAL-GUTIERREZ, CARPIO AUSTRIA-MARTINEZ, CORONA, CARPIO MORALES, CALLEJO, SR., AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ. Promulgated:

JOSEPH STANLEY ALEGRE and

COMMISSION ON ELECTIONS, Respondents. January 23, 2006 x---------------------x ROMMEL G. ONG, Petitioner,

versus -

G.R. No. 163354

JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents. x----------------------------------------x DECISION

GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of the Commiss ion on Elections (COMELEC) en banc .

The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en banc resolution[1] dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for reconsideration of the resolution dated March 31, 2004[2] of the COMELECs First Division. The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its aforesaid May 7, 200 4 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295. Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions. The recourse stemmed from the following essential and undisputed factual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel Certificate of Candidacy[3] of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated on the three-consecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those elections. To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicen te, Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest,[4] albeit the decision came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term as mayor-elect of the municipality of San Vicente.

Acting on Alegres petition to disqualify and to cancel Francis certificate of candidacy for the May 10, 2004 elections, the First Division of the COMELEC rendered on March 31, 2004 a resolution [5] dismissing the said petition of Alegre, rationalizing as follows:

We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however, from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte, Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the legally elected mayor in the 1998 mayoralty election in San Vicente, Camarines Norte. This disposition had become final after the [COMELEC] dismissed the appeal filed by Ong, the case having become moot and academic. xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong could not be considered as having served as mayor from 1998 to 2001 because he was not duly elected to the post; he merely assumed office as a presumptive winner; which presumption was later overturned wh en [the RTC] decided with finality that [he] lost in the May 1998 elections. (Words in bracket and emphasis in the original).

Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution[6] reversing the March 31, 2004 resolution of the COMELECs First Division and thereby (a) declaring Francis as disqualified to run for mayor of San Vicente, Camarines Norte in the May 10, 2004 ; (b) ordering the deletion of Francis name from the official list of candidates; and (c) directing the concerned board of election inspectors not to count the votes cast in his favor. The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste to seek the assistance of his political party, the Nationalist Peoples Coalition, which immediately nominated his older brother, Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his brother Francis. The following undisputed events then transpired: 1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong. 2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter [7] to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the COMELECs inacti on on Alegre's petition to cancel Rommels certificate of candidacy, the name Rommel Ong be included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was granted by the PES Carino. 3. On May 10, 2004, Alegre wrote [8] to then COMELEC Commissioner Virgilio Garcillano, Commissioner -in-Charge for Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cario. Responding, Commissioner Garcillano issued a Memorandum under date May 10, 2004[9] addressed to PES Liza D. Zabala-Cario, ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7, 2004.[10] Said Memorandum partly stated: The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the Commission En banc, the Certificate of candidacy of Francis Ong was denied due course ," and elaborated further that: "x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of candidates unless the substitution is approved by the Commission. In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due course; and 2) the election officer be directed to delete his name from the list of candidates." The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA 617) which states: "There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of his certificate of candidacy."

In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting the latter to file a protest with that Board. [11] 5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty post in San Vicente, Camarines Norte.[12]

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother Rommels petition in G.R. No. 163354 followed barely a week after. In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated.[13]

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegres Petition to Deny Due Course to or Cancel Certificate of Candidacy of Rommel Ong , for being moot and academic. [14]

The issues for resolution of the Court are: In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its en bancresolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of candidates so that any vote cast in his favor shall be considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommels certificate of ca ndidacy in the same mayoralty election as substitute for his brother Francis.

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Franciss assumption of office as Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose of the three -term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that , while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation as mayo r-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec[15], that a proclamation subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a presumptive winner and subject to the final outcome of the election protest. The three-term limit rule for elective local officials 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.

Section 43 (b) of the Local Government Code restates the same rule as follows: Sec. 43. Term of Office. xxx xxx xxx

(b) No local elective official shall serve for more than three consecutive years in the same position. 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.

For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has fully served three (3) consecutive terms.[16] With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitio ner Francis from running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner Francis Ong having be en duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May 1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Franciss assumption of office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term ser vice in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, fo r Francis, service for the full term, and should be counted as a full term served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local elective officials from being elected and serving for more than three consecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, [17] that it was Francis opponent (Alegre) who won in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must be stres sed, was without practical and legal use and value, having been promulgated after the term of the contested office has expired. Petitioner Francis contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation was under protest did not make him less than a duly electe d mayor. His proclamation by the Municipal Board of Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation of the three-term rule. The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre would under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refu ge from the Courts ruling in, Lonzanida vs. Comelec,[18] citing Borja vs. Comelec [19]. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fu lly serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post before the expiration of the term.

