Republic of the Philippines

SUPREME COURT
Manila
EN BANC

WHEREFORE, premises considered, the

Commission RESOLVED, as it hereby resolves, to
grant the petition; respondent's (Labo's) certificate
of candidacy is hereby DENIED due course and
ordered CANCELLED; the City Election Registrar of
Baguio City is hereby directed to delete the name of
the respondent (Labo) from the list of candidates for
City Mayor of Baguio City. (Rollo, pp. 47-48; GR No.
105111)

G.R. No. 105111 July 3, 1992

RAMON L. LABO, Jr., petitioner,
vs.
COMMISSION ON ELECTIONS, and ROBERTO
ORTEGA, respondents.

On the same date, Labo filed a motion to stay

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

G.R. No. 105384 July 3, 1992

ROBERTO C. ORTEGA, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAMON L. LABO,
Jr., respondents.

BIDIN, J.:
1

This is the second time that this Court is called upon to rule
on the citizenship of Ramon Labo, Jr., who, believing that he
is a Filipino citizen launched his candidacy for mayor of
Baguio City in the last May 11, 1992 elections by filing his
certificate of candidacy on March 23, 1992.
Petitioner Roberto Ortega (GR No. 105384), on other hand,
also filed his certificate of candidacy for the same office on
March 25, 1992.
Shortly after petitioner Labo filed his certificate of candidacy,
petitioner Ortega filed on March 26, 1992, a disqualification
proceeding against Labo before the Commission on
Elections (Comelec), docketed as SPA No. 92-029, seeking
to cancel Labo's certificate of candidacy on the ground that
Labo made a false representation when he stated therein
that he (Labo) is a "natural-born" citizen of the Philippines.
Summons in the disqualification case was issued by the
Comelec on March 27, 1992 to petitioner Labo followed by a
telegram dated April 1, 1992, requiring him to file his Answer
within three (3) non-extendible days but the latter failed to
respond.
On April 15, 1992, Ortega filed a motion to declare Labo in
default for failure to file his Answer.
On April 24, 1992, the Comelec issued another order
directing the Election Registrar of Baguio City to personally
deliver the summons. On May 4, 1992, the disqualification
case was set for reception of evidence. At the said hearing,
Ortega presented the decision of this Court in Labo v.
Commission on Elections (176 SCRA 1 [1989]) declaring
Labo not a citizen of the Philippines. Labo, on the other
hand, though represented by counsel, did not present any
evidence. It was only on May 5, 1992 that petitioner
submitted his Answer claiming Filipino citizenship.
On May 9, 1992, respondent Comelec issued the assailed
resolution, the dispositive portion of which reads:

1 | Page

Acting on the "Urgent Ex-Parte Motion for

Clarification", filed by respondent (Labo) on May 9,
1992,the Commission resolves that the decision
promulgated on May 9, 1992 disqualifying
respondent Ramon L. Labo, Jr., shall become final
and executory only after five (5) days from
promulgationpursuant to Rule 18, Section 13,
Paragraph (b) of the Comelec Rules of Procedure.
Accordingly, respondent (Labo) may still continue to
be voted upon as candidate for City Mayor of
Baguio City on May 11, 1992 subject to the final
outcome of this case in the event the issue is
elevated to the Supreme Court either on appeal
or certiorari. (Rollo, p. 53; GR No. 105111;
emphasis supplied)
On May 13, 1992, respondent Comelec resolved, motu
proprio to suspend the proclamation of Labo in the event he
wins in the elections for the City Mayor of Baguio. (Rollo, pp.
64-65; GR No. 105111)
On May 15, 1992, petitioner Labo filed the instant petition for
review docketed as G.R. No. 105111 with prayer, among
others, for the issuance of a temporary restraining order to
set aside the May 9, 1992 resolution of respondent Comelec;
to render judgment declaring him as a Filipino citizen; and to
direct respondent Comelec to proceed with his proclamation
in the event he wins in the contested elections.
On the same date, or on May 15, 1992 petitioner Ortega filed
before the Comelec an urgent motion for the implementation
of its May 9, 1992 resolution cancelling Labo's certificate of
candidacy.
After an exchange of pleadings, respondent Comelec, in its
resolution dated May 26, 1992, denied Ortega's motion in
view of the pending case (G.R. No. 105111) earlier filed by
Labo of the same nature before this Court.
On June 1, 1992, Ortega filed a petition
for mandamus docketed as G.R. No. 105384 praying for the
implementation of the Comelec's May 9, 1992 resolution.
Petitioner Ortega argues that respondent Comelec
committed grave abuse of discretion when it refused to
implement its May 9, 1992 resolution notwithstanding the
fact that said resolution disqualifying Ramon Labo has
already become final and executory.

After the parties have submitted their respective pleadings,

the Court, on June 16, 1992, Resolved to consider the case
submitted for decision.
I. GR No. 105111
In essence, it is the contention of petitioner Labo that he is a
Filipino citizen. Alleging lack of trial on the merits as well as
the lack of opportunity to be heard in Labo v. Commission on
Elections (supra), it is the submission of petitioner that he
can prove his Filipino citizenship.
Petitioner cites the 1980 US case of Vance v. Terrazas (444
US 252), wherein it was held that in proving expatriation, an
expatriating act an intent to relinquish citizenship must be
proved by a preponderance of evidence.
Petitioner contends that no finding was made either by the
Commission on Immigration or the Comelec as regards his
specific intent to renounce his Philippine citizenship.
Petitioner also faults the Comelec for the supposed
abbreviated proceedings in SPA No. 92-029 which denied
him adequate opportunity to present a full-dress presentation
of his case. Thus: a) only one (1) day was set for hearing of
the case, i.e., May 4, 1992; b) two days later, May 6, 1992
the hearing was set; c) instead of holding a hearing, the
Comelec issued the questioned resolution on May 9, 1992.
If only to refresh the mind of petitioner Labo, as well as that
of his counsel, records disclose that summons were issued
by respondent Comelec as early as March 27, 1992 followed
by a telegram on April 1, 1992. But petitioner chose to ignore
the same. Came April 15, 1992, petitioner Ortega filed a
motion to declare petitioner Labo in default. Over-extending
him (Labo) the benefit of due process, respondent Comelec
issued another order dated April 24, 1992, this time directing
the Acting City Election Registrar of Baguio to personally
serve the summons. The alleged delay in the resolution of
SPA No. 92-029 can only be attributed to petitioner Labo and
no one else. Thus, the respondent Comelec in its resolution
dated May 9, 1992 stated:
On May 4, 1992, the Acting Regional Election
Registrar called this case for reception of evidence.
Surprisingly, while as of that date respondent had
not yet filed his Answer, a lawyer appeared for him.
The petitioner (Ortega) presented the certificate of
candidacy of respondent Ramon L. Labo, Jr., which
contained in item 9 thereof the verified statement
that respondent is a "natural-born" Filipino citizen.
To prove that respondent is not a Filipino citizen,
petitioner submitted the decision of the Supreme
Court in "Ramon L. Labo, Jr., petitioner, v. Comelec,
et al.," GR No. 86564, August 1, 1989, the
dispositive portion of which states:
WHEREFORE, petitioner Ramon J. (sic) 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.
No evidence was adduced for the respondent as in
fact he had no Answer as of the hearing.

2 | Page

On May 5, 1992, respondent (Labo) filed his verified

Answer, insisting that he is a Filipino citizen and
continue to maintain and preserve his Filipino
citizenship; that he does not hold an Australian
citizenship; that the doctrine of res judicata does not
apply in citizenship; and that "existing facts support
his continuous maintenance and holding of
Philippine citizenship" and "supervening events now
preclude the application of the ruling in the Labo v.
Comelec case and the respondent (Labo) now hold
and enjoys Philippine citizenship.
No evidence has been offered by respondent to
show what these existing facts and supervening
events are to preclude the application of the Labo
decision. (emphasis supplied)
The Commission is bound by the final declaration
that respondent is not a Filipino citizen.
Consequently, respondent's verified statement in
his certificate of candidacy that he is a "naturalborn" Filipino citizen is a false material
representation." (Rollo, pp. 45-48; GR No. 105111)
Up to this moment, petitioner Labo still failed to submit a
scintilla of proof to shore his claim before this Court that he
has indeed reacquired his Philippine citizenship.
Instead, petitioner relies in the US case of Vance v. Terrazas
(supra). Suffice it to state that petitioner has already
pleaded Vance in his motion for reconsideration in Labo v.
Comelec (supra; Rollo, p. 375). Having been previously
passed upon, the Court sees no pressing need to reexamine the same and make a lengthy dissertation thereon.
At any rate, the fact remains that he has not submitted in the
instant case any evidence, if there be any, to prove his
reacquisition of Philippine citizenship either before this Court
or the Comelec. On this score alone, We find no grave abuse
of discretion committed by respondent Comelec in cancelling
his (Labo's) certificate of candidacy and declaring that he is
NOT a Filipino citizen pursuant to our ruling in the 1989 case
of Labo v. Comelec (supra).
Petitioner Labo claims, however, that Sec. 72 2 of the
Omnibus Election Code "operates as a legislatively
mandated special repatriation proceeding" and that it allows
his proclamation as the winning candidate since the
resolution disqualifying him was not yet final at the time the
election was held.
The Court finds petitioner Labo's strained argument quixotic
and untenable. In the first place, Sec. 72 of the Omnibus
Election Code has already been repealed by Sec. 6 of RA
No. 6646, to wit:
Sec. 6. Effect of Disqualification Case. Any
candidate who has been declared by final judgment
to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any
reason a candidate is not declared by final
judgment before an election to be disqualified and
he is voted for and receives the winning number of
votes in such election, the Court or the Commission
shall continue with the trial and hearing of the
action, inquiry, or protest and, upon motion of the
complainant or any intervenor, may during the
pendency thereof order the suspension of the

proclamation of such candidate whenever the

evidence of his guilt is strong. (emphasis supplied)
A perusal of the above provision would readily disclose that
the Comelec can legally suspend the proclamation of
petitioner Labo, his reception of the winning number of votes
notwithstanding, especially so where, as in this case. Labo
failed to present any evidence before the Comelec to support
his claim of reacquisition of Philippine citizenship.
Furthermore, we need only to reiterate what we have stated
in Labo v. Comelec (supra), viz.,:
Under CA No. 63, as amended by P.D. No. 725,
Philippine citizenship may be reacquired by a 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 or to any statute directly conferring
Philippine citizenship upon him. . . .
Petitioner Labo's status has not changed in the case at bar.
To reiterate, he (Labo) was disqualified as a candidate for
being an alien. His election does not automatically restore
his Philippine citizenship, the possession of which is an
indispensable requirement for holding public office (Sec. 39,
Local Government Code).
Still, petitioner takes pains in raising a new argument not
litigated before the respondent Comelec. Petitioner claims
that he has reacquired his Filipino citizenship by citing his
application for reacquisition of Philippine citizenship filed
before the Office of the Solicitor General pursuant to PD 725
and Letter of Instruction No. 270 3(Rollo, pp. 116-119; G.R.
No. 105111).
To date, however, and despite favorable recommendation by
the Solicitor General, the Special Committee on
Naturalization had yet acted upon said application for
repatriation. Indeed, such fact is even admitted petitioner. In
the absence of any official action or approval by the proper
authorities, a mere application for repratriation, does not, and
cannot, amount to an automatic reacquisition of the
applicant's Philippine citizenship.
II. GR No. 105384
Petitioner Ortega submits that since this Court did not issue
a temporary restraining order as regards the May 9, 1992
resolution of respondent Comelec cancelling Labo's
certificate of candidacy, said resolution has already become
final and executory. Ortega further posits the view that as a
result of such finality, the candidate receiving the next
highest number of votes should be declared Mayor of Baguio
City.
We agree with Ortega's first proposition.
At the time petitioner Labo filed his petition (GR No. 105111)
on May 15, 1992, the May 9, 1992 resolution of respondent
Comelec cancelling his (Labo's) certificate of candidacy had
already become final and executory a day earlier, or on May
14, 1992, said resolution having been received by petitioner
Labo on the same day it was promulgated, i.e., May 9, 1992
and in the interim no restraining order was issued by this
Court.

