G.R. No. 120295
95-028, a (supplemental)
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.
PANGANIBAN, J.:
The ultimate question posed before this Court in these twin cases is:
Who should be declared the rightful governor of Sorsogon -
(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 jurisprudence on
citizenship and elections, and upholds the superiority of substantial
justice over pure legalisms.
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 petition4 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 citizen
of the Philippines", and that his Certificate of Candidacy be canceled.
On May 1, 1995, the Second Division of the Comelec promulgated a
Resolution5 granting the petition with the following disposition6:
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 canceled.
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 Votes8 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. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No.
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 banc 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
. . ." Accordingly, at 8:30 in the evening of June 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) . . . was
released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in
the evening, there was no more legal impediment to the proclamation
(of Frivaldo) as governor . . ." 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 Resolution13 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 . . . having reacquired his Filipino citizenship by
repatriation on June 30, 1995 under the provisions of Presidential
Decree No. 725 . . . (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 garnered 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
resolution 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 Resolution 14 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 may 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
Governor 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 banc, promulgated on May 11,
1995; and
3. Resolution18 of the Comelec en banc, 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:
Sec. 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. (Emphasis 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 period 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 respective
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"?
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 district 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 xxx xxx
Inasmuch as Frivaldo had been declared by this Court20 as a non-
citizen, it is therefore incumbent upon him to show that he has
reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R.A. 7160).
Under Philippine law,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 Sorsogon, 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 declared 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 passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less than the
Solicitor General himself, who was the prime opposing counsel in the
previous cases he lost, this time, as counsel for co-respondent
Comelec, arguing the validity of his cause (in addition to his able 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 Executive
Issuances as the same poses a serious and contentious issue of policy
which the present government, in the exercise of prudence 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 cannot 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 created -- to 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 interpretation of the said Presidential
Memorandum, such as is now being proffered to the Court by Lee,
would visit unmitigated violence not only upon statutory 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 . . . (and) was approved in just one
day or on June 30, 1995 . . .", 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
Malacañang 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 personal
interest of respondent,"27 the Solicitor General explained during the
oral argument on March 19, 1996 that such allegation is simply
baseless as there were 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 proceedings were
speeded up is by itself not a ground to conclude that such proceedings
were necessarily tainted. After all, the requirements of repatriation
under P.D. No. 725 are not difficult to comply with, nor are they tedious
and cumbersome. In fact, P.D. 72529 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
repatriation 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
. . . 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 . . . 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 citizenship,
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 people 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. Giap and 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 argument34 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 law 35 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 being 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 . . . where he intends to be elected." It should be emphasized
that the Local Government Code requires an elective official to be
a registered voter. It does not require him to vote actually. Hence,
registration -- not the actual voting -- is the core of this "qualification".
In other words, the law's purpose in this second requirement is to
ensure that the prospective official is actually registered in the area he
seeks to govern -- and not anywhere else.
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 . . . In fact, he cast his vote in his precinct on May 8, 1995."36
So too, during the oral argument, his counsel steadfastly 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 dismissed (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."3 7
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 proclamation
(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 that the
repatriation of Frivaldo RETROACTED to the date of the filing of his
application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws shall
have no retroactive effect, unless the contrary is provided." But there
are settled exceptions40 to this general rule, such as when the statute
is CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS.
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 . . . curing defects and adding to the means of enforcing existing
obligations . . . (and) are intended to supply defects, abridge
superfluities in existing laws, and curb certain evils. . . . By their very
nature, curative statutes are retroactive . . . (and) reach back to past
events to correct errors or irregularities and to render valid and
effective 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 within
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 citizenship 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
husbands 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 . . ." because "such provision of the new
Constitution does not apply to Filipino women who had 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 naturalization, 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 wherein 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
naturalization.
Presidential Decree No. 725 provided a remedy for the
aforementioned legal aberrations and thus its provisions are
considered essentially remedial and 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 searches 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 law was enacted on
June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on
January 20, 1983, and applied 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 to be 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 anyone, or anything unjust or injurious would result from
giving retroactivity to his repatriation. Neither has Lee shown that
there 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 laws 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 not to be given
retroactive effect, and the Special Committee decides not to act, i.e.,
to delay the processing of applications for any substantial length 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.4
And as experience will show, the Special Committee was able to
process, act upon and grant applications for repatriation within
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 his 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 circumstances, 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 of August 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
position?"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 Government when he ran for Governor in 1988, in
1992, and in 1995. Every certificate of candidacy contains an oath
of allegiance to the Philippine Government."
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by Lee.
Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.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 been
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 have also become final and executory way
before the 1995 elections, and these "judicial pronouncements of his
political status as an American 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 connection 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 longer 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. This 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.
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 properly 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 date as well. The foregoing, of course, are
precisely consistent with our holding that lack of the citizenship
requirement is not a continuing disability or disqualification 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 the 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:
. . . (L)aws governing election 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
(citations omitted).6
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. In 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
are the choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly demonstrate
that the ineligibility is so patently antagonistic68 to constitutional and
legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and
promote. In this 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 retroactivity 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 voter 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 edifice. 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 political life.
Concededly, he sought American citizenship only to escape the
clutches of the dictatorship. 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 re-embrace his native Philippines even now at the
ripe old age of 81 years. Such loyalty 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 DISMISSED. 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.
G.R. No. 86564
August 1, 1989
RAMON L. LABO, JR., petitioner, vs. THE COMMISSION ON ELECTIONS
(COMELEC) EN BANC AND LUIS L. LARDIZABAL, respondents.
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on Elections
from looking into the question of his citizenship as a qualification for
his office as Mayor of Baguio City. The allegation that he is a foreigner,
he says, is not the issue. The issue is whether or not the public
respondent has jurisdiction to conduct any inquiry into this matter,
considering that the petition for quo warranto against him was not
filed on time.
It is noteworthy that this argument is based on the alleged tardiness
not of the petition itself but of the payment of the filing fee, which the
petitioner contends was an indispensable requirement. The fee is,
curiously enough, all of P300.00 only. This brings to mind the popular
verse that for want of a horse the kingdom was lost. Still, if it is shown
that the petition was indeed filed beyond the reglementary period,
there is no question that this petition must be granted and the
challenge abated.
The petitioner's position is simple. He was proclaimed mayor-elect of
Baguio City, on January 20, 1988. The petition for quo warranto was
filed by the private respondent on January 26, 1988, but no filing fee
was paid on that date. This fee was finally paid on February 10, 1988,
or twenty-one days after his proclamation. As the petition by itself
alone was ineffectual without the filing fee, it should be deemed filed
only when the fee was paid. This was done beyond the reglementary
period provided for under Section 253 of the Omnibus Election Code
reading as follows:
SEC. 253. Petition for quo warranto. — Any voter contesting the
election of a Member of the Batasang Pambansa, regional,
provincial, or city officer on the ground of ineligibility or of
disloyalty to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission within ten days
after the proclamation of the result of the election.
The petitioner adds that the payment of the filing fee is required under
Rule 36, Section 5, of the Procedural Rules of the COMELEC providing
that —
Sec. 5. No petition for quo warranto shall be given due course
without the payment of a filing fee in the amount of Three
Hundred Pesos (P300.00) and the legal research fee as required
by law.
and stresses that there is abundant jurisprudence holding that the
payment of the filing fee is essential to the timeliness of the filling of
the petition itself. He cites many rulings of the Court to this effect,
specifically Manchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was paid
out of time. In fact he says, it was flied ahead of time. His point is that
when he filed his "Petition for Quo Warranto with Prayer for
Immediate Annulment of Proclamation and Restraining Order or
Injunction" on January 26, 1988, the COMELEC treated it as a pre-
proclamation controversy and docketed it as SPC Case No. 88-288. No
docket fee was collected although it was offered. It was only on
February 8, 1988, that the COMELEC decided to treat his petition as
solely for quo warranto and re-docketed it as EPC Case No. 88-19,
serving him notice on February 10, 1988. He immediately paid the filing
fee on that date.
The private respondent argues further that during the period when the
COMELEC regarded his petition as a pre-proclamation controversy, the
time for filing an election protest or quo warranto proceeding was
deemed suspended under Section 248 of the Omnibus Election
Code. 2 At any rate, he says, Rule 36, Section 5, of the COMELEC Rules
of Procedure cited by the petitioner, became effective only on
November 15, 1988, seven days after publication of the said Rules in
the Official Gazette pursuant to Section 4, Rule 44 thereof. 3 These
rules could not retroact to January 26,1988, when he filed his petition
with the COMELEC.
In his Reply, the petitioner argues that even if the Omnibus Election
Code did not require it, the payment of filing fees was still necessary
under Res. No. 1996 and, before that, Res. No. 1450 of the respondent
COMELEC, promulgated on January 12, 1988, and February 26, 1980,
respectively. To this, the private respondent counters that the latter
resolution was intended for the local elections held on January 30,
1980, and did not apply to the 1988 local elections, which were
supposed to be governed by the first-mentioned resolution. However,
Res. No. 1996 took effect only on March 3, 1988, following the lapse of
seven days after its publication as required by RA No. 6646, otherwise
known as the Electoral Reform Law of 1987, which became effective
on January 5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and Orders of the Commission.
— The rules and regulations promulgated by the Commission
shall take effect on the seventh day after their publication in the
Official Gazette or in at least (2) daily newspapers of general
circulation in the Philippines.
The Court has considered the arguments of the parties and holds that
the petition for quo warranto was filed on time. We agree with the
respondents that the fee was paid during the ten-day period as
extended by the pendency of the petition when it was treated by the
COMELEC as a pre-proclamation proceeding which did not require the
payment of a filing fee. At that, we reach this conclusion only on the
assumption that the requirement for the payment of the fees in quo
warranto proceedings was already effective. There is no record that
Res. No. 1450 was even published; and as for Res. No. 1996, this took
effect only on March 3, 1988, seven days after its publication in the
February 25, 1988 issues of the Manila Chronicle and the Philippine
Daily Inquirer, or after the petition was filed.
The petitioner forgets Tañ;ada v. Tuvera 4 when he argues that the
resolutions became effective "immediately upon approval" simply
because it was so provided therein. We held in that case that
publication was still necessary under the due process clause despite
such effectivity clause.
In any event, what is important is that the filing fee was paid, and
whatever delay there may have been is not imputable to the private
respondent's fault or neglect. It is true that in the Manchester Case, we
required the timely payment of the filing fee as a precondition for the
timeliness of the filing of the case itself. In Sun Insurance Office, Ltd. v.
Asuncion, 5 however this Court, taking into account the special
circumstances of that case, declared:
This Court reiterates the rule that the trial court acquires
jurisdiction over a case only upon the payment of the prescribed
filing fee. However, the court may allow the payment of the said
fee within a reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the COMELEC
Rules of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees. — If the fees above
prescribed are not paid, the Commission may refuse to take action
thereon until they are paid and may dismiss the action or the
proceeding. (Emphasis supplied.)
The Court notes that while arguing the technical point that the petition
for quo warranto should be dismissed for failure to pay the filing fee
on time, the petitioner would at the same time minimize his alleged
lack of citizenship as "a futile technicality," It is regrettable, to say the
least, that the requirement of citizenship as a qualification for public
office can be so demeaned. What is worse is that it is regarded as an
even less important consideration than the reglementary period the
petitioner insists upon.
This matter should normally end here as the sole issue originally raised
by the petitioner is the timeliness of the quo warranto proceedings
against him. However, as his citizenship is the subject of that
proceeding, and considering the necessity for an early resolution of
that more important question clearly and urgently affecting the public
interest, we shall directly address it now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the nature of the instant
case, it would appear that our sole function in this proceeding
should be to resolve the single issue of whether or not the Court
of Appeals erred in ruling that the motion for new trial of the GSIS
in question should indeed be deemed pro forma.But going over
the extended pleadings of both parties, the Court is immediately
impressed that substantial justice may not be timely achieved, if
we should decide this case upon such a technical ground alone.
We have carefully read all the allegations and arguments of the
parties, very ably and comprehensively expounded by evidently
knowledgeable and unusually competent counsel, and we feel we
can better serve the interests of justice by broadening the scope
of our inquiry, for as the record before us stands, we see that there
is enough basis for us to end the basic controversy between the
parties here and now, dispensing, however, with procedural steps
which would not anyway affect substantially the merits of their
respective claims. 6
xxx
While it is the fault of the petitioner for appealing to the wrong court
and thereby allowing the period for appeal to lapse, the more correct
procedure was for the respondent court to forward the case to the
proper court which was the Court of Appeals for appropriate action.
Considering, however, the length of time that this case has been
pending, we apply the rule in the case of Del Castillo v. Jaymalin, (112
SCRA 629) and follow the principle enunciated in Alger Electric, Inc. v.
Court of Appeals, (135 SCRA 37) which states:
... it is a cherished rule of procedure for this Court to always strive
to settle the entire controversy in a single proceeding leaving no
root or branch to bear the seeds of future litigation. No useful
purpose will be served if this case is remanded to the trial court
only to have its decision raised again to the Intermediate Appellate
Court and from there to this Court. (p. 43)
Only recently in the case of Beautifont, Inc., et al. v. Court of Appeals,
et al. (G.R. No. 50141, January 29, 1988), we stated that:
... But all those relevant facts are now before this Court. And
those facts dictate the rendition of a verdict in the petitioner's
favor. There is therefore no point in referring the case back to the
Court of Appeals. The facts and the legal propositions involved
will not change, nor should the ultimate judgment. Considerable
time has already elapsed and, to serve the ends of justice, it is
time that the controversy is finally laid to rest. (See Sotto v.
Samson, 5 SCRA 733; Republic v. Paredes, 108 Phil. 57; Lianga
Lumber Co. v. Lianga Timber Co., Inc., 76 SCRA 197; Erico v. Heirs
of Chigas, 98 SCRA 575; Francisco v. City of Davao, 12 SCRA 628;
Valencia v. Mabilangan, 105 Phil. 162).lâwphî1.ñèt Sound
practice seeks to accommodate the theory which avoids waste of
time, effort and expense, both to the parties and the
 government, not to speak of delay in the disposal of the case (cf.
Fernandez v. Garcia, 92 Phil. 592, 597). A marked characteristic
of our judicial set-up is that where the dictates of justice so
demand ... the Supreme Court should act, and act with
finality.' (Li Siu Liat v. Republic, 21 SCRA 1039, 1046, citing Samal
v. CA, 99 Phil. 230 and U.S. v. Gimenez, 34 Phil. 74). In this case,
the dictates of justice do demand that this Court act, and act with
finality. 7
xxx
Remand of the case to the lower court for further reception of
evidence is not necessary where the court is in a position to resolve the
dispute based on the records before it. On many occasions, the Court,
in the public interest and the expeditious administration of justice, has
resolved actions on the merits instead of remanding them to the trial
court for further proceedings, such as where the ends of justice would
not be subserved by the remand of the case or when public interest
demands an early disposition of the case or where the trial court had
already received all the evidence of the parties. 8
This course of action becomes all the more justified in the present case
where, to repeat for stress, it is claimed that a foreigner is holding a
public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment, respondent
COMELEC implicitly adopted as "its own" private respondent's
repeated assertion that petitioner is no longer a Filipino citizen.
In so doing, has not respondent COMELEC effectively disqualified
itself, by reason of prejudgment, from resolving the petition for
quo warranto filed by private respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule directly on
the merits of this case.
Going over the record, we find that there are two administrative
decisions on the question of the petitioner's citizenship. The first was
rendered by the Commission on Elections on May 12, 1982, and found
the petitioner to be a citizen of the Philippines. 10 The second was
rendered by the Commission on Immigration and Deportation on
September 13, 1988, and held that the petitioner was not a citizen of
the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente
Santiago, Jr., with Commissioners Pabalate Savellano and Opinion
concurring in full and Commissioner Bacungan concurring in the
dismissal of the petition "without prejudice to the issue of the
respondent's citizenship being raised anew in a proper case."
Commissioner Sagadraca reserved his vote, while Commissioner Felipe
was for deferring decision until representations shall have been made
with the Australian Embassy for official verification of the petitioner's
alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman Miriam
Defensor-Santiago and Commissioners Alano and Geraldez of the
Commission on Immigration and Deportation. It is important to
observe that in the proceeding before the COMELEC, there was no
direct proof that the herein petitioner had been formally naturalized
as a citizen of Australia. This conjecture, which was eventually rejected,
was merely inferred from the fact that he had married an Australian
citizen, obtained an Australian passport, and registered as an alien with
the CID upon his return to this country in 1980.
On the other hand, the decision of the CID took into account the official
statement of the Australian Government dated August 12, 1984,
through its Consul in the Philippines, that the petitioner was still an
Australian citizen as of that date by reason of his naturalization in 1976.
That statement 12 is reproduced in full as follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by
virtue of a certificate of appointment signed and sealed by the
Australian Minister of State for Foreign Affairs on 19 October 1983,
and recognized as such by Letter of Patent signed and sealed by
the Philippines Acting Minister of Foreign Affairs on 23 November
1983, do hereby provide the following statement in response to
the subpoena Testificandum dated 9 April 1984 in regard to the
Petition for disqualification against RAMON LABO, JR. Y LOZANO
(SPC No. 84-73), and do hereby certify that the statement is true
and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of birth 23 December
1934, was married in the Philippines to an Australian citizen.
As the spouse of an Australian citizen, he was not required to
meet normal requirements for the grant of citizenship and
was granted Australian citizenship by Sydney on 28 July 1976.
B) Any person over the age of 16 years who is granted Australian
citizenship must take an oath of allegiance or make an
affirmation of allegiance. The wording of the oath of
affirmation is: "I ..., renouncing all other allegiance ..." etc.
This need not necessarily have any effect on his former
nationality as this would depend on the citizenship laws of his
former country.
C) The marriage was declared void in the Australian Federal
Court in Sydney on 27 June 1980 on the ground that the
marriage had been bigamous.
D) According to our records LABO is still an Australian citizen.
E) Should he return to Australia, LABO may face court action in
respect of Section 50 of Australian Citizenship Act 1948 which
relates to the giving of false or misleading information of a
material nature in respect of an application for Australian
citizenship. If such a prosecution was successful, he could be
deprived of Australian citizenship under Section 21 of the Act.
F) There are two further ways in which LABO could divest
himself of Australian citizenship:
(i) He could make a declaration of Renunciation of
Australian citizenship under Section 18 of the Australian
Citizenship Act, or
(ii) If he acquired another nationality, (for example, Filipino)
by a formal and voluntary act other than marriage, then
he would automatically lose as Australian citizenship
under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MAY HAND AND
SEAL OF THE AUSTRALIAN EMBASSY, MANILA, THIS 12th DAY OF
APRIL 1984. DONE AT MANILA IN THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of February 1, 1988, addressed to
the private respondent by the Department of Foreign Affairs reading
as follows: 13
Sir:
With reference to your letter dated 1 February 1988, I wish to
inform you that inquiry made with the Australian Government
through the Embassy of the Philippines in Canberra has elicited the
following information:
1) That Mr. Ramon L. Labo, Jr. acquired Australian citizenship on
28 July 1976.
2) That prior to 17 July 1986, a candidate for Australian
citizenship had to either swear an oath of allegiance or make
 an affirmation of allegiance which carries a renunciation of
"all other allegiance.
Very truly yours, For the Secretary of Foreign Affairs:
(SGD) RODOLFO SEVERINO, JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every
naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance, swear by Almighty God that
I will be faithful and bear true allegiance to Her Majesty Elizabeth
the Second, Queen of Australia, Her heirs and successors according
to law, and that I will faithfully observe the laws of Australia and
fulfill my duties as an Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
I, A.B., renouncing all other allegiance, solemnly and sincerely
promise and declare that I will be faithful and bear true allegiance
to Her Majesty Elizabeth the Second, Queen of Australia, Her heirs
and successors according to law, and that I will faithfully observe
the Laws of Australia and fulfill my duties as an Australian
citizen. 15
The petitioner does not question the authenticity of the above
evidence. Neither does he deny that he obtained Australian Passport
No. 754705, which he used in coming back to the Philippines in 1980,
when he declared before the immigration authorities that he was an
alien and registered as such under Alien Certificate of Registration No.
B-323985. 16 He later asked for the change of his status from immigrant
to a returning former Philippine citizen and was granted Immigrant
Certificate of Residence No. 223809. 17 He also categorically declared
that he was a citizen of Australia in a number of sworn statements
voluntarily made by him and. even sought to avoid the jurisdiction of
the barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these acts
as "mistakes" that did not divest the petitioner of his citizenship,
although, as earlier noted, not all the members joined in this finding.
We reject this ruling as totally baseless. The petitioner is not an
unlettered person who was not aware of the consequences of his acts,
let alone the fact that he was assisted by counsel when he performed
these acts.
The private respondent questions the motives of the COMELEC at that
time and stresses Labo's political affiliation with the party in power
then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed
because of the doctrine of res judicata, but this too must be dismissed.
This doctrine does not apply to questions of citizenship, as the Court
has ruled in several cases. 19 Moreover, it does not appear that it was
properly and seasonably pleaded, in a motion to dismiss or in the
answer, having been invoked only when the petitioner filed his
reply 20 to the private respondent's comment. Besides, one of the
requisites of res judicata, to wit, identity of parties, is not present in
this case.
The petitioner's contention that his marriage to an Australian national
in 1976 did not automatically divest him of Philippine citizenship is
irrelevant. There is no claim or finding that he automatically ceased to
be a Filipino because of that marriage. He became a citizen of Australia
because he was naturalized as such through a formal and positive
process, simplified in his case because he was married to an Australian
citizen. As a condition for such naturalization, he formally took the
Oath of Allegiance and/or made the Affirmation of Allegiance, both
quoted above. Renouncing all other allegiance, he swore "to be faithful
and bear true allegiance to Her Majesty Elizabeth the Second, Queen
of Australia ..." and to fulfill his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia made him
at worst only a dual national and did not divest him of his Philippine
citizenship. Such a specious argument cannot stand against the clear
provisions of CA No. 63, which enumerates the modes by which
Philippine citizenship may be lost. Among these are: (1) naturalization
in a foreign country; (2) express renunciation of citizenship; and (3)
subscribing to an oath of allegiance to support the Constitution or laws
of a foreign country, all of which are applicable to the petitioner. It is
also worth mentioning in this connection that under Article IV, Section
5, of the present Constitution, "Dual allegiance of citizens is inimical to
the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his naturalization
in Australia was annulled after it was found that his marriage to the
Australian citizen was bigamous, that circumstance alone did not
automatically restore his Philippine citizenship. His divestiture of
Australian citizenship does not concern us here. That is a matter
between him and his adopted country. What we must consider is the
fact that he voluntarily and freely rejected Philippine citizenship and
willingly and knowingly embraced the citizenship of a foreign country.
The possibility that he may have been subsequently rejected by
Australia, as he claims, does not mean that he has been automatically
reinstated as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship may
be reacquired by direct act of Congress, by naturalization, or by
repatriation. It does not appear in the record, nor does the petitioner
claim, that he has reacquired Philippine citizenship by any of these
methods. He does not point to any judicial decree of naturalization as
to any statute directly conferring Philippine citizenship upon him.
Neither has he shown that he has complied with PD No. 725, providing
that:
... (2) natural-born Filipinos who have lost their Philippine
citizenship may reacquire Philippine citizenship through
repatriation by applying with the Special Committee on
Naturalization created by Letter of Instruction No. 270, and, if their
applications are approved, taking the necessary oath of allegiance
to the Republic of the Philippines, after which they shall be
deemed to have reacquired Philippine citizenship. The
Commission on Immigration and Deportation shall thereupon
cancel their certificate of registration. (Emphasis supplied.)
That is why the Commission on Immigration and Deportation rejected
his application for the cancellation of his alien certificate of
registration. And that is also the reason we must deny his present claim
for recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local elections
on January 18, 1988, a citizen of the Philippines. In fact, he was not
even a qualified voter under the Constitution itself because of his
alienage. 21 He was therefore ineligible as a candidate for mayor of
Baguio City, under Section 42 of the Local Government Code providing
in material part as follows:
Sec. 42. Qualifications. — An elective local official must be a
citizen of the Philippines, at least twenty-three years of age on
election day, a qualified voter registered as such in the barangay,
municipality, city or province where he proposes to be elected, a
resident therein for at least one year at the time of the filing of his
certificate of candidacy, and able to read and write English,
Filipino, or any other local language or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile
technicality" that should not frustrate the will of the electorate of
Baguio City, who elected him by a "resonant and thunderous majority."
To be accurate, it was not as loud as all that, for his lead over the
second-placer was only about 2,100 votes. In any event, the people of
that locality could not have, even unanimously, changed the
requirements of the Local Government Code and the Constitution. The
electorate had no power to permit a foreigner owing his total
allegiance to the Queen of Australia, or at least a stateless individual
owing no allegiance to the Republic of the Philippines, to preside over
them as mayor of their city. Only citizens of the Philippines have that
privilege over their countrymen.
The probability that many of those who voted for the petitioner may
have done so in the belief that he was qualified only strengthens the
conclusion that the results of the election cannot nullify the
qualifications for the office now held by him. These qualifications are
continuing requirements; once any of them is lost during incumbency,
title to the office itself is deemed forfeited. In the case at bar, the
citizenship and voting requirements were not subsequently lost but
were not possessed at all in the first place on the day of the election.
The petitioner was disqualified from running as mayor and, although
elected, is not now qualified to serve as such.
Finally, there is the question of whether or not the private respondent,
who filed the quo warranto petition, can replace the petitioner as
mayor. He cannot. The simple reason is that as he obtained only the
second highest number of votes in the election, he was obviously not
the choice of the people of Baguio city.
The latest ruling of the Court on this issue is Santos v. Commission on
Elections 22 decided in 1985. In that case, the candidate who placed
second was proclaimed elected after the votes for his winning rival,
who was disqualified as a turncoat and considered a non-candidate,
were all disregarded as stray. In effect, the second placer won by
default. That decision was supported by eight members of the Court
then 23 with three dissenting 24 and another two reserving their
vote. 25 One was on official leave. 26
Re-examining that decision, the Court finds, and so holds, that it should
be reversed in favor of the earlier case of Geronimo v. Ramos, 27 Which
represents the more logical and democratic rule. That case, which
reiterated the doctrine first announced in 1912 in Topacio vs.
Paredes 28 was supported by ten members of the Court 29 without any
dissent, although one reserved his vote, 30 another took no part 31 and
two others were on leave. 32 There the Court held:
... it would be extremely repugnant to the basic concept of the
constitutionally guaranteed right to suffrage if a candidate who
has not acquired the majority or plurality of votes is proclaimed a
winner and imposed as the representative of a constituency, the
majority of which have positively declared through their ballots
that they do not choose him.
Sound policy dictates that public elective offices are filled by those
who have received the highest number of votes cast in the
election for that office, and it is a fundamental Idea in all
republican forms of government that no one can be declared
elected and no measure can be declared carried unless he or it
receives a majority or plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p. 676.)
The fact that the candidate who obtained the highest number of votes
is later declared to be disqualified or not eligible for the office to which
he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the
winner of the elective office. The votes cast for a dead, disqualified, or
non-eligible person may not be valid to vote the winner into office or
maintain him there. However, in the absence of a statute which clearly
asserts a contrary political and legislative policy on the matter, if the
votes were cast in the sincere belief that the candidate was alive,
qualified, or eligible, they should not be treated as stray, void or
meaningless.
It remains to stress that the citizen of the Philippines must take pride
in his status as such and cherish this priceless gift that, out of more
than a hundred other nationalities, God has seen fit to grant him.
Having been so endowed, he must not lightly yield this precious
advantage, rejecting it for another land that may offer him material
and other attractions that he may not find in his own country. To be
sure, he has the right to renounce the Philippines if he sees fit and
transfer his allegiance to a state with more allurements for him. 33 But
having done so, he cannot expect to be welcomed back with open arms
once his taste for his adopted country turns sour or he is himself
disowned by it as an undesirable alien.
Philippine citizenship is not a cheap commodity that can be easily
recovered after its renunciation. It may be restored only after the
returning renegade makes a formal act of re-dedication to the country
he has abjured and he solemnly affirms once again his total and
exclusive loyalty to the Republic of the Philippines. This may not be
accomplished by election to public office.
WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT a
citizen of the Philippines and therefore DISQUALIFIED from continuing
to serve as Mayor of Baguio City. He is ordered to VACATE his office
and surrender the same to the Vice-Mayor of Baguio City, once this
decision becomes final and executory. The temporary restraining order
dated January 31, 1989, is LIFTED.
G.R. No. 137329
August 9, 2000
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE M.
SERIO, petitioners, vs. COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification for
seeking and holding elective public office, in order to give candidates
the opportunity to be familiar with the needs, difficulties, aspirations,
potentials for growth and all matters vital to the welfare of their
constituencies; likewise, it enables the electorate to evaluate the office
seekers' qualifications and fitness for the job they aspire for. Inasmuch
as Vicente Y. Emano has proven that he, together with his family, (1)
had actually resided in a house he bought in 1973 in Cagayan de Oro
City; (2) had actually held office there during his three terms as
provincial governor of Misamis Oriental, the provincial capitol being
located therein; and (3) has registered as voter in the city during the
period required by law, he could not be deemed "a stranger or
newcomer" when he ran for and was overwhelmingly voted as city
mayor. Election laws must be liberally construed to give effect to the
popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court
seeking to set aside the January 18, 1999 Resolution[1] of the
Commission on Elections (Comelec) en banc in SPA No. 98-298, which
upheld the July 14, 1998 Resolution[2] of the Comelec First Division. The
assailed Resolutions ruled that Private Respondent Vicente Y. Emano
possessed the minimum period of residence to be eligible to vote in
Cagayan de Oro City, as well as be voted mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as
follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected, and
proclaimed provincial governor of Misamis Oriental. It was his third
consecutive term as governor of the province.In his Certificate of
Candidacy dated March 12, 1995, his residence was declared to be in
Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental, Emano
executed a Voter Registration Record in Cagayan de Oro City
(geographically located in the Province of Misamis Oriental), a highly
urbanized city, in which he claimed 20 years of residence. On March
25, 1998, he filed his Certificate of Candidacy for mayor of the city,
stating therein that his residence for the preceding two years and five
months was at 1409 San Jose Street, Capistrano Subdivision, Gusa,
Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along with
Emano, was Erasmo B. Damasing, counsel of herein petitioners. On
May 15, 1998, Petitioners Rogelio M. Torayno Sr., Generoso Q. Eligan
and Jacqueline M. Serio, all residents of Cagayan de Oro City, filed a
Petition before the Comelec, docketed as SPA No. 98-298, in which
they sought the disqualification of Emano as mayoral candidate, on the
ground that he had allegedly failed to meet the one-year residence
requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor. Thus, on
May 29, 1998, petitioners filed another Petition before the Comelec,
this time for quo warranto,[3] in which they sought (1) the annulment
of the election of private respondent; and (2) the proclamation of
Erasmo B. Damasing, who had garnered the next highest number of
votes, as the duly elected mayor of the city.
In its Resolution dated July 14, 1998, the Comelec First Division denied
the Petition for Disqualification. Upon petitioners' Motion for
Reconsideration and Motion for Consolidation, the two cases were
consolidated.[4]
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and
conclusions of the First Division, holding that "[t]he records clearly
show that the respondent is an actual resident of Cagayan de Oro City
for such a period of time necessary to qualify him to run for mayor
therein. This fact is clearly established by the respondent having a
house in the city which has been existing therein since 1973 and where
his family has been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial
official from residing and/or registering as a voter in a highly
urbanized city whose residents are not given the right to vote for
and be elected to a position in the province embracing such highly
urbanized city as long as he has complied with the requirements
prescribed by law in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the
petitioners showing that the respondent was a registered voter as
of March 13, 1995 in Precinct No. 12, Barangay Poblacion,
Tagoloan, Misamis Oriental bolster the petitioner's argument that
the respondent is not a resident [or a] registered voter in Cagayan
de Oro City since registration in said Precinct No. 12 does not
preclude the respondent from registering anew in another place."
Hence, this recourse[5] before this Court.
Issues
In their Memorandum,[6] petitioners submit that the main issue is
whether the "Comelec gravely abused its discretion amounting to lack
of jurisdiction in issuing the questioned Resolutions." Allegedly, the
resolution of this issue would depend on the following: [7]
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis Oriental until he filed his
certificate of candidacy for mayor of Cagayan de Oro City on
March 25, 1998 in the May 11, 1998 election;
(b) asserting under oath [that he was] qualified to act as governor
of said province until said date; and
(c) admitting, in sworn statements, [that he was] a resident of
Misamis Oriental, precluded him from acquiring a bona
fide domicile of choice for at least one (1) year in Cagayan de
Oro City prior to the May 11, 1998 elections, as to disqualify
him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing a residence
certificate in Cagayan de Oro City, holding offices as governor of
Misamis Oriental in the Capitol Building located in Cagayan de Oro City
and having a house therein where [he had] stay[ed] during his tenure
as governor, and registering as a voter in said City in June 1997, would
be legally sufficient, as against the undisputed facts above
enumerated, to constitute a change of his domicile of birth in Tagoloan,
Misamis Oriental in favor of a new domicile of choice in Cagayan de
Oro City for at least one (1) year for purposes of qualifying him to run
for city mayor in the May 11, 1998 elections.
3. Whether or not Erasmo Damasing, the candidate for mayor of
Cagayan de Oro City in the May 11, 1998 elections, who received the
second highest number of votes, can be declared winner, considering
that respondent Emano was disqualified to run for and hold said office
and considering that his disqualification or ineligibility had been
extensively brought to the attention and consciousness of the voters
prior to the May 11, 1998 election as to attain notoriety,
notwithstanding which they still voted for him."
Petitioners are seeking the resolution of essentially two questions: (1)
whether private respondent had duly established his residence in
Cagayan de Oro City at least one year prior to the May 11, 1998
elections to qualify him to run for the mayorship thereof; and (2) if not,
whether Erasmo Damasing, the candidate who had received the
second highest number of votes, should be proclaimed mayor of the
city.
The Courts Ruling
The Petition has no merit.
 Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the petitioners
was deliberated upon by the Court. We note that petitioners pray,
among others, for judgment "declaring Atty. Erasmo B. Damasing as
entitled to be proclaimed winner as mayor in the May 11, 1998
elections in Cagayan de Oro City."[8] And yet, Damasing is not a party
to the instant "Petition for Certiorari pursuant to Rule[s] 64 and 65"
brought before us.
Under the Rules of Court, a quo warranto may be brought only by (1)
the solicitor general or (2) a public prosecutor or (3) a person claiming
to be entitled to the public office or position usurped or unlawfully held
or exercised by another.[9] A reading of the Rules shows that
petitioners, none of whom qualify under any of the above three
categories, are without legal standing to bring this suit.