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty 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. On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was actually no interruption or break in the continuity of Francis service respecting the 1998 -2001 term. Unlike Lonzanida, Francis was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San Vicente, Camarines Norte for the entire period covering the 1998-2001 term. The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from running in the May 10, 2004 elections for the mayoralty post of San V icente and denying due course to his certificate of candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence: As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from 1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en banc resolution even before its finality [20] is now of little moment and need not detain us any longer.

Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels petition in G.R. No. 163354 in which he (Rommel) c hallenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May 10, 2004 ele ctions. As it were, existing COMELEC policy[21]provides for the non-inclusion of the name of substitute candidates in the certified list of candidates pending approval of the substitution.

Not to be overlooked is the Courts holding in Miranda vs. Abaya,[22] that a candidate whose certificate of candidacy has been cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former, thus: While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code. Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted, there is no mention of the case where a candidate is excluded not only by disqualification but also by denial an d cancellation of his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons w hose certificates of candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code. xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all. xxx xxx xxx

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs. Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all. Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official candidate of

a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a person whose certificate of candidacy has been cancelled and denied due course.

In any event, with the hard reality that the May 10, 2004 elections were already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

CANCIO C. GARCIA Associate Justice

WE CONCUR:

ARTEMIO V. PANGANIBAN Chief Justice

LEONARDO A. QUISUMBING Associate Justice REYNATO S. PUNO Associate Justice

CONSUELO YNARES-SANTIAGO Associate Justice ANGELINA SANDOVAL-GUTIERREZ Associate Justice

ANTONIO T. CARPIO Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ Associate Justice

RENATO C. CORONA Associate Justice

CONCHITA CARPIO MORALES Associate Justice

ROMEO J. CALLEJO, SR. Associate Justice

ADOLFO S. AZCUNA Associate Justice

DANTE O. TINGA Associate Justice

MINITA V. CHICO-NAZARIO Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairman's Attestation, it is hereby certified tha t the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.

ARTEMIO V. PANGANIBAN Chief Justice Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 109005 January 10, 1994 JUAN D. VICTORIA, petitioner, vs. THE COMMISSION ON ELECTIONS and JESUS JAMES CALISIN, respondents. Juan D. Victoria for himself and in his own behalf. The Solicitor General for public respondent.

QUIASON, J.: This is a petition for certiorari, under Rule 65 of the Revised Rules of Court in relation to section 2, Article IX of the Constitution, to set aside (a) the Resolution of the Commission on Elections (COMELEC) dated January 22, 1993, which certified respondent James Calisin as the h ighest ranking member of the Sangguniang Panlalawigan of the Province of Albay and (b) its Resolution dated February 22, 1993, which denied the mot ion for reconsideration of petitioner. The issue in the case at bench is the ranking of the members of the Sangguniang Panlalawigan of the Province of Albay for purposes of succession. 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, to wit:

FIRST DISTRICT Name No. of Votes Garnered 1. Jesus James Calisin 28,335 votes 2. Vicente Go, Sr. 17,937 votes 3. Clenio Cabredo 16,705 votes SECOND DISTRICT 1. Juan D. Victoria 32,918 votes 2. Jesus Marcellana 26,030 votes 3. Lorenzo Reyeg 23,887 votes THIRD DISTRICT 1. Ramon Fernandez, Jr. 19,315 votes 2. Masikap Fontanilla 19,241 votes 3. Arturo Osia 17,778 votes 4. Nemesio Baclao 17,545 votes

(Rollo, pp. 27-28) 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 COM ELEC 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 on February 22, 1993. Hence, this petition. Petitioner claims that the ranking of the Sanggunian members should not only be based on the number of votes obtained in rela tion 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 th e number of votes obtained. Conversely, a district may have a smaller number of registered voters but may have a big voters' turn-out, in which case the winning candidate would get a higher percentage of the votes. Applying his formula, petitioner would come out to be the highest ranking Sanggunian member . Petitioner gives the following illustration: 1. for private respondent.

