G.R. No.

111091 August 21, 1995

ENGINEER CLARO J. PRECLARO, petitioner,
vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J .:
On 14 June 1990, petitioner was charged before the Sandiganbayan with a violation of
Sec. 3(b) of R.A. No. 3019 as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act. The information against him read as follows:
That on or about June 8, 1990, or sometime prior thereto, in Quezon City,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, a public officer, being then the Project Manager/ Consultant of the
Chemical Mineral Division, Industrial Technology Development Institute,
Department of Science and Technology, a component of the Industrial
Development Institute (ITDI for brevity) which is an agency of the Department of
Science and Technology (DOST for brevity), wherein the Jaime Sta. Maria
Construction undertook the construction of the building in Bicutan, Taguig, Metro
Manila, with a total cost of SEVENTEEN MILLION SIX HUNDRED NINETY FIVE
THOUSAND PESOS (P17,695,000.00) jointly funded by the Philippine and
Japanese Governments, and while the said construction has not yet been finally
completed, accused either directly requested and/or demanded for himself or for
another, the sum of TWO HUNDRED THOUSAND PESOS (P200,000.00),
claimed as part of the expected profit of FOUR HUNDRED SIXTY THOUSAND
PESOS (P460,000.00) in connection with the construction of that government
building wherein the accused had to intervene under the law in his capacity as
Project Manager/Consultant of said construction said offense having been
committed in relation to the performance of his official duties.
CONTRARY TO LAW.
1

On 20 July 1990, during arraignment, petitioner pleaded "not guilty" to the charges
against him.
On 30 June 1993, after trial on the merits, the Second Division of the Sandiganbayan
rendered judgment finding petitioner guilty beyond reasonable doubt. The dispositive
portion reads as follows:
WHEREFORE, judgment is hereby rendered finding accused Claro Preclaro y
Jambalos GUILTY beyond reasonable doubt of the violation of Section 3,
paragraph (b) of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, and he is hereby sentenced to suffer an
indeterminate penalty ranging from SIX (6) YEARS and ONE (1) MONTH, as the
minimum, to TEN (10) YEARS and ONE (1) DAY, as the maximum, perpetual
disqualification from public office and to pay the costs of this action.
SO ORDERED.
2

The antecedent facts are largely undisputed.
On 1 October 1989, the Chemical Mineral Division of the Industrial Technology
Development Institute (ITDI), a component of the Department of Science and
Technology (DOST) employed Petitioner under a written contract of services as Project
Manager to supervise the construction of the ITDI-CMD (JICA) Building at the DOST
Compound in Bicutan, Taguig, Metro Manila.
3

The contract was to remain in effect from October 1, 1989 up to the end of the
construction period unless sooner terminated.
4
Petitioner was to be paid a monthly
salary drawn from counter-part funds duly financed by foreign-assisted projects and
government funds duly released by the Department of Budget and Management.
5

In November 1989, to build the aforementioned CMD Structure, DOST contracted the
services of the Jaime Sta. Maria Construction Company with Engr. Alexander Resoso,
as the company's project engineer.
6

How petitioner committed a violation of the Anti-Graft & Corrupt Practices Act is
narrated in the Comment of the Solicitor General and amply supported by the records.
The material portions are hereunder reproduced:
xxx xxx xxx
3. In the month of May, 1990, Alexander Resoso, Project Engineer of the Sta.
Maria Construction Company, was in the process of evaluating a Change Order
for some electricals in the building construction when petitioner approached him
at the project site (p. 11, 25, Ibid.).
4. Unexpectedly, petitioner made some overtures that expenses in the Change
Order will be deductive (meaning, charged to the contractor by deducting from
the contract price), instead of additive (meaning, charged to the owner).
Petitioner intimated that he can forget about the deductive provided he gets
P200,000.00, a chunk of the contractor's profit which he roughly estimated to be
around P460,000.00 (pp. 12-13, 22, Ibid.).
5. Having conveyed the proposal to Jaime Sta. Maria, Sr., the owner of Sta.
Maria Construction Company, Resoso thereafter asked petitioner if he wanted a
rendezvous for him to receive the money. Petitioner chose Wendy's Restaurant,
corner E. Delos Santos Avenue and Camias Street, on June 6, 1990 at around
8:00 o'clock in the evening (p. 14, Ibid.).
6. However, Sta. Maria, Sr. asked for two (2) more days or until the 8th of June,
perceiving financial constraints (Ibid.).
7. Petitioner relented, saying "O.K. lang with me because we are not in a hurry."
(p. 15, Ibid.) Petitioner was thereafter asked to bring along the result of the punch
list (meaning, the list of defective or correctible works to be done by the
contractor) (p. 15, Ibid.; p. 10, TSN, 18 Oct. 1991).
8. On 7 June 1990, Sta. Maria, Sr. and Resoso proceeded to the National
Bureau of Investigation (NBI) to report the incident (p. 15, 35, Ibid.).
9. The NBI suggested an entrapment plan to which Sta. Maria, Sr. signified his
conformity (p. 16, TSN, 12 Oct. 1990). Accordingly, Sta. Maria, Sr. was
requested to produce the amount of P50,000.00 in P500.00 denomination to
represent the grease money (p. 37, TSN, 6 Sept. 1990).
10. The next day, or on 8 June 1990, Resoso delivered the money to the NBI.
Thereafter, the money was dusted with flourescent powder and placed inside an
attache case (pp. 16-17, Ibid.). Resoso got the attache case and was instructed
not to open it. Similarly, he was advised to proceed at the Wendy's Restaurant
earlier than the designated time where a group of NBI men awaited him and his
companion, Sta. Maria, Jr. (pp. 17-18, Ibid.).
11. Hence, from the NBI, Resoso passed by the Jade Valley Restaurant in
Timog, Quezon City, to fetch Sta. Maria, Jr. (Ibid.).
12. At around 7:35 p.m., Resoso and Sta. Maria, Jr. arrived at the Wendy's
Restaurant. They were led by the NBI men to a table previously reserved by
them which was similarly adjacent to a table occupied by them (pp. 18-19, Ibid.).
13. Twenty minutes later, petitioner arrived. Supposedly, the following
conversation took place, to wit:
JUSTICE BALAJADIA:
q. When Dave Preclaro arrived, what did he do?
a. We asked him his order and we talked about the
punch list.
q. What was his comment about the punch list?
a. He told us that it is harder to produce small items
than big ones.
q. How long did you converse with Engr. Claro
Preclaro?
a. I think thirty minutes or so.
q. Was Preclaro alone when he came?
a. Yes, Your Honor.
xxx xxx xxx
PROS. CAOILI:
q. When you talk[ed] about his punch list, did you talk
about anything else?
a. Engineer Sta. Maria, Jr., they were conversing with
Dave Preclaro and he told [him], "O, paano na."
JUSTICE ESCAREAL:
q. Who said "Paano na?"
a. Engineer Sta. Maria, [Jr.]. And then Preclaro told
[him], "Paano, How will the money be arranged and
can I bring it?" he said.
And then Jimmy Sta. Maria, Jr. told him it was
arranged on two bundles on two envelopes.
And then Dave Preclaro told, "Puede" and he asked
Jimmy Sta. Maria, Jr. if there is express teller and
could he deposit during night time but Engineer Sta.
Maria, Jr. told him, "I do not have any knowledge or I
do not have any express teller you can deposit. I only
know credit card."
PROS. CAOILI:
q. When Engr. Sta. Maria intervened and interviewed
him that way, was there anything that happened?
a. Jimmy Sta. Maria, Jr. handed two envelopes to
Preclaro.
q. Did Claro Preclaro receive these two envelopes
from Engineer Sta. Maria?
a. Yes, sir. (pp. 19-21, Ibid., See also pp. 13-14, TSN,
29 Oct. 1990.)
14. From the moment petitioner received the two envelopes with his right hand,
thereafter placing them under his left armpit, he was accosted by the NBI men (p.
22, TSN, 12 Oct. 1990).
15. A camera flashed to record the event. Petitioner instinctively docked to avoid
the taking of pictures. In such manner, the two envelopes fell (p. 23, Ibid.).
16. The NBI men directed petitioner to pick up the two envelopes. Petitioner
refused. Hence, one of the NBI men picked up the envelopes and placed them
inside a big brown envelope (p. 27, Ibid.)
17. Petitioner was thenceforth brought to the NBI for examination (p. 28; Ibid.).
18. At the NBI Forensic Chemistry Section, petitioner's right palmar hand was
tested positive of flourescent powder. The same flourescent powder, however,
cannot be detected in petitioner's T-shirt and pants (p. 5, TSN, 29 Oct. 1990).
7

xxx xxx xxx
Thus, as brought out at the outset, an information was filed against petitioner which,
after due hearing, resulted in his conviction by the Sandiganbayan. Not satisfied with
the decision, petitioner instituted the present petition for review, ascribing to the
Sandiganbayan the following errors:
1. THE SANDIGANBAYAN ERRED IN TAKING COGNIZANCE OF THE CASE,
INSTEAD OF DISMISSING IT FOR LACK OF JURISDICTION, THE
[PETITIONER] NOT BEING A PUBLIC OFFICER; and
2. THE SANDIGANBAYAN ERRED IN NOT RULING THAT NOT ALL THE
ELEMENTS OF THE OFFENSE CHARGED HAVE BEEN ESTABLISHED
BEYOND REASONABLE DOUBT AND/OR THAT THE GUILT OF THE
[PETITIONER] HAS NOT BEEN ESTABLISHED BEYOND REASONABLE
DOUBT.
We find the petition unmeritorious.
On the first issue, petitioner asserts that he is not a public officer as defined by Sec. 2(b)
of the Anti-Graft & Corrupt Practices Act (R.A. No. 3019 as amended), because he was
neither elected nor appointed to a public office. Rather, petitioner maintains that he is
merely a private individual hired by the ITDI on contractual basis for a particular project
and for a specified period
8
as evidenced by the contract of services
9
he entered into
with the ITDI. Petitioner, to further support his "theory," alleged that he was not issued
any appointment paper separate from the abovementioned contract. He was not
required to use the bundy clock to record his hours of work and neither did he take an
oath of office.
10

We are not convinced by petitioner's arguments.
Petitioner miscontrues the definition of "public officer" in R.A. No. 3019 which, according
to Sec. 2(b) thereof "includes elective and appointive officials and employees,
permanent or temporary, whether in the classified or unclassified or exemption service
receiving compensation, even nominal, from the government. . . ."
The word "includes" used in defining a public officer in Sec. 2(b) indicates that the
definition is not restrictive. The terms "classified, unclassified or exemption service"
were the old categories of positions in the civil service which have been reclassified into
Career Service and Non-Career Service
11
by PD 807 providing for the organization of
the Civil Service Commission
12
and by the Administrative Code of 1987.
13

Non-career service in particular is characterized by
(1) entrance on bases other than those of the usual test of merit and fitness
utilized for the career service;and (2) tenure which is limited to a period specified
by law, or which is coterminous with that of the appointing authority or subject to
his pleasure, or which is limited to the duration of a particular project for which
purpose employment was made.
The Non-Career Service shall include:
(1) Elective officials and their personal or confidential staff;
(2) Secretaries and other officials of Cabinet rank who hold their positions at the
pleasure of the President and their personal or confidential staff(s);
(3) Chairman and members of commissions and boards with fixed terms of office
and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government is in
accordance with a special contract to undertake a specific work or job, requiring
special or technical skills not available in the employing agency, to be
accomplished within a specific period, which in no case shall exceed one year,
and performs or accomplishes the specific work or job, under his own
responsibility with a minimum of direction and supervision from the hiring
agency; and
(5) Emergency and seasonal personnel. (Emphasis ours.)
14

From the foregoing classification, it is quite evident that petitioner falls under the non-
career service category (formerly termed the unclassified or exemption service) of the
Civil Service and thus is a public officer as defined by Sec. 2(b) of the Anti-Graft &
Corrupt Practices Act (R.A. No. 3019).
The fact that petitioner is not required to record his working hours by means of a bundy
clock or did not take an oath of office became unessential considerations in view of the
above-mentioned provision of law clearly including petitioner within the definition of a
public officer.
Similarly, petitioner's averment that he could not be prosecuted under the Anti-Graft &
Corrupt Practices Act because his intervention "was not required by law but in the
performance of a contract of services entered into by him as a private individual
contractor,"
15
is erroneous. As discussed above, petitioner falls within the definition of a
public officer and as such, his duties delineated in Annex "B" of the contract of
services
16
are subsumed under the phrase "wherein the public officer in his official
capacity has to intervene under the law."
17
Petitioner's allegation, to borrow a cliche, is
nothing but a mere splitting of hairs.
Among petitioner's duties as project manager is to evaluate the contractor's
accomplishment reports/billings
18
hence, as correctly ruled by the Sandiganbayan he
has the "privilege and authority to make a favorable recommendation and act favorably
in behalf of the government," signing acceptance papers and approving deductives and
additives are some examples.
19
All of the elements of Sec. 3(b) of the Anti-Graft &
Corrupt Practices Act are, therefore, present.
Anent the second issue, we likewise find Petitioner's allegations completely bereft of
merit.
Petitioner insists that the prosecution has failed to establish his guilt beyond reasonable
doubt and that the charges against him should be rejected for being improbable,
unbelievable and contrary to human nature.
We disagree.
Proof beyond reasonable doubt does not mean that which produces absolute certainty.
Only moral certainty is required or "that degree of proof which produces conviction in an
unprejudiced mind."
20
We have extensively reviewed the records of this case and we
find no reason to overturn the findings of the Sandiganbayan.
Petitioner enumerates the alleged improbabilities and inconsistencies in the testimonies
of the prosecution witnesses. We shall examine the testimonies referred to with
meticulousness.
Petitioner asserts that it was improbable for him to have demanded P200,000.00 from
Engr. Resoso, when he could have just talked directly to the contractor himself. It is
quite irrelevant from whom petitioner demanded his percentage share of P200,000.00
whether from the contractor's project engineer, Engr. Alexander Resoso or directly from
the contractor himself Engr. Jaime Sta. Maria Sr. That petitioner made such a demand
is all that is required by Sec. 3(b) of R.A. No. 3019 and this element has been
sufficiently established by the testimony of Engr. Resoso, thus:
xxx xxx xxx
Q You said when you were computing your Change Order Mr.
Preclaro or Dave Preclaro whom you identified approached you,
what did you talk about?
A He mentioned to me that we are deductive in our Change Order
three and four so after our conversation I told this conversation to
my boss that we are deductible in the Change Order three and four
and then my boss told me to ask why it is deductive.
Q Did you ask the accused here, Dave Preclaro why it is
considered deductive?
A Yes, sir.
Q What was his answer if any?
A I asked him that my boss is asking me to ask you how come it
became deductive when my computation is additive and he told me
that I have done so much for your company already and then he
picked up cement bag paper bag and computed our alleged profit
amounting to One Hundred Sixty Thousand Pesos and then he told
me that he used to use some percentage in projects maximum and
minimum and in our case he would use a minimum percentage and
multiply to 60 and . . .
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and he said take of the butal and get two Hundred
Thousand Pesos.
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the
P200,000.00. (Emphasis ours.)
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss.
(Emphasis ours.)
JUSTICE BALAJADIA:
Q What is P200,000.00?
A It is Two Hundred Thousand Pesos.
PROS. CAOILI:
Q What did you answer him when he told you that?
A He told me to forget the deductive and electrical and after that I
told my boss what he told me.
Q Who is your boss?
A Santa Maria Sr.
Q What was the reaction of your boss when you relayed the
message to Mr. Preclaro?
A The next day he told me to ask Dave where and when to pick up
the money so the next day I asked Dave "Where do you intend to
get the money, the Boss wanted to know."
Q What was the answer of Dave?
A And he told me, Wendy's Restaurant at 3:00 o'clock.
Q When?
A June 6 Wednesday.
Q When he told you that did you comply with June 6 appointment?
A I told my boss what he told me again that the meeting will take
place at Wendy's Restaurant corner Edsa and Camias Street at
around 8:00 o'clock p.m. June 6, Wednesday.
Q What did your boss tell you?
A The next day he told me to ask Dave.
Q What did your boss tell you?
A My boss told me to ask Dave to postpone the meeting on June 6
to be postponed on June 8 at the same place and same time
because my boss is having financial problem.
Q Did you relay the postponement to Dave Preclaro?
A Yes sir. I told what my boss told me.
Q What was his reaction?
A Dave told me "O.K. lang with me" because we are not in a hurry.
Any way we are the ones to sign the acceptance papers and my
boss instructed me that on Friday to ask Dave to bring along the
result of the punch list and if possible also to bring along the
acceptance papers to be signed by Dave, Lydia Mejia and Dr. Lirag
the director.
Q What happened next after meeting with Preclaro to relay the
postponement if any?
A Nothing happened. The next day, Thursday the boss instructed
me to go with him to the NBI to give a statement.
Q Did you go to the NBI and report to the incident to the NBI?
A Yes sir.
Q Did you give a statement before any of the agents of the of the
NBI?
A Yes sir.
21

xxx xxx xxx
Likewise, petitioner's alleged refusal to see Mr. Jaime Sta. Maria Sr. when the latter
tried to arrange meetings with him regarding his demand
22
does not weaken the cause
against petitioner. It does not at all prove that petitioner did not ask for money.
Conceivably petitioner did not muster enough courage to ask money directly from the
contractor himself. Getting the amount through the project engineer would be safer
because if Mr. Sta. Maria, Sr. had refused to give money, petitioner could always deny
having made the demand.
Petitioner contends that the percentage demanded in the amount of P200,000.00 is too
high considering that the estimated profit of the contractor from the CMD project is only
P460,000.00. In petitioner's words, this would "scare the goose that lays the golden
egg."
23
We reject this argument. The aforementioned contractor's profit is petitioner's
own computation as testified to by Engr. Resoso:
xxx xxx xxx
A I asked him that my boss is asking me to ask you how come it
became deductive when my computation is additive and he told me
that I have done so much for your company already and then he
picked up cement bag paper bag and computed our alleged profit
amounting to One Hundred Sixty Thousand Pesos and then he told
me that he used to use some percentage in projects maximum and
minimum and in our case he would use a minimum percentage and
multiply to 460 and . . . (Emphasis ours.)
JUSTICE ESCAREAL:
Q What is 460?
A P460,000.00 and it ended to P215 thousand or P20,000.00 and
he said take of the butal and get the Two Hundred Thousand
Pesos. (Emphasis ours.)
JUSTICE BALAJADIA:
What is the translation now?
WITNESS:
A And he said disregard the excess and I will just get the
P200,000.00.
PROS. CAOILI:
Q What does he mean by that if you know?
A I do not know sir.
He just said, I will get the P200,000.00 and tell it to your boss.
24

xxx xxx xxx
The records, however, do not show the true and actual amount that the Sta. Maria
Construction will earn as profit. There is, therefore, no basis for petitioner's contention
as the actual profit may be lower or higher than his estimation.
Besides, as related by Engr. Resoso, petitioner considers the P200,000.00 percentage
proper compensation since he has allegedly done so much for the Sta. Maria
construction company.
25

Petitioner also argues that:
According to STA. MARIA, SR., they were deductive by P280,000.00 (Id., pp. 34-
35).
If STA. MARIA CONSTRUCTION was deductive in the amount of P280,000.00,
why would the petitioner still demand P200,000.00 which would increase the
contractor's loss to P480,000.00!
It might have been different if the changes were additive where STA. MARIA
CONSTRUCTION would have earned more, thereby providing motive for the
petitioner to ask for a percentage!
26

But this is precisely what petitioner was bargaining for P200,000.00 in exchange for
forgetting about the deductive
27
and thus prevent the Sta. Maria Construction from
incurring losses.
Petitioner's contention that it was impossible for him to make any demands because the
final decision regarding accomplishments and billing lies with the DOST technical
committee is unacceptable. Petitioner is part of the abovementioned technical
committee as the ITDI representative consultant. This is part of his duties under the
contract of services in connection with which he was employed by the ITDI. Even,
assuming arguendo that petitioner does not make the final decision, as
supervisor/consultant, his recommendations will necessarily carry much weight. Engr.
Resoso testified thus:
PROS. CAOILI:
Q As a Project Engineer to whom do you present your billing
papers accomplishment report or purchase order?
A The billing paper was being taken cared of by the, of our office. I
personally do my job as supervision in the construction.
Q Do you have any counterpart to supervise the project from the
government side?
A Yes, we have.
Yes, the DOST have a technical Committee Infra-Structure
Committee and also the ITDI as its own representative.
Q Who composed the Technical Committee of the DOST?
A A certain Engineer Velasco, Engineer Sande Banez and
Engineer Mejia.
Q How about the ITDI?
A The ITDI representative composed of Dave Preclaro.
Q Who is this Dave Preclaro?
A He is the consultant of ITDI. (Emphasis ours.)
xxx xxx xxx
ATTY. CAOILI:
Q As Project Engineer do you consult to any body regarding your
job?
A First if there is any problem in the site I consult my boss.
PROS. CAOILI:
Q How about with the other consultants representing the ITDI and
DOST?
A In the construction site we have meeting every Monday to
discuss any problem.
Q With whom do you discuss this problem?
A The Infra-structure Committee of DOST and the Infra-structure
Committee of ITDI, the architect and the contractor. We had weekly
meetings.
Q What matters if any do you consult with Mr. Claro Preclaro?
ATTY. JIMENEZ:
No basis.
JUSTICE ESCAREAL:
They met on problems on Mondays.
ATTY. JIMENEZ:
But there is no mention of Preclaro specifically.
JUSTICE ESCAREAL:
With the representative of DOST and Preclaro
ATTY. JIMENEZ:
Does that also mean that Preclaro is also among the
representatives he is going to consult with?
Well any way. . .
JUSTICE ESCAREAL:
Witness may answer the question.
Read back the question.
COURT STENOGRAPHER:
Reading back the question as ordered by the Court.
WITNESS:
A Every Monday meeting we tackle with accomplishment report the
billing papers.
28
(Emphasis ours.)
xxx xxx xxx
Petitioner also claims that the testimonies of the prosecution witnesses regarding the
entrapment itself are conflicting, doubtful or improbable:
(aaa) according to RESOSO, only FOUR (4) P500 bills were dusted with
flourescent powder and used in the alleged entrapment.
Contradicting RESOSO, STA. MARIA, SR. said that he gave fifty thousand
(P50,000.00) pesos in P500 denomination to the NBI.
29

There is no such inconsistency. Said witnesses were testifying on two different subjects.
Engr. Sta. Maria, Sr.'s testimony touched on the amount he gave the NBI for use in the
entrapment while Engr. Resoso's declaration referred only to the number of bills dusted
with flourescent powder.
Petitioner, likewise, misappreciated the following testimony of Resoso:
PROS. CAOILI:
Q What did he do with the two envelopes upon receiving the same?
A Then he asked Jaime Sta. Maria, Jr. if there is bank teller
express, if he could deposit the money but Mr. Sta. Maria said, "I do
not have, I only have credit cards."
30

Petitioner intended to deposit the money in his own account not that of Mr. Sta. Maria,
Jr. He was merely inquiring from the latter if there was an express teller nearby where
he could make the deposit. Mr. Sta. Maria Jr. himself testified as follows:
A He asked me if there was express teller. I told him I do not know
then he asked me whether it is possible to deposit at the Express
Teller at that time. I told him I don't know because I have no
express teller card and he asked me how am I going to arrange,
how was it arranged if I will bring it, can I bring it. Then I told him
that it was placed in two envelopes consisting of 500 Peso bills and
then he said "Okay na yan."
31

The failure of the NBI to take photographs of the actual turn-over of the money to
petitioner is not fatal to the People's cause. The transaction was witnessed by several
people, among whom were Engr. Resoso, Mr. Sta. Maria Jr. and the NBI agents whose
testimonies on the circumstances before, during and after the turn-over are consistent,
logical and credible.
According to NBI Agent Francisco Balanban Sr., they purposely took no photographs of
the actual turn-over so as not to alert and scare off the petitioner. During cross-
examination Agent Balanban Jr. stated:
xxx xxx xxx
Q Now, of course, this entrapment operation, you made certain
preparation to make sure that you would be able to gather evidence
in support of the entrapment?
A Yes sir.
Q As a matter of fact you even brought photographer for the
purpose?
A That is right sir.
Q And that photographer was precisely brought along to record the
entrapment?
A Yes sir.
Q From the beginning to the end, that was the purpose?
A At the time of the arrest sir.
ATTY. JIMENEZ:
From the time of the handing over of the envelopes until the
entrapment would have been terminated?
A No sir we plan to take the photograph only during the arrest
because if we take photographs he would be alerted during the
handing of the envelopes. (Emphasis ours.)
Q So you did not intend to take photographs of the act of handing
of the envelopes to the suspect?
A We intended but during that time we cannot take photographs at
the time of the handling because the flash will alert the suspect.
(Emphasis ours.)
JUSTICE ESCAREAL:
Why did you not position the photographer to a far distance place
with camera with telescopic lens?
A We did not Your Honor.
ATTY. JIMENEZ:
So was it your intention to take photographs only at the time that he
is already being arrested?
A Yes sir.
32

xxx xxx xxx
Petitioner insists that when his hands were placed under ultra-violet light, both were
found negative for flourescent powder. This is petitioner's own conclusion which is not
supported by evidence. Such self-serving statement will not prevail over the clear and
competent testimony and the report
33
submitted by the forensic expert of the NBI Ms.
Demelen R. dela Cruz, who was the one who conducted the test and found petitioner's
right palmar hand positive for flourescent powder, the same hand he used, according to
witnesses Resoso and Sta. Maria Jr., to get the money from the latter.
xxx xxx xxx
Q Mrs. dela Cruz since when have you been a Forensic Chemist at
NBI?
A Since 1981 sir.
Q JUSTICE ESCAREAL:
Q By the way, is the defense willing to admit that the witness is a
competent as . . . .
ATTY. JIMENEZ:
Admitted Your Honor.
PROS. CAOILI:
Madam Witness did you conduct a forensic examination in the
person of one Dave Preclaro y Jambalos?
A Yes sir.
Q If that person whom you examined is here in court would you be
able to recognize him?
ATTY. JIMENEZ:
We admit that the accused is the one examined by the witness.
ATTY. CAOILI:
Did you prepare the result of the examination in writing?
A Yes sir.
PROS. CAOILI:
Showing to you Physic Examination No. 90-961 which for purposes
of identification has already been marked as Exh. H what relation
has this have with the report that you mentioned a while ago?
A This is the same report that I prepared sir.
Q How did you conduct such flourescent examination?
A The left and right hands of the accused were placed under the
ultra violet lamp sir.
Q What was the result?
A It gave a . . . under the ultra violent lamp the palmer hands of the
suspect gave positive result for the presence of flourescent powder.
Q What palmar hands?
A Right hand sir.
Q What other examination did you conduct?
A And also the clothing, consisting of the t-shirts and the pants
were examined. Under the ultra violet lamp the presence of the
flourescent powder of the t-shirts and pants cannot be seen or
distinguished because the fibers or the material of the cloth under
the ultra violet lamp was flouresce.
Q Please tell the Court why the t-shirts and pants under the ultra
violent lamp was flouresce?
A The materials or the fibers of the clothings it could have been
dyed with flourescent dyes sir.
34

xxx xxx xxx
What we find improbable and contrary to human experience is petitioner's claim that he
was set up by Engr. Sta. Maria Sr. and Engr. Resoso for no other purpose but revenge
on account, for petitioner's failure to recommend the Sta. Maria Construction to perform
the extra electrical works.
35

The Sandiganbayan has aptly ruled on this matter, thus:
For another, the claim of accused that there was ill-will on the part of the
construction company is hardly plausible. It is highly improbable for the company
to embark on a malicious prosecution of an innocent person for the simple
reason that such person had recommended the services of another construction
firm. And it is extremely impossible for such company to enlist the cooperation
and employ the services of the government's chief investigative agency for such
an anomalous undertaking. It is more in accord with reason and logic to
presuppose that there was some sort of a mischievous demand made by the
accused in exchange for certain favorable considerations, such as, favorable
recommendation on the completeness of the project, hassle-free release of
funds, erasure of deductives, etc. Indeed, the rationale for the occurrence of the
meeting and the demand for money is infinite and boundless.
36

As correctly pointed out by the Solicitor General, Engr. Sta. Maria Sr., who was then
engaged in the construction of another DOST building, would not risk his business or
livelihood just to exact revenge which is neither profitable nor logical. As we aptly stated
in Maleg v. Sandiganbayan:
37

It is hard to believe that the complainant who is a contractor would jeopardize
and prejudice his business interests and risk being blacklisted in government
infrastructure projects, knowing that with the institution of the case, he may find it
no longer advisable nor profitable to continue in his construction ventures. It is
hardly probable that the complainant would weave out of the blue a serious
accusation just to retaliate and take revenge on the accused.
From the foregoing, the conclusion is inescapable that on the basis of the testimonial
and documentary evidence presented during the trial, the guilt of petitioner has been
established beyond reasonable doubt.
WHEREFORE, the appealed decision of the Sandiganbayan is hereby AFFIRMED.
SO ORDERED.
Padilla, Davide, Jr., Bellosillo and Hermosisima, Jr., JJ., concur.

G.R. No. 116418 March 7, 1995
SALVADOR C. FERNANDEZ and ANICIA M. DE LIMA, petitioners,
vs.
HON. PATRICIA A. STO. TOMAS, Chairman, and HON. RAMON B. ERENETA,
Commissioner, Civil Service Commission, respondents.

FELICIANO, J .:
In this Petition for Certiorari, Prohibition and Mandamus with Prayer for a Temporary
Restraining Order, petitioners Salvador C. Fernandez and Anicia M. de Lima assail the
validity of Resolution No. 94-3710 of the Civil Service Commission ("Commission") and
the authority of the Commission to issue the same.
Petitioner Fernandez was serving as Director of the Office of Personnel Inspection and
Audit ("OPIA") while petitioner de Lima was serving as Director of the Office of the
Personnel Relations ("OPR"), both at the Central Office of the Civil Service Commission
in Quezon City, Metropolitan Manila. While petitioners were so serving, Resolution No.
94-3710 signed by public respondents Patricia A.. Sto. Tomas and Ramon Ereneta, Jr.,
Chairman and Commissioner, respectively, of the Commission, was issued on 7 June
1994.
1
Resolution No. 94-3710 needs to be quoted in full:
RESOLUTION NO. 94-3710
WHEREAS, Section 17 of Book V of Executive Order 292 provides that ". .
. as an independent constitutional body, the Commission may effect
changes in the organization as the need arises;"
WHEREAS, the Commission finds it imperative to effect changes in the
organization to streamline its operations and improve delivery of public
service;
WHEREAS, the Commission finds it necessary to immediately effect
changes in the organization of the Central Offices in view of the need to
implement new programs in lieu of those functions which were transferred
to the Regional Offices;
WHEREFORE, foregoing premises considered, the Commission hereby
RESOLVES to effect the following changes in its organization, specifically
in the Central Offices:
1. The OCSS [Office of Career Systems and Standards], OPIA [Office of
Personnel Inspection and Audit] and OPR [Office of Personnel Relations]
are merged to form the Research and Development Office (RDO).
2. The Office for Human Resource Development (OHRD) is renamed
Human Resource Development Office (HRDO).
3. The following functions and the personnel assigned to the unit
performing said functions are hereby transferred to HRDO:
a. Administration of the Honor and Awards program under
OCSS;
b. Registration and Accreditation of Unions under OPR; and
c. Accreditation of Agencies to take final action on
appointments under OPIA.
4. The Office for Central Personnel Records (OCPR) is renamed
Management Information Office (MIO).
5. The Information technology functions of OPM and the personnel
assigned to the unit are transferred to MIO.
6. The following functions of OPM and the personnel assigned to the unit
performing said functions are hereby transferred to the Office of the
Executive Director:
a. Financial Audit and Evaluation;
b. Internal Management and Improvement;
c. Research and Statistics; and
d. Planning and Programming.
7. The library service and its personnel under OCPR are transferred to the
Central Administrative Office.
8. The budget allocated for the various functions shall be transferred to the
Offices where the functions are transferred. Records, fixtures and
equipment that go with the functions shall be moved to where the
functions are transferred.
Annex A contains the manning list for all the offices, except the OCES.
The changes in the organization and in operations shall take place before
end of July 1994.
Done in Quezon City, July 07, 1994.
(Signed)
Patricia A. Sto. Tomas
Chairman
(Signed) Did not participate
Ramon P. Ereneta, Jr., Thelma P. Gaminde
Commissioner Commissioner
Attested by:
(Signed)
Carmencita Giselle B. Dayson
Board Secretary V
2

During the general assembly of officers and employees of the Commission held in the
morning of 28 July 1994, Chairman Sto. Tomas, when apprised of objections of
petitioners, expressed the determination of the Commission to implement Resolution
No. 94-3710 unless restrained by higher authority.
Petitioners then instituted this Petition. In a Resolution dated 23 August 1994, the Court
required public respondents to file a Comment on the Petition. On 21 September 1994,
petitioners filed an Urgent Motion for Issuance of a Temporary Restraining Order,
alleging that petitioners had received Office Orders from the Commission assigning
petitioner Fernandez to Region V at Legaspi City and petitioner de Lima to Region III in
San Fernando, Pampanga and praying that public respondents be restrained from
enforcing these Office Orders. The Court, in a Resolution dated 27 September 1994,
granted this Motion and issued the Temporary Restraining Order prayed for by
petitioners.
The Commission filed its own Comment, dated 12 September 1994, on the Petition and
then moved to lift the Temporary Restraining Order. The Office of the Solicitor General
filed a separate Comment dated 28 November 1994, defending the validity of
Resolution No. 94-3710 and urging dismissal of the Petition. Petitioners filed separate
Replies to these Comments. The Commission in turn filed a Rejoinder (denominated
"Comment [on] the Reply").
The principal issues raised in this Petition are the following:
(1) Whether or not the Civil Service Commission had legal authority to
issue Resolution No. 94-3710 to the extent it merged the OCSS [Office of
Career Systems and Standards], the OPIA [Office of Personnel Inspection
and Audit] and the OPR [Office of Personnel Relations], to form the RDO
[Research and Development Office]; and
(2) Whether or not Resolution No. 94-3710 violated petitioners'
constitutional right to security of tenure.
I.
The Revised Administrative Code of 1987 (Executive Order No. 292 dated 25 July
1987) sets out, in Book V, Title I, Subtitle A, Chapter 3, the internal structure and
organization of the Commission in the following terms:
Sec. 16. Offices in the Commission The Commission shall have the
following offices:
(1) The Office of the Executive Director . . .
(2) The Merit System Protection Board . . .
(3) The Office of Legal Affairs . . .
(4) The Office of Planning and Management . . .
(5) The Central Administrative Office . . .
(6) The Office of Central Personnel Records . . .
(7) The Office of Position Classification and
Compensation . . .
(8) The Office of Recruitment, Examination and
Placement . . .
(9) The Office of Career Systems and Standards shall provide leadership
and assistance in the formulation and evaluation of personnel systems
and standards relative to performance appraisal, merit promotion and
employee incentive benefits and awards.
(10) The Office of Human Resource Development . . .
(11) The Office of Personnel Inspection and Audit shall develop policies,
standards, rules and regulations for the effective conduct of inspection and
audit of personnel and personnel management programs and the exercise
of delegated authority; provide technical and advisory services to Civil
Service Regional Offices and government agencies in the implementation
of their personnel programs and evaluation systems.
(12) The Office of Personnel Relations shall provide leadership and
assistance in the development and implementation of policies, standards,
rules and regulations governing corporate officials and employees in the
areas of recruitment, examination, placement, career development, merit
and awards systems, position classification and compensation,
performance appraisal, employee welfare and benefits, discipline and
other aspects of personnel management on the basis of comparable
industry practices.
(13) The Office of the Corporate Affairs . . .
(14) The Office of Retirement Administration . . .
(15) The Regional and Field Offices. . . . (Emphases in the original)
Immediately after the foregoing listing of offices of the Commission and their respective
functions, the 1987 Revised Administrative Code goes on to provide as follows:
Sec. 17. Organizational Structure. Each office of the Commission shall
be headed by a Director with at least one (1) Assistant Director, and may
have such divisions as are necessary to carry out their respective
functions. As an independent constitutional body, the Commission may
effect chances in the organization as the need arises.
xxx xxx xxx
3

(Emphasis supplied)
Examination of the foregoing statutory provisions reveals that the OCSS, OPIA and
OPR, and as well each of the other Offices listed in Section 16 above, consist of
aggregations of Divisions, each of which Divisions is in turn a grouping of Sections.
Each Section, Division and Office comprises a group of positions within the agency
called the Civil Service Commission, each group being entrusted with a more or less
definable function or functions. These functions are related to one another, each of
them being embraced by a common or general subject matter. Clearly, each Office is an
internal department or organizational unit within the Commission and that accordingly,
the OCSS, OPIA and OPR, as well as all the other Offices within the Commission
constitute administrative subdivisions of the CSC. Put a little differently, these offices
relate to the internal structure of the Commission.
What did Resolution No. 94-3710 of the Commission do? Examination of Resolution No.
94-3710 shows that thereby the Commission re-arranged some of the administrative
units (i.e., Offices) within the Commission and, among other things, merged three (3) of
them (OCSS, OPIA and OPR) to form a new grouping called the "Research and
Development Office (RDO)." The same Resolution renamed some of the Offices of the
Commission, e.g., the Office for Human Resource Development (OHRD) was renamed
Human Resource Development Office (HRDO); the Office for Central Personnel
Records (OCPR) was renamed Management Information Office (MIO). The
Commission also re-allocated certain functions moving some functions from one Office
to another; e.g., the information technology function of OPM (Office of Planning and
Management) was transferred to the newly named Management Information Office
(MIO). This re-allocation or re-assignment of some functions carried with it the transfer
of the budget earmarked for such function to the Office where the function was
transferred. Moreover, the personnel, records, fixtures and equipment that were
devoted to the carrying out of such functions were moved to the Offices to where the
functions were transferred.
The objectives sought by the Commission in enacting Resolution No. 94-3710 were
described in that Resolution in broad terms as "effect[ing] changes in the organization to
streamline [the Commission's] operations and improve delivery of service." These
changes in internal organization were rendered necessary by, on the one hand, the
decentralization and devolution of the Commission's functions effected by the creation
of fourteen (14) Regional Offices and ninety-five (95) Field Offices of the Commission
throughout the country, to the end that the Commission and its staff may be brought
closer physically to the government employees that they are mandated to serve. In the
past, its functions had been centralized in the Head Office of the Commission in
Metropolitan Manila and Civil Service employees all over the country were compelled to
come to Manila for the carrying out of personnel transactions. Upon the other hand, the
dispersal of the functions of the Commission to the Regional Offices and the Field
Offices attached to various governmental agencies throughout the country makes
possible the implementation of new programs of the Commission at its Central Office in
Metropolitan Manila.
The Commission's Office Order assigning petitioner de Lima to the CSC Regional Office
No. 3 was precipitated by the incumbent Regional Director filing an application for
retirement, thus generating a need to find a replacement for him. Petitioner de Lima was
being assigned to that Regional Office while the incumbent Regional Director was still
there to facilitate her take over of the duties and functions of the incumbent Director.
Petitioner de Lima's prior experience as a labor lawyer was also a factor in her
assignment to Regional Office No. 3 where public sector unions have been very active.
Petitioner Fernandez's assignment to the CSC Regional Office No. 5 had, upon the
other hand, been necessitated by the fact that the then incumbent Director in Region V
was under investigation and needed to be transferred immediately to the Central Office.
Petitioner Fernandez was deemed the most likely designee for Director of Regional
Office No. 5 considering that the functions previously assigned to him had been
substantially devolved to the Regional Offices such that his reassignment to a Regional
Office would result in the least disruption of the operations of the Central Office.
4

It thus appears to the Court that the Commission was moved by quite legitimate
considerations of administrative efficiency and convenience in promulgating and
implementing its Resolution No. 94-3710 and in assigning petitioner Salvador C.
Fernandez to the Regional Office of the Commission in Region V in Legaspi City and
petitioner Anicia M. de Lima to the Commission's Regional Office in Region III in San
Fernando, Pampanga. It is also clear to
the Court that the changes introduced and formalized through Resolution No. 94-3710
re-naming of existing Offices; re-arrangement of the groupings of Divisions and
Sections composing particular Offices; re-allocation of existing functions (and related
personnel; budget, etc.) among the re-arranged Offices are precisely the kind of
internal changes which are referred to in Section 17 (Book V, Title I, Subtitle A, Chapter
3) of the 1987 Revised Administrative Code), quoted above, as "chances in the
organization" of the Commission.
Petitioners argue that Resolution No. 94-3710 effected the "abolition" of public offices,
something which may be done only by the same legislative authority which had created
those public offices in the first place.
The Court is unable, in the circumstances of this case, to accept this argument. The
term "public office" is frequently used to refer to the right, authority and duty, created
and conferred by law, by which, for a given period either fixed by law or enduring at the
pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of government, to be exercised by that individual for the benefit of
the public.
5
We consider that Resolution No. 94-3710 has not abolished any public
office as that term is used in the law of public officers.
6
It is essential to note that none
of the "changes in organization" introduced by Resolution No. 94-3710 carried with it or
necessarily involved thetermination of the relationship of public employment between
the Commission and any of its officers and employees. We find it very difficult to
suppose that the 1987 Revised Administrative Code having mentioned fourteen (14)
different "Offices" of the Civil Service Commission, meant to freeze those Offices and to
cast in concrete, as it were, the internal organization of the commission until it might
please Congress to change such internal organization regardless of the ever changing
needs of the Civil Service as a whole. To the contrary, the legislative authority
had expressly authorized the Commission to carry out "changes in the organization," as
the need [for such changes] arises."
7
Assuming, for purposes of argument merely, that
legislative authority was necessary to carry out the kinds off changes contemplated in
Resolution No. 94-3710 (and the Court is not saying that such authority is necessary),
such legislative authority was validly delegated to the Commission by Section 17 earlier
quoted. The legislative standards to be observed and respected in the exercise of such
delegated authority are set out not only in Section 17 itself (i.e., "as the need arises"),
but also in the Declaration of Policies found in Book V, Title I, Subtitle A, Section 1 of
the 1987 Revised Administrative Code which required the Civil Service Commission
as the central personnel agency of the Government [to] establish a
career service, adopt measures to promote efficiency
[and] responsiveness . . . in the civil service . . . and that personnel
functions shall be decentralized, delegating the corresponding authority to
thedepartments, offices and agencies where such functions can be
effectively performed. (Emphasis supplied)
II.
We turn to the second claim of petitioners that their right to security of tenure was
breached by the respondents in promulgating Resolution No. 94-3710 and ordering
petitioners' assignment to the Commission's Regional Offices in Regions III and V.
Section 2(3) of Article IX(B) of the 1987 Constitution declared that "no officer or
employee of the Civil Service shall be removed or suspended except for cause provided
by law." Petitioners in effect contend that they were unlawfully removed from their
positions in the OPIA and OPR by the implementation of Resolution No. 94-3710 and
that they cannot, without their consent, be moved out to the Regional Offices of the
Commission.
We note, firstly, that appointments to the staff of the Commission are not appointments
to a specified public office but rather appointments to particular positions or ranks. Thus,
a person may be appointed to the position of Director III or Director IV; or to the position
of Attorney IV or Attorney V; or to the position of Records Officer I or Records Officer II;
and so forth. In the instant case, petitioners were each appointed to the position
of Director IV, without specification of any particular office or station. The same is true
with respect to the other persons holding the same position or rank of Director IV of the
Commission.
Section 26(7), Book V, Title I, Subtitle A of the 1987 Revised Administrative Code
recognizes reassignment as a management prerogative vested in the Commission and,
for that matter, in any department or agency of government embraced in the civil
service:
Sec. 26. Personnel Actions. . . .
xxx xxx xxx
As used in this Title, any action denoting the movement or progress of
personnel in the civil service shall be known as personnel action. Such
action shall include appointment through certification, promotion, transfer,
re-instatement, re-employment, detail, reassignment, demotion, and
separation. All personnel actions shall be in accordance with such rules,
standards, and regulations as may be promulgated by the Commission.
xxx xxx xxx
(7) Reassignment. An employee may be re-assigned from one
organizational unit to another in the same agency, Provided, That such re-
assignment shall not involve a reduction in rank status and salary.
(Emphasis supplied)
It follows that the reassignment of petitioners Fernandez and de Lima from their
previous positions in OPIA and OPR, respectively, to the Research and Development
Office (RDO) in the Central Office of the Commission in Metropolitan Manila and their
subsequent assignment from the RDO to the Commission's Regional Offices in Regions
V and III had been effected with express statutory authority and did not constitute
removals without lawful cause. It also follows that such re-assignment did not involve
any violation of the constitutional right of petitioners to security of tenure considering
that they retained their positions of Director IV and would continue to enjoy the same
rank, status and salary at their new assigned stations which they had enjoyed at the
Head Office of the Commission in Metropolitan Manila. Petitioners had not, in other
words, acquired a vested right to serve at the Commission's Head Office.
Secondly, the above conclusion is compelled not only by the statutory provisions
relevant in the instant case, but also by a long line of cases decided by this Court in
respect of different agencies or offices of government.
In one of the more recent of these cases, Department of Education Culture and Sports,
etc., et al. v. Court of Appeals, et al.,
8
this Court held that a person who had been
appointed as "Secondary School Principal II" in the Division of City Schools, District II,
Quezon City, National Capital Region, and who had been stationed as High School
Principal in the Carlos Albert High School in Quezon for a number of years, could
lawfully be reassigned or transferred to the Manuel Roxas High School, also in Quezon
City, without demotion in rank or diminution of salry. This Court held:
The aforequoted provision of Republic Act No. 4670 particularly Section 6
thereof which provides that except for cause and in the exigencies of the
service no teacher shall be transferred without his consent from one
station to another, finds no application in the case at bar as this
is predicated upon the theory that the teacher concerned is appointed
not merely assigned to a particular station. Thus:
The rule pursued by plaintiff only goes so far as
the appointed indicates a specification. Otherwise, the
constitutionally ordained security of tenure cannot shield her.
In appointments of this nature, this Court has consistently
rejected the officer's demand to remain even as public
service dictates that a transfer be made in a particular
station. Judicial attitude toward transfers of this nature is
expressed in the following statement in Ibaez, et
al. vs. Commission on Elections, et al. (G.R. No.
L-26558, April 27, 1967; 19 SCRA 1002 [1967]);
That security of tenure is an essential and
constitutionally guaranteed feature of our Civil
Service System, is not open to debate. The
mantle of its protection extends not only
against removals without cause but also
against unconsented transfer which, as
repeatedly enunciatEd, are tantamount to
removals which are within the ambit of the
fundamental guarantee. However, the
availability of that security of tenure necessarily
depends, in the first instance, upon the nature
of the appointment (Hojilla vs. Marino, 121 Phil.
280 [1965].) Such that the rule which
proscribes transfers without consent as
anathema to the security of tenure is
predicated upon the theory that the officer
involved is appointed not
merely assigned to a particular
station(Miclat v. Ganaden, et al., 108 Phil. 439
[1960]; Jaro v. Hon. Valencia, et al., 118 Phil.
728 [1963]). [Brillantes v. Guevarra, 27 SCRA
138 (1969)]
The appointment of Navarro as principal does not refer to any particular
station or school. As such, she could be assigned to any station and she is
not entitled to stay permanently at any specific school. (Bongbong v.
Parado, 57 SCRA 623) When she was assigned to the Carlos Albert High
School, it could not have been with the intention to let her stay in said
school permanently. Otherwise, her appointment would have so stated.
Consequently, she may be assigned to any station or school in Quezon
City as the exigencies of public service require even without consent. As
this Court ruled inBrillantes v. Guevarra, 27 SCRA 138,
143
Plaintiff's confident stride falters. She took too loose a view
of the applicable jurisprudence. Her refuge behind the
mantle of security of tenure guaranteed by the Constitution is
not impenetrable. She proceeds upon the assumption that
she occupies her station in Sinalang Elementary School by
appointment. But her first appointment as Principal merely
reads thus: "You are hereby appointed a Principal
(Elementary School) in the Bureau of Public Schools,
Department of Education", without mentioning her station.
She cannot therefore claim security of tenure as Principal of
Sinalang Elementary School or any particular station. She
may be assigned to any station as exigency of public service
requires, even without her consent. She thus has no right of
choice.
9
(Emphasis supplied; citation omitted)
In the very recent case of Fernando, et al. v. Hon. Sto. Tomas, etc., et
a1.,
10
the Court addressed appointments of petitioners as "Mediators-Arbiters in the
National Capital Region" in dismissing a challenge on certiorari to resolutions of the
CSC and orders of the Secretary of Labor. The Court said:
Petitioners were appointed as Mediator Arbiters in the National Capital
Region. They were not, however, appointed to a specific station or
particular unit of the Department of Labor in the National Capital Region
(DOLE-NCR). Consequently, they can always be reassigned from one
organizational unit to another of the same agency where, in the opinion of
respondent Secretary, their services may be used more effectively. As
such they can neither claim a vested right to the station to which they were
assigned nor to security of tenure thereat. As correctly observed by the
Solicitor General, petitioners' reassignment is not a transfer for they were
not removed from their position as med-arbiters. They were not given new
appointments to new positions. It indubitably follows, therefore, that
Memorandum Order No. 4 ordering their reassignment in the interest of
the service is legally in order.
11
(Emphases supplied)
In Quisumbing v. Gumban,
12
the Court, dealing with an appointment in the
Bureau of Public Schools of the Department of Education, Culture and Sports,
ruled as follows:
After a careful scrutiny of the records, it is to be underscored that the
appointment of private respondent Yap is simply that of a District
Supervisor of the Bureau of Public Schools which does not indicate a
specific station (Rollo, p. 13). A such, she could be assigned to any
station and she is no entitled to stay permanently at any specific
station (Bongbong v. Parado, 57 SCRA 623 [1974]; Department of
Education, Culture and Sports v. Court of Appeals [G.R. 81032, March 22,
1990] citingBrillantes v. Guevarra [27 SCRA 138 [1969]).
13

Again, in Ibaez v. Commission on Elections,
14
the Court had before it petitioners'
appointments as "Election Registrars in the Commission of Elections," without any
intimation to what city, municipality or municipal district they had been appointed as
such.
15
The Court held that since petitioners "were not appointed to, and consequently
not entitled to any security of tenure or permanence in, any specific station," "on general
principles, they [could] be transferred as the exigencies of the service required," and
that they had no right to complain against any change in assignment. The Court further
held that assignment to a particular station after issuance of the appointment was not
necessary to complete such appointment:
. . . . We cannot subscribe to the theory that an assignment to a particular
station, in the light of the terms of the appointments in question, was
necessary to complete the said appointments. The approval thereof by the
Commissioner of Civil Service gave those appointments the stamp of
finality.With the view that the respondent Commission then took of its
power in the premises and the demand of the mission it set out to
accomplish with the appointments it extended, said appointments were
definitely meant to be complete as then issued. The subsequent
assignment of the appointees thereunder that the said respondent
Commission held in reserve to be exercised as the needs of each locality
justified did not in any way detract from the perfection attained by the
appointments beforehand. And the respective appointees were entitled
only to such security of tenure as the appointment papers concerned
actually conferred not in that of any place to which they may have been
subsequently assigned. . . . As things stand, in default of any particular
station stated in their respective appointments, no security of tenure can
be asserted by the petitioners on the basis of the mere assignments which
were given to them. A contrary rule will erase altogether the demarcation
line we have repeatedly drawn between appointment and assignment as
two distinct concepts in the law of public officers.
16
(Emphases supplied)
The petitioner, in Miclat v. Ganaden,
17
had been appointed as a "Welfare Office
Incharge, Division of Urban, Rural and Community Administration, Social Welfare
Administration." She was assigned as Social Welfare Incharge of the Mountain
Province, by an office order of the Administrator, Social Welfare Administration. After a
little more than a year; petitioner was assigned elsewhere and respondent Ganaden
transferred to petitioner's first station in Baguio City. The Court ruled that petitioner was
not entitled to remain in her first station, In Jaro v. Hon. Valencia, et al.,
18
petitioner Dr.
Jaro had been appointed "Physician in the Municipal Maternity and Charity Clinics,
Bureau of Hospitals." He was first assigned to the Municipal Maternity and Charity
Clinics in Batulati, Davao, and later to the corresponding clinic in Saug, Davao and then
to Catil, Davao. He was later assigned to the Municipality of Padada, also of Davao
Province. He resisted his last assignment and brought mandamus against the Secretary
of Health to compel the latter to return him to his station in Catil, Davao as Municipal
Health Officer thereof. The Court, applying Miclat v. Ganaden dismissed this Petition
holding that his appointment not being to any specific station but as a physician in the
Municipal Maternity and Charity Clinics, Bureau of Hospitals, he could be transferred or
assigned to any station where, in the opinion of the Secretary of Health, his services
may be utilized more effectively.
19

Also noteworthy is Sta. Maria v. Lopez
20
which involved the appointment of petitioner
Sta. Maria as "Dean, College of Education, University of the Philippines." Dean Sta.
Maria was transferred by the President of the University of the Philippines to the Office
of the President, U.P., without demotion in rank or salary, thereby acceding to the
demands of student activists who were boycotting their classes in the U.P. College of
Education. Dean Sta. Maria assailed his transfer as an illegal and unconstitutional
removal from office. In upholding Dean Sta. Maria's claim, the Court, speaking through
Mr. Justice Sanchez, laid down the applicable doctrine in the following terms:
4. Concededly, transfers there are which do not amount to removal. Some
such transfer can be effected without the need for charges being
preferred, without trial or hering, and even without the consent of the
employee.
The clue to such transfers may be found in the "nature of the
appointment." Where the appointment does not indicate a specific station,
an employee may be transferred or reassigned provided the transfer
affects no substantial change in title, rank and salary. Thus one who is
appointed "principal in the Bureau of Public Schools" and is designated to
head a pilot school may be transferred to the post of principal of another
school.
And the rule that outlaws unconsented transfers as anathema to security
of tenure applies only to an officer who is appointed not merely
assigned to a particular station. Such a rule does not prescribe a
transfer carried out under a specific statute that empowers the head of an
agency to periodically reassign the employees and officers in order to
improve the service of the agency. The use of approved techniques or
methods in personnel management to harness the abilities of employees
to promote optimum public service cannot-be objected to. . . .
5. The next point of inquiry is whether or not Administrative Order 77
would stand the test of validity vis-a-vis the principles just enunciated.
xxx xxx xxx
To be stressed at this point, however, is that the appointment of Sta. Maria
is that of "Dean, College of Education, University of the Philippines." He is
not merely a dean "in the university." His appointment is to a specific
position; and, more importantly, to a specific station.
21
(Citations omitted;
emphases supplied)
For all the foregoing we conclude that the reassignment of petitioners Fernandez and
de Lima from their stations in the OPIA and OPR, respectively, to the Research
Development Office (RDO) and from the RDO to the Commissions Regional Offices in
Regions V and III, respectively, without their consent, did not constitute a violation of
their constitutional right to security of tenure.
WHEREFORE, the Petition for Certiorari, Prohibition and Mandamus with Prayer for
Writ of Preliminary Injunction or Temporary Restraining Order is hereby DISMISSED.
The Temporary Restraining Order issued by this Court on 27 September 1994 is hereby
LIFTED. Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo Quiason,
Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur.
G.R. No. 116033 February 26, 1997
ALFREDO L. AZARCON, petitioner,
vs.
SANDIGANBAYAN, PEOPLE OF THE PHILIPPINES and JOSE C.
BATAUSA, respondents.