However, the present Petition finds its root in two separate cases filed
before the Comelec: (1) SPC 98-298 for disqualification and (2) EPC 98-
62 for quo warranto. Under our election laws and the Comelec Rules
of Procedure, any voter may file a petition to disqualify a candidate on
grounds provided by law,[10] or to contest the election of a city officer
on the ground of ineligibility or disloyalty to the Republic.[11] The
petitioners herein, being "duly-registered voters" of Cagayan de Oro
City, therefore satisfy the requirement of said laws and rules.[12]
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile in
Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as allegedly
shown by the following facts: (1) he had run and won as governor of
the province of Misamis Oriental for three consecutive terms
immediately preceding the 1998 elections; (2) in the pleadings he filed
in connection with an election protest against him relating to the 1995
election, he had stated that he was a resident of Tagoloan, Misamis
Oriental; (3) he had fully exercised the powers and prerogatives of
governor until he filed his Certificate of Candidacy for mayor on March
25, 1998.
Petitioners claim that in discharging his duties as provincial governor,
private respondent remained a resident of the province. They aver that
residence is a continuing qualification that an elective official must
possess throughout his term. Thus, private respondent could not have
changed his residence to Cagayan de Oro City while he was still
governor of Misamis Oriental.
Petitioners further contend that the following were not sufficient to
constitute a change of domicile: having a house in Cagayan de Oro City,
residing therein while exercising one's office as governor (the city being
the seat of government of the province), securing a residence
certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually and
physically resided in Cagayan de Oro City while serving as provincial
governor for three consecutive terms, since the seat of the provincial
government was located at the heart of that city.[13] He also avers that
one's choice of domicile is a matter of intention, and it is the person
concerned who would be in the best position to make a choice. In this
case, Emano decided to adopt Cagayan de Oro City as his place of
residence after the May 1995 elections. In fact, in January 1997, he
secured his Community Tax Certificate at the City Treasurer's Office,
stating therein that he was a resident of 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City. During the general
registration of voters in June 1997, he registered in one of the precincts
of Gusa, Cagayan de Oro City. This meant that, at the time, Emano had
been a voter of the city for the minimum period required by law. No
one has ever challenged this fact before any tribunal.
Private respondent contends further that his transfer of legal residence
did not ipso facto divest him of his position as provincial
governor. First, there is no law that prevents an elected official from
transferring residence while in office. Second, an elective official's
transfer of residence does not prevent the performance of that
official's duties, especially in private respondent's case in which the
seat of government became his adopted place of residence. Third, as
ruled in Frivaldo v. Comelec,[14] the loss of any of the required
qualifications for election merely renders the official's title or right to
office open to challenge. In Emano's case, no one challenged his right
to the Office of Provincial Governor when he transferred his residence
to Cagayan de Oro City. Naturally, he continued to discharge his
functions as such, until he filed his candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as expressed
in the election result, must be respected. He is not, after all, a stranger
to the city, much less to its voters. During his three terms as governor
of Misamis Oriental, his life and actuations have been closely
interwoven with the pulse and beat of Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-Marcos v.
Comelec[15] in its Memorandum[16]which supports the assailed
Resolutions, and which has been filed in view of the solicitor general's
Manifestation and Motion in Lieu of Comment.[17] Thus, the poll body
argues that "x x x the fact of residence x x x ought to be decisive in
determining whether or not an individual has satisfied the
Constitution's residency qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the Local
Government Code (LGC) of 1991,[18] which provides for the
qualifications of local elective officials, as follows:
"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 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; and able to read and write Filipino or any
other local language or dialect."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the Constitution
or the law intends to prevent the possibility of a "stranger or
newcomer unacquainted with the conditions and needs of a
community and not identified with the latter from [seeking] an elective
office to serve that community."[19] Such provision is aimed at
excluding outsiders "from taking advantage of favorable circumstances
existing in that community for electoral gain."[20] Establishing
residence in a community merely to meet an election law requirement
defeats the purpose of representation: to elect through the assent of
voters those most cognizant and sensitive to the needs of the
community. This purpose is "best met by individuals who have either
had actual residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice."[21]
 Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,[22] this Court
ruled that private respondent therein, now Representative Rodolfo E.
Aguinaldo of the Third District of Cagayan, had duly proven his change
of residence from Gattaran, Cagayan (part of the First District) to
Tuguegarao, Cagayan (part of the Third District in which he sought
election as congressman). He proved it with the following facts: (1) in
July 1990, he leased and lived in a residential apartment in Magallanes
Street, Tuguegarao, Cagayan; (2) in July 1995, he leased another
residential apartment in Kamias Street, Tanza, Tuguegarao, Cagayan;
(3) the January 18, 1998 Certificate of Marriage between Aguinaldo
and his second wife, Lerma Dumaguit; (4) the Certificate of Live Birth
of his second daughter; and (5) various letters addressed to him and
his family showed that he had been a resident of Tuguegarao for at
least one year immediately preceding the May 1998 elections. The
Court also stated that it was not "of much importance that in his
[Aguinaldo's] certificates of candidacy for provincial governor in the
elections of 1988, 1992, and 1995, private respondent stated that he
was a resident of Gattaran."[23]
In the case at bar, the Comelec found that private respondent and his
family had actually been residing in Capistrano Subdivision, Gusa,
Cagayan de Oro City, in a house he had bought in 1973. Furthermore,
during the three terms (1988-1998) that he was governor of Misamis
Oriental, he physically lived in that city, where the seat of the provincial
government was located. In June 1997, he also registered as voter of
the same city. Based on our ruling in Mamba-Perez, these facts
indubitably prove that Vicente Y. Emano was a resident of Cagayan de
Oro City for a period of time sufficient to qualify him to run for public
office therein. Moreover, the Comelec did not find any bad faith on the
part of Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro City is
a highly urbanized city whose voters cannot participate in the
provincial elections. Such political subdivisions and voting restrictions,
however, are simply for the purpose of parity in representation. The
classification of an area as a highly urbanized or independent
component city, for that matter, does not completely isolate its
residents, politics, commerce and other businesses from the entire
province -- and vice versa -- especially when the city is located at the
very heart of the province itself, as in this case.
Undeniably, Cagayan de Oro City was once an integral part of Misamis
Oriental and remains a geographical part of the province. Not only is it
at the center of the province; more important, it is itself the seat of the
provincial government. As a consequence, the provincial officials who
carry out their functions in the city cannot avoid residing therein; much
less, getting acquainted with its concerns and interests. Vicente Y.
Emano, having been the governor of Misamis Oriental for three terms
and consequently residing in Cagayan de Oro City within that period,
could not be said to be a stranger or newcomer to the city in the last
year of his third term, when he decided to adopt it as his permanent
place of residence.
Significantly, the Court also declared in Mamba-Perez that "although
private respondent declared in his certificates of candidacy prior to the
May 11, 1998 elections that he was a resident of Gattaran, Cagayan,
the fact is that he was actually a resident of the Third District not just
for one (1) year prior to the May 11, 1998 elections but for more than
seven (7) years since July 1990. His claim that he ha[s] been a resident
of Tuguegarao since July 1990 is credible considering that he was
governor from 1988 to 1998 and, therefore, it would be convenient for
him to maintain his residence in Tuguegarao, which is the capital of the
province of Cagayan."
Similarly in the instant case, private respondent was actually and
physically residing in Cagayan de Oro City while discharging his duties
as governor of Misamis Oriental. He owned a house in the city and
resided there together with his family. He even paid his 1998
community tax and registered as a voter therein. To all intents and
purposes of the Constitution and the law, he is a resident of Cagayan
de Oro City and eligible to run for mayor thereof.
To petitioners' argument that Emano could not have continued to
qualify as provincial governor if he was indeed a resident of Cagayan
de Oro City, we respond that the issue before this Court is whether
Emano's residence in the city qualifies him to run for and be elected as
mayor, not whether he could have continued sitting as governor of the
province. There was no challenge to his eligibility to continue running
the province; hence, this Court cannot make any pronouncement on
such issue. Considerations of due process prevent us from adjudging
matters not properly brought to us. On the basis, however, of the facts
proven before the Comelec, we hold that he has satisfied the residence
qualification required by law for the mayorship of the city.
We stress that the residence requirement is rooted in the desire that
officials of districts or localities be acquainted not only with the metes
and bounds of their constituencies but, more important, with the
constituents themselves -- their needs, difficulties, aspirations,
potentials for growth and development, and all matters vital to their
common welfare. The requisite period would give candidates the
opportunity to be familiar with their desired constituencies, and
likewise for the electorate to evaluate the former's qualifications and
fitness for the offices they seek.
In other words, the actual, physical and personal presence of herein
private respondent in Cagayan de Oro City is substantial enough to
show his intention to fulfill the duties of mayor and for the voters to
evaluate his qualifications for the mayorship. Petitioners' very
legalistic, academic and technical approach to the residence
requirement does not satisfy this simple, practical and common-sense
rationale for the residence requirement.
Interpretation to Favor Popular Mandate
There is no question that private respondent was the overwhelming
choice of the people of Cagayan de Oro City. He won by a margin of
about 30,000 votes.[24] Thus, we find it apt to reiterate the principle
that the manifest will of the people as expressed through the ballot
must be given fullest effect. In case of doubt, political laws must be
interpreted to give life and spirit to the popular mandate.[25] Verily,
in Frivaldo v. Comelec,[26] the Court held:
"x x x [T]his Court has repeatedly stressed the importance of
giving effect to the sovereign will in order to ensure the survival
of our democracy. In 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 are the
choice of the majority. To successfully challenge a winning
candidate's qualifications, the petitioner must clearly
 demonstrate that the ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people would
ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws
so zealously protect and promote."
In the same vein, we stated in Alberto v. Comelec[27] that "election
cases involve public interest; thus, laws governing election 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."
Indeed, "it would be far better to err in favor of popular sovereignty
than to be right in complex but little understood legalisms."[28]
In sum, we hold that Respondent Comelec cannot be faulted with
abuse, much less grave abuse, of discretion in upholding private
respondent's election.
Corollary Issue: Effect of Disqualification of
Winner on Second Placer
With the resolution of the first issue in the positive, it is obvious that
the second one posited by petitioners has become academic and need
not be ruled upon.
WHEREFORE, the Petition is DISMISSED and the assailed Comelec
Resolutions AFFIRMED. Costs against petitioners.
G.R. No. 151914
July 31, 2002
TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON
ELECTIONS and MR. NEIL M. ALVAREZ, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution, [1] dated July
19, 2001, of the Second Division of the Commission on Elections
(COMELEC), ordering the cancellation of the certificate of candidacy of
petitioner Teodulo M. Coquilla for the position of mayor of Oras,
Eastern Samar in the May 14, 2001 elections and the order, dated
January 30, 2002, of the COMELEC en banc denying petitioners motion
for reconsideration.
The facts are as follows:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents
in Oras, Eastern Samar. He grew up and resided there until 1965, when
he joined the United States Navy. He was subsequently naturalized as
a U.S. citizen.[2] From 1970 to 1973, petitioner thrice visited the
Philippines while on leave from the U.S. Navy.[3] Otherwise, even after
his retirement from the U.S. Navy in 1985, he remained in the United
States.
On October 15, 1998, petitioner came to the Philippines and took out
a residence certificate, although he continued making several trips to
the United States, the last of which took place on July 6, 2000 and
lasted until August 5, 2000.[4] Subsequently, petitioner applied for
repatriation under R.A. No. 8171[5] to the Special Committee on
Naturalization. His application was approved on November 7, 2000,
and, on November 10, 2000, he took his oath as a citizen of the
Philippines. Petitioner was issued Certificate of Repatriation No.
000737 on November 10, 2000 and Bureau of Immigration
Identification Certificate No. 115123 on November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of
Butnga, Oras, Eastern Samar. His application was approved by the
Election Registration Board on January 12, 2001.[6] On February 27,
2001, he filed his certificate of candidacy stating therein that he had
been a resident of Oras, Eastern Samar for two (2) years.[7]
On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent
mayor of Oras and who was running for reelection, sought the
cancellation of petitioners certificate of candidacy on the ground that
the latter had made a material misrepresentation in his certificate of
candidacy by stating that he had been a resident of Oras for two years
when in truth he had resided therein for only about six months since
November 10, 2000, when he took his oath as a citizen of the
Philippines.
The COMELEC was unable to render judgment on the case before the
elections on May 14, 2001. Meanwhile, petitioner was voted for and
received the highest number of votes (6,131) against private
respondents 5,752 votes, or a margin of 379 votes. On May 17, 2001,
petitioner was proclaimed mayor of Oras by the Municipal Board of
Canvassers.[8] He subsequently took his oath of office.
On July 19, 2001, the Second Division of the COMELEC granted private
respondents petition and ordered the cancellation of petitioners
certificate of candidacy on the basis of the following findings:
Respondents frequent or regular trips to the Philippines and stay
in Oras, Eastern Samar after his retirement from the U.S. Navy in
1985 cannot be considered as a waiver of his status as a
permanent resident or immigrant . . . of the U.S.A. prior to
November 10, 2000 as would qualify him to acquire the status of
residency for purposes of compliance with the one-year residency
requirement of Section 39(a) of the Local Government Code of
1991 in relation to Sections 65 and 68 of the Omnibus Election
Code. The one (1) year residency requirement contemplates of
the actual residence of a Filipino citizen in the constituency where
he seeks to be elected.
All things considered, the number of years he claimed to have resided
or stayed in Oras, Eastern Samar since 1985 as an American citizen and
permanent resident of the U.S.A. before November 10, 2000 when he
reacquired his Philippine citizenship by [repatriation] cannot be added
to his actual residence thereat after November 10, 2000 until May 14,
2001 to cure his deficiency in days, months, and year to allow or render
him eligible to run for an elective office in the Philippines. Under such
circumstances, by whatever formula of computation used, respondent
is short of the one-year residence requirement before the May 14,
2001 elections.[9]
Petitioner filed a motion for reconsideration, but his motion was
denied by the COMELEC en banc on January 30, 2002. Hence this
petition.
I.
Two questions must first be resolved before considering the merits of
this case: (a) whether the 30-day period for appealing the resolution of
the COMELEC was suspended by the filing of a motion for
reconsideration by petitioner and (b) whether the COMELEC retained
jurisdiction to decide this case notwithstanding the proclamation of
petitioner.
A. With respect to the first question, private respondent contends that
the petition in this case should be dismissed because it was filed late;
that the COMELEC en banc had denied petitioners motion for
reconsideration for being pro forma; and that, pursuant to Rule 19, 4
of the COMELEC Rules of Procedure, the said motion did not suspend
the running of the 30-day period for filing this petition. He points out
that petitioner received a copy of the resolution, dated July 19, 2001,
of the COMELECs Second Division on July 28, 2001, so that he had only
until August 27, 2001 within which to file this petition. Since the
petition in this case was filed on February 11, 2002, the same should
be considered as having been filed late and should be dismissed.
Private respondents contention has no merit.
Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:
Sec. 2. Period for Filing Motions for Reconsideration. A motion to
reconsider a decision, resolution, order, or ruling of a Division
shall be filed within five days from the promulgation thereof. Such
motion, if not pro-forma, suspends the execution for
implementation of the decision, resolution, order, or ruling.
Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A
motion to reconsider a decision, resolution, order, or ruling, when
not pro-forma, suspends the running of the period to elevate the
matter to the Supreme Court.
The five-day period for filing a motion for reconsideration under Rule
19, 2 should be counted from the receipt of the decision, resolution,
order, or ruling of the COMELEC Division. [10] In this case, petitioner
received a copy of the resolution of July 19, 2001 of the COMELECs
Second Division on July 28, 2001. Five days later, on August 2, 2001, he
filed his motion for reconsideration. On February 6, 2002, he received
a copy of the order, dated January 30, 2002, of the COMELEC en
banc denying his motion for reconsideration. Five days later, on
February 11, 2002, he filed this petition for certiorari. There is no
question, therefore, that petitioners motion for reconsideration of the
resolution of the COMELEC Second Division, as well as his petition for
certiorari to set aside of the order of the COMELEC en banc, was filed
within the period provided for in Rule 19, 2 of the COMELEC Rules of
Procedure and in Art. IX(A), 7 of the Constitution.
It is contended, however, that petitioners motion for reconsideration
before the COMELEC en banc did not suspend the running of the
period for filing this petition because the motion was pro forma and,
consequently, this petition should have been filed on or before August
27, 2001. It was actually filed, however, only on February 11, 2002.
Private respondent cites the finding of the COMELEC en banc that An
incisive examination of the allegations in the Motion for
Reconsideration shows that the same [are] a mere rehash of his
averments contained in his Verified Answer and Memorandum.
Neither did respondent raise new matters that would sufficiently
warrant a reversal of the assailed resolution of the Second Division.
This makes the said Motion pro forma.[11]
We do not think this contention is correct. The motion for
reconsideration was not pro forma and its filing did suspend the period
for filing the petition for certiorari in this case. The mere reiteration in
a motion for reconsideration of the issues raised by the parties and
passed upon by the court does not make a motion pro forma;
otherwise, the movants remedy would not be a reconsideration of the
decision but a new trial or some other remedy. [12] But, as we have held
in another case:[13]
Among the ends to which a motion for reconsideration is
addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence; and
in doing so, the movant has to dwell of necessity upon the issues
passed upon by the court. If a motion for reconsideration may not
discuss these issues, the consequence would be that after a
decision is rendered, the losing party would be confined to filing
only motions for reopening and new trial.
Indeed, in the cases where a motion for reconsideration was held to
be pro forma, the motion was so held because (1) it was a second
motion for reconsideration,[14] or (2) it did not comply with the rule
that the motion must specify the findings and conclusions alleged to
be contrary to law or not supported by the evidence, [15] or (3) it failed
to substantiate the alleged errors,[16] or (4) it merely alleged that the
decision in question was contrary to law,[17] or (5) the adverse party
was not given notice thereof.[18] The 16-page motion for
reconsideration filed by petitioner in the COMELEC en banc suffers
from none of the foregoing defects, and it was error for the
COMELEC en banc to rule that petitioners motion for reconsideration
was pro forma because the allegations raised therein are a mere
rehash of his earlier pleadings or did not raise new matters. Hence, the
filing of the motion suspended the running of the 30-day period to file
the petition in this case, which, as earlier shown, was done within the
reglementary period provided by law.
B. As stated before, the COMELEC failed to resolve private respondents
petition for cancellation of petitioners certificate of candidacy before
the elections on May 14, 2001. In the meantime, the votes were
canvassed and petitioner was proclaimed elected with a margin of 379
votes over private respondent. Did the COMELEC thereby lose
authority to act on the petition filed by private respondent?
R.A. No. 6646 provides:
SECTION 6. Effect of Disqualification Case. Any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the
suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong. (Emphasis added)
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.
The rule then is that candidates who are disqualified by final judgment
before the election shall not be voted for and the votes cast for them
shall not be counted. But those against whom no final judgment of
disqualification had been rendered may be voted for and proclaimed,
unless, on motion of the complainant, the COMELEC suspends their
proclamation because the grounds for their disqualification or
cancellation of their certificates of candidacy are strong. Meanwhile,
the proceedings for disqualification of candidates or for the
cancellation or denial of certificates of candidacy, which have been
begun before the elections, should continue even after such elections
and proclamation of the winners. In Abella v. COMELEC[19] and Salcedo
II v. COMELEC,[20] the candidates whose certificates of candidacy were
the subject of petitions for cancellation were voted for and, having
received the highest number of votes, were duly proclaimed winners.
This Court, in the first case, affirmed and, in the second, reversed the
decisions of the COMELEC rendered after the proclamation of
candidates, not on the ground that the latter had been divested of
jurisdiction upon the candidates proclamation but on the merits.
II.
On the merits, the question is whether petitioner had been a resident
of Oras, Eastern Samar at least one (1) year before the elections held
on May 14, 2001 as he represented in his certificate of candidacy. We
find that he had not.
First, 39(a) of the Local Government Code (R.A No. 7160) provides:
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 district 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. (Emphasis added)
The term residence is to be understood not in its common acceptation
as referring to dwelling or habitation,[21] but rather to domicile or legal
residence,[22] that is, the place where a party actually or constructively
has his permanent home, where he, no matter where he may be found
at any given time, eventually intends to return and remain (animus
manendi).[23] A domicile of origin is acquired by every person at birth.
It is usually the place where the childs parents reside and continues
until the same is abandoned by acquisition of new domicile (domicile
of choice).[24]
In the case at bar, petitioner lost his domicile of origin in Oras by
becoming a U.S. citizen after enlisting in the U.S. Navy in 1965. From
then on and until November 10, 2000, when he reacquired Philippine
citizenship, petitioner was an alien without any right to reside in the
Philippines save as our immigration laws may have allowed him to stay
as a visitor or as a resident alien.
Indeed, residence in the United States is a requirement for
naturalization as a U.S. citizen. Title 8, 1427(a) of the United States
Code provides:
Requirements of naturalization . Residence
(a) No person, except as otherwise provided in this
subchapter, shall be naturalized unless such applicant, (1)
immediately preceding the date of filing his application for
naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at
least five years and during the five years immediately preceding
the date of filing his petition has been physically present therein
for periods totaling at least half of that time, and who has resided
within the State or within the district of the Service in the United
States in which the applicant filed the application for at least three
months, (2) has resided continuously within the United States
from the date of the application up to the time of admission to
citizenship, and (3) during all the period referred to in this
subsection has been and still is a person of good moral
character, attached to the principles of the Constitution of the
United States, and well disposed to the good order and happiness
of the United States. (Emphasis added)
In Caasi v. Court of Appeals,[25] this Court ruled that immigration to the
United States by virtue of a greencard, which entitles one to reside
permanently in that country, constitutes abandonment of domicile in
the Philippines. With more reason then does naturalization in a foreign
country result in an abandonment of domicile in the Philippines.
Nor can petitioner contend that he was compelled to adopt American
citizenship only by reason of his service in the U.S. armed forces.[26] It
is noteworthy that petitioner was repatriated not under R.A. No. 2630,
which applies to the repatriation of those who lost their Philippine
citizenship by accepting commission in the Armed Forces of the United
States, but under R.A. No. 8171, which, as earlier mentioned, provides
for the repatriation of, among others, natural-born Filipinos who lost
their citizenship on account of political or economic necessity. In any
event, the fact is that, by having been naturalized abroad, he lost his
Philippine citizenship and with it his residence in the Philippines. Until
his reacquisition of Philippine citizenship on November 10, 2000,
petitioner did not reacquire his legal residence in this country.
Second, it is not true, as petitioner contends, that he reestablished
residence in this country in 1998 when he came back to prepare for the
mayoralty elections of Oras by securing a Community Tax Certificate in
that year and by constantly declaring to his townmates of his intention
to seek repatriation and run for mayor in the May 14, 2001
elections.[27] The status of being an alien and a non-resident can be
waived either separately, when one acquires the status of a resident
alien before acquiring Philippine citizenship, or at the same time when
one acquires Philippine citizenship. As an alien, an individual may
obtain an immigrant visa under 13[28] of the Philippine Immigration Act
of 1948 and an Immigrant Certificate of Residence (ICR)[29] and thus
waive his status as a non-resident. On the other hand, he may acquire
Philippine citizenship by naturalization under C.A. No. 473, as
amended, or, if he is a former Philippine national, he may reacquire
Philippine citizenship by repatriation or by an act of Congress, [30] in
which case he waives not only his status as an alien but also his status
as a non-resident alien.
In the case at bar, the only evidence of petitioners status when he
entered the country on October 15, 1998, December 20, 1998, October
16, 1999, and June 23, 2000 is the statement Philippine Immigration []
Balikbayan in his 1998-2008 U.S. passport. As for his entry on August 5,
2000, the stamp bore the added inscription good for one year
stay.[31] Under 2 of R.A. No. 6768 (An Act Instituting
a Balikbayan Program), the term balikbayan includes a former Filipino
citizen who had been naturalized in a foreign country and comes or
returns to the Philippines and, if so, he is entitled, among others, to a
visa-free entry to the Philippines for a period of one (1) year (3(c)). It
would appear then that when petitioner entered the country on the
dates in question, he did so as a visa-free balikbayan visitor whose stay
as such was valid for one year only. Hence, petitioner can only be held
to have waived his status as an alien and as a non-resident only on
November 10, 2000 upon taking his oath as a citizen of the Philippines
under R.A. No. 8171.[32] He lacked the requisite residency to qualify him
for the mayorship of Oras, Eastern, Samar.
Petitioner invokes the ruling in Frivaldo v. Commission on
Elections[33] in support of his contention that the residency
requirement in 39(a) of the Local Government Code includes the
residency of one who is not a citizen of the Philippines. Residency,
however, was not an issue in that case and this Court did not make any
ruling on the issue now at bar. The question in Frivaldo was whether
petitioner, who took his oath of repatriation on the same day that his
term as governor of Sorsogon began on June 30, 1995, complied with
the citizenship requirement under 39(a). It was held that he had,
because citizenship may be possessed even on the day the candidate
assumes office. But in the case of residency, as already noted, 39(a) of
the Local Government Code requires that the candidate must have
been a resident of the municipality for at least one (1) year
immediately preceding the day of the election.
Nor can petitioner invoke this Courts ruling in Bengzon III v. House of
Representatives Electoral Tribunal.[34] What the Court held in that case
was that, upon repatriation, a former natural-born Filipino is deemed
to have recovered his original status as a natural-born citizen.
Third, petitioner nonetheless says that his registration as a voter
of Butnga, Oras, Eastern Samar in January 2001 is conclusive of his
residency as a candidate because 117 of the Omnibus Election Code
requires that a voter must have resided in the Philippines for at least
one year and in the city or municipality wherein he proposes to vote
for at least six months immediately preceding the election. As held
in Nuval v. Guray,[35] however, registration as a voter does not bar the
filing of a subsequent case questioning a candidates lack of residency.
Petitioners invocation of the liberal interpretation of election laws
cannot avail him any. As held in Aquino v. Commission on Elections:[36]
A democratic government is necessarily a government of laws. In a
republican government those laws are themselves ordained by the
people. Through their representatives, they dictate the qualifications
necessary for service in government positions. And as petitioner clearly
lacks one of the essential qualifications for running for membership in
the House of Representatives, not even the will of a majority or
plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law itself.
Fourth, petitioner was not denied due process because the COMELEC
failed to act on his motion to be allowed to present evidence. Under
5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987),
proceedings for denial or cancellation of a certificate of candidacy are
summary in nature. The holding of a formal hearing is thus not de
rigeur. In any event, petitioner cannot claim denial of the right to be
heard since he filed a Verified Answer, a Memorandum and a
Manifestation, all dated March 19, 2001, before the COMELEC in which
he submitted documents relied by him in this petition, which, contrary
to petitioners claim, are complete and intact in the records.
III.
The statement in petitioners certificate of candidacy that he had been
a resident of Oras, Eastern Samar for two years at the time he filed such
certificate is not true. The question is whether the COMELEC was
justified in ordering the cancellation of his certificate of candidacy for
this reason. We hold that it was. Petitioner made a false representation
of a material fact in his certificate of candidacy, thus rendering such
certificate liable to cancellation. The Omnibus Election Code provides:
SEC. 74. Contents of certificate of candidacy. The certificate of
candidacy shall state that the person filing it is announcing his
candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party
to which he belongs; civil status; his date of birth; residence; his
post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of
the Philippines and will maintain true faith and allegiance thereto;
that he will obey the laws, legal orders, and decrees promulgated
by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
SEC. 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by 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 due notice and hearing, not later than
fifteen days before the election.
Indeed, it has been held that a candidates statement in her certificate
of candidacy for the position of governor of Leyte that she was a
resident of Kananga, Leyte when this was not so[37] or that the
candidate was a natural-born Filipino when in fact he had become an
Australian citizen[38] constitutes a ground for the cancellation of a
certificate of candidacy. On the other hand, we held in Salcedo II v.
COMELEC[39] that a candidate who used her husbands family name
even though their marriage was void was not guilty of
misrepresentation concerning a material fact. In the case at bar, what
is involved is a false statement concerning a candidates qualification
for an office for which he filed the certificate of candidacy. This is a
misrepresentation of a material fact justifying the cancellation of
petitioners certificate of candidacy. The cancellation of petitioners
certificate of candidacy in this case is thus fully justified.
WHEREFORE, the petition is DISMISSED and the resolution of the
Second Division of the Commission on Elections, dated July 19, 2001,
and the order, dated January 30, 2002 of the Commission on
Elections en banc are AFFIRMED.
G.R. No. 151944 Date of Departure : 01/28/1997
January 20, 2004 Destination : OSA-Osaka
Flight No. : NWo26-Northwest Airlines
ENGR. ERNESTO T. MATUGAS, petitioner, vs. COMMISSION ON Passport No. : 034354245
ELECTIONS and ROBERT LYNDON S. BARBERS, respondents. Nationality : Filipino
Date of Birth : 07/15/1968
DECISION Phil. Address : 6 Hercules St. Bel Air II Makati
TINGA, J.: Immig. Status : RP
The Local Government Code of 1991[1] requires that an elective local Immig. Officer : not stated
official be a citizen of the Philippines.[2] Whether the incumbent
Governor of Surigao del Norte is a citizen of the Philippines and, Date of Arrival : 02/12/1998
therefore, qualified to hold such office is the issue in this case. Origin : LON-London
Flight No. : PR731-Phil. Airlines
On February 28, 2001, private respondent Robert Lyndon S. Barbers Passport No. : 034354245
filed his certificate of candidacy for the position of Governor of Surigao Nationality : American
del Norte for the May 14, 2001 elections. On April 10, 2001, petitioner Date of Birth : American
Ernesto T. Matugas, himself a candidate for the same post, filed with Phil. Address : 6 Hercules St. Bel Air II Makati
the Commission on Elections (COMELEC) a Petition to Immig. Status : BB365
Disqualify private respondent as candidate. The Petition alleged, Immig. Officer : REGALA
among other grounds, that private respondent is not a Filipino citizen.
In support of this claim, petitioner offered in evidence a copy of a Date of Arrival : 07/31/1998
letter-request dated August 25, 2000 from a certain Jesus Agana, a Origin : BKK-Bangkok
confidential agent of the Bureau of Immigration, addressed to one Flight No. : TG620-Thai Airways
George Clarke, purportedly of the United States Embassy. Below the Passport No. : OF006673
request was the reply of said George Clarke stating that the subject was Nationality : American
naturalized as an American citizen on October 11, 1991 in Los Angeles, Date of Birth : 07/15/1968
California. The document[3] reads: Phil. Address : 16 Hercules St. Bel Air II Makati
Dear Mr. Clark [sic]: Immig. Status : BB365
Immig. Officer : SOR
Per our phone conversation, may I request for [sic] a certification
from your Embassy regarding the US citizenship of MR. ROBERT FURTHER, THIS IS TO CERTIFY THAT the name BARBERS, ROBERT
LYNDON S. BARBERS who was born on July 15, 1968. LYNDON SMITH, American, appears in our Computer
Database/Passenger manifest/IBM listing on file with the following
Kindly fax your reply, addressed to the undersigned at Tel. No. travel records:
(02) 3384456. Date of Departure : 07/27/1998
Destination : not available
Thank you and regards. Flight No. : TG621-Thai Airways
Passport No. : not available
Very truly yours, Nationality : Filipino
(Sgd.) Date of Birth : 07/15/1968
JESUS AGANA Phil. Address : not available
Confidential Agent Immig. Status : not available
Immig. Officer : RACHO
Jesus Agana:
This certification is issued upon request of Mr. Bebot Pomoy for
SUBJECT was naturalized on October 11, 1991 in Los Angeles, CA. whatever legal purpose it may serve.

(Sgd.) Verified by : Edilberto Orbase Computer Section

G.R. Clarke, INS/Manila
Petitioner also presented a Certification[4] issued by the Bureau of
Immigration and Deportation (BID) dated 1 September 2000 containing
Barbers travel records and indicating in certain entries that private
respondent is an American citizen. The Certification states:
CERTIFICATION
THIS IS TO CERTIFY THAT the name BARBERS, ROBERT LYNDON S,
American, appears in our available Computer Database/Passenger
manifest/IBM listing on file as of September 1, 2000 10:27 am with the
following travel records:
Date & Time : September 1, 2000 10:27 am
(Sgd.)
ATTY. FELINO C. QUIRANTE, JR.
Acting Chief, Admin. Division
In addition, petitioner submitted a Certification[5] issued by the Special
Committee on Naturalization of the Office of the Solicitor General
stating that, based on their records, there is no pending petition by
private respondent for repatriation. Neither has one been granted in
his favor.
In the meantime, private respondent garnered the highest number of
votes in the gubernatorial race. On May 17, 2001, petitioner filed
a Motion for Suspension/Annulment of Proclamation of private
respondent. The Motion, however, was overtaken by subsequent
events when, on the following day, May 18, 2001, private respondent
was proclaimed the duly elected governor of Surigao del Norte.
On July 5, 2001, the Second Division of the COMELEC issued
a Resolution dismissing for lack of merit the Petition to Disqualify. The
COMELEC found little or no probative value in the notation of George
Clarke to Aganas letter-request.[6] While noting that the BID
certification involving the travel records of Robert Lyndon S. Barbers
stated that he was an American, the COMELEC held that there is no
other independent evidence... to justify petitioners claim that
respondent has renounced his allegiance to the Philippines at any
time.[7]
Petitioner filed a Motion for Reconsideration with the COMELEC En
Banc, which on January 8, 2002 dismissed the Motion and affirmed
the Resolution of the Second Division.
Petitioner thus instituted these proceedings for certiorari, claiming
that the COMELEC committed grave abuse of discretion in denying
his Petition to Disqualify.[8] He maintains that private respondent was
not a Filipino citizenship at the time of his election.
Basic in the law of evidence is that one who alleges a fact has the
burden of proving it.[9] In administrative cases, the quantum of proof
required is substantial evidence.[10] Petitioner did not overcome his
burden. The documentary evidence he submitted fails to establish that
private respondent is not a Filipino citizen.
The document containing the notation of George Clarke does not
prove that private respondent is indeed a naturalized American
citizen. For the purpose of their presentation in evidence, documents
are either public or private. Public documents include the written
official acts or records of the official acts of the sovereign authority,
official bodies and tribunals, and public officers, whether of the
Philippines, or of a foreign country.[11] The record of such public
documents may be evidenced by an official publication thereof or by a
copy attested by the officer having the legal custody of the record. If
the record is not kept in the Philippines, the attested copy should be
accompanied by a certificate that such officer has custody thereof.[12]
The grant of United States citizenship by naturalization is an official act
of the United States. The document containing the record of this act is,
therefore, a public document and, following the rule cited above, this
document can only be evidenced by its official publication or a copy
duly attested by the officer having legal custody thereof.
The notation in the letter-inquiry of Jesus Agana is neither an official
publication of the document that contains the record of private
respondents naturalization, nor a copy attested by the officer who has
legal custody of the record. Petitioner did not show if Clarke, the
notations alleged author, is the officer charged with the custody of
such record.
Furthermore, Section 7, Rule 130 of the Rules of Court states that when
the original of a document is in the custody of a public officer or is
recorded in a public office, as in this case, the contents of said
document may be proved by a certified copy issued by the public
officer in custody thereof. The subject letter-inquiry, which contains
the notation, appears to be a mere photocopy, not a certified copy.