107,216 (actually voted) x 28,335 (votes obtained) = 23.40% 129,793 (registered voters) (Rollo, pp. 24, 25 and 30) 2. for petitioner 121,423 (actually voted) x 32,918 (votes obtained) = 25.84% 154,665 (registered voters) (Rollo, p. 9). We are not persuaded. The 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. xxx xxx xxx 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. (Emphasis ours) The COMELEC came up with the following ranking of the top three Sanggunian members: NAME District Registered Votes Percent Rank of Elected Voters Obtained Dist'n Candidates ALBAY CALISIN, JESUS JAMES B. 1st 130,085 28,335 21.78 1st VICTORIA, JUAN D. 2nd 155.318 32,918 21.19 2nd MARCELLANA JESUS, M. 2nd 155.318 26,030 16.76 3rd (Rollo, p. 14) The law is clear that 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. Th e courts may not speculate as to the probable intent of the legislature apart from the words (Pascual v. Pascual -Bautista, 207 SCRA 561 [1992]). In the case of Globe-Mackay Cable and Radio Corporation v . National Labor Relations Commission , 206 SCRA 710 (1992), we held that: . . . Under the principles of statutory construction, if a statue is clear, plain and free from ambiguity, it must be given it literal meaning and applied without attempted interpretation. This plain-meaning rule or verba legis derived from the maxim, index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by the legislature in a statute correctly express its intent or will and preclude the court from construing it differently. The legislature is presumed to know the meaning of the words, to have used words advisely, and to have expressed its intent by the use of such words as are found in the statute. Verba legis non est recedendum, or from the words of a statute there should be no departure. . . Petitioner's contention is therefore untenable considering the clear mandate of the law, which leaves no room for o ther 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 Resolutio n dated January 22, 1993. WHEREFORE, the petition is DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Puno and Vitug, JJ., concur. Republic of the Philippines SUPREME COURT Manila EN BANC

G.R. No. 90762 May 20, 1991 LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner, vs. LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte Provincial Treasurer FLORENCIO LUNA, respondents. Zozimo G. Alegre for petitioner. The Provincial Attorney for respondents. RES OLU TI ON

GUTIERREZ, JR., J.:p This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August 28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting Vice -Governor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments while actually discharging the duties of the office. The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice -Governor, Leopoldo E. Petilla as Acting Governor of Leyte. On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also designated by Se cretary Luis Santos to act as the Vice-Governor for the province of Leyte. The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988. On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act as the Vice-Governor of Leyte. In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily performing the functions of the Governor, could concurrently assume the functions of both offices. As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads: WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no permanent ( sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the Vice-Governor after he took his oath of office to said position. WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official communication of th e Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law. WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L. Granados and the Honorable Renato M. Rances.

RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice -Governor of Leyte. ( Rollo, p. 27) The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion. On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the letter reads: This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no succession provided for in case of temporary vacancy in the office of the vice-governor and that the designation of a temporary vice -governor is not necessary. We hold the view that the designation extended by the Secretary of Local Government in favor of one of the S angguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vice -governor during the pendency of the electoral controversy in the Office of the Governor, does not contradict the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily designated to perform the functions of the vice -governor could not be considered that the Sangguniang member succeeds to the office of the latter, for it is basic that designation is merely an imposition of additional duties to be performed by the designee in addition to the official functions attached to his office. Furthermor e, the necessity of designating an official to temporarily perform the functions of a particular public office, would depend on the discretion of the appointing authority and the prevailing circumstances in a given area and by taking into consideration the best intere st of public service. On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the electoral controversy in the Office of the Gov ernor has not yet been settled, calls for the designation of the Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31) In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be modified accordingly. The letter states: In view thereof, please correct previous actions made by your office and those of the Sangguniang Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such. ( Rollo, p. 32) On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier request. Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of Vice -Governor. Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting Vice-Governor of Leyte. In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was proclaimed the Govern or of the province of Leyte. During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio Luna allowed the payment to t he petitioner of his salary as acting Vice-Governor of Leyte in the amount of P17,710.00, for the actual services rendered by the petitioner as acting ViceGovernor. On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon. On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which he received while acting as the Vice -Governor of Leyte. On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the Vice-Governor while he was acting as such. The petitioner interposes the following reason for the allowance of the motion for reconsideration: THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE JUSTICE AND EQUITY. The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or not the Secretary of Local Government has the authority to make temporary appointments? The respondents argue that there exists no vacancy in the Office of the Vice -Governor which requires the appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice -Governor, the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor, they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to resolve.