3 | Page

Thus, Sec. 78 of the Omnibus Election Code provides:

Sec. 78. Petition to deny due course or to cancel a
certificate of candidacy
xxx xxx xxx
(e) The decision, order, or ruling of the Commission
shall, after five (5) days from receipt of a copy
thereof by the parties, be final and executory unless
stayed by the Supreme Court. (emphasis supplied)
A similar provision is also found in Sec. 3, Rule 39 of the
Comelec Rules of procedure, to wit:
Sec. 3. Decisions final after five days. Decisions
in
pre-proclamation cases and petitions to deny due
course to or cancel certificates of candidacy, to
declare a candidate as nuisance candidate or to
disqualify a candidate, and to postpone or suspend
elections shall become final and executory after the
lapse of five (5) days from their promulgation,
unless restrained by the Supreme Court. (emphasis
supplied)
The resolution cancelling Labo's certificate of candidacy on
the ground that he is not a Filipino citizen having acquired
finality on May 14, 1992 constrains Us to rule against his
proclamation as Mayor of Baguio City.
To begin with, one of the qualifications of an elective official
is that he must be a citizen of the Philippines. Thus, the
Local Government Code provides:
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, sangguniang bayan, the district where
he intends to be elected; a resident therein for at
least one (1) year immediately preceding the day of
the election; and able to read and write Filipino or
any other local language or dialect. (emphasis
supplied)
Undoubtedly, petitioner Labo, not being a Filipino citizen,
lacks the fundamental qualification for the contested office.
Philippine citizenship is an indispensable requirement for
holding an elective office. As mandated by law: "An elective
local official must be a citizen of the Philippines."
The issue here is citizenship and/or Labo's alienage the
very essence which strikes at the very core of petitioner
Labo's qualification to assume the contested office, he being
an alien and not a Filipino citizen. The fact that he was
elected by the majority of the electorate is of no moment. As
we have held in Frivaldo v. Commission on Elections (174
SCRA 245 [1989]):
. . . The fact that he was elected by the people of
Sorsogon does not excuse this patent violation of
the salutary rule limiting public office and
employment only to the citizens of this country. The
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. Obviously, this rule requires strict
application when the deficiency is lack of
citizenship. If a person seeks to serve in the
Republic of the Philippines, he must owe his total
loyalty to this country only, abjuring and renouncing
all fealty and fidelity to any other state.
This brings us to the second issue raised by petitioner
Ortega, i.e., whether the disqualification of petitioner Labo
entitles the candidate (Ortega) receiving the next highest
number of votes to be proclaimed as the winning candidate
for mayor of Baguio City.
We hold in the negative. The disqualification of petitioner
Labo does not necessarily entitle petitioner Ortega as the
candidate with the next highest number of votes to
proclamation as the Mayor of Baguio City.
We make mention of petitioner Ortega because in his
petition, he alleges that:

and who obtains the highest number of votes is

disqualified for not possessing the eligibility
requirements at the time of the election as provided
by law, the candidate who obtains the second
highest number of votes for the same position
cannot assume the vacated position. (emphasis
supplied)
Our ruling in Abella applies squarely to the case at bar and
we see no compelling reason to depart therefrom. Like
Abella, petitioner Ortega lost in the election. He was
repudiated by the electorate. He was obviously not the
choice of the people of Baguio City.
Thus, while respondent Ortega (GR No. 105111) originally
filed a disqualification case with the Comelec (docketed as
SPA-92-029) seeking to deny due course to petitioner's
(Labo's) candidacy, the same did not deter the people of
Baguio City from voting for petitioner Labo, who, by then,
was allowed by the respondent Comelec to be voted upon,
the resolution for his disqualification having yet to attain the
degree of finality (Sec. 78. Omnibus Election Code).
And in the earlier case of Labo v. Comelec (supra), We held:

. . . the May 11, 1992 elections were held with both

herein petitioner (Roberto Ortega) and respondent
LABO having been voted for the position of Mayor
and unofficial results indicate that if the name of
respondent LABO were deleted from the list of
candidates, herein petitioner (Ortega) will be
entitled to be proclaimed as Mayor-elect of Baguio
City. (Rollo, p. 7, GR No. 105384; emphasis
supplied)
and further prays this Court "to proclaim as the Mayor-elect
of Baguio City the candidate who may have garnered the
most number of votes after the exclusion of the name of
respondent candidate LABO." (Rollo, p. 15, Ibid.) Implicit,
therefore, is petitioner Ortega's desire to be proclaimed
Mayor-elect of Baguio City.
As discussed hereunder, however, the Court finds Ortega's
prayer devoid of merit.
While Ortega may have garnered the second highest
number of votes for the office of city mayor, the fact remains
that he was not the choice of the sovereign will. Petitioner
Labo was overwhelmingly voted by the electorate for the
office of mayor in the belief that he was then qualified to
serve the people of Baguio City and his subsequent
disqualification does not make respondent Ortega the
mayor-elect. This is the import of the recent case of Abella v.
Comelec (201 SCRA 253 [1991]), wherein we held that:
While it is true that SPC No. 88-546 was originally a
petition to deny due course to the certificate of
candidacy of Larrazabal and was filed before
Larrazabal could be proclaimed, the fact remains
that the local elections of Feb. 1, 1988 in the
province of Leyte proceeded with Larrazabal
considered as a bona fide candidate. The voters of
the province voted for her in the sincere belief that
she was a qualified candidate for the position of
governor. Her votes was counted and she obtained
the highest number of votes. The net effect is that
petitioner lost in the election. He was repudiated by
the electorate. . . . What matters is that in the event
a candidate for an elected position who is voted for

4 | Page

Finally, there is the question of whether or not the

private respondent, who filed the quo
warrantopetition, 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 in this issue is Santos
v. Commission on Election, (137 SCRA 740)
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
(Cuevas, J., ponente, with Makasiar, Concepcion,
Jr., Escolin, Relova, De la Fuente, Alampay, and
Aquino JJ., concurring) with three dissenting
(Teehankee, actingC.J., Abad Santos and MelencioHerrera) and another two reserving their votes
(Plana and Gutierrez, Jr.). One was on official leave
(Fernando, C.J.)
Re-examining that decision, the Court finds, and so
holds, that it should be reversed in favor of the
earlier case of Geronimo v. Santos (136 SCRA
435), which represents the more logical and
democratic rule. That case, which reiterated the
doctrine first announced in 1912 in Topacio vs.
Paredes (23 Phil. 238) was supported by ten
members of the Court (Gutierrez, Jr.,
J., ponente, with Teehankee, Abad Santos,
Melencio-Herrera, Plana, Escolin, Relova, De la
Fuente, Cuevas and Alampay, JJ., concurring),
without any dissent, . . . . 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 did 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 a 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 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 that candidate was
alive, qualified, or eligible, they should not be
treated as stray, void or meaningless.
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.
Indeed, this has been the rule in the United States since
1849 (State ex rel. Dunning v. Giles, 52 Am. Dec. 149).
It is therefore incorrect to argue that since a candidate has
been disqualified, the votes intended for the disqualified
candidate should, in effect, be considered null and void. This
would amount to disenfranchising the electorate in whom
sovereignty resides. At the risk of being repetitious, the
people of Baguio City opted to elect petitioner Labo bona
fide, without any intention to misapply their franchise, and in
the honest belief that Labo was then qualified to be the
person to whom they would entrust the exercise of the
powers of the government. Unfortunately, petitioner Labo
turned out to be disqualified and cannot assume the office.

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.
As aforesaid, the ineligibility of a candidate receiving majority
votes does not entitle the candidate receiving the next
highest number of votes to be declared elected. Ortega
failed to satisfy the necessary requisite of winning the
election either by a majority or mere plurality of votes
sufficient to elevate him in public office as mayor of Baguio
City. Having lost in the election for mayor, petitioner Ortega
was obviously not the choice of the people of Baguio City.
As a consequence of petitioners' ineligibility, a permanent
vacancy in the contested office has occurred. This should
now be filled by the vice-mayor, in accordance with Sec. 44
of the Local Government Code, to wit:
Chapter 2. Vacancies and Succession
Sec. 44. Permanent Vacancies in the Offices of the
Governor, Vice-Governor, Mayor and Vice-Mayor.
(a) If a permanent vacancy occurs in the office of
the governor or mayor, the vice-governor or the
vice-mayor concerned shall become the governor
or mayor. . . . (emphasis supplied)
WHEREFORE, the instant petitions are DISMISSED for lack
of merit. Petitioners both being ineligible for the Office of the
City Mayor of Baguio City and in view of the vacancy created
in said office, the vice-mayor elect of said city in the May 11,
1992 elections is hereby declared Mayor of Baguio City after
proclamation by the City Board of Canvassers. No costs.
SO ORDERED.
Narvasa, C.J., Cruz, Paras, Feliciano, Padilla, Grio-Aquino,
Medialdea, Regalado, Davide, Jr., Romero, Nocon and
Bellosillo, JJ., concur.

Whether or not the candidate whom the majority voted for

can or cannot be installed, under no circumstances can a
minority or defeated candidate be deemed elected to the
office. Surely, the 12,602 votes cast for petitioner Ortega is
not a larger number than the 27,471 votes cast for petitioner
Labo (as certified by the Election Registrar of Baguio
City; rollo, p. 109; GR No. 105111).
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.

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. 195649

CASAN MACODE MAQUILING, Petitioner,

vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO y
CAGOCO, LINOG G. BALUA, Respondents.
DECISION
SERENO, CJ.:

5 | Page

April 16, 2013

THE CASE
This is a Petition for Certiorari ender Rule 64 in conjunction
with Rule 65 of the Rules of Court to review the Resolutions
of the Commission on Elections (COMELEC). The
Resolution1 in SPA No. 10-1 09(DC) of the COMELEC First
Division dated 5 October 201 0 is being assailed for applying
Section 44 of the Local Government Code while the
Resolution2 of the COMELEC En Banc dated 2 February
2011 is being questioned for finding that respondent Rommel
Arnado y Cagoco (respondent Arnado/Arnado) is solely a
Filipino citizen qualified to run for public office despite his
continued use of a U.S. passport.
FACTS
Respondent Arnado is a natural born Filipino
citizen.3 However, as a consequence of his subsequent
naturalization as a citizen of the United States of America, he
lost his Filipino citizenship. Arnado applied for repatriation
under Republic Act (R.A.) No. 9225 before the Consulate
General of the Philippines in San Franciso, USA and took the
Oath of Allegiance to the Republic of the Philippines on 10
July 2008.4 On the same day an Order of Approval of his
Citizenship Retention and Re-acquisition was issued in his
favor.5
The aforementioned Oath of Allegiance states:
I, Rommel Cagoco Arnado, solemnly swear that I will support
and defend the Constitution of the Republic of the
Philippines and obey the laws and legal orders promulgated
by the duly constituted authorities of the Philippines and I
hereby declare that I recognize and accept the supreme
authority of the Philippines and will maintain true faith and
allegiance thereto; and that I impose this obligation upon
myself voluntarily without mental reservation or purpose of
evasion.6
On 3 April 2009 Arnado again took his Oath of Allegiance to
the Republic and executed an Affidavit of Renunciation of his
foreign citizenship, which states:
I, Rommel Cagoco Arnado, do solemnly swear that I
absolutely and perpetually renounce all allegiance and
fidelity to the UNITED STATES OF AMERICA of which I am a
citizen, and I divest myself of full employment of all civil and
political rights and privileges of the United States of America.
I solemnly swear that all the foregoing statement is true and
correct to the best of my knowledge and belief.7
On 30 November 2009, Arnado filed his Certificate of
Candidacy for Mayor of Kauswagan, Lanao del Norte, which
contains, among others, the following statements:
I am a natural born Filipino citizen / naturalized Filipino
citizen.
I am not a permanent resident of, or immigrant to, a foreign
country.
I am eligible for the office I seek to be elected to.
I will support and defend the Constitution of the Republic of
the Philippines and will maintain true faith and allegiance

6 | Page

thereto. I will obey the laws, legal orders and decrees

promulgated by the duly constituted authorities.
I impose this obligation upon myself voluntarily without
mental reservation or purpose of evasion.8
On 28 April 2010, respondent Linog C. Balua (Balua),
another mayoralty candidate, filed a petition to disqualify
Arnado and/or to cancel his certificate of candidacy for
municipal mayor of Kauswagan, Lanao del Norte in
connection with the 10 May 2010 local and national
elections.9
Respondent Balua contended that Arnado is not a resident of
Kauswagan, Lanao del Norte and that he is a foreigner,
attaching thereto a certification issued by the Bureau of
Immigration dated 23 April 2010 indicating the nationality of
Arnado as "USA-American."10To further bolster his claim of
Arnados US citizenship, Balua presented in his
Memorandum a computer-generated travel record11 dated 03
December 2009 indicating that Arnado has been using his
US Passport No. 057782700 in entering and departing the
Philippines. The said record shows that Arnado left the
country on 14 April 2009 and returned on 25 June 2009, and
again departed on 29 July 2009, arriving back in the
Philippines on 24 November 2009.
Balua likewise presented a certification from the Bureau of
Immigration dated 23 April 2010, certifying that the name
"Arnado, Rommel Cagoco" appears in the available
Computer Database/Passenger manifest/IBM listing on file
as of 21 April 2010, with the following pertinent travel
records:
DATE OF Arrival : 01/12/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 057782700
DATE OF Arrival : 03/23/2010
NATIONALITY : USA-AMERICAN
PASSPORT : 05778270012
On 30 April 2010, the COMELEC (First Division) issued an
Order13 requiring the respondent to personally file his answer
and memorandum within three (3) days from receipt thereof.
After Arnado failed to answer the petition, Balua moved to
declare him in default and to present evidence ex-parte.
Neither motion was acted upon, having been overtaken by
the 2010 elections where Arnado garnered the highest
number of votes and was subsequently proclaimed as the
winning candidate for Mayor of Kauswagan, Lanao del
Norte.
It was only after his proclamation that Arnado filed his
verified answer, submitting the following documents as
evidence:14
1. Affidavit of Renunciation and Oath of Allegiance
to the Republic of the Philippines dated 03 April
2009;