The other document relied upon by petitioner is the Certification dated
1 September 2000 issued by the BID. Petitioner submits that private
respondent has declared that he is an American citizen as shown by
said Certification and, under Section 26, Rule 130 of the Rules of Court,
such declaration may be given in evidence against him.
The rule cited by petitioner does not apply in this case because the rule
pertains to the admissibility of evidence. There is no issue here as to
the admissibility of the BID Certification; the COMELEC did not hold
that the same was inadmissible. In any case, the
BID Certification suffers from the same defect as the notation from the
supposed US Embassy official. Said Certification is also a photocopy,
not a certified copy.
Moreover, the certification contains inconsistent entries regarding the
nationality of private respondent. While some entries indicate that he
is American, other entries state that he is Filipino.
Petitioner also attached in his Memorandum before this Court another
document,[13] obviously a photocopy, which reads in full:
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
U.S. COURTHOUSE
312 NORTH SPRING STREET, SUITE 329
LOS ANGELES, CALIFORNIA, 90012
August 1, 2001
The official Naturalization the United States District Court of California
shows the following:
Name: Robert Lyndon Barbers
Date of Birth: July 15, 1968
Petition No.: 890573
Alien No.: A40 460 660
Certificate No.: 14738741
Date of Naturalization: October 11, 1991
(Sgd.)
Deputy Clerk Abel Martinez
The above document was attached to an Authentication, [14] also a
photocopy, stating:
CONSULATE GENERAL OF THE PHILIPPINES )
CITY OF LOS ANGELES ) S.S.
STATE OF CALIFORNIA, U.S.A.
AUTHENTICATION
TO ALL WHOM THESE PRESENTS SHALL COME, GREETINGS:
I, CRISTINA G. ORTEGA, CONSUL at Los Angeles, California, duly
commissioned and qualified, do hereby certify that ABEL
MARTINEZ whose seal/signature appears on the annexed
certificate was, at the time he signed the annexed certificate, A
Deputy Clerk of the United States District Court, Central District of
California and verily believe that his seal/signature affixed thereto
is genuine.

For the contents of the annexed document, this Consulate
General assumes no responsibility.
IN WITNESS WHEREOF, I have hereunto set my hand and caused
the seal of the Consulate General of the Republic of the
Philippines at Los Angeles, California, U.S.A., to affixed this day of
30 August 2001.
(Sgd.)
CRISTINA G. ORTEGA
Consul of the Republic of the Philippines
The annexed document is an Information
of Naturalization Re: Robert Lyndon
Barbers executed by United States District
Court, Central District of California
Subsequently, petitioner filed a Manifestation with Motion for Leave
to Admit Original Documents, appending thereto the originals[15] of the
above documents.
These new documents likewise cannot be admitted in evidence. To
repeat, Section 24, Rule 132 of the Rules of Court requires that if the
public document or the public record is not kept in the Philippines, its
official publication or its copy duly attested by the officer in charge of
the custody of the same must be accompanied by a certificate that
such officer has the custody.Said certificate may be made by a
secretary of the embassy or legation, consul general, consul, vice
consul, or consular agent or by any officer in the foreign service of the
Philippines stationed in the foreign country in which the record is kept
and authenticated by the seal of his office. In this case,
the Authentication executed by Cristina G. Ortega, the Philippine
Consul in Los Angeles, California merely states that Abel Martinez is the
Deputy Clerk of the United States District Court, Central District of
California. It does not state that said Deputy Clerk has the custody of
the above record.
There is another cogent reason that precludes the admission of these
documents. Petitioner calls upon this Court to consider
alleged new evidence not presented before the COMELEC, a course of
action clearly beyond the courts certiorari powers. In Lovina and
Montila v. Moreno and Yonzon,[16] the Court of First Instance (CFI)
conducted a trial de novo even though the Secretary of Public Works
and Communications, in the exercise of his administrative powers, had
made his own independent findings of fact. This Court reversed the
decision of the CFI because:
The findings of the Secretary can not be enervated by new
evidence not laid before him, for that would be tantamount to
holding a new investigation, and to substitute for the discretion
and judgment of the Secretary the discretion and judgment of the
court, to whom the statute had not entrusted the case. It is
immaterial that the present action should be one for prohibition
or injunction and not one for certiorari; in either event the case
must be resolved upon the evidence submitted to the Secretary,
since a judicial review of executive decisions does not import a
trial de novo, but only an ascertainment of whether the executive
findings are not in violation of the Constitution or of the laws, and
are free from fraud or imposition, and whether they find
reasonable support in the evidence.
Similarly, petitioner in this case cannot enervate the COMELECs
findings by introducing new evidence before this Court, which in any
case is not a trier of facts, and then ask it to substitute its own judgment
and discretion for that of the COMELEC.
The rule in appellate procedure is that a factual question may not be
raised for the first time on appeal,[17] and documents forming no part
of the proofs before the appellate court will not be considered in
disposing of the issues of an action.[18] This is true whether the decision
elevated for review originated from a regular court [19] or an
administrative agency or quasi-judicial body,[20] and whether it was
rendered in a civil case,[21] a special proceeding,[22] or a criminal
case.[23] Piecemeal presentation of evidence is simply not in accord
with orderly justice.[24]
The same rules apply with greater force in certiorari
proceedings. Indeed, it would be absurd to hold public respondent
guilty of grave abuse of discretion for not considering evidence not
presented before it. The patent unfairness of petitioners plea,
prejudicing as it would public and private respondents alike, militates
against the admission and consideration of the subject documents.
Finally, petitioner in his Memorandum[25] invokes the case of Yu v.
Defensor-Santiago,[26] holding that a naturalized Filipino citizen
effectively renounces his Filipino citizenship when he applies for and is
issued a Portuguese passport, and declares his nationality as a
Portuguese in commercial documents he signed. That case, however,
has no relevance here because the documents submitted in this case,
assuming that they constitute substantial evidence that private
respondent indeed renounced his Filipino citizenship, are
inadmissible. In other words, there is no evidence in this case of any
renunciation.
There is grave abuse of discretion amounting to lack of jurisdiction
when the respondent board, tribunal or officer exercising judicial
functions exercised its judgment in a capricious, whimsical, arbitrary or
despotic manner, as when the assailed order has no basis both in fact
and in law.[27] In this case, the Petition to Disqualify is not supported by
substantial evidence.Hence, the COMELEC did not commit grave abuse
of discretion in issuing the assailed Resolutions dismissing the Petition.
WHEREFORE, the Petition is DISMISSED.
G.R. No. 157526
April 28, 2004
EMILIANA TORAL KARE, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
G.R. No. 157527
April 28, 2004
SALVADOR K. MOLL, petitioner, vs. COMMISSION ON
ELECTIONS, respondent.
DECISION
PANGANIBAN, J.:
When a mayoral candidate who gathered the highest number of votes
is disqualified after the election is held, a permanent vacancy is
created, and the vice mayor succeeds to the position.
The Case
Before us are two Petitions for Certiorari under Rules 64 and 65 of the
Rules of Court, seeking the nullification of the March 19, 2003 En Banc
Resolution issued by the Commission on Elections (Comelec) in SPA No.
01-272. The Comelec resolved therein to disqualify Salvador K. Moll
from the mayoralty of Malinao, Albay, and to proclaim Avelino Ceriola
as the mayor-elect of the said municipality. The decretal portion of the
Resolution reads:
WHEREFORE, premises considered, the petition is hereby GRANTED. It
is affirmed that private respondent Salvador K. Moll
is DISQUALIFIED from holding the office of the Mayor of Malinao,
Albay.His proclamation as the winning candidate for such office is
declared VOID AB INITIO. Consequently, the Provincial Election
Supervisor of Albay is directed to immediately convene the municipal
board of canvassers of Malinao, Albay and PROCLAIM petitioner
Avelino Ceriola as the Mayor-Elect of the municipality.[1]
In GR No. 157526, Petitioner Emiliana Toral Kare seeks the nullification
of the March 19, 2003 Resolution insofar as it authorized the
proclamation of Ceriola as the mayor-elect of Malinao. In GR No.
157527, Petitioner Moll prays for the annulment of the entire
Resolution.
The Facts
Petitioner Moll and Private Respondent Ceriola were candidates for
mayor of the Municipality of Malinao, Albay, during the elections of
May 14, 2001.
Moll obtained the highest number of votes cast for the position while
Ceriola came in second, with a total of nine hundred eighty-seven (987)
votes separating the two. Kare was elected vice mayor in the same
election.
On May 18, 2001, Ceriola filed a Petition to Confirm the Disqualification
and/or Ineligibility of Dindo K. Moll to Run for Any Elective
Position. The Petition alleged that the latter had been sentenced by
final judgment to suffer the penalty of six (6) months of arresto
mayor to one (1) year and nine (9) months of prision correccional, for
the crime of usurpation of authority or official functions under Article
177 of the Revised Penal Code.
In its May 28, 2001 Resolution,[2] the Comelec First Division dismissed
the Petition. Ceriola filed his Motion for Reconsideration with the
Comelec en banc which, on August 31, 2001, set aside the said
Resolution. It thereafter directed the clerk of the Comelec to remand
the Petition to the provincial election supervisor of Albay for hearing
and reception of evidence.
Ruling of the Comelec En Banc
On March 19, 2003, after the provincial election supervisor of Albay
submitted the report and recommendation, the Comelec en banc
issued the questioned Resolution affirming Molls disqualification and
proclaiming Ceriola as the mayor-elect of the municipality.
As earlier adverted to, the Comelec ruled that Moll had indeed been
disqualified from being a mayoral candidate in the May 14, 2001 local
election, and that his subsequent proclamation as mayor was void ab
initio. Consequently, he was disqualified from holding that office.
The Comelec further ruled that the trial courts final judgment of
conviction of Moll disqualified him from filing his certificate of
candidacy and continued to disqualify him from holding
office. Accordingly, the votes cast in his favor were stray or invalid
votes, and Ceriola -- the candidate who had obtained the second
highest number of votes -- was adjudged the winner.Thus, the Comelec
ordered the Municipal Board of Canvassers to proclaim him as the
mayor-elect of the municipality.
Before Ceriolas actual proclamation, Kare filed a Petition before this
Court with a prayer for a Status Quo Order, which was granted on April
1, 2003.[3] In this Order, the Comelec, the provincial election supervisor
of Albay, and the municipal canvassers of Malinao (Albay) were
required to observe the status quo prevailing before the filing of the
Petition.
The other Petition was filed by Moll.[4]
The Issues
After going through the Memoranda submitted by the parties, the
Court has determined that the following are the two issues that have
to be resolved:
1. Should Moll be disqualified from running and/or holding the
position of mayor?
2. If the first issue is answered in the affirmative, who should
become the mayor -- Ceriola, the second placer in the mayoral
election? Or Kare, the elected vice mayor?
The Courts Ruling
The Petition in GR No. 157526 is partly meritorious, but the Petition in
GR No. 157527 has no merit.
First Issue: Disqualification
Moll argues that he cannot be disqualified from running for mayor,
since his judgement of conviction[5] -- the basis of his disqualification -
- has allegedly not yet attained finality. He contends that while the said
judgment promulgated on May 11, 1999 was not appealed by filing the
Notice of Appeal in the ordinary course of the proceedings, he still filed
a Motion for Reconsideration dated May 28, 1999 within the
reglementary period.[6] Thus, according to him, the filing of such
Motion stayed the finality of his conviction.
We disagree. Section 7 of Rule 120 of the 2000 Rules of Criminal
Procedure reads thus:
Sec. 7. Modification of judgment. -- A judgment of conviction may,
upon motion of the accused, be modified or set aside before it
becomes final or before appeal is perfected. Except where the
death penalty is imposed, a judgment in a criminal case becomes
final after the lapse of the period for perfecting an appeal, or when
the sentence has been partially or totally satisfied or served, or
when the accused has waived in writing his right to appeal, or has
applied for probation. (Italics supplied)
In turn, Section 6 of Rule 122 provides:
Sec. 6. When appeal to be taken. - An appeal must be taken within
fifteen (15) days from promulgation of the judgment or from
notice of the final order appealed from. This period for perfecting
an appeal shall be interrupted from the time a motion for new trial
or reconsideration is filed until notice of the order overruling the
motion shall have been served upon the accused or his counsel at
which time the balance of the period begins to run. (Italics
supplied)
It is clear that the period for appeal is interrupted by the filing of either
a motion for reconsideration or a motion for a new trial. Moll makes it
appear that his filing of a motion for reconsideration should have
stayed the running of the period for filing an appeal. What he did file,
however, was a Motion to Quash the Information; and when it was
denied, he filed a Motion for Reconsideration of the denial.
The Rules of Court mandates that an appeal should be filed within
fifteen (15) days from promulgation of the judgment or from notice of
the final order appealed from. It necessarily follows that this period is
interrupted only by the filing of a motion for reconsideration of the
judgment or of the final order being appealed.
Neither Molls Motion to Quash Information nor his Motion for
Reconsideration was directed at the judgment of conviction. Rather,
they both attacked a matter extraneous to the judgment. Hence, they
cannot affect the period of appeal granted by the Rules of Court in
relation to the conviction.
Moll himself admitted that no regular appeal was filed because he was
still questioning the propriety of the denial of his Motion to Quash the
Information and the propriety of the conduct of the promulgation of
his sentence despite his absence x x x.[7] Aside from not interrupting his
judgment of conviction, the motion to quash was even belatedly
filed. Such a motion may be filed by the accused at any time before
entering a plea[8] and certainly not on the day of the promulgation, as
Moll did.
As to his contention that the promulgation of judgment was not valid
because it was done in his absence, we agree with the Office of the
Solicitor General, which argues as follows:
It was not contested that Moll received a notice of the
promulgation, in fact his counsel was present on the day of the
promulgation - to file a motion to quash. Hence, because of Molls
unexplained absence, the promulgation of the judgment could be
validly made by recording the judgment in the criminal docket and
serving him a copy thereof to his last known address or thru his
counsel (Section 6, Rule 120, Rules of Court).[9]
Indubitably, since no appeal of the conviction was seasonably filed by
Moll, the judgment against him has become final.[10] Thus, the Comelec
en banc correctly ruled that he was disqualified from running for
mayor, under Section 40(a) of the Local Government Code (RA No.
7160), which provides:
Section 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;
x x x x x x x x x.
Moll was sentenced to suffer the penalty of six (6) months of arresto
mayor to one (1) year and nine (9) months of prision correccional, a
penalty that clearly disqualified him from running for any elective local
position.
Second Issue: The Lawful Mayor
In allowing Ceriola -- the second placer in the mayoralty race -- to be
proclaimed mayor-elect after the disqualification of Moll, the Comelec
applied Section 211(24) of the Omnibus Election Code (OEC), 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:
xxxxxxxxx
24. Any vote cast in favor of a candidate who has been disqualified
by final judgment shall be considered as stray and shall not be
counted but it shall not invalidate the ballot.
The poll body interpreted the phrase disqualified by final judgment to
mean disqualification by a final judgment of conviction, which was the
ground upon which Moll was disqualified. It ruled:
In this case, the disqualification is based specifically on the final
judgment of conviction by a court against private
respondent. This final judgment disqualified private respondent
from filing his certificate of candidacy in the first instance, and
continues to disqualify private respondent from holding
office. Accordingly, the votes cast in his favor were stray or invalid
votes and the general rule in the Sunga Case does not
apply. Consequently, petitioner, having obtained the highest
number of valid votes, is entitled to be proclaimed the winning
mayoralty candidate.[11]
Further, it said:
x x x As such, this instance constitutes an exception to the general
rule enunciated in the Sunga Case. In the language of the said
case, the foregoing provision of law is a statute which clearly
asserts a legislative policy contrary to the rule that the candidate
with the second highest number of votes cannot be declared the
winner, given that the votes for the disqualified candidate, though
of highest number, are deemed stray and invalid. Consequently,
the so-called second placer shall be declared the winner because
he or she in fact obtained the highest number of valid votes.[12]
Such arguments do not persuade.
In every election, the choice of the people is the paramount
consideration, and their expressed will must at all times be given
effect.[13] When the majority speaks by giving a candidate the highest
number of votes in the election for an office, no one else can be
declared elected in place of the former.[14] In a long line of cases, this
Court has definitively ruled that the Comelec cannot proclaim as
winner the candidate who obtained the second highest number of
votes, should the winning candidate be declared ineligible or
disqualified.[15]
The Comelec, however, asserts that this case falls under the exception
declared by the Court in Sunga v. Comelec,[16] from which we quote:
x x x The votes cast for a disqualified person may not be valid to
install the winner into office or maintain him there. But in the
absence of a statute which clearly asserts a contrary political and
legislative policy on the matter, if the votes were cast in the
sincere belief that the candidate was qualified, they should not be
treated as stray, void or meaningless.[17]
According to the Comelec, Section 211(24) of the OEC is a clear
legislative policy that is contrary to the rule that the second placer
cannot be declared winner.
We disagree.
The provision that served as the basis of Comelecs Decision to declare
the second placer as winner in the mayoral race should be read in
relation with other provisions of the OEC.Section 72 thereof, as
amended by RA 6646, provides as follows:
Sec. 72. Effects of disqualification cases and priority. The
Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a
final decision shall be rendered not later than seven days before
the election in which the disqualification is sought.
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. Nevertheless, if for any reason, a candidate is not
declared by final judgment before an election to be disqualified
and he is voted for and receives the winning number of votes in
such election, his violation of the provisions of the preceding
sections shall not prevent his proclamation and assumption to
office." (Italics supplied)
When read together, these provisions are understood to mean that
any vote cast in favor of a candidate, whose disqualification has
already been declared final regardless of the ground therefor, shall be
considered stray. The Comelec misconstrued this provision by limiting
it only to disqualification by conviction in a final judgment.
Obviously, the disqualification of a candidate is not only by conviction
in a final judgment; the law lists other grounds for disqualification.[18] It
escapes us why the Comelec insists that Section 211(24) of the OEC is
strictly for those convicted by a final judgment. Such an interpretation
is clearly inconsistent with the other provisions of the election code.
More important, it is clear that it was only on March 19, 2003, that the
Comelec en banc issued Resolution No. SPA No. 01-272. The Resolution
adopted the recommendation of the provincial election supervisor of
Albay to disqualify Moll from running as a mayoral candidate in
Malinao, Albay. Thus, on May 14, 2001, when the electorate voted for
him as mayor, they were under the belief that he was qualified. There
is no presumption that they agreed to the subsequent invalidation of
their votes as stray votes, in case of his disqualification.
A subsequent finding by the Comelec en banc that Moll was
ineligible cannot retroact to the date of the election and thereby
invalidate the votes cast for him.[19]
Moreover, Moll was not notoriously known to the public as an
ineligible candidate. As discussed above, the Resolution declaring him
as such was rendered long after the election. Thus, on the part of those
who voted for him, their votes are presumed to have been cast with a
sincere belief that he was a qualified candidate, and without any
intention to misapply their franchise. Thus, their votes cannot be
treated as stray, void, or meaningless.[20]
The Comelecs interpretation of a section in the OEC cannot supplant
an accepted doctrine laid down by this Court. In Aquino v.
Comelec,[21] we said:
x x x 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
such circumstances.[22]
To allow the defeated and repudiated candidate to take over the
mayoralty despite his rejection by the electorate is to disenfranchise
them through no fault on their part, and to undermine the importance
and the meaning of democracy and the right of the people to elect
officials of their choice.[23]
Theoretically, the second placer could receive just one vote. In such a
case, it would be absurd to proclaim the totally repudiated candidate
as the voters choice. Moreover, there are instances in which the votes
received by the second placer may not be considered numerically
insignificant. In such situations, if the equation changes because of the
disqualification of an ineligible candidate, voters preferences would
nonetheless be so volatile and unpredictable that the results for
qualified candidates would not be self-evident.[24] The absence of the
apparent though ineligible winner among the choices could lead to a
shifting of votes to candidates other than the second placer.[25] Where
an ineligible candidate has garnered either a majority or a plurality of
the votes, by no mathematical formulation can the runnerup in the
election be construed to have obtained the majority or the plurality of
votes cast.[26]
We reiterate that this Court has no authority under any law to impose
upon and compel the people of Malinao, Albay, to accept Ceriola as
their mayor.[27] The law on succession under Section 44 of Republic Act
7160, otherwise known as the Local Government Code, would then
apply. This provision relevantly states:
SECTION 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 his permanent
inability, 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 according to
their ranking as defined herein.
x x x x x x x x x.
For purposes of this Chapter, a permanent vacancy arises when
an elective local official fills a higher vacant office, refuses to
assume office, fails to qualify, dies, is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to
discharge the functions of his office.
The language of the law is clear, explicit and unequivocal. Thus, it
admits no room for interpretation, but merely for
application.[28] Accordingly, when Moll was adjudged to be
disqualified, a permanent vacancy was created for failure of the
elected mayor to qualify for the office.[29] In such eventuality, the duly
elected vice mayor shall succeed as provided by law.[30]
For violating the law and the clear jurisprudence on this matter, the
Comelec committed grave abuse of discretion.[31]
WHEREFORE, the Petition in GR No 157526 is PARTLY GRANTED, and
the assailed Resolution MODIFIED. Petitioner Salvador K. Moll
is DECLARED ineligible for the position of municipal mayor of Malinao,
Albay. In view of the vacancy created in that office, Petitioner Emiliana
Toral Kare, the duly elected vice mayor, shall succeed as mayor,
following the rule on succession. The status quo order of this Court
dated April 1, 2003, is made permanent. Petitioner Kare shall continue
discharging the duties and powers of the mayor of Malinao, Albay. The
Petition in GR 157527 is DISMISSED for lack of merit.
No pronouncement as to costs.
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 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275
The proclamation of private respondent was suspended in view of a
pending petition for disqualification filed by a certain Ernesto Mamaril
who alleged that private respondent was not a citizen of the
Philippines but of the United States.
In its resolution, dated May 7, 1998,[2] the Second Division of the
COMELEC granted the petition of Mamaril and ordered the
cancellation of the certificate of candidacy of private respondent on
the ground that he is a dual citizen and, under 40(d) of the Local
Government Code, persons with dual citizenship are disqualified from
running for any elective position. The COMELECs Second Division said:
What is presented before the Commission is a petition for
disqualification of Eduardo Barrios Manzano as candidate for the office
of Vice-Mayor of Makati City in the May 11, 1998 elections. The
petition is based on the ground that the respondent is an American
citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.
In his answer to the petition filed on April 27, 1998, the respondent
admitted that he is registered as a foreigner with the Bureau of
Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of a
Filipino father and a Filipino mother. He was born in the United States,
San Francisco, California, on September 14, 1955, and is considered an
American citizen under US Laws. But notwithstanding his registration
as an American citizen, he did not lose his Filipino citizenship.
Judging from the foregoing facts, it would appear that respondent
Manzano is both a Filipino and a US citizen. In other words, he holds
dual citizenship.
The question presented is whether under our laws, he is disqualified
from the position for which he filed his certificate of candidacy. Is he
eligible for the office he seeks to be elected?
Under Section 40(d) of the Local Government Code, those holding dual
citizenship are disqualified from running for any elective local position.
WHEREFORE, the Commission hereby declares the respondent
Eduardo Barrios Manzano DISQUALIFIED as candidate for Vice-Mayor
of Makati City.
On May 8, 1998, private respondent filed a motion for
reconsideration.[3] The motion remained pending even until after the
election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10,
1998, of the COMELEC, the board of canvassers tabulated the votes
cast for vice mayor of Makati City but suspended the proclamation of
the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification.[4] 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 Filipinos at
the time of his birth. At the age of six (6), his parents brought him
to the Philippines using an American passport as travel
document. His parents also registered him as an alien with the
Philippine Bureau of Immigration. He was issued an alien
certificate of registration. This, however, did not result in the loss
of his Philippine citizenship, as he did not renounce Philippine
 citizenship and did not take an oath of allegiance to the United
States.
It is an undisputed fact that when respondent attained the age of
majority, he registered himself as a voter, and voted in the elections of
1992, 1995 and 1998, which effectively renounced his 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. He renounced his U.S. citizenship when he attained the
age of majority when he was already 37 years old; and,
2. He renounced his U.S. citizenship when he (merely)
registered himself as a voter and voted in the elections
of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or hold the elective office
of Vice-Mayor of the City of Makati;
C. At the time of the May 11, 1998 elections, the resolution of
the Second Division adopted on 7 May 1998 was not yet final
so that, effectively, petitioner may not be declared the
winner even assuming that Manzano is disqualified to run for
and hold the elective office of Vice-Mayor of the City of
Makati.
We first consider the threshold procedural issue raised by private
respondent Manzano whether petitioner Mercado has personality to
bring this suit considering that he was not an original party in the case
for disqualification filed by Ernesto Mamaril nor was petitioners
motion for leave to intervene granted.
I. PETITIONER'S RIGHT TO BRING THIS 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 the 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 because he is a
defeated candidate for the vice-mayoralty post of Makati City [who]
cannot be proclaimed as the Vice-Mayor of Makati City even if the
private respondent be ultimately disqualified by final and executory
judgment.
The flaw in this argument is it assumes that, at the time petitioner
sought to intervene in the proceedings before the COMELEC, there had
already been a proclamation of the results of the election for the vice
mayoralty contest for Makati City, on the basis of which petitioner
came out only second to private respondent. The fact, however, is that
there had been no proclamation at that time. Certainly, petitioner had,
and still has, an interest in ousting private respondent from the race at
the time he sought to intervene. The rule in Labo v.
COMELEC,[6] reiterated in several cases,[7] only applies to cases in
which the election of the respondent is contested, and the question is
whether one who placed second to the disqualified candidate may be
declared the winner. In the present case, at the time petitioner filed a
Motion for Leave to File Intervention on May 20, 1998, there had been
no proclamation of the winner, and 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 only on May 20, 1998, after private
respondent had been shown to have garnered the highest number of
votes among the candidates for vice mayor. That petitioner had a right
to intervene at that stage of the proceedings for the disqualification
against private respondent is clear from 6 of R.A. No. 6646, otherwise
known as the Electoral Reforms Law of 1987, which provides:
Any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by
final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the trial and
 hearing of the action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the pendency thereof
order the suspension of the proclamation of such candidate
whenever the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings for
disqualification even after election if there has yet been no final
judgment rendered.
The failure of the COMELEC en banc to resolve 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, whether he
is disqualified from being a candidate for vice mayor of Makati City.
II. DUAL CITIZENSHIP 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. 7160), which
declares as disqualified from running for any elective local position: . .
. (d) Those with dual citizenship. This provision is incorporated in the
Charter of the City of Makati.[8]
Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor
General, who sides with him in this case, contends that through 40(d)
of the Local Government Code, Congress has command[ed] in explicit
terms the ineligibility of persons possessing dual allegiance to hold
local elective office.
To begin with, dual citizenship is different from dual allegiance. The
former arises when, as a result of the concurrent application of the
different laws of two or more states, a person is simultaneously
considered a national by the said states.[9] For instance, such a
situation may arise when a person whose parents are citizens of a state
which adheres to the principle of jus sanguinis is born in a state which
follows the doctrine of jus soli. Such a person, ipso facto and without
any voluntary act on his part, is concurrently considered a citizen of
both states. Considering the citizenship clause (Art. IV) of our
Constitution, it is possible for the following classes of citizens of the
Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries
which follow the principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers
if by the laws of their fathers country such children are citizens of
that country;
(3) Those who marry aliens if by the laws of the latters country the
former are considered citizens, unless by their act or omission
they are deemed to have renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may,
without performing any act, be also a citizen of another state; but the
above cases are clearly possible given the constitutional provisions on
citizenship.
Dual allegiance, on the other hand, refers to the situation in which a
person simultaneously owes, by some positive act, loyalty to two or
more states. While dual citizenship is involuntary, dual allegiance is the
result of an 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
cognizance of the problem of dual allegiance. For example, we all know
what happens in the triennial elections of the Federation of Filipino-
Chinese Chambers of Commerce which consists of about 600 chapters
all over the country. There is a Peking ticket, as well as a Taipei
ticket. Not widely known is the fact that the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of
China in Taiwan. And until recently, the sponsor might recall, in
Mainland China in the Peoples Republic of China, they have the
Associated Legislative Council for overseas Chinese wherein all of
Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of
diplomatic friction. At that time, the Filipino-Chinese were also
represented in that Overseas Council.
When I speak of double allegiance, therefore, I speak of this unsettled
kind of allegiance of Filipinos, of citizens who are already Filipinos but
who, by their acts, may be said to be bound by a second allegiance,
either to Peking or Taiwan. I also took close note of the concern
expressed by some Commissioners yesterday, including Commissioner
Villacorta, who were concerned about the lack of guarantees of
thorough assimilation, and especially Commissioner Concepcion who
has always been worried about minority claims on our natural
resources.
Dual allegiance can actually siphon scarce national capital to Taiwan,
Singapore, China or Malaysia, and this is already happening. Some of
the great commercial places in downtown Taipei are Filipino-owned,
owned by Filipino-Chinese it is of common knowledge in Manila. It can
mean a tragic capital outflow when we have to endure a capital famine
which also means economic stagnation, worsening unemployment and
social unrest.
And so, this is exactly what we ask that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on
Citizenship which will read as follows: DUAL ALLEGIANCE IS INIMICAL
TO CITIZENSHIP AND SHALL BE DEALT WITH ACCORDING TO LAW.
In another session of the Commission, Ople spoke on the problem of
these citizens with dual allegiance, thus:[11]
. . . A significant number of Commissioners expressed their
concern about dual citizenship in the sense that it implies a double
allegiance under a double sovereignty which some of us who
spoke then in a freewheeling debate thought would be repugnant
to the sovereignty which pervades the Constitution and to
citizenship itself which implies a uniqueness and which elsewhere
in the Constitution is defined in terms of rights and obligations
exclusive to that citizenship including, of course, the obligation to
rise to the defense of the State when it is threatened, and back of
this, Commissioner Bernas, is, of course, the concern for national
security. In the course of those debates, I think some noted the
fact that as a result of the wave of naturalizations since the
decision to establish diplomatic relations with the Peoples
 Republic of China was made in 1975, a good number of these
naturalized Filipinos still routinely go to Taipei every October 10;
and it is asserted that some of them do renew their oath of
allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen
Republic is commemorated. And so, I have detected a genuine
and deep concern about double citizenship, with its attendant risk
of double allegiance which is repugnant to our sovereignty and
national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But
considering the scale of the problem, the real impact on the
security of this country, arising from, let us say, potentially great
numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time
that will prohibit, in effect, or regulate double citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of the
Constitutional Commission was not with dual citizens per se but with
naturalized citizens who maintain their allegiance to their countries of
origin even after their naturalization. Hence, the phrase dual
citizenship in R.A. No. 7160, 40(d) and in R.A. No. 7854, 20 must be
understood as referring to dual allegiance. Consequently, persons with
mere dual citizenship do not fall under this disqualification. Unlike
those with dual allegiance, who must, therefore, be subject to strict
process with respect to the termination of their status, for candidates
with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate
their status as persons with dual citizenship considering that their
condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive
members of the Constitutional Commission, pointed out: [D]ual
citizenship is just a reality imposed on us because we have no control
of the laws on citizenship of other countries. We recognize a child of a
Filipino mother. But whether or not she is considered a citizen of
another country is something completely beyond our control.[12]
By electing Philippine citizenship, such candidates at the same time
forswear allegiance to the other country of which they are also citizens
and thereby terminate their status as dual citizens. It may be that, from
the point of view of the foreign state and of its laws, such an individual
has not effectively renounced his foreign citizenship. That is of no
moment as the following discussion on 40(d) between Senators Enrile
and Pimentel clearly shows:[13]
SENATOR ENRILE. Mr. President, I would like to ask clarification of
line 41, page 17: Any person with dual citizenship is disqualified
to run for any elective local position. Under the present
Constitution, Mr. President, someone whose mother is a citizen
of the Philippines but his father is a foreigner is a natural-born
citizen of the Republic. There is no requirement that such a
natural born citizen, upon reaching the age of majority, must elect
or give up Philippine citizenship.
On the assumption that this person would carry two passports,
one belonging to the country of his or her father and one
belonging to the Republic of the Philippines, may such a situation
disqualify the person to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr. President, it only means
that at the moment when he would want to run for public office,
he has to repudiate one of his citizenships.
SENATOR ENRILE. Suppose he carries only a Philippine passport
but the country of origin or the country of the father claims that
person, nevertheless, as a citizen? No one can renounce. There
are such countries in the world.
SENATOR PIMENTEL. Well, the very fact that he is running for
public office would, in effect, be an election for him of his desire
to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr. President, the Constitution
does not require an election. Under the Constitution, a person
whose mother is a citizen of the Philippines is, at birth, a citizen
without any overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is:
Under the Gentlemans example, if he does not renounce his other
citizenship, then he is opening himself to question. So, if he is
really interested to run, the first thing he should do is to say in the
Certificate of Candidacy that: I am a Filipino citizen, and I have
only one citizenship.
SENATOR ENRILE. But we are talking from the viewpoint of
Philippine law, Mr. President. He will always have one citizenship,
and that is the citizenship invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr. President. But if he
exercises acts that will prove that he also acknowledges other
citizenships, then he will probably fall under this disqualification.
This is similar to the requirement that an applicant for naturalization
must renounce all allegiance and fidelity to any foreign prince,
potentate, state, or sovereignty[14] of which at the time he is a subject
or citizen before he can be issued a certificate of naturalization as a
citizen of the Philippines. In Parado v. Republic,[15] it was held:
[W]hen a person applying for citizenship by naturalization takes
an oath that he renounces his loyalty to any other country or
government and solemnly declares that he owes his allegiance to
the Republic of the Philippines, the condition imposed by law is
satisfied and complied with. The determination whether such
renunciation is valid or fully complies with the provisions of our
Naturalization Law lies within the province and is an exclusive
prerogative of our courts. The latter should apply the law duly
enacted by the legislative department of the Republic. No foreign
law may or should interfere with its operation and application. If
the requirement of the Chinese Law of Nationality were to be read
into our Naturalization Law, we would be applying not what our
legislative department has deemed it wise to require, but what a
foreign government has thought or intended to exact. That, of
course, is absurd. It must be resisted by all means and at all cost. It
would be a brazen encroachment upon the sovereign will and
power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
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 made when he reached the age of majority.
In holding that by voting in Philippine elections private respondent
renounced his American citizenship, the COMELEC must have in mind
349 of the Immigration and Nationality Act of the United States, which
provided that A person who is a national of the United States, whether
by birth or naturalization, shall lose his nationality by: . . . (e) Voting in
a political election in a foreign state or participating in an election or
plebiscite to determine the sovereignty over foreign territory. To be
sure this provision was declared unconstitutional by the U.S. Supreme
Court in Afroyim v. Rusk[16] as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a certificate
of candidacy when he ran for his present post, private respondent
elected Philippine citizenship and in effect renounced his American
citizenship. Private 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) NATURAL-BORN
....
10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A,
BARANGAY SAN LORENZO, CITY/MUNICIPALITY OF MAKATI,
PROVINCE OF NCR .