PANGANIBAN, J .:
Does the Sandiganbayan have jurisdiction over a private individual who is charged with
malversation of public funds as a principal after the said individual had been designated
by the Bureau of Internal Revenue as a custodian of distrained property? Did such
accused become a public officer and therefore subject to the graft court's jurisdiction as
a consequence of such designation by the BIR?
These are the main questions in the instant petition for review of Respondent
Sandiganbayan's Decision
1
in Criminal Case No. 14260 promulgated on March 8, 1994,
convicting petitioner of malversation of public funds and property, and
Resolution
2
dated June 20, 1994, denying his motion for new trial or reconsideration
thereof.
The Facts
Petitioner Alfredo Azarcon owned and operated an earth-moving business, hauling "dirt
and ore."
3
His services were contracted by the Paper Industries Corporation of the
Philippines (PICOP) at its concession in Mangagoy, Surigao del Sur. Occasionally, he
engaged the services of sub-contractors like Jaime Ancla whose trucks were left at the
former's premises.
4
From this set of circumstances arose the present controversy.
. . . It appears that on May 25, 1983, a Warrant of Distraint of Personal
Property was issued by the Main Office of the Bureau of Internal Revenue
(BIR) addressed to the Regional Director (Jose Batausa) or his authorized
representative of Revenue Region 10, Butuan City commanding the latter
to distraint the goods, chattels or effects and other personal property of
Jaime Ancla, a sub-contractor of accused Azarcon and, a delinquent
taxpayer. The Warrant of Garnishment was issued to accused Alfredo
Azarcon ordering him to transfer, surrender, transmit and/or remit to BIR
the property in his possession owned by taxpayer Ancla. The Warrant of
Garnishment was received by accused Azarcon on June 17, 1985.
5

Petitioner Azarcon, in signing the "Receipt for Goods, Articles, and Things Seized Under
Authority of the National Internal Revenue," assumed the undertakings specified in the
receipt the contents of which are reproduced as follows:
(I), the undersigned, hereby acknowledge to have received from Amadeo
V. San Diego, an Internal Revenue Officer, Bureau of Internal Revenue of
the Philippines, the following described goods, articles, and things:
Kind of property Isuzu dump truck
Motor number E120-229598
Chassis No. SPZU50-1772440
Number of CXL 6
Color Blue
Owned By Mr. Jaime Ancla
the same having been this day seized and left in (my) possession pending
investigation by the Commissioner of Internal Revenue or his duly
authorized representative. (I) further promise that (I) will faithfully keep,
preserve, and, to the best of (my) ability, protect said goods, articles, and
things seized from defacement, demarcation, leakage, loss, or destruction
in any manner; that (I) will neither alter nor remove, nor permit others to
alter or remove or dispose of the same in any manner without the express
authority of the Commissioner of Internal Revenue; and that (I) will
produce and deliver all of said goods, articles, and things upon the order
of any court of the Philippines, or upon demand of the Commissioner of
Internal Revenue or any authorized officer or agent of the Bureau of
Internal Revenue.
6

Subsequently, Alfredo Azarcon wrote a letter dated November 21, 1985 to the BIR's
Regional Director for Revenue Region 10 B, Butuan City stating that
. . . while I have made representations to retain possession of the property
and signed a receipt of the same, it appears now that Mr. Jaime Ancla
intends to cease his operations with us. This is evidenced by the fact that
sometime in August, 1985 he surreptitiously withdrew his equipment from
my custody. . . . In this connection, may I therefore formally inform you
that it is my desire to immediately relinquish whatever responsibilities I
have over the above-mentioned property by virtue of the receipt I have
signed. This cancellation shall take effect immediately. . . .
7

Incidentally, the petitioner reported the taking of the truck to the security manager
of PICOP, Mr. Delfin Panelo, and requested him to prevent this truck from being
taken out of the PICOP concession. By the time the order to bar the truck's exit
was given, however, it was too late.
8

Regional Director Batausa responded in a letter dated May 27, 1986, to wit:
An analysis of the documents executed by you reveals that while you are
(sic) in possession of the dump truck owned by JAIME ANCLA, you
voluntarily assumed the liabilities of safekeeping and preserving the unit in
behalf of the Bureau of Internal Revenue. This is clearly indicated in the
provisions of the Warrant of Garnishment which you have signed, obliged
and committed to surrender and transfer to this office. Your failure
therefore, to observe said provisions does not relieve you of your
responsibility.
9

Thereafter, the Sandiganbayan found that
On 11 June 1986, Mrs. Marilyn T. Calo, Revenue Document Processor of
Revenue Region 10 B, Butuan City, sent a progress report to the Chief of
the Collection Branch of the surreptitious taking of the dump truck and that
Ancla was renting out the truck to a certain contractor by the name of
Oscar Cueva at PICOP (Paper Industries Corporation of the Philippines,
the same company which engaged petitioner's earth moving services),
Mangagoy, Surigao del Sur. She also suggested that if the report were
true, a warrant of garnishment be reissued against Mr. Cueva for whatever
amount of rental is due from Ancla until such time as the latter's tax
liabilities shall be deemed satisfied. . . However, instead of doing so,
Director Batausa filed a letter-complaint against the (herein Petitioner) and
Ancla on 22 January 1988, or after more than one year had elapsed from
the time of Mrs. Calo's report.
10

Provincial Fiscal Pretextato Montenegro "forwarded the records of the complaint . . . to
the Office of the Tanodbayan" on May 18, 1988. He was deputized Tanodbayan
prosecutor and granted authority to conduct preliminary investigation on August 22,
1988, in a letter by Special Prosecutor Raul Gonzales approved by Ombudsman
(Tanodbayan) Conrado Vasquez.
11

Along with his co-accused Jaime Ancla, Petitioner Azarcon was charged before the
Sandiganbayan with the crime of malversation of public funds or property under Article
217 in relation to Article 222 of the Revised Penal Code (RPC) in the following
Information
12
filed on January 12, 1990, by Special Prosecution Officer Victor Pascual:
That on or about June 17, 1985, in the Municipality of Bislig, Province of
Surigao del Sur, Philippines, and within the jurisdiction of this Honorable
Court, accused Alfredo L. Azarcon, a private individual but who, in his
capacity as depository/administrator of property seized or deposited by the
Bureau of Internal Revenue, having voluntarily offered himself to act as
custodian of one Isuzu Dumptruck (sic) with Motor No. E120-22958,
Chasis No. SPZU 50-1772440, and number CXL-6 and was authorized to
be such under the authority of the Bureau of Internal Revenue, has
become a responsible and accountable officer and said motor vehicle
having been seized from Jaime C. Ancla in satisfaction of his tax liability in
the total sum of EIGHTY THOUSAND EIGHT HUNDRED THIRTY ONE
PESOS and 59/100 (P80,831.59) became a public property and the value
thereof as public fund, with grave abuse of confidence and conspiring and
confederating with said Jaime C. Ancla, likewise, a private individual, did
then and there wilfully, (sic) unlawfully and feloniously misappropriate,
misapply and convert to his personal use and benefit the aforementioned
motor vehicle or the value thereof in the aforestated amount, by then and
there allowing accused Jaime C. Ancla to remove, retrieve, withdraw and
tow away the said Isuzu Dumptruck (sic) with the authority, consent and
knowledge of the Bureau of Internal Revenue, Butuan City, to the damage
and prejudice of the government in the amount of P80,831.59 in a form of
unsatisfied tax liability.
CONTRARY TO LAW.
The petitioner filed a motion for reinvestigation before the Sandiganbayan on May 14,
1991, alleging that: (1) the petitioner never appeared in the preliminary investigation;
and (2) the petitioner was not a public officer, hence a doubt exists as to why he was
being charged with malversation under Article 217 of the Revised Penal Code.
13
The
Sandiganbayan granted the motion for reinvestigation on May 22, 1991.
14
After the
reinvestigation, Special Prosecution Officer Roger Berbano, Sr., recommended the
"withdrawal of the information"
15
but was "overruled by the Ombudsman."
16

A motion to dismiss was filed by petitioner on March 25, 1992 on the ground that the
Sandiganbayan did not have jurisdiction over the person of the petitioner since he was
not a public officer.
17
On May 18, 1992; the Sandiganbayan denied the motion.
18

When the prosecution finished presenting its evidence, the petitioner then filed a motion
for leave to file demurrer to evidence which was denied on November 16, 1992, "for
being without merit."
19
The petitioner then commenced and finished presenting his
evidence on February 15, 1993.
The Respondent Court's Decision
On March 8, 1994, Respondent Sandiganbayan
20
rendered a Decision,
21
the
dispositive portion of which reads:
WHEREFORE, the Court finds accused Alfredo Azarcon y Leva GUILTY
beyond reasonable doubt as principal of Malversation of Public Funds
defined and penalized under Article 217 in relation to Article 222 of the
Revised Penal Code and, applying the Indeterminate Sentence Law, and
in view of the mitigating circumstance of voluntary surrender, the Court
hereby sentences the accused to suffer the penalty of imprisonment
ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor in its
maximum period to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and
ONE (1) DAY of Reclusion Temporal. To indemnify the Bureau of Internal
Revenue the amount of P80,831.59; to pay a fine in the same amount
without subsidiary imprisonment in case of insolvency; to suffer special
perpetual disqualification; and, to pay the costs.
Considering that accused Jaime Ancla has not yet been brought within the
jurisdiction of this Court up to this date, let this case be archived as
against him without prejudice to its revival in the event of his arrest or
voluntary submission to the jurisdiction of this Court.
SO ORDERED.
Petitioner, through new counsel,
22
filed a motion for new trial or reconsideration on
March 23, 1994, which was denied by the Sandiganbayan in its Resolution
23
dated
December 2, 1994.
Hence, this petition.
The Issues
The petitioner submits the following reasons for the reversal of the Sandiganbayan's
assailed Decision and Resolution:
I. The Sandiganbayan does not have jurisdiction over crimes
committed solely by private individuals.
II. In any event, even assuming arguendo that the
appointment of a private individual as a custodian or a
depositary of distrained property is sufficient to convert such
individual into a public officer, the petitioner cannot still be
considered a public officer because:
[A]
There is no provision in the National Internal Revenue Code
which authorizes the Bureau of Internal Revenue to
constitute private individuals as depositaries of distrained
properties.
[B]
His appointment as a depositary was not by virtue of a direct
provision of law, or by election or by appointment by a
competent authority.
III. No proof was presented during trial to prove that the
distrained vehicle was actually owned by the accused Jaime
Ancla; consequently, the government's right to the subject
property has not been established.
IV. The procedure provided for in the National Internal
Revenue Code concerning the disposition of distrained
property was not followed by the B.I.R., hence the distraint of
personal property belonging to Jaime C. Ancla and found
allegedly to be in the possession of the petitioner is therefore
invalid.
V. The B.I.R. has only itself to blame for not promptly selling
the distrained property of accused Jaime C. Ancla in order to
realize the amount of back taxes owed by Jaime C. Ancla to
the Bureau.
24

In fine, the fundamental issue is whether the Sandiganbayan had jurisdiction over the
subject matter of the controversy. Corollary to this is the question of whether petitioner
can be considered a public officer by reason of his being designated by the Bureau of
Internal Revenue as a depositary of distrained property.
The Court's Ruling
The petition is meritorious.
Jurisdiction of the Sandiganbayan
It is hornbook doctrine that in order "(to) ascertain whether a court has jurisdiction or
not, the provisions of the law should be inquired into."
25
Furthermore, "the jurisdiction of
the court must appear clearly from the statute law or it will not be held to exist. It cannot
be presumed or implied."
26
And for this purpose in criminal cases, "the jurisdiction of a
court is determined by the law at the time of commencement of the action."
27

In this case, the action was instituted with the filing of this information on January 12,
1990; hence, the applicable statutory provisions are those of P.D. No. 1606, as
amended by P.D. No. 1861 on March 23, 1983, but prior to their amendment by R.A.
No. 7975 on May 16, 1995. At that time, Section 4 of P.D. No. 1606 provided that:
Sec. 4. Jurisdiction. The Sandiganbayan shall exercise:
(a) Exclusive original jurisdiction in all cases involving:
(1) Violations of Republic Act No. 3019, as amended,
otherwise known as the Anti-Graft and Corrupt Practices Act,
Republic Act No. 1379, and Chapter II, Section 2, Title VII of
the Revised Penal Code;
(2) Other offenses or felonies committed by public officers
and employees in relation to their office, including those
employed in government-owned or controlled corporations,
whether simple or complexed with other crimes, where the
penalty prescribed by law is higher than prision
correccional or imprisonment for six (6) years, or a fine of
P6,000.00: PROVIDED, HOWEVER, that offenses or
felonies mentioned in this paragraph where the penalty
prescribed by law does not exceed prision correccional or
imprisonment for six (6) years or a fine of P6,000.00 shall be
tried by the proper Regional Trial Court, Metropolitan Trial
Court, Municipal Trial Court and Municipal Circuit Trial Court.
xxx xxx xxx
In case private individuals are charged as co-principals, accomplices or
accessories with the public officers or employees, including those
employed in government-owned or controlled corporations, they shall be
tried jointly with said public officers and employees.
xxx xxx xxx
The foregoing provisions unequivocally specify the only instances when the
Sandiganbayan will have jurisdiction over a private individual, i.e. when the complaint
charges the private individual either as a co-principal, accomplice or accessory of a
public officer or employee who has been charged with a crime within its jurisdiction.
Azarcon: A Public Officer or A Private Individual?
The Information does not charge petitioner Azarcon of being a co-principal, accomplice
or accessory to a public officer committing an offense under the Sandiganbayan's
jurisdiction. Thus, unless petitioner be proven a public officer, the Sandiganbayan will
have no jurisdiction over the crime charged. Article 203 of the RPC determines who are
public officers:
Who are public officers. For the purpose of applying the provisions of
this and the preceding titles of the book, any person who, by direct
provision of the law, popular election, popular election or appointment by
competent authority, shall take part in the performance of public functions
in the Government of the Philippine Islands, or shall perform in said
Government or in any of its branches public duties as an employee, agent,
or subordinate official, of any rank or classes, shall be deemed to be a
public officer.
Thus,
(to) be a public officer, one must be
(1) Taking part in the performance of public functions in the government,
or
Performing in said Government or any of its branches public duties as
an employee, agent, or subordinate official, of any rank or class; and
(2) That his authority to take part in the performance of public functions or
to perform public duties must be
a. by direct provision of the law, or
b. by popular election, or
c. by appointment by competent authority.
28

Granting arguendo that the petitioner, in signing the receipt for the truck constructively
distrained by the BIR, commenced to take part in an activity constituting public
functions, he obviously may not be deemed authorized by popular election. The next
logical query is whether petitioner's designation by the BIR as a custodian of distrained
property qualifies as appointment by direct provision of law, or by competent
authority.
29
We answer in the negative.
The Solicitor General contends that the BIR, in effecting constructive distraint over the
truck allegedly owned by Jaime Ancla, and in requiring Petitioner Alfredo Azarcon who
was in possession thereof to sign a pro forma receipt for it, effectively "designated"
petitioner a depositary and, hence, citing U.S. vs. Rastrollo,
30
a public officer.
31
This is
based on the theory that
(t)he power to designate a private person who has actual possession of a
distrained property as a depository of distrained property is necessarily
implied in the BIR's power to place the property of a delinquent tax payer
(sic) in distraint as provided for under Sections 206, 207 and 208 (formerly
Sections 303, 304 and 305) of the National Internal Revenue Code,
(NIRC) . . . .
32

We disagree. The case of U.S. vs. Rastrollo is not applicable to the case before us
simply because the facts therein are not identical, similar or analogous to those
obtaining here. While the cited case involved a judicial deposit of the proceeds of the
sale of attached property in the hands of the debtor, the case at bench dealt with the
BIR's administrative act of effecting constructive distraint over alleged property of
taxpayer Ancla in relation to his back taxes, property which was received by Petitioner
Azarcon. In the cited case, it was clearly within the scope of that court's jurisdiction and
judicial power to constitute the judicial deposit and give "the depositary a character
equivalent to that of a public official."
33
However, in the instant case, while the BIR had
authority to require Petitioner Azarcon to sign a receipt for the distrained truck, the NIRC
did not grant it power to appoint Azarcon a public officer.
It is axiomatic in our constitutional framework, which mandates a limited government,
that its branches and administrative agencies exercise only that power delegated to
them as "defined either in the Constitution or in legislation or in both."
34
Thus, although
the "appointing power is the exclusive prerogative of the President, . . ."
35
the quantum
of powers possessed by an administrative agency forming part of the executive branch
will still be limited to that "conferred expressly or by necessary or fair implication" in its
enabling act. Hence, "(a)n administrative officer, it has been held, has only such powers
as are expressly granted to him and those necessarily implied in the exercise
thereof."
36
Corollarily, implied powers "are those which are necessarily included in, and
are therefore of lesser degree than the power granted. It cannot extend to other matters
not embraced therein, nor are not incidental thereto."
37
For to so extend the statutory
grant of power "would be an encroachment on powers expressly lodged in Congress by
our Constitution."
38
It is true that Sec. 206 of the NIRC, as pointed out by the
prosecution, authorizes the BIR to effect a constructive distraint by requiring "any
person" to preserve a distrained property, thus:
xxx xxx xxx
The constructive distraint of personal property shall be effected by
requiring the taxpayer or any person having possession or control of such
property to sign a receipt covering the property distrained and obligate
himself to preserve the same intact and unaltered and not to dispose of
the same in any manner whatever without the express authority of the
Commissioner.
xxx xxx xxx
However, we find no provision in the NIRC constituting such person a public officer by
reason of such requirement. The BIR's power authorizing a private individual to act as a
depositary cannot be stretched to include the power to appoint him as a public officer.
The prosecution argues that "Article 222 of the Revised Penal Code . . . defines the
individuals covered by the term 'officers' under Article 217
39
. . ." of the same
Code.
40
And accordingly, since Azarcon became "a depository of the truck seized by
the BIR" he also became a public officer who can be prosecuted under Article 217 . . .
."
41

The Court is not persuaded. Article 222 of the RPC reads:
Officers included in the preceding provisions. The provisions of this
chapter shall apply to private individuals who, in any capacity whatever,
have charge of any insular, provincial or municipal funds, revenues, or
property and to any administrator or depository of funds or property
attached, seized or deposited by public authority, even if such property
belongs to a private individual.
"Legislative intent is determined principally from the language of a statute. Where the
language of a statute is clear and unambiguous, the law is applied according to its
express terms, and interpretation would be resorted to only where a literal interpretation
would be either impossible or absurd or would lead to an injustice."
42
This is particularly
observed in the interpretation of penal statutes which "must be construed with such
strictness as to carefully safeguard the rights of the defendant . . . ."
43
The language of
the foregoing provision is clear. A private individual who has in his charge any of the
public funds or property enumerated therein and commits any of the acts defined in any
of the provisions of Chapter Four, Title Seven of the RPC, should likewise be penalized
with the same penalty meted to erring public officers. Nowhere in this provision is it
expressed or implied that a private individual falling under said Article 222 is to be
deemed a public officer.
After a thorough review of the case at bench, the Court thus finds Petitioner Alfredo
Azarcon and his co-accused Jaime Ancla to be both private individuals erroneously
charged before and convicted by Respondent Sandiganbayan which had no jurisdiction
over them. The Sandiganbayan's taking cognizance of this case is of no moment since
"(j)urisdiction cannot be conferred by . . . erroneous belief of the court that it had
jurisdiction."
44
As aptly and correctly stated by the petitioner in his memorandum:
From the foregoing discussion, it is evident that the petitioner did not
cease to be a private individual when he agreed to act as depositary of the
garnished dump truck. Therefore, when the information charged him and
Jaime Ancla before the Sandiganbayan for malversation of public funds or
property, the prosecution was in fact charging two private individuals
without any public officer being similarly charged as a co-conspirator.
Consequently, the Sandiganbayan had no jurisdiction over the controversy
and therefore all the proceedings taken below as well as the Decision
rendered by Respondent Sandiganbayan, are null and void for lack of
jurisdiction.
45

WHEREFORE, the questioned Resolution and Decision of the Sandiganbayan are
hereby SET ASIDE and declared NULL and VOID for lack of jurisdiction. No costs.
SO ORDERED.
Narvasa, C.J., Davide, Jr., Melo and Francisco, JJ., concur.

[G.R. No. 145368. April 12, 2002]
SALVADOR H. LAUREL, petitioner, vs. HON. ANIANO A. DESIERTO, in his
capacity as Ombudsman, respondent.
D E C I S I O N
KAPUNAN, J .:
On June 13, 1991, President Corazon C. Aquino issued Administrative Order No.
223 constituting a Committee for the preparation of the National Centennial Celebration
in 1998. The Committee was mandated to take charge of the nationwide preparations
for the National Celebration of the Philippine Centennial of the Declaration of Philippine
Independence and the Inauguration of the Malolos Congress.
[1]

Subsequently, President Fidel V. Ramos issued Executive Order No. 128,
reconstituting the Committee for the preparation of the National Centennial
Celebrations in 1998. It renamed the Committee as the National Centennial
Commission. Appointed to chair the reconstituted Commission was Vice-President
Salvador H. Laurel. Presidents Diosdado M. Macapagal and Corazon C. Aquino were
named Honorary Chairpersons.
[2]

Characterized as an ad-hoc body, the existence of the Commission shall
terminate upon the completion of all activities related to the Centennial
Celebrations.
[3]
Like its predecessor Committee, the Commission was tasked to take
charge of the nationwide preparations for the National Celebration of the Philippine
Centennial of the Declaration of Philippine Independence and the Inauguration of the
Malolos Congress.
Per Section 6 of the Executive Order, the Commission was also charged with the
responsibility to prepare, for approval of the President, a Comprehensive Plan for the
Centennial Celebrations within six (6) months from the effectivity of the Executive
Order.
E.O. No. 128 also contained provisions for staff support and funding:
Sec. 3. The Commission shall be provided with technical and administrative staff
support by a Secretariat to be composed of, among others, detailed personnel from the
Presidential Management Staff, the National Commission for Culture and the Arts, and
the National Historical Institute. Said Secretariat shall be headed by a full time
Executive Director who shall be designated by the President.
Sec. 4. The Commission shall be funded with an initial budget to be drawn from the
Department of Tourism and the presidents Contingent Fund, in an amount to be
recommended by the Commission, and approved by the President. Appropriations for
succeeding years shall be incorporated in the budget of the Office of the President.
Subsequently, a corporation named the Philippine Centennial Expo 98 Corporation
(Expocorp) was created.
[4]
Petitioner was among the nine (9) Expocorp incorporators,
who were also its first nine (9) directors. Petitioner was elected Expocorp Chief
Executive Officer.
On August 5, 1998, Senator Ana Dominique Coseteng delivered a privilege speech
in the Senate denouncing alleged anomalies in the construction and operation of the
Centennial Exposition Project at the Clark Special Economic Zone. Upon motion of
Senator Franklin Drilon, Senator Cosetengs privilege speech was referred to the
Committee on Accountability of Public Officers and Investigation (The Blue Ribbon
Committee) and several other Senate Committees for investigation.
On February 24, 1999, President Joseph Estrada issued Administrative Order No.
35, creating an ad hoc and independent citizens committee to investigate all the facts
and circumstances surrounding the Philippine centennial projects, including its
component activities. Former Senator Rene A.V. Saguisag was appointed to chair the
Committee.
On March 23, 1999, the Senate Blue Ribbon Committee filed with the Secretary of
the Senate its Committee Final Report No. 30 dated February 26, 1999. Among the
Committees recommendations was the prosecution by the Ombudsman/DOJ of Dr.
Salvador Laurel, chair of NCC and of EXPOCORP for violating the rules on public
bidding, relative to the award of centennial contracts to AK (Asia Construction &
Development Corp.); for exhibiting manifest bias in the issuance of the NTP (Notice to
Proceed) to AK to construct the FR (Freedom Ring) even in the absence of a valid
contract that has caused material injury to government and for participating in the
scheme to preclude audit by COA of the funds infused by the government for the
implementation of the said contracts all in violation of the anti-graft law.
[5]

Later, on November 5, 1999, the Saguisag Committee issued its own report. It
recommended the further investigation by the Ombudsman, and indictment, in proper
cases of, among others, NCC Chair Salvador H. Laurel for violations of Section 3(e) of
R.A. No. 3019, Section 4(a) in relation to Section 11 of R.A. No. 6713, and Article 217 of
the Revised Penal Code.
The Reports of the Senate Blue Ribbon and the Saguisag Committee were
apparently referred to the Fact-finding and Intelligence Bureau of the Office of the
Ombudsman. On January 27, 2000, the Bureau issued its Evaluation Report,
recommending:
1. that a formal complaint be filed and preliminary investigation be conducted
before the Evaluation and Preliminary Investigation Bureau (EPIB), Office of
the Ombudsman against former NCC and EXPOCORP chair Salvador H.
Laurel, former EXPOCORP President Teodoro Q. Pea and AK President
Edgardo H. Angeles for violation of Sec. 3(e) and (g) of R.A. No. 3019, as
amended in relation to PD 1594 and COA Rules and Regulations;
2. That the Fact Finding and Intelligence Bureau of this Office, act as the
nominal complainant.
[6]

In an Order dated April 10, 2000, Pelagio S. Apostol, OIC-Director of the Evaluation
and Preliminary Investigation Bureau, directed petitioner to submit his counter-affidavit
and those of his witnesses.
On April 24, 2000, petitioner filed with the Office of the Ombudsman a Motion to
Dismiss questioning the jurisdiction of said office.
In an Order dated June 13, 2000, the Ombudsman denied petitioners motion to
dismiss.
On July 3, 2000, petitioner moved for a reconsideration of the June 13, 2000 Order
but the motion was denied in an Order dated October 5, 2000.
On October 25, 2000, petitioner filed the present petition for certiorari.
On November 14, 2000, the Evaluation and Preliminary Investigation Bureau issued
a resolution finding probable cause to indict respondents SALVADOR H. LAUREL and
TEODORO Q. PEA before the Sandiganbayan for conspiring to violate Section 3(e) of
Republic Act No. 3019, in relation to Republic Act No. 1594. The resolution also
directed that an information for violation of the said law be filed against Laurel and
Pea. Ombudsman Aniano A. Desierto approved the resolution with respect to Laurel
but dismissed the charge against Pea.
In a Resolution dated September 24, 2001, the Court issued a temporary restraining
order, commanding respondents to desist from filing any information before the
Sandiganbayan or any court against petitioner for alleged violation of Section 3(e) of the
Anti-Graft and Corrupt Practices Act.
On November 14, 2001, the Court, upon motion of petitioner, heard the parties in
oral argument.
Petitioner assails the jurisdiction of the Ombudsman on the ground that he is not a
public officer because:
A.
EXPOCORP, THE CORPORATION CHAIRED BY PETITIONER LAUREL WHICH
UNDERTOOK THE FREEDOM RING PROJECT IN CONNECTION WITH WHICH
VIOLATIONS OF THE ANTI-GRAFT AND CORRUPT PRACTICES WERE
ALLEGEDLY COMMITTED, WAS A PRIVATE CORPORATION, NOT A
GOVERNMENT-OWNED OR CONTROLLED CORPORATION.
B.
THE NATIONAL CENTENNIAL COMMISSION (NCC) WAS NOT A PUBLIC
OFFICE.
C.
PETITIONER, BOTH AS CHAIRMAN OF THE NCC AND OF EXPOCORP WAS
NOT A PUBLIC OFFICER AS DEFINED UNDER THE ANTI-GRAFT & CORRUPT
PRACTICES ACT.
[7]

In addition, petitioner in his reply
[8]
invokes this Courts decision in Uy vs.
Sandiganbayan,
[9]
where it was held that the jurisdiction of the Ombudsman was limited
to cases cognizable by the Sandiganbayan, i.e., over public officers of Grade 27 and
higher. As petitioners position was purportedly not classified as Grade 27 or higher, the
Sandiganbayan and, consequently, the Ombudsman, would have no jurisdiction over
him.
This last contention is easily dismissed. In the Courts decision in Uy, we held that
it is the prosecutor, not the Ombudsman, who has the authority to file the
corresponding information/s against petitioner in the regional trial court. The
Ombudsman exercises prosecutorial powers only in cases cognizable by the
Sandiganbayan.
In its Resolution of February 22, 2000, the Court expounded:
The clear import of such pronouncement is to recognize the authority of the State and
regular provincial and city prosecutors under the Department of Justice to have control
over prosecution of cases falling within the jurisdiction of the regular courts. The
investigation and prosecutorial powers of the Ombudsman relate to cases rightfully
falling within the jurisdiction of the Sandiganbayan under Section 15 (1) of R.A. 6770
(An Act Providing for the Functional and Structural Organization of the Office of the
Ombudsman, and for other purposes) which vests upon the Ombudsman
primary jurisdiction over cases cognizable by the Sandiganbayan And this is further
buttressed by Section 11 (4a) of R.A. 6770 which emphasizes that the Office of the
Special Prosecutor shall have the power to conduct preliminary investigation and
prosecute criminal cases within the jurisdiction of the Sandiganbayan. Thus, repeated
references to the Sandiganbayans jurisdiction clearly serve to limit the Ombudsmans
and Special Prosecutors authority to cases cognizable by the
Sandiganbayan. [Emphasis in the original.]
The foregoing ruling in Uy, however, was short-lived. Upon motion for clarification
by the Ombudsman in the same case, the Court set aside the foregoing pronouncement
in its Resolution dated March 20, 2001. The Court explained the rationale for this
reversal:
The power to investigate and to prosecute granted by law to the Ombudsman is plenary
and unqualified. It pertains to any act or omission of any public officer or employee
when such act or omission appears to be illegal, unjust, improper or
inefficient. The law does not make a distinction between cases cognizable by the
Sandiganbayan and those cognizable by regular courts. It has been held that the
clause any illegal act or omission of any public official is broad enough to embrace any
crime committed by a public officer or employee.
The reference made by RA 6770 to cases cognizable by the Sandiganbayan,
particularly in Section 15(1) giving the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan, and Section 11(4) granting the Special Prosecutor
the power to conduct preliminary investigation and prosecute criminal cases within the
jurisdiction of the Sandiganbayan, should not be construed as confining the scope of the
investigatory and prosecutory power of the Ombudsman to such cases.
Section 15 of RA 6770 gives the Ombudsman primary jurisdiction over cases
cognizable by the Sandiganbayan. The law defines such primary jurisdiction as
authorizing the Ombudsman to take over, at any stage, from any investigatory agency
of the government, the investigation of such cases. The grant of this authority does not
necessarily imply the exclusion from its jurisdiction of cases involving public officers and
employees by other courts. The exercise by the Ombudsman of his primary jurisdiction
over cases cognizable by the Sandiganbayan is not incompatible with the discharge of
his duty to investigate and prosecute other offenses committed by public officers and
employees. Indeed, it must be stressed that the powers granted by the legislature to
the Ombudsman are very broad and encompass all kinds of malfeasance, misfeasance
and non-feasance committed by public officers and employees during their tenure of
office.
Moreover, the jurisdiction of the Office of the Ombudsman should not be equated with
the limited authority of the Special Prosecutor under Section 11 of RA 6770. The Office
of the Special Prosecutor is merely a component of the Office of the Ombudsman and
may only act under the supervision and control and upon authority of the
Ombudsman. Its power to conduct preliminary investigation and to prosecute is limited
to criminal cases within the jurisdiction of the Sandiganbayan. Certainly, the
lawmakers did not intend to confine the investigatory and prosecutory power of the
Ombudsman to these types of cases. The Ombudsman is mandated by law to act on
all complaints against officers and employees of the government and to enforce their
administrative, civil and criminal liability in every case where the evidence warrants. To
carry out this duty, the law allows him to utilize the personnel of his office and/or
designate any fiscal, state prosecutor or lawyer in the government service to act as
special investigator or prosecutor to assist in the investigation and prosecution of certain
cases. Those designated or deputized to assist him work under his supervision and
control. The law likewise allows him to direct the Special Prosecutor to prosecute cases
outside the Sandiganbayans jurisdiction in accordance with Section 11 (4c) of RA 6770.
The prosecution of offenses committed by public officers and employees is one of the
most important functions of the Ombudsman. In passing RA 6770, the Congress
deliberately endowed the Ombudsman with such power to make him a more active and
effective agent of the people in ensuring accountability in public office. A review of the
development of our Ombudsman law reveals this intent. [Emphasis in the original.]
Having disposed of this contention, we proceed to the principal grounds upon which
petitioner relies. We first address the argument that petitioner, as Chair of the NCC,
was not a public officer.
The Constitution
[10]
describes the Ombudsman and his Deputies as protectors of
the people, who shall act promptly on complaints filed in any form or manner
against public officials or employees of the government, or any subdivision, agency or
instrumentality thereof, including government-owned or controlled corporations. Among
the awesome powers, functions, and duties vested by the Constitution
[11]
upon the
Office of the Ombudsman is to [i]nvestigate 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.
The foregoing constitutional provisions are substantially reproduced in R.A. No.
6770, otherwise known as the Ombudsman Act of 1989. Sections 13 and 15(1) of said
law respectively provide:
SEC. 13. Mandate. The Ombudsman and his Deputies, as protectors of the people
shall act promptly on complaints file in any form or manner against officers or
employees of the Government, or of any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations, and enforce their
administrative, civil and criminal liability in every case where the evidence warrants in
order to promote efficient service by the Government to the people.
SEC. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the
following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any act or
omission of any public officer or employee, office or agency, when such act or omission
appears to be illegal unjust, improper or inefficient. It has primary jurisdiction over
cases cognizable by the Sandiganbayan and, in the exercise of this primary jurisdiction,
it may take over, at any stage, from any investigatory agency of Government, the
investigation of such cases;
x x x.
The coverage of the law appears to be limited only by Section 16, in relation to
Section 13, supra:
SEC 16. Applicability. The provisions of this Act shall apply to all kinds of
malfeasance, misfeasance and non-feasance that have been committed by any officer
or employee as mentioned in Section 13 hereof, during his tenure of office.
In sum, the Ombudsman has the power to investigate any malfeasance,
misfeasance and non-feasance by a public officer or employee of the government, or of
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations.
[12]

Neither the Constitution nor the Ombudsman Act of 1989, however, defines who
public officers are. A definition of public officers cited in jurisprudence
[13]
is that
provided by Mechem, a recognized authority on the subject:
A public office is the right, authority and duty, created and conferred by law, by which,
for a given period, either fixed by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public. The individual so invested is a
public officer.
[14]

The characteristics of a public office, according to Mechem, include the delegation
of sovereign functions, its creation by law and not by contract, an oath, salary,
continuance of the position, scope of duties, and the designation of the position as an
office.
[15]

Petitioner submits that some of these characteristics are not present in the position
of NCC Chair, namely: (1) the delegation of sovereign functions; (2) salary, since he
purportedly did not receive any compensation; and (3) continuance, the tenure of the
NCC being temporary.
Mechem describes the delegation to the individual of some of the sovereign
functions of government as [t]he most important characteristic in determining whether
a position is a public office or not.
The most important characteristic which distinguishes an office from an employment or
contract is that the creation and conferring of an office involves a delegation to the
individual of some of the sovereign functions of government, to be exercised by him for
the benefit of the public; that some portion of the sovereignty of the country, either
legislative, executive or judicial, attaches, for the time being, to be exercised for the
public benefit. Unless the powers conferred are of this nature, the individual is not a
public officer.
[16]

Did E.O. 128 delegate the NCC with some of the sovereign functions of
government? Certainly, the law did not delegate upon the NCC functions that can be
described as legislative or judicial. May the functions of the NCC then be described as
executive?
We hold that the NCC performs executive functions. The executive power is
generally defined as the power to enforce and administer the laws. It is the power of
carrying the laws into practical operation and enforcing their due observance.
[17]
The
executive function, therefore, concerns the implementation of the policies as set forth by
law.
The Constitution provides in Article XIV (Education, Science and Technology, Arts,
Culture, and Sports) thereof:
Sec. 15. Arts and letters shall enjoy the patronage of the State. The State shall
conserve, promote, and popularize the nations historical and cultural heritage and
resources, as well as artistic creations.
In its preamble, A.O. No. 223 states the purposes for the creation of the Committee
for the National Centennial Celebrations in 1998:
Whereas, the birth of the Republic of the Philippines is to be celebrated in 1998, and the
centennial presents an important vehicle for fostering nationhood and a strong sense of
Filipino identity;
Whereas, the centennial can effectively showcase Filipino heritage and thereby
strengthen Filipino values;
Whereas, the success of the Centennial Celebrations may be insured only through long-
range planning and continuous developmental programming;
Whereas, the active participation of the private sector in all areas of special expertise
and capability, particularly in communication and information dissemination, is
necessary for long-range planning and continuous developmental programming;
Whereas, there is a need to create a body which shall initiate and undertake the primary
task of harnessing the multisectoral components from the business, cultural, and
business sectors to serve as effective instruments from the launching and overseeing of
this long-term project;
x x x.
E.O. No. 128, reconstituting the Committee for the National Centennial Celebrations
in 1998, cited the need to strengthen the said Committee to ensure a more coordinated
and synchronized celebrations of the Philippine Centennial and wider participation from
the government and non-government or private organizations. It also referred to the
need to rationalize the relevance of historical links with other countries.
The NCC was precisely created to execute the foregoing policies and
objectives, to carry them into effect. Thus, the Commission was vested with the
following functions:
(a) To undertake the overall study, conceptualization, formulation
and implementation of programs and projects on the utilization of culture,
arts, literature and media as vehicles for history, economic endeavors, and
reinvigorating the spirit of national unity and sense of accomplishment in
every Filipino in the context of the Centennial Celebrations. In this regard, it
shall include a Philippine National Exposition 98 within Metro Manila, the
original eight provinces, and Clark Air Base as its major venues;
(b) To act as principal coordinator for all the activities related to
awareness and celebration of the Centennial;
(c) To serve as the clearing house for the preparation and dissemination
of all information about the plans and events for the Centennial Celebrations;
(d) To constitute working groups which shall undertake the
implementation of the programs and projects;
(e) To prioritize the refurbishment of historical sites and structures
nationwide. In this regard, the Commission shall formulate schemes (e.g.
lease-maintained-and-transfer, build-operate-transfer, and similar
arrangements) to ensure the preservation and maintenance of the historical
sites and structures;
(f) To call upon any government agency or instrumentality and corporation, and
to invite private individuals and organizations to assist it in the performance
of its tasks; and,
(g) Submit regular reports to the President on the plans, programs,
projects, activities as well as the status of the preparations for the
Celebration.
[18]

It bears noting the President, upon whom the executive power is vested,
[19]
created
the NCC by executive order. Book III (Office of the President), Chapter 2 (Ordinance
Power), Section 2 describes the nature of executive orders:
SEC. 2. Executive Orders. Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders. [Underscoring ours.]
Furthermore, the NCC was not without a role in the countrys economic
development, especially in Central Luzon. Petitioner himself admitted as much in the
oral arguments before this Court:
MR. JUSTICE REYNATO S. PUNO:
And in addition to that expounded by Former President Ramos, dont
you agree that the task of the centennial commission was also to focus on
the long term over all socio economic development of the zone and Central
Luzon by attracting investors in the area because of the eruption of Mt.
Pinatubo.
FORMER VICE PRESIDENT SALVADOR H. LAUREL:
I am glad Your Honor touched on that because that is something I
wanted to touch on by lack of material time I could not but that is a very
important point. When I was made Chairman I wanted the Expo to be in
Batangas because I am a Batangeo but President Ramos said Mr. Vice
President the Central Luzon is suffering, suffering because of the eruption
of Mt. Pinatubo let us try to catalize [sic] economic recovery in that area by
putting this Expo in Clark Field and so it was done I agreed and Your Honor
if I may also mention we wanted to generate employment aside from
attracting business investments and employment. And the Estrada
administration decided to junk this project there 48, 40 thousand people
who lost job, they were employed in Expo. And our target was to provide
75 thousand jobs. It would have really calibrated, accelerated the
development of Central Luzon. Now, I think they are going back to that
because they had the airport and there are plan to revive the Expo site into
key park which was the original plan.
There can hardly be any dispute that the promotion of industrialization and full
employment is a fundamental state policy.
[20]

Petitioner invokes the ruling of this Court in Torio vs. Fontanilla
[21]
that the holding
by a municipality of a town fiesta is a proprietary rather than a governmental function.
Petitioner argues that the holding of a nationwide celebration which marked the
nations 100
th
birthday may be likened to a national fiesta which involved only the
exercise of the national governments proprietary function.
[22]
In Torio, we held:
[Section 2282 of the Chapter on Municipal Law of the Revised Administrative Code]
simply gives authority to the municipality to [celebrate] a yearly fiesta but it does not
impose upon it a duty to observe one. Holding a fiesta even if the purpose is to
commemorate a religious or historical event of the town is in essence an act for
the special benefit of the community and notfor the general welfare of the public
performed in pursuance of a policy of the state. The mere fact that the celebration, as
claimed, was not to secure profit or gain but merely to provide entertainment to the town
inhabitants is not a conclusive test. For instance, the maintenance of parks is not a
source of income for the town, nonetheless it is [a] private undertaking as distinguished
from the maintenance of public schools, jails, and the like which are for public service.
As stated earlier, there can be no hard and fast rule for purposes of determining the true
nature of an undertaking or function of a municipality; the surrounding circumstances of
a particular case are to be considered and will be decisive. The basic element, however
beneficial to the public the undertaking may be, is that it is government in essence,
otherwise, the function becomes private or propriety in character. Easily, no
governmental or public policy of the state is involved in the celebration of a town fiesta.
Torio, however, did not intend to lay down an all-encompassing doctrine. Note that
the Court cautioned that there can be no hard and fast rule for purposes of determining
the true nature of an undertaking or function of a municipality; the surrounding
circumstances of a particular case are to be considered and will be decisive. Thus, in
footnote 15 of Torio, the Court, citing an American case, illustrated how the
surrounding circumstances plus the political, social, and cultural backgrounds could
produce a conclusion different from that in Torio:
We came across an interesting case which shows that surrounding circumstances plus
the political, social, and cultural backgrounds may have a decisive bearing on this
question. The case of Pope v. City of New Haven, et al. was an action to recover
damages for personal injuries caused during a Fourth of July fireworks display resulting
in the death of a bystander alleged to have been caused by defendants
negligence. The defendants demurred to the complaint invoking the defense that the
city was engaged in the performance of a public governmental duty from which it
received no pecuniary benefit and for negligence in the performance of which no
statutory liability is imposed. This demurrer was sustained by the Superior Court of
New Haven Country. Plaintiff sought to amend his complaint to allege that the
celebration was for the corporate advantage of the city. This was denied. In affirming
the order, the Supreme Court of Errors of Connecticut held inter alia:
Municipal corporations are exempt from liability for the negligent performance of purely
public governmental duties, unless made liable by statute.
A municipality corporation, which under permissive authority of its charter or of statute,
conducted a public Fourth of July celebration, including a display of fireworks, and sent
up a bomb intended to explode in the air, but which failed to explode until it reached the
ground, and then killed a spectator, was engaged in the performance of a governmental
duty. (99 A.R. 51)
This decision was concurred in by three Judges while two dissented.
At any rate the rationale of the Majority Opinion is evident from [this] excerpt:
July 4th, when that date falls upon Sunday, July 5th, is made a public holiday, called
Independence Day, by our statutes. All or nearly all of the other states have similar
statutes. While there is no United States statute making a similar provision, the different
departments of the government recognize, and have recognized since the government
was established, July 4th as a national holiday. Throughout the country it has been
recognized and celebrated as such. These celebrations, calculated to entertain and
instruct the people generally and to arouse and stimulate patriotic sentiments and love
of country, frequently take the form of literary exercises consisting of patriotic speeches
and the reading of the Constitution, accompanied by a musical program including
patriotic air sometimes preceded by the firing of cannon and followed by fireworks. That
such celebrations are of advantage to the general public and their promotion a proper
subject of legislation can hardly be questioned. x x x
Surely, a town fiesta cannot compare to the National Centennial Celebrations. The
Centennial Celebrations was meant to commemorate the birth of our nation after
centuries of struggle against our former colonial master, to memorialize the liberation of
our people from oppression by a foreign power. 1998 marked 100 years of
independence and sovereignty as one united nation. The Celebrations was an
occasion to reflect upon our history and reinvigorate our patriotism. As A.O. 223 put it,
it was a vehicle for fostering nationhood and a strong sense of Filipino identity, an
opportunity to showcase Filipino heritage and thereby strengthen Filipino values. The
significance of the Celebrations could not have been lost on petitioner, who remarked
during the hearing:
Oh, yes, certainly the State is interested in the unity of the people, we wanted to
rekindle the love for freedom, love for country, that is the over-all goal that has to make
everybody feel proud that he is a Filipino, proud of our history, proud of what our
forefather did in their time. x x x.
Clearly, the NCC performs sovereign functions. It is, therefore, a public office, and
petitioner, as its Chair, is a public officer.
That petitioner allegedly did not receive any compensation during his tenure is of
little consequence. A salary is a usual but not a necessary criterion for determining the
nature of the position. It is not conclusive. The salary is a mere incident and forms no
part of the office. Where a salary or fees is annexed, the office is provided for it is a
naked or honorary office, and is supposed to be accepted merely for the public
good.
[23]
Hence, the office of petitioner as NCC Chair may be characterized as an
honorary office, as opposed to a lucrative office or an office of profit, i.e., one to which
salary, compensation or fees are attached.
[24]
But it is a public office, nonetheless.
Neither is the fact that the NCC was characterized by E.O. No. 128 as an ad-hoc
body make said commission less of a public office.
The term office, it is said, embraces the idea of tenure and duration, and certainly a
position which is merely temporary and local cannot ordinarily be considered an
office. But, says Chief Justice Marshall, if a duty be a continuing one, which is
defined by rules prescribed by the government and not by contract, which an individual
is appointed by government to perform, who enters on the duties pertaining to his
station without any contract defining them, if those duties continue though the person be
changed, -- it seems very difficult to distinguish such a charge or employment from an
office of the person who performs the duties from an officer.
At the same time, however, this element of continuance can not be considered as
indispensable, for, if the other elements are present it can make no
difference, says Pearson, C.J.,whether there be but one act or a series of acts to
be done, -- whether the office expires as soon as the one act is done, or is to be
held for years or during good behavior.
[25]

Our conclusion that petitioner is a public officer finds support in In Re
Corliss.
[26]
There the Supreme Court of Rhode Island ruled that the office of
Commissioner of the United States Centennial Commission is an office of trust as to
disqualify its holder as elector of the United States President and Vice-
President. (Under Article II of the United States Constitution, a person holding an office
of trust or profit under the United States is disqualified from being appointed an elector.)
x x x. We think a Commissioner of the United States Centennial Commission holds an
office of trust under the United States, and that he is therefore disqualified for the office
of elector of President and Vice-President of the United States.
The commission was created under a statute of the United States approved March 3,
1871. That statute provides for the holding of an exhibition of American and foreign
arts, products, and manufactures, under the auspices of the government of the United
States, and for the constitution of a commission, to consist of more than one delegate
from each State and from each Territory of the United States, whose functions shall
continue until close of the exhibition, and whose duty it shall be to prepare and
superintend the execution of the plan for holding the exhibition. Under the statute the
commissioners are appointed by the President of the United States, on the nomination
of the governor of the States and Territories respectively. Various duties were imposed
upon the commission, and under the statute provision was to be made for it to have
exclusive control of the exhibit before the President should announce, by proclamation,
the date and place of opening and holding the exhibition. By an act of Congress
approved June 1st, 1872, the duties and functions of the commission were further
increased and defined. That act created a corporation, called The Centennial Board of
Finance, to cooperate with the commission and to raise and disburse the funds. It was
to be organized under the direction of the commission. The seventh section of the act
provides that the grounds for exhibition shall be prepared and the buildings erected by
the corporation, in accordance with plans which shall have been adopted by the United
States Centennial Commission; and the rules and regulations of said corporation,
governing rates for entrance and admission fees, or otherwise affecting the rights,
privileges, or interests of the exhibitors, or of the public, shall be fixed and established
by the United States Centennial Commission; and no grant conferring rights or
privileges of any description connected with said grounds or buildings, or relating to said
exhibition or celebration, shall be made without the consent of the United States
Centennial Commission, and said commission shall have power to control, change, or
revoke all such grants, and shall appoint all judges and examiners and award all
premiums. The tenth section of the act provides that it shall be the duty of the United
States Centennial Commission to supervise the closing up of the affairs of said
corporation, to audit its accounts, and submit in a report to the President of the United
States the financial results of the centennial exhibition.
It is apparent from this statement, which is but partial, that the duties and functions of
the commission were various, delicate, and important; that they could be successfully
performed only by men of large experience and knowledge of affairs; and that they were
not merely subordinate and provisional, but in the highest degree authoritative,
discretionary, and final in their character. We think that persons performing such duties
and exercising such functions, in pursuance of statutory direction and authority, are not
to be regarded as mere employees, agents, or committee men, but that they are,
properly speaking, officers, and that the places which they hold are offices. It appears,
moreover, that they were originally regarded as officers by Congress; for the act under
which they were appointed declares, section 7, that no compensation for services shall
be paid to the commissioners or other officers, provided for in this act, from the treasury
of the United States. The only other officers provided for were the alternates
appointed to serve as commissioners when the commissioners were unable to attend.
Having arrived at the conclusion that the NCC performs executive functions and is,
therefore, a public office, we need no longer delve at length on the issue of whether
Expocorp is a private or a public corporation. Even assuming that Expocorp is a private
corporation, petitioners position as Chief Executive Officer (CEO) of Expocorp arose
from his Chairmanship of the NCC. Consequently, his acts or omissions as CEO of
Expocorp must be viewed in the light of his powers and functions as NCC Chair.
[27]

Finally, it is contended that since petitioner supposedly did not receive any
compensation for his services as NCC or Expocorp Chair, he is not a public officer as
defined in Republic Act No. 3019 (The Anti-Graft and Corrupt Practices Act) and is,
therefore, beyond the jurisdiction of the Ombudsman.
Respondent seeks to charge petitioner with violation of Section 3 (e) of said law,
which reads:
SEC. 3. Corrupt practices of public officers. In addition to acts or omissions of public
officers already penalized by existing law, the following shall constitute corrupt practices
of anypublic officer and are hereby declared to be unlawful:
x x x
(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall apply to officers and employees
of offices or government corporations charged with the grant of licenses or permits or
other concessions.
A public officer, under R.A. No. 3019, is defined by Section 2 of said law as
follows:
SEC. 2. Definition of terms. As used in this Act, the term
x x x
(b) Public officer includes elective and appointive officials and employees, permanent
or temporary, whether in the classified or unclassified or exemption service receiving
compensation, even nominal, from the government as defined in the preceding
paragraph. [Emphasis supplied.]
It is clear from Section 2 (b), above, that the definition of a public officer is
expressly limited to the application of R.A. No. 3019. Said definition does not apply for
purposes of determining the Ombudsmans jurisdiction, as defined by the Constitution
and the Ombudsman Act of 1989.
Moreover, the question of whether petitioner is a public officer under the Anti-Graft
and Corrupt Practices Act involves the appreciation of evidence and interpretation of
law, matters that are best resolved at trial.
To illustrate, the use of the term includes in Section 2 (b) indicates that the
definition is not restrictive.
[28]
The Anti-Graft and Corrupt Practices Act is just one of
several laws that define public officers. Article 203 of the Revised Penal Code, for
example, provides that a public officer is:
x x x any person who, by direct provision of law, popular election or appointment by
competent authority, takes part in the performance of public functions in the
Government of Philippines, or performs in said Government or in any of its branches
public duties as an employee, agent or subordinate official, of any rank or class.
Section 2 (14) of the Introductory Provisions of the Administrative Code of 1987,
[29]
on
the other hand, states:
Officer as distinguished from clerk or employee, refers to a person whose duties
not being of a clerical or manual nature, involves the exercise of discretion in the
performance of the functions of the government. When used with reference to a person
having authority to do a particular act or perform a particular person in the exercise of
governmental power, officer includes any government employee, agent or body having
authority to do the act or exercise that function.
It bears noting that under Section 3 (b) of Republic Act No. 6713 (The Code of Conduct
and Ethical Standards for Public Officials and Employees), one may be considered a
public official whether or not one receives compensation, thus:
Public Officials include elective and appointive officials and employees, permanent or
temporary, whether in the career or non-career service including military and police
personnel, whether or not they receive compensation, regardless of amount.
Which of these definitions should apply, if at all?
Assuming that the definition of public officer in R.A. No. 3019 is exclusive, the term
compensation, which is not defined by said law, has many meanings.
Under particular circumstances, compensation has been held to include allowance for
personal expenses, commissions, expenses, fees, an honorarium, mileage or traveling
expenses, payments for services, restitution or a balancing of accounts, salary, and
wages.
[30]

How then is compensation, as the term is used in Section 2 (b) of R.A. No. 3019, to be
interpreted?
Did petitioner receive any compensation at all as NCC Chair? Granting that
petitioner did not receive any salary, the records do not reveal if he received any
allowance, fee, honorarium, or some other form of compensation. Notably, under the
by-laws of Expocorp, the CEO is entitled to per diems and compensation.
[31]
Would
such fact bear any significance?
Obviously, this proceeding is not the proper forum to settle these issues lest we
preempt the trial court from resolving them.
WHEREFORE, the petition is DISMISSED. The preliminary injunction issued in the
Courts Resolution dated September 24, 2001 is hereby LIFTED.
SO ORDERED.
Puno, and Ynares-Santiago, JJ., concur.

G.R. No. 112283 August 30, 1994
EVELYN ABEJA, petitioner,
vs.
JUDGE FEDERICO TAADA, Regional Trial Court of Lucena City, Branch 58, and
ROSAURO RADOVAN (deceased) *, respondents.
Roger E. Panotes for petitioner.
Antonio P. Relova for Conrado de Rama.
Eduardo R. Santos collaborating counsel for private respondent.