2. Joint-Affidavit dated 31 May 2010 of Engr. Virgil

Seno, Virginia Branzuela, Leoncio Daligdig, and
Jessy Corpin, all neighbors of Arnado, attesting that
Arnado is a long-time resident of Kauswagan and
that he has been conspicuously and continuously
residing in his familys ancestral house in
Kauswagan;
3. Certification from the Punong Barangay of
Poblacion, Kauswagan, Lanao del Norte dated 03
June 2010 stating that Arnado is a bona fide
resident of his barangay and that Arnado went to
the United States in 1985 to work and returned to
the Philippines in 2009;
4. Certification dated 31 May 2010 from the
Municipal Local Government Operations Office of
Kauswagan stating that Dr. Maximo P. Arnado, Sr.
served as Mayor of Kauswagan, from January 1964
to June 1974 and from 15 February 1979 to 15 April
1986; and
5. Voter Certification issued by the Election Officer
of Kauswagan certifying that Arnado has been a
registered voter of Kauswagan since 03 April 2009.
THE RULING OF THE COMELEC FIRST DIVISION
Instead of treating the Petition as an action for the
cancellation of a certificate of candidacy based on
misrepresentation,15 the COMELEC First Division considered
it as one for disqualification. Baluas contention that Arnado
is a resident of the United States was dismissed upon the
finding that "Balua failed to present any evidence to support
his contention,"16 whereas the First Division still could "not
conclude that Arnado failed to meet the one-year residency
requirement under the Local Government Code."17
In the matter of the issue of citizenship, however, the First
Division disagreed with Arnados claim that he is a Filipino
citizen.18
We find that although Arnado appears to have substantially
complied with the requirements of R.A. No. 9225, Arnados
act of consistently using his US passport after renouncing his
US citizenship on 03 April 2009 effectively negated his
Affidavit of Renunciation.
xxxx
Arnados continued use of his US passport is a strong
indication that Arnado had no real intention to renounce his
US citizenship and that he only executed an Affidavit of
Renunciation to enable him to run for office. We cannot turn
a blind eye to the glaring inconsistency between Arnados
unexplained use of a US passport six times and his claim
that he re-acquired his Philippine citizenship and renounced
his US citizenship. As noted by the Supreme Court in the Yu
case, "a passport is defined as an official document of
identity and nationality issued to a person intending to travel
or sojourn in foreign countries." Surely, one who truly
divested himself of US citizenship would not continue to avail
of privileges reserved solely for US nationals.19
The dispositive portion of the Resolution rendered by the
COMELEC

7 | Page

First Division reads:

WHEREFORE, in view of the foregoing, the petition for
disqualification and/or to cancel the certificate of candidacy
of Rommel C. Arnado is hereby GRANTED. Rommel C.
Arnados proclamation as the winning candidate for
Municipal Mayor of Kauswagan, Lanao del Nore is hereby
ANNULLED. Let the order of succession under Section 44 of
the Local Government Code of 1991 take effect.20
The Motion for Reconsideration and
the Motion for Intervention
Arnado sought reconsideration of the resolution before the
COMELEC En Banc on the ground that "the evidence is
insufficient to justify the Resolution and that the said
Resolution is contrary to law."21 He raised the following
contentions:22
1. The finding that he is not a Filipino citizen is not
supported by the evidence consisting of his Oath of
Allegiance and the Affidavit of Renunciation, which
show that he has substantially complied with the
requirements of R.A. No. 9225;
2. The use of his US passport subsequent to his
renunciation of his American citizenship is not
tantamount to a repudiation of his Filipino
citizenship, as he did not perform any act to swear
allegiance to a country other than the Philippines;
3. He used his US passport only because he was
not informed of the issuance of his Philippine
passport, and that he used his Philippine passport
after he obtained it;
4. Baluas petition to cancel the certificate of
candidacy of Arnado was filed out of time, and the
First Divisions treatment of the petition as one for
disqualification constitutes grave abuse of
discretion amounting to excess of jurisdiction;23
5. He is undoubtedly the peoples choice as
indicated by his winning the elections;
6. His proclamation as the winning candidate
ousted the COMELEC from jurisdiction over the
case; and
7. The proper remedy to question his citizenship is
through a petition for quo warranto, which should
have been filed within ten days from his
proclamation.
Petitioner Casan Macode Maquiling (Maquiling), another
candidate for mayor of Kauswagan, and who garnered the
second highest number of votes in the 2010 elections,
intervened in the case and filed before the COMELEC En
Banc a Motion for Reconsideration together with an
Opposition to Arnados Amended Motion for Reconsideration.
Maquiling argued that while the First Division correctly
disqualified Arnado, the order of succession under Section
44 of the Local Government Code is not applicable in this
case. Consequently, he claimed that the cancellation of
Arnados candidacy and the nullification of his proclamation,
Maquiling, as the legitimate candidate who obtained the

highest number of lawful votes, should be proclaimed as the

winner.
Maquiling simultaneously filed his Memorandum with his
Motion for Intervention and his Motion for Reconsideration.
Arnado opposed all motions filed by Maquiling, claiming that
intervention is prohibited after a decision has already been
rendered, and that as a second-placer, Maquiling
undoubtedly lost the elections and thus does not stand to be
prejudiced or benefitted by the final adjudication of the case.
RULING OF THE COMELEC EN BANC
In its Resolution of 02 February 2011, the COMELEC En
Banc held that under Section 6 of Republic Act No. 6646, the
Commission "shall continue with the trial and hearing of the
action, inquiry or protest even after the proclamation of the
candidate whose qualifications for office is questioned."
As to Maquilings intervention, the COMELEC En Banc also
cited Section 6 of R.A. No. 6646 which allows intervention in
proceedings for disqualification even after elections if no final
judgment has been rendered, but went on further to say that
Maquiling, as the second placer, would not be prejudiced by
the outcome of the case as it agrees with the dispositive
portion of the Resolution of the First Division allowing the
order of succession under Section 44 of the Local
Government Code to take effect.
The COMELEC En Banc agreed with the treatment by the
First Division of the petition as one for disqualification, and
ruled that the petition was filed well within the period
prescribed by law,24 having been filed on 28 April 2010,
which is not later than 11 May 2010, the date of
proclamation.
However, the COMELEC En Banc reversed and set aside
the ruling of the First Division and granted Arnados Motion
for Reconsideration, on the following premises:
First:
By renouncing his US citizenship as imposed by R.A. No.
9225, the respondent embraced his Philippine citizenship as
though he never became a citizen of another country. It was
at that time, April 3, 2009, that the respondent became a
pure Philippine Citizen again.
xxxx
The use of a US passport does not operate to revert back
his status as a dual citizen prior to his renunciation as there
is no law saying such. More succinctly, the use of a US
passport does not operate to "un-renounce" what he has
earlier on renounced. The First Divisions reliance in the case
of In Re: Petition for Habeas Corpus of Willy Yu v. DefensorSantiago, et al. is misplaced. The petitioner in the said case
is a naturalized citizen who, after taking his oath as a
naturalized Filipino, applied for the renewal of his
Portuguese passport. Strict policy is maintained in the
conduct of citizens who are not natural born, who acquire
their citizenship by choice, thus discarding their original
citizenship. The Philippine State expects strict conduct of
allegiance to those who choose to be its citizens. In the
present case, respondent is not a naturalized citizen but a
natural born citizen who chose greener pastures by working
abroad and then decided to repatriate to supposedly help in
the progress of Kauswagan. He did not apply for a US

8 | Page

passport after his renunciation. Thus the mentioned case is

not on all fours with the case at bar.
xxxx
The respondent presented a plausible explanation as to the
use of his US passport. Although he applied for a Philippine
passport, the passport was only issued on June 18, 2009.
However, he was not notified of the issuance of his
Philippine passport so that he was actually able to get it
about three (3) months later. Yet as soon as he was in
possession of his Philippine passport, the respondent
already used the same in his subsequent travels abroad.
This fact is proven by the respondents submission of a
certified true copy of his passport showing that he used the
same for his travels on the following dates: January 31,
2010, April 16, 2010, May 20, 2010, January 12, 2010,
March 31, 2010 and June 4, 2010. This then shows that the
use of the US passport was because to his knowledge, his
Philippine passport was not yet issued to him for his use. As
probably pressing needs might be undertaken, the
respondent used whatever is within his control during that
time.25
In his Separate Concurring Opinion, COMELEC Chairman
Sixto Brillantes cited that the use of foreign passport is not
one of the grounds provided for under Section 1 of
Commonwealth Act No. 63 through which Philippine
citizenship may be lost.
"The application of the more assimilative principle of
continuity of citizenship is more appropriate in this case.
Under said principle, once a person becomes a citizen,
either by birth or naturalization, it is assumed that he desires
to continue to be a citizen, and this assumption stands until
he voluntarily denationalizes or expatriates himself. Thus, in
the instant case respondent after reacquiring his Philippine
citizenship should be presumed to have remained a Filipino
despite his use of his American passport in the absence of
clear, unequivocal and competent proof of expatriation.
Accordingly, all doubts should be resolved in favor of
retention of citizenship."26
On the other hand, Commissioner Rene V. Sarmiento
dissented, thus:
Respondent evidently failed to prove that he truly and
wholeheartedly abandoned his allegiance to the United
States. The latters continued use of his US passport and
enjoyment of all the privileges of a US citizen despite his
previous renunciation of the afore-mentioned citizenship runs
contrary to his declaration that he chose to retain only his
Philippine citizenship. Respondents submission with the twin
requirements was obviously only for the purpose of
complying with the requirements for running for the
mayoralty post in connection with the May 10, 2010
Automated National and Local Elections.
Qualifications for elective office, such as citizenship, are
continuing requirements; once any of them is lost during his
incumbency, title to the office itself is deemed forfeited. If a
candidate is not a citizen at the time he ran for office or if he
lost his citizenship after his election to office, he is
disqualified to serve as such. Neither does the fact that
respondent obtained the plurality of votes for the mayoralty
post cure the latters failure to comply with the qualification
requirements regarding his citizenship.

Since a disqualified candidate is no candidate at all in the

eyes of the law, his having received the highest number of
votes does not validate his election. It has been held that
where a petition for disqualification was filed before election
against a candidate but was adversely resolved against him
after election, his having obtained the highest number of
votes did not make his election valid. His ouster from office
does not violate the principle of vox populi suprema est lex
because the application of the constitutional and statutory
provisions on disqualification is not a matter of popularity. To
apply it is to breath[e] life to the sovereign will of the people
who expressed it when they ratified the Constitution and
when they elected their representatives who enacted the
law.27
THE PETITION BEFORE THE COURT
Maquiling filed the instant petition questioning the propriety
of declaring Arnado qualified to run for public office despite
his continued use of a US passport, and praying that
Maquiling be proclaimed as the winner in the 2010 mayoralty
race in Kauswagan, Lanao del Norte.
Ascribing both grave abuse of discretion and reversible error
on the part of the COMELEC En Banc for ruling that Arnado
is a Filipino citizen despite his continued use of a US
passport, Maquiling now seeks to reverse the finding of the
COMELEC En Banc that Arnado is qualified to run for public
office.
Corollary to his plea to reverse the ruling of the COMELEC
En Banc or to affirm the First Divisions disqualification of
Arnado, Maquiling also seeks the review of the applicability
of Section 44 of the Local Government Code, claiming that
the COMELEC committed reversible error in ruling that "the
succession of the vice mayor in case the respondent is
disqualified is in order."
There are three questions posed by the parties before this
Court which will be addressed seriatim as the subsequent
questions hinge on the result of the first.
The first question is whether or not intervention is allowed in
a disqualification case.
The second question is whether or not the use of a foreign
passport after renouncing foreign citizenship amounts to
undoing a renunciation earlier made.
A better framing of the question though should be whether or
not the use of a foreign passport after renouncing foreign
citizenship affects ones qualifications to run for public office.
The third question is whether or not the rule on succession in
the Local Government Code is applicable to this case.
OUR RULING
Intervention of a rival candidate in a
disqualification case is proper when
there has not yet been any
proclamation of the winner.
Petitioner Casan Macode Maquiling intervened at the stage
when respondent Arnado filed a Motion for Reconsideration
of the First Division Resolution before the COMELEC En
Banc. As the candidate who garnered the second highest

9 | Page

number of votes, Maquiling contends that he has an interest

in the disqualification case filed against Arnado, considering
that in the event the latter is disqualified, the votes cast for
him should be considered stray and the second-placer
should be proclaimed as the winner in the elections.
It must be emphasized that while the original petition before
the COMELEC is one for cancellation of the certificate of
candidacy and / or disqualification, the COMELEC First
Division and the COMELEC En Banc correctly treated the
petition as one for disqualification.
The effect of a disqualification case is enunciated in Section
6 of R.A. No. 6646:
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.
Mercado v. Manzano28
clarified the right of intervention in a disqualification case. In
that case, the Court said:
That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private
respondent is clear from Section 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.29
Clearly then, Maquiling has the right to intervene in the case.
The fact that the COMELEC En Banc has already ruled that
Maquiling has not shown that the requisites for the
exemption to the second-placer rule set forth in Sinsuat v.
COMELEC30 are present and therefore would not be
prejudiced by the outcome of the case, does not deprive
Maquiling of the right to elevate the matter before this Court.
Arnados claim that the main case has attained finality as the
original petitioner and respondents therein have not
appealed the decision of the COMELEC En Banc, cannot be
sustained. The elevation of the case by the intervenor
prevents it from attaining finality. It is only after this Court has
ruled upon the issues raised in this instant petition that the
disqualification case originally filed by Balua against Arnado
will attain finality.