11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO,
A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL
SUPPORT AND DEFEND THE CONSTITUTION OF THE
PHILIPPINES AND WILL MAINTAIN TRUE FAITH AND
ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS, LEGAL
ORDERS AND DECREES PROMULGATED BY THE DULY
CONSTITUTED AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS OBLIGATION UPON
MYSELF VOLUNTARILY, WITHOUT MENTAL RESERVATION OR
PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE FACTS
STATED HEREIN ARE TRUE AND CORRECT OF MY OWN
PERSONAL KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his
American citizenship, effectively removing any disqualification he
might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held:[17]
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him from running for
any elective local position? We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he had long renounced and had long
abandoned his American citizenship-long before May 8, 1995. At
best, Frivaldo was stateless in the interim-when he abandoned
and renounced his US citizenship but before he was repatriated
to his Filipino citizenship.
On this point, we quote from the assailed Resolution dated December
19, 1995:
By the laws of the United States, petitioner Frivaldo lost his
American citizenship when he took his oath of allegiance to the
Philippine Government when he ran for Governor in 1988, in
1992, and in 1995.Every certificate of candidacy contains an oath
of allegiance to the Philippine Government.
These factual findings that Frivaldo has lost his foreign nationality long
before the elections of 1995 have not been effectively rebutted by
Lee. Furthermore, it is basic that such findings of the Commission are
conclusive upon this Court, absent any showing of capriciousness or
arbitrariness or abuse.
There is, therefore, no merit in petitioners contention that the oath of
allegiance contained in private respondents certificate 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 Immigration
and Deportation and that he holds an American passport which he
used in his last travel to the United States on April 22, 1997. There is
no merit in this. Until the filing of his certificate of candidacy on March
21, 1998, he had dual citizenship. The acts attributed to him can be
considered simply as the assertion of his American nationality before
the termination of his American citizenship. What this Court said
in Aznar 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
renunciation needed to lose Philippine citizenship must be
express, it stands to reason that there can be no such loss of
Philippine citizenship when there is no renunciation, either
express or implied.
To recapitulate, by declaring in his certificate of candidacy that he is a
Filipino citizen; that he is not a permanent resident or immigrant of
another country; that he will defend and support the Constitution of
the Philippines and bear true faith and allegiance thereto and that he
does so without mental reservation, private respondent has, as far as
the laws of this country are concerned, effectively repudiated his
American citizenship and anything which he may have said before as a
dual citizen.
On the other hand, private 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, renounces 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.
G.R. No. 153475
November 13, 2002
ATTY. MIGUEL M. LINGATING, petitioner, vs. COMMISSION ON
ELECTIONS and CESAR B. SULONG, respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari to set aside the resolution,[1] dated April
4, 2002, of the Commission on Elections (COMELEC) en banc, reversing
the resolution,[2] dated August 1, 2001, of its First Division and
dismissing the petition for disqualification filed by petitioner Miguel M.
Lingating against respondent Cesar B. Sulong as candidate for mayor of
Lapuyan, Zamboanga del Sur in the May 14, 2001 elections.
On May 3, 2001, petitioner filed with the Provincial Election Supervisor
in Pagadian City a petition for the disqualification of respondent
Sulong, pursuant to 40(b) of Republic Act No. 7160 (Local Government
Code), which disqualifies from running for any elective local position
those removed from office as a result of an administrative case.[3] It
appears that respondent Sulong had previously won as mayor of
Lapuyan on January 18, 1988. In the May 11, 1992, and again in the
May 8, 1995 elections, he was reelected. In a petition for
disqualification, petitioner alleged that in 1991, during his first term as
mayor of Lapuyan, respondent Sulong, along with a municipal
councilor of Lapuyan and several other individuals,[4] was
administratively charged (AC No. 12-91) with various offenses,[5] and
that, on February 4, 1992, the Sangguniang Panlalawigan of
Zamboanga del Sur found him guilty of the charges and ordered his
removal from office. Petitioner claimed that this decision had become
final and executory, and consequently the then vice-mayor of Lapuyan,
Vicente Imbing, took his oath as mayor vice respondent Sulong on
March 3, 1992.[6]
Respondent Sulong denied that the decision in AC No. 12-91 had
become final and executory. He averred that after receiving a copy of
the decision on February 17, 1992, he filed a motion for
reconsideration and/or notice of appeal thereof on February 18, 1992;
that on February 27, 1992, the Sangguniang Panlalawigan required Jim
Lingating, the complainant in AC No. 12-91, to comment on respondent
Sulongs motion for reconsideration and/or notice of appeal; that the
said complainant had not yet complied therewith and his (respondent
Sulongs) motion had consequently remained pending. Respondent
Sulong denied he had been removed from office by virtue of the
decision in AC No. 12-91.
After the parties had filed their memoranda, the case was submitted
for resolution. Because the COMELEC was unable to render judgment
before the elections of May 14, 2001, respondent Sulong was voted for
in the elections, receiving 4,882 votes as against the 3,611 votes for
petitioner. On May 16, 2001, respondent Sulong was proclaimed by
the Municipal Board of Canvassers of Lapuyan as the duly elected
mayor of that municipality.
In a resolution dated August 1, 2001, the COMELECs First Division
declared respondent Cesar B. Sulong disqualified. It held:
Section 40(b) of the Local Government Code is clear that any person
removed from office by reason of an administrative case is disqualified
from running for any elective local office.
From such point, it is clear that Respondent Sulong was declared guilty
of having violated the Anti-Graft and Corrupt Practices Act by the
Sangguniang Panlalawigan of Zamboanga del Sur. . .which. . .has
become final and executory, thereby depriving him of his right to run
for public office.
....
WHEREFORE, in the light of the foregoing, this Commission hereby
resolves to GRANT this Petition and DISQUALIFY Respondent Cesar B.
Sulong to run for Municipal mayor for Lapuyan, Zamboanga del Sur in
the May 14, 2001 Elections in violation of Section 40[b] of the Local
Government Code.[7]
Respondent Sulong filed a motion for reconsideration citing a
certification, dated August 7, 2001, of Provincial Secretary of
Zamboanga del Sur (OIC) Wilfredo Cimafranca that the decision in AC
No. 12-91 has not become final and executory as the final disposition
thereof was overtaken by the local elections of May 1992. He
reiterated his claim that at no time had he been removed by virtue of
the said decision.[8]
Petitioner filed an opposition contending, among other things, that the
fact that Zamboanga del Sur Governor Ariosa had ordered the
enforcement of the decision signified that respondent Sulongs motion
for reconsideration and/or notice of appeal had not been given due
course by the Sangguniang Panlalawigan; and that respondent Sulongs
claim that he had not been removed from office was belied by the fact
that he (respondent Sulong) brought charges against Vicente Imbing
for Usurpation of Official Functions (I.S. No. 92-35), in support of which
respondent Sulong attested under oath that Imbing had succeeded
him as mayor of Lapuyan.[9]
In a separate motion, petitioner prayed that the resolution of August
1, 2001 be executed and that he be installed as mayor of Lapuyan in
view of private respondents disqualification. On August 30, 2001, the
COMELECs First Division denied petitioners motion for execution on
the ground that the disqualification of an elected candidate does not
entitle the candidate who obtained the second highest number of
votes to occupy the office vacated.[10] Petitioner then filed a motion for
reconsideration of this order.[11]
On April 4, 2002, the COMELEC en banc issued its resolution subject of
the petition in this case, reversing the resolution, dated August 1, 2001,
of its First Division insofar as it found respondent Sulong disqualified
from running as mayor. It held:
The only issue in this case is whether or not the foregoing decision [in
AC No. 12-91], assuming it has become final and executory, constitutes
a ground for the disqualification of herein respondent-movant as a
candidate in the elections [of May 14, 2001].
The records of the case reveal that the decision of the Sangguniang
Panlalawigan was promulgated on February [4], 1992 finding
respondent Sulong guilty of dishonesty, falsification of public
documents, malversation. . .
In the May 1992 elections, respondent Sulong was re-elected mayor of
Lapuyan, Zamboanga del Sur despite the decision of the Sangguniang
dismissing him from office. In the 1995 May elections, respondent
Sulong ran and won the mayoralty elections of Lapuyan, Zamboanga
del Sur.
While it is true that one of the disqualifications from running in an
elective position is removal from office as a result of an administrative
case, said provision no longer applies if the candidate whose
qualification is questioned got re-elected to another term. In
Aguinaldo vs. Santos, 212 SCRA 768, the Supreme Court ruled that re-
election renders an administrative case moot and academic.
....
Obviously, the re-election of [r]espondent Sulong in the 1992 and 1995
elections would be tantamount to a condonation of the Sangguniang
Panlalawigan decision promulgated 04 February 1992 which found him
guilty of dishonesty, malversation of public funds etc[.], granting said
decision has become final and executory.
Moreover, the people of LAPUYAN have already expressed their will
when they cast their votes in the recent elections as evidenced by the
results which found respondent Sulong to have won convincingly.
....
WHEREFORE, premises considered, the Commission En Banc
RESOLVED as it hereby RESOLVES to reverse the First Division
Resolution [dated August 1, 2001] and DISMISS the petition for lack of
merit.[12]
The COMELEC en banc also ruled that, in any event, respondent Sulong
was not entitled to occupy the office thus vacated. Hence, this petition
by Lingating.
Petitioner contends that the COMELEC en banc erred in applying the
ruling in Aguinaldo v. Commission on Elections[13] in holding that the
reelection of respondent Sulong in 1992 and 1995 as mayor of Lapuyan
had the effect of condoning the misconduct for which he was ordered
dismissed by the Sangguniang Panlalawigan of Zamboanga del Sur.
Petitioner cites Reyes v. Commission on Elections[14] in which we held
that an elective local executive officer, who is removed before the
expiration of the term for which he was elected, is disqualified from
being a candidate for a local elective position under 40(b) of the Local
Government Code.
We stated in Reyes:
Petitioner invokes the ruling in Aguinaldo v. COMELEC, in which it was
held that a public official could not be removed for misconduct
committed during a prior term and that his reelection operated as a
condonation of the officers previous misconduct to the extent of
cutting off the right to remove him therefor. But that was because in
that case, before the petition questioning the validity of the
administrative decision removing petitioner could be decided, the
term of office during which the alleged misconduct was committed
expired. Removal cannot extend beyond the term during which the
alleged misconduct was committed. If a public official is not removed
before his term of office expires, he can no longer be removed if he is
thereafter reelected [for] another term. This is the rationale for the
ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, . . . the
decision in the administrative case, . . . was served on petitioner and it
thereafter became final on April 3, 1995, because petitioner failed to
appeal to the Office of the President. He was thus validly removed from
office and, pursuant to 40(b) of the Local Government Code, he was
disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided
there was no provision similar to 40(b) which disqualifies any person
from running for any elective position on the ground that he has been
removed as a result of an administrative case. The Local Government
Code of 1991 (R.A. No. 7160) could not be given retroactive effect.
However, Reyes cannot be applied to this case because it appears that
the 1992 decision of the Sangguniang Panlalawigan, finding
respondent Sulong guilty of dishonesty, falsification and malversation
of public funds, has not until now become final. The records of this case
show that the Sangguniang Panlalawigan of Zamboanga del Sur
rendered judgment in AC No. 12-91 on February 4, 1992, a copy of
which was received by respondent Sulong on February 17, 1992; that
on February 18, 1992, he filed a motion for reconsideration and/or
notice of appeal; that on February 27, 1992, the Sangguniang
Panlalawigan, required Jim Lingating, the complainant in AC No. 12-91,
to comment; and that the complainant in AC No. 12-91 has not filed a
comment nor has the Sangguniang Panlalawigan resolved respondents
motion. The filing of his motion for reconsideration prevented the
decision of Sangguniang Panlalawigan from becoming final.
While R.A. No. 7160 on disciplinary actions is silent on the filing of a
motion for reconsideration, the same cannot be interpreted as a
prohibition against the filing of a motion for reconsideration. Thus, it
was held[15] that a party in a disbarment proceeding under Rule 139-B,
12(c) can move for a reconsideration of a resolution of the Integrated
Bar of the Philippines although Rule 139-B does not so provide:
Although Rule 139-B, 12(c) makes no mention of a motion for
reconsideration, nothing in its text or history suggests that such motion
is prohibited. It may therefore be filed . . . . Indeed, the filing of such
motion should be encouraged before [an appeal is] resort[ed] to . . . as
a matter of exhaustion of administrative remedies, to afford the
agency rendering the judgment [an] opportunity to correct any error it
may have committed through a misapprehension of facts or
misappreciation of evidence.
There is thus no decision finding respondent guilty to speak of. As
Provincial Secretary of Zamboanga del Sur Wilfredo Cimafranca
attested, the Sangguniang Panlalawigan simply considered the matter
as having become moot and academic because it was overtaken by the
local elections of May [11,]1992.
Neither can the succession of the then vice-mayor of Lapuyan, Vicente
Imbing, and the highest ranking municipal councilor of Lapuyan,
Romeo Tan, to the offices of mayor and vice-mayor, respectively, be
considered proof that the decision in AC No. 12-91 had become final
because it appears to have been made pursuant to 68[16] of the Local
Government Code, which makes decisions in administrative cases
immediately executory.
Indeed, considering the failure of the Sangguniang Panlalawigan to
resolve respondents motion, it is unfair to the electorate to be told
after they have voted for respondent Sulong that after all he is
disqualified, especially since, at the time of the elections on May 14,
2001, the decision of the Sangguniang Panlalawigan had been
rendered nearly ten years ago.
Having come to the conclusion that respondent Sulong is not
disqualified from holding the position of mayor of Lapuyan, it is
unnecessary to pass upon petitioners contention that, as the candidate
who obtained the second highest number of votes, he is entitled to be
installed as mayor because the votes cast in favor of respondent Sulong
were void.
WHEREFORE, the petition for certiorari is DISMISSED and the
resolution, dated April 4, 2002, of the COMELEC en banc, dismissing
petitioners petition for disqualification, is AFFIRMED.
G.R. No. 120099
July 24, 1996
EDUARDO T. RODRIGUEZ, petitioner, vs. COMMISSION ON
ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.
FRANCISCO, J.:
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O.
Marquez Jr. (Rodriguez and Marquez, for brevity) were protagonists for
the gubernatorial post of Quezon Province in the May 1992 elections.
Rodriguez won and was proclaimed duly-elected governor.
Marquez challenged Rodriguez' victory via petition for quo
warranto before the COMELEC (EPC No. 92-28). Marquez revealed that
Rodriguez left the United States where a charge, filed on November 12,
1985, is pending against the latter before the Los Angeles Municipal
Court for fraudulent insurance claims, grand theft and attempted
grand theft of personal property. Rodriguez is therefore a "fugitive
from justice" which is a ground for his disqualification/ineligibility
under Section 40(e) of the Local Government Code (R.A. 7160), so
argued Marquez.
The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-
28) in a resolution of February 2, 1993, and likewise denied a
reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before
this Court via petition for certiorari, docketed as G.R. No. 112889. The
crux of said petition is whether Rodriguez, is a "fugitive from justice" as
contemplated by Section 40 (e) of the Local Government Code based
on the alleged pendency of a criminal charge against him (as previously
mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr.
vs. COMELEC"' promulgated on April 18, 1995, now appearing in
Volume 243, page 538 of the SCRA and hereinafter referred to as
the MARQUEZ Decision, declared that:
. . . , "fugitive from justice" includes not only those who flee after
conviction to avoid punishment but likewise those who, after
being charged, flee to avoid prosecution. This definition truly finds
support from jurisprudence (. . .), and it may be so conceded as
expressing the general and ordinary connotation of the term.1
Whether or not Rodriguez is a "fugitive from justice" under the
definition thus given was not passed upon by the Court. That task was
to devolve on the COMELEC upon remand of the case to it, with the
directive to proceed therewith with dispatch conformably with
the MARQUEZ Decision. Rodriguez sought a reconsideration thereof.
He also filed an "Urgent Motion to Admit Additional Argument in
Support of the Motion for Reconsideration" to which was attached a
certification from the Commission on Immigration showing that
Rodriguez left the US on June 25, 1985 — roughly five (5) months prior
to the institution of the criminal complaint filed against him before the
Los Angeles court. The Court however denied a reconsideration of
the MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their
rivalry for the same position of governor. This time, Marquez
challenged Rodriguez' candidacy via petition for disqualification before
the COMELEC, based principally on the same allegation that Rodriguez
is a "fugitive from justice." This petition for disqualification (SPA No.
95-089) was filed by Marquez on April 11, 1995 when Rodriguez'
petition for certiorari (112889) — from where the April 18,
1995 MARQUEZ Decision sprung — was still then pending before the
Court.
On May 7, 1995 and after the promulgation of the MARQUEZ Decision,
the COMELEC promulgated a Consolidated Resolution for EPC No. 92-
28 (quo warranto case) and SPA NO. 95-089 (disqualification case). In
justifying a joint resolution of these two (2) cases, the COMELEC
explained that:
1. EPC No. 92-28 and SPA No. 95-089 are inherently related cases
2. the parties, facts and issue involved are identical in both cases
3. the same evidence is to be utilized in both cases in determining
the common issue of whether Rodriguez is a "fugitive from
justice"
4. on consultation with the Commission En Banc, the Commissioners
unanimously agreed that a consolidated resolution of the two (2)
cases is not procedurally flawed.
Going now into the meat of that Consolidated Resolution, the
COMELEC, allegedly having kept in mind the MARQUEZ
Decision definition of "fugitive from justice", found Rodriguez to be
one. Such finding was essentially based on Marquez' documentary
evidence consisting of
1. an authenticated copy of the November 12, 1995 warrant of
arrest issued by the Los Angeles municipal court against
Rodriguez, and
2. an authenticated copy of the felony complaint
which the COMELEC allowed to be presented ex-parte after Rodriguez
walked-out of the hearing of the case on April 26, 1995 following the
COMELEC's denial of Rodriguez' motion for postponement. With the
walk-out, the COMELEC considered Rodriguez as having waived his
right to disprove the authenticity of Marquez' aforementioned
documentary evidence. The COMELEC thus made the following
analysis:
The authenticated documents submitted by petitioner (Marquez)
to show the pendency of a criminal complaint against the
respondent (Rodriguez) in the Municipal Court of Los Angeles,
California, U.S.A., and the fact that there is an outstanding
warrant against him amply proves petitioner's contention that the
respondent is a fugitive from justice. The Commission cannot look
with favor on respondent's defense that long before the felony
complaint was allegedly filed, respondent was already in the
Philippines and he did not know of the filing of the same nor was
he aware that he was being proceeded against criminally. In a
sense, thru this defense, respondent implicitly contends that he
cannot be deemed a fugitive from justice, because to be so, one
must be aware of the filing of the criminal complaint, and his
disappearance in the place where the long arm of the law, thru
the warrant of arrest, may reach him is predicated on a clear
desire to avoid and evade the warrant. This allegation in the
Answer, however, was not even fortified with any attached
document to show when he left the United States and when he
returned to this country, facts upon which the conclusion of
absence of knowledge about the criminal complaint may be
derived. On the contrary, the fact of arrest of respondent's wife
on November 6, 1985 in the United States by the Fraud Bureau
investigators in an apartment paid for respondent in that country
can hardly rebut whatever presumption of knowledge there is
against the respondent.2
And proceeding therefrom, the COMELEC, in the dispositive portion,
declared:
WHEREFORE, considering that respondent has been proven to
be fugitive from justice, he is hereby ordered disqualified or
ineligible from assuming and performing the functions of
Governor of Quezon Province. Respondent is ordered to
immediately vacate said office. Further, he is hereby disqualified
from running for Governor for Quezon Province in the May 8,
1995 elections. Lastly, his certificate of candidacy for the May 8,
1995 elections is hereby set aside.
At any rate, Rodriguez again emerge as the victorious candidate in the
May 8, 1995 election for the position of governor.
On May 10 and 11, 1995, Marquez filed urgent motions to suspend
Rodriguez' proclamation which the COMELEC granted on May 11,
1995. The Provincial Board of Canvassers nonetheless proclaimed
Rodriguez on May 12, 1995.
The COMELEC Consolidated Resolution in EPC No. 92-28 and SPA No.
95-089 and the May 11, 1995 Resolution suspending Rodriguez'
proclamation thus gave rise to the filing of the instant petition
for certiorari(G.R. No. 120099) on May 16, 1995.
On May 22, 1995, Marquez filed an "Omnibus Motion To Annul The
Proclamation of Rodriguez, To Proclaim Marquez And To Cite The
Provincial Board of Canvassers in Contempt" before the COMELEC (in
EPC No. 92-28 and SPA No. 95-089).
Acting on Marquez' omnibus motion, the COMELEC, in its Resolution
of June 23, 1995, nullified Rodriguez' proclamation and ordered certain
members of the Quezon Province Provincial Board of Canvassers to
explain why they should not be cited in contempt for disobeying the
poll body's May 11, 1995 Resolution suspending Rodriguez'
proclamation. But with respect to Marquez' motion for his
proclamation, the COMELEC deferred action until after this Court has
resolved the instant petition (G.R. No. 120099).
Rodriguez filed a motion to admit supplemental petition to include the
aforesaid COMELEC June 23, 1995 Resolution, apart from the May 7
and May 11, 1995 Resolutions (Consolidated Resolution and Order to
suspend Rodriguez' proclamation, respectively).
As directed by the Court, oral arguments were had in relation to the
instant petition (G.R. No. 120099) on July 13, 1995.
Marquez, on August 3, 1995, filed an "Urgent Motion for Temporary
Restraining Order Or Preliminary Injunction" which sought to retain
and enjoin Rodriguez "from exercising the powers, functions and
prerogatives of Governor of Quezon . . . ." Acting favorably thereon,
the Court in a Resolution dated August 8, 1995 issued a temporary
restraining order. Rodriguez' "Urgent Motion to Lift Temporary
Restraining Order And/Or For Reconsideration" was denied by the
Court in an August 15, 1995 Resolution. Another similar urgent motion
was later on filed by Rodriguez which the Court also denied.
In a Resolution dated October 24, 1995, the Court
. . . RESOLVED to DIRECT the Chairman of the Commission on
Elections ("COMELEC") to designate a Commissioner or a ranking
official of the COMELEC to RECEIVE AND EVALUATE such legally
admissible evidence as herein petitioner Eduardo Rodriguez may
be minded to present by way of refuting the evidence heretofore
submitted by private respondent Bienvenido Marquez, Sr., or that
which can tend to establish petitioner's contention that he does
not fall within the legal concept of a "fugitive from justice." Private
respondent Marquez may likewise, if he so desires, introduce
additional and admissible evidence in support of his own position.
The provisions of Sections 3 to 10, Rule 33, of the Rules of Court
may be applied in the reception of the evidence. The Chairman of
the COMELEC shall have the proceedings completed and the
corresponding report submitted to this Court within thirty (30)
days from notice hereof.
The COMELEC complied therewith by filing before the Court, on
December 26, 1995, a report entitled "'EVIDENCE OF THE PARTIES and
COMMISSION'S EVALUATION" wherein the COMELEC, after calibrating
the parties' evidence, declared that Rodriguez is NOT a "fugitive from
justice" as defined in the main opinion in the MARQUEZ Decision, thus
making a 180-degree turnaround from its finding in the Consolidated
Resolution. In arriving at this new conclusion, the COMELEC opined
that intent to evade is a material element of the MARQUEZ
Decision definition. Such intent to evade is absent in Rodriguez' case
because evidence has established that Rodriguez arrived in the
Philippines (June 25, 1985) long before the criminal charge was
instituted in the Los Angeles Court (November 12, 1985).
But the COMELEC report did not end there. The poll body expressed
what it describes as its "persistent discomfort" on whether it read and
applied correctly the MARQUEZ Decision definition of "fugitive from
justice". So as not to miss anything, we quote the COMELEC's
observations in full:
. . . The main opinion's definition of a "fugitive from justice"
"include not only those who flee after conviction to avoid
punishment but also those who, after being charged, flee to avoid
prosecution." It proceeded to state that:
This definition truly finds support from jurisprudence
(Philippine Law Dictionary Third Edition, p. 399 by F.B.
Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King v.
Noe, 244 SC 344; 137 SE 2d 102, 103; Hughes v. Pflanz, 138
Federal Reporter 980; Tobin v. Casaus 275 Pacific Reporter
2d p. 792), and it may be so conceded as expressing the
general and ordinary connotation of the term.
But in the majority of the cases cited, the definition of the term
"fugitive from justice" contemplates other instances not explicitly
mentioned in the main opinion. Black's Law Dictionary begins the
definition of the term by referring to a "fugitive from justice" as:
(A) person, who, having committed a crime, flees from jurisdiction
of the court where crime was committed or departs from his usual
place of abode and conceals himself within the district. . . .
Then, citing King v. Noe, the definition continues and conceptualizes a
"fugitive from justice" as:
. . . a person who, having committed or been charged with a
crime in one state, has left its jurisdiction and is found within the
territory of another when it is sought to subject him to the
criminal process of the former state. (our emphasis)
In Hughes v. Pflanz, the term was defined as:
a person who, having committed within a state a crime, when
sought for, to be subjected to criminal process, is found within the
territory of another state.
Moreno's Philippine Law Dictionary, 5th Ed. considers the term as an:
expression which refers to one having committed, or being accused, of
a crime in one jurisdiction and is absent for any reason from that
jurisdiction.
Specifically, one who flees to avoid punishment . . . (emphasis ours)
From the above rulings, it can be gleaned that the objective facts
sufficient to constitute flight from justice are: (a) a person
committed a "crime" or has been charged for the commission
thereof; and (b) thereafter, leaves the jurisdiction of the court
where said crime was committed or his usual place of abode.
Filing of charges prior to flight is not always an antecedent requirement
to label one a "fugitive from justice". Mere commission of a "crime"
without charges having been filed for the same and flight subsequent
thereto sufficiently meet the definition. Attention is directed at the use
of the word "crime" which is not employed to connote guilt or
conviction for the commission thereof. Justice Davide's separate
opinion in G.R. No. 112889 elucidates that the disqualification for being
a fugitive does not involve the issue of the presumption of innocence,
the reason for disqualification being that a person "was not brought
within the jurisdiction of the court because he had successfully evaded
arrest; or if he was brought within the jurisdiction of the court and was
tried and convicted, he has successfully evaded service of sentence
because he had jumped bail or escaped. The disqualification then is
based on hisflight from justice."
Other rulings of the United States Supreme Court further amplify the
view that intent and purpose for departure is inconsequential to the
inquiry. The texts, which are persuasive in our jurisdiction, are more
unequivocal in their pronouncements. In King v. US (144 F. 2nd 729),
citing Roberts v. Reilly (116 US 80) the United States Supreme Court
held:
. . . it is not necessary that the party should have left the state or
the judicial district where the crime is alleged to have been
committed, after an indictment found, or for the purpose of
avoiding an anticipated prosecution, but that, having committed
a crime within a state or district, he has left and is found in
another jurisdiction (emphasis supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in
unmistakeable language:
The simple fact that they (person who have committed crime
within a state) are not within the state to answer its criminal
process when required renders them, in legal intendment,
fugitives from justice.
THEREFORE, IT APPEARS THAT GIVEN THE AUTHORITIES CITED IN G.R.
NO. 112889, THE MERE FACT THAT THERE ARE PENDING CHARGES IN
THE UNITED STATES AND THAT PETITIONER RODRIGUEZ IS IN THE
PHILIPPINES MAKE PETITIONER A "FUGITIVE FROM JUSTICE".
From the foregoing discussions, the determination of whether or not
Rodriguez is a fugitive from justice hinges on whether or not Rodriguez'
evidence shall be measured against the two instances mentioned in
the main opinion, or is to be expanded as to include other situations
alluded to by the foreign jurisprudence cited by the Court. In fact, the
spirited legal fray between the parties in this case focused on each
camp's attempt to construe the Court's definition so as to fit or to
exclude petitioner within the definition of a "fugitive from justice".
Considering, therefore, the equally valid yet different interpretations
resulting from the Supreme Court decision in G.R. No. 112889, the
Commission deems it most conformable to said decision to evaluate
the evidence in light of the varied constructions open to it and to
respectfully submit the final determination of the case to the
Honorable Supreme Court as the final interpreter of the law.
The instant petition dwells on that nagging issue of whether Rodriguez
is a "fugitive from justice", the determination of which, as we have
directed the COMELEC on two (2) occasions (in the MARQUEZ
Decisionand in the Court's October 24, 1995 Resolution), must conform
to how such term has been defined by the Court in the MARQUEZ
Decision. To reiterate, a "fugitive from justice":
. . . includes not only those who flee after conviction to avoid
punishment but likewise who, after being charged, flee to avoid
prosecution.
The definition thus indicates that the intent to evade is the compelling
factor that animates one's flight from a particular jurisdiction. And
obviously, there can only be an intent to evade prosecution or
punishment when there is knowledge by the fleeing subject of an
already instituted indictment, or of a promulgated judgment of
conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that
his arrival in the Philippines from the US on June 25, 1985, as per
certifications issued by the Bureau of Immigrations dated April 273 and
June 26 of 1995,4 preceded the filing of the felony complaint in the Los
Angeles Court on November 12, 1985 and of the issuance on even date
of the arrest warrant by the same foreign court, by almost five (5)
months. It was clearly impossible for Rodriguez to have known about
such felony complaint and arrest warrant at the time he left the US, as
there was in fact no complaint and arrest warrant — much less
conviction — to speak of yet at such time. What prosecution or
punishment then was Rodriguez deliberately running away from with
his departure from the US? The very essence of being a "fugitive from
justice" under the MARQUEZ Decisiondefinition, is just nowhere to be
found in the circumstances of Rodriguez.
With that, the Court gives due credit to the COMELEC in having made
the same analysis in its ". . . COMMISSION'S EVALUATION". There are,
in fact, other observations consistent with such analysis made by the
poll body that are equally formidable so as to merit their adoption as
part of this decision, to wit:
It is acknowledged that there was an attempt by private
respondent to show Rodriguez' intent to evade the law. This was
done by offering for admission a voluminous copy of an
investigation report (Exhibits I to I-17 and J to J-87 inclusive) on
the alleged crimes committed which led to the filing of the
charges against petitioner. It was offered for the sole purpose of
establishing the fact that it was impossible for petitioner not to
have known of said investigation due to its magnitude.
Unfortunately, such conclusion misleads because investigations
of this nature, no matter how extensive or prolonged, are
shrouded with utmost secrecy to afford law enforcers the
advantage of surprise and effect the arrest of those who would be
charged. Otherwise, the indiscreet conduct of the investigation
would be nothing short of a well-publicized announcement to the
perpetrators of the imminent filing of charges against them. And
having been forewarned, every effort to sabotage the
investigation may be resorted to by its intended objects. But if
private respondent's attempt to show Rodriguez' intent to evade
the law at the time he left the United States has any legal
consequence at all, it will be nothing more than proof that even
private respondent accepts that intent to evade the law is a
material element in the definition of a fugitive.
The circumstantial fact that it was seventeen (17) days after Rodriguez'
departure that charges against him were filed cannot overturn the
presumption of good faith in his favor. The same suggests nothing
more than the sequence of events which transpired. A subjective fact
as that of petitioner's purpose cannot be inferred from the objective
data at hand in the absence of further proof to substantiate such claim.
In fact, the evidence of petitioner Rodriguez sufficiently proves that his
compulsion to return to the Philippines was due to his desire to join
and participate vigorously in the political campaigns against former
President Ferdinand E. Marcos. For indeed, not long after petitioner's
arrival in the country, the upheaval wrought by the political forces and
the avalanche of events which occurred resulted in one of the more
colorful events in the Philippine history. The EDSA Revolution led to the
ouster of former Pres. Marcos and precipitated changes in the political
climate. And being a figure in these developments, petitioner
Rodriguez began serving his home province as OIC-Board Member of
the Sangguniang Panlalawigan ng Quezon in 1986. Then, he was
elected Governor in 1988 and continues to be involved in politics in the
same capacity as re-elected Governor in 1992 and the disputed re-
election in 1995. Altogether, these landmark dates hem in for
petitioner a period of relentless, intensive and extensive activity of
varied political campaigns — first against the Marcos government,
then for the governorship. And serving the people of Quezon province
as such, the position entails absolute dedication of one's time to the
demands of the office.
Having established petitioner's lack of knowledge of the charges to be
filed against him at the time he left the United States, it becomes
immaterial under such construction to determine the exact time when
he was made aware thereof. While the law, as interpreted by the
Supreme Court, does not countenance flight from justice in the
instance that a person flees the jurisdiction of another state after
charges against him or a warrant for his arrest was issued or even in
view of the imminent filing and issuance of the same, petitioner's plight
is altogether a different situation. When, in good faith, a person leaves
the territory of a state not his own, homeward bound, and learns
subsequently of charges filed against him while in the relative peace
and service of his own country, the fact that he does not subject
himself to the jurisdiction of the former state does not qualify him
outright as a fugitive from justice.
The severity of the law construed in the manner as to require of a
person that he subject himself to the jurisdiction of another state while
already in his country or else be disqualified from office, is more
apparent when applied in petitioner's case. The criminal process of the
United States extends only within its territorial jurisdiction. That
petitioner has already left said country when the latter sought to
subject him to its criminal process is hardly petitioner's fault. In the
absence of an intent to evade the laws of the United States, petitioner
had every right to depart therefrom at the precise time that he did and
to return to the Philippines. Not justifiable reason existed to curtail or
fetter petitioner's exercise of his right to leave the United State and
return home. Hence, sustaining the contrary proposition would be to
unduly burden and punish petitioner for exercising a right as he cannot
be faulted for the circumstances that brought him within Philippine
territory at the time he was sought to be placed under arrest and to
answer for charges filed against him.
Granting, as the evidence warrants, that petitioner Rodriguez came to
know of the charges only later, and under his circumstances, is there a
law that requires petitioner to travel to the United States and subject
himself to the monetary burden and tedious process of defending
himself before the country's courts?
It must be noted that moral uprightness is not a standard too far-
reaching as to demand of political candidate the performance of duties
and obligations that are supererogatory in nature. We do not dispute
that an alleged "fugitive from justice" must perform acts in order not
to be so categorized. Clearly, a person who is aware of the imminent
filing of charges against him or of the same already filed in connection
with acts he committed in the jurisdiction of a particular state, is under
an obligation not to flee said place of commission. However, as in
petitioner's case, his departure from the United States may not place
him under a similar obligation. His subsequent knowledge while in the
Philippines and non-submission to the jurisdiction of the former
country does not operate to label petitioner automatically a fugitive
from justice. As he was a public officer appointed and elected
immediately after his return to the country, petitioner Rodriguez had
every reason to devote utmost priority to the service of his office. He
could not have gone back to the United States in the middle of his term
nor could he have traveled intermittently thereto without jeopardizing
the interest of the public he serves. The require that of petitioner
would be to put him in a paradoxical quandary where he is compelled
to violate the very functions of his office.
However, Marquez and the COMELEC (in its "COMMISSION'S
EVALUATION" as earlier quoted) seem to urge the Court to re-
define "fugitive from justice". They espouse the broader concept of the
term and culled from foreign authorities (mainly of U.S. vintage) cited
in the MARQUEZ Decision itself, i.e., that one becomes a "fugitive from
justice" by the mere fact that he leaves the jurisdiction where a charge
is pending against him, regardless of whether or not the charge has
already been filed at the time of his flight.