BIDIN, J .:
In this petition for certiorari, petitioner seeks the annulment of the orders dated
September 21, 1992 and October 18, 1993 issued by respondent Judge Federico
Taada which decreed, among others, the revision of some 36 precincts contained in
the counter-protest filed by respondent Radovan. The said orders were issued by
respondent judge in resolving petitioner/protestant's "Motion to Determine Votes, to
Proclaim Winner and to Allow Assumption of Office" dated August 27, 1993.
The antecedent facts of the case are as follows:
Petitioner Evelyn Abeja and private respondent Rosauro Radovan (deceased) were
contenders for the office of municipal mayor of Pagbilao, Quezon, in the May 11, 1992,
national elections.
Based on the official returns of the Municipal Board of Canvassers for the said
municipality, private respondent was credited with 6,215 votes as against petitioner's
5,951 votes.
Soon after the proclamation of private respondent, petitioner filed an election contest,
docketed as Election Case No. 92-1, entitled "Evelyn Abeja vs. Rosauro Radovan" with
the Regional Trial Court of Lucena City. The protest covered twenty-two (22) precincts.
On June 5, 1992, private respondent filed an Answer with a Counter-Protest of the
results in thirty-six (36) precincts.
During the pre-trial, private respondent's counsel filed a motion praying that the 36
counter-protested precincts be revised only if it is shown after completion of the revision
of the 22 protested precincts that petitioner leads by a margin of at least one (1) vote.
The trial court declared discussion on the matter to be premature (TSN, July 6, 1992,
pp. 8-12; Rollo, p. 148). The revision of the ballots covering 22 protested precincts was
completed in September 1992. Thereafter, petitioner urged private respondent to
commence the revision of the 36 counter-protested precincts by praying the necessary
fees for the purpose. Private respondent refused.
In view thereof, petitioner moved that the counter-protest of private respondent be
considered withdrawn. Private respondent opposed the motion and reiterated that the
ballots of the 36 counter-protested precincts should only be revised and recounted if it is
shown after the revision of the contested ballots of the 22 precincts that petitioner leads
by at least one (1) vote.
Petitioner filed another manifestation and motion on September 29, 1992, praying that
the counter-protest be considered withdrawn from the time the final report of the Board
of Revisors is submitted to the court for approval.
The then presiding Judge, Hon. Ludovico Lopez, did not rule on the aforementioned
motions but, according to petitioner, he (Judge Lopez) declared during a hearing in
October 1992 that once a ruling is made on the contested ballots of the 22 protested
precincts, he will not allow further revision of ballots.
By April 1993, all pending incidents including the report of the Board of Revisors as well
as petitioner's formal offer of evidence were considered submitted for resolution without
private respondent having caused the revision of the ballots in the 36 counter-protested
precincts.
In an order dated April 15, 1993, Presiding Judge Lopez ruled that "(p)rotestant's offer
of evidence as well as the protestee's objections thereto are now submitted for the
Court's resolution" (Rollo, p. 61).
On June 13, 1993, private respondent Rosauro Radovan died. He was substituted by
Vice-Mayor Conrado de Rama and, surprisingly, by his surviving spouse, Ediltrudes
Radovan.
On July 13, 1993, private respondents de Rama and Radovan filed a Manifestation
seeking a prompt resolution of all pending incidents.
On August 12, 1993, the trial court issued an order stating that "(c)ounsels for both
parties having signified to this Court that they are submitting the motion to resolve
without further argument. This motion being a motion to resolve, the Court hereby
informs the parties that pending matters submitted for resolution will be duly resolved on
or before August 20, 1993" (Rollo, p. 143).
Shortly thereafter, Judge Lopez was reassigned to the Regional Trial Court of Kalookan
City. Before transferring to his new post, however, Judge Lopez issued an order dated
August 18, 1993 which contained his ruling in each of the contested ballots in the 22
contested precincts and the reasons therefor. In the said order, Judge Lopez
emphasized that "in ruling on the various objections lodged by both parties during the
revision proceedings, the originals of the contested ballots in the ballot boxes were
subjected to careful scrutiny in the seclusion of the Court's chamber" (Rollo, p. 161).
Nonetheless, the ruling did not contain a summation of the exact number of votes to be
credited to each of the parties, or a declaration of the winner in the election protest for
that matter.
On August 27, 1993, petitioner filed a "Motion to Determine Votes, To Proclaim Winner
and to Allow Assumption of Office" considering that based on her own computation of
revised ballots ruled upon by Judge Lopez, she led private respondent by a margin of
281 votes.
Private respondents filed a Motion to Correct the order dated August 18, 1993, issued
by Judge Lopez as well as oppositions to the motion of petitioner. Respondents claim
that petitioner's "Motion to Proclaim Winner" is premature since the 36 counter-
protested precincts are yet to be revised.
In an order dated September 21, 1993, herein respondent Judge Federico Taada, who
succeeded Judge Lopez, denied the "Motion to Determine Votes, to Proclaim Winner
and to Allow Assumption of Office" filed by petitioner. Respondent judge ruled that
petitioner's motion was indeed premature on the ground that until after the 36 counter-
protested precincts have been revised, the court could not render a valid decision.
On October 18, 1993, respondent judge issued another order denying petitioner's
motion for reconsideration and directed the revision committee to conduct a revision of
the results of the 36 counter-protested precincts scheduled on November 10, 1993.
These orders are the subject of this petition filed on November 8, 1993.
As prayed for by petitioner, the Court issued a temporary restraining order on November
17, 1993, enjoining respondents from continuing with the revision of the ballots in the 36
counter-protested precincts. It appears, however, that the restraining order was served
on November 19, 1993, after the revision committee had completed revising 11 ballot
boxes.
The sole issue to be resolved in this case is whether or not private respondents should
be allowed to proceed with the revision of the 36 precincts subject of the counter-
protest.
It is clear from the records that Judge Lopez failed to issue a definitive ruling on this
specific procedural issue raised by the parties, which this Court must now provide.
Although petitioner claims that Judge Lopez issued a warning to private respondent to
the effect that he (private respondent) shall not be allowed to cause the revision of the
counter-protested precincts after the revision of the protested precincts is completed
and ruled upon, she fails to cite a specific oral or written order of Judge Lopez
containing such warning or at least the date and circumstances of the hearing in which
the said warning was issued. Consequently, the alleged warning issued by Judge Lopez
is unsubstantiated and must therefore be disregarded.
Coming now to the merits of the case, petitioner contends that the revision of the
counter-protested precincts filed by private respondent has already been abandoned by
his failure to pursue the same, right after the revision of the 22 protested precincts.
Petitioner also argue that the case was deemed submitted for decision upon submission
by the Board of Revisors of the Report on the Revision of the 22 protested precincts.
In the instant case, petitioner, as protestant below, completed the revision of ballots in
the 22 protested precincts in September 1992 and her presentation of evidence in April
1993. Likewise, the Board of Revisors had submitted its report and the trial court issued
a ruling dated August 18, 1993 on the said revision. Given this state of the proceedings,
the question to be resolved is whether respondent may still be allowed to commence
the revision of the counter-protested precincts or should he be deemed to have waived
his right to present his own evidence, i.e., the revision of the counter-protested precincts
after stubbornly refusing to do so.
Petitioner argues that while the sequence in the presentation of evidence may be
altered for special reasons, the applicable rules of procedure do not allow presentation
of evidence after the court has already rendered a decision. Clearly, petitioner considers
the August 18, 1993 Order of Judge Lopez to be the "decision" on the case although the
order did not contain a summation of the total votes credited to each of the parties or a
declaration of the winner in the election protest.
Petitioner objects to the stand taken by private respondent on the procedure to be
followed for being "unprocedural" in the sense that a decision rendered on the election
protest would be subject to another decision for the counter-protest. It is further argued
that since the 36 counter-protested precincts were already under the jurisdiction of the
trial court, the same should have been revised unconditionally and should not have
been subjected to the whim and caprice of the private respondent.
The petition is impressed with merit.
Considering that this petition involves an election protest heard by a regional trial court,
the Comelec Rules of Procedure are controlling.
In view of the fact that the subject election contest was filed on May 26, 1992, Section 2,
Rule 17 and Section 11, Rule 35 of the aforementioned Comelec rules are applicable.
Rule 17 treats of Hearings whereas Rule 35 treats of Election Contests Before Courts of
General Jurisdiction. *
Section 2, Rule 17 provides, in part:
Sec. 2. Order of hearing. Unless the Commission or the Division, as the
case may be, for special reasons, directs otherwise, the order of hearing
shall be as follows:
(a) The petitioner or protestant shall present evidence on his part;
(b) The protestant-in-intervention, if any, shall then offer evidence in
support of his defense or counter-protest, if any;
(c) The respondent or protestee shall then offer evidence in support of his
defense or counter-protest, if any;
It thus appears from the foregoing rule that the petitioner/protestant and the
respondent/protestee shall present their evidence upon their original case in succession
in accordance with the order or sequence provided therein.
On the other hand, Section 11, Rule 35 provides:
Sec. 11. Presentation and reception of evidence. The presentation and
reception of evidence in election contests shall be made in accordance
with Section 2 of Rule 17 of these Rules, but the same shall be completed
within thirty (30) days from the date of the commencement thereof.
The record shows that the revision of ballots in the 22 protested precincts was
completed sometime in September 1992. Judge Lopez issued a ruling on the said
revision almost a year later, or on August 18, 1993.
In the interim, private respondent failed to commence the revision of the ballots in the
counter-protested precincts, stubbornly maintaining the position that said precincts
should be revised only if it is shown after the revision that petitioner leads private
respondent by at least one (1) vote. No law or rule authorizes such a procedure.
Consequently, private respondent must be deemed to have waived or abandoned his
counter-protest.
The applicable Comelec rules provide for the presentation of evidence by the parties in
succession in the order or sequence provided under Sec. 2, rule 17 (Comelec Rules)
which must be submitted within a reasonable time, if not immediately after the revision
of the precincts covered by the protest proper.
By insisting that the counter-protested precincts should be revised only if it is shown
after the revision of the protested precincts that petitioner, his opponent, leads by at
least one (1) vote, private respondent is adopting a self-serving rule without legal
sanction calculated to unduly prolong the litigation.
Furthermore, it is readily apparent from the provisions of the applicable Comelec Rules
that the court shall render its decision after both parties shall have presented their
respective evidence. Nowhere in the said provisions is it indicated that presentation of
evidence by the protestee may continue after the court has ruled on the evidence of the
protestant and determine the number of votes obtained by the latter. Otherwise, it would
be possible for the protestee to prolong the protest and render it moot by expiration of
the term of office contested.
There is likewise merit to petitioner's claim that private respondent is guilty of laches,
which, in a general sense, is a failure or neglect, for an unreasonable and unexplained
length of time, to do that which, by exercising due diligence could or should have been
done earlier; it is negligence or omission to assert a right within a reasonable length of
time, warranting a presumption that a party entitled to assert it either has abandoned it
or declined to assert it (Republic v. Caballero, 79 SCRA 177 [1977]).
In the case at bar, private respondent unreasonably failed to cause the revision of the
counter-protested precincts despite being afforded ample time to do so and must be
deemed to have abandoned it. However, it is not clear from the record of the case
whether Judge Lopez issued an order requiring private respondent to pay the required
cash deposit for the revision of the ballots in the counter-protested precincts in
accordance with Section 10, (b), Rule 35 of the Comelec Rules of Procedure, otherwise,
the counter-protest shall be automatically dismissed as provided in Sec. 10[c] thereof:
Sec. 10. Cash Deposit.
xxx xxx xxx
(b) In case revision of ballots is required, there shall be deposited, within
ten days after being required by the Court, the sum of three hundred
pesos (P300.00) for every ballot box for the compensation of revisors at
the rate of P100.00 each.
(c) Failure to make the cash deposits herein provided within the
prescribed time limit shall result in the automatic dismissal of the protest,
counter-protest or protest-in-intervention, as the case may be.
In the Comment of private respondent's widow, it is alleged that "the record of the case
definitely show (sic) that Judge Lopez himself categorically ruled that the counter-
protest was filed on time and the necessary cash deposit submitted by private
respondent pursuant to law" (Rollo, p. 60). However, private respondent fails to cite that
part of the record in which the said ruling may be found.
Private respondent attributes the delay in the resolution of the case to Judge Lopez for
failing to rule on the issues raised by the parties. However, it cannot be denied that
private respondent has maintained the same position regarding the revision of his
counter-protest from the very beginning, as early as the pre-trial of the case, and all
throughout the course of the proceedings. Although Judge Lopez' inaction may have
contributed to the delay of the case, private respondent Radovan must bear the grave
consequences of his stubborn and unfounded refusal to proceed with the revision of the
counter-protested precincts. Instead of conducting the revision of his counter-protested
precincts, private respondent hedged and stalled on the resolution of the case which is
a purely dilatory technique.
Private respondent's argument is that the procedure advocated by him would actually
save time. Nothing that the resolution of petitioner's protest took almost a year, he
contends that about the same length of time would be saved in the event a revision of
the counter-protested precincts would be declared unnecessary. Suffice it to state that
the procedure proposed by private respondent is not sanctioned by the Rules and need
not delay us any longer that it already has in the disposition of this case.
Upon the foregoing, we hold that the respondent judge erred in rendering the assailed
orders denying petitioner's "Motion to Determine Votes, to Declare Winner and to Allow
Assumption of Office" and directing the revision of the counter-protested precincts at
this late hour, so to speak. Under the circumstances and for reasons discussed above,
the order of Judge Lopez dated August 18, 1993 which resolved the party litigants'
objections to the revised ballots may very well be the subject of a valid decision to
resolve the instant electoral protest based on the revised ballots of the 22 protested
precincts.
In the event petitioner is declared the winning candidate, she should, upon proper
motion, be allowed to immediately assume the contested office. We say this because in
their pleadings, petitioner and private respondent have amply discussed their respective
arguments in the applicability of Garcia v. de Jesus and the accompanying case of
Tobon Uy v. Comelec (206 SCRA 779 [1992]) and the possibility is not remote that
private respondent may once again resort to dilatory tactics.
Section 2, Rule 39 of the Rules of Court allows execution pending appeal in election
cases upon good reasons (Garcia v. de Jesus, supra; in relation to Rule 43, Sec. 1,
COMELEC Rules of Procedure) which we find obtaining in the case before us.
Gahol v. Riodique (64 SCRA 494 [1975]) is even more emphatic:
Why should the proclamation by the board of canvassers suffice as a
basis of the right to assume office, subject to future contingencies
attendant to a protest, and not the decision of a court of justice? Indeed,
when it is considered that the board of canvassers is composed of person
who are less technically prepared to make an accurate appreciation of the
ballots, apart from their being more apt to yield to external consideration,
and that the board must act summarily, practically racing against time,
while on the other hand, the judge has the benefit of all the evidence the
parties can offer and of admittedly better technical preparation and
background, apart from his being allowed ample time for conscientious
study and mature deliberation before rendering judgment, one cannot but
perceive the wisdom of allowing the immediate execution of decisions in
election cases adverse to the protestees, notwithstanding the perfection
and pendency of appeals therefrom, as long as there are, in the sound
discretion of the court, good reasons therefor. (cited in Garcia v. de
Jesus, supra)
We also find as erroneous the substitution of the deceased Rosauro Radovan's widow,
Ediltrudes Radovan, on the ground that private respondent had a counter-claim for
damages. "Public office is personal to the incumbent and is not a property which passes
to his heirs" (Santos vs. Secretary of Labor, 22 SCRA 848 [1968]; De la Victoria vs.
Comelec, 199 SCRA 561 [1991]). The heirs may no longer prosecute the deceased
protestee's counter-claim for damages against the protestant for that was extinguished
when death terminated his right to occupy the contested office (Dela Victoria, supra).
WHEREFORE, the petition is hereby GRANTED. The assailed orders of respondent
judge as well as the results of the revision of the 11 ballot boxes subject of the counter-
protest are SET ASIDE. Respondent judge is further ordered to DISMISS the counter-
protest in Election Case No. 92-1 and to resolve the "Motion to Determine Votes, to
Proclaim Winner and to Allow Assumption of Office" filed by petitioner conformably with
this decision within a non-extendible period of fifteen (15) days from receipt hereof. This
decision is immediately executory. Costs against respondent Ediltrudes Radovan.
SO ORDERED.
Feliciano, Romero, Melo and Vitug, JJ., concur.

[G.R. No. 118883. January 16, 1998]
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE
MAYOR NENITO AQUINO and MAYOR LYDIA T.
ROMANO, petitioner, vs. COURT OF APPEALS and AUGUSTO T.
ANTONIO, respondents.
D E C I S I O N
PANGANIBAN, J .:
Although a resignation is not complete without an acceptance thereof by the proper
authority, an office may still be deemed relinquished through voluntary abandonment
which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a
reversal of the Decision
[1]
of the Court of Appeals
[2]
promulgated on January 31, 1995 in
CA-G.R. SP No. 34158, which modified the Decision dated February 18, 1994 of the
Regional Trial Court
[3]
of Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that
paragraphs 1, 2 and 4 thereof are deleted. Paragraph 3 is AFFIRMED. No
pronouncement as to costs.
[4]

Antecedent Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang
Palay, San Andres, Catanduanes in March 1989. He was later elected president of the
Association of Barangay Councils (ABC)
[5]
for the Municipality of San Andres,
Catanduanes. In that capacity and pursuant to the Local Government Code of 1983, he
was appointed by the President as member of the Sangguniang Bayan of the
Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local
Government (DILG) declared the election for the president of the Federation of the
Association of Barangay Councils (FABC) of the same province, in which private
respondent was a voting member, void for want of a quorum. Hence, a reorganization
of the provincial council became necessary. Conformably, the DILG secretary
designated private respondent as a temporary member of the Sangguniang
Panlalawigan of the Province of Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the
Sangguniang Bayan. He tendered his resignation
[6]
dated June 14, 1990 to Mayor
Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the provincial
governor, the DILG and the municipal treasurer. Pursuant to Section 50 of the 1983
Local Government Code
[7]
(B.P. Blg. 337), Nenito F. Aquino, then vice-president of the
ABC, was subsequently appointed by the provincial governor as member of the
Sangguniang Bayan
[8]
in place of private respondent. Aquino assumed office on July
18, 1990 after taking his oath.
[9]

Subsequently, the ruling of DILG Secretary Santos annulling the election of the
FABC president was reversed by the Supreme Court in Taule vs. Santos.
[10]
In the
same case, the appointment of Private Respondent Antonio as sectoral representative
to the Sangguniang Panlalawigan was declared void, because he did not possess the
basic qualification that he should be president of the federation of barangay
councils.
[11]
This ruling of the Court became final and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang
Bayan of San Andres advising them of his re-assumption of his original position, duties
and responsibilities as sectoral representative
[12]
therein. In response thereto, the
Sanggunian issued Resolution No. 6, Series of 1992, declaring that Antonio had no
legal basis to resume office as a member of the Sangguniang Bayan.
[13]

On August 13, 1992, private respondent sought from the DILG a definite ruling
relative to his right to resume his office as member of the Sangguniang
Bayan.
[14]
Director Jacob F. Montesa, department legal counsel of the DILG, clarified
Antonios status in this wise:
Having been elected President of the ABC in accordance with the Departments
Memorandum Circular No. 89-09,
[15]
you became an ex-officio member in
thesanggunian. Such position has not been vacated inasmuch as you did not resign
nor abandon said office when you were designated as temporary representative of the
Federation to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990. The
Supreme Court in Triste vs. Leyte State College Board of Trustees (192 SCRA 327),
declared that: designation implies temporariness. Thus, to designate a public officer
to another position may mean to vest him with additional duties while he performs the
functions of his permanent office. In some cases, a public officer may be designated to
a position in an acting capacity as when an undersecretary is designated to discharge
the functions of the Secretary pending the appointment of a permanent Secretary.
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations
Implementing the 1991 Local Government Code to continue to act as president of the
association and to serve as ex-officio members of the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep.
Act No. 7160, provides that:
The incumbent presidents of the municipal, city and provincial chapters of the liga shall
continue to serve as ex-officio members of the sanggunian concerned until the
expiration of their term of office, unless sooner removed for cause.
(f) x x x Pending election of the presidents of the municipal, city, provincial and
metropolitan chapters of the liga, the incumbent presidents of the association of
barangay councils in the municipality, city, province and Metropolitan Manila, shall
continue to act as president of the corresponding liga chapters under this Rule.
In view of the foregoing, considering that the annuled designation is only an additional
duty to your primary function, which is the ABC President, we find no legal obstacle if
you re-assume your representation in the sanggunian bayan as ex-officio member.
[16]

Despite this clarification, the local legislative body issued another
resolution
[17]
reiterating its previous stand.
In response to private respondents request,
[18]
Director Montesa opined that
Antonio did not relinquish or abandon his office; and that since he was the duly elected
ABC president, he could re-assume his position in the Sanggunian.
[19]
A copy of said
reply was sent to the members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private
respondent to re-assume office as sectoral representative.
On December 10, 1992, private respondent filed a petition
for certiorari and mandamus with preliminary mandatory injunction and/or restraining
order before the RTC. On February 18, 1994, the trial court rendered its decision
holding that Augusto T. Antonios resignation from the Sangguniang Bayan was
ineffective and inoperative, since there was no acceptance thereof by the proper
authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the
petitioner and against the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of P10,000.00 as
attorneys fees and the cost of the suit;
(2) to allow petitioner to assume his position as sectoral representative of
the Sangguniang Bayan of San Andres, Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries similar
to those received by the other members of the Sangguniang Bayan of San
Andres, Catanduanes as certified to by the Municipal Budget Officer and
Municipal Treasurer of the same municipality from April 8, 1992 up to the
date of this judgment; and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to
have no effect.
[20]

Petitioners appealed this judgment to the Court of Appeals.
Appellate Courts Ruling
Respondent Court of Appeals affirmed the trial courts ruling but deleted the first,
second and fourth paragraphs of its dispositive portion. It held that private respondents
resignation was not accepted by the proper authority, who is the President of the
Philippines. While the old Local Government Code is silent as to who should accept
and act on the resignation of any member of the Sanggunian, the law vests in the
President the power to appoint members of the local legislative unit. Thus, resignations
must be addressed to and accepted by him. It added that, though the secretary of the
DILG is the alter ego of the President and notice to him may be considered notice to the
President, the records are bereft of any evidence showing that the DILG secretary
received and accepted the resignation letter of Antonio.
Moreover, granting that there was complete and effective resignation, private
respondent was still the president of the ABC and, as such, he was qualified to sit in the
Sangguniang Bayan in an ex officio capacity by virtue of Section 494
[21]
of R.A.
7160
[22]
and Memorandum Circular No. 92-38.
[23]
In view, however, of the May 1994
elections in which a new set of barangay officials was elected, Antonios reassumption
of office as barangay representative to the Sangguniang Bayan was no longer legally
feasible.
The appellate court added that private respondent could not be considered to have
abandoned his office. His designation as member of the Sangguniang Panlalawigan
was merely temporary and not incompatible with his position as president of the ABC of
San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorneys fees for being without
basis, and held that Resolution Nos. 6 and 28 of the Sangguniang Bayan of San Andres
involved a valid exercise of the powers of said local body. It thus modified the trial
courts judgment by affirming paragraph 3 and deleting the other items. Unsatisfied,
petitioners brought the present recourse.
[24]

Issues
The petitioner, in its memorandum,
[25]
submits before this Court the following issues:
I. Whether or not respondents resignation as ex-officio member of Petitioner
Sangguniang Bayan ng San Andres, Catanduanes is deemed complete so as to
terminate his official relation thereto;
II. Whether or not respondent had totally abandoned his ex-officio membership in
Petitioner Sangguniang Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by
other members of Petitioner Sangguniang Bayan from April 8, 1992 up to date of
judgment in this case by the Regional Trial Court of Virac, Catanduanes.
[26]

In sum, was there a complete and effective resignation? If not, was there an
abandonment of office?
This Courts Ruling
The petition is meritorious. Although the terms of office of barangay captains,
including private respondent, elected in March 1989 have expired, the Court deemed it
necessary to resolve this case, as the Court of Appeals had ordered the payment of the
uncollected salaries allegedly due prior to the expiration of Respondent Antonios term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and
effective despite the absence of an express acceptance by the President of the
Philippines. The letter of resignation was submitted to the secretary of the DILG, an
alter ego of the President, the appointing authority. The acceptance of respondents
resignation may be inferred from the fact that the DILG secretary himself appointed him
a member of the Sangguniang Panlalawigan of Catanduanes.
[27]

In Ortiz vs. COMELEC,
[28]
we defined resignation as the act of giving up or the act
of an officer by which he declines his office and renounces the further right to use it. It
is an expression of the incumbent in some form, express or implied, of the intention to
surrender, renounce, and relinquish the office and the acceptance by competent and
lawful authority. To constitute a complete and operative resignation from public office,
there must be: (a) an intention to relinquish a part of the term; (b) an act of
relinquishment; and (c) an acceptance by the proper authority.
[29]
The last one is
required by reason of Article 238 of the Revised Penal Code.
[30]

The records are bereft of any evidence that private respondents resignation was
accepted by the proper authority. From the time that he was elected as punong
barangay up to the time he resigned as a member of Sangguniang Bayan, the
governing law was B.P. 337 or the Local Government Code of 1983. While said law
was silent as to who specifically should accept the resignation of an appointive member
of the Sangguniang Bayan, Sec. 6 of Rule XIX of its implementing rules states that the
[r]esignation of sanggunian members shall be acted upon by the sanggunian
concerned, and a copy of the action taken shall be furnished the official responsible for
appointing a replacement and the Ministry of Local Government. The position shall be
deemed vacated only upon acceptance of the resignation.
It is not disputed that private respondents resignation letter was addressed only to
the municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies
were furnished the provincial governor, the municipal treasurer and the DILG. Neither
the mayor nor the officers who had been furnished copies of said letter expressly acted
on it. On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is
valid and applicable, the mayor should have referred or endorsed the latter to the
Sangguniang Bayan for proper action. In any event, there is no evidence that the
resignation was accepted by any government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. - (1) The sangguniang bayan shall be the legislative body of
the municipality and shall be composed of the municipal mayor, who shall be the
presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight
members elected at large, and the members appointed by the President consisting of
the president of the katipunang bayan and the president of the kabataang
barangay municipal federation. x x x. (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory
provisions as to whom they should be submitted, should be tendered to the appointing
person or body.
[31]
Private respondent, therefore, should have submitted his letter of
resignation to the President or to his alter ego, the DILG secretary. Although he
supposedly furnished the latter a copy of his letter, there is no showing that it was duly
received, much less, that it was acted upon. The third requisite being absent, there was
therefore no valid and complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid absent
any acceptance thereof by the proper authority, we nonetheless hold that Private
Respondent Antonio has effectively relinquished his membership in the Sangguniang
Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an
office by the holder, with the intention of terminating his possession and control
thereof.
[32]
Indeed, abandonment of office is a species of resignation; while resignation
in general is a formal relinquishment, abandonment is a voluntary relinquishment
through nonuser.
[33]
Nonuser refers to a neglect to use a privilege or a right (Cyclopedic
Law Dictionary, 3rd ed.) or to exercise an easement or an office (Blacks Law
Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of
choice.
[34]
Its concomitant effect is that the former holder of an office can no longer
legally repossess it even by forcible reoccupancy.
[35]

Clear intention to abandon should be manifested by the officer concerned. Such
intention may be express or inferred from his own conduct.
[36]
Thus, the failure to
perform the duties pertaining to the office must be with the officers actual or imputed
intention to abandon and relinquish the office.
[37]
Abandonment of an office is not wholly
a matter of intention; it results from a complete abandonment of duties of such a
continuance that the law will infer a relinquishment.
[38]
Therefore, there are two essential
elements of abandonment: first, an intention to abandon and, second, an overt or
external act by which the intention is carried into effect.
[39]

Petitioner argues that the following clearly demonstrate private respondents
abandonment of his post in the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang
Panlalawigan of Catanduanes was worded temporary, but his acts more than clearly
established his intention to totally abandon his office, indicating an absolute
relinquishment thereof. It bears to emphasize that respondent actually tendered his
resignation and subsequently accepted an ex-officio membership in the Sangguniang
Panlalawigan of Catanduanes. He performed his duties and functions of said office for
almost two (2) years, and was completely aware of the appointment and assumption on
July 18, 1990 of Nenito F. Aquino, who was then Vice-President of the Association of
Barangay Councils (ABC) of San Andres, Catanduanes, as ex-officio member of
petitioner Sangguniang Bayan representing the ABC.
x x x x x x x x x
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed
respondents former position for twenty (20) months, without him questioning the term of
office of the former if indeed respondents designation as ex-officio member of the
Sangguniang Panlalawigan was only temporary. Likewise, for almost eight (8) months
after knowledge of the decision in Taule vs. Santos, et. al., Ibid., nullifying his
designation as representative to the Sangguniang Panlalawigan, respondent opted to
remain silent, and in fact failed to seasonably act for the purpose of reassuming his
former position. Evidently, respondent had clearly abandoned his former position by
voluntary relinquishment of his office through non-user.
[40]
[Underscoring supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of
private respondent to abandon his position: (1) his failure to perform his function as
member of the Sangguniang Bayan, (2) his failure to collect the corresponding
remuneration for the position, (3) his failure to object to the appointment of Aquino as
his replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act
to reassume his post in the Sangguniang Bayan after the Supreme Court had nullified
his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his
intention: (1) his letter of resignation from the Sangguniang Bayan;
[41]
(2) his assumption
of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his
duties and functions as member of said Sanggunian, and (4) his receipt of the
remuneration for such post.
It must be stressed that when an officer is designated to another post, he is
usually called upon to discharge duties in addition to his regular
responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere,
as it were, to his original position. A Supreme Court justice, for instance, may be
designated member of the House of Representatives Electoral Tribunal. In some
cases, a public officer may be designated to a position in an acting capacity, as when
an undersecretary is tasked to discharge the functions of a secretary for a temporary
period.
[42]
In all cases, however, the law does not require the public servant to resign
from his original post. Rather, the law allows him to concurrently discharge the functions
of both offices.
Private respondent, however, did not simultaneously discharge the duties and
obligations of both positions. Neither did he, at that time, express an intention to
resume his office as member of the Sangguniang Bayan. His overt acts, silence,
inaction and acquiescence, when Aquino succeeded him to his original position, show
that Antonio had abandoned the contested office. His immediate and natural reaction
upon Aquinos appointment should have been to object or, failing to do that, to file
appropriate legal action or proceeding. But he did neither. It is significant that he
expressed his intention to resume office only on March 31, 1992, after Aquino had been
deemed resigned on March 23, 1992, and months after this Court had nullified his
designation on August 12, 1991. From his passivity, he is deemed to have recognized
the validity of Aquinos appointment and the latters discharge of his duties as a member
of the Sangguniang Bayan.
In all, private respondents failure to promptly assert his alleged right implies his loss
of interest in the position. His overt acts plainly show that he really meant his
resignation and understood its effects. As pointed out by the eminent American
commentator, Mechem:
[43]

Public offices are held upon the implied condition that the officer will diligently and
faithfully execute the duties belonging to them, and while a temporary or accidental
failure to perform them in a single instance or during a short period will not operate as
an abandonment, yet if the officer refuses or neglects to exercise the functions of the
office for so long a period as to reasonably warrant the presumption that he does not
desire or intend to perform the duties of the office at all, he will be held to have
abandoned it, not only when his refusal to perform was wilful, but also where, while he
intended to vacate the office, it was because he in good faith but mistakenly supposed
he had no right to hold it.
Lastly, private respondent, who remained ABC president, claims the legal right to be
a member of the Sangguniang Bayan by virtue of Section 146 of B.P. Blg.
337. However, his right thereto is not self-executory, for the law itself requires another
positive act -- an appointment by the President or the secretary of local government per
E.O. 342.
[44]
What private respondent could have done in order to be able to reassume
his post after Aquinos resignation was to seek a reappointment from the President or
the secretary of local government. By and large, private respondent cannot claim an
absolute right to the office which, by his own actuations, he is deemed to have
relinquished.
[45]

We reiterate our ruling in Aparri vs. Court of Appeals:
[46]

A public office is the right, authority, and duty created and conferred by law, by which
for a given period, either fixed by law or enduring at the pleasure of the creating power,
an individual is invested with some portion of the sovereign functions of the government,
to be exercised by him for the benefit of the public x x x. The right to hold a public office
under our political system is therefore not a natural right. It exists, when it exists at all,
only because and by virtue of some law expressly or impliedly creating and conferring it
x x x. There is no such thing as a vested interest or an estate in an office, or even an
absolute right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any vested right in
an office or its salary x x x.
Third Issue: Salary
Having ruled that private respondent had voluntarily abandoned his post at the
Sangguniang Bayan, he cannot be entitled to any back salaries. Basic is the no work,
no pay
[47]
rule. A public officer is entitled to receive compensation for services actually
rendered for as long as he has the right to the office being claimed.
[48]
When the act or
conduct of a public servant constitutes a relinquishment of his office, he has no right to
receive any salary incident to the office he had abandoned.
[49]

WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED
and SET ASIDE. No costs.
SO ORDERED.
Narvasa, C.J., (Chairman), Romero, Melo, and Francisco, JJ., concur.

[G.R. No. 117565. November 18, 1997]
ARSENIO P. LUMIQUED (deceased), Regional Director, DAR CAR, Represented
by his Heirs, Francisca A. Lumiqued, May A. Lumiqued, Arlene A.
Lumiqued and Richard A. Lumiqued, petitioners, vs. Honorable APOLINIO
G. EXEVEA, ERDOLFO V. BALAJADIA and FELIX T. CABADING, ALL
Members of Investigating Committee, created by DOJ Order No. 145 on May
30, 1992; HON. FRANKLIN M. DRILON, SECRETARY OF JUSTICE, HON.
ANTONIO T. CARPIO, CHIEF Presidential Legal Adviser/Counsel; and HON.
LEONARDO A. QUISIMBING, Senior Deputy Executive Secretary of the
Office of the President, and JEANNETTE OBAR-ZAMUDIO, Private
Respondent, respondents.
D E C I S I O N
ROMERO, J .:
Does the due process clause encompass the right to be assisted by counsel
during an administrative inquiry?
Arsenio P. Lumiqued was the Regional Director of the Department of
Agrarian Reform Cordillera Autonomous Region (DAR-CAR) until President
Fidel V. Ramos dismissed him from that position pursuant to Administrative
Order No. 52 dated May 12, 1993. In view of Lumiqueds death on May 19,
1994, his heirs instituted this petition for certiorari and mandamus, questioning
such order.
The dismissal was the aftermath of three complaints filed by DAR-CAR
Regional Cashier and private respondent Jeannette Obar-Zamudio with the
Board of Discipline of the DAR. The first affidavit-complaint dated November 16,
1989,
[1]
charged Lumiqued with malversation through falsification of official
documents. From May to September 1989, Lumiqued allegedly committed at
least 93 counts of falsification by padding gasoline receipts. He even submitted
a vulcanizing shop receipt worth P550.00 for gasoline bought from the shop, and
another receipt for P660.00 for a single vulcanizing job. With the use of falsified
receipts, Lumiqued claimed and was reimbursed the sum of P44,172.46. Private
respondent added that Lumiqued seldom made field trips and preferred to stay in
the office, making it impossible for him to consume the nearly 120 liters of
gasoline he claimed everyday.
In her second affidavit-complaint dated November 22, 1989,
[2]
private
respondent accused Lumiqued with violation of Commission on Audit (COA)
rules and regulations, alleging that during the months of April, May, July, August,
September and October, 1989, he made unliquidated cash advances in the total
amount of P116,000.00. Lumiqued purportedly defrauded the government by
deliberately concealing his unliquidated cash advances through the falsification
of accounting entries in order not to reflect on `Cash advances of other officials
under code 8-70-600 of accounting rules.
The third affidavit-complaint dated December 15, 1989,
[3]
charged Lumiqued
with oppression and harassment. According to private respondent, her two
previous complaints prompted Lumiqued to retaliate by relieving her from her
post as Regional Cashier without just cause.
The three affidavit-complaints were referred in due course to the Department
of Justice (DOJ) for appropriate action. On May 20, 1992, Acting Justice
Secretary Eduardo G. Montenegro issued Department Order No. 145 creating a
committee to investigate the complaints against Lumiqued. The order appointed
Regional State Prosecutor Apolinario Exevea as committee chairman with City
Prosecutor Erdolfo Balajadia and Provincial Prosecutor Felix Cabading as
members. They were mandated to conduct an investigation within thirty days
from receipt of the order, and to submit their report and recommendation within
fifteen days from its conclusion.
The investigating committee accordingly issued a subpoena directing
Lumiqued to submit his counter-affidavit on or before June 17, 1992. Lumiqued,
however, filed instead an urgent motion to defer submission of his counter-
affidavit pending actual receipt of two of private respondents complaints. The
committee granted the motion and gave him a five-day extension.
In his counter-affidavit dated June 23, 1992,
[4]
Lumiqued alleged, inter alia,
that the cases were filed against him to extort money from innocent public
servants like him, and were initiated by private respondent in connivance with a
certain Benedict Ballug of Tarlac and a certain Benigno Aquino III. He claimed
that the apparent weakness of the charge was bolstered by private respondents
execution of an affidavit of desistance.
[5]

Lumiqued admitted that his average daily gasoline consumption was 108.45
liters. He submitted, however, that such consumption was warranted as it was
the aggregate consumption of the five service vehicles issued under his name
and intended for the use of the Office of the Regional Director of the DAR. He
added that the receipts which were issued beyond his region were made in the
course of his travels to Ifugao Province, the DAR Central Office in Diliman,
Quezon City, and Laguna, where he attended a seminar. Because these receipts
were merely turned over to him by drivers for reimbursement, it was not his
obligation but that of auditors and accountants to determine whether they were
falsified. He affixed his signature on the receipts only to signify that the same
were validly issued by the establishments concerned in order that official
transactions of the DAR-CAR could be carried out.
Explaining why a vulcanizing shop issued a gasoline receipt, Lumiqued said
that he and his companions were cruising along Santa Fe, Nueva Vizcaya on
their way to Ifugao when their service vehicle ran out of gas. Since it was almost
midnight, they sought the help of the owner of a vulcanizing shop who readily
furnished them with the gasoline they needed. The vulcanizing shop issued its
own receipt so that they could reimburse the cost of the gasoline. Domingo
Lucero, the owner of said vulcanizing shop, corroborated this explanation in an
affidavit dated June 25, 1990.
[6]
With respect to the accusation that he sought
reimbursement in the amount of P660.00 for one vulcanizing job, Lumiqued
submitted that the amount was actually only P6.60. Any error committed in
posting the amount in the books of the Regional Office was not his personal error
or accountability.
To refute private respondents allegation that he violated COA rules and
regulations in incurring unliquidated cash advances in the amount
of P116,000.00, Lumiqued presented a certification
[7]
of DAR-CAR Administrative
Officer Deogracias F. Almora that he had no outstanding cash advances on
record as of December 31, 1989.
In disputing the charges of oppression and harassment against him,
Lumiqued contended that private respondent was not terminated from the service
but was merely relieved of her duties due to her prolonged absences. While
admitting that private respondent filed the required applications for leave of
absence, Lumiqued claimed that the exigency of the service necessitated
disapproval of her application for leave of absence. He allegedly rejected her
second application for leave of absence in view of her failure to file the same
immediately with the head office or upon her return to work. He also asserted
that no medical certificate supported her application for leave of absence.
In the same counter-affidavit, Lumiqued also claimed that private respondent
was corrupt and dishonest because a COA examination revealed that her cash
accountabilities from June 22 to November 23, 1989, were short
by P30,406.87. Although private respondent immediately returned the amount
on January 18, 1990, the day following the completion of the cash examination,
Lumiqued claimed that she should be relieved from her duties and assigned to
jobs that would not require handling of cash and money matters.
Committee hearings on the complaints were conducted on July 3 and 10,
1992, but Lumiqued was not assisted by counsel. On the second hearing date,
he moved for its resetting to July 17, 1992, to enable him to employ the services
of counsel. The committee granted the motion, but neither Lumiqued nor his
counsel appeared on the date he himself had chosen, so the committee deemed
the case submitted for resolution.
On August 12, 1992, Lumiqued filed an urgent motion for additional
hearing,
[8]
alleging that he suffered a stroke on July 10, 1992. The motion was
forwarded to the Office of the State Prosecutor apparently because the
investigation had already been terminated. In an order dated September 7,
1992,
[9]
State Prosecutor Zoila C. Montero denied the motion, viz:
The medical certificate given show(s) that respondent was discharged from the Sacred
Heart Hospital on July 17, 1992, the date of the hearing, which date was upon the
request of respondent (Lumiqued). The records do not disclose that respondent advised
the Investigating committee of his confinement and inability to attend despite his
discharge, either by himself or thru counsel. The records likewise do not show that
efforts were exerted to notify the Committee of respondents condition on any
reasonable date after July 17, 1992. It is herein noted that as early as June 23, 1992,
respondent was already being assisted by counsel.
Moreover an evaluation of the counter-affidavit submitted reveal(s) the sufficiency,
completeness and thoroughness of the counter-affidavit together with the documentary
evidence annexed thereto, such that a judicious determination of the case based on the
pleadings submitted is already possible.
Moreover, considering that the complaint-affidavit was filed as far back as November
16, 1989 yet, justice can not be delayed much longer.
Following the conclusion of the hearings, the investigating committee
rendered a report dated July 31, 1992,
[10]
finding Lumiqued liable for all the
charges against him. It made the following findings:
After a thorough evaluation of the evidences (sic) submitted by the parties, this
committee finds the evidence submitted by the complainant sufficient to establish the
guilt of the respondent for Gross Dishonesty and Grave Misconduct.
That most of the gasoline receipts used by the respondent in claiming for the
reimbursement of his gasoline expenses were falsified is clearly established by the 15
Certified Xerox Copies of the duplicate receipts (Annexes G-1 to G-15) and the
certifications issued by the different gasoline stations where the respondent purchased
gasoline. Annexes `G-1 to `G-15 show that the actual average purchase made by the
respondent is about 8.46 liters only at a purchase price of P50.00, in contrast to the
receipts used by the respondent which reflects an average of 108.45 liters at a
purchase price of P550.00. Here, the greed of the respondent is made manifest by his
act of claiming reimbursements of more than 10 times the value of what he actually
spends. While only 15 of the gasoline receipts were ascertained to have been falsified,
the motive, the pattern and the scheme employed by the respondent in defrauding the
government has, nevertheless, been established.
That the gasoline receipts have been falsified was not rebutted by the respondent. In
fact, he had in effect admitted that he had been claiming for the payment of an average
consumption of 108.45 liters/day by justifying that this was being used by the 4 vehicles
issued to his office. Besides he also admitted having signed the receipts.
Respondents act in defrauding the government of a considerable sum of money by
falsifying receipts constitutes not only Dishonesty of a high degree but also a criminal
offense for Malversation through Falsification of Official Documents.
This committee likewise finds that the respondent have (sic) unliquidated cash
advances in the year 1989 which is in violation of established office and auditing rules.
His cash advances totalling to about P116,000.00 were properly documented. The
requests for obligation of allotments and the vouchers covering the amounts were all
signed by him. The mere certification issued by the Administrative Officer of the DAR-
CAR cannot therefore rebut these concrete evidences (sic).
On the third complaint, this committee likewise believes that the respondents act in
relieving the complainant of her functions as a Regional Cashier on December 1, 1989
was an act of harassment. It is noted that this was done barely two weeks after the
complainant filed charges against her (sic). The recommendation of Jose G. Medina of
the Commission on Audit came only on May 11, 1990 or almost six months after the
respondents order relieving the complainant was issued. His act in harassing a
subordinate employee in retaliation to a complaint she filed constitute(s) Gross
Misconduct on the part of the respondent who is a head of office.
The affidavits of Joseph In-uyay and Josefina Guting are of no help to the respondent.
In fact, this only show(s) that he is capable of giving bribes if only to have the cases
against him dismissed. He could not have given a certain Benigno Aquino III the sum
of P10,000.00 for any other purpose.
Accordingly, the investigating committee recommended Lumiqueds
dismissal or removal from office, without prejudice to the filing of the appropriate
criminal charges against him.
Acting on the report and recommendation, former Justice Secretary Franklin
M. Drilon adopted the same in his Memorandum to President Fidel V. Ramos
dated October 22, 1992. He added that the filing of the affidavit of
desistance
[11]
would not prevent the issuance of a resolution on the matter
considering that what was at stake was not only the violation of complainants
(herein private respondents) personal rights but also the competence and
fitness of the respondent (Lumiqued) to remain in public office. He opined that,
in fact, the evidence on record could call for a punitive action against the
respondent on the initiative of the DAR.
On December 17, 1992, Lumiqued filed a motion for reconsideration of the
findings of the Committee with the DOJ.
[12]
Undersecretary Ramon S. Esguerra
indorsed the motion to the investigating committee.
[13]
In a letter dated April 1,
1993, the three-member investigating committee informed Undersecretary
Esguerra that the committee had no more authority to act on the same (motion
for reconsideration) considering that the matter has already been forwarded to
the Office of the President and that their authority under Department Order No.
145 ceased when they transmitted their report to the DOJ.
[14]
Concurring with this
view, Undersecretary Esguerra informed Lumiqued that the investigating
committee could no longer act on his motion for reconsideration. He added that
the motion was also prematurely filed because the Office of the President (OP)
had yet to act on Secretary Drilons recommendation.
[15]

On May 12, 1993, President Fidel V. Ramos himself issued Administrative
Order No. 52 (A.O. No. 52),
[16]
finding Lumiqued administratively liable for
dishonesty in the alteration of fifteen gasoline receipts, and dismissing him from
the service, with forfeiture of his retirement and other benefits. Thus:
That the receipts were merely turned over to him by his drivers and that the auditor and
accountant of the DAR-CAR should be the ones to be held liable is untenable. The
receipts in question were signed by respondent for the purpose of attesting that those
receipts were validly issued by the commercial establishments and were properly
disbursed and used in the official business for which it was intended.
This Office is not about to shift the blame for all these to the drivers employed by the
DAR-CAR as respondent would want us to do.
The OP, however, found that the charges of oppression and harassment, as
well as that of incurring unliquidated cash advances, were not satisfactorily
established.
In a petition for appeal
[17]
addressed to President Ramos, Lumiqued prayed
that A.O. No. 52 be reconsidered and that he be reinstated to his former position
with all the benefits accorded to him by law and existing rules and regulations.
This petition was basically premised on the affidavit dated May 27, 1993, of a
certain Dwight L. Lumiqued, a former driver of the DAR-CAR, who confessed to
having authored the falsification of gasoline receipts and attested to petitioner
Lumiqueds being an honest man who had no premonition that the receipts he
(Dwight) turned over to him were altered.
[18]

Treating the petition for appeal as a motion for the reconsideration of A.O.
No. 52, the OP, through Senior Deputy Executive Secretary Leonardo A.
Quisumbing, denied the same on August 31, 1993.
Undaunted, Lumiqued filed a second motion for reconsideration, alleging,
among other things, that he was denied the constitutional right to counsel during
the hearing.
[19]
On May 19, 1994,
[20]
however, before his motion could be
resolved, Lumiqued died. On September 28, 1994,
[21]
Secretary Quisumbing
denied the second motion for reconsideration for lack of merit.
Hence, the instant petition for certiorari and mandamus praying for the
reversal of the Report and Recommendation of the Investigating Committee, the
October 22, 1992, Memorandum of then Justice Secretary Drilon, A.O. No. 52
issued by President Ramos, and the orders of Secretary Quisumbing. In a
nutshell, it prays for the payment of retirement benefits and other benefits
accorded to deceased Arsenio Lumiqued by law, payable to his heirs; and the
backwages from the period he was dismissed from service up to the time of his
death on May 19, 1994.
[22]

Petitioners fault the investigating committee for its failure to inform Lumiqued
of his right to counsel during the hearing. They maintain that his right to counsel
could not be waived unless the waiver was in writing and in the presence of
counsel. They assert that the committee should have suspended the hearing and
granted Lumiqued a reasonable time within which to secure a counsel of his own.
If suspension was not possible, the committee should have appointed a
counsel de oficio to assist him.
These arguments are untenable and misplaced. The right to counsel, which
cannot be waived unless the waiver is in writing and in the presence of counsel,
is a right afforded a suspect or an accused during custodial investigation.
[23]
It is
not an absolute right and may, thus, be invoked or rejected in a criminal
proceeding and, with more reason, in an administrative inquiry. In the case at
bar, petitioners invoke the right of an accused in criminal proceedings to have
competent and independent counsel of his own choice. Lumiqued, however, was
not accused of any crime in the proceedings below. The investigation conducted
by the committee created by Department Order No. 145 was for the purpose of
determining if he could be held administratively liable under the law for the
complaints filed against him. The order issued by Acting Secretary of Justice
Montenegro states thus:
In the interest of the public service and pursuant to the provisions of existing laws, a
Committee to conduct the formal investigation of the administrative complaint for
oppression, dishonesty, disgraceful and immoral conduct, being notoriously undesirable
and conduct prejudicial to the best interest of the service against Mr. ARSENIO P.
LUMIQUED, Regional Director, Department of Agrarian Reform, Cordillera Autonomous
Region, is hereby created x x x.
[24]

As such, the hearing conducted by the investigating committee was not part
of a criminal prosecution. This was even made more pronounced when, after
finding Lumiqued administratively liable, it hinted at the filing of criminal case for
malversation through falsification of public documents in its report and
recommendation.
Petitioners misconception on the nature of the investigation
[25]
conducted
against Lumiqued appears to have been engendered by the fact that the DOJ
conducted it. While it is true that under the Administrative Code of 1987, the DOJ
shall administer the criminal justice system in accordance with the accepted
processes thereof consisting in the investigation of the crimes, prosecution of
offenders and administration of the correctional system,
[26]
conducting criminal
investigations is not its sole function. By its power to perform such other
functions as may be provided by law,
[27]
prosecutors may be called upon to
conduct administrative investigations. Accordingly, the investigating committee
created by Department Order No. 145 was duty-bound to conduct the
administrative investigation in accordance with the rules therefor.
While investigations conducted by an administrative body may at times be
akin to a criminal proceeding, the fact remains that under existing laws, a party in
an administrative inquiry may or may not be assisted by counsel, irrespective of
the nature of the charges and of the respondents capacity to represent himself
and no duty rests on such a body to furnish the person being investigated with
counsel.
[28]
In an administrative proceeding such as the one that transpired
below, a respondent (such as Lumiqued) has the option of engaging the services
of counsel or not. This is clear from the provisions of Section 32, Article VII of
Republic Act No. 2260
[29]
(otherwise known as the Civil Service Act) and Section
39, paragraph 2, Rule XIV (on discipline) of the Omnibus Rules Implementing
Book V of Executive Order No. 292
[30]
(otherwise known as the Administrative
Code of 1987). Excerpts from the transcript of stenographic notes of the hearings
attended by Lumiqued
[31]
clearly show that he was confident of his capacity and
so opted to represent himself. Thus, the right to counsel is not imperative in
administrative investigations because such inquiries are conducted merely to
determine whether there are facts that merit disciplinary measures against erring
public officers and employees, with the purpose of maintaining the dignity of
government service.
Furthermore, petitioners reliance on Resolution No. 94-0521 of the Civil
Service Commission on the Uniform Procedure in the Conduct of Administrative
Investigation stating that a respondent in an administrative complaint must be
informed of his right to the assistance of a counsel of his choice,
[32]
is
inappropriate. In the first place, this resolution is applicable only to cases
brought before the Civil Service Commission.
[33]
Secondly, said resolution, which
is dated January 25, 1994, took effect fifteen days following its publication in a
newspaper of general circulation,
[34]
much later than the July 1992 hearings of
the investigating committee created by Department Order No. 145. Thirdly, the
same committee was not remiss in the matter of reminding Lumiqued of his right
to counsel. Thus at the July 3, 1992, hearing, Lumiqued was repeatedly
appraised of his option to secure services of counsel:
RSP EXEVEA:
This is an administrative case against Director Lumiqued. Director
Lumiqued is present. The complainant is present, Janet Obar-
Zamudio. Complainant has just been furnished with a copy of the
counter-affidavit of the respondent. Do you have a counsel, Director?
DIR. LUMIQUED:
I did not bring anybody, Sir, because when I went to see him, he told
me, Sir, that he has already set a hearing, morning and afternoon
today.
RSP EXEVEA:
So, we will proceed with the hearing even without your counsel? You
are willing to proceed with the hearing even without your counsel?
DIR. LUMIQUED:
Yes, I am confident . . .
CP BALAJADIA:
You are confident that you will be able to represent yourself?
DIR. LUMIQUED:
That is my concern.
[35]
(Underscoring supplied)
In the course of private respondents damaging testimony, the investigating
committee once again reminded Lumiqued of his need for a counsel. Thus:
CP BALAJADIA:
Q. (To Director Lumiqued) You really wish to go through with this
even without your counsel?
DIRECTOR LUMIQUED:
A. I think so, Sir.
CP BALAJADIA:
Let us make it of record that we have been warning you to proceed
with the assistance of counsel but you said that you can take care of
yourself so we have no other alternative but to
proceed.
[36]
(Underscoring supplied)
Thereafter, the following colloquies transpired:
CP BALAJADIA:
We will suspend in the meantime that we are waiting for the
supplemental affidavit you are going to present to us. Do you have
any request from the panel of investigators, Director Lumiqued?
DIRECTOR LUMIQUED:
I was not able to bring a lawyer since the lawyer I requested to assist
me and was the one who prepared my counter-affidavit is already
engaged for a hearing and according to him he is engaged for the
whole month of July.
RSP EXEVEA:
We cannot wait . . .
CP BALAJADIA:
Why dont you engage the services of another counsel. The charges
against you are quite serious. We are not saying you are guilty
already. We are just apprehensive that you will go through this
investigation without a counsel. We would like you to be protected
legally in the course of this investigation. Why dont you get the
services of another counsel. There are plenty here in Baguio...
DIRECTOR LUMIQUED:
I will try to see, Sir . . .
CP BALAJADIA:
Please select your date now, we are only given one month to finish
the investigation, Director Lumiqued.
RSP EXEVEA:
We will not entertain any postponement. With or without counsel, we
will proceed.
CP BALAJADIA:
Madam Witness, will you please submit the document which we asked
for and Director Lumiqued, if you have other witnesses, please bring
them but reduce their testimonies in affidavit form so that we can
expedite with the proceedings.
[37]

At the hearing scheduled for July 10, 1992, Lumiqued still did not avail of the
services of counsel. Pertinent excerpts from said hearing follow:
FISCAL BALAJADIA:
I notice also Mr. Chairman that the respondent is not being
represented by a counsel. The last time he was asked to invite his
lawyer in this investigation. May we know if he has a lawyer to
represent him in this investigation?
DIR. LUMIQUED:
There is none Sir because when I went to my lawyer, he told me that
he had set a case also at 9:30 in the other court and he told me if
there is a possibility of having this case postponed anytime next week,
probably Wednesday so we will have good time (sic) of presenting the
affidavit.
FISCAL BALAJADIA:
Are you moving for a postponement Director? May I throw this to the
panel. The charges in this case are quite serious and he should be
given a chance to the assistance of a counsel/lawyer.
RSP EXEVEA:
And is (sic) appearing that the supplemental-affidavit has been
furnished him only now and this has several documents attached to it
so I think we could grant him one last postponement considering that
he has already asked for an extension.
DIR. LUMIQUED:
Furthermore Sir, I am now being bothered by my heart ailment.
[38]

The hearing was reset to July 17, 1992, the date when Lumiqued was
released from the hospital. Prior to said date, however, Lumiqued did not inform
the committee of his confinement. Consequently, because the hearing could not
push through on said date, and Lumiqued had already submitted his counter-
affidavit, the committee decided to wind up the proceedings. This did not mean,
however, that Lumiqued was short-changed in his right to due process.
Lumiqued, a Regional Director of a major department in the executive branch
of the government, graduated from the University of the Philippines (Los Baos)
with the degree of Bachelor of Science major in Agriculture, was a recipient of
various scholarships and grants, and underwent training seminars both here and
abroad.
[39]
Hence, he could have defended himself if need be, without the help of
counsel, if truth were on his side. This, apparently, was the thought he
entertained during the hearings he was able to attend. In his statement, That is
my concern, one could detect that it had been uttered testily, if not
exasperatedly, because of the doubt or skepticism implicit in the question, You
are confident that you will be able to represent yourself? despite his having
positively asserted earlier, Yes, I am confident. He was obviously convinced
that he could ably represent himself. Beyond repeatedly reminding him that he
could avail himself of counsel and as often receiving the reply that he is confident
of his ability to defend himself, the investigating committee could not do
more. One can lead a horse to water but cannot make him drink.
The right to counsel is not indispensable to due process unless required by
the Constitution or the law. In Nera v. Auditor General,
[40]
the Court said:
x x x. There is nothing in the Constitution that says that a party in a non-criminal
proceeding is entitled to be represented by counsel and that, without such
representation, he shall not be bound by such proceedings. The assistance of lawyers,
while desirable, is not indispensable. The legal profession was not engrafted in the due
process clause such that without the participation of its members, the safeguard is
deemed ignored or violated. The ordinary citizen is not that helpless that he cannot
validly act at all except only with a lawyer at his side.
In administrative proceedings, the essence of due process is simply the
opportunity to explain ones side. One may be heard, not solely by verbal
presentation but also, and perhaps even much more creditably as it is more
practicable than oral arguments, through pleadings.
[41]
An actual hearing is not
always an indispensable aspect of due process.
[42]
As long as a party was given
the opportunity to defend his interests in due course, he cannot be said to have
been denied due process of law, for this opportunity to be heard is the very
essence of due process.
[43]
Moreover, this constitutional mandate is deemed
satisfied if a person is granted an opportunity to seek reconsideration of the
action or ruling complained of.
[44]
Lumiqueds appeal and his subsequent filing of
motions for reconsideration cured whatever irregularity attended the proceedings
conducted by the committee.
[45]

The constitutional provision on due process safeguards life, liberty and
property.
[46]
In the early case of Cornejo v. Gabriel and Provincial Board of
Rizal
[47]
the Court held that a public office is not property within the sense of the
constitutional guarantee of due process of law for it is a public trust or
agency. This jurisprudential pronoucement has been enshrined in the 1987
Constitution under Article XI, Section 1 on accountability of public officers, as
follows:
Section 1. Public office is a public trust. Public officers and employees must at all times
be accountable to the people, serve them with utmost responsibility, integrity, loyalty,
and efficiency, act with patriotism and justice, and lead modest lives.
When the dispute concerns ones constitutional right to security of tenure,
however, public office is deemed analogous to property in a limited sense;
hence, the right to due process could rightfully be invoked. Nonetheless, the right
to security of tenure is not absolute. Of equal weight is the countervailing
mandate of the Constitution that all public officers and employees must serve
with responsibility, integrity, loyalty and efficiency.
[48]
In this case, it has been
clearly shown that Lumiqued did not live up to this constitutional precept.
The committees findings pinning culpability for the charges of dishonesty
and grave misconduct upon Lumiqued were not, as shown above, fraught with
procedural mischief. Its conclusions were founded on the evidence presented
and evaluated as facts. Well-settled in our jurisdiction is the doctrine that
findings of fact of administrative agencies must be respected as long as they are
supported by substantial evidence, even if such evidence is not overwhelming or
preponderant.
[49]
The quantum of proof necessary for a finding of guilt in
administrative cases is only substantial evidence or such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.
[50]

Consequently, the adoption by Secretary Drilon and the OP of the
committees recommendation of dismissal may not in any way be deemed tainted
with arbitrariness amounting to grave abuse of discretion. Government officials
are presumed to perform their functions with regularity. Strong evidence is not
necessary to rebut that presumption,
[51]
which petitioners have not successfully
disputed in the instant case.
Dishonesty is a grave offense penalized by dismissal under Section 23 of
Rule XIV of the Omnibus Rules Implementing Book V of the Administrative Code
of 1987. Under Section 9 of the same Rule, the penalty of dismissal carries with
it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and
the disqualification for reemployment in the government service. The instant
petition, which is aimed primarily at the payment of retirement benefits and other
benefits plus backwages from the time of Lumiqueds dismissal until his demise,
must, therefore, fail.
WHEREFORE, the instant petition for certiorari and mandamus is hereby
DISMISSED and Administrative Order No. 52 of the Office of the President is
AFFIRMED. Costs against petitioners.
SO ORDERED.
Regalado, Davide, Jr., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza,
Francisco, and Panganiban, JJ., concur.

G.R. No. 112386 June 14, 1994
MARCELINO C. LIBANAN, petitioner,
vs.
SANDIGANBAYAN and AGUSTIN B. DOCENA, respondents.
Semaco P. Sacmar & Associates for petitioner.
R E S O L U T I O N
VITUG, J .:
Petitioner Marcelino C. Libanan, the incumbent Vice-Governor of Eastern Samar, was a
member of the Sangguniang Panlalawigan of that province prior to the 11 May 1992
elections. He was among those charged before the Sandiganbayan, on 25 May 1992,
with having violated Section 3(e) of Republic Act No. 3019 in an information, docketed
Criminal Case No. 17756, stating
That on or about 08 January 1991, and for sometime thereafter, in
Borongan, Eastern Samar, and within the jurisdiction of this Honorable
Court, accused Lutgardo B. Barbo, Governor of Eastern Samar; Camilo A.
Camenforte, Vice-Governor of same province; Sangguniang Panlalawigan
Members Marcos B. Alido, Nonato A. Gerna, Ismael G. Kho, Marcelino C.
Libanan, Nicolas O. Pimentel, and Generoso A. Yu, of the same province,
conspiring with one another, did then and there, wilfully and unlawfully,
through evident bad faith and manifest partiality, prevent and exclude
Agustin B. Docena, a duly appointed and Qualified replacement of
deceased Sangguniang Panlalawigan member Luis A. Capito, from
exercising his rights and prerogatives as a member of the said body, by
promulgating in their official capacities Sangguniang Panlalawigan
Resolution No. 01, Series of 1991, wherein accused expressed their
recognition of Atty. Socrates B. Alar as the official replacement of
aforesaid deceased member, notwithstanding the recall of his appointment
by the Department of Local Government, to the damage and prejudice of
Agustin B. Docena.
CONTRARY TO LAW.
1

On motion of the prosecution for the suspension of the accused public
officials pendente lite, and finding that said accused were charged under a valid
information, the Second Division of the Sandiganbayan issued a resolution, dated 26
July 1993, to the following effect:
WHEREFORE, premises considered, accused Gov. Lutgardo Barbo, Vice-
Gov. Marcelino C. Libanan, and Sangguniang Panlalawigan members
Nonato A. Gerna and Generoso A. Yu are hereby suspended from their
respective public positions, or from any other public office that they may
be holding, the same to commence upon their receipt hereof and for a
period of ninety (90) days thereafter.
Let copies of this Resolution be furnished the Hon. Secretary, Department
of Interior and Local Government, and the Hon. Commissioner, Civil
Service Commission, for their information and guidance and they are
hereby directed to inform this Court within ten (10) days from receipt
hereof of any action they have undertaken on the matter.
SO ORDERED.
2

Accused Barbo and Libanan filed their respective motions for reconsideration, which the
Sandiganbayan denied in its resolution of 30 September 1993. From the orders,
Libanan appealed.
Petitioner presents three grounds to support his appeal, to wit: That
I. THE ORDER OF SUSPENSION IF EXECUTED WOULD
CONSTITUTE AN AFFRONT ON PETITIONER(S)
CONSTITUTIONAL RIGHT TO DUE PROCESS.
II. THE ORDER OF SUSPENSION ONCE IMPLEMENTED
WOULD AMOUNT TO AN ASSAULT OF THE SACRED
COVENANT REPOSED ON PETITIONER VICE-
GOVERNOR, MARCELINO C. LIBANAN BY THE PEOPLE
OF EASTERN SAMAR.
III. THE REASONS SOUGHT TO BE PREVENTED BY THE
SUSPENSION ORDERPENDENTE LITE NO LONGER
EXIST.
The petition is without merit.
The amendatory provision of Section 13, Republic Act No. 3019, here applicable,
provides:
Sec. 13. Suspension and Loss of Benefits. Any incumbent public officer
against whom any criminal prosecution under a valid information under
this Act or under title 7, book II of the Revised Penal Code or for any
offense involving fraud upon government or public funds or property
whether as a simple or as a complex offense and in whatever stage of
execution and mode of participation, is pending in court, shall be
suspended from office. . . .
Petitioner contends that the order of suspension, being predicated on his acts
supposedly committed while still a member of the Sangguniang Bayan, can no longer
attach to him now that he is the duly elected and incumbent
Vice-Governor of Eastern Samar. The implementation of the suspension order, he
further claims, would amount to a deprivation of property without due process of law.
In Deloso vs. Sandiganbayan,
3
this Court rejected a similar argument advanced by
Governor Deloso who, at the time of issuance of the suspension order, was already
occupying the office of governor and not the position of municipal mayor that he held
previously when charged with having violated the Anti-Graft Law. Prior to Deloso,
in Bayot vs. Sandiganbayan,
4
the suspension of then Cavite mayor Bayot was also
sustained even as he was charged for acts committed as a government auditor of the
Commission on Audit. In both instances, this Court ruled that the term "office" used in
the law could apply to any office which the officer charged might currently be holding
and not necessarily the particular office under which he was charged.
Obviously, the suspension order cannot amount to a deprivation of property without due
process of law. Public office is "a public agency or
trust,"
5
and it is not the property envisioned by the Constitutional provision
6
which
petitioner invokes.
Libanans second contention neither holds water. His so-called "covenant" with the
people of Eastern Samar is far from being synonymous to, or the equivalent of, license,
and it is not one that can cut athwart the long arm of the law. In Oliveros vs.
Villaluz,
7
we have said:
Since the criminal prosecution against petitioner-accused is concededly
not abated by the fact of his reelection, the pendency of such criminal
case under a valid information under Republic Act 3019 may clearly be
and supplies the legal basis for his suspension from office in a subsequent
term in the event of his reelection by virtue of the provisions of section 13
of the Act.
The third assigned error raised by petitioner need not be delved into. When the statute
is clear and explicit, there is hardly room for any extended court ratiocination or
rationalization of the law. Republic Act No. 3019 unequivocally mandates the
suspension of a public official from office pending a criminal prosecution against him.
This Court has repeatedly held that
such preventive suspension is mandatory,
8
and there are no "ifs" and "buts" about it.
9

WHEREFORE, the petition is DISMISSED. The assailed resolution of respondent
Sandiganbayan is AFFIRMED in toto.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.