The use of foreign passport after renouncing ones

foreign citizenship is a positive and voluntary act of
representation as to ones nationality and citizenship; it
does not divest Filipino citizenship regained by
repatriation but it recants the Oath of Renunciation
required to qualify one to run for an elective position.
Section 5(2) of The Citizenship Retention and Re-acquisition
Act of 2003 provides:
Those who retain or re-acquire Philippine citizenship under
this Act shall enjoy full civil and political rights and be subject
to all attendant liabilities and responsibilities under existing
laws of the Philippines and the following conditions:
xxxx
(2)Those seeking elective public in the Philippines shall meet
the qualification for holding such public office as required by
the Constitution and existing laws and, at the time of the
filing of the certificate of candidacy, make a personal and
sworn renunciation of any and all foreign before any public
officer authorized to administer an oath.
x x x31
Rommel Arnado took all the necessary steps to qualify to run
for a public office. He took the Oath of Allegiance and
renounced his foreign citizenship. There is no question that
after performing these twin requirements required under
Section 5(2) of R.A. No. 9225 or the Citizenship Retention
and Re-acquisition Act of 2003, he became eligible to run for
public office.
Indeed, Arnado took the Oath of Allegiance not just only
once but twice: first, on 10 July 2008 when he applied for
repatriation before the Consulate General of the Philippines
in San Francisco, USA, and again on 03 April 2009
simultaneous with the execution of his Affidavit of
Renunciation. By taking the Oath of Allegiance to the
Republic, Arnado re-acquired his Philippine citizenship. At
the time, however, he likewise possessed American
citizenship. Arnado had therefore become a dual citizen.
After reacquiring his Philippine citizenship, Arnado
renounced his American citizenship by executing an Affidavit
of Renunciation, thus completing the requirements for
eligibility to run for public office.
By renouncing his foreign citizenship, he was deemed to be
solely a Filipino citizen, regardless of the effect of such
renunciation under the laws of the foreign country.32
However, this legal presumption does not operate
permanently and is open to attack when, after renouncing
the foreign citizenship, the citizen performs positive acts
showing his continued possession of a foreign citizenship.33
Arnado himself subjected the issue of his citizenship to
attack when, after renouncing his foreign citizenship, he
continued to use his US passport to travel in and out of the
country before filing his certificate of candidacy on 30
November 2009. The pivotal question to determine is
whether he was solely and exclusively a Filipino citizen at
the time he filed his certificate of candidacy, thereby
rendering him eligible to run for public office.

10 | P a g e

Between 03 April 2009, the date he renounced his foreign

citizenship, and 30 November 2009, the date he filed his
COC, he used his US passport four times, actions that run
counter to the affidavit of renunciation he had earlier
executed. By using his foreign passport, Arnado positively
and voluntarily represented himself as an American, in effect
declaring before immigration authorities of both countries
that he is an American citizen, with all attendant rights and
privileges granted by the United States of America.
The renunciation of foreign citizenship is not a hollow oath
that can simply be professed at any time, only to be violated
the next day. It requires an absolute and perpetual
renunciation of the foreign citizenship and a full divestment
of all civil and political rights granted by the foreign country
which granted the citizenship.
Mercado v. Manzano34 already hinted at this situation when
the Court declared:
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, 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
anyone who, in electing Philippine citizenship, renounces his
foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.
While the act of using a foreign passport is not one of the
acts enumerated in Commonwealth Act No. 63 constituting
renunciation and loss of Philippine citizenship,35 it is
nevertheless an act which repudiates the very oath of
renunciation required for a former Filipino citizen who is also
a citizen of another country to be qualified to run for a local
elective position.
When Arnado used his US passport on 14 April 2009, or just
eleven days after he renounced his American citizenship, he
recanted his Oath of Renunciation36 that he "absolutely and
perpetually renounce(s) all allegiance and fidelity to the
UNITED STATES OF AMERICA"37 and that he "divest(s)
himself of full employment of all civil and political rights and
privileges of the United States of America."38
We agree with the COMELEC En Banc that such act of using
a foreign passport does not divest Arnado of his Filipino
citizenship, which he acquired by repatriation. However, by
representing himself as an American citizen, Arnado
voluntarily and effectively reverted to his earlier status as a
dual citizen. Such reversion was not retroactive; it took place
the instant Arnado represented himself as an American
citizen by using his US passport.
This act of using a foreign passport after renouncing ones
foreign citizenship is fatal to Arnados bid for public office, as
it effectively imposed on him a disqualification to run for an
elective local position.
Arnados category of dual citizenship is that by which foreign
citizenship is acquired through a positive act of applying for
naturalization. This is distinct from those considered dual
citizens by virtue of birth, who are not required by law to take

the oath of renunciation as the mere filing of the certificate of

candidacy already carries with it an implied renunciation of
foreign citizenship.39 Dual citizens by naturalization, on the
other hand, are required to take not only the Oath of
Allegiance to the Republic of the Philippines but also to
personally renounce foreign citizenship in order to qualify as
a candidate for public office.
By the time he filed his certificate of candidacy on 30
November 2009, Arnado was a dual citizen enjoying the
rights and privileges of Filipino and American citizenship. He
was qualified to vote, but by the express disqualification
under Section 40(d) of the Local Government Code,40 he was
not qualified to run for a local elective position.
In effect, Arnado was solely and exclusively a Filipino citizen
only for a period of eleven days, or from 3 April 2009 until 14
April 2009, on which date he first used his American
passport after renouncing his American citizenship.
This Court has previously ruled that:
Qualifications for public office are continuing requirements
and must be possessed not only at the time of appointment
or election or assumption of office but during the officer's
entire tenure. Once any of the required qualifications is lost,
his title may be seasonably challenged. x x x.41
The citizenship requirement for elective public office is a
continuing one. It must be possessed not just at the time of
the renunciation of the foreign citizenship but continuously.
Any act which violates the oath of renunciation opens the
citizenship issue to attack.
We agree with the pronouncement of the COMELEC First
Division that "Arnados act of consistently using his US
passport effectively negated his "Affidavit of
Renunciation."42 This does not mean, that he failed to comply
with the twin requirements under R.A. No. 9225, for he in
fact did.
It was after complying with the requirements that he
performed positive acts which effectively disqualified him
from running for an elective public office pursuant to Section
40(d) of the Local Government Code of 1991.
The purpose of the Local Government Code in disqualifying
dual citizens from running for any elective public office would
be thwarted if we were to allow a person who has earlier
renounced his foreign citizenship, but who subsequently
represents himself as a foreign citizen, to hold any public
office.
Arnado justifies the continued use of his US passport with
the explanation that he was not notified of the issuance of his
Philippine passport on 18 June 2009, as a result of which he
was only able to obtain his Philippine passport three (3)
months later.43
The COMELEC En Banc differentiated Arnado from Willy Yu,
the Portuguese national who sought naturalization as a
Filipino citizen and later applied for the renewal of his
Portuguese passport. That Arnado did not apply for a US
passport after his renunciation does not make his use of a
US passport less of an act that violated the Oath of
Renunciation he took. It was still a positive act of
representation as a US citizen before the immigration
officials of this country.

11 | P a g e

The COMELEC, in ruling favorably for Arnado, stated "Yet,

as soon as he was in possession of his Philippine passport,
the respondent already used the same in his subsequent
travels abroad."44 We cannot agree with the COMELEC.
Three months from June is September. If indeed, Arnado
used his Philippine passport as soon as he was in
possession of it, he would not have used his US passport on
24 November 2009.
Besides, Arnados subsequent use of his Philippine passport
does not correct the fact that after he renounced his foreign
citizenship and prior to filing his certificate of candidacy, he
used his US passport. In the same way that the use of his
foreign passport does not undo his Oath of Renunciation, his
subsequent use of his Philippine passport does not undo his
earlier use of his US passport.
Citizenship is not a matter of convenience. It is a badge of
identity that comes with attendant civil and political rights
accorded by the state to its citizens. It likewise demands the
concomitant duty to maintain allegiance to ones flag and
country. While those who acquire dual citizenship by choice
are afforded the right of suffrage, those who seek election or
appointment to public office are required to renounce their
foreign citizenship to be deserving of the public trust. Holding
public office demands full and undivided allegiance to the
Republic and to no other.
We therefore hold that Arnado, by using his US passport
after renouncing his American citizenship, has recanted the
same Oath of Renunciation he took. Section 40(d) of the
Local Government Code applies to his situation. He is
disqualified not only from holding the public office but even
from becoming a candidate in the May 2010 elections.
We now resolve the next issue.
Resolving the third issue necessitates revisiting Topacio v.
Paredes45 which is the jurisprudential spring of the principle
that a second-placer cannot be proclaimed as the winner in
an election contest. This doctrine must be re-examined and
its soundness once again put to the test to address the everrecurring issue that a second-placer who loses to an
ineligible candidate cannot be proclaimed as the winner in
the elections.
The Facts of the case are as follows:
On June 4, 1912, a general election was held in the town of
Imus, Province of Cavite, to fill the office of municipal
president. The petitioner, Felipe Topacio, and the
respondent, Maximo Abad, were opposing candidates for
that office. Topacio received 430 votes, and Abad 281. Abad
contested the election upon the sole ground that Topacio
was ineligible in that he was reelected the second time to the
office of the municipal president on June 4, 1912, without the
four years required by Act No. 2045 having intervened.46
Abad thus questioned the eligibility of To p a c i o on the
basis of a statutory prohibition for seeking a second reelection absent the four year interruption.
The often-quoted phrase in Topacio v. Paredes is that "the
wreath of victory cannot be transferred from an ineligible
candidate to any other candidate when the sole question is
the eligibility of the one receiving a plurality of the legally cast
ballots."47

This phrase is not even the ratio decidendi; it is a mere obiter

dictum. The Court was comparing "the effect of a decision
that a candidate is not entitled to the office because of fraud
or irregularities in the elections x x x with that produced by
declaring a person ineligible to hold such an office."
The complete sentence where the phrase is found is part of
a comparison and contrast between the two situations, thus:
Again, the effect of a decision that a candidate is not entitled
to the office because of fraud or irregularities in the elections
is quite different from that produced by declaring a person
ineligible to hold such an office. In the former case the court,
after an examination of the ballots may find that some other
person than the candidate declared to have received a
plurality by the board of canvassers actually received the
greater number of votes, in which case the court issues its
mandamus to the board of canvassers to correct the returns
accordingly; or it may find that the manner of holding the
election and the returns are so tainted with fraud or illegality
that it cannot be determined who received a plurality of the
legally cast ballots. In the latter case, no question as to the
correctness of the returns or the manner of casting and
counting the ballots is before the deciding power, and
generally the only result can be that the election fails entirely.
In the former, we have a contest in the strict sense of the
word, because of the opposing parties are striving for
supremacy. If it be found that the successful candidate
(according to the board of canvassers) obtained a plurality in
an illegal manner, and that another candidate was the real
victor, the former must retire in favor of the latter. In the other
case, there is not, strictly speaking, a contest, as the wreath
of victory cannot be transferred from an ineligible candidate
to any other candidate when the sole question is the
eligibility of the one receiving a plurality of the legally cast
ballots. In the one case the question is as to who received a
plurality of the legally cast ballots; in the other, the question
is confined to the personal character and circumstances of a
single individual.48 (Emphasis supplied)
Note that the sentence where the phrase is found starts with
"In the other case, there is not, strictly speaking, a contest" in
contrast to the earlier statement, "In the former, we have a
contest in the strict sense of the word, because of the
opposing parties are striving for supremacy."
The Court in Topacio v. Paredes cannot be said to have held
that "the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the
legally cast ballots."
A proper reading of the case reveals that the ruling therein is
that since the Court of First Instance is without jurisdiction to
try a disqualification case based on the eligibility of the
person who obtained the highest number of votes in the
election, its jurisdiction being confined "to determine which of
the contestants has been duly elected" the judge exceeded
his jurisdiction when he "declared that no one had been
legally elected president of the municipality of Imus at the
general election held in that town on 4 June 1912" where
"the only question raised was whether or not Topacio was
eligible to be elected and to hold the office of municipal
president."
The Court did not rule that Topacio was disqualified and that
Abad as the second placer cannot be proclaimed in his
stead. The Court therein ruled:

12 | P a g e

For the foregoing reasons, we are of the opinion and so hold

that the respondent judge exceeded his jurisdiction in
declaring in those proceedings that no one was elected
municipal president of the municipality of Imus at the last
general election; and that said order and all subsequent
proceedings based thereon are null and void and of no
effect; and, although this decision is rendered on
respondents' answer to the order to show cause, unless
respondents raised some new and additional issues, let
judgment be entered accordingly in 5 days, without costs. So
ordered.49
On closer scrutiny, the phrase relied upon by a host of
decisions does not even have a legal basis to stand on. It
was a mere pronouncement of the Court comparing one
process with another and explaining the effects thereof. As
an independent statement, it is even illogical.
Let us examine the statement:
"x x x the wreath of victory cannot be transferred from an
ineligible candidate to any other candidate when the sole
question is the eligibility of the one receiving a plurality of the
legally cast ballots."
What prevents the transfer of the wreath of victory from the
ineligible candidate to another candidate?
When the issue being decided upon by the Court is the
eligibility of the one receiving a plurality of the legally cast
ballots and ineligibility is thereafter established, what stops
the Court from adjudging another eligible candidate who
received the next highest number of votes as the winner and
bestowing upon him that "wreath?"
An ineligible candidate who receives the highest number of
votes is a wrongful winner. By express legal mandate, he
could not even have been a candidate in the first place, but
by virtue of the lack of material time or any other intervening
circumstances, his ineligibility might not have been passed
upon prior to election date. Consequently, he may have had
the opportunity to hold himself out to the electorate as a
legitimate and duly qualified candidate. However,
notwithstanding the outcome of the elections, his ineligibility
as a candidate remains unchanged. Ineligibility does not only
pertain to his qualifications as a candidate but necessarily
affects his right to hold public office. The number of ballots
cast in his favor cannot cure the defect of failure to qualify
with the substantive legal requirements of eligibility to run for
public office.
The popular vote does not cure the
ineligibility of a candidate.
The ballot cannot override the constitutional and statutory
requirements for qualifications and disqualifications of
candidates. When the law requires certain qualifications to
be possessed or that certain disqualifications be not
possessed by persons desiring to serve as elective public
officials, those qualifications must be met before one even
becomes a candidate. When a person who is not qualified is
voted for and eventually garners the highest number of
votes, even the will of the electorate expressed through the
ballot cannot cure the defect in the qualifications of the
candidate. To rule otherwise is to trample upon and rent
asunder the very law that sets forth the qualifications and
disqualifications of candidates. We might as well write off our
election laws if the voice of the electorate is the sole

determinant of who should be proclaimed worthy to occupy

elective positions in our republic.
This has been, in fact, already laid down by the Court in
Frivaldo v. COMELEC50 when we pronounced:
x x x. The fact that he was elected by the people of Sorsogon
does not excuse this patent violation of the salutary rule
limiting public office and employment only to the citizens of
this country. The 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.
Obviously, this rule requires strict application when the
deficiency is lack of citizenship. If a person seeks to serve in
the Republic of the Philippines, he must owe his total loyalty
to this country only, abjuring and renouncing all fealty and
fidelity to any other state.51 (Emphasis supplied)
This issue has also been jurisprudentially clarified in Velasco
v. COMELEC52 where the Court ruled that the ruling in
Quizon and Saya-ang cannot be interpreted without
qualifications lest "Election victory x x x becomes a magic
formula to bypass election eligibility requirements."53
We have ruled in the past that a candidates victory in the
election may be considered a sufficient basis to rule in favor
of the candidate sought to be disqualified if the main issue
involves defects in the candidates certificate of candidacy.
We said that while provisions relating to certificates of
candidacy are mandatory in terms, it is an established rule of
interpretation as regards election laws, that mandatory
provisions requiring certain steps before elections will be
construed as directory after the elections, to give effect to the
will of the people. We so ruled in Quizon v. COMELEC and
Saya-ang v. COMELEC:
The present case perhaps presents the proper time and
opportunity to fine-tune our above ruling. We say this with
the realization that a blanket and unqualified reading and
application of this ruling can be fraught with dangerous
significance for the rule of law and the integrity of our
elections. For one, such blanket/unqualified reading may
provide a way around the law that effectively negates
election requirements aimed at providing the electorate with
the basic information to make an informed choice about a
candidates eligibility and fitness for office.
The first requirement that may fall when an unqualified
reading is made is Section 39 of the LGC which specifies the
basic qualifications of local government officials. Equally
susceptive of being rendered toothless is Section 74 of the
OEC that sets out what should be stated in a COC. Section
78 may likewise be emasculated as mere delay in the
resolution of the petition to cancel or deny due course to a
COC can render a Section 78 petition useless if a candidate
with false COC data wins. To state the obvious, candidates
may risk falsifying their COC qualifications if they know that
an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to
bypass election eligibility requirements. (Citations omitted)
What will stop an otherwise disqualified individual from filing
a seemingly valid COC, concealing any disqualification, and
employing every strategy to delay any disqualification case
filed against him so he can submit himself to the electorate

13 | P a g e

and win, if winning the election will guarantee a disregard of

constitutional and statutory provisions on qualifications and
disqualifications of candidates?
It is imperative to safeguard the expression of the sovereign
voice through the ballot by ensuring that its exercise
respects the rule of law. To allow the sovereign voice spoken
through the ballot to trump constitutional and statutory
provisions on qualifications and disqualifications of
candidates is not democracy or republicanism. It is electoral
anarchy. When set rules are disregarded and only the
electorates voice spoken through the ballot is made to
matter in the end, it precisely serves as an open invitation for
electoral anarchy to set in.1wphi1
Maquiling is not a second-placer as
he obtained the highest number of
votes from among the qualified
candidates.
With Arnados disqualification, Maquiling then becomes the
winner in the election as he obtained the highest number of
votes from among the qualified candidates.
We have ruled in the recent cases of Aratea v.
COMELEC54 and Jalosjos v. COMELEC55 that a void COC
cannot produce any legal effect.
Thus, the votes cast in favor of the ineligible candidate are
not considered at all in determining the winner of an election.
Even when the votes for the ineligible candidate are
disregarded, the will of the electorate is still respected, and
even more so. The votes cast in favor of an ineligible
candidate do not constitute the sole and total expression of
the sovereign voice. The votes cast in favor of eligible and
legitimate candidates form part of that voice and must also
be respected.
As in any contest, elections are governed by rules that
determine the qualifications and disqualifications of those
who are allowed to participate as players. When there are
participants who turn out to be ineligible, their victory is
voided and the laurel is awarded to the next in rank who
does not possess any of the disqualifications nor lacks any
of the qualifications set in the rules to be eligible as
candidates.
There is no need to apply the rule cited in Labo v.
COMELEC56 that when the voters are well aware within the
realm of notoriety of a candidates disqualification and still
cast their votes in favor said candidate, then the eligible
candidate obtaining the next higher number of votes may be
deemed elected. That rule is also a mere obiter that further
complicated the rules affecting qualified candidates who
placed second to ineligible ones.
The electorates awareness of the candidates
disqualification is not a prerequisite for the disqualification to
attach to the candidate. The very existence of a disqualifying
circumstance makes the candidate ineligible. Knowledge by
the electorate of a candidates disqualification is not
necessary before a qualified candidate who placed second
to a disqualified one can be proclaimed as the winner. The
second-placer in the vote count is actually the first-placer
among the qualified candidates.

That the disqualified candidate has already been proclaimed

and has assumed office is of no moment. The subsequent
disqualification based on a substantive ground that existed
prior to the filing of the certificate of candidacy voids not only
the COC but also the proclamation.
Section 6 of R.A. No. 6646 provides:
Section 6. Effect of Disqualification Case. - Any candidate
who has been declared by final judgment to be disqualified
shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final
judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such
election, the Court or Commission shall continue with the
trial and hearing of the action, inquiry, or protest and, upon
motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is
strong.

votes. Therefore, the rule on succession under the Local

Government Code will not apply.
WHEREFORE, premises considered, the Petition is
GRANTED. The Resolution of the COMELEC En Bane dated
2 February 2011 is hereby ANNULLED and SET ASIDE.
Respondent ROMMEL ARNADO y CAGOCO is disqualified
from running for any local elective position. CASAN
MACODE MAQUILING is hereby DECLARED the duly
elected Mayor of Kauswagan, Lanao del Norte in the 10 May
2010 elections.
This Decision is immediately executory.
Let a copy of this Decision be served personally upon the
parties and the Commission on Elections.
No pronouncement as to costs.
SO ORDERED.

There was no chance for Arnados proclamation to be

suspended under this rule because Arnado failed to file his
answer to the petition seeking his disqualification. Arnado
only filed his Answer on 15 June 2010, long after the
elections and after he was already proclaimed as the winner.

MARIA LOURDES P. A. SERENO

Chief Justice
WE CONCUR:

The disqualifying circumstance surrounding Arnados

candidacy involves his citizenship. It does not involve the
commission of election offenses as provided for in the first
sentence of Section 68 of the Omnibus Election Code, the
effect of which is to disqualify the individual from continuing
as a candidate, or if he has already been elected, from
holding the office.
The disqualifying circumstance affecting Arnado is his
citizenship. As earlier discussed, Arnado was both a Filipino
and an American citizen when he filed his certificate of
candidacy. He was a dual citizen disqualified to run for public
office based on Section 40(d) of the Local Government
Code.
Section 40 starts with the statement "The following persons
are disqualified from running for any elective local position."
The prohibition serves as a bar against the individuals who
fall under any of the enumeration from participating as
candidates in the election.
With Arnado being barred from even becoming a candidate,
his certificate of candidacy is thus rendered void from the
beginning. It could not have produced any other legal effect
except that Arnado rendered it impossible to effect his
disqualification prior to the elections because he filed his
answer to the petition when the elections were conducted
already and he was already proclaimed the winner.
To hold that such proclamation is valid is to negate the
prohibitory character of the disqualification which Arnado
possessed even prior to the filing of the certificate of
candidacy. The affirmation of Arnado's disqualification,
although made long after the elections, reaches back to the
filing of the certificate of candidacy. Arnado is declared to be
not a candidate at all in the May 201 0 elections.
Arnado being a non-candidate, the votes cast in his favor
should not have been counted. This leaves Maquiling as the
qualified candidate who obtained the highest number of

14 | P a g e

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 106053 August 17, 1994

OTTOMAMA BENITO, petitioner,
vs.
COMMISSION ON ELECTIONS, ABDALAWE M.
PAGRANGAN, and the Heirs of the Deceased Mayoralty
Candidate MURAD KISMEN SAMPIANO OGCA,
represented by CABILI SAMPIANO, respondents.
Pedro Q. Quadra and Macarupung B. Dibaratun for
petitioner.
Mangurun B. Batuampar and Romaraban D. Macabantog for
private respondents.

KAPUNAN, J.:
This special civil action for certiorari seeks to set aside the
following resolutions of respondent Commission on Elections
(COMELEC), viz: (a) Resolution dated June 11, 1992 in SPA
No. 92-147 and SPA No. 92-145 denying the Motion to
Suspend the Proclamation of Murad Kismen Sampiano Ogca
in the event that he is elected mayor of Balabagan, Lanao
del Sur; (b) Resolution dated June 29, 1992 in SPC No. 92303 directing the Municipal Board of Canvassers of
Balabagan, Lanao del Sur to proclaim the candidate who
obtained the highest number of votes during the May 11,
1992 election as the winner for the contested office; and (c)
Resolution dated July 6, 1992 in SPC No. 92- 163, SPC No.

92-303, and SPC No. 92-357 declaring the proclamation of

Ottomama Benito as winning candidate for mayor of
Balabagan, Lanao del Sur null and void and of no force and
effect. In the last resolution, the Municipal Board of
Canvassers was likewise directed to set aside the certificate
of canvass and proclamation and to prepare a new certificate
of canvass indicating therein that the winning candidate for
mayor is Hadji Murad Ogca but placing the information that
he died on May 20, 1992 for the purpose of applying the rule
on legal succession to office pursuant to Section 44 of R. A.
7160.
Petitioner assails the above-mentioned resolutions on the
ground that they were issued without jurisdiction and/or with
grave abuse of discretion amounting to lack of jurisdiction.

Meanwhile, the Municipal Board of Canvassers when asked

to exclude from tallying, counting and canvassing all votes
for and in the name of deceased mayoralty candidate Ogca,
ruled, on May 30, 1992, that:
1. The Board shall continue counting/tabulating all
the votes cast for deceased Mayoralty Candidate
Murad K. S. Ogca and Vice Mayoralty Candidate
Cadal Luks in the Statement of Votes by
Municipality/Precinct (CE Form No. 20-A) for
purposes of records only and for the reference and
guidance of the Commission on Elections, but it
shall not include them (Deceased Candidates) in
the Certificate of Canvass and Proclamation of
winning candidates (CE Form No. 25) in case they
won (sic), it being moot and academic.