The arguments are of doubtful validity. The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office . (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61) Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice -Governor was left vacant when the duly elected ViceGovernor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law, the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor. There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor, continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period. Precisely, it was Petilla's automatic assumption to the acting Governorship that result ed in the vacancy in the office of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion to ascertain whether or not the Provincial Gover nor should devote all his time to that particular office. Moreover, it is doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority. Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government had the autho rity to designate the petitioner. We hold in the affirmative. The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is wanting. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting Vice -Governor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the Commission on Elections. The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause disrupt ions and delays in the delivery of basic services to the people and in the proper management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice -Governor. The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor. The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and reconsidered h is previous position and acknowledged the need for an acting Vice-Governor. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision over local go vernments as provided by law and the members of the board who are junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise. A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of their right of representation and governance in their own local government. In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated or absen t, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is missing. Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the leade rship of the province of Leyte, the urgency of filling the vacancy in the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to dwell our selves into the fact that nothing happened to acting Governor Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the government. It is a continuous duty unbridled by any political considerations. The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the performance of the duties of the ViceGovernor. The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:

Section 49: In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently inc apacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who obtained the highest number of votes in the election immediately precedi ng, . . . shall assume the office for the unexpired term of the Vice-Governor. . . . By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill the vacancy. The petitioner i s himself the member of the Sangguniang Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the temporary ap pointment. In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is indubitable. The compensation, however, to be remunerated to the petitioner, following the example in Commonwealth Act No. 588 and the Revised Administrativ e Code, and pursuant to the proscription against double compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary authorized by law for the Office of the Vice-Governor. And finally, even granting that the President, acting through the Secretary of Local Government, possesses no power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation. There is no denying that the petitioner assumed the Office of the Vice -Governor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President, the Secretary of Local Government, after which he to ok his oath of office before Senator Alberto Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the petitioner 's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as the acting ViceGovernor that the validity of the appointment of the petitioner was made an issue and the recognition withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice -Governor. He was acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually rendered as the acting Vice-Governor of the province of Leyte. ( See Cantillo v. Arrieta, 61 SCRA 55 [1974]) WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the petitioner has recei ved, in the amount exceeding the salary authorized by law for the position of Senior Board Member, shall be considered as payment for the actual se rvices rendered as acting Vice-Governor and may be retained by him. SO ORDERED. Fernan C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Grio-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur. EN BANC

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents. DECISION PUNO, J .: Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Mun icipality of Bangui, Ilocos Norte. The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the Katipunan ng Kabata an of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her application on the ground that petitioner, who was then twenty -one years and ten (10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in Section 3 [b] of COMELEC Resolution No. 2824. On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter" with the Municipal Cir cuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member and voter in the Katipunan ng Kabataan. [1] The Board of Election Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte.[2] The presiding judge of the Regional Trial Court, however, inhibited himself from acting on the appeal due to his close association with petitioner.[3]