[G.R. No. 125249. February 7, 1997]
JIMMY S. DE CASTRO, petitioner, vs. THE COMMISSION ON ELECTIONS and
AMANDO A. MEDRANO, respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
Before us is a petition for certiorari raising twin issues as regards the effect of the
contestants death in an election protest: Is said contest a personal action extinguished
upon the death of the real party in interest? If not, what is the mandatory period within
which to effectuate the substitution of parties?
The following antecedent facts have been culled from the pleadings and are not in
dispute:
Petitioner was proclaimed Mayor of Gloria, Oriental Mindoro during the May 8, 1995
elections.
In the same elections, private respondent was proclaimed Vice-Mayor of the same
municipality.
On May 19, 1995, petitioners rival candidate, the late Nicolas M. Jamilla, filed an
election protest
[1]
before the Regional Trial Court of Pinamalayan, Oriental Mindoro.
[2]

During the pendency of said contest, Jamilla died.
[3]
Four days after such death or
on December 19, 1995, the trial court dismissed the election protest ruling as it did that
[a]s this case is personal, the death of the protestant extinguishes the case itself. The
issue or issues brought out in this protest have become moot and academic.
[4]

On January 9, 1995, private respondent learned about the dismissal of the protest
from one Atty. Gaudencio S. Sadicon, who, as the late Jamillas counsel, was the one
who informed the trial court of his clients demise.
On January 15, 1996, private respondent filed his Omnibus Petition/Motion (For
Intervention and/or Substitution with Motion for Reconsideration).
[5]
Opposition thereto
was filed by petitioner on January 30, 1996.
[6]

In an Order dated February 14, 1996,
[7]
the trial court denied private respondents
Omnibus Petition/Motion and stubbornly held that an election protest being personal to
the protestant, is ipso facto terminated by the latters death.
Unable to agree with the trial courts dismissal of the election protest, private
respondent filed a petition for certiorari and mandamus before the Commission on
Elections (COMELEC); private respondent mainly assailed the trial court orders as
having been issued with grave abuse of discretion.
COMELEC granted the petition for certiorari and mandamus.
[8]
It ruled that an
election contest involves both the private interests of the rival candidates and the public
interest in the final determination of the real choice of the electorate, and for this reason,
an election contest necessarily survives the death of the protestant or the protestee.
We agree.
It is true that a public office is personal to the public officer and is not a property
transmissible to his heirs upon death.
[9]
Thus, applying the doctrine of actio personalis
moritur cum persona, upon the death of the incumbent, no heir of his may be allowed to
continue holding his office in his place.
But while the right to a public office is personal and exclusive to the public officer,
an election protest is not purely personal and exclusive to the protestant or to the
protestee such that the death of either would oust the court of all authority to continue
the protest proceedings.
An election contest, after all, involves not merely conflicting private aspirations but is
imbued with paramount public interests. As we have held in the case of Vda. de De
Mesa v. Mencias:
[10]

x x x. It is axiomatic that an election contest, involving as it does not only the
adjudication and settlement of the private interests of the rival candidates but
also the paramount need of dispelling once and for all the uncertainty that
beclouds the real choice of the electorate with respect to who shall discharge
the prerogatives of the offices within their gift, is a proceeding imbued with public
interest which raises it onto a plane over and above ordinary civil actions. For
this reason, broad perspectives of public policy impose upon courts the
imperative duty to ascertain by all means within their command who is the real
candidate elected in as expeditious a manner as possible, without being fettered
by technicalities and procedural barriers to the end that the will of the people
may not be frustrated (Ibasco vs. Ilao, et al., G.R. L-17512, December 29, 1960;
Reforma vs. De Luna, G.R. L-13242, July 31, 1958). So inextricably intertwined
are the interests of the contestants and those of the public that there can be no
gainsaying the logic of the proposition that even the voluntary cessation in office
of the protestee not only does not ipso facto divest him of the character of an
adversary in the contest inasmuch as he retains a party interest to keep his
political opponent out of the office and maintain therein his successor, but also
does not in any manner impair or detract from the jurisdiction of the court to
pursue the proceeding to its final conclusion (De Los Angeles vs. Rodriguez, 46
Phil. 595, 597; Salcedo vs. Hernandez, 62 Phil. 584, 587; Galves vs. Maramba,
G.R. L-13206).
Upon the same principle, the death of the protestee De Mesa did not abate the
proceedings in the election protest filed against him, and it may stated as a rule
that an election contest survives and must be prosecuted to final judgment
despite the death of the protestee.
[11]

The death of the protestant, as in this case, neither constitutes a ground for the
dismissal of the contest nor ousts the trial court of its jurisdiction to decide the election
contest. Apropos is the following pronouncement of this court in the case
of Lomugdang v. Javier:
[12]

Determination of what candidate has been in fact elected is a matter clothed
with public interest, wherefore, public policy demands that an election contest,
duly commenced, be not abated by the death of the contestant. We have
squarely so rule in Sibulo Vda. de Mesa vs. Judge Mencias, G.R. No. L-24583,
October 29, 1966, in the same spirit that led this Court to hold that the
ineligibility of the protestant is not a defense (Caesar vs. Garrido, 53 Phil. 57),
and that the protestees cessation in office is not a ground for the dismissal of
the contest nor detract the Courts jurisdiction to decide the case (Angeles vs.
Rodriguez, 46 Phil. 595; Salcedo vs. Hernandez, 62 Phil. 584).
[13]

The asseveration of petitioner that private respondent is not a real party in interest
entitled to be substituted in the election protest in place of the late Jamilla, is utterly
without legal basis. Categorical was our ruling in Vda. de Mesa and Lomugdang that:
x x x the Vice Mayor elect has the status of a real party in interest in the
continuation of the proceedings and is entitled to intervene therein. For if the
protest succeeds and the protestee is unseated, the Vice-Mayor succeeds to the
office of Mayor that becomes vacant if the one duly elected can not assume the
post.
[14]

To finally dispose of this case, we rule that the filing by private respondent of his
Omnibus Petition/Motion on January 15, 1996, well within a period of thirty days from
December 19, 1995 when Jamillas counsel informed the trial court of Jamillas death,
was in compliance with Section 17, Rule 3 of the Revised Rules of Court. Since the
Rules of Court, though not generally applicable to election cases, may however be
applied by analogy or in a suppletory character,
[15]
private respondent was correct to
rely thereon.
The above jurisprudence is not ancient; in fact these legal moorings have been
recently reiterated in the 1991 case of De la Victoria vs. COMELEC.
[16]
If only
petitioners diligence in updating himself with case law is as spirited as his persistence
in pursuing his legal asseverations up to the highest court of the land, no doubt further
derailment of the election protest proceedings could have been avoided.
WHEREFORE, premises considered, the instant petition for certiorari is hereby
DISMISSED.
Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur.

G.R. No. L-49677 May 4, 1989
TRADE UNIONS OF THE PHILIPPINES AND ALLIED SERVICES, petitioner,
vs.
NATIONAL HOUSING CORPORATION and ATTY. VIRGILIO SY, as Officer-in-
Charge of the Bureau of Labor Relations, respondents.
Bonifacio V. Tupaz for petitioner.
The Government Corporate Counsel for respondent NHC.
Raul E. Espinosa for intervenor PACIWU.

REGALADO, J .:
The employees of the public sector comprise the largest bloc of workers in our national
work force. Governmental bureaucracy is continually being reorganized to cope with the
growing complexity of the problems and needs of political and administrative
governance. As the increase in the number of government employees grows space, the
need to enhance their welfare correspondingly becomes more imperative. While it may
be assumed that the Government is exerting efforts to advance the interests of its
employees, it is quite understandable that the employees themselves should actively
seek arrangements where by they can participate more meaningfully in management
and employment relationships. There is, thus, a proliferation of unions or employees'
organizations, each seeking concomitant representational recognition.
The antecedent facts which led to the filing of this special civil action for certiorari are
clear and undisputed. The juridical status and relevant circumstances of respondent
corporation have been established in a case of illegal dismissal filed against it, as
previously decided by the Court and hereinafter discussed. However, submitted this
time for Our resolution is a controversy on the propriety of and requirements for
certification elections in government-owned or controlled corporations like the
respondent.
Respondent National Housing Corporation (hereinafter referred to as NHC) is a
corporation organized in 1959 in accordance with Executive Order No. 399, otherwise
known as the Uniform Charter of Government Corporations, dated January 1, 1951. Its
shares of stock are and have been one hundred percent (100%) owned by the
Government from its incorporation under Act 459, the former corporation law. The
government entities that own its shares of stock are the Government Service Insurance
System, the Social Security System, the Development Bank of the Philippines, the
National Investment and Development Corporation and the People's Homesite and
Housing Corporation.
1
Petitioner Trade Unions of the Philippines and Allied Services
(TUPAS, for brevity) is a legitimate labor organization with a chapter in NHC.
On July 13, 1977, TUPAS filed a petition for the conduct of a certification election with
Regional Office No. IV of the Department of Labor in order to determine the exclusive
bargaining representative of the workers in NHC. It was claimed that its members
comprised the majority of the employees of the corporation.
2
The petition was
dismissed by med-arbiter Eusebio M. Jimenez in an order, dated November 7, 1977,
holding that NHC "being a government-owned and/or controlled corporation its
employees/workers are prohibited to form, join or assist any labor organization for
purposes of collective bargaining pursuant to Section 1, Rule II, Book V of the Rules
and Regulations Implementing the Labor Code."
3

From this order of dismissal, TUPAS appealed to the Bureau of Labor
Relations
4
where, acting thereon in BLR Case No. A-984-77 (RO4-MED-1090-77),
Director Carmelo C. Noriel reversed the order of dismissal and ordered the holding of a
certification election.
5
This order was, however, set aside by Officer-in-Charge Virgilio
S.J. Sy in his resolution of November 21, 1978
6
upon a motion for reconsideration of
respondent NHC.
In the instant petition for certiorari, TUPAS seeks the reversal of the said resolution and
prays that a certification election be held among the rank and file employees of NHC.
In retrospect, it will be recalled that in a former case of illegal dismissal involving the
same respondent corporation,
7
We had ruled that the employees of NHC and of other
government owned or controlled corporations were governed by civil service laws, rules
and regulations pursuant to the 1973 Constitution which provided that "the civil service
embraces every branch, agency, subdivision and instrumentality of the government,
including government-owned or controlled corporations."
8

It was therein stressed that to allow subsidiary corporations to be excluded from the civil
service laws would be to permit the circumvention or emasculation of the above-quoted
constitutional provision. As perceptively analyzed therein, "(i)t would be possible for a
regular ministry of government to create a host of subsidiary corporations under the
Corporation Code funded by a willing legislature. A government-owned corporation
could create several subsidiary corporations. These subsidiary corporation rations
would enjoy the best of two worlds. Their officials and employees would be privileged
individuals, free from the strict accountability required by the Civil Service Decree and
the regulations of the Commission on Audit. Their incomes would not be subject to the
competitive restraints of the open market nor to the terms and conditions of civil service
employment."
The rule, however, was modified in the 1987 Constitution, the corresponding provision
whereof declares that "(t)he civil service embraces all branches, subdivisions,
instrumentalities and agencies of the government, including government-owned or
controlled corporations with original charters."
9

Consequently, the civil service now covers only government owned or controlled
corporations with original or legislative charters, that is those created by an act of
Congress or by special law, and not those incorporated under and pursuant to a general
legislation. As We recently held
..., the situations sought to be avoided by the 1973 Constitution and
expressed by this Court in theNational Housing Corporation case ...
appear relegated to relative insignificance by the 1987 Constitutional
provision that the Civil Service embraces government-owned controlled
corporations with original charters and therefore, by clear implication, the
Civil Service does not include government-owned or controlled
corporations which are organized as subsidiaries of government-owned or
controlled corporations under the general corporation law.
10

While the aforecited cases sought different reliefs, that is, reinstatement consequent to
illegal dismissal, the same lis mota determinative of the present special civil action was
involved therein.
The workers or employees of NHC undoubtedly have the right to form unions or
employees' organizations. The right to unionize or to form organizations is now explicitly
recognized and granted to employees in both the governmental and the private sectors.
The Bill of Rights provides that "(t)he right of the people, including those employed in
the public and private sectors, to form unions, associations or societies for purposes not
contrary to law shall not be abridged"
11

This guarantee is reiterated in the second paragraph of Section 3, Article XIII, on Social
Justice and Human Rights, which mandates that the State "shall guarantee the rights of
all workers to self-organization, collective bargaining and negotiations, and peaceful
concerted activities, including the right to strike in accordance with law ...."
Specifically with respect to government employees, the right to unionize is recognized in
Paragraph (5), Section 2, Article IX B
12
which provides that "(t)he right to self-
organization shall not be denied to government employees." The rationale of and
justification for this innovation which found expression in the aforesaid provision was
explained by its proponents as follows:
... The government is in a sense the repository of the national sovereignty
and, in that respect, it must be held in reverence if not in awe. It
symbolizes the unity of the nation, but it does perform a mundane task as
well. It is an employer in every sense of the word except that terms and
conditions of work are set forth through a Civil Service Commission. The
government is the biggest employer in the Philippines. There is an
employer-employee relationship and we all know that the accumulated
grievances of several decades are now beginning to explode in our faces
among government workers who feel that the rights afforded by the Labor
Code, for example, to workers in the private sector have been effectively
denied to workers in government in what looks like a grotesque, (sic) a
caricature of the equal protection of the laws. For example, ... there were
many occasions under the old government when wages and cost of living
allowances were granted to workers in the private sector but denied to
workers in the government for some reason or another, and the
government did not even state the reasons why. The government
employees were being discriminated against. As a general rule, the
majority of the world's countries now entertain public service unions. What
they really add up to is that the employees of the government form their
own association. Generally, they do not bargain for wages because these
are fixed in the budget but they do acquire a forum where, among other
things, professional and self-development is (sic) promoted and
encouraged. They also act as watchdogs of their own bosses so that
when graft and corruption is committed, generally, it is the unions who are
no longer afraid by virtue of the armor of self-organization that become the
public's own allies for detecting graft and corruption and for exposing
it....
13

There is, therefore, no impediment to the holding of a certification election among the
workers of NHC for it is clear that they are covered by the Labor Code, the NHC being a
government-owned and/or controlled corporation without an original charter. Statutory
implementation of the last cited section of the Constitution is found in Article 244 of the
Labor Code, as amended by Executive Order No. 111, thus:
... Right of employees in the public service Employees of the
government corporations established under the Corporation Code shall
have the right to organize and to bargain collectively with their respective
employers. All other employees in the civil service shall have the right to
form associations for purposes not contrary to law.
The records do not show that supervening factual events have mooted the present
action. It is meet, however, to also call attention to the fact that, insofar as certification
elections are concerned, subsequent statutory developments have rendered academic
even the distinction between the two types of government-owned or controlled
corporations and the laws governing employment relations therein, as hereinbefore
discussed. For, whether the employees of NHC are covered by the Labor Code or by
the civil service laws, a certification election may be conducted.
For employees in corporations and entities covered by the Labor Code, the
determination of the exclusive bargaining representative is particularly governed by
Articles 255 to 259 of said Code. Article 256 provides for the procedure when there is a
representation issue in organized establishments, while Article 257 covers unorganized
establishments. These Labor Code provisions are fleshed out by Rules V to VII, Book V
of the Omnibus Implementing Rules.
With respect to other civil servants, that is, employees of all branches, subdivisions,
instrumentalities and agencies of the government including government-owned or
controlled corporations with original charters and who are, therefore, covered by the civil
service laws, the guidelines for the exercise of their right to organize is provided for
under Executive Order No. 180. Chapter IV thereof, consisting of Sections 9 to 12,
regulates the determination of the "sole and exclusive employees representative";
Under Section 12, "where there are two or more duly registered employees'
organizations in the appropriate organization unit, the Bureau of Labor Relations shall,
upon petition order the conduct of certification election and shall certify the winner as
the exclusive representative of the rank-and-file employees in said organizational unit."
Parenthetically, note should be taken of the specific qualification in the Constitution that
the State "shall guarantee the rights of all workers to self-organization, collective
bargaining, and peaceful concerted activities, including the right to strike in accordance
with law" and that they shall also participate in policy and decision-making processes
affecting their rights and benefits as may be provided by law."
14
(Emphasis supplied.)
ON THE FOREGOING CONSIDERATIONS, the assailed resolution of the Bureau of
Labor Relations, dated November 21, 1978, is ANNULLED and SET ASIDE and the
conduct of a certification election among the affected employees of respondent National
Housing Corporation in accordance with the rules therefor is hereby GRANTED.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,
Bidin, Sarmiento, Cortes Grio Aquino and Medialdea, JJ., concur.


G.R. No. 80767 April 22, 1991
BOY SCOUTS OF THE PHILIPPINES, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, FORTUNATO ESGUERRA,
ROBERTO MALABORBOR, ESTANISLAO MISA, VICENTE EVANGELISTA, and
MARCELINO GARCIA, respondents.
Julio O. Lopez for petitioner.

FELICIANO, J .:p
This Petition for Certiorari is directed at (1) the Decision,
1
dated 27 February 1987, and
(2) the Resolution
2
dated 16 October 1987, both issued by the National Labor Relations
Commission ("NLRC") in Case No. 1637-84.
Private respondents Fortunato C. Esquerra, Roberto O. Malaborbor, Estanislao M.
Misa, Vicente N. Evangelista and Marcelino P. Garcia, had all been rank-and-file
employees of petitioner Boy Scouts of the Philippines ("BSP"). At the time of termination
of their services in February 1985, private respondents were stationed at the BSP Camp
in Makiling, Los Baos, Laguna.
The events which led to such termination of services are as follows:
On 19 October 1984, the Secretary-General of petitioner BSP issued Special Orders
Nos. 80, 81, 83, 84 and 85 addressed separately to the five (5) private respondents,
informing them that on 20 November 1984, they were to be transferred from the BSP
Camp in Makiling to the BSP Land Grant in Asuncion, Davao del Norte. These Orders
were opposed by private respondents who, on 4 November 1984, appealed the matter
to the BSP National President.
On 6 November 1984, petitioner BSP conducted a pre-transfer briefing at its National
Headquarters in Manila. Private respondents were in attendance during the briefing and
they were there assured that their transfer to Davao del Norte would not involve any
diminution in salary, and that each of them would receive a relocation allowance
equivalent to one (1) month's basic pay. This assurance, however, failed to persuade
private respondents to abandon their opposition to the transfer orders issued by the
BSP Secretary-General.
On 13 November 1984, a complaint
3
(docketed as NLRC Case No. 16-84J) for illegal
transfer was filed with the then Ministry of Labor and Employment, Sub-Regional
Arbitration Branch IV, San Pablo City, Laguna. Private respondents there sought to
enjoin implementation of Special Orders Nos. 80, 81, 83, 84 and 85, alleging, among
other things, that said orders were "indubitable and irrefutable action[s] prejudicial not
only to [them] but to [their] families and [would] seriously affect [their] economic stability
and solvency considering the present cost of living."
On 21 November 1984 (or the day immediately following the date of scheduled
transfer), the BSP Camp Manager in Makiling issued a Memorandum requiring the five
(5) private respondents to explain why they should not be charged administratively for
insubordination. The Memorandum was a direct result of the refusal by private
respondents, two (2) days earlier, to accept from petitioner BSP their respective boat
tickets to Davao del Norte and their relocation allowances.
Meanwhile, in a letter of the same date, the BSP National President informed private
respondents that their refusal to comply with the Special Orders was not sufficiently
justified and constituted rank disobedience. Memoranda subsequently issued by the
BSP Secretary-General stressed that such refusal as well as the explanations proffered
therefor, were unacceptable and could altogether result in termination of employment
with petitioner BSP. These warnings notwithstanding, private respondents continued
pertinaciously to disobey the disputed transfer orders.
Petitioner BSP consequently imposed a five-day suspension on the five (5) private
respondents, in the latter part of January 1985. Subsequently, by Special Order dated
12 February 1985 issued by the BSP Secretary-General, private respondents' services
were ordered terminated effective 15 February 1985.
On 22 February 1985, private respondents amended their original complaint to include
charges of illegal dismissal and unfair labor practice against petitioner BSP.
4
The Labor
Arbiter thereafter proceeded to hear the complaint.
In a decision
5
dated 31 July 1985, the Labor Arbiter ordered the dismissal of private
respondents' complaint for lack of merit.
On 27 February 1987, however, the ruling of the Labor Arbiter was reversed by public
respondent, NLRC, which held that private respondents had been illegally dismissed by
petitioner BSP. The dispositive portion of the NLRC decision read:
WHEREFORE, premises considered the Decision appealed from is
hereby SET ASIDE and a new one entered ordering the respondent-
appellee [petitioner BSP] to reinstate the complainants-appellants [private
respondents] to their former positions without loss of seniority rights and
other benefits appurtenant thereto and with full backwages from the time
they were illegally dismissed from the service up to the date of their actual
reinstatement.
SO ORDERED.
The Court notes at the outset that in the Position Paper
6
filed by petitioner BSP with the
Labor Arbiter, it was alleged in the second paragraph thereof, that petitioner is a "civic
service, non-stock and non-profit organization, relying mostly [on] government and
public support, existing under and by virtue of Commonwealth Act No. 111, as
amended, by Presidential Decree No. 460 . . . " A similar allegation was contained in the
Brief for Appellee
7
and in the Petition
8
and Memorandum
9
filed by petitioner BSP with
public respondent NLRC and this Court, respectively. The same allegation, moreover,
appeared in the Comment
10
(also treated as the Memorandum) submitted to this Court
by the Solicitor General on behalf of public respondent NLRC; for their part, private
respondents stated in their Appeal Memorandum
11
with the NLRC that petitioner BSP is
"by mandate of law a Public Corporation," a statement reiterated by them in their
Memorandum
12
before this Court.
In a Resolution dated 9 August 1989, this Court required the parties and the Office of
the Government Corporate Counsel to file a comment on the question of whether or not
petitioner BSP is in fact a government-owned or controlled corporation.
Petitioner, private respondents, the Office of the Solicitor General and the Office of the
Government Corporate Counsel filed their respective comments.
The central issue is whether or not the BSP is embraced within the Civil Service as that
term is defined in Article IX (B) (2) (1) of the 1987 Constitution which reads as follows:
The Civil Service embraces all branches, subdivisions, instrumentality
mentalities and agencies of the Government, including government-owned
or controlled corporations with original charters.
xxx xxx xxx
The answer to the central issue will determine whether or not private respondent
NLRC had jurisdiction to render the Decision and Resolution which are here
sought to be nullified.
The responses of the parties, on the one hand, and of the Office of the Solicitor General
and the Office of the Government Corporate Counsel, upon the other hand, in
compliance with the Resolution of this Court of 9 August 1989, present a noteworthy
uniformity. Petitioner BSP and private respondents submit substantially the same view
"that the BSP is a purely private organization". In contrast, the Solicitor General and the
Government Corporate Counsel take much the same position, that is, that the BSP is a
"public corporation' or a "quasi-public corporation" and, as well, a "government
controlled corporation." Petitioner BSP's compliance with our Resolution invokes the
following provisions of its Constitution and By-laws:
The Boy Scouts of the Philippines declares that it is an independent,
voluntary, non-political, non-sectarian and non-governmental organization,
with obligations towards nation building and with international orientation.
The BSP, petitioner stresses, does not receive any monetary or financial subsidy
from the Government whether on the national or local level.
13
Petitioner declares
that it is a "purely private organization" directed and controlled by its National
Executive Board the members of which are, it is said, all "voluntary scouters,"
including seven (7) Cabinet Secretaries.
14

Private respondents submitted a supplementary memorandum arguing that while
petitioner BSP was created as a public corporation, it had lost that status when Section
2 of Commonwealth Act No. 111 as amended by P.D. No. 460 conferred upon it the
powers which ordinary private corporations organized under the Corporation Code
have:
Sec. 2. The said corporation shall have perpetual succession with power
to sue and be sued; to hold such real and personal estate as shall be
necessary for corporate purposes, and to receive real and personal
property by gift, devise, or bequest; to adopt a seal, and to alter or destroy
the same at pleasure; to have offices and conduct its business and affairs
in the City of Manila and in the several provinces; to make and adopt by-
laws, rules and regulations not inconsistent with the laws of the
Philippines, and generally to do all such acts and things (including the
establishment of regulations for the election of associates and successors:
as may be necessary to carry into effect the provisions of the Act and
promote the purposes of said corporation.
Private respondents also point out that the BSP is registered as a private
employer with the Social Security System and that all its staff members and
employees are covered by the Social Security Act, indicating that the BSP had
lost its personality or standing as a public corporation. It is further alleged that the
BSP's assets and liabilities, official transactions and financial statements have
never been subjected to audit by the government auditing office, i.e., the
Commission on Audit, being audited rather by the private auditing firm of Sycip
Gorres Velayo and Co. Private respondents finally state that the appointments of
BSP officers and staff were not approved or confirmed by the Civil Service
Commission.
The views of the Office of the Solicitor General and the Office of the Government
Corporate Counsel on the above issue appeared to be generally similar. The Solicitor
General's Office, although it had appeared for the NLRC and filed a Comment on the
latter's behalf on the merits of the Petition for Certiorari, submitted that the BSP is a
government-owned or controlled corporation, having been created by virtue of
Commonwealth Act No. 111 entitled "An Act to Create a Public Corporation to be known
as the Boy Scouts of the Philippines and to Define its Powers and Purposes." The
Solicitor General stressed that the BSP was created in order to "promote, through
organization, and cooperation with other agencies the ability of boys to do things for
themselves and others, to train them in scoutcraft, and to teach them patriotism,
courage, self-reliance, and kindred virtues, using the methods which are now in
common use by boy scouts."
5
He further noted that the BSP's objectives and purposes
are "solely of a benevolent character and not for pecuniary profit by its members.
16
The
Solicitor General also underscored the extent of government participation in the BSP
under its charter as reflected in the composition of its governing body:
The governing body of the said corporation shall consist of a National
Executive Board composed of (a) the President of the Philippines or his
representative; (b) the charter and life members of the Boy Scouts of the
Philippines; (c) the Chairman of the Board of Trustees of the Philippine
Scouting Foundation; (d) the Regional Chairman of the Scout Regions of
the Philippines; (e) the Secretary of Education and Culture, the Secretary
of Social Welfare, the Secretary of National Defense, the Secretary of
Labor, the Secretary of Finance, the Secretary of Youth and Sports, and
the Secretary of local Government and Community Development; (f) an
equal number of individuals from the private sector; (g) the National
President of the Girl Scouts of the Philippines; (h) one Scout of Senior age
from each Scout Region to represent the boy membership; and (i) three
representatives of the cultural minorities. Except for the Regional
Chairman who shall be elected by the Regional Scout Councils during
their annual meetings, and the Scouts of their respective regions, all
members of the National Executive Board shall be either by appointment
or cooption, subject to ratification and confirmation by the Chief Scout,
who shall be the Head of State. . . .
17
(Emphasis supplied)
The Government Corporate Counsel, like the Solicitor General, describes the BSP as a
"public corporation" but, unlike the Solicitor General, suggests that the BSP is more of a
"quasi corporation" than a "public corporation." The BSP, unlike most public
corporations which are created for a political purpose, is not vested with political or
governmental powers to be exercised for the public good or public welfare in connection
with the administration of civil government. The Government Corporate Counsel
submits, more specifically, that the BSP falls within the ambit of the term "government-
owned or controlled corporation" as defined in Section 2 of P.D. No. 2029 (approved on
4 February 1986) which reads as follows:
A government-owned or controlled corporation is a stock or a non-stock
corporation, whether performing governmental or proprietary functions,
which is directly chartered by special law or if organized under the general
corporation law is owned or controlled by the government directly, or
indirectly through a parent corporation or subsidiary corporation, to the
extent of at least a majority of its outstanding capital stock or its
outstanding voting capital stock.
xxx xxx xxx
(Emphasis supplied)
Examining the relevant statutory provisions and the arguments outlined above, the
Court considers that the following need to be considered in arriving at the appropriate
legal characterization of the BSP for purposes of determining whether its officials and
staff members are embraced in the Civil Service. Firstly, BSP's functions as set out in its
statutory charter do have a public aspect. BSP's functions do relate to the fostering of
the public virtues of citizenship and patriotism and the general improvement of the moral
spirit and fiber of our youth. The social value of activities like those to which the BSP
dedicates itself by statutory mandate have in fact, been accorded constitutional
recognition. Article II of the 1987 Constitution includes in the "Declaration of Principles
and State Policies," the following:
Sec. 13. The State recognizes the vital role of the youth in nation-building
and shall promote and protect their physical, moral, spiritual, intellectual,
and social well-being. It shall inculcate in the youth patriotism and
nationalism, and encourage their involvement in public and civic affairs.
At the same time, BSP's sanctions do not relate to the governance of any part of
territory of the Philippines; BSP is not a public corporation in the same sense that
municipal corporations or local governments are public corporations. BSP's
functions can not also be described as proprietary functions in the same sense
that the functions or activities of government-owned or controlled corporations
like the National Development Company or the National Steel Corporation can be
described as proprietary or "business-like" in character. Nevertheless, the public
character of BSP's functions and activities must be conceded, for they pertain to
the educational, civic and social development of the youth which constitutes a
very substantial and important part of the nation.
The second aspect that the Court must take into account relates to the governance of
the BSP. The composition of the National Executive Board of the BSP includes, as
noted from Section 5 of its charter quoted earlier, includes seven (7) Secretaries of
Executive Departments. The seven (7) Secretaries (now six [6] in view of the abolition of
the Department of Youth and Sports and merger thereof into the Department of
Education, Culture and Sports) by themselves do not constitute a majority of the
members of the National Executive Board. We must note at the same time that the
appointments of members of the National Executive Board, except only the
appointments of the Regional Chairman and Scouts of Senior age from the various
Scout Regions, are subject to ratification and confirmation by the Chief Scout, who is
the President of the Philippines. Vacancies to the Board are filled by a majority vote of
the remaining members thereof, but again subject to ratification and confirmation by the
Chief Scout.
18
We must assume that such confirmation or ratification involves the
exercise of choice or discretion on the part of ratifying or confirming power. It does
appears therefore that there is substantial governmental (i.e., Presidential) participation
or intervention in the choice of the majority of the members of the National Executive
Board of the BSP.
The third aspect relates to the character of the assets and funds of the BSP. The
original assets of the BSP were acquired by purchase or gift or other equitable
arrangement with the Boy Scouts of America, of which the BSP was part before the
establishment of the Commonwealth of the Philippines. The BSP charter, however,
does not indicate that such assets were public or statal in character or had originated
from the Government or the State. According to petitioner BSP, its operating funds used
for carrying out its purposes and programs, are derived principally from membership
dues paid by the Boy Scouts themselves and from property rentals. In this respect, the
BSP appears similar to private non-stock, non-profit corporations, although its charter
expressly envisages donations and contributions to it from the Government and any of
its agencies and instrumentalities.
19
We note only that BSP funds have not apparently
heretofore been regarded as public funds by the Commission on Audit, considering that
such funds have not been audited by the Commission.
While the BSP may be seen to be a mixed type of entity, combining aspects of both
public and private entities, we believe that considering the character of its purposes and
its functions, the statutory designation of the BSP as "a public corporation" and the
substantial participation of the Government in the selection of members of the National
Executive Board of the BSP, the BSP, as presently constituted under its charter, is a
government-controlled corporation within the meaning of Article IX. (B) (2) (1) of the
Constitution.
We are fortified in this conclusion when we note that the Administrative Code of 1987
designates the BSP as one of the attached agencies of the Department of Education,
Culture and Sports ("DECS").
20
An "agency of the Government" is defined as referring
to any of the various units of the Government including a department, bureau, office,
instrumentality, government-owned or-controlled corporation, or local government or
distinct unit therein.
21
"Government instrumentality" is in turn defined in the 1987
Administrative Code in the following manner:
Instrumentality refers to any agency of the National Government, not
integrated within the department framework, vested with special functions
or jurisdiction by law, endowed with some if not all corporate powers,
administering special funds, and enjoying operational autonomy usually
through a charter. This term includes regulatory agencies, chartered
institutions and government-owned or controlled
corporations.
22
(Emphasis supplied)
The same Code describes a "chartered institution" in the following terms:
Chartered institution refers to any agency organized or operating under
a special charter, and vested by law with functions relating to specific
constitutional policies or objectives. This term includes the state
universities and colleges, and the monetary authority of the
State.
23
(Emphasis supplied)
We believe that the BSP is appropriately regarded as "a government instrumentality"
under the 1987 Administrative Code.
It thus appears that the BSP may be regarded as both a "government controlled
corporation with an original charter" and as an "instrumentality" of the Government
within the meaning of Article IX (B) (2) (1) of the Constitution. It follows that the
employees of petitioner BSP are embraced within the Civil Service and are accordingly
governed by the Civil Service Law and Regulations.
It remains only to note that even before the effectivity of the 1987 Constitution
employees of the BSP already fell within the scope of the Civil Service. In National
Housing Corporation v. Juco,
24
decided in 1985, the Court, speaking through Mr.
Justice Gutierrez, held:
There should no longer be any question at this time that employees of
government-owned or controlled corporations are governed by the civil
service law and civil service rules and regulations.
Section 1, Article XII-B of the [19731 Constitution specifically provides:
The Civil Service embraces every branch, agency, subdivision and
instrumentality of the Government, including every government-owned or
controlled corporation. . . .
The 1935 Constitution had a similar provision in its Section 1, Article XII
which stated:
A Civil Service embracing all branches and subdivisions of the
Government shall be provided by law.
The inclusion of "government-owned or controlled corporations" within the
embrace of the civil service shows a deliberate effort of the framers to plug
an earlier loophole which allowed government-owned or controlled
corporations to avoid the full consequences of the all encompassing
coverage of the civil service system. The same explicit intent is shown by
the addition of "agency" and "instrumentality" to branches and
subdivisions of the Government. All offices and firms of the government
are covered. The amendments introduced in 1973 are not idle exercises
or meaningless gestures. They carry the strong message that civil service
coverage is broad and all-embracing insofar as employment in the
government in any of its governmental or corporate arms is concerned.
25

The complaint in NLRC Case No. 1637-84 having been filed on 13 November 1984,
when the 1973 Constitution was still in force, our ruling in Juco applies in the case at
bar.
26

In view of the foregoing, we hold that both the Labor Arbiter and public respondent
NLRC had no jurisdiction over the complaint filed by private respondents in NLRC Case
No. 1637-84; neither labor agency had before it any matter which could validly have
been passed upon by it in the exercise of original or appellate jurisdiction. The appealed
Decision and Resolution in this case, having been rendered without jurisdiction, vested
no rights and imposed no liabilities upon any of the parties here involved. That neither
party had expressly raised the issue of jurisdiction in the pleadings poses no obstacle to
this ruling of the Court, which may motu proprio take cognizance of the issue of
existence or absence of jurisdiction and pass upon the same.
27

ACCORDINGLY, the Decision of the Labor Arbiter dated 31 July 1985, and the Decision
dated 27 February 1987 and Resolution dated 16 October 1987, issued by public
respondent NLRC, in NLRC Case No. 1637-84, are hereby SET ASIDE. All other orders
and resolutions rendered in this case by the Labor Arbiter and the NLRC are likewise
SET ASIDE. No pronouncement as to costs.
Fernan, C.J., Gutierrez, Jr., Bidin and Davide Jr., JJ., concur.

G.R. No. 79182 September 11, 1991
PNOC-ENERGY DEVELOPMENT CORPORATION, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (Third Division) and DANILO
MERCADO, respondents.
Bacorro & Associates for petitioner.
Alberto L. Dalmacion for private respondent.

PARAS, J .:p
This is a petition for certiorari to set aside the Resolution * dated July 3, 1987 of
respondent National Labor Relations Commission (NLRC for brevity) which affirmed the
decision dated April 30, 1986 of Labor Arbiter Vito J. Minoria of the NLRC, Regional
Arbitration Branch No. VII at Cebu City in Case No. RAB-VII-0556-85 entitled "Danilo
Mercado, Complainant, vs. Philippine National Oil Company-Energy Development
Corporation, Respondent", ordering the reinstatement of complainant Danilo Mercado
and the award of various monetary claims.
The factual background of this case is as follows:
Private respondent Danilo Mercado was first employed by herein petitioner Philippine
National Oil Company-Energy Development Corporation (PNOC-EDC for brevity) on
August 13, 1979. He held various positions ranging from clerk, general clerk to shipping
clerk during his employment at its Cebu office until his transfer to its establishment at
Palimpinon, Dumaguete, Oriental Negros on September 5, 1984. On June 30, 1985,
private respondent Mercado was dismissed. His last salary was P1,585.00 a month
basic pay plus P800.00 living allowance (Labor Arbiter's Decision, Annex "E" of Petition,
Rollo, p. 52).
The grounds for the dismissal of Mercado are allegedly serious acts of dishonesty
committed as follows:
1. On ApriI 12, 1985, Danilo Mercado was ordered to purchase 1,400
pieces of nipa shingles from Mrs. Leonardo Nodado of Banilad,
Dumaguete City, for the total purchase price of Pl,680.00. Against
company policy, regulations and specific orders, Danilo Mercado withdrew
the nipa shingles from the supplier but paid the amount of P1,000.00 only.
Danilo Mercado appropriated the balance of P680.00 for his personal use;
2. In the same transaction stated above, the supplier agreed to give the
company a discount of P70.00 which Danilo Mercado did not report to the
company;
3. On March 28, 1985, Danilo Mercado was instructed to contract the
services of Fred R. Melon of Dumaguete City, for the fabrication of rubber
stamps, for the total amount of P28.66. Danilo Mercado paid the amount
of P20.00 to Fred R. Melon and appropriated for his personal use the
balance of P8.66.
In addition, private respondent, Danilo Mercado violated company rules
and regulations in the following instances:
1. On June 5, 1985, Danilo Mercado was absent from work without leave,
without proper turn-over of his work, causing disruption and delay of
company work activities;
2. On June 15, 1985, Danilo Mercado went on vacation leave without prior
leave, against company policy, rules and regulations. (Petitioner's
Memorandum, Rollo, p. 195).
On September 23, 1985, private respondent Mercado filed a complaint for illegal
dismissal, retirement benefits, separation pay, unpaid wages, etc. against petitioner
PNOC-EDC before the NLRC Regional Arbitration Branch No. VII docketed as Case
No. RAB-VII-0556-85.
After private respondent Mercado filed his position paper on December 16, 1985 (Annex
"B" of the Petition, Rollo, pp. 28-40), petitioner PNOC-EDC filed its Position
Paper/Motion to Dismiss on January 15, 1986, praying for the dismissal of the case on
the ground that the Labor Arbiter and/or the NLRC had no jurisdiction over the case
(Annex "C" of the Petition, Rollo, pp. 41-45), which was assailed by private respondent
Mercado in his Opposition to the Position Paper/Motion to Dismiss dated March 12,
1986 (Annex "D" of the Petition, Rollo, pp. 46-50).
The Labor Arbiter ruled in favor of private respondent Mercado. The dispositive onion of
said decision reads as follows:
WHEREFORE, in view of the foregoing, respondents are hereby ordered:
1) To reinstate complainant to his former position with full back wages
from the date of his dismissal up to the time of his actual reinstatement
without loss of seniority rights and other privileges;
2) To pay complainant the amount of P10,000.00 representing his
personal share of his savings account with the respondents;
3) To pay complainants the amount of P30,000.00 moral damages;
P20,000.00 exemplary damages and P5,000.00 attorney's fees;
4) To pay complainant the amount of P792.50 as his proportionate 13th
month pay for 1985.
Respondents are hereby further ordered to deposit the aforementioned
amounts with this Office within ten days from receipt of a copy of this
decision for further disposition.
SO ORDERED.
(Labor Arbiter's Decision, Rollo, p. 56)
The appeal to the NLRC was dismissed for lack of merit on July 3, 1987 and the
assailed decision was affirmed.
Hence, this petition.
The issues raised by petitioner in this instant petition are:
1. Whether or not matters of employment affecting the PNOC-EDC, a
government-owned and controlled corporation, are within the jurisdiction
of the Labor Arbiter and the NLRC.
2. Assuming the affirmative, whether or not the Labor Arbiter and the
NLRC are justified in ordering the reinstatement of private respondent,
payment of his savings, and proportionate 13th month pay and payment of
damages as well as attorney's fee.
Petitioner PNOC-EDC alleges that it is a corporation wholly owned and controlled by the
government; that the Energy Development Corporation is a subsidiary of the Philippine
National Oil Company which is a government entity created under Presidential Decree
No. 334, as amended; that being a government-owned and controlled corporation, it is
governed by the Civil Service Law as provided for in Section 1, Article XII-B of the 1973
Constitution, Section 56 of Presidential Decree No. 807 (Civil Service Decree) and
Article 277 of Presidential Decree No. 442, as amended (Labor Code).
The 1973 Constitution provides:
The Civil Service embraces every branch, agency, subdivision and
instrumentality of the government including government-owned or
controlled corporations.
Petitioner PNOC-EDC argued that since Labor Arbiter Minoria rendered the decision at
the time when the 1973 Constitution was in force, said decision is null and void because
under the 1973 Constitution, government-owned and controlled corporations were
governed by the Civil Service Law. Even assuming that PNOC-EDC has no original or
special charter and Section 2(i), Article IX-B of the 1987 Constitution provides that:
The Civil Service embraces all branches, subdivision, instrumentalities
and agencies of the Government, including government-owned or
controlled corporations with original charters.
such circumstances cannot give validity to the decision of the Labor Arbiter (Ibid., pp.
192-193).
This issue has already been laid to rest in the case of PNOC-EDC vs. Leogardo, 175
SCRA 26 (July 5, 1989), involving the same petitioner and the same issue, where this
Court ruled that the doctrine that employees of government-owned and/or con
controlled corporations, whether created by special law or formed as subsidiaries under
the General Corporation law are governed by the Civil Service Law and not by the
Labor Code, has been supplanted by the present Constitution. "Thus, under the present
state of the law, the test in determining whether a government-owned or controlled
corporation is subject to the Civil Service Law are the manner of its creation, such that
government corporations created by special charter are subject to its provisions while
those incorporated under the General Corporation Law are not within its coverage."
Specifically, the PNOC-EDC having been incorporated under the General Corporation
Law was held to be a government owned or controlled corporation whose employees
are subject to the provisions of the Labor Code (Ibid.).
The fact that the case arose at the time when the 1973 Constitution was still in effect,
does not deprive the NLRC of jurisdiction on the premise that it is the 1987 Constitution
that governs because it is the Constitution in place at the time of the decision (NASECO
v. NLRC, G.R. No. 69870, 168 SCRA 122 [1988]).
In the case at bar, the decision of the NLRC was promulgated on July 3, 1987.
Accordingly, this case falls squarely under the rulings of the aforementioned cases.
As regards the second issue, the record shows that PNOC-EDC's accusations of
dishonesty and violations of company rules are not supported by evidence.
Nonetheless, while acknowledging the rule that administrative bodies are not governed
by the strict rules of evidence, petitioner PNOC-EDC alleges that the labor arbiter's
propensity to decide the case through the position papers submitted by the parties is
violative of due process thereby rendering the decision null and void (Ibid., p. 196).
On the other hand, private respondent contends that as can be seen from petitioner's
Motion for Reconsideration and/or Appeal dated July 28, 1986 (Annex "F" of the
Petition, Rollo, pp. 57- 64), the latter never questioned the findings of facts of the Labor
Arbiter but simply limited its objection to the lack of legal basis in view of its stand that
the NLRC had no jurisdiction over the case (Private Respondent's Memorandum, Rollo,
p. 104).
Petitioner PNOC-EDC filed its Position Paper/Motion to Dismiss dated January 15, 1986
(Annex "C" of the Petition Rollo, pp. 41-45) before the Regional Arbitration Branch No.
VII of Cebu City and its Motion for Reconsideration and/or Appeal dated July 28, 1986
(Annex "F" of the Petition, Rollo, pp. 57-64) before the NLRC of Cebu City. Indisputably,
the requirements of due process are satisfied when the parties are given an opportunity
to submit position papers. What the fundamental law abhors is not the absence of
previous notice but rather the absolute lack of opportunity to ventilate a party's side.
There is no denial of due process where the party submitted its position paper and flied
its motion for reconsideration (Odin Security Agency vs. De la Serna, 182 SCRA 472
[February 21, 1990]). Petitioner's subsequent Motion for Reconsideration and/or Appeal
has the effect of curing whatever irregularity might have been committed in the
proceedings below (T.H. Valderama and Sons, Inc. vs. Drilon, 181 SCRA 308 [January
22, 1990]).
Furthermore, it has been consistently held that findings of administrative agencies which
have acquired expertise because their jurisdiction is confined to specific matters are
accorded not only respect but even finality (Asian Construction and Development
Corporation vs. NLRC, 187 SCRA 784 [July 27, 1990]; Lopez Sugar Corporation vs.
Federation of Free Workers, 189 SCRA 179 [August 30, 1990]). Judicial review by this
Court does not go so far as to evaluate the sufficiency of the evidence but is limited to
issues of jurisdiction or grave abuse of discretion (Filipinas Manufacturers Bank vs.
NLRC, 182 SCRA 848 [February 28, 1990]). A careful study of the records shows no
substantive reason to depart from these established principles.
While it is true that loss of trust or breach of confidence is a valid ground for dismissing
an employee, such loss or breach of trust must have some basis (Gubac v. NLRC, 187
SCRA 412 [July 13, 1990]). As found by the Labor Arbiter, the accusations of petitioner
PNOC-EDC against private respondent Mercado have no basis. Mrs. Leonardo
Nodado, from whom the nipa shingles were purchased, sufficiently explained in her
affidavit (Rollo, p. 36) that the total purchase price of P1,680.00 was paid by respondent
Mercado as agreed upon. The alleged discount given by Mrs. Nodado is not supported
by evidence as well as the alleged appropriation of P8.66 from the cost of fabrication of
rubber stamps. The Labor Arbiter, likewise, found no evidence to support the alleged
violation of company rules. On the contrary, he found respondent Mercado's explanation
in his affidavit (Rollo, pp. 38-40) as to the alleged violations to be satisfactory.
Moreover, these findings were never contradicted by petitioner petitioner PNOC-EDC.
PREMISES CONSIDERED, the petition is DENIED and the resolution of respondent
NLRC dated July 3, 1987 is AFFIRMED with the modification that the moral damages
are reduced to Ten Thousand (P10,000.00) Pesos, and the exemplary damages
reduced to Five Thousand (P5,000.00) Pesos.
SO ORDERED.
Melencio-Herrera (Chairperson), Padilla and Regalado, JJ., concur.

G.R. No. 95237-38 September 13, 1991
DAVAO CITY WATER DISTRICT, CAGAYAN DE ORO CITY WATER DISTRICT,
METRO CEBU WATER DISTRICT, ZAMBOANGA CITY WATER DISTRICT, LEYTE
METRO WATER DISTRICT, BUTUAN CITY WATER DISTRICT, CAMARINES NORTE
WATER DISTRICT, LAGUNA WATER DISTRICT, DUMAGUETE CITY WATER
DISTRICT, LA UNION WATER DISTRICT, BAYBAY WATER DISTRICT, METRO
LINGAYEN WATER DISTRICT, URDANETA WATER DISTRICT, COTABATO CITY
WATER DISTRICT, MARAWI WATER DISTRICT, TAGUM WATER DISTRICT, DIGOS
WATER DISTRICT, BISLIG WATER DISTRICT, and MECAUAYAN WATER
DISTRICT, petitioners,
vs.
CIVIL SERVICE COMMISSION, and COMMISSION ON AUDIT, respondents.
Rodolfo S. De Jesus for petitioners.
Evalyn H. Itaas-Fetalino, Rogelio C. Limare and Daisy B. Garcia-Tingzon for CSC.

MEDIALDEA, J .:p
Whether or not the Local Water Districts formed and created pursuant to the provisions
of Presidential Decree No. 198, as amended, are government-owned or controlled
corporations with original charter falling under the Civil Service Law and/or covered by
the visitorial power of the Commission on Audit is the issue which the petitioners entreat
this Court, en banc, to shed light on.
Petitioners are among the more than five hundred (500) water districts existing
throughout the country formed pursuant to the provisions of Presidential Decree No.
198, as amended by Presidential Decrees Nos. 768 and 1479, otherwise known as the
"Provincial Water Utilities Act of 1973."
Presidential Decree No. 198 was issued by the then President Ferdinand E. Marcos by
virtue of his legislative power under Proclamation No. 1081. It authorized the different
local legislative bodies to form and create their respective water districts through a
resolution they will pass subject to the guidelines, rules and regulations therein laid
down. The decree further created and formed the "Local Water Utilities Administration"
(LWUA), a national agency attached to the National Economic and Development
Authority (NEDA), and granted with regulatory power necessary to optimize public
service from water utilities operations.
The respondents, on the other hand, are the Civil Service Commission (CSC) and the
Commission on Audit (COA), both government agencies and represented in this case
by the Solicitor General.
On April 17, 1989, this Court ruled in the case of Tanjay Water District v. Gabaton, et
al. (G.R. No. 63742, 172 SCRA 253):
Significantly, Article IX (B), Section 2(1) of the 1987 Constitution provides
that the Civil Service embraces all branches, subdivisions,
instrumentalities, and agencies of the government, including government-
owned and controlled corporations with original charters. Inasmuch as PD
No. 198, as amended, is the original charter of the petitioner, Tanjay
Water District, and respondent Tarlac Water District and all water districts
in the country, they come under the coverage of the Civil Service Law,
rules and regulations. (Sec. 35, Art. VIII and Sec. 37, Art. IX of PD No.
807).
As an offshoot of the immediately cited ruling, the CSC. issued Resolution No. 90-575,
the dispositive portion of which reads:
NOW THEREFORE, in view of all the foregoing, the Commission
resolved, as it hereby resolves to rule that Local Water Districts, being
quasi-public corporations created by law to perform public services and
supply public wants, the matter of hiring and firing of its officers and
employees should be governed by the Civil Service Law, rules and
regulations. Henceforth, all appointments of personnel of the different local
water districts in the country shall be submitted to the Commission for
appropriate action. (Rollo. p. 22).
However, on May 16, 1990, in G.R. No. 85760, entitled "Metro Iloilo Water District v.
National Labor Relations Commission, et al.," the Third Division of this Court ruled in a
minute resolution:
xxx xxx xxx
Considering that PD 198 is a general legislation empowering and/or
authorizing government agencies and entities to create water districts,
said PD 198 cannot be considered as the charter itself creating the Water
District. Public respondent NLRC did not commit any grave abuse of
discretion in holding that the operative act, that created the Metro Iloilo
Water District was the resolution of the Sangguniang Panglunsod of Iloilo
City. Hence, the employees of Water Districts are not covered by Civil
Service Laws as the latter do (sic) not have original charters.
In adherence to the just cited ruling, the CSC suspended the implementation of
Resolution No. 90-575 by issuing Resolution No. 90-770 which reads:
xxx xxx xxx
NOW, THEREFORE, in view of all the foregoing, the Commission
resolved to rule, as it hereby rules, that the implementation of CSC.
Resolution No. 575 dated June 27, 1990 be deferred in the meantime
pending clarification from the Supreme Court are regards its conflicting
decisions in the cases of Tanjay Water District v. Gabaton and Metro Iloilo
Water District v. National Labor Relations Commission. (p. 26, Rollo)
In the meanwhile, there exists a divergence of opinions between COA on one hand, and
the (LWUA), on the other hand, with respect to the authority of COA to audit the
different water districts.
COA opined that the audit of the water districts is simply an act of discharging the
visitorial power vested in them by law (letter of COA to LWUA dated August 13, 1985,
pp. 29-30, Rollo).
On the other hand, LWUA maintained that only those water districts with subsidies from
the government fall within the COA's jurisdiction and only to the extent of the amount of
such subsidies, pursuant to the provision of the Government Auditing Code of the Phils.
It is to be observed that just like the question of whether the employees of the water
districts falls under the coverage of the Civil Service Law, the conflict between the water
districts and the COA is also dependent on the final determination of whether or not
water districts are government-owned or controlled corporations with original charter.
The reason behind this is Sec. 2(1), Article IX-D of the 1987 constitution which reads:
Sec. 2(1) The Commission on Audit shall have the power, authority, and
duty to examine, audit, and settle all accounts pertaining to the revenue
and receipts of, and expenditures or uses of funds and property, owned or
held in trust by, or pertaining to the Government, or any of its subdivisions,
agencies or instrumentalities, including government-owned or controlled
corporations with original charters, and on a post audit basis. (emphasis
supplied)
Petitioners' main argument is that they are private corporations without original charter,
hence they are outside the jurisdiction of respondents CSC and COA. Reliance is made
on the Metro Iloilo case which declared petitioners as quasi-public corporations created
by virtue of PD 198, a general legislation which cannot be considered as the charter
itself creating the water districts. Holding on to this ruling, petitioners contend that they
are private corporations which are only regarded as quasi-public or semi-public because
they serve public interest and convenience and that since PD 198 is a general
legislation, the operative act which created a water district is not the said decree but the
resolution of the sanggunian concerned.
After a fair consideration of the parties' arguments coupled with a careful study of the
applicable laws as well as the constitutional provisions involved, We rule against the
petitioners and reiterate Our ruling in Tanjay case declaring water districts government-
owned or controlled corporations with original charter.
As early as Baguio Water District v. Trajano, et al., (G.R. No. 65428, February 20, 1984,
127 SCRA 730), We already ruled that a water district is a corporation created pursuant
to a special law P.D. No. 198, as amended, and as such its officers and employees
are covered by the Civil Service Law.
In another case (Hagonoy Water District v. NLRC, G.R. No. 81490, August 31, 1988,
165 SCRA 272), We ruled once again that local water districts are quasi-public
corporations whose employees belong to the Civil Service. The Court's pronoucement
in this case, as extensively quoted in the Tanjay case, supra, partly reads:
"The only question here is whether or not local water districts are
governmkent owned or controlled corporations whose employees are
subject to the provisions of the Civil Service Law. The Labor Arbiter
asserted jurisdiction over the alleged illegal dismissal of private
respondent Villanueva by relying on Section 25 of Presidential decree No.
198, known as the Provincial Water Utilities Act of 1973" which went onto
effect in 25 May 1973, and which provides as follows:
Exemption from Civil Service. The district and its
employees, being engaged in a proprietary function, are
hereby exempt from the provisions of the Civil Service Law.
Collective Bargaining shall be available only to personnel
below supervisory levels:Provided, however, That the total of
all salaries, wages emoluments, benefits or other
compensation paid to all employees in any month shall not
exceed fifty percent (50%) of average net monthy revenue.
Said net revenue representing income from water sales and
sewerage service charges, less pro-rata share of debt
service and expenses for fuel or energy for pumping during
the preceding fiscal year.
The Labor Arbiter failed to take into accout the provisions of Presidential
Decree No. 1479, which went into effect on 11 June 1978, P.D. No. 1479,
wiped away Section 25 of PD 198 quoted above, and Section 26 of PD
198 was renumbered as Section 25 in the following manner:
Section 26 of the same decree PD 198 is hereby amended to read as
Section 25 as follows:
Section 25. Authorization. The district may exercise all the powers
which are expressly granted by this Title or which are necessarily implied
from or incidental to the powers and purposes herein stated. For the
purpose of carrying out the objectives of this Act, a district is hereby
granted the power of eminent domain, the exercise thereof shall, however,
be subject to review by the Administration.
Thus, Section 25 of PD 198 exempting the employees of water districts
from the application of the Civil Service Law was removed from the statute
books:
xxx xxx xxx
We grant the petition for the following reasons:
1. Section 25 of PD No. 198 was repealed by Section 3 of PD No. 1479;
Section 26 of PD No. 198 was amended ro read as Sec. 25 by Sec. 4 of
PD No. 1479. The amendatory decree took effect on June 11, 1978.
xxx xxx xxx
3. The BWD is a corporation created pursuant to a special law PD No.
198, as amended. As such its officers and employees are part of the Civil
Service (Sec. 1, Art. XII-B, [1973] Constitution; PD No. 868).
Ascertained from a consideration of the whole statute, PD 198 is a special law
applicable only to the different water districts created pursuant thereto. In all its
essential terms, it is obvious that it pertains to a special purpose which is intended to
meet a particular set of conditions and cirmcumstances. The fact that said decree
generally applies to all water districts throughout the country does not change the fact
that PD 198 is a special law. Accordingly, this Court's resolution in Metro Iloilo case
declaring PD 198 as a general legislation is hereby abandoned.
By "government-owned or controlled corporation with original charter," We mean
government owned or controlled corporation created by a special law and not under the
Corporation Code of the Philippines. Thus, in the case ofLumanta v. NLRC (G.R. No.
82819, February 8, 1989, 170 SCRA 79, 82), We held:
The Court, in National Service Corporation (NASECO) v. National Labor
Relations Commission, G.R. No 69870, promulgated on 29 November
1988, quoting extensively from the deliberations of 1986 Constitutional
Commission in respect of the intent and meaning of the new phrase "with
original character," in effect held that government-owned and controlled
corporations with original charter refer to corporations chartered by special
law as distinguished from corporations organized under our general
incorporation statute the Corporations Code. In NASECO, the company
involved had been organized under the general incorporation statute and
was a sbusidiary of the National Investment Development Corporation
(NIDC) which in turn was a subsidiary of the Philippine National Bank, a
bank chartered by a special statute. Thus, government-owned or
controlled corporations like NASECO are effectively, excluded from the
scope of the Civil Service. (emphasis supplied)
From the foregoing pronouncement, it is clear that what has been excluded from the
coverage of the CSC are those corporations created pursuant to the Corporation Code.
Significantly, petitioners are not created under the said code, but on the contrary, they
were created pursuant to a special law and are governed primarily by its provision.
No consideration may thus be given to petitioners' contention that the operative act
which created the water districts are the resolutions of the respective local sanggunians
and that consequently, PD 198, as amended, cannot be considered as their charter.
It is to be noted that PD 198, as amended is the source of authorization and power to
form and maintain a district. Section 6 of said decree provides:
Sec. 6. Formation of District. This Act is the source of authorization and
power to form and maintain a district. Once formed, a district is subject to
the provisions of this Act and not under the jurisdiction of any political
subdivision, . . . .
Moreover, it must be observed that PD 198, contains all the essential terms necessary
to constitute a charter creating a juridical person. For example, Section 6(a) provides for
the name that will be used by a water district, thus:
Sec. 6. . . . To form a district, the legislative body of any city, municipality
or province shall enact a resolution containing the following:
a) The name of the local water district, which shall include the name of the
city, municipality, or province, or region thereof, served by said system,
followed by the words "Water District."
It also prescribes for the numbers and qualifications of the members of the Board of
Directors:
Sec. 8. Number and Qualification. The Board of Directors of a district
shall be composed of five citizens of the Philippines who are of voting age
and residents within the district. One member shall be a representative of
civic-oriented service clubs, one member of representative of professional
associations, one member a representative of business, commercial or
financial organizations, one member a representative of educational
institutions and one member a representative of women's organization. No
public official shall serve as director. Provided, however, that if the district
has availed of the financial assistance of the Administration, the
Administration may appoint any of its personnel to sit in the board of
directors with all the rights and privileges appertaining to a regular
member for such period as the indebtedness remains unpaid in which
case the board shall be composed of six members; (as amended by PDs
Nos. 768 and 1479).
the manner of their appointment and nominations;
Sec. 9. Appointment. Board members shall be appointed by the
appointing authority. Said appointments shall be made from a list of
nominees, if any, submitted pursuant to Section 10. If no nominations are
submitted, the appointing authority shall appoint any qualified person of
the category to the vacant position;
Sec.10. Nominations. On or before October 1 of each even numbered
year, the secretary of the district shall contact each known organization,
association, or institution being represented by the director whose term
will expire on December 31 and solicit nominations from these
organizations to fill the position for the ensuing term. One nomination may
be submitted in writing by each such organization to the Secretary of the
district on or before November 1 of such year: This list of nominees shall
be transmitted by the Secretary of the district to the office of the appointing
authority on or before November 15 of such year and he shall make his
appointment from the list submitted on or before December 15. In the
event the appointing authority fails to make his appointments on or before
December 15, selection shall be made from said list of nominees by
majority vote of the seated directors of the district constituting a quorum.
Initial nominations for all five seats of the board shall be solicited by the
legislative body or bodies at the time of adoption of the resolution forming
the district. Thirty days thereafter, a list of nominees shall be submitted to
the provincial governor in the event the resolution forming the district is by
a provincial board, or the mayor of the city or municipality in the event the
resolution forming the adoption of the district is by the city or municipal
board of councilors, who shall select the initial directors therefrom within
15 days after receipt of such nominations;
their terms of office:
Sec. 11. Term of Office. Of the five initial directors of each newly
formed district, two shall be appointed for a maximum term of two years,
two for a maximum term of four years, and one for a maximum term of six
years. Terms of office of all directors in a given district shall be such that
the term of at least one director, but not more then two, shall expire on
December 31 of each even-numbered year. Regular terms of office after
the initial terms shall be for six years commencing on January 1 of odd-
numbered years. Directors may be removed for cause only, subject to
review and approval of the Administration; (as amended by PD 768).
the manner of filling up vacancies:
Sec. 12. Vacancies. In the event of a vacancy in the board of directors
occurring more than six months before expiration of any director's term,
the remaining directors shall within 30 days, serve notice to or request the
secretary of the district for nominations and within 30 days, thereafter a list
of nominees shall be submitted to the appointing authority for his
appointment of a replacement director from the list of nominees. In the
absence of such nominations, the appointing authority shall make such
appointment. If within 30 days after submission to him of a list of nominees
the appointing authority fails to make an appointment, the vacancy shall
be filled from such list by a majority vote of the remaining members of the
Board of Directors constituting a quorum. Vacancies occurring within the
last six months of an unexpired term shall also be filled by the Board in the
above manner. The director thus appointed shall serve the unexpired term
only; (as amended by PD 768).
and the compensation and personal liability of the members of the Board of Directors:
Sec. 13. Compensation. Each director shall receive a per diem, to be
determined by the board, for each meeting of the board actually attended
by him, but no director shag receive per diems in any given month in
excess of the equivalent of the total per diems of four meetings in any
given month. No director shall receive other compensation for services to
the district.
Any per diem in excess of P50.00 shall be subject to approval of the
Administration (as amended by PD 768).
Sec. 14. Personal Liability. No director may be held to be personally
liable for any action of the district.
Noteworthy, the above quoted provisions of PD 198, as amended, are similar to those
which are actually contained in other corporate charters. The conclusion is inescapable
that the said decree is in truth and in fact the charter of the different water districts for it
clearly defines the latter's primary purpose and its basic organizational set-up. In other
words, PD 198, as amended, is the very law which gives a water district juridical
personality. While it is true that a resolution of a local sanggunian is still necessary for
the final creation of a district, this Court is of the opinion that said resolution cannot be
considered as its charter, the same being intended only to implement the provisions of
said decree. In passing a resolution forming a water district, the local sanggunian is
entrusted with no authority or discretion to grant a charter for the creation of a private
corporation. It is merely given the authority for the formation of a water district, on a
local option basis, to be exercised under and in pursuance of PD 198.
More than the aforequoted provisions, what is of important interest in the case at bar is
Section 3, par. (b) of the same decree which reads:
Sec. 3(b). Appointing authority. The person empowered to appoint the
members of the Board of Directors of a local water district, depending
upon the geographic coverage and population make-up of the particular
district. In the event that more than seventy-five percent of the total active
water service connections of a local water districts are within the boundary
of any city or municipality, the appointing authority shall be the mayor of
that city or municipality, as the case may be; otherwise, the appointing
authority shall be the governor of the province within which the district is
located: Provided, That if the existing waterworks system in the city or
municipality established as a water district under this Decree is operated
and managed by the province, initial appointment shall be extended by the
governor of the province. Subsequent appointments shall be as specified
herein.
If portions of more than one province are included within the boundary of
the district, and the appointing authority is to be the governors then the
power to appoint shall rotate between the governors involved with the
initial appointments made by the governor in whose province the greatest
number of service connections exists (as amended by PD 768).
The above-quoted section definitely sets to naught petitioners' contention that they are
private corporations. It is clear therefrom that the power to appoint the members who
will comprise the Board of Directors belongs to the local executives of the local
subdivision units where such districts are located. In contrast, the members of the Board
of Directors or trustees of a private corporation are elected from among the members
and stockholders thereof. It would not be amiss to emphasize at this point that a private
corporation is created for the private purpose, benefit, aim and end of its members or
stockholders. Necessarily, said members or stockholders should be given a free hand to
choose those who will compose the governing body of their corporation. But this is not
the case here and this clearly indicates that petitioners are definitely not private
corporations.
The foregoing disquisition notwithstanding, We are, however, not unaware of the
serious repercussion this may bring to the thousands of water districts' employees
throughout the country who stand to be affected because they do not have the
necessary civil service eligibilities. As these employees are equally protected by the
constitutional guarantee to security of tenure, We find it necessary to rule for the
protection of such right which cannot be impaired by a subsequent ruling of this Court.
Thus, those employees who have already acquired their permanent employment status
at the time of the promulgation of this decision cannot be removed by the mere reason
that they lack the necessary civil service eligibilities.
ACCORDINGLY, the petition is hereby DISMISSED. Petitioners are declared
"government-owned or controlled corporations with original charter" which fall under the
jurisdiction of the public respondents CSC and COA.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Padilla, Grio-Aquino, Regalado
and Davide, Jr., JJ., concur.