The facts of the case are as follows:

Petitioner Ottomama Benito and the deceased Hadji Murad
Kismen Sampiano Ogca were candidates for mayor in the
municipality of Balabagan, Lanao del Sur in the May 11,
1992 election.
On May 1, 1992, Commission on Elections (COMELEC)
Deputy for Balabagan, Lanao del Sur, Sultan Kisa D.
Mikunug filed a petition for disqualification against Murad
Kismen Sampiano Ogca. Mikunug alleged that at around five
o'clock in the afternoon of April 28, 1992, while inside a
billiard hall, Ogca asked him to work for the former's reelection. However, when Mikunug refused, Ogca struck him
on the head with a billiard cue. 1
On May 6, 1992, the COMELEC referred the disqualification
petition to its Law Department for investigation. 2 In turn, the
Law Department referred the same to the Director of the
Office of the Regional Election Director of Cotabato City for
investigation. 3
On June 10, 1992, the Regional Election Director of
Cotabato City issued a resolution stating that there was
aprima facie case against Ogca and that the latter was
probably guilty of the charges in the petition for
disqualification. 4
Thereafter, nothing more was heard of the petition for
disqualification.
In the meantime, on May 20, 1992, candidate Ogca was
killed in an ambush while returning home from the residence
of Lanao del Sur Governor Saidamen Pangarungan in
Marawi City.
On the same date, petitioner, probably not aware of the
death of his opponent, filed a motion to suspend the
proclamation of Ogca as elected mayor of Balabagan, Lanao
del Sur, contending that there was strong evidence of guilt
against him in the disqualification case. 5
Resolving the motion to suspend proclamation, the
COMELEC, on June 11, 1992, denied the same stating that
Murad Kismen Sampiano Ogca was dead, hence, his
proclamation as winner was essential to pave the way for
succession by the Vice-Mayor-elect as provided for in
Section 44 of the Local Government Code of 1991 (R. A.
7160). 6

2. The Board shall exclude the names of the

deceased Mayoralty candidate Murad K. S. Ogca
and Vice Mayoralty candidate Cadal Luks from the
list of the LIVING candidates including the votes
obtained by them (Deceased Candidates),
considering that their deaths are of public
knowledge and admitted by both parties, and
thereafter proclaim the winning candidates for
Municipal Officials, subject to the confirmation of the
Commission on Elections. 7
On June 4, 1992, herein private respondents appealed the
above ruling to the COMELEC praying that the Municipal
Board of Canvassers be enjoined from implementing its
ruling and that it be directed to ascertain the results of the
elections and to proclaim the candidate obtaining the highest
number of votes as the winner. 8
On June 29, 1992, the COMELEC resolved to direct the
Municipal Board of Canvassers of Balabagan, Lanao del Sur
to proclaim as winner for the contested office the candidate
who obtained the highest number of votes during the May 11,
1992 election. 9
On June 30, 1992 at two o'clock in the afternoon, the
Municipal Board of Canvassers proclaimed petitioner
Ottomama Benito as the duly elected mayor of the
municipality of Balabagan, Lanao del Sur. 10
On July 1, 1992, the Election Registrar and Chairman of the
Board of Canvassers of Balabagan, Lanao del Sur submitted
a memorandum to the COMELEC informing it that the Board
of Canvassers of Balabagan had proclaimed Ottomama
Benito as mayor-elect of the said town.
On July 2, 1992, petitioner took his oath of office before
Secretary of Interior and Local Government Rafael Alunan
III. 11
On July 6, 1992, the COMELEC issued a resolution
declaring the proclamation of petitioner an absolute nullity
and of no force and effect. The certificate of canvass and
proclamation was set aside. The Municipal Board of
Canvassers was likewise directed to prepare a new
certificate of canvass indicating therein that the winning
candidate for mayor was Hadji Murad Ogca but with the
information, in parenthesis, that he died on May 20, 1992, for
the purpose of applying the rule on legal succession to office
pursuant to Section 44 of R. A. No. 7160. 12
Hence, the instant petition.

15 | P a g e

Petitioner faults the COMELEC with lack of jurisdiction

and/or with grave abuse of discretion amounting to lack of
jurisdiction for the following reasons, viz:
xxx xxx xxx
COMELEC HAS NO JURISDICTION OVER SPC
NO. 92- 303. THAT JUNE 29, 1992 RESOLUTION
IS NULL AND VOID AB INITIO
xxx xxx xxx
THE COMELEC RESOLUTION OF JULY 6, 1992
[ANNEX A] IS ALSO NULL AND VOID BECAUSE
THE COMELEC HAS NO JURISDICTION. IT WAS
ALSO ISSUED IN VIOLATION OF DUE PROCESS
OF LAW.
xxx xxx xxx
THE INTERLOCUTORY ORDER OF JUNE 11,
1992 ISSUED IN SPA NOS. 92-147 AND 92-146
(sic) DENYING THE MOTION TO SUSPEND
PROCLAMATION WAS ISSUED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK
OF JURISDICTION. 13
The petition must fail.
The proclamation of petitioner Ottomama Benito as mayorelect of Balabagan, Lanao del Sur, by the Municipal Board of
Canvassers was not a valid proclamation. It appears from
the record that during the May 11, 1992 election, the
deceased mayoralty candidate Murad Sampiano Ogca
obtained a total of 3,699 votes as against petitioner's 2,644.
Thereupon, it was the duty of the Municipal Board of
Canvassers to proclaim as winner the candidate who
obtained the highest number of votes. However, the
Municipal Board of Canvassers, instead of performing what
was incumbent upon it, that is, to proclaim Ogca as the
winner but with the information that he died, to give way to
legal succession to office, went on to proclaim herein
petitioner, the candidate who obtained the second highest
number of votes as winner, believing that the death of Ogca
rendered his victory and proclamation moot and
academic. 14 This cannot be countenanced.
In every election, the people's choice is the paramount
consideration and their expressed will must, at all times, be
given effect. When the majority speaks and elects into office
a candidate by giving him the highest number of votes cast
in the election for that office, no one can be declared elected
in his place.
The fact that the candidate who obtained the highest number
of votes dies, or 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. 15 For to allow the defeated and repudiated
candidate to take over the mayoralty despite his rejection by
the electorate is to disenfranchise the electorate without any
fault on their part and to undermine the importance and
meaning of democracy and the people's right to elect officials
of their choice. 16

16 | P a g e

It is petitioner's further submission that the appeal filed by

the heirs of the deceased mayoralty candidate from the May
30, 1992 ruling of the Balabagan Municipal Board of
Canvassers was filed out of time, the same having been
submitted a day late. Records bear out that herein private
respondents filed their appeal from the May 30, 1992 ruling
only on June 4, 1992, in violation of Section 19 of Republic
Act No. 7166, which provides that a party adversely affected
by a ruling of the Board of Canvassers must appeal the
same to the Commission within three (3) days from the said
ruling. However, adherence to a technicality here would put a
stamp of validity on petitioner's palpably void proclamation,
with the inevitable result of frustrating the popular will.
Adjudication of cases on substantive merits and not on
technicalities has been consistently observed by this Court.
In the case ofJuliano vs. Court of Appeals 17 cited
in Duremdes vs. Commission on Elections, 18 this Court had
the occasion to declare that:
Well-settled is the doctrine that election contests
involve public interest, and technicalities and
procedural barriers should not be allowed to stand if
they constitute and obstacle to the determination of
the true will of the electorate in the choice of their
elective officials. And also settled is the rule that
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. (Gardiner v. Romulo, 26
Phil. 521; Galang v. Miranda, 35 Phil. 269;
Jalandoni v. Sarcon, G. R. No. L-6496, January 27,
1962; Macasunding v. Macalaang, G. R. No. L22779, March 31, 1965; Cauton v. Commission on
Elections, G. R. No. L-25467, April 27, 1967). In an
election case the court has an imperative duty to
ascertain by all means within its command who is
the real candidate elected by the electorate (Ibasco
v. Ilao, G. R. No. L-17512, December 29,
1960). . . . 19
In the later case of Rodriguez vs. Commission on
Elections, 20 this doctrine was reiterated and the Court went
on to state that:
Since the early case of Gardiner v. Romulo (26 Phil.
521), this Court has made it clear that it frowns
upon any interpretation of the law or the rules that
would hinder in any way not only the free and
intelligent casting of the votes in an election but
also the correct ascertainment of the results. This
bent or disposition continues to the present. 21
The same principle still holds true today. Technicalities of the
legal rules enunciated in the election laws should not
frustrate the determination of the popular will.
Where, as in this case, the proclamation is null and void, the
same is no proclamation at all and the proclaimed
candidate's assumption of office does not deprive the
COMELEC of the power to declare such nullity and annul the
proclamation. 22
Consequently, petitioner's contention that the Commission
on Elections had no jurisdiction to resolve the appeal filed by
herein private respondents turns to naught. The said appeal,
though filed a day too late, was not frivolous. Neither was it
interposed for dilatory purposes. It sought to give effect, not
to frustrate, the will of the people. Therefore, we declare the

questioned resolutions dated June 29, 1992 and July 6, 1992

of the public respondent valid and effective.
Finally, the resolution of the COMELEC dated June 11, 1992
denying the petitioner's motion to suspend proclamation of
deceased candidate Ogca is likewise assailed. Petitioner
argues that the votes for deceased Ogca should not have
been counted based on Section 6 of R. A. No. 6640. This
provision, however, applies only to candidates who have
been declared by finally judgment to be disqualified. In the
present case, there is no final judgment declaring the
deceased Ogca disqualified, hence, the provision does not
cover him.
WHEREFORE, premises considered, the instant petition is
hereby DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide,
Jr., Romero, Melo, Quiason, Puno, Vitug, and Mendoza, JJ.,
concur.
Cruz and Bellosillo, JJ., is on official leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 131012 April 21, 1999

HON. RICARDO T. GLORIA, in his capacity as Secretary
of the Department of Education, Culture, and
Sports, petitioner,
vs.
COURT OF APPEALS, AMPARO A. ABAD, VIRGILIA M.
BANDIGAS, ELIZABETH A. SOMEBANG and NICANOR
MARGALLO, respondents.

MENDOZA, J
This case arose out of the unfortunate strikes and walk-outs
staged by public school teachers on different dates in
September and October 1990. The illegality of the strikes
was declared in our 1991 decision in Manila Public School
Teachers Association v. Laguio, Jr., 1 but many incidents of
those strikes are still to be resolved. At issue in this case is
the right to back salaries of teachers who were either
dismissed or suspended because they did not report for work
but who were eventually ordered reinstated because they
had not been shown to have taken part in the strike,
although reprimanded for being absent without leave.
The facts are as follows:
Private respondents are public school teachers. On various
dates in September and October 1990, during the teachers'
strikes, they did not report for work. For this reason, they
were administratively charged with (1) grave misconduct, (2)
gross neglect of duty, (3) gross violation of Civil Service Law

17 | P a g e

Rules and Regulations and reasonable office regulations. (4)

refusal to perform official duty, (5) gross insubordination, (6)
conduct prejudicial to the best interest of the service, and (7)
absence without leave (AWOL), and placed under preventive
suspension. The investigation was concluded before the
lapse of 90-day suspension and private respondents were
found guilty as charged. Respondent Nicanor Margallo was
ordered dismissed from the service effective October 29,
1990, while respondents Amparo Abad, Virgilia Bandigas,
and Elizabeth Somebang were ordered suspended for six
months effective December 4, 1990. 2
Respondent Margallo appealed to the Merit Systems and
Protection Board (MSPB) which found him guilty of conduct
prejudicial to the best interest of the service and imposed on
him a six-month suspension. 3 The other respondents also
appealed to the MSPB, but their appeal was dismissed
because of their failure to file their appeal memorandum on
time. 4
On appeal, the Civil Service Commission (CSC) affirmed the
decision of the MSPB with respect to Margallo, but found the
other three (Abad, Bandigas, and Somebang) guilty only of
violation of reasonable office rules and regulation, by filing to
file applications for leave of absence and, therefore, reduced
the penalty imposed on them to reprimand and ordered them
reinstated to their former positions.
Respondents filed a petition for certiorari under Rule 65 in
this Court. Pursuant to Revised Administrative Circular No.
1-95, the case referred to the Court of Appeals which, on
September 3, 1996, rendered a decision (1) affirming the
decision of the CSC with respect to Amparo Abad, Virgilia
Bandigas, and Elizabeth Somebang but (2) reversing it
insofar as the CSC ordered the suspension of Nicanor
Margallo. The appellate court found him guilty of violation of
reasonable office rules and regulations only and imposed on
him the penalty of reprimand.
Private respondents moved for a reconsideration, contending
that they should be exonerated of all charges against them
and that they be paid salaries during their suspension. In its
resolution, dated July 15, 1997, the Court of Appeals, while
maintaining its finding that private respondents were guilty of
violation of reasonable office rules and regulations for which
they should be reprimanded, ruled that private respondents
were entitled to the payment of salaries during their
suspension "beyond ninety (90) days." Accordingly, the
appellate court amended the dispositive portion of its
decision to read as follows:
WHEREFORE, IN VIEW OF THE FOREGOING,
petition is hereby DENIED. CSC Resolution Nos.,
93-2302 dated June 24, 1993 and 93-3124 dated
August 10, 1993 (In re: Amparo Abad), CSC
Resolution Nos. 93-2304 dated June 24, 1993 and
93-3227 dated August 17, 1993 (In re: Virgilia
Bandigas) and CSC Resolution Nos. 93-2301
undated and 93-3125 dated August 10, 1993 (In re:
Elizabeth Somebang) are hereby AFFIRMED while
CSC Resolution Nos. 93-2211 dated June 21, l993
are hereby MODIFIED finding petitioner Nicanor
Margallo guilty of a lesser offense of violation of
reasonable office rules and regulations and meting
upon him the penalty of reprimand. Respondent
DECS is ordered to pay petitioners Amparo Abad,
Virgilia Bandigas, Elizabeth Somebang and Nicanor
Margallo their salaries, allowances and other
benefits during the period of their
suspension/dismissal beyond the ninety (90) day