On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo, [4] disapproved petitioner's certificate of candidacy again due to her age. [5] Petitioner, however, appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and allowed petitioner to run. [6] On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. [7] Earlier and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a " Petition of Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely representing her age qualification in her certificate of can didacy. The petition was sent by facsimile[8] and registered mail on April 29, 1996 to the Commission on Elections National Office, Manila. On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en banc issu ed an order directing the Board of Election Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the proclamation of petitioner in the event sh e won in the election. The order reads as follows: "Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29, 1996, the pertinent allegations of which reads: xxx 5. That the said respondent is disqualified to become a voter and a candidate for the SK for the reason that she will be more th an twenty-one (21) years of age on May 6, 1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate, a copy of which is hereto attached and marked as Annex "A"; 6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as such, she is disqualified; that her certificate of candidacy should not be given due course and that said candidacy must be cancelled; x x x." the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board of Election Tellers/Board of Canvasse rs of Barangay San Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the event she garners the highes t number of votes for the position of Sangguniang Kabataan [sic]. Meantime, petitioner is hereby required to submit immediately ten (10) copies of his petition and to pay the filing and legal research fees in the amount of P510.00. SO ORDERED."[9] On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of 76. [10] In accordance with the May 2, 1996 order of the COMELEC en banc , the Board of Election Tellers did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27, 1996. On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the position of SK chairman, Bar angay San Lorenzo, Bangui, Ilocos Norte.[11] The proclamation was "without prejudice to any further action by the Commission on Elections or any other interested party."[12] On July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality of Bangui, Iloco s Norte. She won as Auditor and was proclaimed one of the elected officials of the Pederasyon. [13] Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her certificate of candidacy on the ground that she has exceeded th e age requirement to run as an elective official of the SK. I Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is under the supervision o f the COMELEC and shall be governed by the Omnibus Election Code. [14] The Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel a certificate of candidacy, viz: "Sec. 78. Petition to deny due course to or cancel a certificate of candidac y. -- A verified petition seeking to deny due course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material representation contained ther ein 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 filing of the certificate of candidacy and shall be decided, after due notice and hearing, not later than fifteen days before election." In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny due course to or cancel a certificate of candidacy for an elective office may be filed with the Law Department of the COMELEC on the ground that the candidate has made a false materia l representation in his certificate. The petition may be heard and evidence received by any official designated by the COMELEC after which the case shall be decid ed by the COMELEC itself.[15] Under the same Rules of Procedure, jurisdiction over a petition to cancel a 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. [16] It is therefore the COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the said Rules thus: "Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two (2) Divisions to hear and decide protests or petitions in ordinary actions, special actions, special cases, provisional remedies, contempt and special proceedings except in accreditat ion of citizens' arms of the Commission."[17] In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained the petition and issued the order of May 2, 1996. [18] II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the formal requirements of plead ings under the COMELEC Rules of Procedure. These requirements are: "Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must be filed in ten (10) legible copies. However, when there is more than one respondent or protestee, the petitioner or protestant must file additional number of copies of the petition or prote st as there are additional respondents or protestees. Sec. 2. How Filed. -- The documents referred to in the immediately preceding section must be filed directly with the proper Clerk of Court of the Commission personally, or, unless otherwise provided in these Rules, by registered mail. In the latter case, the date of mailing is the date of filing and the requirement as to the number of copies must be complied with. Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules shall be printed, mimeographed or typewritten on legal size bond paper and shall be in English or Filipino. x x x." Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the proper Clerk of Court of the COMELEC personally, or, by registered mail. In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were filed with the COMELEC. [19] Also, the COMELEC en banc issued its Resolution on the basis of the petition transmitted by facsimile, not by registered mail. A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. [20] The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to rep roduce an image of the elemental area in the proper position and the correct shade. [21] The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile.[22] Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much less by the Rules of Co urt. A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. [23] Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile pleading should have restrained the COMELEC en banc from acting on the petition and issuing the questioned order. The COMELEC en banc should have waited until it received the petition filed by registered mail. III To write finis to the case at bar, we shall now resolve the issue of petitioner's age. The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who were at least 15 years but less than 18 years of age. [24] The Kabataang Barangay sought to provide its members a medium to express their views and opinions and participate in issues of transcendental importance.[25] Its affairs were administered by a barangay youth chairman together with six barangay youth leaders who were actual residents of the barangay and were at least 15 years but less than 18 years of age. [26] In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than 21 years of age." The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21 years old. [27] The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan (SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng Kabataan. [28] The chairman automatically becomes ex-officio member of the Sangguniang Barangay. [29] A member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or becomes permanently incapacitated, dies or resigns from office. [30] Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local Government Code of 1991, viz: "Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be composed of all citizens of the Philippines actually residing in the barangay for at least six (6) months, who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly registered in the list of the sangguniang kabataan or in the official barangay list in the custody of the barangay secretary." A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang Kabataan if he possesses the following qualifications: "Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan must be a citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of the barangay for at least one (1) year immediately prior to election, at least fifteen ( 15) years but not more than twenty-one (21) years of age on the day of his election, able to read and write Filipino, English, or the local dialect, and must not have been convicted of any crime involving moral turpitude." Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime involving moral turpitude. For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng Kabataan becomes a qualified voter and an elective official. Thus: "Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the SK elections, a person must be: a) a citizen of the Philippines;