MODESTO AGYAO, JR.,
Petitioner,








- versus -









CIVIL SERVICE COMMISSION,
Respondent.
G.R. No. 182591

Present:

CORONA, C.J.,
CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
*

ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
SERENO, JJ.

Promulgated:
January 18, 2011

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

D E C I S I O N

MENDOZA, J .:

Assailed in this petition for review on certiorari is the September 26,
2007 Decision
[1]
of the Court of Appeals (CA), in CA-G.R. SP No. 92569, which affirmed
Resolution No. 05-0821 dated June 16, 2005, issued by the Civil Service
Commission (CSC). The CSC Resolution, in turn, affirmed the invalidation by the Civil
Service Commission Field Office-Bangko Sentral Ng Pilipinas (CSCFO-BSP) of the
appointment of petitioner Modesto Agyao, Jr. (Agyao) as Department Manager II of the
Philippine Economic Zone Authority (PEZA).

Records show that on June 16, 2004, Agyao was re-appointed as Department
Manager II of PEZA. As a matter of course, the renewal of Agyaos appointment was
submitted by PEZA to the CSC.

On July 16, 2004, however, Agyaos re-appointment was invalidated by the
CSCFO-BSP, through a letter of Director Mercedes P. Tabao (Director Tabao). The
letter stated that Agyao lacked the prescribed Career Executive Service Office (CESO)/
Career Service Executive Examination (CSEE) eligibility, and there were qualified
eligibles actually available for appointment. Section 2 (b), Rule III of CSC Memorandum
Circular No. 40, Series of 1998, provides as follows:

b. Temporary issued to a person who meets the education,
experience and training requirements for the position to which he is being
appointed except for the appropriate eligibility but only in the absence of a
qualified eligible actually available, as certified to by the Civil Service
Regional Director or Field Officer. xxx

On August 31, 2004, PEZA Director-General Lilia B. De Lima (Director-General
De Lima) sent a letter-appeal to the CSC seeking a reconsideration of its action on the
appointment of Agyao.

On June 16, 2005, the CSC issued Resolution No. 05-0821
[2]
denying Director-
General De Limas appeal and affirming the invalidation by the CSCFOBSP of Agyaos
appointment as Department Manager II of PEZA. The CSC referred to CSC
Memorandum Circular (MC) No. 9, Series of 2005 (Limitations on Renewal of
Temporary Appointments), which clearly provides that only one renewal of a temporary
third-level appointment is allowed provided that there are no qualified applicants actually
available and willing to assume the position. Moreover, although Agyaos temporary
appointment was renewed four (4) times, he failed to acquire the appropriate third level
eligibility. In addition, CSCFO-BSP Director Tabao certified that there were qualified
eligibles available for appointment to the position of Department Manager II.

On July 18, 2005, Agyao was informed by PEZA Deputy Director for Finance and
Administration, Justo Porfirio LL. Yusingco, about his appointment as Division Chief III,
Permanent, effective July 16, 2005.

On August 21, 2005, Agyao filed with the CSC a Letter-Motion for
Reconsideration of its July 16, 2005 Resolution. The motion, however, was denied in
the cited CSC Resolution No. 05-1486 dated October 17, 2005.

On appeal, the CA rendered a decision dated September 26, 2007 affirming the
resolution of the CSC. It ruled, among others, that Agyao could not qualify for the
position of Department Manager II because he was not a Career Civil Service
Eligible (CESE). He could not invoke the provisions of CSC MC No. 9, Series of 2005,
issued on March 22, 2005 because the invalidation of his temporary appointment was
made earlier on July 16, 2004. Moreover, CSC Office Memorandum No. 05, Series of
2005, issued on August 5, 2005 as a clarification on CSC MC No. 9, Series of 2005,
expressly provides that all renewals issued on or after July 24, 2005 can no longer be
renewed after they lapse.




Aggrieved, Agyao filed this petition for review before this Court raising the
following

ISSUES

WHETHER OR NOT THE COURT OF APPEALS ERRED AND ABUSED
ITS DISCRETION IN UPHOLDING THE FINDINGS OF THE CIVIL
SERVICE COMMISSION DECLARING THE APPOINTMENT OF THE
PETITIONER AS DEPARTMENT MANAGER II OF THE PEZA AS
INVALID.


WHETHER OR NOT THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE POSITION OF THE PETITIONER AS
DEPARTMENT MANAGER II IS NOT COVERED UNDER THE CAREER
EXECUTIVE SERVICE CONSIDERING THE FACT THAT HE IS NOT A
PRESIDENTIAL APPOINTEE.


Agyao argues that CSC MC No. 9, Series of 2005, is applicable to him because
its provisions are favorable to him. He claims that CSC Office Memorandum No.
05, Series of 2005, which clarified CSC MC No. 9, Series of 2005, allows one renewal
of temporary third level appointments issued beforeJuly 24, 2005 subject to existing
rules and regulations regardless of previous renewals granted before said date.
Accordingly, he insists that the renewal of his appointment was valid because it was
made on June 16, 2004.

Agyao further points out that there are no qualified applicants actually available
and willing to assume his position as Director Manager II at the PEZA. Director Tabaos
qualified eligibles in her list are from different agencies of the government and that
none of them has applied for the position. It is the reason why the position is still vacant.

Finally, Agyao contends that the position of Department Manager II of PEZA is
not among those covered by the Career Executive Service (CES) also known as
presidential appointees. The appointment to the position is made by the PEZA Director-
General. Accordingly, he does not need to possess the required CESO/CSEE to
continue acting as Department Manager II.

The CSC, on the other hand, argues that Agyaos temporary appointment
on June 16, 2004 was properly invalidated because he lacked the eligibility to qualify as
Department Manager II. Although he was re-appointed several times to the position, he
still failed to acquire third level eligibility considering that he failed in the November 2004
CSEE.

Moreover, CSC MC No. 9, Series of 2005, and CSC Office Memorandum No. 05,
Series of 2005, cannot apply in Agyaos favor because they were issued after the
invalidation of his fifth temporary appointment and did not provide for a retroactive
application.

The CSC also regards Agyaos contention that there are no qualified applicants
who are actually willing to assume the position of Department Manager II as speculative
and hearsay. Actually, Director Tabao certified and furnished PEZA a list of qualified
eligibles for possible appointment as Department Manager II.

Finally, the CSC argues that although the position of Department Manager II does
not require a presidential appointment, it is a third level position which requires either a
CESO or CSEE eligibility. The list of third level positions in the Career Executive
Service enumerated in the Administrative Code of 1987, namely: Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director,
Assistant Regional Director, Chief of Department Service and other officers of
equivalent rank as may be identified by the Career Executive Service Board, is not
strictly limited. Citing jurisprudence,
[3]
the CSC avers that the classification of a
particular position in the bureaucracy is determined by the nature of the functions of the
office. The third level embraces positions of a managerial character involving the
exercise of management functions such as planning, organizing, directing, coordinating,
controlling, and overseeing the activities of an organization or of a unit thereof. It also
requires some degree of professional, technical or scientific knowledge and experience,
and application of managerial or supervisory skills necessary to carry out duties and
responsibilities involving functional guidance, leadership and supervision.

The rank of Department Manager II falls under the coverage of CES under the
aforementioned CSC issuances as the same is a third level career position above the
division chief level and performing executive or managerial functions. Pursuant to the
merit-and-fitness rule in the Constitution, the consistent policy is to the effect that non-
presidential appointees to positions with managerial and executive functions must
possess third level eligibility.

In sum, the core issue to be resolved in this case is whether or not the position
of Department Manager II of PEZA requires CESO or CSEE eligibility.

RULING OF THE COURT

The issue is not novel. In Office of the Ombudsman v. Civil Service
Commission cases,
[4]
Home Insurance Guarantee Corporation v. Civil
Service Commission
[5]
and National Transmission Corporation v. Hamoy,
[6]
the Court
has consistently ruled that the CES covers presidential appointees only. Corollarily, as
the position of Department Manager II of the PEZA does not require appointment by the
President of the Philippines, it does not fall under the CES.

Section 8, Chapter 2, Book V, Title 1 (Subtitle A) of Executive Order No. 292,
otherwise known as The Revised Administrative Code of 1987, classifies the positions
in the Civil Service as follows:

Section 8. Classes of positions in the Career Service.( 1)
Classes of positions in the career service appointment to which requires
examinations shall be grouped into three major levels as follows:

(a) The first level shall include clerical, trades, crafts and
custodial service positions which involve non-
professional or sub-professional work in a non-
supervisory or supervisory capacity requiring less than
four years of collegiate studies;

(b) The second level shall include professional, technical,
and scientific positions which involve professional,
technical or scientific work in a non-supervisory or
supervisory capacity requiring at least four years of
college work up to Division Chief levels; and

(c) The third level shall cover positions in the Career
Executive Service.

In the Home Insurance case, the Court ruled that the position of Vice-President
of HIGC does not belong to the 3
rd
level of the career service. Respondent Cruz has not
satisfactorily shown that his former position as Vice-President in the HIGC belongs to
the third level in the career service as prescribed by law. His former position as Vice
President is not among those enumerated by law as falling under the third level, nor has
he established that it is one of those identified by the Career Executive Service Board
as of equivalent rank to those listed by law. Neither is it claimed that he was appointed
by the President.

In the Office of the Ombudsman case, the Court wrote:
The CSCs opinion that the Director II positions in the Central
Administrative Service and the Finance and Management Service of the
Office of the Ombudsman are covered by the CES is wrong. Book V, Title
I, Subtitle A, Chapter 2, Section 7 of EO[7][7] 292, otherwise known as
The Administrative Code of 1987, provides:
SECTION 7. Career Service. The Career Service shall be
characterized by (1) entrance based on merit and fitness to be determined
as far as practicable by competitive examination, or based on highly
technical qualifications; (2) opportunity for advancement to higher career
positions; and (3) security of tenure.

The Career Service shall include:

(1) Open Career positions for appointment to which prior
qualification in an appropriate examination is required;

(2) Closed Career positions which are scientific, or highly
technical in nature; these include the faculty and academic staff of state
colleges and universities, and scientific and technical positions in scientific
or research institutions which shall establish and maintain their own merit
systems;

(3) Positions in the Career Executive Service; namely,
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be
identified by the Career Executive Service Board, all of whom are
appointed by the President;

x x x x x x x x x (emphasis supplied)
Thus, the CES covers presidential appointees only. As this Court
ruled in Office of the Ombudsman v. CSC [G.R. No. 159940, 16 February
2005, 451 SCRA 570]:
From the above-quoted provision of the Administrative
Code, persons occupying positions in the CES are presidential
appointees. x x x (emphasis supplied)
Under the Constitution, the Ombudsman is the appointing authority
for all officials and employees of the Office of the Ombudsman, except the
Deputy Ombudsmen. Thus, a person occupying the position of Director II
in the Central Administrative Service or Finance and Management Service
of the Office of the Ombudsman is appointed by the Ombudsman, not by
the President. As such, he is neither embraced in the CES nor does he
need to possess CES eligibility.
To classify the positions of Director II in the Central Administrative
Service and the Finance and Management Service of the Office of the
Ombudsman as covered by the CES and require appointees thereto to
acquire CES or CSE eligibility before acquiring security of tenure will lead
to unconstitutional and unlawful consequences. It will result either in (1)
vesting the appointing power for said position in the President, in violation
of the Constitution or (2) including in the CES a position not held by a
presidential appointee, contrary to the Administrative Code.

The same ruling was cited in the National Transmission Corporation case, where
it was further written:
Positions in the CES under the Administrative Code include those
of Undersecretary, Assistant Secretary, Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and
other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the
President. Simply put, third-level positions in the Civil Service are
only those belonging to the Career Executive Service, or those
appointed by the President of the Philippines. This was the same
ruling handed down by the Court in Office of the Ombudsman v. Civil
Service Commission, wherein the Court declared that the CES covers
presidential appointees only.
x x x x x x x x x
Respondent was appointed Vice-President of VisMin Operations &
Maintenance by Transco President and CEO Alan Ortiz, and not by the
President of the Republic. On this basis alone, respondent cannot be
considered as part of the CES.
Caringal and Erasmo cited by petitioner are not in point. There, the
Court ruled that appointees to CES positions who do not possess the
required CES eligibility do not enjoy security of tenure. More importantly,
far from holding that presidential appointment is not required of a position
to be included in the CES, we learn from Caringal that the appointment by
the President completes the attainment of the CES rank, thus:


Appointment to CES Rank

Upon conferment of a CES eligibility and compliance with the
other requirements prescribed by the Board, an incumbent of a
CES position may qualify for appointment to a CES
rank. Appointment to a CES rank is made by the President upon
the recommendation of the Board. This process completes the
officials membership in the CES and most importantly, confers on
him security of tenure in the CES.

To classify other positions not included in the above
enumeration as covered by the CES and require appointees thereto
to acquire CES or CSE eligibility before acquiring security of tenure
will lead to unconstitutional and unlawful consequences. It will
result either in (1) vesting the appointing power for non- CES
positions in the President, in violation of the Constitution; or (2)
including in the CES a position not held by presidential appointee,
contrary to the Administrative Code.
Interestingly, on 9 April 2008, CSC Acting Chairman Cesar D.
Buenaflor issued Office Memorandum No. 27, s. 2008, which states in
part:
For years, the Commission has promulgated several policies and
issuances identifying positions in the Career Service above Division Chief
Level performing executive and managerial functions as belonging to the
Third Level covered by the Career Executive Service (CES) and those
outside the CES, thus, requiring third level eligibility for purposes of
permanent appointment and security of tenure.

However, the issue as to whether a particular position belongs to
the Third Level has been settled by jurisprudence enshrined in Home
Insurance and Guaranty Corporation v. Civil Service Commission, G.R.
No. 95450 dated March 19, 1993 and Office of the Ombudsman (OMB) v.
Civil Service Commission; G.R. No. 162215 dated July 30, 2007, where
the Honorable Supreme Court ruled citing the provision of Section 7(3)
Chapter 2, Title I-A, Book V of Administrative Code of 1987, that the Third
Level shall cover positions in the Career Executive Service
(CES). Positions in the Career Executive Service consists of
Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau
Director, Regional Director, Assistant Regional Director, Chief of
Department Service and other officers of equivalent rank as may be
identified by the Career Executive Service Board (CESB), all of whom are
appointed by the President. To classify other positions not included in the
above enumeration as covered by the CES and require appointees thereto
to acquire CES or CSE eligibility before acquiring security of tenure will
lead to unconstitutional and unlawful consequences. It will result either: in
(1) vesting the appointing power for non-CES positions in the President, in
violation of the Constitution; or, (2) including in the CES a position not
held by presidential appointee, contrary to the Administrative Code.

x x x

While the above-cited ruling of the Supreme Court refer to
particular positions in the OMB and HIGC, it is clear, however, that the
intention was to make the doctrine enunciated therein applicable to similar
and comparable positions in the bureaucracy. To reiterate, the Third
Level covers only the positions in the CES as enumerated in the
Administrative Code of 1987 and those identified by the CESB as of
equivalent rank, all of whom are appointed by the President of
the Philippines. Consequently, the doctrine enshrined in these Supreme
Court decisions has ipso facto nullified all resolutions, qualification
standards, pronouncements and/or issuances of the Commission insofar
as the requirement of third level eligibility to non-CES positions is
concerned.

In view thereof, OM No. 6, series of 2008 and all other issuances of
the Commission inconsistent with the afore-stated law and jurisprudence
are likewise deemed repealed, superseded and abandoned. x x x
(Emphasis supplied)
Thus, petitioner can no longer invoke Section 1(b) of Memorandum
Circular (MC) No. 21, it being inconsistent with the afore-quoted Office
Memorandum and thus deemed repealed by no less than the CSC itself.

All three cases were also cited in the recent case of Civil Service Commission v.
Court of Appeals and Philippine Charity Sweepstakes Office,
[8]
where a similar ruling
was handed down.

Doubtless, the position of Director Manager II at the PEZA is not among the
enumerated positions in the Career Executive Service, much less, a position that
requires presidential appointment. Even the CSC admits that the position of Director
Manager II does not require presidential appointment.





For said reason, Agyao only needs the approval of the PEZA Director-General to
validate his appointment or re-appointment. As he need not possess a CESO or CSEE
eligibility, the CSC has no valid and legal basis in invalidating his appointment or re-
appointment as Department Manager II.

WHEREFORE, the September 26, 2007 Decision of the Court of Appeals is
hereby REVERSED and SET ASIDE and another one entered holding that the
appointment of Modesto Agyao, Jr. as Department Manager II of PEZA was valid.

SO ORDERED.

G.R. No. 88183 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
RAUL MANGLAPUS, THE BOARD OF FOREIGN SERVICE ADMINISTRATION
(Manuel T. Yan, Jose D. Ingles,* Rosalinda V. Tirona Ernesto Garrido, Felipe
Mabilangan, Jorge Coquia, Edgardo Kalaw, Federico Macaranas, Purificacion
Quisumbing, ** Israel Bocobo, Faustino David, members), and DONATO
FELICIO, respondents.
G.R. No. 88467 October 3, 1990
ALUNAN C. GLANG petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs, respondent.
G.R. No. 88672 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
RAUL S. MANGLAPUS, Secretary of Foreign Affairs; Undersecretary of Foreign
Affairs and Chairman of the Board of Foreign Service Administration MANUEL T.
YAN; FELIPE MABILANGAN, Coordinator of the BFSA; ROSALINDA V. TIRONA,
Director General of the Office of Personnel Administration; ERNESTO GARRIDO,
Director General of Financial Management Services; JORGE COQUIA, Legal
Adviser; all members of BFSA; and CATALINO MACARAIG, JR., Executive
Secretary, respondents.
G.R. No. 88781 October 3, 1990
ISABELO J. ASTRAQUILLO, petitioner,
vs.
FORTUNATO D. OBLENA, respondent.
G.R. No. 88916 October 3, 1990
ALEJANDRO MELCHOR, JR., petitioner,
vs.
JUAN SAEZ, respondent.

NARVASA, J .:
As the caption indicates, this decision deals with five cases. The cases have been
consolidated and jointly considered because they all turn upon a common legal
issue, i.e., the validity of the termination, by authority of the President of the Philippines,
of the petitioners' appointments as "political" or "non-career" members of the country's
Foreign Service. Stated otherwise, the common issue is whether or not their service as
Philippine diplomats was under the circumstances, at the pleasure of the president,
terminable without cause or need of investigation.
G.R. Nos. 88183 and 88781: Isabelo Astraquillo
Astraquillo was appointed by the President of the Philippines on July 22,1986 as
Ambassador Extraordinary and Plenipotentiary and Chief of Mission (II) to the United
Arab Emirates (UAE).
1
After he had occupied the post for two years or so, a
confidential memorandum was filed with the Home Office by Atty. Roy Seneres, the
Philippine Labor Attache to the United Arab Emirates, accusing Astraquillo, his wife and
cousin-in-law of improper interference with his (Seneres') functions.
2
On instructions of
the Board of Foreign Service Administration (BFSA) the matter was investigated by
Ambassador Pacifico Castro from March 28, to 31, 1989.
3
Thereafter, by Memorandum
dated April 11, 1989, the Secretary of Foreign Affairs recommended to the President the
termination of Astraquillo's services as ambassador. The recommendation was
"APPROVED by authority of the President."
4
Astraquillo was then notified (on April 18,
1989) of the termination of his services effective immediately,
5
and (on May 8,1989) of
the designation of Counsellor Donato Felicio as Charges D'Affaires effective May 17,
1989.
6

Astraquillo sought and obtained from the Secretary of Foreign Affairs an extension of
his services up to May 31, 1989.
7
But on the same day that the telex message
extending his services was transmitted, May 12, 1989, Astraquillo filed the petition
for certiorari at bar, challenging his removal from his post and the designation of Felicio
as Charges D'Affaires. This was docketed as G.R. No. 88183. After Ambassador
Fortunato D. Oblena was appointed to replace him as the country's Ambassador
Extraordinary and Plenipotentiary to the UAE, Astraquillo filed with this Court a petition
for quo warrantocontesting the appointment. This second case was docketed as G.R.
No. 88781.
His basic thesis is that the Foreign Affairs Secretary had no power qua department
head, and without prior authorization of the President, to terminate his services, he
being a presidential appointee; and under the Foreign Service Code of 1983, his
removal could be predicated only upon good cause duly established at a hearing of
which he was entitled to notice and an opportunity to defend. Corollarily, designation of
a replacement for him, either in a temporary or permanent capacity, was also nun and
void.
G.R. No. 88467: Alunan C. Glang
Alunan Glang was appointed by President Aquino on September 11, 1986 as
Ambassador Extraordinary and Plenipotentiary and Chief of Mission (Class I) to
Kuwait,
8
and assumed his post on January 11, 1987.
9

Two years afterwards, or on May 27, 1989, he received a telex message from the
Secretary of Foreign Affairs informing him that his services as ambassador and chief of
mission to Kuwait had been terminated and directing him to vacate his post "on or
before June 30, 1989."
10
The message further advised that the termination of his
services was "explicit in a Memorandum dated 18 May 1989" a copy of which would be
furnished him by telefax. The memorandum referred to was one signed by Secretary
Raul Manglapus recommending the "recall and subsequent termination of the services
of Ambassador Alunan C. Glang as Ambassador to the State of Kuwait . . . which was
approved by Executive Secretary Catalino Macaraig, Jr. "BY AUTHORITY OF THE
PRESIDENT."
11

On May 30, 1989 Glang sent communications separately addressed to the Office of the
President and the Secretary of Foreign Affairs stating that he considered his separation
from the service as "illegal and violative of RA No. 704, known as the Foreign Service
Act of 1952," as amended, he being entitled to security of tenure and removable only for
cause and not at the pleasure of the President.
12
The Foreign Secretary's reply (sent by
telex on June 2, 1989) was prompt and simple: the notice of termination of Glang's
services "dated 26 May 1989, stands;" he should "accept the President's decision" and
seek redress "only through the proper courts of law" if he felt he had been "unlawfully
treated."
13

Glang thereupon filed the petition for certiorari and prohibition at bar. For relief, he relies
upon substantially the same arguments as those advanced by Astraquillo, supra.
14

G.R. Nos. 88672 and 88916: Alejandro Melchor, Jr.
Alejandro Melchor, Jr. was also appointed by President Aquino Ambassador
Extraordinary and Plenipotentiary on June 27, 1986.
15
On July 3, 1986, Vice-President
Salvador H. Laurel, then Foreign Affairs Minister, assigned him to Moscow,
U.S.S.R.
16
This post Melchor assumed on September 4, 1986,
17
after which he
received another appointment from the President on October 15, 1986 as Chief of
Mission, Class, 1.
18

On July 25, 1988, seven (7) officers and employees of the Philippine Embassy in
Moscow
19
filed a complaint with the Department of Foreign Affairs against Melchor and
two others
20
for "acts inimical to the Foreign Service, in violation of the Foreign Service
Code (and) blatant disregard of COA rules and regulations and the Civil Service
Code."
21
The complaint was investigated by Ambassador Ernesto Garrido, Director
General for Financial Management Services of the Foreign Affairs Department, by
direction of the Secretary.
22
Garrido's report to the Board of Foreign Service
Administration (BSFA) of the Foreign Affairs Department dealt with ten of the fourteen
(14) charges but failed to resolve four (4) others.
23
Said Board, after deliberating on the
report, directed the filing of a charge sheet against Melchor relative to the four (4)
unresolved accusations as to which the latter had filed no written answer;
24
and
accordingly, the Director General for Personnel and Administrative Services formally
charged Melchor, under date of January 2,1989, with the following offenses, to wit:
25

1) establishment of a private restaurant on the third floor of the Philippine
Embassy Building without prior notice and approval of the Home Office;
2) issuance of visas to persons not qualified to travel to the Philippines;
3) appointment and accreditation of Hernani Jover and Donato de
Guzman as Counsellors contrary to existing laws; and
4) leaving his post without permission from the Home Office from October
to December 1987 and January 22-26, 1988.
By letter dated January 10, 1989, Melchor told the Foreign Affairs Secretary there was
"no basis for me to reply under oath" (to the charges as required) as "said complaint has
not been subscribed and sworn to according to the provisions of P.D. 807," drawing
attention, however, to his reply "to the complaint on 22 September 1988 Dispatch No.
AM-193-88, Subject: Comments to complaint."
26
He also wrote to President Aquino on
the same date regarding the "unfounded charges" against him and requesting that the
matter be resolved before his return to his post.
27
He wrote another letter to President
Aquino, dated January 19, 1989, this time under oath, inter alia submitting his answers
to the four unresolved charges against him since, according to him, "it is only the
President that can decide my case."
28
Melchor's letter was referred to the
Secretary
29
who, acting thereon, issued Memorandum No. 4230 declaring his approval
of the BFSA recommendation that Melchor: (a) be allowed to forthwith return to his
Moscow post to prepare for the President's state visit, (b) be thereafter transferred to
another post, and (c) be reprimanded on account of the four charges against him.
30

The affair was, however, far from ended. On February 10, 1989, Melchor advised the
Secretary in writing that he would indeed return to Moscow but protested the reprimand
administered to him and his announced transfer to another post after the state visit,
claiming that as a "presidential appointee," he was beyond the disciplinary authority of
the BFSA and that, furthermore, he had been denied due process.
31
On the same day
he directed an "APPEAL" to the President praying that she "nullify, after review by an
impartial body . . . the illegal action of Sec. Manglapus and the Board and return . . .
(him to his) post in Moscow without the stigma of a reprimand . . . ."
32

It appears that the BFSA re-examined the evidence against Melchor and came to the
conclusion that all charges against him should be dropped as there was "no basis"
therefor and consequently, his appeal had been rendered moot and academic.
33
This
was communicated to the Foreign Affairs Secretary on June 9, 1989 and thence to the
Office of the President, with the observation that Melchor's appeal had indeed become
moot and academic. On the basis thereof, Executive Secretary Macaraig "terminated"
the administrative case against Melchor, by Order dated June 9, 1989.
34

It appears, however, that about a week earlier, or on May 29, 1989, the Secretary of
Foreign Affairs had submitted a Memorandum to the President recommending the
termination of the services of Melchor described as "a political (non-career)
Ambassador" as Chief of Mission and as Ambassador" to the U.S.S.R, and that he
"should vacate his post by 30 June 1989."
35
This was "APPROVED by authority of the
President" on June 13, 1989 by Executive Secretary Macaraig.
36

On June 28, 1989 Melchor presented the petition at bar, grounded mainly on the
proposition that the termination of his services by Foreign Affairs Secretary Manglapus
after he had been absolved of the charges against him, was unwarranted and illegal,
and that the authority to so terminate his services was "vested exclusively on the
President herself . . . ."
Subsequently, Melchor filed a second petition, docketed as G.R. No. 88916, seeking
invalidation of the re-assignment or transfer of Ambassador Juan V. Saez from Amman,
Jordan to the Philippine Embassy at Moscow.
37

Against this factual background, the petitioners submit the following common
contentions:
38

1) that the removals from the service were not made by the President
personally and directly;
2) that the removals did not state a cause explicitly prescribed by the
Foreign Service Act or the Civil Service Law;
3) that the removals were affected without due process;
4) the petitioners were appointed right after the so-called "EDSA
Revolution," and when Vice-President Laurel was Minister of Foreign
Affairs; and
5) all were appointed Chief of Mission Class I (except Astraquillo, who was
named Class II Chief) and came into Foreign Service "through lateral
entry."
The Civil Service Law, Presidential Decree No. 807, classifies employment in
Government into "career" and "non-career service." It identifies the peculiar
characteristics of each category, and enumerates the positions falling under each class.
Thus, Section 5 of said PD No. 807 states that the "career service" is characterized by:
(1) entrance based on merit and fitness, to be determined as far as
practicable by competitive examinations, or based on highly technical
qualifications;
(2) opportunity for advancement to higher career positions; and
(3) security of tenure.
Section 5 then enumerates the particular positions falling under the Career Service,
including, as will be noted, those in the Foreign Service. They are the following:
39

(1) Open Career positions for appointment to which prior qualifications in
an appropriate examination is required;
(2) Closed Career positions which are scientific or highly technical in
nature; these includes the faculty and academic staff of state colleges and
universities and scientific and technical positions in scientific or research
institutions which shall establish and maintain their own merit systems;
(3) Positions in the Career Executive Service, namely: Undersecretary,
Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional
Director, Assistant Regional Director, Chief of Department Service and
other officers of equivalent rank as may be identified by the Career
Executive Service Board, all of whom are appointed by the President;
(4) Career officers, other than those in the Career Executive Service, who
are appointed by the President, such as the Foreign Service Officers in
the Ministry of Foreign Affairs;
(5) Commissioned officers and enlisted men of the Armed Forces which
shall maintain a separate merit system;
(6) Personnel of government-owned or controlled corporations, whether
performing governmental or proprietary functions, who do not fall under
the non-career service; and
(7) [(7)] Permanent laborers, whether skilled, semi-skilled, or unskilled.
(8) The "Non-Career Service," on the other hand, according to Section 6 of the same
PD 807, shall be characterized by:
40

(1) entrance on bases other than those of the usual test of merit and
fitness utilized for the career service; and
(2) tenure which is limited to a period specified by law, or which is
coterminous with that of the appointing authority or subject to his
pleasures, or which is limited to the duration of a particular project for
which purposes employment was made.
And the officials and employees listed under the Non-Career Service include:
(1) Elective officials and their personal or confidential staff;
(2) Department Heads and other officials of Cabinet rank who hold
positions at the pleasure of the President and their personal or confidential
staff(s);
(3) Chairman and members of commissions and boards with fixed terms
of office and their personal or confidential staff;
(4) Contractual personnel or those whose employment in the government
is in accordance with a special contract to undertake a specific work or
job, requiring special or technical skills not available in the employing
agency, to be accomplished within a specific period, which in no case
shall exceed one year, and performs or accomplishes the specific work or
job, under his own responsibility with a minimum of directions and
supervision from the hiring agency; and
(5) Emergency and seasonal personnel.
By these statutory standards, it seems plain that all three (3) petitioners: Isabelo J.
Astraquillo, Alunan C. Glang, and Alejandro Melchor, Jr., pertained to the Non-Career
Service. Their appointments to the Foreign Service were made on "bases other than
those of the usual test of merit and fitness utilized for the career service;" their entrance
was not 'based on merit and fitness . . . determined . . . by competitive examinations, or
based on highly technical qualifications." This being so, their "tenure . . . (was)
coterminous with that of the appointing authority or subject to his pleasures, . . . ."
It is worthy of note that among the officers categorized in the Career Service by the Civil
Service Law, PD No. 807, are "Career officers, other than those in the Career Executive
Service, who are appointed by the President, such as the Foreign Service Officers in
the Ministry of Foreign Affairs." Implicit in this reference to "career officers" in the
Ministry (now Department) of Foreign Affairs is the acknowledgement of non-career
officers in that ministry (department).
The same distinction between career and non-career officers may be derived by
implication from the provisions of the Foreign Service Act of 1952, R.A. No. 708, as
amended.
Part B, Title III of said Foreign Service Act deals with the "Career Service Corps . . .
composed of Foreign Service Officers appointed by the President upon the
recommendation of the Secretary," and declares that "(n)o person shall be eligible for
appointment (in such corps) unless he has passed such competitive examinations as
the Board of Foreign Service examination may prescribe to determine his fitness and
aptitude for the work of the service and has demonstrated his loyalty to the Government
of the Republic of the Philippines and his attachment to the principles of the
Constitution."
41
Those who thus qualify are "certified by the Secretary of Foreign Affairs
as eligible for appointment as Foreign Service Officer(s)," and it is exclusively from
these officers so certified that the President "shall appoint Foreign Service Officers . . .
."
42

Now, there are those, like the petitioners, who are appointed to the Foreign Service,
without having qualified in the manner just indicated and consequently without having
been certified by the Foreign Affairs Secretary as eligible for appointment as Foreign
Service Officers.
43
In view of the provisions of law just cited, they certainly do not and
cannot be deemed embraced in the Career Service Corps. They can only be regarded
then as "non-career officers" or "political appointees" who, as already pointed out, have
a "tenure . . . coterminous with that of the appointing authority or subject to his
pleasures, . . . ."
Melchor discusses at length what he feels to be the distinction between an ambassador
and a chief of mission, and argues that whatever might be said about his serving at the
pleasure of the President as ambassador, his appointment as chief of mission had
undoubtedly given him security of tenure as regards this latter position. He opines that
the term, "chief of mission," has two meanings in the Foreign Service Act.
He states that Section 3(i), Title I of the Act defines the term as "a principal officer
appointed by the President of the Philippines, with the consent of the Commission on
Appointments, to be in charge of the embassy and legation and other diplomatic
mission of the Philippines or any other person assigned under the terms of this act to be
minister resident, charge d'affaires, commissioner or diplomatic agent."
44
On the other
hand, he says that in other parts of the law ("Title II, Part B, Section I, Part C, Section 1 ,
and Title I, Part B, Section 1") "the use of the term Chief of Mission is in a different
context for it refers to the rank and class of the Foreign Service Officer in the
enumeration of categories of officers and employees of the foreign service as well as
the salary scale.
45

The discussion fails to demonstrate that, with regard to the petitioners, a chief of
mission is indeed significantly different from an ambassador. Petitioners Astraquillo,
Glang and Melchor were appointed as ambassadors, respectively, in the United Arab
Emirates (UAE), Kuwait, and Moscow. Their appointments as chief of missions in their
respective posts simply meant that, as ambassadors extraordinary and plenipotentiary
they were being placed in charge of the embassy or legation therein. Indeed, it seems
evident that even without being named chief of mission, the fact that they were the
highest ranking official in their respective embassies would operate to place them in
charge thereof as a matter of course.
Obviously, however, this aspect of their appointments has no effect on the essential
character of their positions as pertaining to the non-career service. Consequently the
termination of their connection with the Foreign Service was not dependent on proof of
some legally recognized cause therefor, after due notice and hearing as in the case
of career officers and employees but lay entirely within the will of the President, in the
exercise of her discretion, and her determination of the wisdom, necessity or
convenience of such a step in the national interest, actually a political decision. In
making this determination, the President may take account of the recommendation of
the Secretary of Foreign Affairs who, as the President's alter ego, heads and controls
the Department of Foreign Affairs and supervises and directs all officials and employees
assigned abroad.
46

The petitioners' other argument that their separation from the service is illegal because
not effected by the President of the Philippines who alone has the power to do so, is
specious. The fact is that it was in truth the President who ordered their removal. The
record shows that the President approved the recommendation of the Secretary of
Foreign Affairs for the termination of their services. This is shown by the pertinent
documents in which the Executive Secretary officially certified that the recommendation
for their separation from the service had been "APPROVED by Authority of the
President."
Finally, since none of the petitioners has shown any right to be returned to the office
from which they had been separated by authority of the President, none of them is
entitled to the writ of quo warranto to oust the officials who have since replaced them in
their respective posts.
WHEREFORE, the petitions in the cases embraced in this opinion, i.e., G.R. Nos.
88183, 88781, 88467, 88672, 888916, are all DENIED, with costs against petitioners.
Melencio-Herrera, Gutierrez, Jr., Cruz, Feliciano, Gancayco, Padilla, Bidin, Sarmiento,
Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

LUIS MALALUAN, petitioner, vs. COMMISSION ON ELECTIONS and JOSEPH
EVANGELISTA, respondents.
D E C I S I O N
HERMOSISIMA, JR., J .:
Novel is the situation created by the decision of the Commission on Elections which
declared the winner in an election contest and awarded damages, consisting of
attorneys fees, actual expenses for xerox copies, unearned salary and other
emoluments for the period, from March, 1994 to April, 1995, en masse denominated as
actual damages, notwithstanding the fact that the electoral controversy had become
moot and academic on account of the expiration of the term of office of the Municipal
Mayor of Kidapawan, North Cotabato.
Before us is a petition for certiorari and prohibition, with a prayer for the issuance of
a temporary restraining order and writ of preliminary injunction, seeking the review of
the decision en banc
[1]
of the Commission on Elections (COMELEC) denying the motion
for reconsideration of the decision
[2]
of its First Division,
[3]
which reversed the
decision
[4]
of the Regional Trial Court
[5]
in the election case
[6]
involving the herein
parties. While the Regional Trial Court had found petitioner Luis Malaluan to be the
winner of the elections for the position of Municipal Mayor of Kidapawan, North
Cotabato, the COMELEC, on the contrary, found private respondent Joseph
Evangelista to be the rightful winner in said elections.
Petitioner Luis Malaluan and private respondent Joseph Evangelista were both
mayoralty candidates in the Municipality of Kidapawan, North Cotabato, in the
Synchronized National and Local Elections held on May 11, 1992. Private respondent
Joseph Evangelista was proclaimed by the Municipal Board of Canvassers as the duly
elected Mayor for having garnered 10,498 votes as against petitioners 9,792
votes. Evangelista was, thus, said to have a winning margin of 706 votes. But, on May
22, 1992, petitioner filed an election protest with the Regional Trial Court contesting 64
out of the total 181 precincts of the said municipality. The trial court declared petitioner
as the duly elected municipal mayor of Kidapawan, North Cotabato with a plurality of
154 votes. Acting without precedent, the court found private respondent liable not only
for Malaluans protest expenses but also for moral and exemplary damages and
attorneys fees. On February 3, 1994, private respondent appealed the trial court
decision to the COMELEC.
Just a day thereafter that is, on February 4, 1994, petitioner filed a motion for
execution pending appeal. The motion was granted by the trial court, in an order,
datedMarch 8, 1994, after petitioner posted a bond in the amount of P500,000.00. By
virtue of said order, petitioner assumed the office of MunicipaJ Mayor of
Kidapawan, North Cotabato, and exercised the powers and functions of said office.
Such exercise was not for long, though. In the herein assailed decision adverse to
Malaluans continued governance of the Municipality of Kidapawan, North Cotabato, the
First Division of the Commission on Elections (COMELEC) ordered Malaluan to vacate
the office, said division having found and so declared private respondent to be the duly
elected Municipal Mayor of said municipality. The COMELEC en banc affirmed said
decision.
Malaluan filed this petition before us on May 31, 1995 as a consequence.
It is significant to note that the term of office of the local officials elected in the May,
1992 elections expired on June 30, 1995. This petition, thus, has become moot and
academic insofar as it concerns petitioners right to the mayoralty seat in his
municipality
[7]
because expiration of the term of office contested in the election protest
has the effect of rendering the same moot and academic.
[8]

When the appeal from a decision in an election case has already become moot, the
case being an election protest involving the office of mayor the term of which had
expired, the appeal is dismissible on that ground, unless the rendering of a decision on
the merits would be of practical value.
[9]
This rule we established in the case of
Yorac vs. Magalona
[10]
which we dismissed because it had been mooted by the
expiration of the term of office of the Municipal Mayor of Saravia, Negros
Occidental. This was the object of contention between the parties therein. The recent
case of Atienza vs. Commission on Elections,
[11]
however, squarely presented the
situation that is the exception to that rule.
Comparing the scenarios in those two cases, we-explained:
Second, petitioners citation of Yorac vs. Magalona as authority for his main proposition
is grossly inappropriate and misses the point in issue. The sole question in that case
centered on an election protest involving the mayoralty post in Saravia, Negros
Occidental in the general elections of 1955, which was rendered moot and academic by
the expiration of the term of office in December, 1959 It did not involve a monetary
award for damages and other expenses incurred as a result of the election protest. In
response to the petitioners contention that the issues presented before the court were
novel and important and that the appeal should not be dismissed, the Court held - citing
the same provision of the Rules of Court upon which petitioner staunchly places
reliance - that a decision on the merits in the case would have no practical value at all,
and forthwith dismissed the case for being moot. That is not the case here. In
contradistinction to Yorac, a decision on the merits in the case at bench would clearly
have the practical value of either sustaining the monetary award for damages or
relieving the private respondent from having to pay the amount thus awarded.
[12]

Indeed, this petition appears now to be moot and academic because the herein
parties are contesting an elective post to which their right to the office no longer
exists. However, the question as to damages remains ripe for adjudication. The
COMELEC found petitioner liable for attorneys fees, actual expenses for xerox copies,
and unearned salary and other emoluments from March, 1994 to April, 1995, en
mUsse denominated as actual damages, default in payment by petitioner of which shall
result in the collection of said amount from the bond posted by petitioner on the
occasion of the grant of his motion for execution pending appeal in the trial
court. Petitioner naturally contests the propriety and legality of this award upon private
respondent on the ground that said damages have not been alleged and proved during
trial.
What looms large as the issue in this case is whether or not the COMELEC gravely
abused its discretion in awarding the aforecited damages in favor of private respondent.
The Omnibus Election Code provides that actual or compensatory damages may
be granted in all election contests or in quo warranto proceedings in accordance with
law.
[13]
COMELEC Rules of Procedure provide that in all election contests the Court
may adjudicate damages and attorneys fees as it may deem just and as established by
the evidence if the aggrieved party has included such claims in his pleadings.
[14]
This
appears to require only that the judicial award of damages be just and that the same be
borne out by the pleadings and evidence. The overriding requirement for a valid and
proper award of damages, it must be remembered, is that the same is in accordance
with law, specifically, the provisions of the Civil Code pertinent to damages.
Article 2199 of the Civil Code mandates that except as provided by law or by
stipulation, one is entitled to an adequate compensation only for such pecuniary loss
suffered by him as he has duly proved. Such compensation is referred to as actual or
compensatory damages. The Civil Cod.e further prescribes the proper setting for
allowance of actual or compensatory damages in the following provisions:
ART. 2201. In contracts and quasi-contracts, the damages for which the obligor who
acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the obligation, and which the parties have foreseen or
could have reasonably foreseen at the time the obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for
all damages which may be reasonably attributed to the non-performance of the
obligation.
ART. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages
which are the natural and probable consequences of the act or omission complained of.
It is not necessary that such damages have been foreseen or could have reasonably
been foreseen by the defendant.
Considering that actual or compensatory damages are appropriate only in breaches
of obligations in cases of contracts and quasi-contracts and on the - occasion of crimes
and quasi-delicts where the defendant may be held liable for all damages the proximate
cause of which is the act or omission complained of, the monetary claim of a party in an
election case must necessarily be hinged on either a contract or a quasi-contract or a
tortious act or omission or a crime, in order to effectively recover actual or
compensatory damages.
[15]
In the absence of any or all of these, the claimant must be
able to point out a specific provision of law authorizing a money claim for election
protest expenses against the losing party.
[16]
For instance, the claimant may cite any of
the following provisions of the Civil Code under the chapter on human relations, which
provisions create obligations not by contract, crime or negligence, but directly by law:
ART. 19. Every person must in the exercise of his rights and in the performance of his
duties, act with justice, give everyone his due, and observe honesty and good faith.
ART. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
xxx xxx xxx
ART. 32. Any public officer or employee, or any private individual, who directly or
indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the
following rights and liberties of another person shall be liable to the latter for damages:
xxx xxx xxx
(5) Freedom of suffrage;
xxx xxx xxx
In any of the cases referred to in this article, whether or not the defendants act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for other relief. x x x
[17]

Claimed as part of the damages to which private respondent is allegedly entitled to,
is P169,456.00 constituting salary and other emoluments from March, 1994 to April,
1995 that would have accrued to him had there not been an execution of the trial courts
decision pending appeal therefrom in the COMELEC.
The long-standing rule in this jurisdiction is that notwithstanding his subsequent
ouster as a result of an election protest, an elective official who has been proclaimed by
the COMELEC as winner in an electoral contest and who assumed office and entered
into the performance of the duties of that office, is entitled to the compensation,
emoluments and allowances legally provided for the position.
[18]
We ratiocinated in the
case of Rodriguez vs. Tan that:
This is as it should be. This is in keeping with the ordinary course of events. This is
simple justice. The emolument must go to the person who rendered the service unless
the contrary is provided. There is no averment in the complaint that he is linked with
any irregularity vitiating his election. This is the policy and the rule that has been
followed consistently in this jurisdiction in connection with positions held by persons who
had been elected thereto but were later ousted as a result of an election protest. The
right of the persons elected to compensation during their incumbency has always been
recognized. We cannot recall of any precedent wherein the contrary rule has been
upheld.
[19]

In his concurring opinion in the same case, however, Justice Padilla equally stressed
that, while the general rule is that the ousted elective official is not obliged to reimburse
the emoluments of office that he had received before his ouster, he would be liable for
damages in case he would be found responsible for any unlawful or tortious acts in
relation to his proclamation. We quote the pertinent portion of that opinion for
emphasis:
Nevertheless, if the defendant, directly or indirectly, had committed unlawful or tortious
acts which led to and resulted in his proclamation as senator-elect, when in truth and in
fact he was not so elected, he would be answerable for damages. In that event the
salary, fees and emoluments received by or paid to him during his illegal incumbency
would be a proper item of recoverable damage.
[20]

The criterion for ajustifiable award of election protest expenses and salaries and
emoluments, thus, remains to be the existence of a pertinent breach of obligations
arising from contracts or quasi-contracts, tortious acts, crimes or a specific legal
provision authorizing the money claim in the context of election cases. Absent any of
these, we could not even begin to contemplate liability for damages in election cases,
except insofar as attorneys fees are concerned, since the Civil Code enumerates the
specific instances when the same may be awarded by the court.
ART. 2208. In the absence of stipulation, attorneys fees and expenses of litigation,
other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendants act or omission has compelled the plaintiff to litigate with third
persons or to incur expenses to protect his interest;
(3) In criminal cases of malicious prosecution against the plaintiff;
(4) In case of a clearly unfounded civil action or proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident bad faith in refusing to satisfy the
plaintiffs plainly valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household helpers, laborers and skilled
workers;
(8) In actions for indemnity under workmens compensation and employers liability
laws;
(9) In a separate civil action to recover civil liability arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just and equitable that attorneys fees
and expenses of litigation should be recovered.
[21]

Given the aforecited laws, and jurisprudence on the matter at issue, let us now look
into the basis of respondent COMELEC for awarding actual damages to private
respondent in the form of reimbursement for attorneys fees, actual expenses for xerox
copies, and salary and other emoluments that should have accrued to him from March,
1994 to April, 1995 had the RTC not issued an order for execution pending appeal.
The First Division of the COMELEC ruled on private respondents claim for actual or
compensatory damages in this wise:
x x x under the present legal setting, it is more difficult than in the past to secure an
award of actual or compensatory damages either against the protestant or the protestee
because of the requirements of the law.
In the instant case, however, We are disposed to conclude that the election protest
filed by the protestant is clearly unfounded. As borne out by the results of the
appreciation of ballots conducted by this Commission, apparently the protest was filed
in bad faith without sufficient cause or has been filed for the sole purpose of molesting
the protestee-appellant for which he incurred expenses. The erroneous ruling of the
Court which invalidated ballots which were clearly valid added more injury to the
protestee-appellant. This would have been bearable since he was able to perfect his
appeal to this Commission. The final blow, however, came when the Court ordered the
execution of judgment pending appeal which, from all indications, did not comply with
the requirements of Section 2, Rule 39 of the Rules of Court. There was no good and
special reason at all to justify the execution ofjudgment pending appeal because the
protestees winning margin was 149 votes while that of the protestant - after the Court
declared him a winner - was only a margin of 154 votes. Clearly, the order of execution
of judgment pending appeal was issued with grave abuse of discretion.
For these reasons, protestee-appellant seeks to recover the following:
1. Actual damages representing attorneys fees for the new counsel who handled the
Appeal and the Petition for Certiorari before the Court of Appeals x x x -P3 72, 5 00.00
2. Actual expenses for xerox copying of Appellants Brief and the annexes (14 copies at
P 1.50 x x x -P11,235.00
3. Actual expenses for xerox copying of ballots x x x - P3,919.20
4. Actual damages for loss of salary and other emoluments since March 1994 as per
attached Certification issued by the Municipal Account of Kidapawan x x x - P96,832.00
(up to October 1994 only)
Under Article 2208 of the New Civil Code attorneys fees and expenses of litigation
can be recovered (as actual damages) in the case of clearly unfounded civil action or
proceeding. And, while the case of Eulogio Rodriguez, Sr. vs. Carlos Tan (91 Phil. 724)
disallowed recovery of salaries and allowances (as damages) from elected officials who
were later ousted, under the theory that persons elected has (sic) a right to
compensation during their incumbency, the instant case is different. The protestee-
appellant was the one elected. He was ousted not by final judgment but by an order of
execution pending appeal which was groundless and issued with grave abuse of
discretion. Protestant-appellee occupied the position in an illegal manner as a usurper
and, not having been elected to the office, but merely installed through a baseless court
order, he certainly had no right to the salaries and emoluments of the office.
Actual damages in the form of reimbursement for attorneys fees (P3 72,500.00),
actual expenses for xerox copies (P15,154.00), unearned salary and other emoluments
from March 1994 to April 1995 or 14 months at P12,104.00 a month (P169,456.00),
totalled P557,110.00. To (sic) this amount, however, P3 00,000.00 representing that
portion of attorneys fees denominated as success fee must be deducted this being
premised on a contingent event the happening of which was uncertain from the
beginning. Moral damages and exemplary damages claimed are, of course, disallowed
not falling within the purview of Section 259 of the Omnibus Election Code.
It goes without saying that if the protestant-appellee fails to pay the actual damages
of P257,110.00, the amount will be assessed, levied and collected from the bond of
P500,000.00 which he put up before the Court as a condition for the issuance of the
order of execution of judgment pending appeal.
[22]

Petitioner filed a motion for reconsideration of the aforecited decision on March
29, 1995. The COMELEC en banc, however, did not find any new matter substantial in
nature, persuasive in character or sufficiently provocative to compel reconsideration of
said decision and accordingly affirmed in toto the said decision. Hence, this petition
raises, among others, the issue now solely remaining and in need of final adjudication in
view of the mootness of the other issues anent petitioners right to the contested office
the term for which has already expired.
We have painstakingly gone over the records of this case and we can attribute to
petitioner no breach of contract or quasi-contract; or tortious act nor crime that may
make him liable for actual damages. Neither has private respondent been able to point
out to a specific provision of law authorizing a money claim for election protest
expenses against the losing party.
[23]

We find respondent COMELECs reasoning in awarding the damages in question to
be fatally flawed. The COMELEC found the election protest filed by the petitioner to be
clearly unfounded because its own appreciation of the contested ballots yielded results
contrary to those of the trial court. Assuming, ex gratia argumentis, that this is a
reasonable observation not without basis, it is nonetheless fallacious to conclude a
malicious intention on the part of petitioner to molest private respondent on the basis of
what respondent COMELEC perceived as an erroneous ruling of the trial court. In other
words, the actuations of the trial court, after the filing of a case before it, are its own,
and any alleged error on its part does not, in the absence of clear proof, make the suit
clearly unfounded for which the complainant ought to be penalized. Insofar as the
award of protest expenses and attorneys fees are concerned, therefore we find them to
have been awarded by respondent COMELEC without basis, the election protest not
having been a clearly unfounded one under the aforementioned circumstances.
Respondent COMELEC also found the order granting execution of judgment
pending appeal to be defective because of alleged non-compliance with the requirement
that there be a good and special reason
[24]
to justify execution pending appeal. We,
however, find that the trial court acted judiciously in the exercise of its prerogatives
under the law in issuing the order granting execution pending appeal. First, it should be
noted that the applicability of the provisions of the Rules of Court, relating to execution
pending appeal, has ceased to be debatable after we definitively ruled in Garcia vs. de
Jesus
[25]
that Section 2, Rule 39 of the Rules of Court, which allows Regional Trial
Courts to order executions pending appeal upon good reasons stated in a special order,
may be made to apply by analogy or suppletorily to election contests decided by
them.
[26]
It is not disputed that petitioner filed a bond in the amount of P500,000.00 as
required under the Rules of Court.
It is also now a settled rule that as much recognition should be given to the value of
the decision of a judicial body as a basis for the right to assume office as that given by
law to the proclamation made by the Board of Canvassers.
[27]

x x x Why should the proclamation by the board of canvassers suffice as basis of the
right to assume office, subject to future contingencies attendant to a protest, and not the
decision of a court of justice? Indeed x x x the board of canvassers is composed of
persons who are less technically prepared to make an accurate appreciation of the
ballots, apart from their being more apt to yield extraneous considerations x x x the
board must act summarily, practically raising (sic) against time, while, on the other
hand, the judge has the benefit of all the evidence the parties can offer and of
admittedly better technical preparation and background, apart from his being allowed
ample time for conscientious study and mature deliberation before rendering judgment x
x x.
[28]

Without evaluating the merits of the trial courts actual appreciation of the ballots
contested in the election protest, we note on the face of its decision that the trial court
relied on the findings of the National Bureau of Investigation (NBI) handwriting experts
which findings private respondent did not even bother to rebut. We thus see no reason
to disregard the presumption of regularity in the performance of official duty on the part
of the trial court judge. Capping this combination of circumstances which impel the
grant of immediate execution is the undeniable urgency involved in the political situation
in the Municipality of Kidapawan, North Cotabato. The appeal before the COMELEC
would undoubtedly cause the political vacuum in said municipality to persist, and so the
trial court reasonably perceived execution pending appeal to be warranted and
justified. Anyway, the bond posted by petitioner could cover any damages suffered by
any aggrieved party. It is true that mere posting of a bond is not enough reason to
justify execution pending appeal, but the nexus of circumstances aforechronicled
considered together and in relation to one another, is the dominant consideration for the
execution pending appeal.
[29]

Finally, we deem the award of salaries and other emoluments to be improper and
lacking legal sanction. Respondent COMELEC ruled that inapplicable in the instant
case is the ruling in Rodriguez vs. Tan
[30]
because while in that case the official ousted
was the one proclaimed by the COMELEC, in the instant case, petitioner was
proclaimed winner only by the trial court and assumed office by virtue of an order
granting execution pending appeal. Again, respondent COMELEC sweepingly
concluded, in justifying the award of damages, that since petitioner was adjudged the
winner in the elections only by the trial court and assumed the functions of the office on
the strength merely of an order granting execution pending appeal, the petitioner
occupied the position in an illegal manner as a usurper.
We hold that petitioner was not a usurper because, while a usurper is one who
undertakes to act officially without any color of right,
[31]
the petitioner exercised the
duties of an elective office under color of election thereto.
[32]
It matters not that it was the
trial court and not the COMELEC that declared petitioner as the winner, because both,
at different stages of the electoral process, have the power to so proclaim winners in
electoral contests. At the risk of sounding repetitive, if only to emphasize this point, we
must reiterate that the decision of a judicial body is no less a basis than the
proclamation made by the COMELEC-convened Board of Canvassers for a winning
candidates right to assume office, for both are undisputedly legally sanctioned. We
deem petitioner, therefore, to be a de facto officer who, in good faith, has haa
possession of the office and had discharged the duties pertaining thereto
[33]
and is thus
legally entitled to the emoluments of the office.
[34]

To recapitulate, Section 259 of the Omnibus Election Code only provides for the
granting in election cases of actual and compensatory damages in accordance with
law. The victorious party in an election case cannot be indemnified for expenses which
he has incurred in an electoral contest in the absence of a wrongful act or omission or
breach of obligation clearly attributable to the losing party. Evidently, if any damage had
been suffered by private respondent due to the execution ofjudgment pending appeal,
that damage may be said to be equivalent to damnum absque injuria, which is, damage
without injury, or damage or injury inflicted without injustice, or loss or damage without
violation of a legal right, or a wrong done to a man for which the law provides no
remedy.
[35]

WHEREFORE, the petition for certiorari is GRANTED. While we uphold the
COMELEC decision dated May 5, 1995 that private respondent Joseph Evangalista is
the winner in the election for mayor of the Municipality of Kidapawan, North Cotabato,
that portion of the decision is deemed moot and academic because the term of office for
mayor has long expired. That portion of the decision awarding actual damages to
private respondent Joseph Evangelista is hereby declared null and void for having been
issued in grave abuse of discretion and in excess of jurisdiction.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug,
Kapunan, Mendoza, Francisco, and Panganiban, JJ., concur.