Suffice it to say that the "law of the case" doctrine forbids the Court to
craft an expanded re-definition of "fugitive from justice" (which is at
variance with the MARQUEZ Decision) and proceed therefrom in
resolving the instant petition. The various definitions of that doctrine
have been laid down in People v. Pinuila, 103 Phil. 992, 999, to wit:
"Law of the case" has been defined as the opinion delivered on a
former appeal. More specifically, it means that whatever is once
irrevocably established as the controlling legal rule of decision
between the same parties in the same case continues to be the
law of the case, whether correct on a general principles or not, so
long as the facts on which such decision was predicated continue
to be the facts of the case before the court. (21 C.J.S. 330)
It may be stated as a rule of general application that, where the
evidence on a second or succeeding appeal is substantially the same as
that on the first or preceding appeal, all matters, questions, points, or
issues adjudicated on the prior appeal are the law of the case on all
subsequent appeals and will not be considered or readjudicated
therein. (5 C.J.S. 1267)
In accordance with the general rule stated in Section 1821, where, after
a definite determination, the court has remanded the cause for further
action below, it will refuse to examine question other than those
arising subsequently to such determination and remand, or other than
the propriety of the compliance with its mandate; and if the court
below has proceeded in substantial conformity to the directions of the
appellate court, its action will not be questioned on a second appeal.
As a general rule a decision on a prior appeal of the same case is held
to be the law of the casewhether that decision is right or wrong, the
remedy of the party deeming himself aggrieved being to seek a
rehearing. (5 C.J.S. 1276-77).
Questions necessarily involved in the decision on a former appeal will
be regarded as the law of the case on a subsequent appeal, although
the questions are not expressly treated in the opinion of the court, as
the presumption is that all the facts in the case bearing on the point
decided have received due consideration whether all or none of them
are mentioned in the opinion. (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue
(whether or not Rodriguez is a "fugitive from justice") are involved in
the MARQUEZ Decision and the instant petition. The MARQUEZ
Decision was an appeal from EPC No. 92-28 (the Marquez' quo
warranto petition before the COMELEC). The instant petition is also an
appeal from EPC No. 92-28 although the COMELEC resolved the latter
jointly with SPA No. 95-089 (Marquez' petition for the disqualification
of Rodriguez). Therefore, what was irrevocably established as the
controlling legal rule in the MARQUEZ Decision must govern the instant
petition. And we specifically refer to the concept of "fugitive from
justice" as defined in the main opinion in the MARQUEZ Decision which
highlights the significance of an intent to evade but which Marquez and
the COMELEC, with their proposed expanded definition, seem to
trivialize.
Besides, to re-define "fugitive from justice" would only foment
instability in our jurisprudence when hardly has the ink dried in
the MARQUEZ Decision.
To summarize, the term "fugitive from justice" as a ground for the
disqualification or ineligibility of a person seeking to run for any
elective local petition under Section 40(e) of the Local Government
Code, should be understood according to the definition given in
the MARQUEZ Decision, to wit:
A "fugitive from justice" includes not only those who flee after
conviction to avoid punishment but likewise those who, after
being charged, flee to avoid prosecution. (Emphasis ours.)
Intent to evade on the part of a candidate must therefore be
established by proof that there has already been a conviction or at
least, a charge has already been filed, at the time of flight. Not being
a "fugitive from justice"under this definition, Rodriguez cannot be
denied the Quezon Province gubernatorial post.
WHEREFORE, in view of the foregoing, the instant petition is hereby
GRANTED and the assailed Resolutions of the COMELEC dated May 7,
1995 (Consolidated Resolution), May 11, 1995 (Resolution suspending
Rodriguez' proclamation) and June 23, 1995 (Resolution nullifying
Rodriguez' proclamation and ordering the Quezon Province Provincial
Board and Canvassers to explain why they should not be cited in
contempt) are SET ASIDE.
G.R. No. L-31249
August 19, 1986
SALVADOR VILLACORTA as City Engineer of Dagupan City, and JUAN
S. CAGUIOA as Register of Deeds of Dagupan City, petitioners, vs.
GREGORIO BERNARDO and HON. MACARIO OFILADA as Judge of the
Court of First Instance of Pangasinan respondents.
CRUZ, J.:
This is a petition for certiorari against a decision of the Court of First
Instance of Pangasinan annulling an ordinance adopted by the
municipal board of Dagupan City.
The ordinance reads in full as follows:
ORDINANCE 22
AN ORDINANCE REGULATING SUBDIVISION PLANS OVER
PARCELS OF LAND IN THE CITY OF DAGUPAN.
Be it ordained by the Municipal Board of Dagupan City in session
assembled:
Section 1. Every proposed subdivision plan over any lot in the City
of Dagupan, shalt before the same is submitted for approval
and/or verification by the Bureau of Lands and/or the Land
Registration Commission, be previously submitted to the City
Engineer of the City who shall see to it that no encroachment is
made on any portion of the public domain, that the zoning
ordinance and all other pertinent rules and regulations are
observed.
Section 2. As service fee thereof, an amount equivalent to P0.30
per square meter of every lot resulting or win result from such
subdivision shall be charged by the City Engineer's Office.
Section 3. It shall be unlawful for the Register of Deeds of Dagupan
City to allow the registration of a subdivision plan unless there is
prior written certification issued by the City Engineer that such
plan has already been submitted to his office and that the same is
in order.
Section 4. Any violation of this ordinance shall be punished by a
fine not exceeding two hundred (P200.00) pesos or imprisonment
not exceeding six (6) months or both in the discretion of the judge.
Section 5. This ordinance shall take effect immediately upon
approval.
In declaring the said ordinance null and void, the court a quo declared:
From the above-recited requirements, there is no showing that would
justify the enactment of the questioned ordinance. Section 1 of said
ordinance clearly conflicts with Section 44 of Act 496, because the
latter law does not require subdivision plans to be submitted to the
City Engineer before the same is submitted for approval to and
verification by the General Land Registration Office or by the Director
of Lands as provided for in Section 58 of said Act. Section 2 of the same
ordinance also contravenes the provisions of Section 44 of Act 496, the
latter being silent on a service fee of PO.03 per square meter of every
lot subject of such subdivision application; Section 3 of the ordinance
in question also conflicts with Section 44 of Act 496, because the latter
law does not mention of a certification to be made by the City Engineer
before the Register of Deeds allows registration of the subdivision plan;
and the last section of said ordinance imposes a penalty for its
violation, which Section 44 of Act 496 does not impose. In other words,
Ordinance 22 of the City of Dagupan imposes upon a subdivision owner
additional conditions.
xxx xxx xxx
The Court takes note of the laudable purpose of the ordinance in
bringing to a halt the surreptitious registration of lands belonging to
the government. But as already intimidated above, the powers of the
board in enacting such a laudable ordinance cannot be held valid when
it shall impede the exercise of rights granted in a general law and/or
make a general law subordinated to a local ordinance.
We affirm.
To sustain the ordinance would be to open the floodgates to other
ordinances amending and so violating national laws in the guise of
implementing them. Thus, ordinances could be passed imposing
additional requirements for the issuance of marriage licenses, to
prevent bigamy; the registration of vehicles, to minimize carnaping;
the execution of contracts, to forestall fraud; the validation of
passports, to deter imposture; the exercise of freedom of speech, to
reduce disorder; and so on. The list is endless, but the means, even if
the end be valid, would be ultra vires.
So many excesses are attempted in the name of the police power that
it is time, we feel, for a brief admonition.
Regulation is a fact of life in any well-ordered community. As society
becomes more and more complex, the police power becomes
correspondingly ubiquitous. This has to be so for the individual must
subordinate his interests to the common good, on the time honored
justification of Salus populi est suprema lex.
In this prolix age, practically everything a person does and owns affects
the public interest directly or at least vicariously, unavoidably drawing
him within the embrace of the police power. Increasingly, he is
hemmed in by all manner of statutory, administrative and municipal
requirements and restrictions that he may find officious and even
oppressive.
It is necessary to stress that unless the creeping interference of the
government in essentially private matters is moderated, it is likely to
destroy that prized and peculiar virtue of the free society:
individualism.
Every member of society, while paying proper deference to the general
welfare, must not be deprived of the right to be left alone or, in the
Idiom of the day, "to do his thing." As long as he does not prejudice
others, his freedom as an individual must not be unduly curtailed.
We therefore urge that proper care attend the exercise of the police
power lest it deteriorate into an unreasonable intrusion into the purely
private affairs of the individual. The so-called "general welfare" is too
amorphous and convenient an excuse for official arbitrariness.
Let it always be remembered that in the truly democratic state,
protecting the rights of the individual is as important as, if not more so
than, protecting the rights of the public.
This advice is especially addressed to the local governments which
exercise the police power only by virtue of a valid delegation from the
national legislature under the general welfare clause. In the instant
case, Ordinance No. 22 suffers from the additional defect of violating
this authority for legislation in contravention of the national law by
adding to its requirements.
WHEREFORE, the decision of the lower court annulling the challenged
ordinance is AFFIRMED, without any pronouncement as to costs.
G.R. No. 40243
March 11, 1992
CELESTINO TATEL, petitioner, vs. MUNICIPALITY OF VIRAC, SALVADOR
A. SURTIDA, in his capacity as Mayor of Virac, Catanduanes; GAVINO
V. GUERRERO, in his capacity as Vice-Mayor of Virac, Catanduanes;
JOSE T. BUEBOS, in his capacity as Councilor of Virac, Catanduanes;
ANGELES TABLIZO, in his capacity as Councilor of Virac, Catanduanes;
ELPIDIO T. ZAFE, in his capacity as Councilor of Virac, Catanduanes;
MARIANO ALBERTO, in his capacity as Councilor of Virac,
Catanduanes; JULIA A. GARCIA, in her capacity as Councilor of Virac,
Catanduanes; and PEDRO A. GUERRERO, in his capacity as Councilor
of Virac, Catanduanes, respondents.
NOCON, J.:
This is a Petition for Prohibition with Preliminary Injunction with the
Court of First Instance of Catanduanes filed by appellant, Celestino
Tatel, a businessman engaged in the import and export of abaca and
other products against the Municipal Council of Virac, Catanduanes
and its municipal officials enjoining them from enforcing Resolution No
29 1of the Council, declaring the warehouse of petitioner in barrio Sta.
Elena of the said municipality a public nuisance within the purview of
Article 694 of the Civil Code of the Philippines and directing the
petitioner to remove and transfer said warehouse to a more suitable
place within two (2) months from receipt of the said resolution.
It appears from the records that on the basis of complaints received
from the residents of barrio Sta. Elena on March 18, 1966 against the
disturbance caused by the operation of the abaca bailing machine
inside the warehouse of petitioner which affected the peace and
tranquility of the neighborhood due to the smoke, obnoxious odor and
dust emitted by the machine, a committee was appointed by the
municipal council of Virac to investigate the matter. The committee
noted the crowded nature of the neighborhood with narrow roads and
the surrounding residential houses, so much so that an accidental fire
within the warehouse of the petitioner occasioned by the continuance
of the activity inside the warehouse and the storing of inflammable
materials created a danger to the lives and properties of the people
within the neighborhood.
Resultantly, Resolution No. 29 was passed by the Municipal Council of
Virac on April 22, 1966 declaring the warehouse owned and operated
by petitioner a public nuisance within the purview of Article 694 of the
New Civil Code. 2
His motion for reconsideration having been denied by the Municipal
Council of Virac, petitioner instituted the present petition for
prohibition with preliminary injunction.
Respondent municipal officials contend that petitioner's warehouse
was constructed in violation of Ordinance No. 13, series of 1952,
prohibiting the construction of warehouses near a block of houses
either in the poblacion or barrios without maintaining the necessary
distance of 200 meters from said block of houses to avoid loss of lives
and properties by accidental fire.
On the other hand, petitioner contends that said ordinance is
unconstitutional, contrary to the due process and equal protection
clause of the Constitution and null and void for not having been passed
in accordance with law.
The issue then boils down on whether petitioner's warehouse is a
nuisance within the meaning of Article 694 of the Civil Code and
whether Ordinance No. 13, S. 1952 of the Municipality of Virac is
unconstitutional and void.
In a decision dated September 18, 1969, the court a quo ruled as
follows:
1. The warehouse in question was legally constructed under a valid
permit issued by the municipality of Virac in accordance with
existing regulations and may not be destroyed or removed from
its present location;
2. Ordinance No. 13, series of 1952, is a legitimate and valid exercise
of police power by the Municipal Council of Virac is not (sic)
unconstitutional and void as claimed by the petitioner;
3. The storage by the petitioner of abaca and copra in the warehouse
is not only in violation of the provisions of the ordinance but poses
a grave danger to the safety of the lives and properties of the
residents of the neighborhood due to accidental fire and
constitutes a public nuisance under the provisions of Article 694
of the New Civil code of the Philippines and may be abated;
4. Accordingly, the petitioner is hereby directed to remove from the
said warehouse all abaca and copra and other inflammable
articles stored therein which are prohibited under the provisions
of Ordinance No. 13, within a period of two (2) months from the
time this decision becomes final and that henceforth, the
petitioner is enjoined from storing such prohibited articles in the
warehouse. With costs against petitioner.
Seeking appellate review, petitioner raised as errors of the court a quo:
1. In holding that Ordinance No. 13, series of 1952, of the
Municipality of Virac, Catanduanes, is a legitimate and valid
exercise of police power of the Municipal Council, and therefore,
constitutional;
2. In giving the ordinance a meaning other than and different from
what it provided by declaring that petitioner violated the same by
using the warehouse for storage of abaca and copra when what is
prohibited and penalized by the ordinance is the construction of
warehouses.
3. In refusing to take judicial notice of the fact that in the
municipality, there are numerous establishments similarly
situated as appellants' warehouses but which are not prosecuted.
We find no merit in the Petition.
Ordinance No. 13, series of 1952, was passed by the Municipal Council
of Virac in the exercise of its police power. It is a settled principle of law
that municipal corporations are agencies of the State for the
promotion and maintenance of local self-government and as such are
endowed with the police powers in order to effectively accomplish and
carry out the declared objects of their creation. 3 Its authority
emanates from the general welfare clause under the Administrative
Code, which reads:
The municipal council shall enact such ordinances and make such
regulations, not repugnant to law, as may be necessary to carry
into effect and discharge the powers and duties conferred upon it
by law and such as shall seem necessary and proper to provide for
the health and safety, promote the prosperity, improve the
morals, peace, good order, comfort and convenience of the
municipality and the inhabitants thereof, and for the protection
of property therein. 4
For an ordinance to be valid, it must not only be within the corporate
powers of the municipality to enact but must also be passed according
to the procedure prescribed by law, and must be in consonance with
certain well established and basic principles of a substantive nature.
These principles require that a municipal ordinance (1) must not
contravene the Constitution or any statute (2) must not be unfair or
oppressive (3) must not be partial or discriminatory (4) must not
prohibit but may regulate trade (5) must be general and consistent
with public policy, and (6) must not be unreasonable. 5 Ordinance No.
13, Series of 1952, meets these criteria.
As to the petitioner's second assignment of error, the trial court did not
give the ordinance in question a meaning other than what it says.
Ordinance No. 13 passed by the Municipal Council of Virac on
December 29, 1952, 6 reads:
AN ORDINANCE STRICTLY PROHIBITING THE CONSTRUCTION OF
WAREHOUSE IN ANY FORM NEAR A BLOCK OF HOUSES EITHER IN
POBLACION OR BARRIO WITH NECESSARY DISTANCE TO AVOID
GREAT LOSSES OF PROPERTY AND LIVES BY FIRE ACCIDENT.
Section 1 provides:
It is strictly prohibited to construct warehouses in any form to
any person, persons, entity, corporation or merchants, wherein
to keep or store copra, hemp, gasoline, petroleum, alcohol,
crude oil, oil of turpentine and the like products or materials if
not within the distance of 200 meters from a block of houses
either in the poblacion or barrios to avoid great losses of
properties inclusive lives by fire accident.
Section 2 provides: 7
Owners of warehouses in any form, are hereby given advice to
remove their said warehouses this ordinance by the Municipal
Council, provided however, that if those warehouses now in
existence should no longer be utilized as such warehouse for
the above-described products in Section 1 of this ordinance
after a lapse of the time given for the removal of the said
warehouses now in existence, same warehouses shall be
exempted from the spirit of the provision of section 1 of this
ordinance,provided further, that these warehouses now in
existence, shall in the future be converted into non-
inflammable products and materials warehouses.
In spite of its fractured syntax, basically, what is regulated by the
ordinance is the construction of warehouses wherein inflammable
materials are stored where such warehouses are located at a distance
of 200 meters from a block of houses and not the construction per se of
a warehouse. The purpose is to avoid the loss of life and property in
case of fire which is one of the primordial obligation of the
government.
This was also the observation of the trial court:
A casual glance of the ordinance at once reveals a manifest
disregard of the elemental rules of syntax. Experience, however,
will show that this is not uncommon in law making bodies in small
towns where local authorities and in particular the persons
charged with the drafting and preparation of municipal
resolutions and ordinances lack sufficient education and training
and are not well grounded even on the basic and fundamental
elements of the English language commonly used throughout the
country in such matters. Nevertheless, if one scrutinizes the terms
of the ordinance, it is clear that what is prohibited is the
construction of warehouses by any person, entity or corporation
wherein copra, hemp, gasoline and other inflammable products
mentioned in Section 1 may be stored unless at a distance of not
less than 200 meters from a block of houses either in the
poblacion or barrios in order to avoid loss of property and life due
to fire. Under Section 2, existing warehouses for the storage of
the prohibited articles were given one year after the approval of
the ordinance within which to remove them but were allowed to
remain in operation if they had ceased to store such prohibited
articles.
The ambiguity therefore is more apparent than real and springs from
simple error in grammatical construction but otherwise, the meaning
and intent is clear that what is prohibited is the construction or
maintenance of warehouses for the storage of inflammable articles at
a distance within 200 meters from a block of houses either in the
poblacion or in the barrios. And the purpose of the ordinance is to
avoid loss of life and property in case of accidental fire which is one of
the primordial and basic obligation of any government.
Clearly, the lower court did NOT add meaning other than or differrent
from what was provided in the ordinance in question. It merely stated
the purpose of the ordinance and what it intends to prohibit to
accomplish its purpose.
As to the third assignment of error, that warehouses similarly situated
as that of the petitioner were not prosecuted, suffice it to say that the
mere fact that the municipal authorities of Virac have not proceeded
against other warehouses in the municipality allegedly violating
Ordinance No. 13 is no reason to claim that the ordinance is
discriminatory. A distinction must be made between the law itself and
the manner in which said law is implemented by the agencies in charge
with its administration and enforcement. There is no valid reason for
the petitioner to complain, in the absence of proof that the other
bodegas mentioned by him are operating in violation of the ordinance
and that the complaints have been lodged against the bodegas
concerned without the municipal authorities doing anything about it.
The objections interposed by the petitioner to the validity of the
ordinance have not been substantiated. Its purpose is well within the
objectives of sound government. No undue restraint is placed upon the
petitioner or for anybody to engage in trade but merely a prohibition
from storing inflammable products in the warehouse because of the
danger of fire to the lives and properties of the people residing in the
vicinity. As far as public policy is concerned, there can be no better
policy than what has been conceived by the municipal government.
As to petitioner's contention of want of jurisdiction by the lower court
we find no merit in the same. The case is a simple civil suit for
abatement of a nuisance, the original jurisdiction of which falls under
the then Court of First Instance.
WHEREFORE, for lack of merit, the petition is hereby DISMISSED. Costs
against petitioner.
G.R. No. 154599
January 21, 2004
THE LIGA NG MGA BARANGAY NATIONAL, petitioner, vs. THE CITY
MAYOR OF MANILA, HON. JOSE ATIENZA, JR., and THE CITY COUNCIL
OF MANILA, respondents.
DECISION
DAVIDE, JR., C.J.:
This petition for certiorari under Rule 65 of the Rules of Court seeks the
nullification of Manila City Ordinance No. 8039, Series of 2002,[1] and
respondent City Mayors Executive Order No. 011, Series
of 2002,[2] dated 15 August 2002 , for being patently contrary to law.
The antecedents are as follows:
Petitioner Liga ng mga Barangay National (Liga for brevity) is the
national organization of all the barangays in the Philippines, which
pursuant to Section 492 of Republic Act No. 7160, otherwise
known as The Local Government Code of 1991, constitutes the
duly elected presidents of highly-urbanized cities, provincial
chapters, the metropolitan Manila Chapter, and metropolitan
political subdivision chapters.
Section 493 of that law provides that [t]he liga at the municipal, city,
provincial, metropolitan political subdivision, and national levels
directly elect a president, a vice-president, and five (5) members of the
board of directors. All other matters not provided for in the law
affecting the internal organization of the leagues of local government
units shall be governed by their respective constitution and by-laws,
which must always conform to the provisions of the Constitution and
existing laws.[3]
On 16 March 2000, the Liga adopted and ratified its own Constitution
and By-laws to govern its internal organization.[4] Section 1, third
paragraph, Article XI of said Constitution and By-Laws states:
All other election matters not covered in this Article shall be
governed by the Liga Election Code or such other rules as may be
promulgated by the National Liga Executive Board in conformity
with the provisions of existing laws.
By virtue of the above-cited provision, the Liga adopted and ratified its
own Election Code.[5] Section 1.2, Article I of the Liga Election Code
states:
1.2 Liga ng mga Barangay Provincial, Metropolitan, HUC/ICC
Chapters. There shall be nationwide synchronized elections for
the provincial, metropolitan, and HUC/ICC chapters to be held on
the third Monday of the month immediately after the month
when the synchronized elections in paragraph 1.1 above was
held. The incumbent Liga chapter president concerned duly
assisted by the proper government agency, office or department,
e.g. Provincial/City/NCR/Regional Director, shall convene all the
duly elected Component City/Municipal Chapter Presidents and
all the current elected Punong Barangays (for HUC/ICC) of the
respective chapters in any public place within its area of
jurisdiction for the purpose of reorganizing and electing the
officers and directors of the provincial, metropolitan or HUC/ICC
Liga chapters. Said president duly assisted by the government
officer aforementioned, shall notify, in writing, all the above
concerned at least fifteen (15) days before the scheduled election
meeting on the exact date, time, place and requirements of the
said meeting.
The Liga thereafter came out with its Calendar of Activities and
Guidelines in the Implementation of the Liga Election Code of
2002,[6] setting on 21 October 2002 the synchronized elections for
highly urbanized city chapters, such as the Liga Chapter of Manila,
together with independent component city, provincial, and
metropolitan chapters.
On 28 June 2002, respondent City Council of Manila enacted Ordinance
No. 8039, Series of 2002, providing, among other things, for the
election of representatives of the District Chapters in the City Chapter
of Manila and setting the elections for both chapters thirty days after
the barangay elections. Section 3 (A) and (B) of the assailed ordinance
read:
SEC. 3. Representation Chapters. Every Barangay shall be
represented in the said Liga Chapters by the Punong Barangayor,
in his absence or incapacity, by the kagawad duly elected for the
purpose among its members.
A. District Chapter
All elected Barangay Chairman in each District shall elect from
among themselves the President, Vice-President and five (5)
members of the Board.
B. City Chapter
The District Chapter representatives shall automatically become
members of the Board and they shall elect from among
themselves a President, Vice-President, Secretary, Treasurer,
Auditor and create other positions as it may deem necessary for
the management of the chapter.
The assailed ordinance was later transmitted to respondent City Mayor
Jose L. Atienza, Jr., for his signature and approval.
On 16 July 2002, upon being informed that the ordinance had been
forwarded to the Office of the City Mayor, still unnumbered and yet to
be officially released, the Liga sent respondent Mayor of Manila a letter
requesting him that said ordinance be vetoed considering that it
encroached upon, or even assumed, the functions of the Liga through
legislation, a function which was clearly beyond the ambit of the
powers of the City Council.[7]
Respondent Mayor, however, signed and approved the assailed city
ordinance and issued on 15 August 2002 Executive Order No. 011,
Series of 2002, to implement the ordinance.
Hence, on 27 August 2002, the Liga filed the instant petition raising the
following issues:
I
WHETHER OR NOT THE RESPONDENT CITY COUNCIL OF MANILA
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
OR IN EXCESS OF JURISDICTION, WHEN IT ENACTED CITY ORDINANCE
NO. 8039 S. 2002 PURPOSELY TO GOVERN THE ELECTIONS OF THE
MANILA CHAPTER OF THE LIGA NG MGA BARANGAYS AND WHICH
PROVIDES A DIFFERENT MANNER OF ELECTING ITS OFFICERS, DESPITE
THE FACT THAT SAID CHAPTERS ELECTIONS, AND THE ELECTIONS OF
ALL OTHER CHAPTERS OF THE LIGA NG MGA BARANGAYS FOR THAT
MATTER, ARE BY LAW MANDATED TO BE GOVERNED BY THE LIGA
CONSTITUTION AND BY-LAWS AND THE LIGA ELECTION CODE.
II
WHETHER OR NOT THE RESPONDENT CITY MAYOR OF MANILA
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
OR IN EXCESS OF JURISDICTION WHEN HE ISSUED EXECUTIVE ORDER
NO. 011 TO IMPLEMENT THE QUESTIONED CITY ORDINANCE NO. 8039
S. 2002.
In support of its petition, the Liga argues that City Ordinance No. 8039,
Series of 2002, and Executive Order No. 011, Series of 2002, contradict
the Liga Election Code and are therefore invalid. There exists neither
rhyme nor reason, not to mention the absence of legal basis, for the
Manila City Council to encroach upon, or even assume, the functions
of the Liga by prescribing, through legislation, the manner of
conducting the Liga elections other than what has been provided for
by the Liga Constitution and By-laws and the Liga Election
Code.Accordingly, the subject ordinance is an ultra vires act of the
respondents and, as such, should be declared null and void.
As for its prayer for the issuance of a temporary restraining order, the
petitioner cites as reason therefor the fact that under Section 5 of the
assailed city ordinance, the Manila District Chapter elections would be
held thirty days after the regular barangay elections. Hence, it argued
that the issuance of a temporary restraining order and/or preliminary
injunction would be imperative to prevent the implementation of the
ordinance and executive order.
On 12 September 2002, Barangay Chairman Arnel Pea, in his capacity
as a member of the Liga ng mga Barangay in the City Chapter of Manila,
filed a Complaint in Intervention with Urgent Motion for the Issuance
of Temporary Restraining Order and/or Preliminary Injunction.[8] He
supports the position of the Liga and prays for the declaration of the
questioned ordinance and executive order, as well as the elections of
the Liga ng mga Barangay pursuant thereto, to be null and void. The
assailed ordinance prescribing for an indirect manner of election
amended, in effect, the provisions of the Local Government Code of
1991, which provides for the election of the Liga officers at large. It also
violated and curtailed the rights of the petitioner and intervenor, as
well as the other 896 Barangay Chairmen in the City of Manila, to vote
and be voted upon in a direct election.
On 25 October 2002, the Office of the Solicitor General (OSG) filed a
Manifestation in lieu of Comment.[9] It supports the petition of the Liga,
arguing that the assailed city ordinance and executive order are clearly
inconsistent with the express public policy enunciated in R.A. No. 7160.
Local political subdivisions are able to legislate only by virtue of a valid
delegation of legislative power from the national legislature. They are
mere agents vested with what is called the power of subordinate
legislation. Thus, the enactments in question, which are local in origin,
cannot prevail against the decree, which has the force and effect of
law.
On the issue of non-observance by the petitioners of the hierarchy-of-
courts rule, the OSG posits that technical rules of procedure should be
relaxed in the instant petition. While Batas Pambansa Blg. 129, as
amended, grants original jurisdiction over cases of this nature to the
Regional Trial Court (RTC), the exigency of the present petition,
however, calls for the relaxation of this rule. Section 496 (should be
Section 491) of the Local Government Code of 1991 primarily intended
that the Liga ng mga Barangay determine the representation of the
Liga in the sanggunians for the immediate ventilation, articulation, and
crystallization of issues affecting barangay government
administration. Thus, the immediate resolution of this petition is a
must.
On the other hand, the respondents defend the validity of the assailed
ordinance and executive order and pray for the dismissal of the present
petition on the following grounds: (1) certiorari under Rule 65 of the
Rules of Court is unavailing; (2) the petition should not be entertained
by this Court in view of the pendency before the Regional Trial Court
of Manila of two actions or petitions questioning the subject ordinance
and executive order; (3) the petitioner is guilty of forum shopping; and
(4) the act sought to be enjoined is fait accompli.
The respondents maintain that certiorari is an extraordinary remedy
available to one aggrieved by the decision of a tribunal, officer, or
board exercising judicial or quasi-judicial functions. The City Council
and City Mayor of Manila are not the board and officer contemplated
in Rule 65 of the Rules of Court because both do not exercise judicial
functions. The enactment of the subject ordinance and issuance of the
questioned executive order are legislative and executive functions,
respectively, and thus, do not fall within the ambit of judicial functions.
They are both within the prerogatives, powers, and authority of the
City Council and City Mayor of Manila, respectively. Furthermore, the
petition failed to show with certainty that the respondents acted
without or in excess of jurisdiction or with grave abuse of discretion.
The respondents also asseverate that the petitioner cannot claim that
it has no other recourse in addressing its grievance other than this
petition for certiorari. As a matter of fact, there are two cases pending
before Branches 33 and 51 of the RTC of Manila (one is for mandamus;
the other, for declaratory relief) and three in the Court of Appeals (one
is for prohibition; the two other cases, for quo warranto), which are all
akin to the present petition in the sense that the relief being sought
therein is the declaration of the invalidity of the subject
ordinance.Clearly, the petitioner may ask the RTC or the Court of
Appeals the relief being prayed for before this Court. Moreover, the
petitioner failed to prove discernible compelling reasons attending the
present petition that would warrant cognizance of the present petition
by this Court.
Besides, according to the respondents, the petitioner has transgressed
the proscription against forum-shopping in filing the instant
suit. Although the parties in the other pending cases and in this
petition are different individuals or entities, they represent the same
interest.
With regard to petitioner's prayer for temporary restraining order and/
or preliminary injunction in its petition, the respondents maintain that
the same had become moot and academic in view of the elections of
officers of the City Liga ng mga Barangay on 15 September 2002 and
their subsequent assumption to their respective offices.[10] Since the
acts to be enjoined are now fait accompli, this petition for certiorari
with an application for provisional remedies must necessarily
fail. Thus, where the records show that during the pendency of the
case certain events or circumstances had taken place that render the
case moot and academic, the petition for certiorari must be dismissed.
After due deliberation on the pleadings filed, we resolve to dismiss this
petition for certiorari.
First, the respondents neither acted in any judicial or quasi-judicial
capacity nor arrogated unto themselves any judicial or quasi-judicial
prerogatives. A petition for certiorari under Rule 65 of the 1997 Rules
of Civil Procedure is a special civil action that may be invoked only
against a tribunal, board, or officer exercising judicial or quasi-judicial
functions.
Section 1, Rule 65 of the 1997 Rules of Civil Procedure provides:
SECTION 1. Petition for certiorari. When any tribunal, board or
officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse
of discretion amounting to lack or excess of jurisdiction, and there
is no appeal, or any plain, speedy, and adequate remedy in the
ordinary course of law, a person aggrieved thereby may file a
verified petition in the proper court, alleging the facts with
certainty and praying that judgment be rendered annulling or
modifying the proceedings of such tribunal, board or officer, and
granting such incidental reliefs as law and justice may require.
Elsewise stated, for a writ of certiorari to issue, the following requisites
must concur: (1) it must be directed against a tribunal, board, or officer
exercising judicial or quasi-judicial functions; (2) the tribunal, board, or
officer must have acted without or in excess of jurisdiction or with
grave abuse of discretion amounting lack or excess of jurisdiction; and
(3) there is no appeal or any plain, speedy, and adequate remedy in the
ordinary course of law.
A respondent is said to be exercising judicial function where he has the
power to determine what the law is and what the legal rights of the
parties are, and then undertakes to determine these questions and
adjudicate upon the rights of the parties.[11]
Quasi-judicial function, on the other hand, is a term which applies to
the actions, discretion, etc., of public administrative officers or bodies
required to investigate facts or ascertain the existence of facts, hold
hearings, and draw conclusions from them as a basis for their official
action and to exercise discretion of a judicial nature.[12]
Before a tribunal, board, or officer may exercise judicial or quasi-
judicial acts, it is necessary that there be a law that gives rise to some
specific rights of persons or property under which adverse claims to
such rights are made, and the controversy ensuing therefrom is
brought before a tribunal, board, or officer clothed with power and
authority to determine the law and adjudicate the respective rights of
the contending parties.[13]
The respondents do not fall within the ambit of tribunal, board, or
officer exercising judicial or quasi-judicial functions. As correctly
pointed out by the respondents, the enactment by the City Council of
Manila of the assailed ordinance and the issuance by respondent
Mayor of the questioned executive order were done in the exercise of
legislative and executive functions, respectively, and not of judicial or
quasi-judicial functions. On this score alone, certiorari will not lie.
Second, although the instant petition is styled as a petition
for certiorari, in essence, it seeks the declaration by this Court of the
unconstitutionality or illegality of the questioned ordinance and
executive order. It, thus, partakes of the nature of a petition for
declaratory relief over which this Court has only appellate, not original,
jurisdiction.[14] Section 5, Article VIII of the Constitution provides:
Sec. 5. The Supreme Court shall have the following powers:
(1) Exercise original jurisdiction over cases affecting
ambassadors, other public ministers and consuls, and over
petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.
(2) Review, revise, reverse, modify, or affirm on appeal or
certiorari as the law or the Rules of Court may provide, final
judgments and orders of lower courts in:
(a) All cases in which the constitutionality or validity of any
treaty, international or executive agreement, law,
presidential decree, proclamation, order,
instruction, ordinance, or regulation is in question.
(Italics supplied).
As such, this petition must necessary fail, as this Court does not have
original jurisdiction over a petition for declaratory relief even if only
questions of law are involved.[15]
Third, even granting arguendo that the present petition is ripe for the
extraordinary writ of certiorari, there is here a clear disregard of the
hierarchy of courts. No special and important reason or exceptional
and compelling circumstance has been adduced by the petitioner or
the intervenor why direct recourse to this Court should be allowed.