preventive suspension. No pronouncement as to

costs. 6
Petitioner Ricardo T. Gloria, then Secretary of Education,
Culture, and Sports, moved for a reconsideration insofar as
the resolution of the Court of Appeals ordered the payment
of private respondents' salaries during the period of their
appeal. 7 His motion was, however denied by the appellate
court in its resolution of October 6, 1997. 8 Hence, this
petition for review on certiorari.
Petitioner contends that the administrative investigation of
respondents was concluded within the 90-day period of
preventive suspension, implying that the continued
suspension of private respondents is due to their appeal,
hence, the government of their salaries. Moreover, petitioner
lays so much store by the fact that, under the law, private
respondents are considered under preventive suspension
during the period of their appeal and, for this reason, are not
entitled to the payment of their salaries during their
suspension. 9
Petitioner's contentions have no merit.
I. PREVENTIVE SUSPENSION AND THE RIGHT
TO COMPENSATION IN CASE OF
EXONERATION
The present Civil Service Law is found in Book V, Title I,
Subtitle A of the Administrative Code of 1987 (E.O. 292). So
far as pertinent to the questions in this case, the law
provides:
Sec. 47. Disciplinary Jurisdiction
(2) The Secretaries and heads of agencies and
instrumetalities, province, cities and municipalities
shall have jurisdiction to investigate and decide
matters involving disciplinary action against officers
and employees under their jurisdiction. The decision
shall be final in case the penalty imposed is
suspension for not more than thirty days or fine in
an amount not exceeding thirty days salary. In case
the decision rendered by a bureau or office head is
appealable to the Commission, the same may be
initially appealed to the department and finally to
the Commission and pending appeal, the same
shall be executory except when the penalty
removal, in which case the same shall be executory
only after confirmation by the Secretary concerned.
(4) An appeal shall not stop the decision from being
executory, and in case the penalty is suspension or
removal, the respondent shall be considered shall
be considered having been under preventive
suspension during the pendency of the appeal in
the event he wins an appeal.
Sec. 51. Preventive Suspension. The proper
disciplining authority may preventively suspend any
subordinate officer or employee under his authority
pending as investigation, if the charge against such
officers or employee involves dishonesty,
oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to
believe that the respondent is guilty of charges
which would warrant his removal from the service.

18 | P a g e

Sec. 52. Lifting of Preventive Suspension, Pending

Administrative Investigation. When the
administrative case against the officers or employee
under preventive suspension is not finally decided
by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service: Provided, That when the delay in the
disposition of the case is due to the fault,
negligence or petition of the respondents, the
period of delay shall not be counted in computing
the period of suspension herein provided.
There are thus two kinds of preventive suspension of civil
service employees who are charged with offenses
punishable by removal or suspension: (1) preventive
suspension pending investigations (51) and (2) preventive
suspension pending appeal if the penalty imposed by the
disciplining authority is suspension or dismissal and, after
review, the respondent is exonerated ( 47(4)).
Preventive suspension pending investigation is not a
penalty. 10 It is a measure intended to enable to enable the
disciplining authority to investigate charges against
respondent by preventing the latter from intimidating or any
way influencing witnesses against him. If the investigation is
not finished and a decision is not rendered within that period,
the suspension will be lifted and the respondent will
automatically be reinstated. If after investigation respondent
is found innocent of the charges and is exonerated, he
should be reinstated.
A. No Right to Compensation for Preventive
Suspension Pending Investigation Even if Employee is
Exonerated
Is he entitled to the payment of salaries during the period of
suspension? As already stated, the Court of Appeals ordered
the DECS to pay private respondents their salaries,
allowances, and other benefits "beyond the ninety (90) day
suspension." In other words, no compensation was due for
the period of the preventive suspensionpending
investigation but only for the period of preventive
suspension pending appeal in the event the employee is
exonerated.
The separate opinion of Justice Panganiban argues that the
employee concerned be paid his salaries after his
suspension.
The Civil Service Act of 1959 (R.A. No. 2260) provided for
the payment of such salaries in case of exoneration. Sec. 35
read:
Sec. 35. Lifting of Preventive Suspension Pending
Administrative Investigation. When the
administrative case against the officer or employee
under preventive suspension is not finally decided
by the Commissioner of Civil Service within the
period of sixty (60) days after the date of
suspension of the respondent, the respondent shall
be reinstated in the service. If the respondent
officers or employee is exonerated, he shall be
restored to his position with pay for the period of
suspension. 11

However, the law was revised in 1975 and the provision on

the payment salaries during suspension was deleted. Sec.
42 of the Civil Service Decree (P.D. No. 807) read:
Sec. 42. Lifting of Preventive Suspension Pending
Administrative Investigation. When the
administrative case against the officers or employee
under preventive suspension is not finally decided
by the disciplining authority within the period of
ninety (90) days after the date of suspension of the
respondent who is not a presidential appointee, the
respondent shall be automatically reinstated in the
service; Provided, That when the delay in the
disposition of the case is due to the fault,
negligence or petition of the respondent, the period
of delay shall not be counted in computing the
period of suspension herein provided.
This provision was reproduced in 52 of the present
Civil Service Law. It is noteworthy that the
Ombudsman Act of 1989 (R.A. No. 6770)
categorically provides that preventive suspension
shall be "without pay." Sec. 24 reads:
Sec. 24. Preventive Suspension. The
Ombudsman or his Deputy may preventively
suspend any officer or employee under his authority
pending an investigation, if in his judgment the
evidence of guilt is strong, and (a) the charge
against such officer or employee involves
dishonesty, oppression or grave misconduct or
neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the
respondents continued stay in office may prejudice
the case filed against him.
The preventive suspension shall continue until the
case is terminated by the Office of the Ombudsman
but not more than six months, without pay, except
when the delay in the disposition of the case by the
Office of the Ombudsman is due to the fault,
negligence or petition of the respondent, in which
case the period of such delay shall not be counted
in computing the period of suspension herein
provided.
It is clear that the purpose of the amendment is to disallow
the payment of salaries for the period of suspension. This
conclusion is in accord with the rule of statutory construction
that
As a rule, the amendment by deletion of certain
words or phrases in a statute indicates that the
legislature intended to change the meaning of the
statute, for the presumption is that the legislature
would not have made the deletion had the intention
been not in effect a change in its meaning. The
amended statute should accordingly be given a
construction different from that previous to its
amendment. 12
The separate opinion of Justice Panganiban pays no heed to
the evident legislative intent to deny payment of salaries for
the preventive suspension pending investigation.
First, it says that to deny compensation for the period of
preventive suspension would he to reverse the course of
decisions ordering the payment of salaries for such period.

19 | P a g e

However, the cases 13 cited are based either on the former

rule which expressly provided that "if the respondent officer
or employee is exonerated, he shall be restored to his
position with full pay for the period of suspension" 14 or that
"upon subsequent reinstatement of the suspended person or
upon his exoneration, if death should render reinstatement
impossible, any salary so withheld shall be paid, 15 or on
cases which do not really support the proposition advanced.
Second, it is contended that the exoneration of employees
who have been preventively suspended is proof that there
was no reason at all to suspend them and thus makes their
preventive suspension a penalty.
The principle governing entitlement to salary during
suspension is cogently stated in Floyd R. Mechem's A
Treatise on the Law of Public Offices and Officers as follows:
864. Officer not entitled to Salary during
Suspension from
Office. An officer who has been lawfully
suspended from his office is not entitled to
compensation for the period during which he was
so suspended, even through it be subsequently
determined that the cause for which he was
suspended was insufficient. The reason given is
"that salary and perquisites are the reward of
express or implied services, and therefore cannot
belong to one who could not lawfully perform such
services." 16
Thus, it is not enough that an employee is exonerated of the
charges against him. In addition, his suspension must be
unjustified. The case of Bangalisan v. Court of Appeals itself
similarly states that "payment of salaries corresponding to
the period [1] when an employee is not allowed to work may
be decreed if he is found innocent of the charges which
caused his suspension and [2] when the suspension is
unjustified. 17
The preventive suspension of civil service employees
charged with dishonesty, oppression or grave misconduct, or
neglect of duty is authorized by the Civil Service Law. It
cannot, therefore, be considered "unjustified," even if later
the charges are dismissed so as to justify the payment of
salaries to the employee concerned. It is one of those
sacrifices which holding a public office requires for the public
good. For this reason, it is limited to ninety (90) days unless
the delay in the conclusion of the investigation is due to the
employee concerned. After that period, even if the
investigation is not finished, the law provides that the
employee shall be automatically reinstated.
Third, it is argued in the separate opinion that to deny
employees salaries on the "frivolous" ground that the law
does not provide for their payment would be to provide a
"tool for the oppression of civil servants who, though
innocent, may be falsely "charged of grave or less grave
administrative offenses." Indeed, the possibility of abuse is
not an argument against recognition of the existence of
power. As Justice Story aptly it, "It is always a doubtful
course, to argue against the use or existence of a power,
from the possibility of its abuse. . . . [For] from the very
nature of things, the absolute right of decision, in the last
resort, must rest somewhere wherever it may be vested it
is susceptible of abuse." 18 It may be added that if and when
such abuse occurs, that would be the time for the courts to
exercise their nay-saying function. Until then, however, the
public interest in an upright civil service must be upheld.

Finally, it is argued that even in the private sector, the law

provides that employees who are unjustly dismissed are
entitled to reinstatement with full pay. But that is because
R.A. No. 6715 expressly provides for the payment to such
employees of "full backwages, inclusive of allowances,
and . . . other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to
the time of his actual reinstatement." 19 In the case of the
public sector, as has been noted, the provision for payment
of salaries during the preventive suspension pending
investigation has been deleted.
B. Right to Compensation for Preventive Suspension
Pending Appeal if Employee is Exonerated
But although we hold that employees who are preventively
suspended pending investigation are not entitled to the
payment of their salaries if they are exonerated, we do not
agree with the government that they are not entitled to
compensation for the period of their suspension pending
appeal if eventually they are found innocent.
Preventive suspension pending investigation, as already
discussed, is not a penalty but only means of enabling the
disciplining authority to conduct an unhampered
investigation. On the other hand, preventive suspension
pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated
and the administrative decision finding him guilty is reversed.
Hence, he should be reinstated with full pay for the period of
the suspension. Thus, 47(4) states that respondent "shall
be considered as under preventive suspension during the
pendency of the appeal in the event he wins." On the other
hand, if his conviction is affirmed, i.e., if he is not exonerated,
the period of his suspension becomes part of the final
penalty of suspension or dismissal.
It is precisely because respondent is penalized before his
sentence is confirmed that he should be paid his salaries in
the event he is exonerated. It would be unjust to deprive him
of his pay as a result of the immediate execution of the
decision against him and continue to do so even after it is
shown that he is innocent of the charges for which he was
suspended. Indeed, to sustain the government's theory
would be to make the administrative decision not only
executory but final and executory. The fact is that 47(2) and
(4) are similar to the execution of judgment pending appeal
under Rule 39, 2 of the Rules of Court. Rule 39, 5
provides that in the event the executed judgment is reversed,
there shall be restitution or reparation of damages as equity
and justice may require.
Sec. 47 of the present law providing that an administrative
decision meting out the penalty of suspension or dismissal
shall be immediately executory and that if the respondent
appeals he shall be considered as being merely under
preventive suspension if eventually he prevails is taken from
37 of the Civil Service Decree of 1975 (P.D No. 807). There
was no similar provision in the Civil Service Act of 1959 (R.A.
No. 2260), although under it the Commissioner of Civil
Service could order the immediate execution of an
administrative decision in the interest of the public
service. 20 Nor was there provision for immediate execution
of administrative decisions ordering dismissal or suspension
in 695 of the Administrative Code of 1917, as amended by
C.A. No. 598, 1. 21 Nonetheless, under R.A. No. 2260 the
payment of salaries was ordered in cases in which
employees were found to be innocent of the charges 22 or