[G.R. No. 129616. April 17, 2002]
THE GENERAL MANAGER, PHILIPPINE PORTS AUTHORITY (PPA) and RAMON
ANINO, petitioners, vs. JULIETA MONSERATE, respondent.
D E C I S I O N
SANDOVAL-GUTIERREZ, J .:
This petition for review on certiorari
[1]
seeks to set aside the Decision dated June
20, 1997 of the Court of Appeals in CA-G.R. No. 39670,
[2]
declaring null and void the
Resolution No. 952043 dated March 21, 1995 and Resolution No. 956640 dated
October 24, 1995 of the Civil Service Commission (CSC), and ordering the
reinstatement of Julieta G. Monserate as Division Manager II of the Resources
Management Division, Ports Management Office, Philippine Ports Authority (PPA), Iloilo
City.
The facts are:
Julieta Monserate, respondent, started her government service in 1977 as
Bookkeeper II in the Port Management Office, PPA, Iloilo City. Barely a year later, she
was promoted to the position of Cashier II and then as Finance Officer (SG-16) in
1980.
[3]

In the early part of 1988, when the PPA underwent a reorganization, respondent
applied for the permanent position of Manager II (SG-19) of the Resource Management
Division, same office. The Comparative Data Sheet
[4]
accomplished by the PPA
Reorganization Task Force shows the ranking of the six (6) aspirants to the said
position, thus:
COMPARATIVE DATA SHEET
OFFICE: PMO ILOILO
DIVISION: RES. MANAGEMENT
DIVISION
POSITION: DIVISION MANAGER
REQUIRED CS ELIG.: CS PROF / RA 1080
CANDIDATES ELIGIBILITY xxx TOTAL
1. MONSERATE, JULIETA CS Prof. xxx 79.5
2. ANINO,
RAMON 1
st
grade xxx 70
3. TEODOSIO, APRIL PD 907
(CPA) xxx 67
4. MORTOLA, DARIO CS
Prof. xxx 67
5. ESPINOSA,
AMALIK Bar xxx 63.5
6. PERFECTO, BASCOS RA
1080 xxx 59.5
On February 1, 1988, Maximo Dumlao, Jr., then General Manager of the PPA,
appointed
[5]
respondent to the position of Manager II (Resource Management
Division). On even date, respondent assumed office and discharged the functions
thereof. On July 8, 1988, the CSC, through Guillermo R. Silva (Assistant Director of
the Civil Service Field Office-PPA) approved her appointment.
Meanwhile, on April 18, 1988, petitioner Ramon Anino, who ranked second to
respondent per the Comparative Data Sheet earlier quoted, filed an appeal/petition with
the PPA Appeals Board, protesting against respondents appointment. The PPA
Appeals Board, in a Resolution
[6]
dated August 11, 1988, sustained the protest and
rendered ineffective respondents appointment based on (1) CSC MC No. 5, s. 1988,
Par. 3;
[7]
(2) CSC MC NO. 10, s. 1986, Par. A, 1.2 and Par. B;
[8]
and (3) Civil Service
Eligibility. These grounds were not explained or discussed in the Resolution, the
dispositive portion of which reads:
WHEREFORE, premises considered, this Board upholds the appointment of Ramon A.
Anino as Resources Management Division Manager of the Port Management Office of
Iloilo.
On October 24, 1988, respondent was furnished a copy of PPA Special Order No.
479-88
[9]
(entitled Creation of the PPA Managers Pool), dated September 28, 1988,
issued by the new PPA General Manager, Mr. Rogelio A. Dayan. That Special Order
excluded the name of respondent from the pool-list and placed instead the name of
petitioner as Manager II, Resource Management Division. In effect, the Special Order
implemented the August 11, 1988 Resolution of the PPA Appeals Board.
Aggrieved, respondent filed with the PPA General Manager an appeal/request for
clarification dated November 2, 1988.
[10]
She questioned her replacement under PPA
Special Order No. 479-88, claiming that the proceedings before the PPA Appeals Board
were irregular because (1) she was not notified of the hearing before it; (2) she was
not furnished a copy of the August 11, 1988 PPA Appeals Board Resolution or a copy of
the protest filed by petitioner Anino;
[11]
(3) she was not informed of the reasons behind
her replacement; and (4) their Port Manager (in Iloilo City), who was then an official
member of the Board, was not included in the said proceedings.
On November 8, 1988, pending resolution of her appeal/request for clarification,
respondent received a copy of PPA Special Order No. 492-88
[12]
dated October 21,
1988, also issued by General Manager Dayan. This PPA Order officially reassigned her
to the position of Administrative Officer (SG-15) which was petitioner Anino's former
position and was lower than her previous position as Finance Officer (SG 16) before
she was appointed as Division Manager.
Apparently at a loss with the turn of events, coupled by the inaction of PPA General
Manager Dayan on her earlier appeal/request for clarification, respondent filed on
November 25, 1988 a precautionary appeal
[13]
with the CSC. She manifested that as
of said date (November 25), she has not yet been furnished a certified copy of the PPA
Appeals Board Resolution.
On January 2, 1989, respondent received a copy of her new appointment as
Administrative Officer dated October 1, 1988.
[14]
It was also during this time when she
learned that PPA General Manager Dayan had just issued petitioners appointment
dated October 21, 1988 as Manager II in the Resource Management Division effective
February 1, 1988.
On January 16, 1989, respondent filed with the CSC an appeal formally protesting
against petitioner Aninos appointment and at the same time questioning the propriety of
the August 11, 1988 Resolution of the PPA Appeals Board. This appeal remained
pending with the CSC for more than six (6) years despite respondent's requests for
early resolution. In the meantime, she assumed the position of Administrative Officer.
Eventually, the CSC, in its Resolution No. 95-2043
[15]
dated March 21, 1995,
dismissed respondents appeal, thus:
It is well-established rule that an appointment, although approved by this Commission,
does not become final until the protest filed against it is decided by the agency or by the
Commission. Although Monserate had already assumed the position of RMD Manager
II, the appointing authority may still withdraw the same if a protest is seasonably
filed. This is covered by Section 19, Rule VI of the Omnibus Rules implementing EO
292 x x x.
Monserates claim that she is more qualified than Anino is not relevant to the issue
before this Commission. In cases of protest filed or appealed to the Commission, the
main question to be resolved is whether or not the appointee meets the qualification
standard. x x x. The Commission will not disturb the choice of the appointing authority
as long as the appointee meets the qualification prescribed for the position in question.
Respondent filed a motion for reconsideration but the same was denied by the CSC
in its Resolution No. 95-6640 dated October 24, 1995.
In due time, respondent filed with the Court of Appeals a petition for review
impleading as respondents the PPA General Manager and petitioner Anino.
On June 20, 1997, the Court of Appeals rendered a Decision
[16]
nullifying the twin
Resolutions of the CSC. It ruled that the August 11, 1988 Resolution of the PPA
Appeals Board was not supported by evidence and that the same was irregularly issued
due to lack of proper notice to respondent with respect to the Boards proceedings. It
concluded that her reassignment from the position of Manager II, Resource
Management Division (SG-19), to the position of Administrative Officer (SG-15) was a
demotion violative of her constitutional right to security of tenure and due process. The
dispositive portion of the Court of Appeals' Decision reads:
THE FOREGOING CONSIDERED, judgment is hereby rendered declaring as null and
void Resolution Nos. 952043 and 95640 (should be 956640) dated March 21 and
October 21, 1988 (should be October 24, 1995), of the Civil service Commission; and
directing the reinstatement of the petitioner to the position of Resource Management
Division Manager II.
SO ORDERED.
Thereupon, Ramon Anino and the PPA General Manager filed on August 14, 1997
the present petition. On November 30, 1997, petitioner Anino retired from the
government service.
[17]

Petitioners ascribe to the Court of Appeals the following errors:
I THE COURT OF APPEALS SERIOUISLY ERRED IN FINDING THAT
RESPONDENT MONSERATE WAS DEMOTED FROM RESOURCES
MANAGEMENT DIVISION MANAGER TO ADMINISTRATIVE OFFICER,
THUS VIOLATING HER RIGHT TO SECURITY OF TENURE.
II THE COURT OF APPEALS GRAVELY ERRED IN NOT ALIGNING ITSELF
WITH THE WELL-NIGH RULE THAT RESPONDENT MONSERATES
APPOINTMENT AS RESOURCE MANAGEMENT DIVISION MANAGER,
ALTHOUGH APPROVED BY CSC, DOES NOT BECOME FINAL UNTIL
THE PROTEST FILED AGAINST HER IS FAVORABLY DECIDED IN HER
FAVOR BY THE AGENCY OR THE CSC.
III THE COURT OF APPEALS COMMITTED A SERIOUS ERROR OF
JUDGMENT IN IGNORING THAT IN CASES OF PROTEST FILED OR
APPEALED TO THE CSC, THE MAIN QUESTION TO BE RESOLVED IS
WHETHER OR NOT THE APPOINTEE MEETS THE QUALIFICATION
STANDARD.
[18]

The pivotal issue in this case is whether or not there was due process when
respondent was replaced by petitioner Anino from her position as Manager II, Resource
Management Division, and demoted as Administrative Officer.
Petitioners vehemently aver that respondent was never demoted since demotion,
being in the nature of administrative penalty, presupposes a conviction in an
administrative case. Here, respondent was not charged of any administrative
case. Rather, she was displaced from her position as an aftermath of the PPA
reorganization, authorized by law, the implementation of which having been carried out
with utmost good faith.
Furthermore, the said displacement was just the necessary effect of the August 11,
1988 Resolution of the PPA Appeals Board which sustained petitioner Aninos timely
protest against respondents appointment. Petitioners theorize that the appointment of
respondent as Resource Management Division Manager did not become final until the
protest filed against her was favorably decided in her favor by the CSC. In support of
this contention, they cited Section 19, Rule VI of the Omnibus Rules Implementing Book
V of Executive Order No. 292 (otherwise known as the Administrative Code of 1987),
which provides inter alia:
SEC 19. An appointment, though contested, shall take effect immediately upon its
issuance if the appointee assumes the duties of the position and the appointee is
entitled to receive the salary attached to the position. However, the appointment,
together with the decision of the department head, shall be submitted to the
Commission for appropriate action within 30 days from the date of its issuance,
otherwise the appointment becomes ineffective thereafter. Likewise, such
appointment shall become ineffective in case the protest is finally resolved
against the protestee, in which case, he shall be reverted to his former position.
Petitioners also contend that the head of an agency, being the appointing authority,
is the one most knowledgeable to decide who can best perform the functions of the
office. The appointing authority has a wide latitude of choice subject only to the
condition that the appointee should possess the qualifications required by
law. Consequently, the CSC acted rightly when it did not interfere in the exercise of
discretion by the PPA appointing authority, there being no evidence of grave abuse of
discretion thereof or violation of the Civil Service Law and Rules.
The petition is unmeritorious.
In the first place, the PPA reorganization in 1988 has nothing to do with
respondents demotion from the contested position of Manager II, Resource
Management Office (SG-19), to the lower position of Administrative Officer (SG-
15). Antithetically, it was precisely because of the said reorganization that respondent
applied to the higher position of Division Manager II. In fact, the Comparative Data
Sheet accomplished by the PPA Reorganization Task Force itself shows that
respondent ranked No. 1, while petitioner Anino ranked No. 2, from among the six (6)
contenders to the said post. Respondent was eventually issued a permanent
appointment as such Division Manager on February 1, 1988 by then PPA General
Maximo Dumlao, Jr., during which time she actually assumed office and discharged its
functions. This appointment was later approved on July 8, 1988 by the CSC, through
Assistant Director Guillermo R. Silva of the Civil Service Field Office-PPA.
Clearly, it was only after the reorganization and upon the issuance of the August
11, 1988 Resolution of the PPA Appeals Board when respondent was demoted to the
lower position of Administrative Officer. This is further shown by the following orders
and appointments subsequently issued by then PPA General Manager Rogelio Dayan:
1. PPA Special Order No. 479-88 dated September 28, 1988 which excluded
respondent Monserate from the PPA Managers pool-list;
2. Appointment of respondent, dated October 1, 1988, to the position of
Administrative Officer;
3. PPA Special Order No. 492-88 dated October 21, 1988 which officially
reassigned respondent to the position of Administrative Officer; and
4. Appointment of petitioner Anino, dated October 21, 1988, to the position of
Manager II, Resource Management Division, effective February 1, 1988.
Therefore, contrary to petitioners claim, respondent was demoted, not by reason of
the PPA reorganization in 1988, but due to the PPA Appeals Board Resolution dated
August 11, 1988 sustaining petitioner Aninos protest against respondents appointment.
Unfortunately for petitioners, this Court cannot accord validity to the August 11,
1988 Resolution of the PPA Appeals Board which upholds the appointment of
Ramon A. Anino as Resource Management Division Manager. But how can it
uphold his appointment when he was not yet appointed then? It bears stressing that he
was appointed on a much later date - October 21, 1988, or more than two (2)
months after August 11, 1998 when the PPA Appeals Board Resolution was
issued. Stated differently, the PPA Appeals Board could not uphold an appointment
which was not yet existing.
Equally questionable are the grounds for respondents demotion stated in the
August 11, 1998 Resolution: (1) CSC MC No. 5, s. 1988, Par. 3; (2) CSC MC NO. 10,
s. 1986, Par. A, 1.2 and Par. B; and (3) Civil Service Eligibility. These grounds are
incomprehensible for lack of discussion or explanation by the Board to enable
respondent to know the reason for her demotion.
We uphold the Court of Appeals finding that the August 11, 1998 PPA Appeals
Board Resolution was void for lack of evidence and proper notice to respondent. As
aptly held by the Appellate Court:
In the August 11, 1988 Resolution by the PPA Appeals Board (Ibid., p. 46) upholding
the appointment of the private respondent (Ramon Anino) as Division Manager, the
grounds against petitioner's (Julieta Monserate) appointment were: a) the CSC MC No.
5, s. 1988, Par 3; b) the CSC MC No. 10, 2. 1986, Par. A, 1.2 and Par. B; and c) Civil
service eligibility.
"x x x
To us, the August 11, 1988 Resolution by the PPA Appeals Board was not supported
by evidence. Of the CSC MC No. 5, the petitioner had no pending administrative or
criminal case at the time of her appointment as Manager. x x x.
With respect to the CSC MC No. 10, Par. A (1.2) and Par. B, the processing, review,
evaluation and recommendation of her appointment as Manager II, passed several
committees created by the PPA. x x x. Moreover, she had a 1.9 average
performance rating compared to the private respondent who only got 2.03. x x x.
On eligibility, she has a Career Service Professional eligibility while the private
respondent only has a First Grade Civil Service Eligibility.
She added that she was not aware of any proceeding on her demotion as a Division
Manager. As a matter of fact, it was only upon her iniative sometime during the latter
part of November, 1988 that she was able to obtain a copy of the August 11, 1988
Resolution of the Appeals Board. The resolution sustained the private respondents
appointment as Division Manager even if on August 11, 1988, he was not yet extended
any appointment. As a matter of fact, he was appointed only on October 1, 1988
(should be October 21, 1988).
Furthermore, she said that the resolution of the PPA Appeals Board appears irregular,
if not null and void. She was never notified of any proceeding; she was not furnished
either a copy of the resolution. What she received instead was a Special Order dated
September 29, 1988 already ordering her demotion. She was not at all given the
oppurtunity of defending herself before the Appeals Board.
x x x.
In the case now before us, the petitioner did not receive or was not given a copy of the
August 11, 1988 Resolution of the Appeals Board. She did not even know that she
was demoted until after she received a copy of the of the Special Order No. 479-88.
[19]

From all indications, it is indubitable that substantial and procedural irregularities
attended respondents demotion from the position of Manager II, Resource
Management Division, to the lower position of Administrative Officer. Indeed, her
demotion, tantamount to a revocation of her appointment as Manager II, is a patent
violation of her constitutional rights to security of tenure and due process. In Aquino vs.
Civil Service Commission,
[20]
this Court emphasized that once an appointment is issued
and the moment the appointee assumes a position in the civil service under a
completed appointment, he acquires a legal, not merely equitable, right (to the position)
which is protected not only by statute, but also by the constitution, and cannot be taken
away from him either by revocation of the appointment, or by removal, except for cause,
and with previous notice and hearing.
Concededly, the appointing authority has a wide latitude of discretion in the
selection and appointment of qualified persons to vacant positions in the civil
service.
[21]
However, the moment the discretionary power of appointment is exercised
and the appointee assumed the duties and functions of the position, such appointment
cannot anymore be revoked by the appointing authority and appoint another in his
stead, except for cause. Here, no iota of evidence was ever established to justify the
revocation of respondent's appointment by demoting her. Respondents security of
tenure guaranteed under the 1987 Constitution [Article IX-B, Section 2, par. (3)] should
not be placed at the mercy of abusive exercise of the appointing power.
[22]

Parenthetically, when the Court of Appeals reinstated respondent to her legitimate
post as Manager II in the Resource Management Division, it merely restored her
appointment to the said position to which her right to security of tenure had already
attached. To be sure, her position as Manager II never became vacant since her
demotion was void. In this jurisdiction, "an appointment to a non-vacant position in the
civil service is null and void ab initio."
[23]

We now delve on the backwages in favor of respondent.
The challenged Court of Appeals Decision ordered the reinstatement of respondent
without awarding backwages. This matter becomes controversial because respondent
assumed the lower position of Administrative Officer during the pendency of her protest
against petitioner Aninos appointment to the contested position. Also, petitioner Anino
retired from the service on November 30, 1997.
In this respect, while petitioner Aninos appointment to the contested position is
void, as earlier discussed, he is nonetheless considered a de facto officer during the
period of his incumbency.
[24]
A de facto officer is one who is in possession of an office
and who openly exercises its functions under color of an appointment or election, even
though such appointment or election may be irregular.
[25]
In Monroy vs. Court of
Appeals,
[26]
this Court ruled that a rightful incumbent of a public office may recover from
a de facto officer the salary received by the latter during the time of his wrongful tenure,
even though he (the de facto officer) occupied the office in good faith and under color of
title. A de facto officer, not having a good title, takes the salaries at his risk and must,
therefore, account to the de jure officer for whatever salary he received during the
period of his wrongful tenure. In the later case of Civil Liberties Union vs. Executive
Secretary,
[27]
this Court allowed a de facto officer to receive emoluments for actual
services rendered but only when there is no de jure officer, thus:
x x x in cases where there is no de jure officer, a de facto officer who, in good faith,
has had possession of the office and has discharged the duties pertaining thereto, is
legally entitled to the emoluments of the office, and may in appropriate action recover
the salary, fees and other compensations attached to the office.
In fine, the rule is that where there is a de jure officer, a de facto officer, during his
wrongful incumbency, is not entitled to the emoluments attached to the office, even if he
occupied the office in good faith. This rule, however, cannot be applied squarely on the
present case in view of its peculiar circumstances. Respondent had assumed under
protest the position of Administrative Officer sometime in the latter part of 1988, which
position she currently holds. Since then, she has been receiving the emoluments,
salary and other compensation attached to such office. While her assumption to said
lower position and her acceptance of the corresponding emoluments cannot be
considered as an abandonment of her claim to her rightful office (Division Manager),
she cannot recover full backwages for the period when she was unlawfully deprived
thereof. She is entitled only to backpay differentials for the period starting from her
assumption as Administrative Officer up to the time of her actual reinstatement to her
rightful position as Division Manager. Such backpay differentials pertain to the
difference between the salary rates for the positions of Manager II and Administrative
Officer. The same must be paid by petitioner Anino corresponding from the time he
wrongfully assumed the contested position up to the time of his retirement on November
30, 1997.
WHEREFORE, the petition is DENIED. The challenged Decision of the Court of
Appeals dated June 20, 1997 is AFFIRMED with MODIFICATION in the sense that
petitioner Ramon A. Anino is ordered to pay respondent Julieta Monserate backpay
differentials pertaining to the period from the time he wrongfully assumed the contested
position of Manager II up to his retirement on November 30, 1997.
SO ORDERED.
Vitug (Acting Chairman), Panganiban, and Carpio, JJ., concur.

[G.R. No. 120295. June 28, 1996]
JUAN G. FRIVALDO, petitioner, vs. COMMISSION ON ELECTIONS, and RAUL R.
LEE, respondents.
[G.R. No. 123755. June 28, 1996]
RAUL R. LEE, petitioner, vs. COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.
D E C I S I O N
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.
G.R. No. 123755.
This is a special civil action under Rules 65 and 58 of the Rules of Court for
certiorari and preliminary injunction to review and annul a Resolution of the respondent
Commission on Elections (Comelec), First Division,
1
promulgated on December
19,1995
2
and another Resolution of the Comelec en bane promulgated February 23,
1996
3
denying petitioner's motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections.
OnMarch 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition
4
with the
Comelec docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from
seeking or holding any public office or position by reason of not yet being a citizen of
the Philippines," and that his Certificate of Candidacy be cancelled. On May 1, 1995, the
Second Division of the Comelec promulgated a Resolution
5
granting the petition with
the following disposition:
6

"WHEREFORE, this Division resolves to GRANT the petition and declares that
respondent is DISQUALIFIED to run for the Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the Philippines. Accordingly, respondent's certificate
of candidacy is cancelled."
The Motion for Reconsideration filed by Frivaldo remained unacted upon until after
the May 8, 1995 elections. So, his candidacy continued and he was voted for during the
elections held on said date. On May 11, 1995, the Comelec en banc
7
affirmed the
aforementioned Resolution of the Second Division.
The Provincial Board of Canvassers completed the canvass of the election returns
and a Certificate of Votes
8.
dated May 27, 1995 was issued showing the following votes
obtained by the candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
RaulR.Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental)
petition
9
praying for his proclamation as the duly-elected Governor of Sorsogon.
In an order
10
dated June 21, 1995, but promulgated according to the petition "only
on June 29, 1995," the Comelec en bane directed "the Provincial Board of Canvassers
of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee as the
winning gubernatorial candidate in the province of Sorsogon on June 29,1995 x x x."
Accordingly, at 8:30 in the evening 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) x x x was released and received by Frivaldo on June 30, 1995
at 5:30 o'clock in the evening, there was no more legal impediment to the proclamation
(of Frivaldo) as governor x x x." In the alternative, he averred that pursuant to the two
cases of Labo vs. Comelec,
12
the Vice-Governor not Lee should occupy said
position of governor.
On December 19, 1995, the Comelec First Division promulgated the herein assailed
Resolution
13
holding that Lee, "not having garnered the highest number of votes," was
not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo, "having
garnered the highest number of votes, and xxx having reacquired his Filipino citizenship
by repatriation on June 30, 1995 under the provisions of Presidential Decree No. 725
xxx (is) qualified to hold the office of governor of Sorsogon"; thus:
"PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to
GRANT the Petition.
Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as
Governor of Sorsogon is hereby ordered annulled, being contrary to law, he not having
garnered the highest number of votes to warrant his proclamation.
Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to immediately reconvene and, on the basis of the
completed canvass, proclaim petitioner Juan G. Frivaldo as the duly elected Governor
of Sorsogon having 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 thestatus quo prevailing prior to the filing of this petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand briefly be capsulized in the following
propositions":
15

"First - The initiatory petition below was so far insufficient in form and substance to
warrant the exercise by the COMELEC of its jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in taking cognizance of and deciding said
petition;
Second- The judicially declared disqualification of respondent was a continuing
condition and rendered him ineligible to run for, to be elected to and to hold the Office of
Governor;
Third - The alleged repatriation of respondent was neither valid nor is the effect thereof
retroactive as to cure his ineligibility and qualify him to hold the Office of Governor; and
Fourth - Correctly read and applied, the Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected 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. Resolution
16
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. Resolution
17
of the Comelec en bane, promulgated on May 11, 1995; and
3. Resolution
18
of the Comelec en bane, promulgated also on May 11, 1995 suspending
the proclamation of, among others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No. 123755.
However, Frivaldo assails the above-mentioned resolutions on a different ground: that
under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of candidacy may
be filed by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be filed
at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after notice and hearing, not later than fifteen days
before the election." (Italics supplied.)
the Comelec had no jurisdiction to issue said Resolutions because they were not
rendered "within the period allowed by law," i.e., "not later than fifteen days before the
election."
Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the
petition for disqualification within the 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"?
4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of
existing jurisprudence?
5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating
the assailed Resolutions, all of which prevented Frivaldo from assuming the
governorship of Sorsogon, considering that they were not rendered within ( the period
referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days
before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold
legal issue in this case. All the other matters raised are secondary to this.
The Local Government Code of 1991
19
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 Court
20
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. 104654
22
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 at2:00 p.m. on June
30, 1995 is not disputed. Hence, he insists that henot Leeshould 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, 1987
24
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 createdto deal with the matter. If she had
intended to repeal such law, she should have unequivocally said so instead of referring
the matter to Congress. The fact is she carefully couched her presidential issuance in
terms that clearly indicated the intention of "the present government, in the exercise of
prudence and sound discretion" to leave the matter of repeal to the new Congress. Any
other 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 x x x (and) was approved in just one day or on June 30, 1995 x x x,"
which "prevented a judicious review and evaluation of the merits thereof." Frivaldo
counters that he filed his application for repatriation with the Office of the President
in Malacanang Palace on August 17, 1994. This is confirmed by the Solicitor
General. However, the Special Committee was reactivated only on June 8, 1995, when
presumably the said Committee started processing his application. On June 29, 1995,
he filled up and re-submitted the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent haste" in the processing of
his application.
Anent Lee's charge that the "sudden reconstitution of the Special Committee on
Naturalization was intended solely for the 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
Manifestation
28
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. 725
29
itself requires very little of an applicant, and even the rules and
regulations to implement the said decree were left to the Special Committee to
promulgate. This is not unusual since, unlike in naturalization where an alien covets
a first-time entry into Philippine political life, in repatriation the applicant is a former
natural-born Filipino who is merely seeking to reacquire his previous citizenship. In the
case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully
served his country and his province prior to his naturalization in the United States a
naturalization he insists was made necessary only to escape the iron clutches of a
dictatorship he abhorred and could not in conscience embrace and who, after the fall
of the dictator and the re-establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent and services to his people.
So too, the fact that ten other persons, as certified to by the Solicitor General, were
granted repatriation argues convincingly and conclusively against the existence of
favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of
Frivaldo's 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. 104654
30
which held that "both the Local Government Code and the Constitution
require that only Philippine citizens can run and be elected to Public office"Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's
naturalization was valid or not and NOT the effective date thereof. Since the Court
held his naturalization to be invalid, then the issue of when an aspirant for public office
should be a citizen was NOT resolved at all by the Court. Which question we shall now
directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:
* a citizen of the Philippines;
* a registered voter in the barangay, municipality, city, or province x x x where
he intends to be elected;
* a resident therein for at least one (1) year immediately preceding the day of
the election;
* able to read and write Filipino or any other local language or dialect."
* In addition, "candidates for the position of governor x x x must be at least
twenty-three (23) years of age on election day."
From the above, it will be noted that the law does not specify any particular date or
time when the candidate must possess 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, 1995the very
day
32
the term of office of governor (and other elective officials) beganhe was
therefore already qualified to be proclaimed, to hold such office and to discharge the
functions and responsibilities thereof as of said date. In short, at that time, he was
already qualified to govern his native Sorsogon. This is the liberal interpretation that
should give spirit, life and meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from a literal (as distinguished
from liberal) construction, it should be noted that Section 39 of the Local Government
Code speaks of "Qualifications" of "ELECTIVE OFFICIALS," not of candidates. Why
then should such qualification be required at the time of election or at the time of the
filing of the certificates of candidacies, as Lee insists? Literally, such qualifications
unless otherwise expressly conditioned, as in the case of age and residence should
thus be possessed when the "elective [or elected] official" begins to govern, i.e., at the
time he is proclaimed and at the start of his term in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giapand Li Seng Giap & Sons,
33
if the
purpose of the citizenship requirement is to ensure that our people and country do not
end up being governed by aliens, i.e., persons owing allegiance to another nation, that
aim or purpose would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of the elected official and
at the start of his term.
But perhaps the more difficult objection was the one raised during the oral
argument
34
to the effect that the citizenship qualification should be possessed at the
time the candidate (or for that matter the elected official) registered as a voter. After all,
Section 39, apart from requiring the official to be a citizen, also specifies as another item
of qualification, that he be a "registered voter." And, under the 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 x x x where he
intends to be elected." It should be emphasized that the Local Government Code
requires an elective official to be a registered voter. It does not require him to
voteactually. Hence, registrationnot the actual votingis 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 emphasizedand Lee has not disputed
that he "was and is a registered voter of Sorsogon, and his registration as a voter has
been sustained as valid by judicial declaration x x x In fact, he cast his vote in his
precinct on May 8, 1995."
36

So too, during the oral argument, his counsel stead-fastly maintained that "Mr.
Frivaldo has always been a registered voter of Sorsogon. He has voted in
1987,1988,1992, then he voted again in 1995. In fact, his eligibility as a voter was
questioned, but the court 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.
37

It is thus clear that Frivaldo is a registered voter in the province where he intended
to be elected.
There is yet another reason why the prime issue of citizenship should be reckoned
from the date of proclamation, not necessarily the date of election or date of filing of the
certificate of candidacy. Section 253 of the Omnibus Election Code
38
gives any voter,
presumably including the defeated candidate, the opportunity to question the
ELIGIBILITY (or the disloyalty) of a candidate. This is the only provision of the Code that
authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated under Sec. 39 of the Local
Government Code. Such remedy of Quo Warranto can be availed of "within ten days
after proclamation" of the winning candidate. Hence, it is only at such time that the issue
of ineligibility may be taken cognizance of by the Commission. And since, at the very
moment of Lee's 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 RETRO ACTED to the date of the filing of his application on August 17,1994.
It is true that under the Civil Code of the Philippines,
39
"(l)aws shall have no
retroactive effect, unless the contrary is provided." But there are settled exceptions
40
to
this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or
when it CREATES NEW RIGHTS.
According to Tolentino,
41
curative statutes are those which undertake to cure errors
and irregularities, thereby validating judicial or administrative proceedings, acts of public
officers, or private deeds and contracts which otherwise would not produce their
intended consequences by reason of some statutory disability or failure to comply with
some technical requirement. They operate on conditions already existing, and are
necessarily retroactive in operation. Agpalo,
42
on the other hand, says that curative
statutes are "healing acts x x x curing defects and adding to the means of enforcing
existing obligations x x x (and) are intended to supply defects, abridge superfluities in
existing laws, and curb certain evils x x x By their very nature, curative statutes are
retroactive xxx (and) reach back to past events to correct errors or irregularities and to
render valid and 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 xxx" 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 womenthe 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 General
44
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 tobe given
retroactive effect, but even the repatriation granted under said law to Frivaldo on June
30, 1995 is to be deemed to have retroacted to the date of his application therefor,
August 17, 1994. The reason for this is simply that if, as in this case, it was the intent of
the legislative authority that the law should apply to past events i.e., situations and
transactions existing even before the law came into being in order to benefit the
greatest number of former Filipinos possible thereby enabling them to enjoy and
exercise the constitutionally guaranteed right of citizenship, and such legislative
intention is to be given the fullest effect and expression, then there is all the more
reason to have the law apply in a retroactive or retrospective manner to situations,
events and transactions subsequent to the passage of such law. That is, the repatriation
granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date
of his application. As earlier mentioned, there is nothing in the law that would bar this or
would show a contrary intention on the part of the legislative authority; and there is no
showing that damage or prejudice to 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
Frivaldohaving already renounced his American citizenship was, may be
prejudiced for causes outside their control. This should not be. In case of doubt in the
interpretation or application of laws, it is to be presumed that the law-making body
intended right and justice to prevail.
47

And as experience will show, the Special Committee was able to process, act upon and
grant applications for repatriation 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
repatriatedi.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 citizenshiplong
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."
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to entertain the petition
in SPC No. 95-317 because the only "possible types of proceedings that may be
entertained by the Comelec are a pre-proclamation case, an election protest or a quo
warranto case." Again, Lee reminds us that he was proclaimed on June 30, 1995 but
that Frivaldo filed SPC No. 95-317 questioning his (Lee's) proclamation only on July 6,
1995 "beyond the 5-day reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo warranto action."
This argument is not meritorious. The Constitution
57
has given the Comelec ample
power to "exercise exclusive original jurisdiction over all contests relating to the
elections, returns and qualifications of all elective x x x provincial x x x officials." Instead
of dwelling at length on the various petitions that Comelec, in the exercise of its
constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to
hear and decide petitions for annulment of proclamations of which SPC No. 95-317
obviously is one.
58
Thus, in Mentang vs. COMELEC,
59
we ruled:
"The petitioner argues that after proclamation and assumption of office, a pre-
proclamation controversy is no longer viable. Indeed, we are aware of cases holding
that pre-proclamation controversies may no longer be entertained by the COMELEC
after the winning candidate has been proclaimed, (citing Gallardo vs. Rimando, 187
SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171
SCRA 468.) This rule, however, is premised on an assumption that the proclamation is
no proclamation at all and the proclaimed candidate's assumption of office cannot
deprive the COMELEC of the power to make such declaration of nullity. (citing
Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)"
The Court however cautioned that such power to annul a proclamation must "be
done within ten (10) days following the proclamation." Inasmuch as Frivaldo's petition
was filed only six (6) days after Lee's proclamation, there is no question that the
Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid
Frivaldo assails the validity of the Lee proclamation. We uphold him for the following
reasons:
First. To paraphrase this Court in Labo vs. COMELEC,
60
"the fact remains that he (Lee)
was not the choice of the sovereign will," and in Aquino vs. COMELEC,
61
Lee is "a
second placer, xxx just that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the pronouncement of
this Court in the aforesaid Labo
62
case, as follows:
"The rule would have been different if the electorate fully aware in fact and in law of a
candidate's disqualification so as to bring such awareness within the realm of notoriety,
would nonetheless cast their votes in favor of the ineligible candidate. In such case, the
electorate may be said to have waived the validity and efficacy of their votes by
notoriously misapplying their franchise or throwing away their votes, in which case, the
eligible candidate obtaining the next higher number of votes may be deemed elected."
But such holding is qualified by the next paragraph, thus:
"But this is not the situation obtaining in the instant dispute. It has not been shown, and
none was alleged, that petitioner Labo was notoriously known as an ineligible
candidate, much less the electorate as having known of such fact. On the contrary,
petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city mayor as its resolution dated
May 9,1992 denying due course to petitioner Labo's certificate of candidacy had not yet
become final and subject to the final outcome of this case."
The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in
this case because Frivaldo was in 1995 in an identical situation as Labo was in 1992
when the Comelec's cancellation of his certificate of candidacy was not yet final on
election day as there was in both cases a pending motion for reconsideration, for which
reason Comelec issued an (omnibus) resolution declaring that Frivaldo (like Labo in
1992) and several others can still be voted for in the May 8, 1995 election, as in fact, he
was.
Furthermore, there has been no sufficient evidence presented to show that the
electorate of Sorsogon was "fully aware in fact and in law" of Frivaldo's alleged
disqualification as to "bring such awareness within the realm of notoriety", in other
words, that the voters intentionally wasted their ballots knowing that, in spite of their
voting for him, he was ineligible. If Labo has any relevance at all, it is that the vice-
governor and not Leeshould be proclaimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is
the emphatic teaching of Labo:
"The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not
entitle the eligible candidate receiving the next highest number of votes to be declared
elected. A minority or defeated candidate cannot be deemed elected to the office."
Second. As we have earlier declared Frivaldo to have seasonably re-acquired his
citizenship and inasmuch as he obtained the highest number of votes in the 1995
elections, henot Lee should be proclaimed. Hence, Lee's proclamation was patently
erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec
(Second Division) dated May 1, 1995 and the confirmatory en banc Resolution of May
11, 1995 disqualifying him for want of citizenship should be annulled because they were
rendered beyond the fifteen (15) day period prescribed by Section 78 of the Omnibus
Election Code which reads as follows:
"Section 78. Petition to deny due course or to cancel a certificate of candidacy. A
verified petition seeking to deny due course or to cancel a certificate of candidacy may
be filed by any person exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false. The petition may be filed
at any time not later than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided after notice and hearing, not later than fifteen days
before the election" (italics supplied.)
This claim is now moot and academic inasmuch as these resolutions are deemed
superseded by the subsequent ones issued by the Commission (First Division)
onDecember 19, 1995, affirmed en banc
63
on February 23, 1996, which both upheld his
election. At any rate, it is obvious that Section 78 is merely directory as Section 6 of
R.A. No. 6646 authorizes the Commission to try and decide petitions for
disqualifications even after the elections, thus:
"SEC. 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted.If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the -winning number of votes
in such election, the Court or Commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may
during the pendency thereof order the suspension of the proclamation of such candidate
whenever the evidence of his guilt is strong." (Italics supplied)
Refutation of Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that
President Aquino's memorandum dated March 27, 1987 should be viewed as a
suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance is not
a statute that can amend or abrogate an existing law. The existence and subsistence of
P.D. 725 were recognized in the first Frivaldo case;
64
viz, "(u)nder CA No. 63 as
amended by CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by
xxx repatriation" He also contends that by allowing Frivaldo to register and to remain as
a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two
previous judgments declaring him a non-citizen. We do not see such abetting or
mockery. The retroactivity of his repatriation, as discussed earlier, legally cured
whatever defects there may have been in his registration as a voter for the purpose of
the 1995 elections. Such retroactivity did not change his disqualifications in 1988 and
1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to
question the ineligibility of a candidate, citing the Comelec's authority under Section 78
of the Omnibus Election Code allowing the denial of a certificate of candidacy on the
ground of a false material representation therein as required by Section 74.
CitingLoong, he then states his disagreement with our holding that Section 78 is merely
directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim
in G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and
May 11, 1995 were invalid because they were issued "not later than fifteen days before
the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295,
we hold that the Comelec did not commit grave abuse of discretion because "Section 6
of R. A. 6646 authorizes the Comelec to try and decide disqualifications even after the
elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is
merely directory," we note that just like us, Mr. Justice Davide nonetheless votes to
"DISMISS G.R. No. 120295." One other point. Loong, as quoted in the dissent, teaches
that a petition to deny due course under Section 78 must be filed within the 25-
day period prescribed therein. The present case however deals with the period during
which the Comelec may decide such petition. And we hold that it may be decided even
after the fifteen day period mentioned in Section 78. Here, we rule that a decision
promulgated by the Comelec even after the elections is valid but Loong held that a
petition filed beyond the 25-day period is out of time. There is no inconsistency nor
conflict.
Mr. Justice Davide also disagrees with the Court's holding that, given the unique
factual circumstances of Frivaldo, repatriation may be given retroactive effect. He
argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first
(and even the second Frivaldo) decision did not directly involve repatriation as a mode
of acquiring citizenship. If we may repeat, there is no question that Frivaldo was not a
Filipino for purposes of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his political status not in
1988 or 1992, but only in the 1995 elections.
Our learned colleague also disputes our holding that Frivaldo was stateless prior to
his repatriation, saying that "informal renunciation or abandonment is not a ground to
lose American citizenship." Since our courts are charged only with the duty of the
determining who are Philippine nationals, we cannot rule on the legal question of who
are or who are not Americans. It is basic in international law that a State determines
ONLY those who are its own citizens not who are the citizens of other
countries.
65
The issue here is: the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be arbitrary or whimsical.
Thus, following settled case law, such finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic margins to
Frivaldo in all three previous elections, should be declared winner because "Frivaldo's
ineligibility for being an American was publicly known." First, there is absolutely no
empirical evidence for such "public" knowledge. Second, even if there is, such
knowledge can be true post facto only of the last two previous elections. Third, even the
Comelec and now this Court were/are still deliberating on his nationality before, during
and after the 1995 elections. How then can there be such "public" knowledge?
Mr. Justice Davide submits that Section 39 of the Local Government Code refers to
the qualifications of elective local officials, i.e., candidates, and not elected officials, and
that the citizenship qualification [under par. (a) of that section] must be possessed by
candidates, not merely at the commencement of the term, but by election day at the
latest. We see it differently. Section 39, par. (a) thereof speaks of "elective local official"
while par. (b) to (f) refer to "candidates." If the qualifications under par. (a) were
intended to apply to "candidates" and not elected officials, the legislature would have
said so, instead of differentiating par. (a) from the rest of the paragraphs. Secondly, if
Congress had meant that the citizenship qualification should be possessed at election
day or prior thereto, it would have specifically stated such detail, the same way it did in
pars. (b) to (f) for other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's
repatriation on the ground, among others, that the law specifically provides that it is only
after taking the oath of allegiance that applicants shall be deemed to have reacquired
Philippine citizenship. We do not question what the provision states. We hold however
that the provision should be understood thus: that after taking the oath of allegiance the
applicant is deemed to have reacquired Philippine citizenship, which reacquisition (or
repatriation) is deemed for all purposes and intents to have retroacted to the date of his
application therefor.
In any event, our "so too" argument regarding the literal meaning of the word
"elective" in reference to Section 39 of the Local Government Code, as well as
regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-
retroactivity, were already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to
uphold the Rule of Law." We agree we must all follow the rule of law. But that is NOT
the issue here. The issue is how should the law be interpreted and applied in this case
so it can be followed, so it can rule!
At balance, the question really boils down to a choice of philosophy and perception
of how to interpret and apply laws relating to elections: literal or liberal; the letter or the
spirit; the naked provision or its ultimate purpose; legal syllogism or substantial justice;
in isolation or in the context of social conditions; harshly against or gently in favor of the
voters' obvious choice. In applying election laws, it would be far better to err in favor of
popular sovereignty than to be right in complex but little understood legalisms. Indeed,
to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to
be possessed by an elective official at the latest as of the time he is
proclaimedand 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:
"x x x (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)."
67

The law and the courts must accord Frivaldo every possible protection, defense and
refuge, in deference to the popular will. Indeed, this Court has repeatedly stressed the
importance of giving effect to the sovereign will in order to ensure the survival of our
democracy. 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
68
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.
No costs.
SO ORDERED.
Davide, Jr., J. dissenting opinion
Puno., J. concurring opinion
Francisco, Hermosisima, Jr., and Torres, JJ., concur.
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
Estelito P. Mendoza for petitioner.
Rillera and Quintana for private respondent.

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 aheadof 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 warrantoand 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 Ta;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

x x x
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).lwph1.t 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

x x x
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 ofGeronimo 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.
Fernan, (C.J.), Narvasa, Melencio-Herrera, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, Gri;o-Aquino Medialdea and Regalado, JJ., concur.

G.R. No. 88831 November 8, 1990
MATEO CAASI, petitioner,
vs.
THE HON. COURT OF APPEALS and MERITO C. MIGUEL, respondents.
G.R. No. 84508 November 13, 1990
ANECITO CASCANTE petitioner,
vs.
THE COMMISSION ON ELECTIONS and MERITO C. MIGUEL, respondents.
Ireneo B. Orlino for petitioner in G.R. Nos. 88831 & 84508.
Montemayor & Montemayor Law Office for private respondent.

GRIO-AQUINO, J .:
These two cases were consolidated because they have the same objective; the
disqualification under Section 68 of the Omnibus Election Code of the private
respondent, Merito Miguel for the position of municipal mayor of Bolinao, Pangasinan,
to which he was elected in the local elections of January 18, 1988, on the ground that
he is a green card holder, hence, a permanent resident of the United States of America,
not of Bolinao.
G.R. No. 84508 is a petition for review on certiorari of the decision dated January 13,
1988 of the COMELEC First Division, dismissing the three (3) petitions of Anecito
Cascante (SPC No. 87-551), Cederico Catabay (SPC No. 87-595) and Josefino C.
Celeste (SPC No. 87-604), for the disqualification of Merito C. Miguel filed prior to the
local elections on January 18, 1988.
G.R. No. 88831, Mateo Caasi vs. Court of Appeals, et al., is a petition for review of the
decision dated June 21, 1989, of the Court of Appeals in CA-G.R. SP No. 14531
dismissing the petition for quo warranto filed by Mateo Caasi, a rival candidate for the
position of municipal mayor of Bolinao, Pangasinan, also to disqualify Merito Miguel on
account of his being a green card holder.
In his answer to both petitions, Miguel admitted that he holds a green card issued to him
by the US Immigration Service, but he denied that he is a permanent resident of the
United States. He allegedly obtained the green card for convenience in order that he
may freely enter the United States for his periodic medical examination and to visit his
children there. He alleged that he is a permanent resident of Bolinao, Pangasinan, that
he voted in all previous elections, including the plebiscite on February 2,1987 for the
ratification of the 1987 Constitution, and the congressional elections on May 18,1987.
After hearing the consolidated petitions before it, the COMELEC with the exception of
Commissioner Anacleto Badoy, Jr., dismissed the petitions on the ground that:
The possession of a green card by the respondent (Miguel) does not
sufficiently establish that he has abandoned his residence in the
Philippines. On the contrary, inspite (sic) of his green card, Respondent
has sufficiently indicated his intention to continuously reside in Bolinao as
shown by his having voted in successive elections in said municipality. As
the respondent meets the basic requirements of citizenship and residence
for candidates to elective local officials (sic) as provided for in Section 42
of the Local Government Code, there is no legal obstacle to his candidacy
for mayor of Bolinao, Pangasinan. (p. 12, Rollo, G.R. No. 84508).
In his dissenting opinion, Commissioner Badoy, Jr. opined that:
A green card holder being a permanent resident of or an immigrant of a
foreign country and respondent having admitted that he is a green card
holder, it is incumbent upon him, under Section 68 of the Omnibus
Election Code, to prove that he "has waived his status as a permanent
resident or immigrant" to be qualified to run for elected office. This
respondent has not done. (p. 13, Rollo, G.R. No. 84508.)
In G.R. No. 88831, "Mateo Caasi, petitioner vs. Court of Appeals and Merito Miguel,
respondents," the petitioner prays for a review of the decision dated June 21, 1989 of
the Court of Appeals in CA-G.R. SP No. 14531 "Merito C. Miguel, petitioner vs. Hon.
Artemio R. Corpus, etc., respondents," reversing the decision of the Regional Trial
Court which denied Miguel's motion to dismiss the petition for quo warranto filed by
Caasi. The Court of Appeals ordered the regional trial court to dismiss and desist from
further proceeding in the quo warranto case. The Court of Appeals held:
... it is pointless for the Regional Trial Court to hear the case questioning
the qualification of the petitioner as resident of the Philippines, after the
COMELEC has ruled that the petitioner meets the very basic requirements
of citizenship and residence for candidates to elective local officials (sic)
and that there is no legal obstacles (sic) for the candidacy of the petitioner,
considering that decisions of the Regional Trial Courts on quo
warranto cases under the Election Code are appealable to the COMELEC.
(p. 22, Rollo, G.R. No. 88831.)
These two cases pose the twin issues of: (1) whether or not a green card is proof that
the holder is a permanent resident of the United States, and (2) whether respondent
Miguel had waived his status as a permanent resident of or immigrant to the U.S.A.
prior to the local elections on January 18, 1988.
Section 18, Article XI of the 1987 Constitution provides:
Sec. 18. Public officers and employees owe the State and this Constitution
allegiance at all times, and any public officer or employee who seeks to
change his citizenship or acquire the status of an immigrant of another
country during his tenure shall be dealt with by law.
In the same vein, but not quite, Section 68 of the Omnibus Election Code of the
Philippines (B.P. Blg. 881) provides:
SEC. 68. Disqualifications ... Any person who is a permanent resident of
or an immigrant to a foreign country shall not be qualified to run for any
elective office under this Code, unless said person has waived his status
as permanent resident or immigrant of a foreign country in accordance
with the residence requirement provided for in the election laws. (Sec. 25,
1971, EC).
In view of current rumor that a good number of elective and appointive public officials in
the present administration of President Corazon C. Aquino are holders of green cards in
foreign countries, their effect on the holders' right to hold elective public office in the
Philippines is a question that excites much interest in the outcome of this case.
In the case of Merito Miguel, the Court deems it significant that in the "Application
for Immigrant Visa and Alien Registration" (Optional Form No. 230, Department of
State) which Miguel filled up in his own handwriting and submitted to the US Embassy
in Manila before his departure for the United States in 1984, Miguel's answer to
Question No. 21 therein regarding his "Length of intended stay (if permanently, so
state)," Miguel's answer was,"Permanently."
On its face, the green card that was subsequently issued by the United States
Department of Justice and Immigration and Registration Service to the respondent
Merito C. Miguel identifies him in clear bold letters as a RESIDENT ALIEN. On the back
of the card, the upper portion, the following information is printed:
Alien Registration Receipt Card.
Person identified by this card is entitled to reside
permanently and work in the United States." (Annex A pp.
189-190, Rollo of G.R. No. 84508.)
Despite his vigorous disclaimer, Miguel's immigration to the United States in 1984
constituted an abandonment of his domicile and residence in the Philippines. For he did
not go to the United States merely to visit his children or his doctor there; he entered the
limited States with the intention to have there permanently as evidenced by his
application for an immigrant's (not a visitor's or tourist's) visa. Based on that application
of his, he was issued by the U.S. Government the requisite green card or authority to
reside there permanently.
Immigration is the removing into one place from another; the act of
immigrating the entering into a country with the intention of residing in it.
An immigrant is a person who removes into a country for the purpose
of permanent residence. As shown infra 84, however, statutes sometimes
give a broader meaning to the term "immigrant." (3 CJS 674.)
As a resident alien in the U.S., Miguel owes temporary and local allegiance to the U.S.,
the country in which he resides (3 CJS 527). This is in return for the protection given to
him during the period of his residence therein.
Aliens reading in the limited States, while they are permitted to remain, are
in general entitled to the protection of the laws with regard to their rights of
person and property and to their civil and criminal responsibility.
In general, aliens residing in the United States, while they are permitted to
remain are entitled to the safeguards of the constitution with regard to their
rights of person and property and to their civil and criminal responsibility.
Thus resident alien friends are entitled to the benefit of the provision of the
Fourteenth Amendment to the federal constitution that no state shall
deprive "any person" of life liberty, or property without due process of law,
or deny to any person the equal protection of the law, and the protection of
this amendment extends to the right to earn a livelihood by following the
ordinary occupations of life. So an alien is entitled to the protection of the
provision of the Fifth Amendment to the federal constitution that no person
shall be deprived of life, liberty, or property without due process of law. (3
CJS 529-530.)
Section 18, Article XI of the 1987 Constitution which provides that "any public officer or
employee who seeks to change his citizenship or acquire the status of an immigrant of
another country during his tenure shall be dealt with by law" is not applicable to Merito
Miguel for he acquired the status of an immigrant of the United States before he was
elected to public office, not "during his tenure" as mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election Code (B.P. Blg. 881),
which provides:
xxx xxx xxx
Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code,
unless such person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.'
Did Miguel, by returning to the Philippines in November 1987 and presenting himself as
a candidate for mayor of Bolinao in the January 18,1988 local elections, waive his
status as a permanent resident or immigrant of the United States?
To be "qualified to run for elective office" in the Philippines, the law requires that the
candidate who is a green card holder must have "waived his status as a permanent
resident or immigrant of a foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself constitute a waiver of his
status as a permanent resident or immigrant of the United States. The waiver of his
green card should be manifested by some act or acts independent of and done prior to
filing his candidacy for elective office in this country. Without such prior waiver, he was
"disqualified to run for any elective office" (Sec. 68, Omnibus Election Code).
Respondent Merito Miguel admits that he holds a green card, which proves that he is a
permanent resident or immigrant it of the United States, but the records of this case are
starkly bare of proof that he had waived his status as such before he ran for election as
municipal mayor of Bolinao on January 18, 1988. We, therefore, hold that he was
disqualified to become a candidate for that office.
The reason for Section 68 of the Omnibus Election Code is not hard to find. Residence
in the municipality where he intends to run for elective office for at least one (1) year at
the time of filing his certificate of candidacy, is one of the qualifications that a candidate
for elective public office must possess (Sec. 42, Chap. 1, Title 2, Local Government
Code). Miguel did not possess that qualification because he was a permanent resident
of the United States and he resided in Bolinao for a period of only three (3) months (not
one year) after his return to the Philippines in November 1987 and before he ran for
mayor of that municipality on January 18, 1988.
In banning from elective public office Philippine citizens who are permanent residents or
immigrants of a foreign country, the Omnibus Election Code has laid down a clear policy
of excluding from the right to hold elective public office those Philippine citizens who
possess dual loyalties and allegiance. The law has reserved that privilege for its citizens
who have cast their lot with our country "without mental reservations or purpose of
evasion." The assumption is that those who are resident aliens of a foreign country are
incapable of such entire devotion to the interest and welfare of their homeland for with
one eye on their public duties here, they must keep another eye on their duties under
the laws of the foreign country of their choice in order to preserve their status as
permanent residents thereof.
Miguel insists that even though he applied for immigration and permanent residence in
the United States, he never really intended to live there permanently, for all that he
wanted was a green card to enable him to come and go to the U.S. with ease. In other
words, he would have this Court believe that he applied for immigration to the U.S.
under false pretenses; that all this time he only had one foot in the United States but
kept his other foot in the Philippines. Even if that were true, this Court will not allow itself
to be a party to his duplicity by permitting him to benefit from it, and giving him the best
of both worlds so to speak.
Miguel's application for immigrant status and permanent residence in the U.S. and his
possession of a green card attesting to such status are conclusive proof that he is a
permanent resident of the U.S. despite his occasional visits to the Philippines. The
waiver of such immigrant status should be as indubitable as his application for it. Absent
clear evidence that he made an irrevocable waiver of that status or that he surrendered
his green card to the appropriate U.S. authorities before he ran for mayor of Bolinao in
the local elections on January 18, 1988, our conclusion is that he was disqualified to run
for said public office, hence, his election thereto was null and void.
WHEREFORE, the appealed orders of the COMELEC and the Court of Appeals in SPC
Nos. 87-551, 87-595 and 87-604, and CA-G.R. SP No. 14531 respectively, are hereby
set aside. The election of respondent Merito C. Miguel as municipal mayor of Bolinao,
Pangasinan is hereby annulled. Costs against the said respondent.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco,
Padilla, Bidin, Sarmiento, Medialdea and Regalado, JJ., concur.