We have held that this Courts original jurisdiction to issue a writ
of certiorari (as well as of prohibition, mandamus, quo
warranto, habeas corpus and injunction) is not exclusive, but is
concurrent with the Regional Trial Courts and the Court of Appeals in
certain cases. As aptly stated in People v. Cuaresma:[16]
This concurrence of jurisdiction is not, however, to be taken as
according to parties seeking any of the writs an absolute,
unrestrained freedom of choice of the court to which application
therefor0 will be directed. There is after all a hierarchy of
courts. That hierarchy is determinative of the venue of appeals,
and also serves as a general determinant of the appropriate forum
for petitions for the extraordinary writs. A becoming regard of
that judicial hierarchy most certainly indicates that petitions for
the issuance of extraordinary writs against first level (inferior)
courts should be filed with the Regional Trial Court, and those
against the latter, with the Court of Appeals. A direct invocation
of the Supreme Courts original jurisdiction to issue these writs
should be allowed only when there are special and important
reasons therefor, clearly and specifically set out in the
petition. This is [an] established policy. It is a policy necessary to
prevent inordinate demands upon the Courts time and attention
which are better devoted to those matters within its exclusive
jurisdiction, and to prevent further over-crowding of the Courts
docket.
As we have said in Santiago v. Vasquez,[17] the propensity of litigants
and lawyers to disregard the hierarchy of courts in our judicial system
by seeking relief directly from this Court must be put to a halt for two
reasons: (1) it would be an imposition upon the precious time of this
Court; and (2) it would cause an inevitable and resultant delay,
intended or otherwise, in the adjudication of cases, which in some
instances had to be remanded or referred to the lower court as the
proper forum under the rules of procedure, or as better equipped to
resolve the issues because this Court is not a trier of facts.
Thus, we shall reaffirm the judicial policy that this Court will not
entertain direct resort to it unless the redress desired cannot be
obtained in the appropriate courts, and exceptional and compelling
circumstances justify the availment of the extraordinary remedy of writ
of certiorari, calling for the exercise of its primary jurisdiction.[18]
Petitioners reliance on Pimentel v. Aguirre[19] is misplaced because the
non-observance of the hierarchy-of-courts rule was not an issue
therein. Besides, what was sought to be nullified in the petition
for certiorari and prohibition therein was an act of the President of the
Philippines, which would have greatly affected all local government
units. We reiterated therein that when an act of the legislative
department is seriously alleged to have infringed the Constitution,
settling the controversy becomes the duty of this Court. The same is
true when what is seriously alleged to be unconstitutional is an act of
the President, who in our constitutional scheme is coequal with
Congress.
We hesitate to rule that the petitioner and the intervenor are guilty of
forum-shopping. Forum-shopping exists where the elements of litis
pendentia are present or when a final judgment in one case will
amount to res judicata in the other. For litis pendentia to exist, the
following requisites must be present: (1) identity of parties, or at least
such parties as are representing the same interests in both actions; (2)
identity of rights asserted and reliefs prayed for, the reliefs being
founded on the same facts; and (3) identity with respect to the two
preceding particulars in the two cases, such that any judgment that
may be rendered in the pending case, regardless of which party is
successful, would amount to res judicata in the other case.[20]
In the instant petition, and as admitted by the respondents, the parties
in this case and in the alleged other pending cases are different
individuals or entities; thus, forum-shopping cannot be said to
exist. Moreover, even assuming that those five petitions are indeed
pending before the RTC of Manila and the Court of Appeals, we can
only guess the causes of action and issues raised before those courts,
considering that the respondents failed to furnish this Court with
copies of the said petitions.
WHEREFORE, the petition is DISMISSED.
G.R. No. 72492
November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES
and ARTURO UMBAC, petitioners, vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC
COMMITTEE OF THE SANGGUNIANG PANLUNGSOD OF DUMAGUETE
and ANTONIO S. RAMAS UYPITCHING, respondents.
CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the
respondent Sangguniang Panlungsod of Dumaguete to punish non-
members for legislative contempt was halted by this special civil action
of certiorari and Prohibition with Preliminary Injunction and/or
Restraining Order questioning the very existence of the power in that
local legislative body or in any of its committees. On November 7, 1985,
this Court issued a Temporary Restraining Order:
. . . enjoining respondents, their agents, representatives, and
police and other peace officers acting in their behalf, to refrain
from compelling the attendance and testimony of Petitioners
Paterio Torres and Arturo Umbac at any and all future
investigations to be conducted by aforesaid respondents, and
from issuing any contempt order if one has not been issued yet or
from executing any such contempt order if one has already been
issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex
"A", Petition) sent by the respondent Committee to the petitioners
Paterio Torres and Arturo Umbac, Chairman of the Board of Directors
and the General Manager, respectively, of petitioner Negros Oriental II
Electric Cooperative NORECO II), requiring their attendance and
testimony at the Committee's investigation on October 29, 1985.
Similarly under fire is the Order issued by the same Committee on the
latter date, (Annex "D", Petition) directing said petitioners to show
cause why they should not be punished for legislative contempt due to
their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in
connection with pending legislation related to the operations of public
utilities" (Id.) in the City of Dumaguete where petitioner NORECO II, an
electric cooperative, had its principal place of business. Specifically, the
inquiry was to focus on the alleged installation and use by the
petitioner NORECO II of inefficient power lines in that city (Comment,
Rollo, p. 50). Respondent Antonio S. Ramas Uypitching, as Chairman of
the Committee on Public Utilities and Franchises and Co-Chairman of
the respondent Ad Hoc Committee, signed both the subpoena and the
Order complained of. Petitioners moved to quash the subpoena on the
following grounds:
a. The power to investigate, and to order the improvement of,
alleged inefficient power lines to conform to standards is lodged
exclusively with the National Electrification Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local
Government Code grants (the Sangguniang Panlungsod) any
specific power to investigate alleged inefficient power lines of
NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29,
1985 directing the petitioners Torres and Umbac to show cause why
they should not be punished for contempt. Hence this Petition for
certiorari and Prohibition with Preliminary Injunction and/or
Restraining Order.
Petitioners contend that the respondent Sangguniang Panlungsod of
Dumaguete is bereft of the power to compel the attendance and
testimony of witnesses, nor the power to order the arrest of witnesses
who fail to obey its subpoena. It is further argued that assuming the
power to compel the attendance and testimony of witnesses to be
lodged in said body, it cannot be exercised in the investigation of
matters affecting the terms and conditions of the franchise granted to
NORECO II which are beyond the jurisdiction of the Sangguniang
Panlungsod (Rollo pp. 7-8).
Respondents, for their part, claim that inherent in the legislative
functions performed by the respondent Sangguniang Panlungsod is
the power to conduct investigations in aid of legislation and with it, the
power to punish for contempt in inquiries on matters within its
jurisdiction (Rollo, p. 46). It is also the position of the respondents that
the contempt power, if not expressly granted, is necessarily implied
from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-
49). Furthermore, the respondents assert that an inquiry into the
installation or use of inefficient power lines and its effect on the power
consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the
repository of the legislative power under the Constitution, and those
that may be exercised by the legislative bodies of local government
unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere
creatures of law, possess delegated legislative power.While the
Constitution does not expressly vest Congress with the power to
punish non-members for legislative contempt, the power has
nevertheless been invoked by the legislative body as a means of
preserving its authority and dignity (Arnault v. Nazareno, 87 Phil. 29
[1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that
courts wield an inherent power to "enforce their authority, preserve
their integrity, maintain their dignity, and ensure the effectiveness of
the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716,
723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The
exercise by Congress of this awesome power was questioned for the
first time in the leading case of Arnault v. Nazareno, (87 Phil. 29 [1950])
where this Court held that the legislative body indeed possessed the
contempt power.
That case arose from the legislative inquiry into the acquisition by the
Philippine Government of the Buenavista and Tambobong estates
sometime in 1949. Among the witnesses called and examined by the
special committee created by a Senate resolution was Jean L. Arnault,
a lawyer who delivered a portion of the purchase price to a
representative of the vendor. During the Senate, investigation, Amault
refused to reveal the Identity of said representative, at the same time
invoking his constitutional right against self-incrimination. The Senate
adopted a resolution committing Arnault to the custody of the
Sergeant at Arms and imprisoned "until he shall have purged the
contempt by revealing to the Senate . . . the name of the person to
whom he gave the P440,000, as wen as answer other pertinent
questions in connection therewith." (Arnault v. Nazareno, 87 Phil. 29,
43 [1950]). Arnault petitioned for a writ of Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy
the Court began with a discussion of the distribution of the three
powers of government under the 1935 Constitution. Cognizant of the
fact that the Philippines system of government under the 1935
Constitution was patterned after the American system, the Court
proceeded to resolve the issue presented, partly by drawing from
American precedents, and partly by acknowledging the broader
legislative power of the Philippine Congress as compared to the U.S.
Federal Congress which shares legislative power with the legislatures
of the different states of the American union (Id., pp. 44-45). The Court
held:
xxx xxx xxx
... (T)he power of inquiry-with process to enforce it-is an essential
and appropriate auxiliary to the legislative function. A legislative
body cannot legislate wisely or effectively in the absence of
information respecting the conditions which the legislation is
intended to affect or change; and where the legislative body does
not itself possess the requisite information — which is not
infrequently true — recourse must be had to others who possess
it. Experience has shown that mere requests for such information
are often unavailing, and also that information which is
volunteered is not always accurate or complete; so some means
of compulsion is essential to obtain what is needed. (McGrain vs.
Daugherty 273 U.S., 135; 71 L. ed., 580; 50 ALR 1) The fact that the
Constitution expressly gives to Congress the power to punish its
Members for disorderly behaviour, does not by necessary
implication exclude the power to punish for contempt by any
person. (Anderson vs. Dunn, 6 Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness before
either House, unless his testimony is required in a matter into which
that House has jurisdiction to inquire. (Kilbourn vs. Thompson, 26,
L.ed., 377.)
The Court proceeded to delve deeper into the essence of the contempt
power of the Philippine Congress in a subsequent decision (Arnault v.
Balagtas, 97 Phil. 358 [1955]) arising from the same factual
antecedents:
The principle that Congress or any of its bodies has the power to
punish recalcitrant witnesses is founded upon reason and policy.
Said power must be considered implied or incidental to the
exercise of legislative power. How could a legislative body obtain
the knowledge and information on which to base intended
legislation if it cannot require and compel the disclosure of such
knowledge and information, if it is impotent to punish a defiance
of its power and authority? When the framers of the Constitution
adopted the principle of separation of powers, making each
branch supreme within the real of its respective authority, it must
have intended each department's authority to be full and
complete, independently of the other's authority or power. And
how could the authority and power become complete if for every
act of refusal every act of defiance, every act of contumacy against
it, the legislative body must resort to the judicial department for
the appropriate remedy, because it is impotent by itself to punish
or deal therewith, with the affronts committed against its
authority or dignity. . . (Arnault v. Balagtas, L-6749, July 30, 1955;
97 Phil. 358, 370 [1955]).
The aforequoted pronouncements in the
two Arnault cases, supra, broke ground in what was then an
unexplored area of jurisprudence, and succeeded in supplying
the raison d' etre of this power of Congress even in the absence of
express constitutional grant. Whether or not the reasons for upholding
the existence of said power in Congress may be applied mutatis
mutandis to a questioned exercise of the power of contempt by the
respondent committee of a city council is the threshold issue in the
present controversy.
3. The exercise by the legislature of the contempt power is a matter of
self-preservation as that branch of the government vested with the
legislative power, independently of the judicial branch, asserts its
authority and punishes contempts thereof. The contempt power of the
legislature is, therefore, sui generis, and local legislative bodies cannot
correctly claim to possess it for the same reasons that the national
legislature does. The power attaches not to the discharge of legislative
functions per se but to the character of the legislature as one of the
three independent and coordinate branches of government. The same
thing cannot be said of local legislative bodies which are creations of
law.
4. To begin with, there is no express provision either in the 1973
Constitution or in the Local Government Code (Batas Pambansa Blg.
337) granting local legislative bodies, the power to subpoena witnesses
and the power to punish non-members for contempt. Absent a
constitutional or legal provision for the exercise of these powers, the
only possible justification for the issuance of a subpoena and for the
punishment of non-members for contumacious behaviour would be
for said power to be deemed implied in the statutory grant of
delegated legislative power. But, the contempt power and the
subpoena power partake of a judicial nature. They cannot be implied
in the grant of legislative power. Neither can they exist as mere
incidents of the performance of legislative functions. To allow local
legislative bodies or administrative agencies to exercise these powers
without express statutory basis would run afoul of the doctrine of
separation of powers.
Thus, the contempt power, as well as the subpoena power, which the
framers of the fundamental law did not expressly provide for but which
the then Congress has asserted essentially for self-preservation as one
of three co-equal branches of the government cannot be deemed
implied in the delegation of certain legislative functions to local
legislative bodies. These cannot be presumed to exist in favor of the
latter and must be considered as an exception to Sec. 4 of B.P. 337
which provides for liberal rules of interpretation in favor of local
autonomy. Since the existence of the contempt power in conjunction
with the subpoena power in any government body inevitably poses a
potential derogation of individual rights, i.e. compulsion of testimony
and punishment for refusal to testify, the law cannot be liberally
construed to have impliedly granted such powers to local legislative
bodies. It cannot be lightly presumed that the sovereign people, the
ultimate source of all government powers, have reposed these powers
in all government agencies. The intention of the sovereign people,
through their representatives in the legislature, to share these unique
and awesome powers with the local legislative bodies must therefore
clearly appear in pertinent legislation.
There being no provision in the Local Government Code explicitly
granting local legislative bodies, the power to issue compulsory
process and the power to punish for contempt, the Sanggunian
Panlungsod of Dumaguete is devoid of power to punish the petitioners
Torres and Umbac for contempt. The Ad-Hoc Committee of said
legislative body has even less basis to claim that it can exercise these
powers.
5. Even assuming that the respondent Sangguniang Panlungsod and
the respondent Ad-Hoc Committee had the power to issue the
subpoena and the order complained of, such issuances would still be
void for being ultra vires.The contempt power (and the subpoena
power) if actually possessed, may only be exercised where the subject
matter of the investigation is within the jurisdiction of the legislative
body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As
admitted by the respondents in their Comment, the investigation to be
conducted by the Ad-Hoc Committee was to look into the use by
NORECO II of inefficient power lines "of pre-war vintage" which the
latter had acquired from the Visayan Electric Com. company, and "to
hear the side of the petitioners" (Comment, Rollo, p. 50). It comes
evident that the inquiry would touch upon the efficiency of the electric
service of NORECO II and, necessarily, its compliance with the
franchise. Such inquiry is beyond the jurisdiction of the respondent
Sangguniang Panlungsod and the respondent committee.
There is no doubt that a city government has the power to enact
ordinances regulating the installation and maintenance of electric
power lines or wires within its territorial jurisdiction. The power
subsists notwithstanding the creation of the National Electrification
Administration (NEA), to which body the franchise powers of local
government units were transferred by Presidential Decree No. 269.
Section 42 of the Decree states:
SEC. 42. Repeal of Franchise Powers of Municipal City and
Provincial Governments. — The powers of municipal, city and
provincial governments to grant franchises, as provided for in Title
34 of the Philippines Statutes or in any special law, are hereby
repealed; Provided, That this section shall not impair or invalidate
any franchise heretofore lawfully granted by such a
government or repeal any other subsisting power of such
governments to require that electric facilities and related
properties be so located, constructed and operated and
maintained as to be safe to the public and not to unduly interfere
with the primary use of streets, roads, alleys and other public
ways, buildings and grounds over, upon or under which they may
be built. (This Section was not among those amended by Pres.
Dec. Nos. 1370 [May 2, 1978] and 1645 [October 8, 1979]).
This particular power of the city government is included in the
enumeration of powers and duties of a Sangguniang Panlungsod in
Section 177 of the Local Government Code (Batas Pambansa Blg. 337,
February 10, 1983), to wit:
SEC. 177. Powers and Duties. — The Sangguniang Panlungsod
shall:
xxx xxx xxx
(j) . . . regulate the digging and excavation for the laying of gas,
water, power, and other pipelines, the building and repair of
tunnels, sewers and drains, and all structures thereunder; the
placing, stringing, attaching, installing, repair and construction of
all gas mains, electric, telegraph and telephone wires,conduits
meters and other apparatus, and the correction, condemnation of
the same when dangerous or defective;
xxx xxx xxx
The Sangguniang Panlungsod of Dumaguete may, therefore, enact
ordinances to regulate the installation and maintenance of electric
power lines, e.g. prohibit the use of inefficient power lines, in order to
protect the city residents from the hazards these may pose. In aid of
this ordinance making power, said body or any of its committees may
conduct investigations similar to, but not the same as, the legislative
investigations conducted by the national legislature. As already
discussed, the difference lies in the lack of subpoena power and of the
power to punish for contempt on the part of the local legislative
bodies. They may only invite resource persons who are willing to
supply information which may be relevant to the proposed ordinance.
The type of investigation which may be conducted by the Sangguniang
PanLungsod does not include within its ambit an inquiry into any
suspected violation by an electric cooperative of the conditions of its
electric franchise.
The power to inquire into the efficiency of the service supplied by
electric cooperatives is within the franchising powers of the NEA under
Sec. 43 of Pres. Dec. No. 269, i.e.:
(2) to repeal and cancel any franchise if the NEA finds that the
holder thereof is not then furnishing, and is unable to or unailling
within reasonable time to furnish adequate and dependable
service on an area coverage within such area;
xxx xxx xxx
In the exercise of this power, the NEA may conduct hearings and
investigations, issle subpoenas and invoke the aid of the courts in case
of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D. 269). Clearly,
then, the Sangguniang Panlungsod of Dumaguete cannot look into an
suspected failure of NORECO II to comply with the standards of electric
service prescribed by law and in its franchise. The proper recourse is to
file a complaint with the NEA against NORECO II if there be sufficient
basis therefor.
WHEREFORE, the subpoena dated October 25, 1985 requiring the
attendance and testimony of the petitioners at an investigation by the
respondent Ad-Hoc Committee, and the Order issued by the latter on
October 29, 1985 directing herein petitioners to show cause why they
should not be punished for legislative contempt for their disobedience
of said subpoena, is declared null and void for being ultra vires. The
respondent Sangguniang Panlungsod and the respondent Ad-Hoc
Committee are without power to punish non- members for contempt.
The Temporary Restraining Order issued by this Court on November 7,
1985 enjoining said respondents, their agents and representatives, and
the police and other peace officers from enforcing the aforesaid Order
of the respondent committee is made permanent. Petition is
GRANTED. No costs.
G.R. No. 108072
December 12, 1995
HON. JUAN M. HAGAD, in his capacity as Deputy Ombudsman for the
Visayas, petitioner, vs. HON. MERCEDES GOZO-DADOLE, Presiding
Judge, Branch XXVIII, Regional Trial Court, Mandaue City, Mandaue
City Mayor ALFREDO M. OUANO, Mandaue City Vice-Mayor
PATERNO CAÑETE and Mandaue City Sangguniang Panlungsod
Member RAFAEL MAYOL, respondents.
VITUG, J.:
The determination of whether the Ombudsman under Republic Act
("R.A.") No. 6770,1 otherwise known as the Ombudsman Act of 1989,
has been divested of his authority to conduct administrative
investigations over local elective officials by virtue of the subsequent
enactment of R.A. No. 7160,2 otherwise known as the Local
Government Code of 1991, is the pivotal issue before the Court in this
petition.
The petition seeks (a) to annul the writ of preliminary injunction, dated
21 October 1992, issued against petitioner by respondent trial court
and (b) to prohibit said court from further proceeding with RTC Case
No. MDE-14.3
Parenthetically, Deputy Ombudsman for the Visayas Arturo Mojica
assumed the office of Juan Hagad, now resigned,4 who took the
initiative in instituting this special civil action for certiorari and
prohibition.
The controversy stemmed from the filing of criminal and
administrative complaints, on 22 July 1992, against herein respondents
Mayor Alfredo Ouano, Vice-Mayor Paterno Cañete and Sangguniang
Panlungsod Member Rafael Mayol, all public officials of Mandaue City,
by Mandaue City Councilors Magno B. Dionson and Gaudiosa O.
Bercede with the Office of the Deputy Ombudsman for the Visayas. The
respondents were charged with having violated R.A. No. 3019, as
amended,5 Articles 1706 and 1717 of the Revised Penal Code; and R.A.
No. 6713.8Councilors Dionson and Bercede averred that respondent
officials, acting in conspiracy, had caused the alteration and/or
falsification of Ordinance No. 018/92 by increasing the allocated
appropriation therein from P3,494,364.57 to P7,000,000.00 without
authority from the Sangguniang Panlungsod of Mandaue City. The
complaints were separately docketed as Criminal Case No. OMB-VIS-
92-391 and as Administrative Case No. OMB-VIS-ADM-92-015.
A day after the filing of the complaints, or on 23 July 1992, a sworn
statement was executed by Mandaue City Council Secretary, Atty.
Amado C. Otarra, Jr., in support of the accusations against respondent
officials. The next day, petitioner ordered respondents, including
Acting Mandaue City Treasurer Justo G. Ouano and Mandaue City
Budget Officer Pedro M. Guido, to file their counter-affidavits within
ten (10) days from receipt of the order. Forthwith, Councilors Dionson
and Bercede moved for the preventive suspension of respondent
officials in the separately docketed administrative case.
Aside from opposing the motion for preventive suspension,
respondent officials, on 05 August 1992, prayed for the dismissal of the
complaint on the ground that the Ombudsman supposedly was bereft
of jurisdiction to try, hear and decide the administrative case filed
against them since, under Section 63 of the Local Government Code of
1991, the power to investigate and impose administrative sanctions
against said local officials, as well as to effect their preventive
suspension, had now been vested with the Office of the President.
In their opposition, filed on 10 August 1992, Dionson and Bercede
argued that the Local Government Code of 1991 could not have
repealed, abrogated or otherwise modified the pertinent provisions of
the Constitution granting to the Ombudsman the power to investigate
cases against all public officials and that, in any case, the power of the
Ombudsman to investigate local officials under the Ombudsman Act
had remained unaffected by the provisions of the Local Government
Code of 1991.
During the hearing on the motion for preventive suspension, the
parties were directed by the Deputy Ombudsman to file their
respective memoranda.
In his memorandum, Mayor Ouano reiterated that, under Sections 61
and 63 of the Local Government Code of 1991, the Office of the
President, not the Office of the Ombudsman, could lawfully take
cognizance of administrative complaints against any elective official of
a province, a highly urbanized city or an independent component city
and to impose disciplinary sanctions, including preventive suspensions,
and that there was nothing in the provision of the Constitution giving
to the Office of the Ombudsman superior powers than those of the
President over elective officials of local governments.
In an Order,9 dated 10 September 1992, the Office of the Deputy
Ombudsman denied the motion to dismiss and recommended the
preventive suspension of respondent officials, except City Budget
Officer Pedro M. Guido, until the administrative case would have been
finally resolved by the Ombudsman.10 Respondent officials were
formally placed under preventive suspension by the Deputy
Ombudsman pursuant to an Order11 of 21 September 1992.
On 25 September 1992, a petition for prohibition, with prayer for a writ
of preliminary injunction and temporary restraining order, was filed by
respondent officials with the Regional Trial Court of Mandaue City.
Acting favorably on the pleas of petitioning officials, respondent Judge
issued, on even date, a restraining order directed at petitioner,
enjoining him ". . . from enforcing and/or implementing the questioned
order of preventive suspension issued in OMB-VIS-ADM-92-015."
Petitioner moved to dismiss the petition but it was to no avail. The
court a quo, on 15 October 1992, denied the motion to dismiss and
issued an Order for the issuance of a writ of preliminary injunction,
holding thusly:
So by following and applying the well-established rules of
statutory construction that endeavor should be made to
harmonize the provisions of these two laws in order that each
shall be effective, it is the finding of this Court that since the
investigatory power of the Ombudsman is so general, broad and
vague and gives wider discretion to disciplining authority to
impose administrative sanctions against a responsible public
official or employee while that of Section 60 of the New Local
Government Code provides for more well defined and specific
grounds upon which a local elective official can be subjected to
administrative disciplinary action, that it Could be considered that
the latter law could be an exception to the authority and
administrative power of the Ombudsman to conduct an
investigation against local elective officials and as such, the
jurisdiction now to conduct administrative investigation against
local elective officials is already lodged before the offices
concerned under Section 61 of Republic Act No. 7160.
xxx xxx xxx
WHEREFORE, foregoing premises considered, Order is hereby issued:
1) Expanding the restraining order dated September 25, 1992
issued by the Court into an Order for the issuance of a writ
of preliminary injunction upon the posting of the petitioners
of the bond in the amount of Fifty thousand pesos
(P50,000.00) conditioned that the latter will pay all the costs
that may be adjudged to the adverse party and/or damages
which he may sustain by reason of the injunction, if the Court
will finally adjudge that the petitioners are not entitled
thereto, and
2) Denying the respondent's Motion to Dismiss dated
September 28, 1992 for lack of merit.
SO ORDERED. 12
A writ of preliminary injunction was issued on 21 October 1992.13 A
motion for reconsideration made by petitioner was denied by the trial
court.
The instant recourse seeks the nullification of the order of 15 October
1992 and the writ of preliminary injunction of 21 October 1992 both
issued by the trial court and prays that respondent judge be directed
to desist from further proceeding with RTC Case No. MDE-14.
There is merit in the petition.
The general investigatory power of the Ombudsman is decreed by
Section 13 (1,) Article XI, of the 1987 Constitution,14 thus:
Sec. 13. The Office of the Ombudsman shall have the following
powers, functions, and duties:
(1) Investigate on its own, or on complaint by any person, any act
or omission of any public official, employee, office or agency,
when such act or omission appears to be illegal, unjust, improper,
or inefficient;
while his statutory mandate to act on administrative complaints is
contained in Section 19 of R.A. No. 6770 that reads:
Sec. 19. Administrative complaints. — The Ombudsman shall act
on all complaints relating, but not limited, to acts or omissions
which:
 1. Are contrary to law or regulation;
2. Are unreasonable, unfair, oppressive or discriminatory;
3. Are inconsistent with the general course of an agency's
functions, though in accordance with law;
4. Proceed from a mistake of law or an arbitrary ascertainment
of facts;
5. Are in the exercise of discretionary powers but for an
improper purpose; or
6. Are otherwise irregular, immoral or devoid of
justification.
Section 21 of the same statute names the officials who could be subject
to the disciplinary authority of the Ombudsman, viz.:
Sec. 21. Officials Subject to Disciplinary Authority; Exceptions. —
The Office of the Ombudsman shall have disciplinary authority
over all elective and appointive officials of the Government and
its subdivisions, instrumentalities and agencies, including
Members of the Cabinet, local government, government-owned
or controlled corporations and their subsidiaries except over
officials who may be removed only by impeachment or over
Members of Congress, and the Judiciary. (Emphasis supplied)
Taken in conjunction with Section 24 of R.A. No. 6770, petitioner thus
contends that the Office of the Ombudsman correspondingly has the
authority to decree preventive suspension on any public officer or
employee under investigation by it. Said section of the law provides:
Sec. 24. Preventive Suspension. — The Ombudsman or his Deputy
may preventively suspend any officer or employee under his
authority pending an investigation, if in his judgment, the
evidence of guilt is strong, and (a) the charge against such officer
or employee involves dishonesty, oppression or grave misconduct
or neglect in the performance of duty; (b) the charges would
warrant removal from the service; or (c) the respondent's
continued stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated
by the Office of the Ombudsman but not more than six months,
without pay, except when the delay in the disposition of the case by
the Office of the Ombudsman is due to the fault, negligence or petition
of the respondent, in which case the period of such delay shall not be
counted in computing the period of suspension herein provided.
Respondent officials, upon the other hand, argue that the disciplinary
authority of the Ombudsman over local officials must be deemed to
have been removed by the subsequent enactment of the Local
Government Code of 1991 which vests the authority to investigate
administrative charges, listed under Section 6015 thereof, on various
offices. In the case specifically of complaints against elective officials of
provinces and highly urbanized cities, the Code states:
Sec. 61. Form and Filing of Administrative Complaints. — A verified
complaint against any erring local elective officials shall be prepared as
follows:
(a) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city
shall be filed before the Office of the President.
Thus respondents insist, conformably with Section 63 of the Local
Government Code, preventive suspension can only be imposed by: ". .
. the President if the respondent is an elective official of a province, a
highly urbanized or an independent component city; . . . " under sub-
paragraph (b) thereof:
(b) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and given
the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence; Provided, That, any single preventive
suspension of local elective officials shall not extend beyond sixty
(60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he
cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and
known at the time of the first suspension.
In his comment, which the Court required considering that any final
resolution of the case would be a matter of national concern, the
Solicitor-General has viewed the Local Government Code of 1991 as
having conferred, but not on an exclusive basis, on the Office of the
President (and the various Sanggunians) disciplinary authority over
local elective officials. He posits the stand that the Code did not
withdraw the power of the Ombudsman theretofore vested under R.A.
6770 conformably with a constitutional mandate. In passing, the
Solicitor General has also opined that the appropriate remedy that
should have been pursued by respondent officials is a petition
for certiorari before this Court rather than their petition for prohibition
filed with the Regional Trial Court.
Indeed, there is nothing in the Local Government Code to indicate that
it has repealed, whether expressly or impliedly, the pertinent
provisions of the Ombudsman Act. The two statutes on the specific
matter in question are not so inconsistent, let alone irreconcilable, as
to compel us to only uphold one and strike down the other . Well
settled is the rule that repeals of laws by implication are not
favored,16 and that courts must generally assume their congruent
application.17 The two laws must be absolutely incompatible,18 and a
clear finding thereof must surface, before the inference of implied
repeal may be drawn.19 The rule is expressed in the
maxim, interpretare et concordare legibus est optimus
interpretendi, i.e., every statute must be so interpreted and brought
into accord with other laws as to form a uniform system of
jurisprudence.20 The fundament is that the legislature should be
presumed to have known the existing laws on the subject and not to
have enacted conflicting statutes.21 Hence, all doubts must be resolved
against any implied repeal,22 and all efforts should be exerted in order
to harmonize and give effect to all laws on the subject.23
Certainly, Congress would not have intended to do injustice to the very
reason that underlies the creation of the Ombudsman in the 1987
Constitution which "is to insulate said office from the long tentacles of
officialdom."24
Quite interestingly, Sections 61 and 63 of the present Local
Government Code run almost parallel with the provisions then existing
under the old code. Section 61 and Section 63 of the precursor local
Government Code of 1983, 25 under the heading of "Suspension and
Removal," read:
Sec. 61. Form and Filing of Complaints. — Verified complaints
against local elective officials shall be prepared as follows:
(a) Against any elective provincial or city official, before the
Minister of Local Government.
Sec. 63. Preventive Suspension. — (1) Preventive suspension may
be imposed by the Minister of Local Government if the
respondent is a provincial or city official, by the provincial
governor if the respondent is an elective municipal official, or by
the city or municipal mayor if the respondent is an elective
barangay official.
(2) Preventive suspension may be imposed at any time after the
issues are joined, when there is reasonable ground to believe that
the respondent has committed the act or acts complained of,
when the evidence of culpability is strong, when the gravity of the
 offense so warrants, or when the continuance in office of the
respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence. In all cases,
preventive suspension shall not extend beyond sixty days after
the start of said suspension.
(3) At the expiration of sixty days, the suspended official shall be
deemed reinstated in office without prejudice to the continuation
of the proceedings against him until its termination. However, if
the delay in the proceedings of the case is due to his fault, neglect
or request, the time of the delay shall not be counted in
computing the time of suspension.
The authority to conduct administrative investigation and to impose
preventive suspension over elective provincial or city officials was at
that time entrusted to the Minister of Local Government until it
became concurrent with the Ombudsman upon the enactment of R.A.
No. 6770, specifically under Sections 21 and 24 thereof, to the extent
of the common grant. The Local Government Code of 1991 (R.A. No.
7160), in fine, did not effect a change from what already prevailed, the
modification being only in the substitution of the Secretary (the
Minister) of Local Government by the Office of the President.
Respondent local officials contend that the 6-month preventive
suspension without pay under Section 24 of the Ombudsman Act is
much too repugnant to the 60-day preventive suspension provided by
Section 63 of the Local Government Code to even now maintain its
application. The two provisions govern differently. In order to justify
the preventive suspension of a public official under Section 24 of R.A.
No. 6770, the evidence of guilt should be strong, and (a) the charge
against the officer or employee should involve dishonesty, oppression
or grave misconduct or neglect in the performance of duty; (b) the
charges should warrant removal from the service; or (c) the
respondent's continued stay in office would prejudice the case filed
against him. The Ombudsman can impose the 6-month preventive
suspension to all public officials, whether elective or appointive, who
are under investigation. Upon the other hand, in imposing the shorter
period of sixty (60) days of preventive suspension prescribed in the
Local Government Code of 1991 on an elective local official (at any time
after the issues are joined), it would be enough that (a) there is
reasonable ground to believe that the respondent has committed the
act or acts complained of, (b) the evidence of culpability is strong, (c)
the gravity of the offense so warrants, or (d) the continuance in office
of the respondent could influence the witnesses or pose a threat to the
safety and integrity of the records and other evidence.
Respondent officials, nevertheless, claim that petitioner committed
grave abuse of discretion when he caused the issuance of the
preventive suspension order without any hearing.
The contention is without merit. The records reveal that petitioner
issued the order of preventive suspension after the filing (a) by
respondent officials of their opposition on the motion for preventive
suspension and (b) by Mayor Ouano of his memorandum in compliance
with the directive of petitioner. Be that, as it may, we have heretofore
held that, not being in the nature of a penalty, a preventive suspension
can be decreed on an official under investigation after charges are
brought and even before the charges are heard. Naturally, such
a preventive suspension would occur prior to any finding of guilt or
innocence. In the early case of Nera vs. Garcia,26 reiterated in
subsequent cases,27 we have said:
In connection with the suspension of petitioner before he could
file his answer to the administrative complaint, suffice it to say
that the suspension was not a punishment or penalty for the acts
of dishonesty and misconduct in office, but only as a preventive
measure. Suspension is a preliminary step in an administrative
investigation. If after such investigation, the charges are
established and the person investigated is found guilty of acts
warranting his removal, then he is removed or dismissed. This is
the penalty. There is, therefore, nothing improper in suspending
an officer pending his investigation and before the charges against
him are heard and be given an opportunity to prove his innocence.
Moreover, respondent officials were, in point of fact, put on preventive
suspension only after petitioner had found, in consonance with our
ruling in Buenaseda vs. Flavier,28 that the evidence of guilt was strong.
Petitioner gave his justification for the preventive suspension in this
wise:
After a careful and honest scrutiny of the evidence submitted on
record, at this stage, it is the holding of this office that the
evidence of guilt against the respondents in the instant case is
strong. There is no question that the charge against the
respondents involves dishonesty or gross misconduct which
would warrant their removal from the service and there is no
gainsaying the fact that the charge for falsification of veritable
documents like city ordinances are very serious charges that
affect the very foundations of duly established representative
governments. Finally, it is likewise the holding of this office at this
stage that the continued stay in office of respondents may
prejudice the judicious investigation and resolution of the instant
case.29
Finally, it does appear, as so pointed out by the Solicitor General, that
respondent official's petition for prohibition, being an application for
remedy against the findings of petitioner contained in his 21
September 1992 order, should not have been entertained by the trial
court. The proscription in Section 14 of R.A. No. 6770 reads:
Sec. 14. Restrictions. — No writ of injunction shall be issued by
any court to delay an investigation being conducted by the
Ombudsman under this Act, unless there is a prima facie evidence
that the subject matter of the investigation is outside the
jurisdiction of the Office of the Ombudsman.