b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he must have been born between May 6, 1975 and May 6, 1981, inclusive; and c) a resident of the Philippines for at least one (1) year and actually residing in the barangay wherein he proposes to vote for at least six (6) months immediately preceding the elections." xxx "Sec. 6. Qualifications of elective members. -- An elective official of the SK must be: a) a qualified voter; b) a resident in the barangay for at least one (1) year immediately prior to the elections; and c) able to read and write Filipino or any Philippine language or dialect or English. Cases involving the eligibility or qualification of candidates shall be decided by the city/municipal Election Officer (EO) whose decision shall be final." A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual resident of the barangay at least six (6) months immediately preceding the elections. A candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1) year immediately preceding the elections; and (c) able to read and write. Except for the question of age, petitioner has all the qualifications of a member and voter in the Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and 428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a member and voter in the Katipunan ng Kabataan and as candidate for the SK elections. A closer look at the Local Government Code will reveal a distinction between the maximum age of a member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of the Code sets a member's maximum age at 21 years only. There is no further provision as to when the member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "on the day of his election" is an additional qualification. The member may be more than 21 years of age on election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official, however, must not be more than 21 years old on the day of election. The distinction is understandable considering that the Code itself provides more qualifications for an elective SK official th an for a member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio.[31] The courts may distinguish when there are facts and circumstances showing that the legislature intended a distinction or qualification. [32] The qualification that a voter in the SK elections must not be more than 21 years of age on the day of the election is not pr ovided in Section 424 of the Local Government Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution No. 2824. [33] Since a "qualified voter" is not necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections at exactly 21 years on the day of the election. The provision that an elective official of the SK should not be more than 21 years of age on the day of his election is very clear. The Local Government Code speaks of years, not months nor days. When the law speaks of years, it is understood that years are of 365 days each. [34] One born on the first day of the year is consequently deemed to be one year old on the 365th day after his birth -- the last day of the year.[35] In computing years, the first year is reached after completing the first 365 days. After the first 365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the 365th day is the first day of the next 365 -day cycle and he turns 22 years old on the 365th day. The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22 years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22 years on election day. In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth official was expressly st ated as "x x x at least fifteen years of age or over but less than eighteen x x x." [36] This provision clearly states that the youth official must be at least 15 years old and may be 17 years and a fraction of a year but should not reach the age of eighteen years. When the Local Government Code increased the age limit of members of the youth organization to 21 years, it did not reenact the provision in such a way as to make the youth "at least 15 but less tha n 22 years old." If the intention of the Code's framers was to include citizens less than 22 years old, they should have stated so expressly instead of leaving the matt er open to confusion and doubt. [37] Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of 1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21 years of age by the time President Aquino assumed power. [38] They were not the "youth" anymore. The Local Government Code of 1991 fixed the maximum age limit at not more than 21 years [39] and the only exception is in the second paragraph of Section 423 which reads: "Sec. 423. Creation and Election. -- a) x x x; b) A sangguniang kabataan official who, during his term of office, shall have passed the age of twenty-one (21) years shall be allowed to serve the remaining portion of the term for which he was elected."

The general rule is that an elective official of the Sangguniang Kabataan must not be more than 21 years of age on the day of his election. The only exception is when the official reaches the age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the remaining portion of the term for which he was elected. According to Senator Pimentel, the youth leader must have "been elected prior to his 21st birthday."[40] Conversely, the SK official must not have turned 21 years old before his election. Reading Section 423 [b] together with Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on the day of his election. The maximum age of a youth official must therefore be exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his election. In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old. On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang Kabataan elections. The requirement that a candidate possess the age qualification is founded on public policy and if he lacks the age on the day of the election, he can be declared ineligible.[41] In the same vein, if the candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the candidate was elected will not make the age requirement directory, nor will it validate his election. [42] The will of the people as expressed through the ballot cannot cure the vice of ineligibility.[43] The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the highest number of votes in the May 6, 1996 elections, to be declared elected. [44] A defeated candidate cannot be deemed elected to the office. [45] Moreover, despite his claims,[46] private respondent has failed to prove that the electorate themselves actually knew of petitioner's ineligibility and that they maliciously vote d for her with the intention of misapplying their franchises and throwing away their votes for the benefit of her rival candidate. [47] Neither can this Court order that pursuant to Section 435 of the Local Govern ment Code petitioner should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of votes in the May 6, 1996 elections. [48] Section 435 applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to qualify, [49] is convicted of a felony, voluntarily resigns, dies, is permanently incapacitated, is removed from office, or has been absent without leave for more than three (3) consecutive months." The question of the age qualification is a question of eligibility. [50] Being "eligible" means being "legally qualified; capable of being legally chosen."[51] Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes for holding public office.[52] Ineligibility is not one of the grounds enumerated in Section 435 for succession of the SK Chairman. To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be filled by the SK me mber chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from among themselves. The member chosen shall assume the office of SK Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy the rig hts and privileges appurtenant to said office. IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term. SO ORDERED. Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur. Hermosisima, J., on leave.