[G.R. No. 133495. September 3, 1998]
BENJAMIN U. BORJA, JR., petitioner vs. COMMISSION ON ELECTIONS and JOSE
T. CAPCO, JR., respondents.
D E C I S I O N
MENDOZA, J .:
This case presents for determination the scope of the constitutional provision
barring elective officials, with the exception of barangay officials, from serving more than
three consecutive terms. In particular, the question is whether a vice-mayor who
succeeds to the office of mayor by operation of law and serves the remainder of the
term is considered to have served a term in that office for the purpose of the three-term
limit.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on
January 18, 1988 for a term ending June 30, 1992. On September 2, 1989, he became
mayor, by operation of law, upon the death of the incumbent, Cesar Borja. On May 11,
1992, he ran and was elected mayor for a term of three years which ended on June 30,
1995. On May 8, 1995, he was reelected mayor for another term of three years ending
June 30, 1998.
[1]

On March 27, 1998, private respondent Capco filed a certificate of candidacy for
mayor of Pateros relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja,
Jr., who was also a candidate for mayor, sought Capcos disqualification on the
theory that the latter would have already served as mayor for three consecutive terms
by June 30, 1998 and would therefore be ineligible to serve for another term after that.
On April 30, 1998, the Second Division of the Commission on Elections ruled in
favor of petitioner and declared private respondent Capco disqualified from running for
reelection as mayor of Pateros.
[2]
However, on motion of private respondent, the
COMELEC en banc, voting 5-2, reversed the decision and declared Capco eligible to
run for mayor in the May 11, 1998 elections.
[3]
The majority stated in its decision:
In both the Constitution and the Local
Government Code, the three-term limitation
refers to the term of office for which the local
official was elected. It made no reference to
succession to an office to which he was not
elected. In the case before the Commission,
respondent Capco was not elected to the
position of mayor in the January 18, 1988
local elections. He succeeded to such office
by operation of law and served for the
unexpired term of his
predecessor. Consequently, such
succession into office is not counted as one
(1) term for purposes of the computation of
the three-term limitation under the
Constitution and the Local Government
Code.
Accordingly, private respondent was voted for in the elections. He received 16,558
votes against petitioners 7,773 votes and was proclaimed elected by the Municipal
Board of Canvassers.
This is a petition for certiorari brought to set aside the resolution, dated May 7,
1998, of he COMELEC and to seed a declaration that private respondent is disqualified
to serve another term as Mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capcos service as mayor from
September 2, 1989 to June 30, 992 should be considered as service for full one term,
and since he thereafter served from 1992 to 1998 two more terms as mayor, he should
be considered to have served three consecutive terms within the contemplation of Art.
X, 8 of the Constitution and 43(b) of the Local Government Code. Petitioner stresses
the fact that, upon the death of Mayor Cesar Borja on September 2, 1989, private
respondent became the mayor and thereafter served the remainder of the
term. Petitioner argues that it is irrelevant that private respondent became mayor by
succession because the purpose of the constitutional provision in limiting the number of
terms elective local officials may serve is to prevent a monopolization of political power.
This contention will not bear analysis. Article X, 8 of the Constitution provides:
SEC. 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of his service for the
full term for which he was elected.
This provision is restated in 43(b) of the Local Government Code (R.A. No. 7160):
Sec. 43. Term of Office - . . .
(b) No local elective official shall serve for more than three (3) consecutive terms in
the same position. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of service for the full term for
which the elective official concerned was elected.
First, to prevent the establishment of political dynasties is not the only policy
embodied in the constitutional provision in question. The other policy is that of
enhancing the freedom of choice of the people. To consider, therefore, only stay in
office regardless of how the official concerned came to that office whether by election
or by succession by operation of law would be to disregard one of the purposes of the
constitutional provision in question.
Thus, a consideration of the historical background of Art. X, 8 of the Constitution
reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative officials. Instead,
they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term.
[4]
Monsod warned against
prescreening candidates [from] whom the people will choose as a result of the
proposed absolute disqualification, considering that the draft constitution provision
recognizing peoples power.
[5]

Commissioner Blas F. Ople, who supported the Monsod proposal, said:
The principle involved is really whether this Commission shall impose a temporary or a
perpetual disqualification on those who have served their terms in accordance with the
limits on consecutive service as decided by the Constitutional Commission. I would be
very wary about this Commission exercising a sort of omnipotent power in order to
disqualify those who will already have served their terms from perpetuating themselves
in office. I think the Commission achieves its purpose in establishing safeguards
against the excessive accumulation of power as a result of consecutive terms. We do
put a cap on consecutive service in the case of the President, six years; in the case of
the Vice-President, unlimited; and in the case of the Senators, one reelection. In the
case of the Members of Congress, both from the legislative districts and from the party
list and sectoral representation, this is now under discussion and later on the policy
concerning local officials will be taken up by the Committee on Local
Governments. The principle remains the same. I think we want to prevent future
situations where, as a result of continuous service and frequent reelections, officials
from the President down to the municipal mayor tend to develop a proprietary interest in
their position and to accumulate those powers and perquisites that permit them to stay
on indefinitely or to transfer these posts to members of their families in a subsequent
election. I think that is taken care of because we put a gap on the continuity or the
unbroken service of all of these officials. But where we now decide to put these
prospective servants of the people or politicians, if we want to use the coarser term,
under a perpetual disqualification, I have a feeling that we are taking away too much
from the people, whereas we should be giving as much to the people as we can in
terms of their own freedom of choice.
[6]

Other commissioners went on record against perpetually disqualifying elective
officials who have served a certain number of terms as this would deny the right of the
people to choose. As Commissioner Yusup R. Abubakar asked, why should we
arrogate unto ourselves the right to decide what the people want?
[7]

Commisioner Felicitas S. Aquino spoke in the same vein when she called on her
colleagues to "allow the people to exercise their own sense of proportion and [rely] on
their own strength to curtail power when it overreaches itself.
[8]

Commissioner Teodoro C. Bacani stressed: Why should we not leave [perpetual
disqualification after serving a number of terms] to the premise accepted by practically
everybody here that our people are politically mature? Should we use this assumption
only when it is convenient for us, and not when it may also lead to a freedom of choice
for the people and for politicians who may aspire to serve them longer?
[9]

Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term, derived from the
concern about the accumulation of power as a result of a prolonged stay in office. The
second is the idea of election, derived from the concern that the right of the people to
choose those whom they wish to govern them be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were serving by
reason of reelection. This is clear from the following exchange in the Constitutional
Commission concerning term limits, now embodied in Art. VI 4 and 7 of the
Constitution, for members of Congress:
MR. GASCON. I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before he
can run again?
MR. DAVIDE. That is correct.
MR. GASCON. And the question that we left behind before if the Gentlemen will
remember- was: How long will that period of rest be? Will it be one election
which is three years or one term which is six years?
MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed
the view that during the election following the expiration of the first 12 years,
whether such electionwill be on the third year or on the sixth year thereafter, this
particular member of the Senate can run. So it is not really a period of
hibernation for six years. That was the Committees stand.
[10]

Indeed, a fundamental tenet of representative democracy is that the people should
be allowed to choose whom they please to govern them.
[11]
To bar the election of a local
official because he has already served three terms, although the first as a result of
succession by operation of law rather than election, would therefore be to violate this
principle.
Second, not only historical examination but textual analysis as well supports the
ruling of the COMELEC that Art. X, 8 contemplates service by local officials for three
consecutive terms as a result of election. The first sentence speaks of the term of
office of elective local officials and bars such official[s] from serving for more than
three consecutive terms. The second sentence, in explaining when an elective local
official may be deemed to have served his full term of office, states that voluntary
renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was
elected. The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on
the number of terms an elective official may serve. Conversely, if he is not serving a
term for which he was elected because he is simply continuing the service of the official
he succeeds, such official cannot be considered to have fully served the term now
withstanding his voluntary renunciation of office prior to its expiration.
Reference is made to Commissioner Bernas comment on Art. VI, 7, which
similarly bars members of the House of Representatives from serving for more than
three terms. Commissioner Bernas states that if one is elected Representative to serve
the unexpired term of another, that unexpired term, no matter how short, will be
considered one term for the purpose of computing the number of successive terms
allowed.
[12]

This is actually based on the opinion expressed by Commissioner Davide in answer
to a query of Commissioner Suarez: For example, a special election is called for a
Senator, and the Senator newly elected would have to serve the unexpired portion of
the term. Would that mean that serving the unexpired portion of the term is already
considered one term? So, half a term, which is actually the correct statement, plus one
term would disqualify the Senator concerned from running? Is that the meaning of this
provision on disqualification, Madam President? Commissioner Davide said: Yes,
because we speak of term and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the Senator and two
more terms for the Members of the Lower House.
[13]

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


[G.R. No. 124893. April 18, 1997]
LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR., THE
HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER
DIONISIO F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.
D E C I S I O N
PUNO, J .:
Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2,
1996 of respondent Commission on Elections (COMELEC) en banc suspending her
proclamation as the duly elected Chairman of the Sangguniang Kabataan of Barangay
San Lorenzo, Municipality of Bangui, Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide
was scheduled to be held on May 6, 1996. On March 16, 1996, petitioner applied for
registration as member and voter of the Katipunan ng Kabataan of Barangay San
Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers, however, denied her
application on the ground that petitioner, who was then twenty-one years and ten (10)
months old, exceeded the age limit for membership in the Katipunan ng Kabataan as
laid down in Section 3 [b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang
Member and Voter" with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-
Damalneg, Ilocos Norte. In a decision dated April 18, 1996, the said court found
petitioner qualified and ordered her registration as member and voter in the Katipunan
ng Kabataan.
[1]
The Board of Election Tellers appealed to the Regional Trial Court,
Bangui, Ilocos Norte.
[2]
The presiding judge of the Regional Trial Court, however,
inhibited himself from acting on the appeal due to his close association with petitioner.
[3]

On April 23, 1996, petitioner filed her certificate of candidacy for the position of
Chairman, Sangguniang Kabataan, Barangay San Lorenzo, Municipality of Bangui,
Province of Ilocos Norte. In a letter dated April 23, 1996, respondent Election Officer
Dionisio F. Rios, per advice of Provincial Election Supervisor Noli Pipo,
[4]
disapproved
petitioner's certificate of candidacy again due to her age.
[5]
Petitioner, however,
appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of
respondents and allowed petitioner to run.
[6]

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her
of her ineligibility and giving her 24 hours to explain why her certificate of candidacy
should not be disapproved.
[7]
Earlier and without the knowledge of the COMELEC
officials, private respondent Florencio G. Sales, Jr., a rival candidate for Chairman of
the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of Denial
and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely
representing her age qualification in her certificate of candidacy. The petition was sent
by facsimile
[8]
and registered mail on April 29, 1996 to the Commission on Elections
National Office, Manila.
On May 2, 1996, the same day respondent Rios issued the memorandum to
petitioner, the COMELEC en banc issued an order directing the Board of Election
Tellers and Board of Canvassers of Barangay San Lorenzo to suspend the
proclamation of petitioner in the event she won in the election. The order reads as
follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of
Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida,
received on April 29, 1996, the pertinent allegations of which reads:
x x x
5. That the said respondent is disqualified to become a voter and a candidate for
the SK for the reason that she will be more than twenty-one (21) years of age on May 6,
1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate,
a copy of which is hereto attached and marked as Annex "A";
6. That in filing her certificate of candidacy as candidate for SK of Bgy. San
Lorenzo, Bangui, Ilocos Norte, she made material representation which is false and as
such, she is disqualified; that her certificate of candidacy should not be given due
course and that said candidacy must be cancelled;
x x x."
the Commission, it appearing that the petition is meritorious, hereby DIRECTS
the Board of Election Tellers/Board of Canvassers of Barangay San Lorenzo,
Bangui, Ilocos Norte, to suspend the proclamation of Lynette G. Garvida in the
event she garners the highest number of votes for the position of Sangguniang
Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies of
his petition and to pay the filing and legal research fees in the amount
of P510.00.
SO ORDERED."
[9]

On May 6, 1996, election day, petitioner garnered 78 votes as against private
respondent's votes of 76.
[10]
In accordance with the May 2, 1996 order of the
COMELECen banc, the Board of Election Tellers did not proclaim petitioner as the
winner. Hence, the instant petition for certiorari was filed on May 27, 1996.
On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the
winner for the position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos
Norte.
[11]
The proclamation was "without prejudice to any further action by the
Commission on Elections or any other interested party."
[12]
On July 5, 1996, petitioner
ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality
of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected
officials of the Pederasyon.
[13]

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the
COMELEC en banc to act on the petition to deny or cancel her certificate of candidacy;
the second, the cancellation of her certificate of candidacy on the ground that she has
exceeded the age requirement to run as an elective official of the SK.
I
Section 532 (a) of the Local Government Code of 1991 provides that the conduct of
the SK elections is under the supervision of the COMELEC and shall be governed by
the Omnibus Election Code.
[14]
The Omnibus Election Code, in Section 78, Article IX,
governs the procedure to deny due course to or cancel a certificate of candidacy, viz:
"Sec. 78. Petition to deny due course to or cancel a certificate of 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 filing of the certificate of candidacy and shall be decided, after due
notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition
to deny due course to or cancel a certificate of candidacy for an elective office may be
filed with the Law Department of the COMELEC on the ground that the candidate has
made a false material representation in his certificate. The petition may be heard and
evidence received by any official designated by the COMELEC after which the case
shall be decided by the COMELEC itself.
[15]

Under the same Rules of Procedure, jurisdiction over a petition to cancel a
certificate of candidacy lies with the COMELEC sitting in Division, not en banc. Cases
before a Division may only be entertained by the COMELEC en banc when the required
number of votes to reach a decision, resolution, order or ruling is not obtained in the
Division. Moreover, only motions to reconsider decisions, resolutions, orders or rulings
of the COMELEC in Division are resolved by the COMELEC en banc.
[16]
It is therefore
the COMELEC sitting in Divisions that can hear and decide election cases. This is clear
from Section 3 of the said Rules thus:
"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in two
(2) Divisions to hear and decide protests or petitions in ordinary actions, special
actions, special cases, provisional remedies, contempt and special proceedings
except in accreditation of citizens' arms of the Commission."
[17]

In the instant case, the COMELEC en banc did not refer the case to any of its
Divisions upon receipt of the petition. It therefore acted without jurisdiction or with grave
abuse of discretion when it entertained the petition and issued the order of May 2,
1996.
[18]

II
The COMELEC en banc also erred when it failed to note that the petition itself did
not comply with the formal requirements of pleadings under the COMELEC Rules of
Procedure. These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must
be filed in ten (10) legible copies. However, when there is more than one
respondent or protestee, the petitioner or protestant must file additional number
of copies of the petition or protest as there are additional respondents or
protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding
section must be filed directly with the proper Clerk of Court of the Commission
personally, or, unless otherwise provided in these Rules, by registered mail. In
the latter case, the date of mailing is the date of filing and the requirement as to
the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules
shall be printed, mimeographed or typewritten on legal size bond paper and
shall be in English or Filipino.
x x x."
Every pleading before the COMELEC must be printed, mimeographed or typewritten in
legal size bond paper and filed in at least ten (10) legible copies. Pleadings must be
filed directly with the proper Clerk of Court of the COMELEC personally, or, by
registered mail.
In the instant case, the subject petition was not in proper form. Only two (2) copies
of the petition were filed with the COMELEC.
[19]
Also, the COMELEC en banc issued its
Resolution on the basis of the petition transmitted by facsimile, not by registered mail.
A facsimile or fax transmission is a process involving the transmission and
reproduction of printed and graphic matter by scanning an original copy, one elemental
area at a time, and representing the shade or tone of each area by a specified amount
of electric current.
[20]
The current is transmitted as a signal over regular telephone lines
or via microwave relay and is used by the receiver to reproduce an image of the
elemental area in the proper position and the correct shade.
[21]
The receiver is equipped
with a stylus or other device that produces a printed record on paper referred to as a
facsimile.
[22]

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC
Rules of Procedure, much less by the Rules of Court. A facsimile is not a genuine and
authentic pleading. It is, at best, an exact copy preserving all the marks of an
original.
[23]

Without the original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed by the party and
his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a
facsimile pleading should have restrained the COMELEC en banc from acting on the
petition and issuing the questioned order. The COMELEC en banc should have waited
until it received the petition filed by registered mail.
III
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.
The Katipunan ng Kabataan was originally created by Presidential Decree No. 684
in 1975 as the Kabataang Barangay, a barangay youth organization composed of all
residents of the barangay who were at least 15 years but less than 18 years of age.
[24]

The Kabataang Barangay sought to provide its members a medium to express their
views and opinions and participate in issues of transcendental importance.
[25]
Its affairs
were administered by a barangay youth chairman together with six barangay youth
leaders who were actual residents of the barangay and were at least 15 years but less
than 18 years of age.
[26]
In 1983, Batas Pambansa Blg. 337, then the Local Government
Code, raised the maximum age of the Kabataang Barangay members from "less than
18 years of age" to "not more than 21 years of age."
The Local Government Code of 1991 changed the Kabataang Barangay into the
Katipunan ng Kabataan. It, however, retained the age limit of the members laid down in
B.P. 337 at 15 but not more than 21 years old.
[27]
The affairs of the Katipunan ng
Kabataan are administered by the Sangguniang Kabataan (SK) composed of a
chairman and seven (7) members who are elected by the Katipunan ng Kabataan.
[28]

The chairman automatically becomes ex-officio member of the Sangguniang
Barangay.
[29]
A member of the SK holds office for a term of three (3) years, unless
sooner removed for cause, or becomes permanently incapacitated, dies or resigns from
office.
[30]

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid
down by the Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be
composed of all citizens of the Philippines actually residing in the barangay for
at least six (6) months, who are fifteen (15) but not more than twenty-one (21)
years of age, and who are duly registered in the list of the sangguniang
kabataan or in the official barangay list in the custody of the barangay
secretary."
A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan
must be a citizen of the Philippines, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately prior
to election, at least fifteen (15) years but not more than twenty-one (21) years of
age on the day of his election, able to read and write Filipino, English, or the
local dialect, and must not have been convicted of any crime involving moral
turpitude."
Under Section 424 of the Local Government Code, a member of the Katipunan ng
Kabataan must be: (a) a Filipino citizen; (b) an actual resident of the barangay for at
least six months; (c) 15 but not more than 21 years of age; and (d) duly registered in
the list of the Sangguniang Kabataan or in the official barangay list. Section 428 of the
Code requires that an elective official of the Sangguniang Kabataan must be: (a) a
Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of
the barangay at least one (1) year immediately preceding the election; (d) at least 15
years but not more than 21 years of age on the day of his election; (e) able to read and
write; and (f) must not have been convicted of any crime involving moral turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428
of the Local Government Code of 1991 in Resolution No. 2824 and defined how a
member of the Katipunan ng Kabataan becomes a qualified voter and an elective
official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the
SK elections, a person must be:
a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is, he
must have been born between May 6, 1975 and May 6, 1981, inclusive; and
c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately preceding
the elections."
x x x
"Sec. 6. Qualifications of elective members. -- An elective official of the SK
must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the elections;
and
c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided by
the city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996
SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on
election day, i.e., the voter must be born between May 6, 1975 and May 6, 1981,
inclusive; and (c) a resident of the Philippines for at least one (1) year and an actual
resident of the barangay at least six (6) months immediately preceding the elections. A
candidate for the SK must: (a) possess the foregoing qualifications of a voter; (b) be a
resident in the barangay at least one (1) year immediately preceding the elections; and
(c) able to read and write.
Except for the question of age, petitioner has all the qualifications of a member and
voter in the Katipunan ng Kabataan and a candidate for the Sangguniang
Kabataan. Petitioner's age is admittedly beyond the limit set in Section 3 [b] of
COMELEC Resolution No. 2824. Petitioner, however, argues that Section 3 [b] of
Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and
428 of the Local Government Code of 1991. She contends that the Code itself does not
provide that the voter must be exactly 21 years of age on election day. She urges that
so long as she did not turn twenty-two (22) years old, she was still twenty-one years of
age on election day and therefore qualified as a member and voter in the Katipunan ng
Kabataan and as candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction between the
maximum age of a member in the Katipunan ng Kabataan and the maximum age of an
elective SK official. Section 424 of the Code sets a member's maximum age at 21
years only. There is no further provision as to when the member shall have turned 21
years of age. On the other hand, Section 428 provides that the maximum age of an
elective SK official is 21 years old "on the day of his election." The addition of the
phrase "on the day of his election" is an additional qualification. The member may be
more than 21 years of age on election day or on the day he registers as member of the
Katipunan ng Kabataan. The elective official, however, must not be more than 21 years
old on the day of election. The distinction is understandable considering that the Code
itself provides more qualifications for an elective SK official than for a member of the
Katipunan ng Kabataan. Dissimilum dissimilis est ratio.
[31]
The courts may distinguish
when there are facts and circumstances showing that the legislature intended a
distinction or qualification.
[32]

The qualification that a voter in the SK elections must not be more than 21 years of
age on the day of the election is not provided in Section 424 of the Local Government
Code of 1991. In fact the term "qualified voter" appears only in COMELEC Resolution
No. 2824.
[33]
Since a "qualified voter" is not necessarily an elective official, then it may
be assumed that a "qualified voter" is a "member of the Katipunan ng
Kabataan." Section 424 of the Code does not provide that the maximum age of a
member of the Katipunan ng Kabataan is determined on the day of the
election. Section 3 [b] of COMELEC Resolution No. 2824 is therefore ultra
vires insofar as it sets the age limit of a voter for the SK elections at exactly 21
years on the day of the election.
The provision that an elective official of the SK should not be more than 21 years of
age on the day of his election is very clear. The Local Government Code speaks of
years, not months nor days. When the law speaks of years, it is understood that years
are of 365 days each.
[34]
One born on the first day of the year is consequently deemed
to be one year old on the 365th day after his birth -- the last day of the year.
[35]
In
computing years, the first year is reached after completing the first 365 days. After the
first 365th day, the first day of the second 365-day cycle begins. On the 365th day of
the second cycle, the person turns two years old. This cycle goes on and on in a
lifetime. A person turns 21 years old on the 365th day of his 21st 365-day cycle. This
means on his 21st birthday, he has completed the entire span of 21 365-day
cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after
the 365th day is the first day of the next 365-day cycle and he turns 22 years old on the
365th day.
The phrase "not more than 21 years of age" means not over 21 years, not beyond
21 years. It means 21 365-day cycles. It does not mean 21 years and one or some
days or a fraction of a year because that would be more than 21 365-day cycles. "Not
more than 21 years old" is not equivalent to "less than 22 years old," contrary to
petitioner's claims. The law does not state that the candidate be less than 22 years on
election day.
In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a
barangay youth official was expressly stated as "x x x at least fifteen years of age or
over but less than eighteen x x x."
[36]
This provision clearly states that the youth official
must be at least 15 years old and may be 17 years and a fraction of a year but should
not reach the age of eighteen years. When the Local Government Code increased the
age limit of members of the youth organization to 21 years, it did not reenact the
provision in such a way as to make the youth "at least 15 but less than 22 years old." If
the intention of the Code's framers was to include citizens less than 22 years old, they
should have stated so expressly instead of leaving the matter open to confusion and
doubt.
[37]

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local
Government Code of 1991 declared that one of the reasons why the Katipunan ng
Kabataan was created and the Kabataang Barangay discontinued was because most, if
not all, Kabataang Barangay leaders were already over 21 years of age by the time
President Aquino assumed power.
[38]
They were not the "youth" anymore. The Local
Government Code of 1991 fixed the maximum age limit at not more than 21
years
[39]
and the only exception is in the second paragraph of Section 423 which reads:
"Sec. 423. Creation and Election. -- a) x x x;
b) A sangguniang kabataan official who, during his term of office, shall have
passed the age of twenty-one (21) years shall be allowed to serve the
remaining portion of the term for which he was elected."
The general rule is that an elective official of the Sangguniang Kabataan must
not be more than 21 years of age on the day of his election. The only exception is when
the official reaches the age of 21 years during his incumbency. Section 423 [b] of the
Code allows him to serve the remaining portion of the term for which he was
elected. According to Senator Pimentel, the youth leader must have "been elected prior
to his 21st birthday."
[40]
Conversely, the SK official must not have turned 21 years old
before his election. Reading Section 423 [b] together with Section 428 of the Code, the
latest date at which an SK elective official turns 21 years old is on the day of his
election. The maximum age of a youth official must therefore be exactly 21 years on
election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824
is not ultra vires insofar as it fixes the maximum age of an elective SK official on the day
of his election.
In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the
day she registered as voter for the May 6, 1996 SK elections, petitioner was twenty-one
(21) years and nine (9) months old. On the day of the elections, she was 21 years, 11
months and 5 days old. When she assumed office on June 1, 1996, she was 21 years,
11 months and 20 days old and was merely ten (10) days away from turning 22 years
old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but
definitely, petitioner was over the age limit for elective SK officials set by Section 428 of
the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution No.
2824. She was ineligible to run as candidate for the May 6, 1996 Sangguniang
Kabataan elections.
The requirement that a candidate possess the age qualification is founded on public
policy and if he lacks the age on the day of the election, he can be declared
ineligible.
[41]

In the same vein, if the candidate is over the maximum age limit on the day of the
election, he is ineligible. The fact that the candidate was elected will not make the age
requirement directory, nor will it validate his election.
[42]
The will of the people as
expressed through the ballot cannot cure the vice of ineligibility.
[43]

The ineligibility of petitioner does not entitle private respondent, the candidate who
obtained the highest number of votes in the May 6, 1996 elections, to be declared
elected.
[44]
A defeated candidate cannot be deemed elected to the office.
[45]
Moreover,
despite his claims,
[46]
private respondent has failed to prove that the electorate
themselves actually knew of petitioner's ineligibility and that they maliciously voted for
her with the intention of misapplying their franchises and throwing away their votes for
the benefit of her rival candidate.
[47]

Neither can this Court order that pursuant to Section 435 of the Local Government
Code petitioner should be succeeded by the Sangguniang Kabataan member who
obtained the next highest number of votes in the May 6, 1996 elections.
[48]
Section 435
applies when a Sangguniang Kabataan Chairman "refuses to assume office, fails to
qualify,
[49]
is convicted of a felony, voluntarily resigns, dies, is permanently
incapacitated, is removed from office, or has been absent without leave for more than
three (3) consecutive months."
The question of the age qualification is a question of eligibility.
[50]

Being "eligible" means being "legally qualified; capable of being legally chosen."
[51]

Ineligibility, on the other hand, refers to the lack of the qualifications prescribed in
the Constitution or the statutes for holding public office.
[52]
Ineligibility is not one of the
grounds enumerated in Section 435 for succession of the SK Chairman.
To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to
order that the vacancy be filled by the SK member chosen by the incumbent SK
members of Barangay San Lorenzo, Bangui, Ilocos Norte by simple majority from
among themselves. The member chosen shall assume the office of SK Chairman for
the unexpired portion of the term, and shall discharge the powers and duties, and enjoy
the rights and privileges appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is
declared ineligible for being over the age qualification for candidacy in the May 6, 1996
elections of the Sangguniang Kabataan, and is ordered to vacate her position as
Chairman of the Sangguniang Kabataan of Barangay San Lorenzo, Bangui, Ilocos
Norte. The Sangguniang Kabataan member voted by simple majority by and from
among the incumbent Sangguniang Kabataan members of Barangay San Lorenzo,
Bangui, Ilocos Norte shall assume the office of Sangguniang Kabataan Chairman of
Barangay San Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug,
Kapunan, Mendoza, Francisco, Panganiban, and Torres, Jr., JJ., concur.

[G.R. No. 135083. May 26, 1999]
ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the
COMMISSION ON ELECTIONS, respondents.
D E C I S I O N
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
[1]

The proclamation of private respondent was suspended in view of a pending
petition for disqualification filed by a certain Ernesto Mamaril who alleged that private
respondent was not a citizen of the Philippines but of the United States.
In its resolution, dated May 7, 1998,
[2]
the Second Division of the COMELEC
granted the petition of Mamaril and ordered the cancellation of the certificate of
candidacy of private respondent on the ground that he is a dual citizen and, under
40(d) of the Local Government Code, persons with dual citizenship are disqualified
from running for any elective position. The 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.
SO ORDERED.
Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing,
Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.

[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.
D E C I S I O N
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.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Vitug, Kapunan, Mendoza, Quisumbing, Purisima,
Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon Jr., JJ., concur.

[G.R. No. 137000. August 9, 2000]
CIRILO R. VALLES, petitioner, vs. COMMISSION ON ELECTIONS and
ROSALIND YBASCO LOPEZ, respondents.
D E C I S I O N
PURISIMA, J .:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64
of the 1997 Rules of Civil Procedure, assailing Resolutions dated July 17, 1998
and January 15, 1999, respectively, of the Commission on Elections in SPA No.
98-336, dismissing the petition for disqualification filed by the herein petitioner,
Cirilo R. Valles, against private respondent Rosalind Ybasco Lopez, in the May
1998 elections for governor of Davao Oriental.
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace,
Broome, Western Australia, to the spouses, Telesforo Ybasco, a Filipino citizen
and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In
1949, at the age of fifteen, she left Australia and came to settle in the
Philippines.
On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at
the Malate Catholic Church in Manila. Since then, she has continuously
participated in the electoral process not only as a voter but as a candidate, as
well. She served as Provincial Board Member of the Sangguniang
Panlalawigan of Davao Oriental. In 1992, she ran for and was elected governor
of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr.,
in a petition for quo warranto, docketed as EPC No. 92-54, alleging as ground
therefor her alleged Australian citizenship. However, finding no sufficient proof
that respondent had renounced her Philippine citizenship, the Commission on
Elections en banc dismissed the petition, ratiocinating thus:
A cursory reading of the records of this case vis-a-vis the impugned resolution shows
that respondent was able to produce documentary proofs of the Filipino citizenship of
her late father... and consequently, prove her own citizenship and filiation by virtue of
the Principle of Jus Sanguinis, the perorations of the petitioner to the contrary
notwithstanding.
On the other hand, except for the three (3) alleged important documents . . . no other
evidence substantial in nature surfaced to confirm the allegations of petitioner that
respondent is an Australian citizen and not a Filipino. Express renunciation of
citizenship as a mode of losing citizenship under Commonwealth Act No. 63 is an
equivocal and deliberate act with full awareness of its significance and
consequence. The evidence adduced by petitioner are inadequate, nay meager, to
prove that respondent contemplated renunciation of her Filipino citizenship.
[1]

In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-
election as governor of Davao Oriental. Her opponent, Francisco Rabat, filed a
petition for disqualification, docketed as SPA No. 95-066 before the COMELEC,
First Division, contesting her Filipino citizenship but the said petition was
likewise dismissed by the COMELEC, reiterating substantially its decision in
EPC 92-54.
The citizenship of private respondent was once again raised as an issue
when she ran for re-election as governor of Davao Oriental in the May 11, 1998
elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles,
in SPA No. 98-336.
On July 17, 1998, the COMELECs First Division came out with a
Resolution dismissing the petition, and disposing as follows:
Assuming arguendo that res judicata does not apply and We are to dispose the instant
case on the merits trying it de novo, the above table definitely shows that petitioner
herein has presented no new evidence to disturb the Resolution of this Commission in
SPA No. 95-066. The present petition merely restates the same matters and incidents
already passed upon by this Commission not just in 1995 Resolution but likewise in the
Resolution of EPC No. 92-54. Not having put forth any new evidence and matter
substantial in nature, persuasive in character or sufficiently provocative to compel
reversal of such Resolutions, the dismissal of the present petition follows as a matter of
course.
xxx....................................xxx....................................xxx
WHEREFORE, premises considered and there being no new matters and issues
tendered, We find no convincing reason or impressive explanation to disturb and
reverse the Resolutions promulgated by this Commission in EPC 92-54 and SPA. 95-
066. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present
petition.
SO ORDERED.
[2]

Petitioner interposed a motion for reconsideration of the aforesaid
Resolution but to no avail. The same was denied by the COMELEC in its en
bancResolution of January 15, 1999.
Undaunted, petitioner found his way to this Court via the present petition;
questioning the citizenship of private respondent Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind
Ybasco Lopez is a Filipino citizen and therefore, qualified to run for a public
office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by
virtue of the principle of jus sanguinis she was a Filipino citizen under the 1987
Philippine Constitution; (2) she was married to a Filipino, thereby making her
also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3)
and that, she renounced her Australian citizenship on January 15, 1992 before
the Department of Immigration and Ethnic Affairs of Australia and her Australian
passport was accordingly cancelled as certified to by the Australian Embassy in
Manila; and (4) furthermore, there are the COMELEC Resolutions in EPC No.
92-54 and SPA Case No. 95-066, declaring her a Filipino citizen duly qualified
to run for the elective position of Davao Oriental governor.
Petitioner, on the other hand, maintains that the private respondent is an
Australian citizen, placing reliance on the admitted facts that:
a) In 1988, private respondent registered herself with the Bureau of Immigration as an
Australian national and was issued Alien Certificate of Registration No. 404695 dated
September 19, 1988;
b) On even date, she applied for the issuance of an Immigrant Certificate of Residence
(ICR), and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the
private respondent had renounced her Filipino citizenship. He contends that in
her application for alien certificate of registration and immigrant certificate of
residence, private respondent expressly declared under oath that she was a
citizen or subject of Australia; and said declaration forfeited her Philippine
citizenship, and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced
her Australian citizenship on January 15, 1992 before the Department of
Immigration and Ethnic Affairs of Australia and had her Australian passport
cancelled on February 11, 1992, as certified to by the Australian Embassy here
in Manila, petitioner argues that the said acts did not automatically restore the
status of private respondent as a Filipino citizen. According to petitioner, for the
private respondent to reacquire Philippine citizenship she must comply with the
mandatory requirements for repatriation under Republic Act 8171; and the
election of private respondent to public office did not mean the restoration of her
Filipino citizenship since the private respondent was not legally
repatriated. Coupled with her alleged renunciation of Australian citizenship,
private respondent has effectively become a stateless person and as such, is
disqualified to run for a public office in the Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in
applying the principle of res judicata to the case under consideration; citing the
ruling inMoy Ya Lim Yao vs. Commissioner of Immigration,
[3]
that:
xxx 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 as res
adjudicata, hence it has to be threshed out again and again as the occasion may
demand. xxx
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle of jus
sanguinis. Thereunder, a child follows the nationality or citizenship of the
parents regardless of the place of his/her birth, as opposed to the doctrine of jus
soli which determines nationality or citizenship on the basis of place of birth.
Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in
Napier Terrace, Broome, Western Australia, to the spouses, Telesforo Ybasco,
a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez,
an Australian. Historically, this was a year before the 1935 Constitution took
into effect and at that time, what served as the Constitution of the Philippines
were the principal organic acts by which the United States governed the
country. These were the Philippine Bill of July 1, 1902 and the Philippine
Autonomy Act of August 29, 1916, also known as the Jones Law.
Among others, these laws defined who were deemed to be citizens of the
Philippine islands. The Philippine Bill of 1902 defined Philippine citizens as:
SEC. 4 xxx all inhabitants of the Philippine Islands continuing to reside therein who
were Spanish subjects on the eleventh day of April, eighteen hundred and ninety-nine,
and then resided in the Philippine Islands, and their children born subsequent thereto,
shall be deemed and held to be citizens of the Philippine Islands and as such entitled to
the protection of the United States, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of
peace between the United States and Spain signed at Paris December tenth, eighteen
hundred and ninety-eight. (underscoring ours)
The Jones Law, on the other hand, provides:
SEC. 2 That all inhabitants of the Philippine Islands who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in said
Islands, and their children born subsequent thereto, shall be deemed and held to be
citizens of the Philippine Islands, except such as shall have elected to preserve their
allegiance to the Crown of Spain in accordance with the provisions of the treaty of
peace between the United States and Spain, signed at Paris December tenth, eighteen
hundred and ninety-eight, and except such others as have since become citizens of
some other country: Provided, That the Philippine Legislature, herein provided for, is
hereby authorized to provide by law for the acquisition of Philippine citizenship by those
natives of the Philippine Islands who cannot come within the foregoing provisions, the
natives of the insular possessions of the United States, and such other persons residing
in the Philippine Islands who are citizens of the United States, or who could become
citizens of the United States under the laws of the United States if residing therein.
(underscoring ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish
subjects on April 11, 1899 and resided therein including their children are
deemed to be Philippine citizens. Private respondents father, Telesforo
Ybasco, was born on January 5, 1879 in Daet, Camarines Norte, a fact duly
evidenced by a certified true copy of an entry in the Registry of Births. Thus,
under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was
deemed to be a Philippine citizen. By virtue of the same laws, which were the
laws in force at the time of her birth, Telesforos daughter, herein private
respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the
principle of jus sanguinis as basis for the acquisition of Philippine citizenship, to
wit:
(1) Those who are citizens of the Philippine Islands at the time of the adoption
of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the
adoption of this Constitution had been elected to public office in the
Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the
age of majority, elect Philippine citizenship.
(5) Those who are naturalized in accordance with law.
So also, the principle of jus sanguinis, which confers citizenship by virtue of
blood relationship, was subsequently retained under the 1973
[4]
and
1987
[5]
Constitutions. Thus, the herein private respondent, Rosalind Ybasco
Lopez, is a Filipino citizen, having been born to a Filipino father. The fact of her
being born in Australia is not tantamount to her losing her Philippine
citizenship. If Australia follows the principle of jus soli, then at most, private
respondent can also claim Australian citizenship resulting to her possession of
dual citizenship.
Petitioner also contends that even on the assumption that the private
respondent is a Filipino citizen, she has nonetheless renounced her Philippine
citizenship. To buttress this contention, petitioner cited private respondents
application for an Alien Certificate of Registration (ACR) and Immigrant
Certificate of Residence (ICR), on September 19, 1988, and the issuance to her
of an Australian passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his
citizenship:
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;
(3) By subscribing to an oath of allegiance to support the constitution or laws of
a foreign country upon attaining twenty-one years of age or more;
(4) By accepting commission in the military, naval or air service of a
foreign country;
(5) By cancellation of the certificate of naturalization;
(6) By having been declared by competent authority, a deserter of the Philippine
armed forces in time of war, unless subsequently, a plenary pardon or
amnesty has been granted: and
(7) In case of a woman, upon her marriage, to a foreigner if, by virtue of the
laws in force in her husbands country, she acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation
must be express. Petitioners contention that the application of private
respondent for an alien certificate of registration, and her Australian passport, is
bereft of merit. This issue was put to rest in the case of Aznar vs.
COMELEC
[6]
and in the more recent case of Mercado vs. Manzano and
COMELEC.
[7]

In the case of Aznar, the Court ruled that the mere fact that respondent
Osmena was a holder of a certificate stating that he is an American did not
mean that he is no longer a Filipino, and that an application for an alien
certificate of registration was not tantamount to renunciation of his Philippine
citizenship.
And, in Mercado vs. Manzano and COMELEC, it was held that the fact that
respondent Manzano was registered as an American citizen in the Bureau of
Immigration and Deportation and was holding an American passport on April
22, 1997, only a year before he filed a certificate of candidacy for vice-mayor of
Makati, were just assertions of his American nationality before the termination
of his American citizenship.
Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a
holder of an Australian passport and had an alien certificate of registration are
not acts constituting an effective renunciation of citizenship and do not militate
against her claim of Filipino citizenship. For renunciation to effectively result in
the loss of citizenship, the same must be express.
[8]
As held by this court in the
aforecited case of Aznar, an application for an alien certificate of registration
does not amount to an express renunciation or repudiation of ones
citizenship. The application of the herein private respondent for an alien
certificate of registration, and her holding of an Australian passport, as in the
case of Mercado vs. Manzano, were mere acts of assertion of her Australian
citizenship before she effectively renounced the same. Thus, at the most,
private respondent had dual citizenship - she was an Australian and a Filipino,
as well.
Moreover, under Commonwealth Act 63, the fact that a child of Filipino
parent/s was born in another country has not been included as a ground for
losing ones Philippine citizenship. Since private respondent did not lose or
renounce her Philippine citizenship, petitioners claim that respondent must go
through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private
respondent had dual citizenship, still, she is disqualified to run for governor of
Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the
Local Government Code of 1991, which states:
SEC. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
xxx....................................xxx....................................xxx
(d) Those with dual citizenship;
xxx....................................xxx....................................xxx
Again, petitioners contention is untenable.
In the aforecited case of Mercado vs. Manzano, the Court clarified dual
citizenship as used in the Local Government Code and reconciled the same
with Article IV, Section 5 of the 1987 Constitution on dual
allegiance.
[9]
Recognizing situations in which a Filipino citizen may, without
performing any act, and as an involuntary consequence of the conflicting laws
of different countries, be also a citizen of another state, the Court explained that
dual citizenship as a disqualification must refer to citizens with dual
allegiance. The Court succinctly pronounced:
xxx the phrase dual citizenship in R.A. No. 7160, xxx 40 (d) and in R.A. No. 7854,
xxx 20 must be understood as referring to dual allegiance. Consequently, persons with
mere dual citizenship do not fall under this disqualification.
Thus, the fact that the private respondent had dual citizenship did not
automatically disqualify her from running for a public office. Furthermore, it was
ruled that for candidates with dual citizenship, it is enough that they elect
Philippine citizenship upon the filing of their certificate of candidacy, to
terminate their status as persons with dual citizenship.
[10]
The filing of a
certificate of candidacy sufficed to renounce foreign citizenship, effectively
removing any disqualification as a dual citizen.
[11]
This is so because in the
certificate of candidacy, one declares that he/she is a Filipino citizen and that
he/she will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto. Such declaration, which is under
oath, operates as an effective renunciation of foreign citizenship. Therefore,
when the herein private respondent filed her certificate of candidacy in 1992,
such fact alone terminated her Australian citizenship.
Then, too, it is significant to note that on January 15 1992, private
respondent executed a Declaration of Renunciation of Australian Citizenship,
duly registered in the Department of Immigration and Ethnic Affairs of Australia
on May 12, 1992. And, as a result, on February 11, 1992, the Australian
passport of private respondent was cancelled, as certified to by Second
Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly
appreciated by the COMELEC, the aforesaid acts were enough to settle the
issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her
renunciation was effective, petitioners claim that private respondent must go
through the whole process of repatriation holds no water.
Petitioner maintains further that when citizenship is raised as an issue in
judicial or administrative proceedings, the resolution or decision thereon is
generally not considered res judicata in any subsequent proceeding challenging
the same; citing the case of Moy Ya Lim Yao vs. Commissioner of
Immigration.
[12]
He insists that the same issue of citizenship may be threshed
out anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the
principle of res judicata generally does not apply in cases hinging on the issue
of citizenship. However, in the case of Burca vs. Republic,
[13]
an exception to
this general rule was recognized. The Court ruled in that case that in order that
the doctrine of res judicata may be applied in cases of citizenship, the following
must be present:
1) a persons citizenship be raised as a material issue in a controversy where
said person is a party;
2) the Solicitor General or his authorized representative took active part in the
resolution thereof, and
3) the finding on citizenship is affirmed by this Court.
Although the general rule was set forth in the case of Moy Ya Lim Yao, the
case did not foreclose the weight of prior rulings on citizenship. It elucidated
that reliance may somehow be placed on these antecedent official findings,
though not really binding, to make the effort easier or simpler.
[14]
Indeed, there
appears sufficient basis to rely on the prior rulings of the Commission on
Elections in SPA. No. 95-066 and EPC 92-54 which resolved the issue of
citizenship in favor of the herein private respondent. The evidence adduced by
petitioner is substantially the same evidence presented in these two prior
cases. Petitioner failed to show any new evidence or supervening event to
warrant a reversal of such prior resolutions. However, the procedural issue
notwithstanding, considered on the merits, the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and the COMELEC
Resolutions, dated July 17, 1998 and January 15, 1999, respectively, in SPA
No. 98-336 AFFIRMED.
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to
run for governor of Davao Oriental. No pronouncement as to costs.
SO ORDERED.
Davide, Jr., C.J., (Chairman), Melo, Puno, Vitug, Kapunan, Mendoza,
Panganiban, Quisumbing, Pardo, Buena, Gonzaga-Reyes, Ynares-
Santiago, and De Leon, Jr., JJ., concur.


[G.R. No. 125955. June 19, 1997]
WILMER GREGO, petitioner, vs. COMMISSION ON ELECTIONS and HUMBERTO
BASCO, respondents.
D E C I S I O N
ROMERO, J .:
The instant special civil action for certiorari and prohibition impugns the resolution of
the Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31,
1996, dismissing petitioners motion for reconsideration of an earlier resolution rendered
by the COMELECs First Division on October 6, 1995, which also dismissed the petition
for disqualification
[1]
filed by petitioner Wilmer Grego against private respondent
Humberto Basco.
The essential and undisputed factual antecedents of the case are as follows:
On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no
less than this Court upon a finding of serious misconduct in an administrative complaint
lodged by a certain Nena Tordesillas. The Court held:
WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO
BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN
OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE
SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH
PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR
LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES,
OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
x x x x x
x x x x
[2]

Subsequently, Basco ran as a candidate for Councilor in the Second District of the
City of Manila during the January 18, 1988, local elections. He won and, accordingly,
assumed office.
After his term, Basco sought re-election in the May 11, 1992 synchronized national
elections. Again, he succeeded in his bid and he was elected as one of the six (6) City
Councilors. However, his victory this time did not remain unchallenged. In the midst of
his successful re-election, he found himself besieged by lawsuits of his opponents in the
polls who wanted to dislodge him from his position.
One such case was a petition for quo warranto
[3]
filed before the COMELEC by
Cenon Ronquillo, another candidate for councilor in the same district, who alleged
Bascos ineligibility to be elected councilor on the basis of the Tordesillas ruling. At
about the same time, two more cases were also commenced by Honorio Lopez II in the
Office of the Ombudsman and in the Department of Interior and Local Government.
[4]
All
these challenges were, however, dismissed, thus, paving the way for Bascos continued
stay in office.
Despite the odds previously encountered, Basco remained undaunted and ran
again for councilor in the May 8, 1995, local elections seeking a third and final
term. Once again, he beat the odds by emerging sixth in a battle for six councilor
seats. As in the past, however, his right to office was again contested. On May 13,
1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II,
City of Manila, filed with the COMELEC a petition for disqualification, praying for
Bascos disqualification, for the suspension of his proclamation, and for the declaration
of Romualdo S. Maranan as the sixth duly elected Councilor of Manilas Second District.
On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was
duly furnished with a copy of the petition. The other members of the BOC learned about
this petition only two days later.
The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered
the parties to submit simultaneously their respective memoranda.
Before the parties could comply with this directive, however, the Manila City BOC
proclaimed Basco on May 17, 1995, as a duly elected councilor for the Second District
of Manila, placing sixth among several candidates who vied for the seats.
[5]
Basco
immediately took his oath of office before the Honorable Ma. Ruby Bithao-Camarista,
Presiding Judge, Metropolitan Trial Court, Branch I, Manila.
In view of such proclamation, petitioner lost no time in filing an Urgent Motion
seeking to annul what he considered to be an illegal and hasty proclamation made on
May 17, 1995, by the Manila City BOC. He reiterated Bascos disqualification and
prayed anew that candidate Romualdo S. Maranan be declared the winner. As
expected, Basco countered said motion by filing his Urgent Opposition to: Urgent
Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant
Petition for Disqualification with Temporary Restraining Order).
On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to
the reservation he made earlier, summarizing his contentions and praying as follows:
Respondent thus now submits that the petitioner is not entitled to relief for the following
reasons:
1. The respondent cannot be disqualified on the ground of Section 40 paragraph b
of the Local Government Code because the Tordesillas decision is barred by laches,
prescription, res judicata, lis pendens, bar by prior judgment, law of the case and stare
decisis;
2. Section 4[0] par. B of the Local Government Code may not be validly applied to
persons who were dismissed prior to its effectivity. To do so would make it ex post
facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also a
class legislation and unconstitutional on the account.
3. Respondent had already been proclaimed. And the petition being a
preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be
dismissed by virtue of said pronouncement.
4. Respondents three-time election as candidate for councilor constitutes implied
pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice
v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v. Bashaw 130
P. 2nd 237, etc.).
5. As petition to nullify certificate of candidacy, the instant case has prescribed; it
was premature as an election protest and it was not brought by a proper party in interest
as such protest.:
PRAYER
WHEREFORE it is respectfully prayed that the instant case be dismissed on instant
motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office is
not minded to dismiss, it is respectfully prayed that instant motion be considered as
respondents answer. All other reliefs and remedies just and proper in the premises are
likewise hereby prayed for.
After the parties respective memoranda had been filed, the COMELECs First
Division resolved to dismiss the petition for disqualification on October 6, 1995, ruling
that the administrative penalty imposed by the Supreme Court on respondent Basco on
October 31, 1981 was wiped away and condoned by the electorate which elected him
and that on account of Bascos proclamation on May 17, 1965, as the sixth duly elected
councilor of the Second District of Manila, the petition would no longer be viable.
[6]

Petitioners motion for reconsideration of said resolution was later denied by the
COMELEC en banc in its assailed resolution promulgated on July 31, 1996.
[7]
Hence,
this petition.
Petitioner argues that Basco should be disqualified from running for any elective
position since he had been removed from office as a result of an administrative case
pursuant to Section 40 (b) of Republic Act No. 7160, otherwise known as the Local
Government Code (the Code), which took effect on January 1, 1992.
[8]

Petitioner wants the Court to likewise resolve the following issues, namely:
1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively
to those removed from office before it took effect on January 1, 1992;
2. Whether or not private respondents election in 1988, 1992 and in 1995 as
City Councilor of Manila wiped away and condoned the administrative penalty
against him;
3. Whether or not private respondents proclamation as sixth winning candidate
on May 17, 1995, while the disqualification case was still pending consideration by
COMELEC, is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among the
candidates for City Councilor of Manila, may be declared a winner pursuant to
Section 6 of Republic Act No. 6646.
While we do not necessarily agree with the conclusions and reasons of the
COMELEC in the assailed resolution, nonetheless, we find no grave abuse of discretion
on its part in dismissing the petition for disqualification. The instant petition must,
therefore, fail.
We shall discuss the issues raised by petitioner in seriatim.
I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those
removed from office before it took effect on January 1, 1992?
Section 40 (b) of the Local Government Code under which petitioner anchors
Bascos alleged disqualification to run as City Councilor states:
SEC. 40. Disqualifications. - The following persons are disqualified from running for
any elective local position:
x x x x x
x x x x
(b) Those removed from office as a result of an administrative case;
x x x x x
x x x x.
In this regard, petitioner submits that although the Code took effect only on January
1, 1992, Section 40 (b) must nonetheless be given retroactive effect and applied to
Bascos dismissal from office which took place in 1981. It is stressed that the provision
of the law as worded does not mention or even qualify the date of removal from office of
the candidate in order for disqualification thereunder to attach. Hence, petitioner
impresses upon the Court that as long as a candidate was once removed from office
due to an administrative case, regardless of whether it took place during or prior to the
effectivity of the Code, the disqualification applies.
[9]
To him, this interpretation is made
more evident by the manner in which the provisions of Section 40 are couched. Since
the past tense is used in enumerating the grounds for disqualification, petitioner strongly
contends that the provision must have also referred to removal from office occurring
prior to the effectivity of the Code.
[10]

We do not, however, subscribe to petitioners view. Our refusal to give retroactive
application to the provision of Section 40 (b) is already a settled issue and there exist no
compelling reasons for us to depart therefrom. Thus, in Aguinaldo vs.
COMELEC,
[11]
reiterated in the more recent cases of Reyes vs.
COMELEC
[12]
and Salalima vs. Guingona, Jr.,
[13]
we ruled, thus:
The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act
7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local
positions:
x x x x x
x x x x
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992.
The rule is:
x x x x x
x x x x
x x x Well-settled is the principle that while the Legislature has the power to pass
retroactive laws which do not impair the obligation of contracts, or affect injuriously
vested rights, it is equally true that statutes are not to be construed as intended to have
a retroactive effect so as to affect pending proceedings, unless such intent is expressly
declared or clearly and necessarily implied from the language of the enactment. x x x
(Jones vs. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. vs. Whyel 28 (2d) 30;
Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo vs. Court of Appeals, 128 SCRA
519 [1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic
Investment Bank of the Philippines v. Civil Service Commission, et al., G.R. No.
100599, April 8, 1992).
There is no provision in the statute which would clearly indicate that the same operates
retroactively.
It, therefore, follows that [Section] 40 (b) of the Local Government Code is not
applicable to the present case. (Underscoring supplied).
That the provision of the Code in question does not qualify the date of a candidates
removal from office and that it is couched in the past tense should not deter us from the
applying the law prospectively. The basic tenet in legal hermeneutics that laws operate
only prospectively and not retroactively provides the qualification sought by
petitioner. A statute, despite the generality in its language, must not be so construed as
to overreach acts, events or matters which transpired before its passage. Lex prospicit,
non respicit. The law looks forward, not backward.
[14]

II. Did private respondents election to office as City Councilor of Manila in the
1988, 1992 and 1995 elections wipe away and condone the administrative penalty
against him, thus restoring his eligibility for public office?
Petitioner maintains the negative. He quotes the earlier ruling of the Court
in Frivaldo v. COMELEC
[15]
to the effect that a candidates disqualification cannot be
erased by the electorate alone through the instrumentality of the ballot. Thus:
x x x (T)he qualifications prescribed for elective office cannot be erased by the
electorate alone. The will of the people as expressed through the ballot cannot cure the
vice of ineligibility, especially if they mistakenly believed, as in this
case, that the candidate was qualified. x x x
At first glance, there seems to be a prima facie semblance of merit to petitioners
argument. However, the issue of whether or not Bascos triple election to office cured
his alleged ineligibility is actually beside the point because the argument proceeds on
the assumption that he was in the first place disqualified when he ran in the three
previous elections. This assumption, of course, is untenable considering that Basco
was NOT subject to any disqualification at all under Section 40 (b) of the Local
Government Code which, as we said earlier, applies only to those removed from office
on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner,
there is no more reason for the Court to still dwell on the matter at length.
Anent Bascos alleged circumvention of the prohibition in Tordesillas against
reinstatement to any position in the national or local government, including its agencies
and instrumentalities, as well as government-owned or controlled corporations, we are
of the view that petitioners contention is baseless. Neither does petitioners argument
that the term any position is broad enough to cover without distinction both appointive
and local positions merit any consideration.
Contrary to petitioners assertion, the Tordesillas decision did not bar Basco from
running for any elective position. As can be gleaned from the decretal portion of the
said decision, the Court couched the prohibition in this wise:
x x x AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE
NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.
In this regard, particular attention is directed to the use of the term
reinstatement. Under the former Civil Service Decree,
[16]
the law applicable at the time
Basco, a public officer, was administratively dismissed from office, the term
reinstatement had a technical meaning, referring only to an appointive position. Thus:
ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.
SEC. 24. Personnel Actions. -
x x x x x
x x x x
(d) Reinstatement. - Any person who has been permanently APPOINTED to a
position in the career service and who has, through no delinquency or misconduct, been
separated therefrom, may be reinstated to a position in the same level for which he is
qualified.
x x x x x
x x x x.
(Emphasis and underscoring supplied).
The Rules on Personnel Actions and Policies issued by the Civil Service Commission
on November 10, 1975,
[17]
provides a clearer definition. It reads:
RULE VI. OTHER PERSONNEL ACTIONS.
SEC. 7. Reinstatement is the REAPPOINMENT of a person who was previously
separated from the service through no delinquency or misconduct on his part from a
position in the career service to which he was permanently appointed, to a position for
which he is qualified. (Emphasis and underscoring supplied).
In light of these definitions, there is, therefore, no basis for holding that Basco is
likewise barred from running for an elective position inasmuch as what is contemplated
by the prohibition in Tordesillas is reinstatement to an appointive position.
III. Is private respondents proclamation as sixth winning candidate on May 17,
1995, while the disqualification case was still pending consideration by COMELEC,
void ab initio?
To support its position, petitioner argues that Basco violated the provisions of
Section 20, paragraph (i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646,
as well as our ruling in the cases of Duremdes v. COMELEC,
[18]
Benito v.
COMELEC
[19]
and Aguam v. COMELEC.
[20]

We are not convinced. The provisions and cases cited are all misplaced and
quoted out of context. For the sake of clarity, let us tackle each one by one.
Section 20, paragraph (i) of Rep. Act 7166 reads:
SEC. 20. Procedure in Disposition of Contested Election Returns.-
x x x x x
x x x x
(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought to it
on appeal by the losing party. Any proclamation made in violation hereof shall be
void ab initio, unless the contested returns will not adversely affect the results of the
election.
x x x x x
x x x x.
The inapplicability of the abovementioned provision to the present case is very
much patent on its face considering that the same refers only to a void proclamation in
relation to contested returns and NOT to contested qualifications of a candidate.
Next, petitioner cites Section 6 of Rep. Act 6646 which states:
SEC. 6. Effect of Disqualification Case. - Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason, a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the winning number of
votes in such election, the Court or Commission shall continue with the trial and hearing
of the action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong. (Underscoring
supplied).
This provision, however, does not support petitioners contention that the
COMELEC, or more properly speaking, the Manila City BOC, should have suspended
the proclamation. The use of the word may indicates that the suspension of a
proclamation is merely directory and permissive in nature and operates to confer
discretion.
[21]
What is merely made mandatory, according to the provision itself, is the
continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this
discretion granted to the COMELEC, the question of whether or not evidence of guilt is
so strong as to warrant suspension of proclamation must be left for its own
determination and the Court cannot interfere therewith and substitute its own judgment
unless such discretion has been exercised whimsically and capriciously.
[22]
The
COMELEC, as an administrative agency and a specialized constitutional body charged
with the enforcement and administration of all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum, and recall,
[23]
has more than
enough expertise in its field that its findings or conclusions are generally respected and
even given finality.
[24]
The COMELEC has not found any ground to suspend the
proclamation and the records likewise fail to show any so as to warrant a different
conclusion from this Court. Hence, there is no ample justification to hold that the
COMELEC gravely abused its discretion.
It is to be noted that Section 5, Rule 25 of the COMELEC Rules of
Procedure
[25]
states that:
SEC. 5. Effect of petition if unresolved before completion of canvass. - x x x (H)is
proclamation shall be suspended notwithstanding the fact that he received the winning
number of votes in such election.
However, being merely an implementing rule, the same must not override, but
instead remain consistent with and in harmony with the law it seeks to apply and
implement. Administrative rules and regulations are intended to carry out, neither to
supplant nor to modify, the law.
[26]
Thus, in Miners Association of the Philippines, Inc. v.
Factoran, Jr.,
[27]
the Court ruled that:
We reiterate the principle that the power of administrative officials to promulgate rules
and regulations in the implementation of a statute is necessarily limited only to carrying
into effect what is provided in the legislative enactment. The principle was enunciated
as early as 1908 in the case of United States v. Barrias. The scope of the exercise of
such rule-making power was clearly expressed in the case of United States v. Tupasi
Molina, decided in 1914, thus: Of course, the regulations adopted under legislative
authority by a particular department must be in harmony with the provisions of the law,
and for the sole purpose of carrying into effect its general provisions. By such
regulations, of course, the law itself can not be extended. So long, however, as the
regulations relate solely to carrying into effect the provision of the law, they are valid.
Recently, the case of People v. Maceren gave a brief delineation of the scope of said
power of administrative officials:
Administrative regulations adopted under legislative authority by a particular department
must be in harmony with the provisions of the law, and should be for the sole purpose of
carrying into effect its general provisions. By such regulations, of course, the law itself
cannot be extended (U.S. v. Tupasi Molina, supra). An administrative agency cannot
amend an act of Congress (Santos v. Estenzo, 109 Phil. 419, 422; Teoxon vs. Members
of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA 585; Manuel vs.
General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao vs.
Casteel, L-21906, August 29, 1969, 29 SCRA 350).
The rule-making power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory requirements or to embrace matters
not covered by the statute. Rules that subvert the statute cannot be sanctioned
(University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12 C.J.
845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil.
319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-
27299, June 27, 1973, 51 SCRA 340, 349).
x x x x x
x x x x
x x x The rule or regulations should be within the scope of the statutory authority
granted by the legislature to the administrative agency (Davis, Administrative Law, p.
194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil.
555, 558).
In case of discrepancy between the basic law and a rule or regulation issued to
implement said law, the basic law prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the
COMELEC Rules of Procedure seeks to implement, employed the word may, it is,
therefore, improper and highly irregular for the COMELEC to have used instead the
word shall in its rules.
Moreover, there is no reason why the Manila City BOC should not have proclaimed
Basco as the sixth winning City Councilor. Absent any determination of irregularity in
the election returns, as well as an order enjoining the canvassing and proclamation of
the winner, it is a mandatory and ministerial duty of the Board of Canvassers concerned
to count the votes based on such returns and declare the result. This has been the rule
as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna
[28]
where
we clarified the nature of the functions of the Board of Canvassers, viz.:
The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting. All other questions are to be tried before the court or other
tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p. 1110)
To the same effect is the following quotation:
x x x Where there is no question as to the genuineness of the returns or that all the
returns are before them, the powers and duties of canvassers are limited to the
mechanical or mathematical function of ascertaining and declaring the apparent result
of the election by adding or compiling the votes cast for each candidate as shown on
the face of the returns before them, and then declaring or certifying the result so
ascertained. (20 C.J., 200-201) [Underscoring supplied]
Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are
all irrelevant and inapplicable to the factual circumstances at bar and serve no other
purpose than to muddle the real issue. These three cases do not in any manner refer to
void proclamations resulting from the mere pendency of a disqualification case.
In Duremdes, the proclamation was deemed void ab initio because the same was
made contrary to the provisions of the Omnibus Election Code regarding the
suspension of proclamation in cases of contested election returns.
In Benito, the proclamation of petitioner Benito was rendered ineffective due to the
Board of Canvassers violation of its ministerial duty to proclaim the candidate receiving
the highest number of votes and pave the way to succession in office. In said case, the
candidate receiving the highest number of votes for the mayoralty position died but the
Board of Canvassers, instead of proclaiming the deceased candidate winner, declared
Benito, a mere second-placer, the mayor.
Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it
was based only on advanced copies of election returns which, under the law then
prevailing, could not have been a proper and legal basis for proclamation.
With no precedent clearly in point, petitioners arguments must, therefore, be
rejected.
IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning
candidate?
Obviously, he may not be declared a winner. In the first place, Basco was a duly
qualified candidate pursuant to our disquisition above. Furthermore, he clearly received
the winning number of votes which put him in sixth place. Thus, petitioners emphatic
reference to Labo v. COMELEC,
[29]
where we laid down a possible exception to the rule
that a second placer may be declared the winning candidate, finds no application in this
case. The exception is predicated on the concurrence of two assumptions, namely: (1)
the one who obtained the highest number of votes is disqualified; and (2) the electorate
is fully aware in fact and in law of a candidates disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast their votes in favor
of the ineligible candidate. Both assumptions, however, are absent in this
case. Petitioners allegation that Basco was well-known to have been disqualified in the
small community where he ran as a candidate is purely speculative and conjectural,
unsupported as it is by any convincing facts of record to show notoriety of his alleged
disqualification.
[30]

In sum, we see the dismissal of the petition for disqualification as not having been
attended by grave abuse of discretion. There is then no more legal impediment for
private respondents continuance in office as City Councilor for the Second District of
Manila.
WHEREFORE, the instant petition for certiorari and prohibition is hereby
DISMISSED for lack of merit. The assailed resolution of respondent Commission on
Elections (COMELEC) is SPA 95-212 dated July 31, 1996 is hereby AFFIRMED. Costs
against petitioner.
SO ORDERED.
Narvasa, CJ., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima,
Jr., Panganiban, and Torres, Jr., J., concur.