No court shall hear any appeal or application for remedy against
the decision or findings of the Ombudsman, except the Supreme
Court, on pure question of law.
Likewise noteworthy is Section 27 of the law which prescribes a direct
recourse to this Court on matters involving orders arising from
administrative disciplinary cases originating from the Office of the
Ombudsman; thus:
Sec. 27. Effectivity and Finality of Decisions. — . . .
In all administrative disciplinary cases, orders, directives, or
decisions of the Office of the Ombudsman may be appealed to the
Supreme Court by filing a petition for certiorari within ten (10)
days from receipt of the written notice of the order, directive or
decision or denial of the motion for reconsideration in accordance
with Rule 45 of the Rules of Court. (Emphasis supplied)
All told, petitioner is plainly entitled to the relief prayed for, and we
must, accordingly; grant the petition.
WHEREFORE, the questioned writ of preliminary injunction of 21
October 1992 is ANNULLED and SET ASIDE, and RTC Case No. MDE-14
is hereby ordered DISMISSED. No costs.
G.R. No. 170626
March 3, 2008
THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO
MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA
VISCAYA represented by BARANGAY KAGAWAD JOSE CENEN
SANTOS, MARIO BACUD, WALTER FRANCISCO, ROSITA SEBASTIAN,
LAURETA CABAUATAN, CECILIA ALINDAYU and MELY SIMANGAN,
petitioners, vs. PUNONG BARANGAY SEVERINO MARTINEZ,
respondent.
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of
Court, assailing the Orders dated 20 October 2005[1] and 30 November
2005[2] of the Regional Trial Court (trial court), Branch 27,
of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its
assailed Orders, the trial court ruled that
the Sangguniang Bayan of Bayombong, Neuva Vizcaya (Sangguniang B
ayan), exceeded its jurisdiction when it imposed upon
respondent Severino Martinez the administrative penalty of removal
from office.
Petitioner Sangguniang Barangay is the legislative body
of Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya, a local
government unit created, organized and existing as such under
pertinent laws of the Republic of the Philippines.
Respondent Martinez is the incumbent Punong Barangay of the said
local government unit.[3]
On 5 November 2004, Martinez was administratively charged with
Dishonesty and Graft and Corruption by petitioner through the filing of
a verified complaint before the Sangguniang Bayan as the disciplining
authority over elective barangay officials pursuant to Section 61[4] of
Rep. Act No. 7160, otherwise known as the Local Government
Code. Petitioner filed with the Sangguniang Bayan an Amended
Administrative Complaint against Martinez on 6 December 2004 for
Dishonesty, Misconduct in Office and Violation of the Anti-Graft and
Corrupt Practices Act.[5] Petitioner alleged that Martinez committed
the following acts:
1. Failure to submit and fully remit to the Barangay Treasurer the
income of their solid waste management project since 2001
particularly the sale of fertilizer derived from composting.
2. Failure to submit/remit to the barangay treasurer the sale of
recyclable materials taken from garbage collection.
3. Using the garbage truck for other purposes like hauling sand and
gravel for private persons without monetary benefit to
the barangay because no income from this source appears in the
year end report even if payments were collected x x x.
4. Using/spending barangay funds for repair, gasoline, lubricants,
wheels and other spare parts of the garbage truck instead of using
the money or income of said truck from the garbage fees collected
as income from its Sold Waste Management Project. x x x.
5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003
because although a cash advance was made by the respondent for
the said purpose, he, however, did not attend said seminar
because on the dates when he was supposed to be on seminar
they saw him in the barangay. x x x.
6. That several attempts to discuss said problem during sessions
were all in vain because respondent declined to discuss it and
would adjourn the session.x x x.[6]
Upon his failure to file an Answer to the Amended Administrative
Complaint dated 6 December 2004, Martinez was declared by
the Sangguniang Bayan as in default.Pending the administrative
proceedings, Martinez was placed under preventive suspension for 60
days or until 8 August 2005.[7]
On 28 July 2005, the Sangguniang Bayan rendered its Decision which
imposed upon Martinez the penalty of removal from office.[8]
The Decision dated 28 July 2005 was conveyed to the Municipal Mayor
of Bayombong, Nueva Ecija, Severino Bagasao, for its
implementation. On 3 August 2005, Municial Mayor Bagasao issued a
Memorandum, wherein he stated that the Sanggunaing Bayan is not
empowered to order Martinezs removal from service. However, the
Decision remains valid until reversed and must be executed by him. For
the meantime, he ordered the indefinite suspension of Martinez since
the period of appeal had not yet lapsed.[9] The dispositive portion of
the said Memorandum states that:[10]
The FOREGOING considered come AUGUST 8, 2005, respondent
SEVERINO D. MARTINEZ is hereby directed NOT to ASSUME and
DISCHARGE the functions of the Office of the Punong Barangay of
Barangay Don Mariano Marcos, Bayombong, Nueva Vizcaya and for
complainant JOSE CENEN SANTOS to CONTINUE assuming and
discharging the functions of the said office in ACTING CAPACITY
pursuant to the provisions of Sections 67 and 68 of Republic Act No.
7160.
On 26 August 2005, Martinez filed a Special Civil Action
for Certiorari with a prayer for Temporary Restraining Order and
Preliminary Injunction before the trial court against petitioner,
the Sangguniang Bayan and Mayor Bagasao questioning the validity of
the Decision dated 28 July 2005 of the Sangguniang Bayan. This case
was docketed as Special Civil Action No. 6727, which was initially heard
by Branch 28, but later raffled to Branch 27 of the trial court.[11]
On 20 October 2005, the trial court issued an Order declaring the
Decision of the Sangguniang Bayan and the Memorandum of
Mayor Bagasao void. It maintained that the proper courts, and not the
petitioner, are empowered to remove an elective local official from
office, in accordance with Section 60 of the Local Government
Code. Thus, the Order of the Sangguniang Bayan removing Martinez
from service is void. As a consequence, Mayor Bagasao cannot
prevent Martinez from assuming his office on the basis of a void
order. The trial court further ruled that Martinez properly availed
himself of the remedy of Special Civil Action, where the order assailed
was a patent nullity.[12]
On 10 November 2005, petitioner filed a Motion for
Reconsideration[13] of the trial courts Order dated 10 October
2005. The trial court denied the said motion in another Order dated 30
November 2005.[14]
Hence, the present petition was filed.
Although Martinezs term as Punong Baranggay expired upon the
holding of the 29 October 2007 Synchronized Barangay and
Sangguniang Kabataan elections and, thus, rendering this petition
moot and academic, the Court will nevertheless settle a legal question
that is capable of repetition yet evading review.[15]
The pivotal issue in this case is whether or not
the Sangguniang Bayan may remove Martinez, an elective local
official, from office. The pertinent legal provisions and cases decided
by this Court firmly establish that the Sanggunaing Bayan is not
empowered to do so.
Section 60 of the Local Government Code conferred upon the courts
the power to remove elective local officials from office:

Section 60. Grounds for Disciplinary Actions.An elective local official
may be disciplined, suspended, or removed from office on any of the
following grounds:
x x x x.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
(Emphasis provided.)
During the deliberations of the Senate on the Local Government
Code,[16] the legislative intent to confine to the courts, i.e., regional
trial courts, the Sandiganbayan and the appellate courts, jurisdiction
over cases involving the removal of elective local officials was evident:
Senator Pimentel. This has been reserved, Mr. President, including the
issue of whether or not the Department Secretary or the Office of the
President can suspend or remove an elective official.
Senator Saguisag. For as long as that is open for some later disposition,
may I just add the following thought: It seems to me that instead of
identifying only the proper regional trial court or the Sandiganbayan,
and since we know that in the case of a regional trial court,
particularly, a case may be appealed or may be the subject of an
injunction, in the framing of this later on, I would like to suggest
that we consider replacing the phrase PROPER REGIONAL TRIAL
COURT OR THE SANDIGANBAYAN simply by
COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial
court o ang Sandiganbayan.
Senator Pimentel. OR THE PROPER COURT.
Senator Saguisag. OR THE PROPER COURT.
Senator Pimentel. Thank you. We are willing to accept that now, Mr.
President.
Senator Saguisag. It is to be incorporated in the phraseology that we
will craft to capture the other ideas that have been elevated. (Emphasis
provided.)
In Salalima v. Guingona, Jr.,[17] the Court en banc categorically ruled
that the Office of the President is without any power to remove elected
officials, since the power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of Section 60 of the Local
Government Code. It further invalidated Article 125, Rule XIX of the
Rules and Regulations Implementing the Local Government Code of
1991, which provided that:
Article 125. Grounds for Disciplinary Actions. x x x.
x x x x.
(b) An elective local official may be removed from office on the
grounds enumerated in paragraph (a) of this Article by order of
the proper court or the disciplining authority whichever first
acquires jurisdiction to the exclusion of the other.
The Court nullified the aforequoted rule since the Oversight
Committee that prepared the Rules and Regulations of the Local
Government Code exceeded its authority when it granted to the
disciplining authority the power to remove elective officials, a power
which the law itself granted only to the proper courts. Thus, it is clear
that under the law, the Sangguniang Bayan is not vested with the
power to remove Martinez.
Petitioner contends that administrative cases involving
elective barangay officials may be filed with, heard and decided by
the Sangguniang Panlungsod or SangguniangBayan concerned, which
can, thereafter, impose a penalty of removal from office. It further
claims that the courts are merely tasked with issuing the order of
removal, after the Sangguniang Panlungsod or Sangguniang Bayan
finds that a penalty of removal is warranted.[18]
The aforementioned position put forward by the petitioner would run
counter to the rationale for making the removal of elective officials an
exclusive judicial prerogative.In Pablico v. Villapando,[19] the court
declared that:
It is beyond cavil, therefore, that the power to remove erring
elective local officials from service is lodged exclusively with the
courts. Hence, Article 124 (sic 125)[20] (b), Rule XIX, of the Rules
and Regulations Implementing the Local Government Code,
insofar as it vests power on the disciplining authority to remove
from office erring elective local officials, is void for being
repugnant to the last paragraph of Section 60 of the Local
Government Code of 1991. The law on suspension or removal of
elective public officials must be strictly construed and applied,
and the authority in whom such power of suspension or removal
is vested must exercise it with utmost good faith, for what is
involved is not just an ordinary public official but one chosen by
the people through the exercise of their constitutional right of
suffrage. Their will must not be put to naught by the caprice or
partisanship of the disciplining authority. Where the disciplining
authority is given only the power to suspend and not the power
to remove, it should not be permitted to manipulate the law by
usurping the power to remove. (Emphasis supplied.)
The rule which confers to the proper courts the power to remove an
elective local official from office is intended as a check against any
capriciousness or partisan activity by the disciplining authority. Vesting
the local legislative body with the power to decide whether or not a
local chief executive may be removed from office, and only relegating
to the courts a mandatory duty to implement the decision, would still
not free the resolution of the case from the capriciousness or
partisanship of the disciplining authority. Thus, the petitioners
interpretation would defeat the clear intent of the law.
Moreover, such an arrangement clearly demotes the courts to nothing
more than an implementing arm of the Sangguniang Panlungsod,
or Sangguniang Bayan. This would be an unmistakable breach of the
doctrine on separation of powers, thus placing the courts under the
orders of the legislative bodies of local governments. The courts would
be stripped of their power of review, and their discretion in imposing
the extreme penalty of removal from office is thus left to be exercised
by political factions which stand to benefit from the removal from
office of the local elective official concerned, the very evil which
Congress sought to avoid when it enacted Section 60 of the Local
Government Code.
Congress clearly meant that the removal of an elective local official be
done only after a trial before the appropriate court, where court rules
of procedure and evidence can ensure impartiality and fairness and
protect against political maneuverings. Elevating the removal of an
elective local official from office from an administrative case to a court
case may be justified by the fact that such removal not only punishes
the official concerned but also, in effect, deprives the electorate of the
services of the official for whom they voted.
As the law stands, Section 61 of the Local Government Code provides
for the procedure for the filing of an administrative case against an
erring elective barangay official before the Sangguniang Panlungsod or
Sangguinang Bayan. However the Sangguniang Panlungsod or
Sangguniang Bayan cannot order the removal of an erring elective
barangay official from office, as the courts are exclusively vested with
this power under Section 60 of the Local Government Code. Thus, if the
acts allegedly committed by the barangayofficial are of a grave nature
and, if found guilty, would merit the penalty of removal from office,
the case should be filed with the regional trial court. Once the court
assumes jurisdiction, it retains jurisdiction over the case even if it
would be subsequently apparent during the trial that a penalty less
than removal from office is appropriate. On the other hand, the most
extreme penalty that the Sangguniang Panlungsod or Sangguniang
Bayan may impose on the erring elective barangay official is
suspension; if it deems that the removal of the official from service is
warranted, then it can resolve that the proper charges be filed in court.
Petitioner alleged that an interpretation which gives the judiciary the
power to remove local elective officials violates the doctrine of
separation of powers. This allegation runs contrary to the 1987
Constitution itself, as well as jurisprudence.
The 1987 Constitution is explicit in defining the scope of judicial
power. It establishes the authority of the courts to determine in
an appropriate action the validity of acts of the political
departments. It speaks of judicial prerogative in terms of
duty.[21] Paragraph 2, Section 1, Article VIII of the 1987
Constitution, provides that:
Judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally
demandable and enforceable, and to determine whether or not
there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or
instrumentality of the Government. (Emphasis provided.)
The doctrine of separation of powers is not absolute in its application;
rather, it should be applied in accordance with the principle of checks
and balances. The removal from office of elective officials must not be
tainted with partisan politics and used to defeat the will of the voting
public. Congress itself saw it fit to vest that power in a more impartial
tribunal, the court. Furthermore, the local government units are not
deprived of the right to discipline local elective officials; rather, they
are prevented from imposing the extreme penalty of dismissal.
Petitioner questions the Decision dated 20 October 2005 of the trial
court for allowing the petition filed before it as an exception to the
doctrine of exhaustion of administrative remedies. If, indeed,
the Sangguniang Bayan had no power to remove Martinez from office,
then Martinez should have sought recourse from the Sangguniang
Panlalawigan. This Court upholds the ruling of the trial court.
The doctrine of exhaustion of administrative remedies calls for resort
first to the appropriate administrative authorities in the resolution of a
controversy falling under their jurisdiction before the same may be
elevated to the courts of justice for review. Non-observance of the
doctrine results in lack of a cause of action, which is one of the grounds
allowed by the Rules of Court for the dismissal of the complaint. [22]
The doctrine of exhaustion of administrative remedies, which is based
on sound public policy and practical consideration, is not
inflexible. There are instances when it may be dispensed with and
judicial action may be validly resorted to immediately. Among these
exceptions are: 1) where there is estoppel on the part of the party
invoking the doctrine; 2) where the challenged administrative act is
patently illegal, amounting to lack of jurisdiction; 3) where there is
unreasonable delay or official inaction that will irretrievably prejudice
the complainant; 4) where the amount involved is relatively small as to
make the rule impractical and oppressive; 5) where the question
raised is purely legal and will ultimately have to be decided by the
courts of justice; 6) where judicial intervention is urgent; 7) where its
application may cause great and irreparable damage; 8) where
the controverted acts violate due process; 9) when the issue of non-
exhaustion of administrative remedies has been rendered moot; 10)
where there is no other plain, speedy and adequate remedy; 11) when
strong public interest is involved; and 13)
in quo warranto proceedings.[23]
As a general rule, no recourse to courts can be had until all
administrative remedies have been exhausted. However, this rule is
not applicable where the challenged administrative act is patently
illegal, amounting to lack of jurisdiction and where the question or
questions involved are essentially judicial.
In this case, it is apparent that the Sangguniang Bayan acted beyond its
jurisdiction when it issued the assailed Order dated 28 July
2005 removing Martinez from office.Such act was patently illegal and,
therefore, Martinez was no longer required to avail himself of an
administrative appeal in order to annul the said Order of
the SangguniangBayan.[24] Thus, his direct recourse to regular courts of
justice was justified.
In addition, this Court in Castro v. Gloria[25] declared that where the
case involves only legal questions, the litigant need not exhaust all
administrative remedies before such judicial relief can be sought. The
reason behind providing an exception to the rule on exhaustion of
administrative remedies is that issues of law cannot be resolved with
finality by the administrative officer. Appeal to the administrative
officer would only be an exercise in futility. A legal question is properly
addressed to a regular court of justice rather than to an administrative
body.[26]
In the present case, Martinez raised before the trial court the sole issue
of whether the Sangguniang Bayan has jurisdiction over a case
involving the removal of a local elective official from
office.[27] In Martinezs petition before the trial court, only a legal
question was raised, one that will ultimately be resolved by the
courts. Hence, appeal to the administrative officer concerned would
only be circuitous and, therefore, should no longer be required before
judicial relief can be sought.
IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the
assailed Decision of the Bayombong RTC in Special Civil Action No.
6727 is AFFIRMED.
G.R. No. 123169
November 4, 1996
DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS,
respondent.
RESOLUTION
FRANCISCO, J.:
Petitioner Danilo E. Paras is the incumbent Punong Barangay
of Pula, Cabanatuan City who won during the last regular barangay
election in 1994. A petition for his recall as Punong Barangay was filed
by the registered voters of the barangay. Acting on the petition for
recall, public respondent Commission on Elections (COMELEC)
resolved to approve the petition, scheduled the petition signing
on October 14, 1995, and set the recall election on November 13,
1995.[1] At least 29.30% of the registered voters signed the petition,
well above the 25% requirement provided by law. The COMELEC,
however, deferred the recall election in view of petitioners
opposition. On December 6, 1995, the COMELEC set anew the recall
election, this time on December 16, 1995. To prevent the holding of
the recall election, petitioner filed before
the Regional Trial Court of Cabanatuan City a petition for injunction,
docketed as SP Civil Action No. 2254-AF, with the trial court issuing a
temporary restraining order. After conducting a summary hearing, the
trial court lifted the restraining order, dismissed the petition and
required petitioner and his counsel to explain why they should not be
cited for contempt for misrepresenting that the barangay recall
election was without COMELEC approval.[2]
In a resolution dated January 5, 1996, the COMELEC, for the third time,
re-scheduled the recall election on January 13, 1996; hence, the
instant petition for certiorari with urgent prayer for
injunction. On January 12, 1996, the Court issued a temporary
restraining order and required the Office of the Solicitor General, in
behalf of public respondent, to comment on the petition. In view of the
Office of the Solicitor Generals manifestation maintaining an opinion
adverse to that of the COMELEC, the latter through its law department
filed the required comment. Petitioner thereafter filed a reply.[3]
Petitioners argument is simple and to the point. Citing Section 74 (b) of
Republic Act No. 7160, otherwise known as the Local Government
Code, which states that no recall shall take place within one (1) year
from the date of the officials assumption to office or one (1) year
immediately preceding a regular local election, petitioner insists that
the scheduled January 13, 1996 recall election is now barred as the
Sangguniang Kabataan (SK) election was set by Republic Act No. 7808
on the first Monday of May 1996, and every three years thereafter. In
support thereof, petitioner cites Associated Labor Union v. Letrondo-
Montejo, 237 SCRA 621, where the Court considered the SK election as
a regular local election. Petitioner maintains that as the SK election is
a regular local election, hence no recall election can be had for barely
four months separate the SK election from the recall election. We do
not agree.
The subject provision of the Local Government Code provides:
SEC. 74. Limitations on Recall. (a) Any elective local official may be
the subject of a recall election only once during his term of office
for loss of confidence.
(b) No recall shall take place within one (1) year from the date of
the officials assumption to office or one (1) year immediately
preceding a regular local election. [Emphasis added.]
It is a rule in statutory construction that every part of the statute must
be interpreted with reference to the context, i.e., that every part of the
statute must be considered together with the other parts, and kept
subservient to the general intent of the whole enactment.[4] The
evident intent of Section 74 is to subject an elective local official to
recall election once during his term of office. Paragraph (b) construed
together with paragraph (a) merely designates the period when such
elective local official may be subject of a recall election, that is, during
the second year of his term of office. Thus, subscribing to petitioners
interpretation of the phrase regular local election to include the SK
election will unduly circumscribe the novel provision of the Local
Government Code on recall, a mode of removal of public officers by
initiation of the people before the end of his term. And if the SK
election which is set by R.A. No. 7808 to be held every three years from
May 1996 were to be deemed within the purview of the phrase regular
local election, as erroneously insisted by petitioner, then no recall
election can be conducted rendering inutile the recall provision of the
Local Government Code.
In the interpretation of a statute, the Court should start with the
assumption that the legislature intended to enact an effective law, and
the legislature is not presumed to have done a vain thing in the
enactment of a statute.[5] An interpretation should, if possible, be
avoided under which a statute or provision being construed is
defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative or nugatory.[6]
It is likewise a basic precept in statutory construction that a statute
should be interpreted in harmony with the Constitution.[7] Thus, the
interpretation of Section 74 of the Local Government Code, specifically
paragraph (b) thereof, should not be in conflict with the Constitutional
mandate of Section 3 of Article X of the Constitution to enact a local
government code which shall provide for a more responsive and
accountable local government structure instituted through a system of
decentralization with effective mechanisms of recall, initiative, and
referendum x x x.
Moreover, petitioners too literal interpretation of the law leads to
absurdity which we cannot countenance. Thus, in a case, the Court
made the following admonition:
We admonish against a too-literal reading of the law as this is apt
to constrict rather than fulfill its purpose and defeat the intention
of its authors. That intention is usually found not in the letter that
killeth but in the spirit that vivifieth x x x[8]
The spirit, rather than the letter of a law determines its construction;
hence, a statute, as in this case, must be read according to its spirit and
intent.
Finally, recall election is potentially disruptive of the normal working of
the local government unit necessitating additional expenses, hence the
prohibition against the conduct of recall election one year immediately
preceding the regular local election. The proscription is due to the
proximity of the next regular election for the office of the local elective
official concerned.The electorate could choose the officials
replacement in the said election who certainly has a longer tenure in
office than a successor elected through a recall election. It would,
therefore, be more in keeping with the intent of the recall provision of
the Code to construe regular local election as one referring to an
election where the office held by the local elective official sought to be
recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the
limitation stated under Section 74 (b) of the Code considering that the
next regular election involving the barangay office concerned is barely
seven (7) months away, the same having been scheduled on May
1997.[9]
ACCORDINGLY, the petition is hereby dismissed for having become
moot and academic. The temporary restraining order issued by the
Court on January 12, 1996, enjoining the recall election should be as it
is hereby made permanent.
G.R. No. 140560
May 4, 2000
JOVITO O. CLAUDIO, petitioner, vs. COMMISSION ON ELECTIONS,
DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON
AUDIT and RICHARD ADVINCULA, respondents.
G.R. No. 140714
May 4, 2000
PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented
by its Chairman, RICHARD ADVINCULA, petitioner, vs. THE
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND
MANAGEMENT, COMMISSION ON AUDIT and HON. JOVITO O.
CLAUDIO, respondents.
DECISION
MENDOZA, J.:
These are petitions arising from the proceedings initiated by the
Preparatory Recall Assembly of Pasay City (PRA) in the Commission on
Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE
PREPARATORY RECALL ASSEMBLY RESOLUTION NO. 01, S-1999
ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO
CLAUDIO OF PASAY CITY. G.R. No. 140560 is a petition
for certiorari and prohibition, seeking the nullification of the
resolution,[1] dated October 18, 1999, of the COMELEC giving due
course to the petition for the recall of petitioner Jovito O. Claudio as
mayor of Pasay City. On the other hand, G.R. No. 140714 is a petition
for mandamus filed by the PRA, represented by its Chair, Richard
Advincula, to compel the COMELEC to set the date for the holding of
recall elections in Pasay City pursuant to the aforecited resolution of
the COMELEC.
The facts are as follows:
Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected
mayor of Pasay City in the May 11, 1998 elections. He assumed office
on July 1, 1998.
Sometime during the second week of May 1999, the chairs of several
barangays in Pasay City gathered to discuss the possibility of filing a
petition for recall against Mayor Claudio for loss of confidence. On May
19, 1999, at the residence of barangay chair Benjamin Lim, Jr. in
Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad
hoc committee for the purpose of convening the PRA. Richard
Advincula, private respondent in G.R. No. 140560 and petitioner in G.R.
No. 140714, was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay
chairs, kagawads, and sangguniang kabataan chairs of Pasay City,
adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE
THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY CITY FOR
LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as
chair of the PRA, invited the Mayor, Vice-Mayor, Station Commander,
and thirteen (13) Councilors of Pasay City to witness the formal
submission to the Office of the Election Officer on July 2, 1999 of the
petition for recall.
As scheduled, the petition for recall was filed on July 2, 1999,
accompanied by an affidavit of service of the petition on the Office of
the City Mayor. Pursuant to the rules of the COMELEC, copies of the
petition were posted on the bulletin boards of the local COMELEC
office, the City Hall, the Police Department, the public market at
Libertad St. and Taft Avenue, and at the entrance of the Sta. Clara
Church on P. Burgos St., all in Pasay City. Subsequently, a verification
of the authenticity of the signatures on the resolution was conducted
by Ligaya Salayon, the election officer for Pasay City designated by the
COMELEC.
Oppositions to the petition were filed by petitioner Jovito O. Claudio,
Rev. Ronald Langub, and Roberto L. Angeles, alleging procedural and
substantive defects in the petition, to wit: (1) the signatures affixed to
the resolution were actually meant to show attendance at the PRA
meeting; (2) most of the signatories were only representatives of the
parties concerned who were sent there merely to observe the
proceedings; (3) the convening of the PRA took place within the one-
year prohibited period; (4) the election case,[2] filed by Wenceslao
Trinidad in this Court, seeking the annulment of the proclamation of
petitioner Claudio as mayor of Pasay City, should first be decided
before recall proceedings against petitioner could be filed; and (5) the
recall resolution failed to obtain the majority of all the members of the
PRA, considering that 10 were actually double entries, 14 were not duly
accredited members of the barangays, 40 sangguniang kabataan
officials had withdrawn their support, and 60 barangay chairs executed
affidavits of retraction.
In its resolution of October 18, 1999, the COMELEC granted the
petition for recall and dismissed the oppositions against it. On the issue
of whether the PRA was constituted by a majority of its members, the
COMELEC held that the 1,073 members who attended the May 29,
1999 meeting were more than necessary to constitute the PRA,
considering that its records showed the total membership of the PRA
was 1,790, while the statistics of the Department of Interior and Local
Government (DILG) showed that the total membership of the PRA was
1,876. In either case, since only a majority is required to constitute the
PRA, clearly, a majority had been obtained in support of the recall
resolution. Based on the verification made by election officer Ligaya
Salayon, the COMELEC found the signatures of 958 members of the
PRA sufficient. On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question which must first
be decided before any recall election could be held, the COMELEC ruled
that it was not and that petitioner was merely using the pendency of
the case to delay the recall proceedings. Finally, on whether the
petition for recall violated the bar on recall within one year from the
elective official's assumption of office, the COMELEC ruled in the
negative, holding that recall is a process which starts with the filing of
the petition for recall. Since the petition was filed on July 2, 1999,
exactly one year and a day after petitioner Claudio's assumption of
office, it was held that the petition was filed on time.
Hence, these petitions. Oral arguments were held in these cases in
Baguio City on April 4, 2000, after which the Court, by the vote of 8 to
6 of its members,[3] resolved to dismiss the petition in G.R. No. 140560
for lack of showing that the COMELEC committed a grave abuse of
discretion. On the other hand, the Court unanimously dismissed the
petition in G.R. No. 140714 on the ground that the issue raised therein
had become moot and academic.
We now proceed to explain the grounds for our resolution.
In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the
date of the recall elections in Pasay City on April 15, 2000.
Consequently, the petition for mandamus in G.R. No. 140714 to
compel the COMELEC to fix a date for the recall elections in Pasay City
is no longer tenable. We are thus left with only petitioner Claudio's
action for certiorari and prohibition.
The bone of contention in this case is 74 of the Local Government Code
(LCG)[4] which provides:
 Limitations on Recall. - (a) Any elective local official may be the
subject of a recall election only once during his term of office for
loss of confidence.
(b) No recall shall take place within one (1) year from the date of
the official's assumption to office or one (1) year immediately
preceding a regular local election.
As defined at the hearing of these cases on April 4, 2000, the issues are:
WHETHER, under Section 74 of the Local Government Code of
1991 (R.A. No. 7160) ...
A. The word "recall" in paragraph (b) covers a process which
includes the convening of the Preparatory Recall Assembly and its
approval of the recall resolution.
B. The term "regular local election" in the last clause of paragraph
(b) includes the election period for that regular election or simply
the date of such election.
On Whether the Word "Recall" in Paragraph (b) of 74 of the Local
Government Code Includes the Convening of the Preparatory Recall
Assembly and the Filing by it of a Recall Resolution
Petitioner contends that the term "recall" in 74(b) refers to a process,
in contrast to the term "recall election" found in 74(a), which obviously
refers to an election. He claims that "when several barangay chairmen
met and convened on May 19, 1999 and unanimously resolved to
initiate the recall, followed by the taking of votes by the PRA on May
29, 1999 for the purpose of adopting a resolution to initiate the recall
of Jovito Claudio as Mayor of Pasay City for loss of confidence, the
process of recall began" and, since May 29, 1999 was less than a year
after he had assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the recall petition
on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process of recall
starts with the filing of the petition for recall and ends with the conduct
of the recall election, and that, since the petition for recall in this case
was filed on July 2, 1999, exactly one year and a day after petitioner's
assumption of office, the recall was validly initiated outside the one-
year prohibited period.
Both petitioner Claudio and the COMELEC thus agree that the term
"recall" as used in 74 refers to a process. They disagree only as to when
the process starts for purposes of the one-year limitation in paragraph
(b) of 74.
We can agree that recall is a process which begins with the convening
of the preparatory, recall assembly or the gathering of the signatures
at least 25% of the registered voters of a local government unit, and
then proceeds to the filing of a recall resolution or petition with the
COMELEC, the verification of such resolution or petition, the fixing of
the date of the recall election, and the holding of the election on the
scheduled date.[5] However, as used in paragraph (b) of 74, "recall"
refers to the election itself by means of which voters decide whether
they should retain their local official or elect his replacement. Several
reasons can be cited in support of this conclusion.
First, 74 deals with restrictions on the power of recall. It is in fact
entitled "Limitations on Recall." On the other hand, 69 provides that
"the power of recall ...shall be exercised by the registered voters of a
local government unit to which the local elective official belongs."
Since the power vested on the electorate is not the power to initiate
recall proceedings[6] but the power to elect an official into office, the
limitations in 74 cannot be deemed to apply to the entire recall
proceedings. In other words, the term "recall" in paragraph (b) refers
only to the recall election, excluding the convening of the PRA and the
filing of a petition for recall with the COMELEC, or the gathering of the
signatures of at least 25 % of the voters for a petition for recall.
Thus, there may be several PRAs held (as in the case of Bataan Province
in 1993) or petitions for recall filed with the COMELEC - there is no legal
limit on the number of times such processes may be resorted to. These
are merely preliminary steps for the purpose of initiating a recall. The
limitations in 74 apply only to the exercise of the power of recall which
is vested in the registered voters. It is this - and not merely, the
preliminary steps required to be taken to initiate a recall - which
paragraph (b) of 74 seeks to limit by providing that no recall shall take
place within one year from the date of assumption of office of an
elective local official.
Indeed, this is the thrust of the ruling in Garcia v. COMELEC[7] where
two objections were raised against the legality of PRAs: (1) that even
the power to initiate recall proceedings is the sole prerogative of the
electorate which cannot be delegated to PRAs, and (2) that by vesting
this power in a PRA, the law in effect unconstitutionally authorizes it to
shorten the term of office of incumbent elective local officials. Both
objections were dismissed on the ground that the holding of a PRA is
not the recall itself. With respect to the first objection, it was held that
it is the power to recall and not the power to initiate recall that the
Constitution gave to the people. With respect to the second objection,
it was held that a recall resolution "merely sets the stage for the official
concerned before the tribunal of the people so he can justify why he
should be allowed to continue in office. [But until] the people render
their sovereign judgment, the official concerned remains in office . . .”
If these preliminary proceedings do not produce a decision by the
electorate on whether the local official concerned continues to enjoy
the confidence of the people, then, the prohibition in paragraph (b)
against the holding of a recall, except one year after the official's
assumption of office, cannot apply to such proceedings.
The second reason why the term "recall" in paragraph (b) refers to
recall election is to be found in the purpose of the limitation itself.
There are two limitations in paragraph (b) on the holding of recalls: (1)
that no recall shall take place within one year from the date of
assumption of office of the official concerned, and (2) that no recall
shall take place within one year immediately preceding a regular local
election.
The purpose of the first limitation is to provide a reasonable basis for
judging the performance of an elective local official. In
the Bower case[8] cited by this Court in Angobung v. COMELEC,[9] it was
held that "The only logical reason which we can ascribe for requiring
the electors to wait one year before petitioning for a recall election is
to prevent premature action on their part in voting to remove a newly
elected official before having had sufficient time to evaluate the
soundness of his policies and decisions." The one-year limitation was
reckoned as of the filing of a petition for recall because the Municipal
Code involved in that case expressly provided that "no removal petition
shall be filed against any officer or until he has actually held office for
at least twelve months." But however the period of prohibition is
determined, the principle announced is that the purpose of the
limitation is to provide a reasonable basis for evaluating the
performance of an elective local official. Hence, in this case, as long as
the election is held outside the one-year period, the preliminary
proceedings to initiate a recall can be held even before the end of the
first year in office of a local official.
It cannot be argued that to allow recall proceedings to be initiated
before the official concerned has been in office for one-year would be
to allow him to be judged without sufficient basis. As already stated, it
is not the holding of PRA nor the adoption of recall resolutions that
produces a judgment on the performance of the official concerned; it
is the vote of the electorate in the Election that does. Therefore, as
long as the recall election is not held before the official concerned has
completed one year in office, he will not be judged on his performance
prematurely.
Third, to construe the term "recall" in paragraph (b) as including the
convening of the PRA for the purpose of discussing the performance in
office of elective local officials would be to unduly restrict the
constitutional right of speech and of assembly of its members. The
people cannot just be asked on the day of the election to decide on the
performance of their officials. The crystallization and formation of an
informed public opinion takes time. To hold, therefore, that the first
limitation in paragraph (b) includes the holding of assemblies for the
exchange of ideas and opinions among citizens is to unduly curtail one
of the most cherished rights in a free society. Indeed, it is wrong to
assume that such assemblies will always eventuate in a recall election.
To the contrary, they may result in the expression of confidence in the
incumbent.
Our esteemed colleague Justice Puno says in his dissent that the
purpose of the one-year period in paragraph (b) is to provide the local
official concerned a "period of repose" during which "[his] attention
should not be distracted by any impediment, especially by disturbance
due to political partisanship." Unfortunately, the law cannot really
provide for a period of honeymoon or moratorium in politics. From the
day an elective official assumes office, his acts become subject to
scrutiny and criticism, and it is not always easy to determine when
criticism of his performance is politically motivated and when it is not.
The only safeguard against the baneful and enervating effects of
partisan politics is the good sense and self restraint of the people and
its leaders against such shortcomings of our political system. A respite
from partisan politics may, have the incidental effect of providing
respite from partisanship, but that is not really the purpose of the
limitation on recall under the law. The limitation is only intended to
provide a sufficient basis for evaluating and judging the performance
of an elected local official.
In any event, it is argued that the judgments of PRAs are not "as
politically unassailable as recalls initiated directly by the people."
Justice Puno cites the "embarrassing repudiation by the people of
[Kaloocan City's] Preparatory Recall Assembly" when, instead of
ousting Mayor Rey Malonzo, they reelected him.
Two points may be made against this argument.
One is that it is no disparagement of the PRA that in the ensuing
election the local official whose recall is sought is actually reelected.
Laws converting municipalities into cities and providing for the holding
of plebiscites during which the question of cityhood is submitted to the
people for their approval are not always approved by the people. Yet,
no one can say that Congress is not a good judge of the will of the
voters in the locality. In the case of recall elections in Kaloocan City,
had it been shown that the PRA was resorted to only because those
behind the move to oust the incumbent mayor failed to obtain the
signatures of 25% of the voters of that city to a petition for his recall,
there may be some plausibility for the claim that PRAs are not as good
a gauge of the people's will as are the 25 % of the voters.
Indeed, recalls initiated directly by 25% of the registered voters of a
local government unit cannot be more representative of the
sentiments of the people than those initiated by PRAs whose members
represent the entire electorate in the local government unit. Voters
who directly initiate recalls are just as vulnerable to political
maneuverings or manipulations as are those composing PRAs.
The other point regarding Justice Punos claim is that the question here
is not whether recalls initiated by 25% of the voters are better. The
issue is whether the one-year period of limitation in paragraph (b)
includes the convening of the PRA. Given that question, will convening
the PRA outside this period make it any more representative of the
people, as the petition filed by 25 % of the registered voters is claimed
to be?
To sum up, the term "recall" in paragraph (b) refers to the recall
election and not to the preliminary proceedings to initiate recall -
1. Because 74 speaks of limitations on "recall" which, according to
69, is a power which shall be exercised by the registered voters of
a local government unit. Since the voters do not exercise such
right except in an election, it is clear that the initiation of recall
proceedings is not prohibited within the one-year period provided
in paragraph (b);
2. Because the purpose of the first limitation in paragraph (b) is to
provide voters a sufficient basis for judging an elective local
official, and final judging is not done until the day of the election;
and
3. Because to construe the limitation in paragraph (b) as including
the initiation of recall proceedings would unduly curtail freedom
of speech and of assembly guaranteed in the Constitution.
As the recall election in Pasay City is set on April 15, 2000, more than
one year after petitioner assumed office as mayor of that city, we hold
that there is no bar to its holding on that date.
On Whether the Phrase "Regular Local Election" in the Same
Paragraph (b) of 74 of the Local Government Code includes the
Election Period for that Regular Election or Simply the Date of Such
Election
Petitioner contends, however, that the date set by the COMELEC for
the recall election is within the second period of prohibition in
paragraph (b). He argues that the phrase "regular local elections" in
paragraph (b) does not only mean "the day of the regular local
election" which, for the year 2001 is May 14, but the election period as
well, which is normally at least forty five (45) days immediately before
the day of the election. Hence, he contends that beginning March 30,
2000, no recall election may be held.
This contention is untenable.
The law is unambiguous in providing that "[n]o recall shall take place
within . . . one (1) year immediately preceding a regular local election."
Had Congress intended this limitation to refer to the campaign period,
which period is defined in the Omnibus Election Code,[10] it could have
expressly said so.
Moreover, petitioner's interpretation would severely limit the period
during which a recall election may be held. Actually, because no recall
election may be held until one year after the assumption of office of an
elective local official, presumably on June 30 following his election, the
free period is only the period from July 1 of the following year to about
the middle of May of the succeeding year. This is a period of only nine
months and 15 days, more or less. To construe the second limitation in
paragraph (b) as including the campaign period would reduce this
period to eight months. Such an interpretation must be rejected,
because it would devitalize the right of recall which is designed to make
local government units" more responsive and accountable."
Indeed, there is a distinction between election period and campaign
period. Under the Omnibus Election Code,[11] unless otherwise fixed by
the COMELEC, the election period commences ninety (90) days before
the day of the election and ends thirty (30) days thereafter. Thus, to
follow petitioner's interpretation that the second limitation in
paragraph (b) includes the "election period" would emasculate even
more a vital right of the people.
To recapitulate the discussion in parts 1 and 2, 74 imposes limitations
on the holding of recall elections. First, paragraph (a) prohibits the
holding of such election more than once during the term of office of an
elective local official. Second, paragraph (b) prohibits the holding of
such election within one year from the date the official assumed office.
And third, paragraph (b) prohibits the holding of a recall election within
one year immediately preceding a regular local election. As succinctly
stated in Paras v. COMELEC,[12] "[p]aragraph (b) construed together
with paragraph (a) merely designates the period when such elective
local official may be subject to recall election, that is, during the second
year of office."
On Whether the Recall RESOLUTION was Signed by a Majority of the
PRA and Duly Verified
Petitioner alleges other grounds for seeking the annulment of the
resolution of the COMELEC ordering the holding of a recall election. He
contends that a majority of the signatures of the members of the PRA
was not obtained because 74 members did not really sign the recall
resolution. According to petitioner, the 74 merely signed their names
on pages 94-104 of the resolution to signify their attendance and not
their concurrence. Petitioner claims that this is shown by the word
"Attendance" written by hand at the top of the page on which the
signatures of the 74 begin.
This contention has no basis. To be sure, this claim is being raised for
the first time in this case. It was not raised before the COMELEC, in
which the claim made by petitioner was that some of the names in the
petition were double entries, that some members had withdrawn their
support for the petition, and that Wenceslao Trinidad's pending
election protest was a prejudicial question which must first be resolved
before the petition for recall could be given due course. The order of
the COMELEC embodying the stipulations of the parties and defining
the issues to be resolved does not include the issue now being raised
by petitioner.
Although the word "Attendance" appears at the top of the page, it is
apparent that it was written by mistake because it was crossed out by
two parallel lines drawn across it. Apparently, it was mistaken for the
attendance sheet which is a separate document. It is absurd to believe
that the 74 members of the PRA who signed the recall resolution
signified their attendance at the meeting twice. It is more probable to
believe that they signed pages 94-104 to signify their concurrence in
the recall resolution of which the pages in question are part.
The other point raised by petitioner is that the recall petition filed in
the COMELEC was not duly verified, because Atty. Nelson Ng, who
notarized it, is not commissioned as notary public for Pasay City but for
Makati City. As in the case of the first claim, this issue was not raised
before the COMELEC itself. It cannot, therefore, be raised now.
WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the
petition in G.R. No. 140714 is DISMISSED for having been rendered
moot and academic.
G.R. No. 94010
December 2, 1991
FELIPE EVARDONE, petitioner, vs. COMMISSION ON ELECTIONS,
ALEXANDER APELADO, VICTORINO E. ACLAN and NOEL A. NIVAL,
respondents.
G.R. No. 95063
December 2, 1991
ALEXANDER R. APELADO, VICTORINO E. ACLAN and NOEL A.
NIVAL, petitioners, vs. COMMISSION ON ELECTIONS and MAYOR
FELIPE EVARDONE, respondents.
PADILLA, J.:
These two (2) consolidated petitions have their origin in en
banc Resolution No. 90-0557 issued by the respondent Commission on
Elections (COMELEC) dated 20 June 1990 which approved the
recommendation of the Election Registrar of Sulat, Eastern Samar to
hold and conduct the signing of the petition for recall of the incumbent
Mayor of Sulat, Eastern Samar, on 14 July 1990.
G.R. No. 94010 is a petition for prohibition with an urgent prayer for
immediate issuance of a restraining order and/or writ of preliminary
injunction to restrain the holding of the signing of the petition for recall
on 14 July 1990.
G.R. No. 95063 is a petition for review on certiorari which seeks to set
aside en banc Resolution No. 90-0660 of the respondent COMELEC
nullifying the signing process held on 14 July 1990 in Sulat, Eastern
Samar for the recall of Mayor Evardone of said municipality and en
banc Resolution No. 90-0777 denying petitioners' motion for
reconsideration, on the basis of the temporary restraining order issued
by this Court on 12 July 1990 in G.R. No. 94010.
Felipe Evardone (hereinafter referred to as Evardone) is the mayor of
the Municipality of Sulat, Eastern Samar, having been elected to the
position during the 1988 local elections. He assumed office
immediately after proclamation.
On 14 February 1990, Alexander R. Apelado, Victozino E. Aclan and
Noel A. Nival (hereinafter referred to as Apelado, et al.) filed a petition
for the recall of Evardo
e with the Office of the Local Election Registrar, Municipality of Sulat.
In a meeting held on 20 June 1990, the respondent COMELEC issued
Resolution No. 90-0557, approving the recommendation of Mr.
Vedasto B. Sumbilla, Election Registrar of Sulat, Eastern Samar, to hold
on 14 July 1990 the signing of the petition for recall against incumbent
Mayor Evardone of the said Municipality.
On 10 July 1990, Evardone filed before this Court a petition for
prohibition with urgent prayer for immediate issuance of restraining
order and/or writ of preliminary injunction, which was docketed as
G.R. No. 94010.
On 12 July 1990, this Court resolved to issue a temporary restraining
order (TRO), effective immediately and continuing until further orders
from the Court, ordering the respondents to cease and desist from
holding the signing of the petition for recall on 14 July 1990, pursuant
to respondent COMELEC's Resolution No. 2272 dated 23 May 1990.
On the same day (12 July 1990), the notice of TRO was received by the
Central Office of the respondent COMELEC. But it was only on 15 July
1990 that the field agent of the respondent COMELEC received the
telegraphic notice of the TRO—a day after the completion of the
signing process sought to be temporarily stopped by the TRO.
In an en banc resolution (No. 90-0660) dated 26 July 1990, the
respondent COMELEC nullified the signing process held in Sulat,
Eastern Samar for being violative of the order (the TRO) of this Court
in G.R. No. 94010. Apelado, et al., filed a motion for reconsideration
and on 29 August 1990, the respondent COMELEC denied said motion
holding that:
. . . The critical date to consider is the service or notice of the
Restraining Order on 12 July 1990 upon the principal i.e. the
Commission on Election, and not upon its agent in the field. 1
Hence, the present petition for review on certiorari in G.R. No. 95063
which seeks to set aside en bancResolution No. 90-0660 of respondent
COMELEC.
In G.R. No. 94010, Evardone contends that:
I. The COMELEC committed grave abuse of discretion in approving the
recommendation of the Election Registrar of Sulat, Eastern Samar to
hold the signing of the petition for recall without giving petitioner his
day in court.
II. The COMELEC likewise committed grave abuse of discretion
amounting to lack or excess of jurisdiction in promulgating Resolution
No. 2272 on May 22, 1990 which is null and void for being
unconstitutional.
In G.R. No. 95063, Apelado, et al., raises the issue of whether or not
the signing process of the petition for recall held on 14 July 1990 has
been rendered nugatory by the TRO issued by this court in G.R. No.
94010 dated 12 July 1990 but received by the COMELEC field agent
only on 15 July 1990.
The principal issue for resolution by the Court is the constitutionality
of Resolution No. 2272 promulgated by respondent COMELEC on 23
May 1990 by virtue of its powers under the Constitution and Batas
Pambansa Blg. 337 (Local Government Code). The resolution embodies
the general rules and regulations on the recall of elective provincial,
city and municipal officials.
Evardone maintains that Article X, Section 3 of the 1987 Constitution
repealed Batas Pambansa Blg. 337 in favor of one to be enacted by
Congress. Said Section 3 provides:
Sec. 3. The Congress shall enact a local government code shall
provide for a more responsive and accountable local government
structure instituted through a system of decentralization with
effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers,
responsibilities and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and
functions and duties local officials, and all other matters relating
to the organization operation of the local units.
Since there was, during the period material to this case, no local
government code enacted by Congress after the effectivity of the 1987
Constitution nor any law for that matter on the subject of recall of
elected government officials, Evardone contends that there is no basis
for COMELEC Resolution No. 2272 and that the recall proceedings in
the case at bar is premature.
The respondent COMELEC, in its Comment (G.R. No. 94010) avers that:
The constitutional provision does not refer only to a local
government code which is in futurum but also in esse. It merely
sets forth the guidelines which Congress will consider in
amending the provisions of the present Local Government Code.
Pending the enactment of the amendatory law, the existing Local
Government Code remains operative. The adoption of the 1987
Constitution did not abrogate the provisions of BP No. 337,
unless a certain provision thereof is clearly irreconciliable with
the provisions of the 1987 Constitution. In this case, Sections 54
to 59 of Batas Pambansa No. 337 are not inconsistent with the
provisions of the Constitution. Hence, they are operative.
We find the contention of the respondent COMELEC meritorious.
Article XVIII, Section 3 of the 1987 Constitution express provides that
all existing laws not inconsistent with the 1987 Constitution shall
remain operative, until amended, repealed or revoked. Republic Act
No. 7160 providing for the Local Government Code of 1991, approved
by the President on 10 October 1991, specifically repeals B.P. Blg. 337
as provided in Sec. 534, Title Four of said Act. But the Local
Government Code of 1991 will take effect only on 1 January 1992 and
therefore the old Local Government Code (B.P. Blg. 337) is still the law
applicable to the present case. Prior to the enactment of the new Local
Government Code, the effectiveness of B.P. Blg. 337 was expressly
recognized in the proceedings of the 1986 Constitutional Commission.
Thus—
MR. NOLLEDO. Besides, pending the enactment of a new Local
Government Code under the report of the Committee on
Amendments and Transitory Provisions, the former Local
Government Code, which is Batas Pambansa Blg. 337 shall
continue to be effective until repealed by the Congress of the
Philippines.
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the
mechanism for recall of local elective officials. Section 59 expressly
authorizes the respondent COMELEC to conduct and supervise the
process of and election on recall and in the exercise of such powers,
promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of
conducting elections for the recall of a local official. Any such election
shall be conducted in the manner and under the rules on special
elections, unless otherwise provided by law or rule of the
COMELEC. 5 Thus, pursuant to the rule-making power vested in
respondent COMELEC, it promulgated Resolution No. 2272 on 23 May
1990.
We therefore rule that Resolution No. 2272 promulgated by
respondent COMELEC is valid and constitutional. Consequently, the
respondent COMELEC had the authority to approve the petition for
recall and set the date for the signing of said petition.
The next issue for resolution is whether or not the TRO issued by this
Court rendered nugatory the signing process of the petition for recall
held pursuant to Resolution No. 2272.
In Governor Zosimo J. Paredes, et al. vs. Executive Secretary to the
President of the Philippines, et al., 6 this Court held:
. . . What is sought in this suit is to enjoin respondents particularly
respondent Commission from implementing Batas Pambansa Blg.
86, specifically "from conducting, holding and undertaking the
plebiscite provided for in said act." The petition was filed on
December 5, 1980. There was a plea for a restraining order, but
Proclamation No. 2034 fixing the date for such plebiscite on
December 6, 1980 had been issued as far as back as November 11,
1980. Due this delay in to this suit, attributable solely to
petitioners, there was no time even to consider such a plea. The
plebiscite was duly held. The certificate of canvass and
proclamation of the result disclosed that out of 2,409 total votes
 cast in such plebiscite, 2,368 votes were cast in favor of the
creation of the new municipality, which, according to the statute,
will be named municipality of Aguinaldo. There were only 40 votes
cast against. As a result, such municipality was created. There is
no turning back the clock. The moot and academic character of
this petition is thus apparent.
In the present case, the records show that Evardone knew of the Notice
of Recall filed by Apelado, et al. on or about 21 February 1990 as
evidenced by the Registry Return Receipt; yet, he was not vigilant in
following up and determining the outcome of such notice. Evardone
alleges that it was only on or about 3 July 1990 that he came to know
about the Resolution of respondent COMELEC setting the signing of the
petition for recall on 14 July 1990. But despite his urgent prayer for the
issuance of a TRO, Evardone filed the petition for prohibition only on
10 July 1990.
Indeed, this Court issued a TRO on 12 July 1990 but the signing of the
petition for recall took place just the same on the scheduled date
through no fault of the respondent COMELEC and Apelado, et al. The
signing process was undertaken by the constituents of the Municipality
of Sulat and its Election Registrar in good faith and without knowledge
of the TRO earlier issued by this Court. As attested by Election Registrar
Sumbilla, about 2,050 of the 6,090 registered voters of Sulat, Eastern
Samar or about 34% signed the petition for recall. As held in Parades
vs. Executive Secretary 7 there is no turning back the clock.
The right to recall is complementary to the right to elect or appoint. It
is included in the right of suffrage. It is based on the theory that the
electorate must maintain a direct and elastic control over public
functionaries. It is also predicated upon the idea that a public office is
"burdened" with public interests and that the representatives of the
people holding public offices are simply agents or servants of the
people with definite powers and specific duties to perform and to
follow if they wish to remain in their respective offices. 8
Whether or not the electorate of the Municipality of Sulat has lost
confidence in the incumbent mayor is a political question. It belongs to
the realm of politics where only the people are the judge. "Loss of
confidence is the formal withdrawal by an electorate of their trust in a
person's ability to discharge his office previously bestowed on him by
the same electorate. 10 The constituents have made a judgment and
their will to recall the incumbent mayor (Evardone) has already been
ascertained and must be afforded the highest respect. Thus, the
signing process held last 14 July 1990 in Sulat, Eastern Samar, for the
recall of Mayor Felipe P. Evardone of said municipality is valid and has
legal effect.
However, recall at this time is no longer possible because of the
limitation provided in Sec. 55 (2) of B.P. Blg, 337, which states:
Sec. 55. Who May Be Recalled; Ground for Recall; When Recall
May not be Held.— . . .
(2) No recall shall take place within two years from the date of the
official's assumption of office or one year immediately preceding
a regular local election.
The Constitution has mandated a synchronized national and local
election prior to 30 June 1992, or more specifically, as provided for in
Article XVIII, Sec. 5 — on the second Monday of May, 1992. 11 Thus, to
hold an election on recall approximately seven (7) months before the
regular local election will be violative of the above provisions of the
applicable Local Government Code (B.P. Blg. 337)
ACCORDINGLY, both petitions are DISMISSED for having become moot
and academic.
G.R. No. 126576
March 5, 1997
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON
ELECTIONS EN BANC, and ATTY. AURORA S. DE ALBAN, respondents.
DECISION
HERMOSISIMA, JR., J.:
Before us on certiorari is a petition seeking to annul and set aside
Resolution No. 96-2951[1] dated October 15, 1996 issued by public
respondent Commission on Elections (COMELEC) which (1) approved
the Petition for Recall filed and signed by only one registered voter -
herein private respondent Ma. Aurora Siccuan de Alban, against
petitioner - incumbent Mayor Ricardo Angobung; (2) set the further
signing of said petition by the rest of the registered voters of Tumauini,
Isabela on November 9, 1996; and (3) in case the said petition is signed
by at least 25% of the total number of registered votes in Tumauni,
Isabela, scheduled the recall election on December 2, 1996.
On October 25, 1996, this court issued a Temporary
Restraining Order[2] enjoining public respondent COMELEC from
implementing and enforcing Resolution No. 96-2951.
The facts of this case are not disputed.
Petitioner won as the duly elected Mayor of the Municipality of
Tumauini, Isabela in the local elections of 1995. He garnered 55% of all
the votes cast. Private respondent de Alban was also a candidate in
said elections.
Sometime in early September, 1996, private respondent filed with the
Local Election Registrar in Tumauni, Isabela, a Petition for
Recall[3] against petitioner. On September 12, 1996, petitioner
received a copy of this petition. Subsequently said petition was
forwarded to the Regional Office in Tuguegarao, Cagayan and then to
the main office of COMELEC in Manila, for approval.
Acting on the petition, Deputy Executive Director for Operations Pio
Jose Joson submitted to the COMELEC En Banc, a
Memorandum[4] dated October 8, 1996 recommending approval of the
petition for recall filed by private respondent and its signing by other
qualified voters in order to garner at least 25% of the total number of
registered voters as required by Section 69(d) of the Local Government
code of 1991.
In turn acting on the abovementioned Memorandum of Deputy
Executive Director Joson, the COMELEC en banc issued the herein
assailed Resolution No. 96-2951.
Petitioner now attacks the aforementioned resolution as being
unconstitutional and therefore invalid, on two main grounds: (1) that
the resolution approved the Petition for Recall albeit same was signed
by just one person in violation of the statutory 25% minimum
requirement as to the number of signatures supporting and petition
for recall; and (2) that the resolution scheduled the recall election
within one (1) year from the May 12, 1997 Barangay Elections.
In at least three (3) urgent motions, private respondent has sought the
lifting of the Temporary Retraining Order issued last October 25, 1996
on the twin grounds (1) that the issue of the one-year bar on recall
elections has been resolved in the case of Paras v.
COMELEC[5] promulgated on November 4, 1996; and (2) that the
procedure prescribed by Resolution No. 96-2951 involving petition
signing upon initiation of even just one person, is no different from that
provided for in COMELEC Resolution No. 2272 which was upheld as
constitutional in the 1991 cases of Sanches, et al. v.
COMELEC[6] and Evardone v. COMELEC[7]
Private respondent is correct in saying that in the light of our
pronouncement in Paras v. COMELEC[8], the recall election scheduled
on December 2, 1996 in the instant case cannot be said to be barred
by the May 12, 1997 Barangay Elections. In construing the meaning of
the term, regular local election in Section 74 of the Local Government
Code of 1991 which provides that no recall shall take place within one
(1) year x x x immediately preceding a regular local election, we ruled
that for the time bar to apply, the approaching regular local election
must be one where the position of the official to be recalled, is to be
actually contested and filled by the electorate. Thus, in the instant case
where the time bar is being invoked by petitioner mayor in view of the
approaching Barangay Elections in May 1997, there can be no
application of the one year bar, hence no invalidity may be ascribed to
Resolution No. 96-2951 on this ground.
We, however, find petitioners second ground to be impressed with
merit.
Before the enactment of the 1991 Local Government Code, the recall
of public officials voted for in popular elections, was governed by
Sections 54 to 59 of Batas Pambansa Blg. 337, otherwise known as the
Local Government Code of 1983. Pursuant to Section 59 thereof, which
states that the Commission on Elections shall conduct and supervise
the process of and election on recall x x x and, in pursuance thereof,
promulgate the necessary rules and regulations, the COMELEC
promulgated Resolution No. 2272 Sections 4 and 5 of which provide as
follows:
Sec. 4. How instituted. - The recall of an elective provincial, city or
municipal official shall be commenced by the filing of a duly
verified notice of recall containing the address and precinct
number of the voter filing the notice, and the name of the official
sought to be recalled, his position, and the ground(s) for the
recall. Each notice shall refer to only one official.
The notice shall be filed in triplicate with the local Election Registrar if
the recall involves a city or municipal official, or with the Provincial
Election Supervisor if it involves a provincial official, one copy of which
shall be posted upon receipt thereof on the bulletin board in the
city/municipal hall.
If the recall involves a provincial official, two additional copies of the
notice shall also be furnished by the voter filing the notice to the
Election Registrar of each city and municipality in the province, one
copy of which shall be posted upon receipt thereof on the bulletin
board in the city/municipal hall.
In every case, the voter filing the notice of recall shall furnish a copy
thereof to the official sought to be recalled, the Commission on
Elections in Manila and the Election Records and Statistics Department
of the Commission.
Section 5. Schedule and place of signing of the petition. - The Election
Registrar shall submit to the Commission on Elections, not later than
ten days from filing of the notice of recall, the schedule of the signing
of the petition to recall for approval and funding x x x.[9]
In the case of Sanchez v. COMELEC[10], petitioners therein contended
that the aforegoing Resolution No. 2272 is unconstitutional there being
no legislative enactment yet on [the] mechanism of recall as mandated
under Sec. 3, Art. X of the Constitution[11] It is true, as private
respondent asseverates, that we upheld the constitutionality
of Resolution No. 2272, but not because we found nothing
constitutionally infirm about the procedure of allowing the initiatory
recall petition to be filed by only one person. The issue in Sanchez was
not this questioned procedure but the legal basis for the exercise by
the COMELEC of its rule-making power in the alleged absence of a grant
of such power by an enabling statute on recall. Thus we ruled:
While it is true that Sec. 3, Art. X of the Constitution mandates the
Congress to enact a local government code providing among
others for an effective mechanism of recall, nothing in said
provision could be inferred the repeal of BP 337, the local
government code existing prior to the adoption of the 1987
Constitution. Sec. 3, Art. X of the Constitution merely provides
that the local government code to be enacted by Congress shall
be more responsive than the one existing at present. Until such
time that a more responsive and effective local government code
is enacted, the present code shall remain in full force and
effect. Thus, under Sec. 3, Art. XVIII, (a)ll existing laws, decrees,
executive orders, proclamations, letters of instructions and other
executive issuances not inconsistent with this Constitution shall
remain operative until amended, repealed, or revoked.
Considering that the present local government code (BP 337) is still in
effect, respondent COMELECs promulgation of Resolution No. 2272 is
therefore valid and constitutional, the same having been issued
pursuant to Sec. 59 of BP 337. It reads:
Sec. 59. Supervision by the Commission on Elections. - The
Commission on Elections shall conduct and supervise the process
of and election on recall x x x and, in pursuance thereof,
promulgate the necessary rules and regulations.[12]
We reiterated the foregoing ruling in the case of Evardone v.
COMELEC[13] in this wise:
Article XVIII, Section 3 of the 1987 Constitution expressly provides
that all existing laws not inconsistent with the 1987 Constitution
shall remain operative, until amended, repealed or
revoked.Republic Act No. 7160 providing for the Local
Government Code of 1991, approved by the President on 10
October 1991, specifically repeals B.P. Blg. 337 as provided in Sec.
534, Title Four of said Act. But the Local Government Code of 1991
will take effect only on 1 January 1992 and therefore the old Local
Government Code (B.P. Blg. 337) is still the law applicable to the
present case.
xxx
Chapter (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism
for recall of local elective officials. Section 59 expressly authorizes the
respondent COMELEC to conduct and supervise the process of and
election on recall and in the exercise of such powers, promulgate the
necessary rules and regulations. x x x Thus, pursuant to the rule-making
power vested in respondent COMELEC, it promulgated Resolution No.
2272 on 23 May 1990.
We therefore rule that Resolution No. 2272 promulgated by
respondent COMELEC is valid and constitutional. Consequently, the
respondent COMELEC had the authority to approve the petition for
recall and set the date for the signing of said petition.[14]
In Sanchez and Evardone, the COMELEC prescribed procedure of (1)
allowing the recall petition to be filed by at least one person or by less
than 25% of the total number of registered voters and then (2) inviting
voters to sign said petition on a date set for that purpose, was never
put to issue. As this is the crux of the present constitutional challenge,
the proper time has come for this court to issue a definitive ruling on
the matter.
Apropos for starters is the following chronicle of the evolution of the
mechanism of recall as a mode of removing a public officer by direction
action of the people, essayed in the case of Garcia v. COMELEC:[15]
Recall is a mode of removal of a public officer by the people before the
end of his term of office. The peoples prerogative to remove a public
officer is an incident of their sovereign power and in the absence of
constitutional restraint, the power is implied in all governmental
operations. Such power has been held to be indispensable for the
proper administration of public affairs. Not undeservedly, it is
frequently described as a fundamental right of the people in a
representative democracy.
Recall as a mode of removal of elective local officials made its maiden
appearance in section 2 of Article XI entitled Local Government, viz:
SEC. 2. The Batasang Pambansa shall enact a local government
code which may not thereafter be amended except by a majority
vote of all its Members, defining a more responsive and
accountable local government structure with an effective system
of recall x x x
The Batasang Pambansa then enacted BP 337 entitled, The Local
Government Code of 1983 Section 54 of its Chapter 3 provided only
one mode of initiating the recall elections of local election officials, i.e.,
by petition of at least twenty-five percent (25%) of the total number of
registered voters in the local government unit concerned x x x.
Our legal history does not reveal any instance when this power of recall
as provided by BP 337 was exercised by our people.
In February , 1986, however, our people more than exercised their
right of recall for they resorted to revolution and they booted out of
office the highest elective officials of the land. The successful use of
people power to remove public officials who have forfeited the trust
of the electorate led to its firm institutionalization of the 1987
Constitution. Its Articles XIII expressly recognized the Role and Rights
of Peoples Organizations x x x.
Section 3 of its Article X also reiterated the mandate for Congress to
enact a local government code which shall provide for a more
responsive and accountable local government structure instituted
through a system of decentralization with effective mechanisms of
recall, initiative and referendum x x x. In response to this constitutional
call, Congress enacted R.A. 7160, otherwise known as the Local
Government Code of 1991, which took effect on January 1, 1992.[16]
Section 69(d) of the Local Government Code of 1991 expressly provides
that recall of any elective x x x municipal x x x official may also be validly
initiated upon petition of at least twenty-five percent (25%) of the total
number of registered voters in the local government unit concerned
during the election in which the local official sought to be recalled was
elected. The law is plain and unequivocal as to what initiates recall
proceedings: only a petition of at least 25% of the total number of
registered voters, may validly initiate recall proceedings. We take
careful note of the phrase, petition of at least twenty-five percent
(25%) and point out that the law does not state that the petition must
be signed by at least 25% of the registered voters; rather, the petition
must be of or by, at least 25% of the registered voters, i.e., the petition
must be filed, not by one person only, but by at least 25% of the total
number of registered voters. This is understandable, since the signing
of the petition is statutorily required to be undertaken before the
election registrar or his representative, and in the presence of a
representative of the official sought to be recalled, and in public place
in the x x x municipality x x x.[17] Hence, while the initiatory recall
petition may not yet contain the signatures of at least 25% of the total
number of registered voters, the petition must contain the names of at
least 25% of the total number of registered voters in whose behalf only
one person may sign the petition in the meantime.
We cannot sanction the procedure of the filing of the recall petition by
a number of people less than the foregoing 25% statutory
requirement, much less, the filing thereof by just one person, as in the
instant case, since this is indubitably violative of clear and categorical
provisions of subsisting law.
Our legislators did not peg the voter requirement at 25% out of caprice
or in a vacuum. They knew that this is the requirement under a
majority of the constitution and recall statutes in various American
states to the same extent that they were aware of the rationale
therefor. While recall was intended to be an effective and speedy
remedy to remove an official who is not giving satisfaction to the
electorate regardless of whether or not he is discharging his full duty
to the best of his ability and as his conscience dictates,[18] it is a power
granted to the people who, in concert, desire to change their leaders
for reasons only they, as a collective, can justify. In other words, recall
must be pursued by the people, not just by one disgruntled loser in the
elections or a small percentage of disenchanted electors. Otherwise,
its purposes as a direct remedy of the people shall be defeated by the
ill motives of a few among them whose selfish resort to recall would
destabilize the community and seriously disrupt the running of
government.
A scrutiny of the rationale underlying the time bar provisions and the
percentage of minimum voter requirement in American recall statutes,
unmistakably reveals the vigilance of lawmakers against the abuse of
the power of recall. For instance, the Supreme Court of Illinois held in
the case of In Re Bower[19] that:
[t]the only logical reasons which we can ascribe for requiring the
electors to wait one year before petitioning for a recall election is
to prevent premature action on their parting voting to remove a
newly elected official before having had sufficient time to
evaluate the soundness of his political policies and decisions. We
view the statutory provision requiring the number of petition
signers to equal at least 45% of the total votes case in the last
general election for mayor as a further attempt to insure that an
official will not have to defend his policies against frivolous attacks
launched by a small percentage of disenchanted electors.[20]
Along the same lines, the Supreme Court of Colorado held in the case
of Bernzen v. City of Boulder[21] that:
[t]he framers, by requiring that a recall petition contain the
signatures of at least 25% of all votes cast in the last election for
all candidates for the position which the person sought to be
recalled occupies, assured that a recall election will not be held in
response to the wishes of a small and unrepresentative
minority. However, once at least 25% of the electorate have
expressed their dissatisfaction, the constitution reserves the
recall power to the will of the electorate.[22]
And in the case of Wallace v. Tripp[23], the Supreme Court of Michigan,
echoed the foregoing posturings in this wise:
Much of what has been said to justify a limit upon recall clearly
not provided or contemplated by the Constitution has revealed
fears about an irresponsible electorate xxx. A much cited
Nebraska case pertaining to
a Nebraska recall statute provides some answers which are equal
ly applicable to the Michigan constitutional right of recall:
xxx Doubtless the provision requiring 30 per cent of the
electors to sign the petition before the council [is] compelled
to act was designed to avoid such a contingency. The
 legislature apparently assumed that nearly one-third of the
electorate would not entail upon the taxpayers the cost of an
election unless the charges made approved themselves to
their understanding and they were seriously dissatisfied with
the services of the incumbent of the office.[24]

In the instant case, this Court is confronted with a procedure that is

unabashedly repugnant to the applicable law and no less such to the
spirit underlying that law. Private respondent who is a lawyer, knows
that Section 69(d) of the Local Government Code plainly provides that
recall is validly initiated by a petition of 25% of the total number of
registered voters.Notwithstanding such awareness, private
respondent proceeded to file the petition for recall with only herself as
the filer and initiator. She claims in her petition that she has, together
with many others in Tumauini, Isabela, lost confidence in the
leadership of petitioner. But the petition does not bear the names of
all these other citizens of Tumauini who have reportedly also become
anxious to oust petitioner from the post of mayor. There is no doubt
that private respondent is truly earnest in her cause, and the very fact
that she affixed her name in the petition shows that she claims
responsibility for the seeming affront to petitioners continuance in
office. But the same cannot be said of all the other people whom
private respondent claims to have sentiments similar to hers. While
the people are vested with the power to recall their elected officials,
the same power is accompanied by the concomitant responsibility to
see through all the consequences of the exercise of such power,
including rising above anonymity, confronting the official sought to be
recalled, his family, his friends, and his supporters, and seeing the
recall election to its ultimate end. The procedure of allowing just one
person to file the initiatory recall petition and then setting a date for
the signing of the petition, which amounts to inviting and courting the
public which may have not, in the first place, even entertained any
displeasure in the performance of the official sought to be recalled, is
not only violative of statutory law but also tainted with an attempt to
go around the law. We can not and must not, under any and all
circumstances, countenance a circumvention of the explicit 25%
minimum voter requirement in the initiation of the recall process.

WHEREFORE, premises considered, the PETITION FOR CERTIORARI is

hereby GRANTED. COMELEC Resolution No. 96-2951 is hereby
DECLARED NULL and VOID and accordingly SET ASIDE.

The RESTRAINING ORDER heretofore issued is hereby made

permanent.

Costs against private respondent.