[G.R. No. 120905. March 7, 1996]
RENATO U. REYES, petitioner, vs. COMMISSION ON ELECTIONS, and ROGELIO
DE CASTRO, respondents.
[G.R. No. 120940. March 7, 1996]
JULIUS O. GARCIA, petitioner, vs. COMMISSION ON ELECTIONS, and RENATO U.
REYES, respondents.
D E C I S I O N
MENDOZA, J .:
For resolution are special civil actions of certiorari. The petition in G.R. No.
120905 seeks to annul the resolution dated May 9, 1995 of the Second Division of the
Commission on Elections, declaring petitioner Renato U. Reyes disqualified from
running for local office and cancelling his certificate of candidacy, and the resolution
dated July 3, 1995 of the Commission en banc, denying petitioners motion for
reconsideration. On the other hand, the petition in G.R. No. 120940, filed by Julius O.
Garcia, has for its purpose the annulment of the aforesaid resolution of July 3, 1995 of
the Commission en banc insofar as it denies his motion to be proclaimed the elected
mayor of Bongabong, Oriental Mindoro, in view of the disqualification of Renato U.
Reyes.
On August 1, 1995, the Court issued a temporary restraining order directing the
Commission on Elections en banc to cease and desist from implementing its resolution
of July 3, 1995. It also ordered the two cases to be consolidated, inasmuch as they
involved the same resolutions of the COMELEC.
The facts are as follows:
Petitioner Renato U. Reyes was the incumbent mayor of
the municipality of Bongabong, Oriental Mindoro, having been elected to that office
on May 11, 1992. OnOctober 26, 1994, an administrative complaint was filed against
him with the Sangguniang Panlalawigan by Dr. Ernesto Manalo. It was alleged, among
other things, that petitioner exacted and collected P50,000.00 from each market stall
holder in the Bongabong Public Market; that certain checks issued to him by the
National Reconciliation and Development Program of the Department of Interior and
Local government were never received by the Municipal Treasurer nor reflected in the
books of accounts of the same officer; and that he took twenty-seven (27) heads of
cattle from beneficiaries of a cattle dispersal program after the latter had reared and
fattened the cattle for seven months.
In its decision, dated February 6, 1995, the Sangguniang Panlalawigan found
petitioner guilty of the charges and ordered his removal from office.
It appears that earlier, after learning that the Sanggunian had terminated the
proceedings in the case and was about to render judgment, petitioner filed a petition for
certiorari, prohibition and injunction with the Regional Trial Court of Oriental Mindoro,
Branch 42, alleging that the proceedings had been terminated without giving him a
chance to be heard. A temporary restraining order was issued by the court on February
7, 1995, enjoining the Sangguniang Panlalawigan from proceeding with the case. As a
result, the decision of the Sangguniang Panlalawigan could not served upon
Reyes. But on March 3, 1995, following the expiration of the temporary restraining
order and without any injunction being issued by the Regional Trial Court, an attempt
was made to serve the decision upon petitioners counsel in Manila. However, the latter
refused to accept the decision. Subsequent attempts to serve the decision upon
petitioner himself also failed, as he also refused to accept the decision.
On March 23, 1995, the Presiding Officer of the Sangguniang Panlalawigan, Vice
Governor Pedrito A. Reyes, issued an order for petitioner to vacate the position of
mayor and peacefully turn over the office to the incumbent vice mayor. But service of
the order upon petitioner was also refused.
Meanwhile, on March 20, 1995, petitioner filed a certificate of candidacy with the
Office of the Election Officer of the COMELEC in Bongabong.
On March 24, 1995, private respondent Rogelio de Castro, as registered voter
of Bongabong, sought the disqualification of petitioner as candidate for mayor, citing the
Local Government Code of 1991 (R.A. No. 7160) which states:
40. Disqualification. - The following persons are disqualified from running for any
elective local position:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case.
Nonetheless, because of the absence of any contrary order from the COMELEC,
petitioner Reyes was voted for in the elections held on May 8, 1995.
On May 9, 1995, the COMELECs Second Division issued the questioned
resolution, the dispositive portion of which reads as follows:
WHEREFORE, respondent having been removed from office by virtue of Administrative
Case 006-94, he is hereby DISQUALIFIED from running for public office, in conformity
with Section 40, paragraph (b) of the 1991 Local Government Code. The respondents
Certificate of Candidacy is CANCELLED in conformity with this resolution. The Election
Officer ofBongabong, Oriental Mindoro is ordered to amend the official list of candidates
in Bongabong to reflect the respondents disqualification and to IMMEDIATELY circulate
the amendment to the different Boards of Election Inspectors in Bongabong upon the
receipt of this decision.
On May 10, 1995, the Municipal Board of Canvassers of Bongabong, apparently
unaware of the disqualification of Reyes by the COMELEC, proclaimed him the duly-
elected mayor.
On July 3, 1995, petitioner filed a motion for reconsideration of the resolution of
the COMELECs Second Division, but his motion was denied. The COMELEC en banc
declared him to have been validly disqualified as candidate and, consequently, set
aside his proclamation as municipal mayor of Bongabong. Hence the petition in G.R.
No. 120905, which was filed on July 20, 1995, alleging grave abuse of discretion by the
COMELEC on the ground that the decision in the administrative case against petitioner
Reyes was not yet final and executory and therefore could not be used as basis for his
disqualification. It is contended that the charges against him were rendered moot and
academic by the expiration of the term during which the acts complained of had
allegedly been committed. Invoking the ruling in the case of Aguinaldov.
Santos,
[1]
petitioner argues that his election on May 8, 1995 is a bar to his
disqualification.
On the other hand, it appears that petitioner Julius M. Garcia, who obtained the
second highest number of votes next to petitioner Reyes in the same elections of May
8, 1995, intervened in the COMELEC on June 13, 1995 (after the main decision
disqualifying Renato Reyes was promulgated), contending that because Reyes was
disqualified, he (Garcia) was entitled to be proclaimed mayor of Bongabong,
Oriental Mindoro.
In its resolution of July 3, 1995, the COMELEC en banc denied Garcias prayer,
citing the ruling in Republic v. De la Rosa
[2]
that a candidate who obtains the second
highest number of votes in an election cannot be declared winner. Hence the petition
in G.R. No. 120940. Petitioner contends that (1) the COMELEC en banc should have
decided his petition at least 15 days before the May 8, 1995 elections as provided in
78 of the Omnibus Elections Code, and that because it failed to do so, many votes were
invalidated which could have been for him had the voters been told earlier who were
qualified to be candidates; (2) that the decision of the SangguniangPanlalawigan was
final and executory and resulted in the automatic disqualification of petitioner, and the
COMELEC did not need much time to decide the case for disqualification against Reyes
since the latter did not appeal the decision in the administrative case ordering his
removal; (3) that the COMELEC should have considered the votes cast for Reyes as
stray votes.
After deliberating on the petitions filed in these cases, the Court resolved to dismiss
them for lack of showing that the COMELEC committed grave abuse of discretion in
issuing the resolutions in question.
G.R. No. 120905
First. Petitioner Reyes claims that the decision of the Sangguniang Panlalawigan,
ordering him removed from office, is not yet final because he has not been served a
copy thereof.
It appears, however, that the failure of the Sangguniang Panlalawigan to deliver a
copy of its decision was due to the refusal of petitioner and his counsel to receive the
decision. As the secretary to the Sangguniang Panlalawigan, Mario Manzo, stated in
his certification, repeated attempts had been made to serve the decision on Reyes
personally and by registered mail, but Reyes refused to receive the
decision. Manzos certification states:
On March 3, 1995, Mr. Marcelino B. Macatangay went to Manila to furnish a copy of
the decision to the Counsel for Respondent, Atty. Rogelio V. Garcia, which said counsel
refused to accept.
On March 23, 1995, Mr. Mario I. C. Manzo, Secretary to
the Sangguniang Panlalawigan with Mr. Marcelino B. Macatangay again went to the
office of the Mayor ofBongabong to serve the decision. Mayor Renato U. Reyes,
himself present, refused to accept the ORDER enforcing the decision citing particularly
the pending case filed in the Sala of Judge Manuel A. Roman as the basis of his refusal.
On [sic] 4:40 p.m., of the same date, the Secretary to
the Sangguniang Panlalawigan, unable to serve the ORDER, mailed the same
(registered mail receipt No. 432) on the Bongabong Post Office to forward the ORDER
to the Office of Mayor Renato U. Reyes.
On March 28, 1995 said registered mail was returned to
the Sangguniang Panlalawigan with the following inscriptions on the back by the
Postmaster:
1) 1st attempt - addressee out of town -
9:15 a.m., 3-23-95
2) 2nd attempt - addressee cannot be
contacted, out of town, 8:50
a.m., 3-24-95
3) 3rd attempt - addressee not contacted -
out of town, 8:15 a.m.,
3-24-95
4) 4th attempt - addressee refused to accept
8:15 a.m., 3-27-95
On March 24, 1995, Mr. Marcelino B. Macatangay, again went to Bongabong to
serve the same ORDER enforcing the decision. Mayor Renato U. Reyes was not
present so the copy was left on the Mayors Office with comments from the employees
that they would not accept the same.
[3]

Rule 13, 3 and 7 of the Rules of Court provide for the service of final orders and
judgments either personally or by mail. Personal service is completed upon actual or
constructive delivery, which may be made by delivering a copy personally to the party or
his attorney, or by leaving it in his office with a person having charge thereof, or at his
residence, if his office is not known.
[4]
Hence service was completed when the decision
was served upon petitioners counsel in his office in Manila on March 3, 1995. In
addition, as the secretary of the Sangguniang Panlalawigan certified, service by
registered mail was also made on petitioner Reyes. Although the mail containing the
decision was not claimed by him, service was deemed completed five days after the last
notice to him on March 27, 1995.
[5]

If a judgment or decision is not delivered to a party for reasons attributable to him,
service is deemed completed and the judgment or decision will be considered validly
served as long as it can be shown that the attempt to deliver it to him would be valid
were it not for his or his counsels refusal to receive it.
Indeed that petitioners counsel knew that a decision in the administrative case had
been rendered is evident in his effort to bargain with the counsel for
theSangguniang Panlalawigan not to have the decision served upon him and his client
while their petition for certiorari in the Regional Trial Court was pending.
[6]
His refusal to
receive the decision may, therefore, be construed as a waiver on his part to have a copy
of the decision.
The purpose of the rules on service is to make sure that the party being served with
the pleading, order or judgment is duly informed of the same so that he can take steps
to protect his interests, i.e., enable a party to file an appeal or apply for other
appropriate reliefs before the decision becomes final.
In practice, service means the delivery or communication of a pleading, notice or
other papers in a case to the opposite party so as to charge him with receipt of it, and
subject him to its legal effect.
[7]

In the case at bar, petitioner was given sufficient notice of the decision. Prudence
required that, rather than resist the service, he should have received the decision and
taken an appeal to the Office of the President in accordance with R.A. No. 7160,
67.
[8]
But petitioner did not do so. Accordingly, the decision became final on April 2,
1995, 30 days after the first service upon petitioner.
The net result is that when the elections were held on May 8, 1995, the decision of
the Sangguniang Panlalawigan had already become final and executory. The filing of a
petition for certiorari with the Regional Trial Court did not prevent the administrative
decision from attaining finality. An original action of certiorari is an independent action
and does not interrupt the course of the principal action nor the running of
the reglementary period involved in the proceeding.
[9]

Consequently, to arrest the course of the principal action during the pendency of the
certiorari proceedings, there must be a restraining order or a writ of preliminary
injunction from the appellate court directed to the lower court.
[10]

In the case at bar, although a temporary restraining order was issued by the
Regional Trial Court, no preliminary injunction was subsequently issued. The temporary
restraining order issued expired after 20 days. From that moment on, there was no
more legal barrier to the service of the decision upon petitioner.
Petitioner claims that the decision cannot be served upon him because at the
hearing held on February 15, 1995 of the case which he filed in the RTC, the counsel of
the Sangguniang Panlalawigan, Atty. Nestor Atienza, agreed not to effect service of the
decision of the Sangguniang Panlalawigan pending final resolution of the petition for
certiorari.
The alleged agreement between the counsels of Reyes and
the Sangguniang Panlalawigan cannot bind the Sangguniang Panlalawigan. It was
illegal. And it would have been no less illegal for the Sangguniang Panlalawigan to
have carried it out because R.A. No. 7160, 66(a) makes it mandatory that [c]opies of
the decision [of theSangguniang Panlalawigan] shall immediately be furnished to
respondent and/or interested parties. It was the Sangguniang Panlalawigans duty to
serve it upon the parties without unnecessary delay. To have delayed the service of the
decision would have resulted in the Sangguniang Panlalawigans failure to perform a
legal duty. It, therefore, properly acted in having its decision served upon petitioner
Reyes.
Second. The next question is whether the reelection of petitioner rendered the
administrative charges against him moot and academic. Petitioner invokes the ruling
inAguinaldo v. COMELEC,
[11]
in which it was held that a public official could not be
removed for misconduct committed during a prior term and that his reelection operated
as a condonation of the 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.
[12]
Removal cannot extend beyond the term during which the alleged
misconduct was committed. If a public official is not removed before his term of office
expires, he can no longer be removed if he is thereafter reelected for another
term. This is the rationale for the ruling in the two Aguinaldo cases.
The case at bar is the very opposite of those cases. Here, although petitioner
Reyes brought an action to question the decision in the administrative case, the
temporary restraining order issued in the action he brought lapsed, with the result that
the decision was served on petitioner and it thereafter became final on April 3, 1995,
because petitioner failed to appeal to the Office of the President. He was thus validly
removed from office and, pursuant to 40 (b) of the Local Government Code, he was
disqualified from running for reelection.
It is noteworthy that at the time the Aguinaldo cases were decided there was no
provision similar to 40 (b) which disqualifies any person from running for any elective
position on the ground that he has been removed as a result of an administrative
case. The Local Government Code of 1991 (R.A. No. 7160) could not be given
retroactive effect. Said the Court in the first Aguinaldo case:
[13]

The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act
7160) which provides:
Sec. 40. The following persons are disqualified from running for any elective local
positions:
xxx xxx xxx
(b) Those removed from office as a result of an administrative case.
Republic Act 7160 took effect only on January 1, 1992 x x x. There is no provision in
the statute which would clearly indicate that the same operates retroactively.
It, therefore, follows that 40(b) of the Local Government Code is not applicable to
the present case.
Furthermore, the decision has not yet attained finality. As indicated earlier, the
decision of the then Secretary of Local Government was questioned by the petitioner in
this Court and that to date, the petition remains unresolved x x x.
At any rate, petitioners claim that he was not given time to present his evidence in
the administrative case has no basis, as the following portion of the decision of
theSangguniang Panlalawigan makes clear:
On November 28, 1994 the Sanggunian received from respondents counsel a
motion for extension of time to file a verified answer within 15 days from November 23,
1994. In the interest of justice another fifteen (15) day period was granted the
respondent.
On December 5, 1994 which is the last day for filing his answer, respondent instead
filed a motion to dismiss and set the same for hearing on December 22, 1994.
xxx xxx xxx
On January 4, 1995, the motion to dismiss was denied for lack of merit and the
order of denial was received by respondent on January 7, 1995. Considering the fact
that the last day within which to file his answer fell on December 5, 1994, respondent is
obliged to file the verified answer on January 7, 1995 when he received the order
denying his motion to dismiss.
In the hearing of the instant case on January 26, 1995, the counsel for the
complainant manifested that he be allowed to present his evidence for failure of the
respondent to file his answer albeit the lapse of 19 days from January 7, 1995.
The manifestation of complainants counsel was granted over the objection of the
respondent, and the Sanggunian in open session, in the presence of the counsel for the
respondent, issued an order dated January 26, 1995 quoted as follows:
As shown from the record of this case, Mayor Renato U. Reyes of Bongabong failed to
file his answer within the time prescribed by law, after the motion to dismiss was denied
by thisSanggunian. The Sanggunian declares that respondent Mayor Renato U. Reyes
failed to file his answer to the complaint filed against him within the reglementary period
of fifteen (15) days. Counsel for respondent requested for reconsideration twice, which
oral motions for reconsideration were denied for lack of merit.
Art. 126 (a) (1) provides that failure of respondent to file his verified answer within fifteen
(15) days from receipt of the complaint shall be considered a waiver of his rights to
present evidence in his behalf.
It is important to note that this case should be heard in accordance with what is
provided for in the constitution that all parties are entitled to speedy disposition of their
cases. It is pivotal to state that the Sanggunian Panlalawigan will lose its authority to
investigate this case come February 8, 1995 and therefore, in the interest of justice and
truth the Sanggunian must exercise that authority by pursuing the hearing of this case.
Accordingly, the counsel for complainant Dr. Ernesto L. Manalo, et al., will present his
evidence on February 2, 3, and 6, 1995, and the counsel for respondent will be given a
chance to cross-examine the witnesses that may be presented thereat.
xxx xxx xxx
On February 2, 1995, the respondent through counsel despite due notice in open
session, and by registered mail (registry receipt No. 1495) dated January 27, 1995,
failed to appear. No telegram was received by this body to the effect that he will appear
on any of the dates stated in the Order of January 26, 1995. Indeed, such inaction is a
waiver of the respondent to whatever rights he may have under our laws.
All in all, herein respondent Mayor Reyes was given by this Sanggunian a period of
sixty one (61) days to file his verified answer however, he resorted to dilatory motions
which in the end proved fatal to his cause. Veritably, he neither filed nor furnished the
complainant a copy of his answer. Failure of the respondent to file his verified answer
within fifteen (15) days from receipt of the complaint shall be considered a waiver of his
rights to present evidence in his behalf ((1). Art. 126 of Rules and Regulations
implementing the Local Government Code of 1991). All persons shall have the right to
a speedy disposition of their cases before all judicial, quasi-judicial, or administrative
bodies (Sec. 16, Art. III of the Contitution).
Indeed, it appears that petitioner was given sufficient opportunity to file his
answer. He failed to do so. Nonetheless, he was told that the complainant would be
presenting his evidence and that he (petitioner) would then have the opportunity to
cross-examine the witnesses. But on the date set, he failed to appear. He would say
later that this was because he had filed a motion for postponement and was awaiting a
ruling thereon. This only betrays the pattern of delay he employed to render the case
against him moot by his election.
G.R. No. 120940
We likewise find no grave abuse of discretion on the part of the COMELEC in
denying petitioner Julius O. Garcias petition to be proclaimed mayor in view of the
disqualification of Renato U. Reyes.
That the candidate who obtains the second highest number of votes may not be
proclaimed winner in case the winning candidate is disqualified is now settled.
[14]
The
doctrinal instability caused by see-sawing rulings
[15]
has since been removed. In the
latest ruling
[16]
on the question, this Court said:
To simplistically assume that the second placer would have received the other votes
would be to substitute our judgment for the mind of the voter. The second placer is just
that, a second placer. He lost the elections. He was repudiated by either a majority or
plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have
substantially changed. We are not prepared to extrapolate the results under the
circumstances.
Garcias plea that the votes cast for Reyes be invalidated is without merit. The
votes cast for Reyes are presumed to have been cast in the belief that Reyes was
qualified and for that reason can not be treated as stray, void, or meaningless.
[17]
The
subsequent finding that he is disqualified cannot retroact to the date of the elections so
as to invalidate the votes cast for him.
As for Garcias contention that the COMELEC committed a grave abuse of
discretion in not deciding the case before the date of the election, suffice it to say that
under R.A. No. 6646, 6, the COMELEC can continue proceedings for disqualification
against a candidate even after the election and order the suspension of his
proclamation whenever the evidence of his guilt is strong. For the same reason, we find
no merit in the argument that the COMELEC should have seen right away that Reyes
had not exhausted administrative remedies by appealing the decision of
the Sangguniang Panlalawigan and, therefore, should have disqualified him before the
elections.
WHEREFORE, the petition in G.R. NO. 120905 and G.R. No. 120940 are
DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Francisco, Hermosisima,
Jr., and Panganiban, JJ., concur.


G.R. No. 120099 July 24, 1996
EDUARDO T. RODRIGUEZ, petitioner,
vs.
COMMISSION ON ELECTIONS, BIENVENIDO O. MARQUEZ, JR., respondents.

FRANCISCO, J .:p
Petitioner Eduardo T. Rodriguez and private respondent Bienvenido O. Marquez
Jr. (Rodriguez and Marquez, for brevity) were protagonists for the gubernatorial
post of Quezon Province in the May 1992 elections. Rodriguez won and was
proclaimed duly-elected governor.
Marquez challenged Rodriguez' victory via petition for quo warranto before the
COMELEC (EPC No. 92-28). Marquez revealed that Rodriguez left the United
States where a charge, filed on November 12, 1985, is pending against the latter
before the Los Angeles Municipal Court for fraudulent insurance claims, grand
theft and attempted grand theft of personal property. Rodriguez is therefore
a "fugitive from justice" which is a ground for his disqualification/ineligibility under
Section 40(e) of the Local Government Code (R.A. 7160), so argued Marquez.
The COMELEC dismissed Marquez' quo warranto petition (EPC No. 92-28) in a
resolution of February 2, 1993, and likewise denied a reconsideration thereof.
Marquez challenged the COMELEC dismissal of EPC No. 92-28 before this
Court via petition for certiorari, docketed as G.R. No. 112889. The crux of said
petition is whether Rodriguez, is a "fugitive from justice" as contemplated by
Section 40 (e) of the Local Government Code based on the alleged pendency of
a criminal charge against him (as previously mentioned).
In resolving that Marquez petition (112889), the Court in "Marquez, Jr. vs.
COMELEC"' promulgated on April 18, 1995, now appearing in Volume 243, page
538 of the SCRA and hereinafter referred to as the MARQUEZ Decision,
declared that:
. . . , "fugitive from justice" includes not only those who flee after conviction
to avoid punishment but likewise those who, after being charged, flee to
avoid prosecution. This definition truly finds support from jurisprudence (. .
.), and it may be so conceded as expressing the general and ordinary
connotation of the term.
1

Whether or not Rodriguez is a "fugitive from justice" under the definition thus
given was not passed upon by the Court. That task was to devolve on the
COMELEC upon remand of the case to it, with the directive to proceed therewith
with dispatch conformably with the MARQUEZ Decision. Rodriguez sought a
reconsideration thereof. He also filed an "Urgent Motion to Admit Additional
Argument in Support of the Motion for Reconsideration" to which was attached a
certification from the Commission on Immigration showing that Rodriguez left the
US on June 25, 1985 roughly five (5) months prior to the institution of the
criminal complaint filed against him before the Los Angeles court. The Court
however denied a reconsideration of the MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and Marquez renewed their rivalry for the
same position of governor. This time, Marquez challenged Rodriguez' candidacy
via petition for disqualification before the COMELEC, based principally on the
same allegation that Rodriguez is a "fugitive from justice." This petition for
disqualification (SPA No. 95-089) was filed by Marquez on April 11, 1995 when
Rodriguez' petition for certiorari (112889) from where the April 18,
1995MARQUEZ 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 theMARQUEZ 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 his flight from justice."
Other rulings of the United States Supreme Court further amplify the view
that intent and purpose for departure is inconsequential to the inquiry. The
texts, which are persuasive in our jurisdiction, are more unequivocal in
their pronouncements. In King v. US (144 F. 2nd 729), citing Roberts
v. Reilly (116 US 80) the United States Supreme Court held:
. . . it is not necessary that the party should have left the
state or the judicial district where the crime is alleged to have
been committed, after an indictment found, or for the
purpose of avoiding an anticipated prosecution, but that,
having committed a crime within a state or district, he has
left and is found in another jurisdiction (emphasis supplied)
Citing State v. Richter (37 Minn. 436), the Court further ruled in
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 Decision and in the Court's
October 24, 1995 Resolution), must conform to how such term has been defined
by the Court in the MARQUEZ Decision. To reiterate, a "fugitive from justice":
. . . includes not only those who flee after conviction to avoid punishment
but likewise who, after being charged, flee to avoid prosecution.
The definition thus indicates that the intent to evade is the compelling factor that
animates one's flight from a particular jurisdiction. And obviously, there can only
be an intent to evade prosecution or punishment when there is knowledge by the
fleeing subject of an already instituted indictment, or of a promulgated judgment
of conviction.
Rodriguez' case just cannot fit in this concept. There is no dispute that his arrival
in the Philippines from the US on June 25, 1985, as per certifications issued by
the Bureau of Immigrations dated April 27
3
and June 26 of 1995,
4
preceded the
filing of the felony complaint in the Los Angeles Court on November 12, 1985 and
of the issuance on even date of the arrest warrant by 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 Decision definition, is just nowhere to be found in the
circumstances of Rodriguez.
With that, the Court gives due credit to the COMELEC in having made the same
analysis in its ". . . COMMISSION'S EVALUATION". There are, in fact, other
observations consistent with such analysis made by the poll body that are equally
formidable so as to merit their adoption as part of this decision, to wit:
It is acknowledged that there was an attempt by private respondent to
show Rodriguez' intent to evade the law. This was done by offering for
admission a voluminous copy of an investigation report (Exhibits I to I-17
and J to J-87 inclusive) on the alleged crimes committed which led to the
filing of the charges against petitioner. It was offered for the sole purpose
of establishing the fact that it was impossible for petitioner not to have
known of said investigation due to its magnitude. Unfortunately, such
conclusion misleads because investigations of this nature, no matter how
extensive or prolonged, are shrouded with utmost secrecy to afford law
enforcers the advantage of surprise and effect the arrest of those who
would be charged. Otherwise, the indiscreet conduct of the investigation
would be nothing short of a well-publicized announcement to the
perpetrators of the imminent filing of charges against them. And having
been forewarned, every effort to sabotage the investigation may be
resorted to by its intended objects. But if private respondent's attempt to
show Rodriguez' intent to evade the law at the time he left the United
States has any legal consequence at all, it will be nothing more than proof
that even private respondent accepts that intent to evade the law is a
material element in the definition of a fugitive.
The circumstantial fact that it was seventeen (17) days after Rodriguez'
departure that charges against him were filed cannot overturn the
presumption of good faith in his favor. The same suggests nothing more
than the sequence of events which transpired. A subjective fact as that of
petitioner's purpose cannot be inferred from the objective data at hand in
the absence of further proof to substantiate such claim. In fact, the
evidence of petitioner Rodriguez sufficiently proves that his compulsion to
return to the Philippines was due to his desire to join and participate
vigorously in the political campaigns against former President Ferdinand
E. Marcos. For indeed, not long after petitioner's arrival in the country, the
upheaval wrought by the political forces and the avalanche of events
which occurred resulted in one of the more colorful events in 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 case whether that decision is right or wrong, the remedy
of the party deeming himself aggrieved being to seek a rehearing. (5
C.J.S. 1276-77).
Questions necessarily involved in the decision on a former appeal will be
regarded as the law of the case on a subsequent appeal, although the
questions are not expressly treated in the opinion of the court, as the
presumption is that all the facts in the case bearing on the point decided
have received due consideration whether all or none of them are
mentioned in the opinion. (5 C.J.S. 1286-87).
To elaborate, the same parties (Rodriguez and Marquez) and issue (whether or
not Rodriguez is a "fugitive from justice") are involved in the MARQUEZ
Decision and the instant petition. The MARQUEZ Decision was an appeal from
EPC No. 92-28 (the Marquez' quo warranto petition before the COMELEC). The
instant petition is also an appeal from EPC No. 92-28 although the COMELEC
resolved the latter jointly with SPA No. 95-089 (Marquez' petition for the
disqualification of Rodriguez). Therefore, what was irrevocably established as the
controlling legal rule in theMARQUEZ 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.
SO ORDERED.
Romero, Melo, Puno, Kapunan, Hermosisima, Jr. and Panganiban, JJ., concur.

[G.R. No. 121592. July 5, 1996]
ROLANDO P. DELA TORRE, petitioner, vs. COMMISSION ON ELECTIONS and
MARCIAL VILLANUEVA, respondents.
R E S O L U T I O N
FRANCISCO, J .:
Petitioner Rolando P. Dela Torre via the instant petition for certiorari seeks the
nullification of two resolutions issued by the Commission on Elections (COMELEC)
allegedly with grave abuse of discretion amounting to lack of jurisdiction in SPA No. 95-
047, a case for disqualification filed against petitioner before the COMELEC.
[1]

The first assailed resolution dated May 6,1995 declared the petitioner disqualified
from running for the position of Mayor of Cavinti, Laguna in the last May 8,1995
elections, citing as the ground therefor, Section 40(a) of Republic Act No. 7160 (the
Local Government Code of 1991)
[2]
which provides as follows:
Sec. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for
an offense punishable by one (1) year or more of imprisonment within two (2) years
after serving sentence;
(b) x x x x x x x x x.
In disqualifying the petitioner, the COMELEC held that:
Documentary evidence x x x established that herein respondent (petitioner in this case)
was found guilty by the Municipal Trial Court, x x x in Criminal Case No. 14723 for
violation of P.D. 1612, (otherwise known as the Anti-fencing Law) in a Decision dated
June 1,1990. Respondent appealed the said conviction with the Regional Trial Court x
x x, which however, affirmed respondents conviction in a Decision dated November
14,1990. Respondents conviction became final on January 18,1991.
x x x x x x x x x
x x x, there exists legal grounds to disqualify respondent as candidate for Mayor of
Cavinti, Laguna this coming elections. Although there is dearth of jurisprudence
involving violation of the Anti-Fencing Law of 1979 or P.D.1612 x x x, the nature of the
offense under P.D. 1612 with which respondent was convicted certainly involves moral
turpitude x x x.
[3]

The second assailed resolution, dated August 28, 1995, denied petitioners motion
for reconsideration. In said motion, petitioner claimed that Section 40 (a) of the Local
Government Code does not apply to his case inasmuch as the probation granted him by
the MTC on December 21, 1994 which suspended the execution of the judgment of
conviction and all other legal consequences flowing therefrom, rendered inapplicable
Section 40 (a) as well.
[4]

The two (2) issues to be resolved are:
1. Whether or not the crime of fencing involves moral turpitude.
2. Whether or not a grant of probation affects Section 40 (a)s applicability.
Particularly involved in the first issue is the first of two instances contemplated in
Section 40 (a) when prior conviction of a crime becomes a ground for disqualification - i,
e., when the conviction by final judgment is for an offense involving moral turpitude.
And in this connection, the Court has consistently adopted the definition in Blacks Law
Dictionary of moral turpitude as:
x x x an act of baseness, vileness, or depravity in the private duties which a man owes
his fellowmen, or to society in general, contrary to the accepted and customary rule of
right and duty between man and woman or conduct contrary to justice, honesty,
modesty, or good morals.
[5]

Not every criminal act, however, involves moral turpitude. It is for this reason that
as to what crime involves moral turpitude, is for the Supreme Court to determine.
[6]
In
resolving the foregoing question, the Court is guided by one of the general rules that
crimes mala in se involve moral turpitude, while crimes mala prohibita do not
[7]
, the
rationale of which was set forth in Zari v. Flores,
[8]
to wit:
It (moral turpitude) implies something immoral in itself, regardless of the fact that it is
punishable by law or not. It must not be merely mala prohibita, but the act itself must be
inherently immoral. The doing of the act itself, and not its prohibition by statute fixes the
moral turpitude. Moral turpitude does not, however, include such acts as are not of
themselves immoral but whose illegality lies in their being positively prohibited.
[9]

This guideline nonetheless proved short of providing a clear-cut solution, for in
International Rice Research Institute v. NLRC,
[10]
the Court admitted that it cannot
always be ascertained whether moral turpitude does or does not exist by merely
classifying a crime as malum in se or as malum prohibitum. There are crimes which
aremala in se and yet but rarely involve moral turpitude and there are crimes which
involve moral turpitude and are mala prohibita only. In the final analysis, whether or not
a crime involves moral turpitude is ultimately a question of fact and frequently depends
on all the circumstances surrounding the violation of the statute.
[11]

The Court in this case shall nonetheless dispense with a review of the facts and
circumstances surrounding the commission of the crime, inasmuch as petitioner after all
does not assail his conviction. Petitioner has in effect admitted all the elements of the
crime of fencing. At any rate, the determination of whether or not fencing involves moral
turpitude can likewise be achieved by analyzing the elements alone.
Fencing is defined in Section 2 of P.D.1612 (Anti-Fencing Law) as:
a. x x x the act of any person who, with intent to gain for himself or for another, shall
buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell,
or in any manner deal in any article, item, object or anything of value which he knows,
or should be known to him, to have been derived from the proceeds of the crime of
robbery or theft.
[12]

From the foregoing definition may be gleaned the elements of the crime of fencing
which are:
"1. A crime of robbery or theft has been committed;
2. The accused who is not a principal or accomplice in the crime of robbery or theft,
buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and
sells, or in any manner deals in any article, item, object or anything of value, which have
been derived from the proceeds of the said crime;
3. The accused knows or should have known that the said article, item, object or
anything of value has been derived from the proceeds of the crime of robbery or theft;
and [Underscoring supplied.]
4. There is, on the part of the accused, intent to gain for himself or for another.
[13]

Moral turpitude is deducible from the third element. Actual knowledge by the
fence of the fact that property received is stolen displays the same degree of malicious
deprivation of ones rightful property as that which animated the robbery or theft which,
by their very nature, are crimes of moral turpitude. And although the participation of
each felon in the unlawful taking differs in point in time and in degree, both the fence
and the actual perpetrator/s of the robbery or theft invaded ones peaceful dominion for
gain - thus deliberately reneging in the process private duties they owe their
fellowmen or society in a manner contrary to x x x accepted and customary rule of
right and duty x x x, justice, honesty x x x or good morals. The duty not to appropriate,
or to return, anything acquired either by mistake or with malice is so basic it finds
expression in some key provisions of the Civil Code on Human Relations and Solutio
Indebiti, to wit:
Article 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good faith.
Article 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Article 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Article 22. Every person who through an act of performance by another, or any other
means, acquires or comes into possession of something at the expense of the latter
without just or legal ground, shall return the same to him.
Article 2154. If something is received when there is no right to demand it, and it was
unduly delivered through mistake, the obligation to return it arises.
The same underlying reason holds even if the fence did not have actual
knowledge, but merely should have known the origin of the property received. In this
regard, the Court held:
When knowledge of the existence of a particular fact is an element of the offense, such
knowledge is established if a person is aware of the high probability of its existence
unless he actually believes that it does not exist. On the other hand, the words should
know denote the fact that a person of reasonable prudence and intelligence would
ascertain the fact in the performance of his duty to another or would govern his conduct
upon assumption that such fact exists.
[14]
[Italics supplied.]
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant
buyer that the object of the sale may have been derived from the proceeds of robbery or
theft. Such circumstances include the time and place of the sale, both of which may not
be in accord with the usual practices of commerce. The nature and condition of the
goods sold, and the fact that the seller is not regularly engaged in the business of
selling goods may likewise suggest the illegality of their source, and therefore should
caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612
that mere possession of any goods, x x x, object or anything of value which has been
the subject of robbery or thievery shall be prima facie evidence of fencing- a
presumption that is, according to the Court, reasonable for no other natural or logical
inference can arise from the established fact of x x x possession of the proceeds of the
crime of robbery or theft.
[15]
All told, the COMELEC did not err in disqualifying the
petitioner on the ground that the offense of fencing of which he had been previously
convicted by final judgment was one involving moral turpitude.
Anent the second issue where petitioner contends that his probation had the effect
of suspending the applicability of Section 40 (a) of the Local Government Code, suffice
it to say that the legal effect of probation is only to suspend the execution of the
sentence.
[16]
Petitioners conviction of fencing which we have heretofore declared as a
crime of moral turpitude and thus falling squarely under the disqualification found in
Section 40 (a), subsists and remains totally unaffected notwithstanding the grant of
probation. In fact, a judgment of conviction in a criminal case ipso facto attains finality
when the accused applies for probation, although it is not executory pending resolution
of the application for probation.
[17]
Clearly then, petitioners theory has no merit.
ACCORDINGLY, the instant petition for certiorari is hereby DISMISSED and the
assailed resolutions of the COMELEC dated May 6,1995 and August 28,1995 are
AFFIRMED in toto.
SO ORDERED.


G.R. No. 154512 November 12, 2002
VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY
(PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MARK DAVID
HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA
Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA
Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.
-----------------------------
G.R. No. 154683 November 12, 2002
VICENTE S. SANDOVAL, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS, respondent.
-----------------------------
G.R. Nos. 155083-84 November 12, 2002
MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE,
SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents.
D E C I S I O N
CARPIO, J .:
The Case
Before us are consolidated petitions for certiorari
1
seeking the reversal of the
resolutions issued by the Commission on Elections ("COMELEC" for brevity) in relation
to the recall election for mayor of Puerto Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of
the Puerto Princesa convened themselves into a Preparatory Recall Assembly ("PRA"
for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon. The
PRA was convened to initiate the recall
2
of Victorino Dennis M. Socrates ("Socrates" for
brevity) who assumed office as Puerto Princesa's mayor on June 30, 2001. The
members of the PRA designated Mark David M. Hagedorn, president of the Association
of Barangay Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for
brevity) which declared its loss of confidence in Socrates and called for his recall. The
PRA requested the COMELEC to schedule the recall election for mayor within 30 days
from receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No.
02-010 (RC), to nullify and deny due course to the Recall Resolution.
On August 14, 2002, the COMELEC en banc
3
promulgated a resolution dismissing for
lack of merit Socrates' petition. The COMELEC gave due course to the Recall
Resolution and scheduled the recall election on September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673
prescribing the calendar of activities and periods of certain prohibited acts in connection
with the recall election. The COMELEC fixed the campaign period from August 27, 2002
to September 5, 2002 or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of
candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo"
for brevity) filed a petition before the COMELEC, docketed as SPA No. 02-492, to
disqualify Hagedorn from running in the recall election and to cancel his certificate of
candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity)
filed a petition-in-intervention in SPA No. 02-492 also seeking to disqualify Hagedorn.
On the same date, a certain Genaro V. Manaay filed another petition, docketed as SPA
No. 02-539, against Hagedorn alleging substantially the same facts and involving the
same issues. The petitions were all anchored on the ground that "Hagedorn is
disqualified from running for a fourth consecutive term, having been elected and having
served as mayor of the city for three (3) consecutive full terms immediately prior to the
instant recall election for the same post." Subsequently, SPA Nos. 02-492 and 02-539
were consolidated.
In a resolution promulgated on September 20, 2002, the COMELEC's First
Division
4
dismissed for lack of merit SPA Nos. 02-492 and 02-539. The COMELEC
declared Hagedorn qualified to run in the recall election. The COMELEC also reset the
recall election from September 7, 2002 to September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolution denying the
motion for reconsideration of Adovo and Gilo. The COMELEC affirmed the resolution
declaring Hagedorn qualified to run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14,
2002 in E.M. No. 02-010 (RC) which gave due course to the Recall Resolution and
scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in upholding the
Recall Resolution. Socrates cites the following circumstances as legal infirmities
attending the convening of the PRA and its issuance of the Recall Resolution: (1) not all
members of the PRA were notified of the meeting to adopt the resolution; (2) the proof
of service of notice was palpably and legally deficient; (3) the members of the PRA were
themselves seeking a new electoral mandate from their respective constituents; (4) the
adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA
proceedings were conducted in a manner that violated his and the public's constitutional
right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673
dated August 21, 2002 insofar as it fixed the recall election on September 7, 2002,
giving the candidates only a ten-day campaign period. He prayed that the COMELEC
be enjoined from holding the recall election on September 7, 2002 and that a new date
be fixed giving the candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC
from implementing Resolution No. 5673 insofar as it fixed the date of the recall election
on September 7, 2002. The Court directed the COMELEC to give the candidates an
additional fifteen 15 days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No.
5708 giving the candidates an additional 15 days from September 7, 2002 within which
to campaign. Thus, the COMELEC reset the recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September
20, 2002 and September 23, 2002 in SPA Nos. 02-492 and 02-539 declaring Hagedorn
qualified to run for mayor in the recall election. They likewise prayed for the issuance of
a temporary restraining order to enjoin the proclamation of the winning candidate in the
recall election.
Petitioners argue that the COMELEC gravely abused its discretion in upholding
Hagedorn's qualification to run for mayor in the recall election despite the constitutional
and statutory prohibitions against a fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist
from proclaiming any winning candidate in the recall election until further orders from
the Court. Petitioners were required to post a P20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an attached petition for
intervention seeking the same reliefs as those sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in the recall election
with 20,238 votes. Rival candidates Socrates and Sandoval obtained 17,220 votes and
13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the
winning candidate and to allow him to assume office to give effect to the will of the
electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for
intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave abuse of
discretion in giving due course to the Recall Resolution and scheduling the recall
election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the
recall election of Puerto Princesa on September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of
discretion in fixing a campaign period of only 10 days has become moot. Our Resolution
of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15
days for the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in
upholding the Recall Resolution despite the absence of notice to 130 PRA members
and the defective service of notice to other PRA members. The COMELEC, however,
found that
"On various dates, in the month of June 2002, the proponents for the Recall of
incumbent City Mayor Victorino Dennis M. Socrates sent notices of the convening of the
PRA to the members thereof pursuant to Section 70 of the Local Government Code.
Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise,
Proof of Service for each of the said notices were attached to the Petition and marked
as Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at the Barangay Hall.
Photos establishing the same were attached to the Petition and marked as Annex "H".
The proponents likewise utilized the broadcast mass media in the dissemination of the
convening of the PRA.
Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a
list of 25 names of provincial elective officials, print and broadcast media practitioners,
PNP officials, COMELEC city, regional and national officials, and DILG officials].
x x x
The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002
certified that upon a 'thorough and careful verification of the signatures appearing in
PRA Resolution 01-02, x x x the majority of all members of the PRA concerned
approved said resolution.' She likewise certified 'that not a single member/signatory of
the PRA complained or objected as to the veracity and authenticity of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his
Indorsement dated 10 July 2002, stated, 'upon proper review, all documents submitted
are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the
following recommendations:
'This Office, after evaluating the documents filed, finds the instant Petition sufficient in
form and substance. That the PRA was validly constituted and that the majority of all
members thereof approved Resolution No. 01-02 calling for the recall of Mayor Victorino
Dennis M. Socrates.'
x x x ."
This Court is bound by the findings of fact of the COMELEC on matters within the
competence and expertise of the COMELEC, unless the findings are patently
erroneous. In Malonzo v. COMELEC,
5
which also dealt with alleged defective service of
notice to PRA members, we ruled that
"Needless to state, the issue of propriety of the notices sent to the PRA members is
factual in nature, and the determination of the same is therefore a function of the
COMELEC. In the absence of patent error, or serious inconsistencies in the findings,
the Court should not disturb the same. The factual findings of the COMELEC, based on
its own assessments and duly supported by gathered evidence, are conclusive upon the
court, more so, in the absence of a substantiated attack on the validity of the same."
In the instant case, we do not find any valid reason to hold that the COMELEC's findings
of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt the Recall
Resolution on July 2, 2002 because a majority of PRA members were seeking a new
electoral mandate in the barangay elections scheduled on July 15, 2002. This argument
deserves scant consideration considering that when the PRA members adopted the
Recall Resolution their terms of office had not yet expired. They were all de jure
sangguniang barangay members with no legal disqualification to participate in the recall
assembly under Section 70 of the Local Government Code.
Socrates bewails that the manner private respondents conducted the PRA proceedings
violated his constitutional right to information on matters of public concern. Socrates,
however, admits receiving notice of the PRA meeting and of even sending his
representative and counsel who were present during the entire PRA proceedings.
Proponents of the recall election submitted to the COMELEC the Recall Resolution,
minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated master list of barangay officials in
Puerto Princesa. Socrates had the right to examine and copy all these public records in
the official custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates' claim that
respondents violated his constitutional right to information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding
the validity of the Recall Resolution and in scheduling the recall election on September
24, 2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8, Article X of the
Constitution, which states:
"Section 8. The term of office of elective local officials, except barangay officials, which
shall be determined by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of the office for any length of
time shall not be considered as an interruption in the continuity of his service for the full
term for which he was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known
as the Local Government Code, which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3) consecutive terms
in the same position. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of service for the full
term for which the elective official was elected."
These constitutional and statutory provisions have two parts. The first part provides that
an elective local official cannot serve for more than three consecutive terms. The clear
intent is that only consecutive terms count in determining the three-term limit rule. The
second part states that voluntary renunciation of office for any length of time does not
interrupt the continuity of service. The clear intent is that involuntary severance from
office for any length of time interrupts continuity of service and prevents the service
before and after the interruption from being joined together to form a continuous service
or consecutive terms.
After three consecutive terms, an elective local official cannot seek immediate reelection
for a fourth term. The prohibited election refers to the next regular election for the same
office following the end of the third consecutive term. Any subsequent election, like a
recall election, is no longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an immediate reelection after
three consecutive terms. Second, the intervening period constitutes an involuntary
interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials,
the question asked was whether there would be no further election after three terms, or
whether there would be "no immediate reelection" after three terms. This is clear from
the following deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:
6
We are now ready to discuss the two issues, as indicated on the
blackboard, and these are Alternative No. I where there is no further election
after a total of three terms and Alternative No. 2 where there is no immediate
reelection after three successive terms."
7

The Journal of the Constitutional Commission reports the following manifestation on the
term of elective local officials:
"MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body would proceed to
the consideration of two issues on the term of Representatives and local officials,
namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three successive terms)."
8

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

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term
following three consecutive terms. The Constitution, however, does not prohibit a
subsequent reelection for a fourth term as long as the reelection is not immediately after
the end of the third consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate reelection after the
third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to
run in any other subsequent election involving the same term of office. What the
Constitution prohibits is a consecutive fourth term. The debates in the Constitutional
Commission evidently show that the prohibited election referred to by the framers of the
Constitution is the immediate reelection after the third term, not any other subsequent
election.
If the prohibition on elective local officials is applied to any election within the three-year
full term following the three-term limit, then Senators should also be prohibited from
running in any election within the six-year full term following their two-term limit. The
constitutional provision on the term limit of Senators is worded exactly like the term limit
of elective local officials, thus:
"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected."
11

In the debates on the term limit of Senators, the following exchange in the Constitutional
Convention is instructive:
"GASCON:
12
I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before he can
run again?
DAVIDE:
13
That is correct.
GASCON: And the question that we left behind before - if the Gentleman will
remember - was: How long will that period of rest be? Will it be one election
which is three years or one term which is six years?
DAVIDE: If the Gentleman will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether
such election will be on the third or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six
years. That was the Committee's stand.
GASCON: So, effectively, the period of rest would be three years at the
least."
14
(Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after only three
years
15
following his completion of two terms. The framers expressly acknowledged that
the prohibited election refers only to the immediate reelection, and not to any
subsequent election, during the six-year period following the two term limit. The framers
of the Constitution did not intend "the period of rest" of an elective official who has
reached his term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is
not an immediate reelection after his third consecutive term which ended on June 30,
2001. The immediate reelection that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001
elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections
and served in full his three consecutive terms as mayor of Puerto Princesa. Under the
Constitution and the Local Government Code, Hagedorn could no longer run for mayor
in the 2001 elections. The Constitution and the Local Government Code disqualified
Hagedorn, who had reached the maximum three-term limit, from running for a fourth
consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001
elections.
16
Socrates ran and won as mayor of Puerto Princesa in the 2001 elections.
After Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until
the recall election of September 24, 2002 when he won by 3,018 votes over his closest
opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the mayor of
Puerto Princesa was Socrates. During the same period, Hagedorn was simply a private
citizen. This period is clearly an interruption in the continuity of Hagedorn's service as
mayor, not because of his voluntary renunciation, but because of a legal prohibition.
Hagedorn's three consecutive terms ended on June 30, 2001. Hagedorn's new recall
term from September 24, 2002 to June 30, 2004 is not a seamless continuation of his
previous three consecutive terms as mayor. One cannot stitch together Hagedorn's
previous three-terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary interruption occurred from
June 30, 2001 to September 24, 2002 which broke the continuity or consecutive
character of Hagedorn's service as mayor.
In Lonzanida v. Comelec,
17
the Court had occasion to explain interruption of continuity
of service in this manner:
"x x x The second sentence of the constitutional provision under scrutiny states,
"Voluntary renunciation of office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which he was elected." The
clear intent of the framers of the constitution to bar any attempt to circumvent the three-
term limit by a voluntary renunciation of office and at the same time respect the people's
choice and grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the computation
of the three-term limit; conversely, involuntary severance from office for any length of
time short of the full term provided by law amounts to an interruption of continuity of
service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office, although short of a
full term of three years, constituted an interruption in the continuity of his service as
mayor. The Constitution does not require the interruption or hiatus to be a full term of
three years. The clear intent is that interruption "for any length of time," as long as the
cause is involuntary, is sufficient to break an elective local official's continuity of service.
In the recent case of Adormeo v. Comelec and Talaga,
18
a unanimous Court reiterated
the rule that an interruption consisting of a portion of a term of office breaks the
continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had
served two consecutive full terms as mayor of Lucena City. In his third bid for election
as mayor in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall election of
May 12, 2000, Talaga won and served the unexpired term of Tagarao from May 12,
2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections,
Raymundo Adormeo, the other candidate for mayor, petitioned for Talaga's
disqualification on the ground that Talaga had already served three consecutive terms
as mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his
previous two terms so that he was deemed to have already served three consecutive
terms as mayor. The Court ruled that Talaga was qualified to run in the 2001 elections,
stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of
office interrupted the continuity of his service as mayor. Talaga's recall term as mayor
was not consecutive to his previous two terms because of this interruption, there having
been a break of almost two years during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of office interrupts
the continuity of his service and prevents his recall term from being stitched together as
a seamless continuation of his previous two consecutive terms. In the instant case, we
likewise hold that the nearly 15 months Hagedorn was out of office interrupted his
continuity of service and prevents his recall term from being stitched together as a
seamless continuation of his previous three consecutive terms. The only difference
between Adormeo and the instant case is the time of the interruption. In Adormeo, the
interruption occurred after the first two consecutive terms. In the instant case, the
interruption happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he assumed office after
winning the recall election. Talaga's recall term did not retroact to include the tenure in
office of his predecessor. If Talaga's recall term was made to so retroact, then he would
have been disqualified to run in the 2001 elections because he would already have
served three consecutive terms prior to the 2001 elections. One who wins and serves a
recall term does not serve the full term of his predecessor but only the unexpired term.
The period of time prior to the recall term, when another elective official holds office,
constitutes an interruption in continuity of service. Clearly, Adormeo established the rule
that the winner in the recall election cannot be charged or credited with the full term of
three years for purposes of counting the consecutiveness of an elective official's terms
in office.
In the same manner, Hagedorn's recall term does not retroact to include the tenure in
office of Socrates. Hagedorn can only be disqualified to run in the September 24, 2002
recall election if the recall term is made to retroact to June 30, 2001, for only then can
the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall
term as a full term of three years, retroacting to June 30, 2001, despite the fact that he
won his recall term only last September 24, 2002, is to ignore reality. This Court cannot
declare as consecutive or successive terms of office which historically and factually are
not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction
that unduly curtails the freedom of the people to choose their leaders through popular
elections. The concept of term limits is in derogation of the sovereign will of the people
to elect the leaders of their own choosing. Term limits must be construed strictly to give
the fullest possible effect to the sovereign will of the people. As this Court aptly stated in
Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the Constitution
reveals that the members of the Constitutional Commission were as much concerned
with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive terms or nine
years there should be no further reelection for local and legislative officials. Instead,
they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the succeeding election
following the expiration of the third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will choose' as a result of the
proposed absolute disqualification, considering that the draft constitution contained
provisions 'recognizing people's power.'"
19
(Emphasis supplied)
A necessary consequence of the interruption of continuity of service is the start of a new
term following the interruption. An official elected in recall election serves the unexpired
term of the recalled official. This unexpired term is in itself one term for purposes of
counting the three-term limit. This is clear from the following discussion in the
Constitutional Commission:
"SUAREZ:
20
For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean
that serving the unexpired portion of the term is already considered one term? So, half a
term, which is actually the correct statement, plus one term would disqualify the Senator
concerned from running? Is that the meaning of this provision on disqualification,
Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will
serve only for the unexpired portion of that particular term plus one more term for the
Senator and two more terms for the Members of the Lower House."
21

Although the discussion referred to special elections for Senators and Representatives
of the House, the same principle applies to a recall election of local officials. Otherwise,
an elective local official who serves a recall term can serve for more than nine
consecutive years comprising of the recall term plus the regular three full terms. A local
official who serves a recall term should know that the recall term is in itself one term
although less than three years. This is the inherent limitation he takes by running and
winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall
election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three
consecutive terms as mayor which ended on June 30, 2001;
2. Hagedorn's continuity of service as mayor was involuntarily interrupted from
June 30, 2001 to September 24, 2002 during which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be
made to retroact to June 30, 2001 to make a fourth consecutive term because
factually the recall term is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest possible effect to the
right of the electorate to choose their leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are
DISMISSED. The temporary restraining order issued by this Court on September 24,
2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa
in the recall election of September 24, 2002 is lifted. No costs.
SO ORDERED.