20 | P a g e

their suspension was held to be unjustified, because the

penalty of suspension or dismissal was executed without a
finding by the Civil Service Commissioner that it was
necessary "in the interest of the public service." 23 On the
other hand, payment of back salaries was denied where it
was shown that the employee concerned was guilty as
charged and the immediate execution of the decision was
ordered by the Civil Service Commissioner "in the interest of
the public service." 24
Nothing in what has thus far been said is inconsistent with
the reason for denying salaries for the period of preventive
suspension. We have said that an employee who is
exonerated is not entitled to the payment of his salaries
because his suspension, being authorized by law, cannot but
unjustified. To be entitled to such compensation, the
employee must not only be found innocent of the charges
but his suspension must likewise be unjustified. But through
an employee is considered under preventive suspension
during the pendency of his appeal in the event he wins, his
suspension is unjustified because what the law authorizes is
preventive suspension for a period not exceeding 90 days.
Beyond that period the suspension is illegal. Hence, the
employee concerned is entitled to reinstated with full pay.
Under existing jurisprudence, such award should not exceed
the equivalent of five years pay at the rate last received
before the suspension was imposed. 25
II. PRIVATE RESPONDENTS ENTITLED TO BACK
SALARIES
ALTHOUGH FOUND GUILTY OF VIOLATION OF OFFICE
RULES AND REGULATIONS AND REPRIMANDED
Private respondents were exonerated of all charges against
them for acts connected with the teachers' strikes of
September and October 1990. Although they were absent
from work, it was not because of the strike. For being absent
without leave, they were held liable for violation of
reasonable offices rules and regulations for which the
penalty is a reprimand. Their case thus falls squarely within
ruling in Bangalisan, which likewise involved a teacher found
guilty of having violated reasonable office rules and
regulations. Explaining the grant of salaries during their
suspension despite the fact that they were meted out
reprimand, this Court stated:
With respect to petitioner Rodolfo Mariano,
payment of his backwages is in order. A reading of
the resolution of the Civil Service Commission will
show that he was exonerated of the charges which
formed the basis for his suspension. The Secretary
of the DECS charged him with and he was later
found guilty of grave misconduct, gross neglect of
duty, gross violation of the Civil Service Law, rules
and regulations and reasonable office regulations,
refusal to perform official duty, gross
insubordination, conduct prejudicial to the best
interest of the service, and absence without official
leave, for his participation in the mass actions on
September 18, 20 and 21, 1990. It was his alleged
participation in the mass actions that was the basis
of his preventive suspension and, later, his
dismissal from the service.
However, the Civil Service Commission, in the
questioned resolution, made a finding that Mariano
was involved in the "mass actions" but was absent

because he was in Ilocos Sur to attend the wake

and interment of his grandmother. Although the
CSC imposed upon him the penalty of reprimand,
the same was for his violation of reasonable office
rules and regulations because he failed to inform
the school of his intended absence and neither did
he file an application for leave covering such
absences.
Under Section 23 of the Rule Implementing Book V
of Executive Order No. 292 and other pertinent civil
service laws, in violations of reasonable office rules
and regulations, the first offense is punishable by
reprimand. To deny petitioner Mariano his back
wages during his suspension would be tantamount
to punishing him after his exoneration from the
charges which caused his dismissal from the
service. 26

EN BANC

G.R. No. 110216 September 10, 1993

IGNACIO R. BUNYE, JAIME D. FRESNEDI, LUCIO B.
CONSTANTINO, NOLASCO L. DIAZ, RUFINO J.
JOAQUIN, ROGER S. SMITH, ALEJANDRO L. MARTINEZ,
and ROMAN E. NIEFES, petitioners,
vs.
ASSOCIATE JUSTICES ROMEO M. ESCAREAL, JOSE S.
BALAJADIA, NARCISO T. ATIENZA, and AUGUSTO M.
AMORES in their personalities as members of the
Second Division of the SANDIGANBAYAN and THE
SECRETARY, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, respondents.

In Jacinto v. Court of Appeals, 27 a public school who was

found guilty of violation of reasonable office rules and
regulations for having been absent without leave and
reprimanded was given back salaries after she was
exonerated of the charge of having taken part in the strikes.

Alampay & Manhit Law Offices for petitioners.

Petitioner Secretary of Education contends, however, that

respondent Abad, Bandigas, and Somebang signed a letter
in which they admitted having taken part in the mass action.
This question cannot be raised now. The Civil Service
Commission gave no weight to this letter in view of individual
letters written by three citing reasons for their absences, to
wit: Abad, because he decided to stay home to correct
students papers; Bandigas, because she had to accompany
her brother to the Commission on Immigration, and
Somebang because of "economic reasons." Petitioner did
not appeal from this ruling. Hence, he is bound by the
fanctual findings of the CSC and the appellate court.

This petition for certiorari and prohibition was filed by the

petitioners, who are the municipal mayor, vice-mayor and
incumbent councilors or members of the Sangguniang
Bayan of Muntinlupa, Metro manila. The petition seeks to
annul the resolution promulgated on May 11, 1993 by the
Second Division of the Sandiganbayan preventively
suspending them from office pending their trial for violation of
Section 3 (e) of the Anti-Graft and Corrupt Practices Act
under an information alleging that:

WHEREFORE, the decision, dated September 3, 1996, as

amended by the resolutions, dated July 15, 1997 and
October 6, 1997, of the Court of Appeals, is hereby
AFFIRMED with the MODIFICATION that the award of
salaries to private respondents shall be computed from the
time of their dismissal/suspension by the Department of
Education, Culture, and Sports until their actual
reinstatement, for a period not exceeding five years.
SO ORDERED.
Romero, Bellosillo, Vitug, Kapunan, Quisumbing, Purisima
and Gonzaga-Reyes, JJ., concur.
Davide, Jr., C.J., in the result and subject to its modification
expressed in its separate opinion of Mr. Justice Panganiban.
Melo, J., in the result.
Panganiban, J., please see separate opinion.
Puno, Pardo, Buena, Ynares-Santiago, JJ., we joined the
separate opinion of Justice Panganiban.

Republic of the Philippines

SUPREME COURT
Manila

21 | P a g e

GRIO-AQUINO, J.:

That on or about August 1988, in the municipality of

Muntinlupa, Metro manila, Philippines, and within
the jurisdiction of this Honorable Court, the abovenamed accused all public officers being the Mayor
(Ignacio R. Bunye), Vice-Mayor (Jaime D.
Fresnedi), Municipal Attorney (Victor C. Aguinaldo),
Municipal Councilors (Carlos C. Tensuan, Alejandro
L. Martinez, Epifanio A. Espeleta, Rey E. Bulay,
Lucio B. Constantino, Roman E. Niefes, Nemesio
Q. Mozo, Rufino J. Joaquin, Nolasco L. Diaz and
Roger C. Smith), Barangay Chairman of Putatan
(Rufino Ibe) and Barangay Chairman of Alabang
(Nestor Santos), all in the municipality of
Muntinlupa, Metro Manila, said accused, while in
the performance of their official functions, in
conspiracy with one another and taking advantage
of their official positions, did then and there wilfully,
unlawfully and feloniously enact Kapasiyahan
Bilang 45 on August 1, 1988, and on the basis
thereof, forcibly took possession of the new Public
Market in Alabang, Muntinlupa, Metro Manila, and
thereafter took over the operation and management
of the aforesaid public market starting August 19,
1988, despite the fact that, there was a valid and
subsisting lease contract executed on September 2,
1985 for a term of 25 years, between the
Municipality of Muntinlupa, Metro Manila,
represented by the former Municipal Mayor
Santiago Carlos, Jr. and the Kilusang Bayan sa
Paglilingkod and mga Magtitinda ng Bagong
Pamilihan ng Muntinlupa, Inc. (Kilusang Magtitinda
for brevity), a Cooperative represented by its
General Manager then, Amado G. Perez, and
despite also the warnings from COA Chairman

Domingo and MMC Governor Cruz "that

appropriate legal steps be taken by the MMC
toward the rescission/annulment of the
contract . . . to protect the interest of the
Government," and ". . . to evaluate thoroughly and
study further the case to preclude possible
damages of financial liabilities which the Court may
adjudge against that municipality as an off-shoot of
the case," which forcible take-over had caused
undue injury to the aforesaid Cooperative
members, and gave the Municipal Government,
and in effect, the herein accused themselves,
unwarranted benefits, advantage or preference in
the discharge of their official functions as aforesaid,
through evident bad faith or gross inexcusable
negligence, considering that, the Cooperative
members had introduced improvements, including
the construction of the "KBS" building, RR SectionPhases I and II, asphalting of the roads surrounding
the market place, and for the purpose, the
cooperative had invested Thirteen Million Four
Hundred Seventy Nine Thousand Nine Hundred
Pesos (P13,479,900.00) in connection therewith,
which had been deposited in trust to the Municipal
Government, and in consideration thereof, the
cooperative was extended the above long term
lease to manage and operate the public market and
to pay a monthly rental of P35,000.00 only said
offense having been committed by the accused in
their performance of official duties. (pp. 3436, Rollo.)
On the motion of the Public Prosecutor, and over the
opposition of the accused, the Sandiganbayan issued on
May 11, 1993 a resolution suspending them pendente
lite from public office pursuant to Section 13 of Republic Act
No. 3019 which provides:
Sec. 13. Suspension and loss of benefits. Any
public officer against whom any criminal
prosecution under a valid information under this Act
or under the provisions of the Revised Penal Code
on bribery is pending in court, shall be suspended
from office. Should he be convicted by final
judgment, he shall lose all retirement or gratuity
benefits under any law, but if he is acquitted, he
shall been titled to reinstatement and to the salaries
and benefits which he failed to receive during
suspension, unless in the meantime administrative
proceedings have been filed against him.
The petitioners fruitlessly sought a reconsideration of the
order of suspension. In due time, they filed this petition
for certiorari and prohibition wherein they pray for the
issuance of a temporary restraining order or writ of
preliminary injunction to stay the implementation of the
assailed order or resolution.
Upon receipt of the petition, the Court, without granting he
temporary restraining order prayed for, ordered the public
respondents to comment on the petition.
After deliberating on the petition, the public respondents'
comment thereon, and the petitioners' reply to the comment,
the Court is unconvinced that the petition ought to be
granted.
The petitioners' main argument against their preventive
suspension is that it is unjustified or unnecessary for, having

22 | P a g e

admitted repeatedly in no less than four (4) pleadings filed in

related proceedings and found in the records of this case,
that they did commit the acts constituting the offense
charged against them, i.e., that they enacted and approved
Kapasiyahan Blg. 45 and wrested the management and
operation of the new public market in Alabang from the
Kilusang Bayan sa Paglilingkod ng mga Magtitinda ng
Bagong Pamilihan ng Muntinlupa, Inc. (or "Cooperative for
brevity) and transferred it to the Municipality of Muntinlupa,
the fear of the Court that, unless they are preventively
suspended, they may tamper with the records of that
transaction, has no more validity. Moreover, the proceedings
against the petitioners before the Second Division of the
Sandiganbayan involves no factual issue but only the legal
question of whether or not the cancellation by the petitioners
of the Cooperative's subsisting lease contract over the
Municipal Public Market was justified by public interest or
general welfare. Consequently, nothing can possibly be
compromised or hampered by their remaining in office, since
the said proceedings will no longer be for the purpose of
receiving evidence on factual issues but only to hear
arguments, position papers on memoranda, on the purely
legal issue of whether the rescission of the Cooperative's
market contract is a valid exercise of police power by the
municipality. Absent any need for testimonial and/or
documentary evidence, any apprehension that the
petitioners might intimidate or coerce prospective witnesses
against them, or tamper with office records under their
control, is "more imaginary than real" (p. 16, Rollo).
Adverting to this Court's observation in Ganzon vs. CA, 200
SCRA 271, 272, that the sole objective of an administrative
suspension is "to prevent the accused from hampering the
normal course of the investigation with his influence and
authority over possible witnesses or to keep him off the
records and other evidence" and "to assist prosecutors in
firming up a case, if any, against an erring local official," the
petitioners insists that as no such reason for their
suspension exists, then the order suspending them should
be set aside as a grave abuse of the court's discretion.
Another point asserted by the petitioners is that their
preventive suspension will "sow havoc and confusion in the
government of the Municipality of Muntinlupa, to the certain
shattering of the peace and order thereat" (p. 13,Rollo), for
without a mayor, vice-mayor, and six (6) councilors, the local
government would be paralyzed. Only eight (8) of the
present members of the Sangguniang Bayan will remain to
discharge the duties and responsibilities of that body. If two
of them will be designated to take over the offices of the
mayor and vice-mayor, the Sangguniang Bayan will be
without a quorum to perform its functions.
The Court finds no merit in those arguments. Section 13 of
R.A.
No. 3019, as amended, unequivocally provides that the
accused public officials "shall be suspended from office"
while the criminal prosecution is pending in court.
In Gonzaga vs. Sandiganbayan, 201 SCRA 417, 422, 426,
this Court ruled that such preventive suspension is
mandatory; there are no ifs and buts about it.
Petitioner at the outset contends that Section 13 of
Rep. Act 3019, as amended, is unconstitutional as
the suspension provided thereunder partake of a
penalty even before a judgement of conviction is
reached, and is thus violative of her constitutional
right to be presumed innocent.

We do not accept the contention because: firstly,

under Section 13, Rep. Act 3019, suspension of a
public officer upon the filing of a valid information is
mandatory (People vs. Albano, G.R. Nos. L-4537677, July 26, 1988, 163 SCRA 511). . . .

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. RODOLFO B. ALBANO, in his capacity as Judge of
Circuit Criminal Court, 16th Judicial District, Davao City
and City Mayor ANTONIO C. ACHARON & ROSALINA
BERNABE, respondents.

xxx xxx xxx

All told, preventive suspension is not violative of the
Constitution as it is not a penalty. In fact,
suspension particularly under Section 13 of Rep.
Act 3019 is mandatory once the validity of the
information is determined (People vs. CA, 135
SCRA 372).
Clearly, the Sandiganbayan did not abuse its discretion in
ordering the preventive suspension of the petitioners.
There is no merit in the petitioners' argument that because
they have repeatedly admitted that they had committed the
acts constituting the offense charged against them, there is
no cause for apprehension that they might tamper with the
records in the offices under their control, or intimidate
prospective witnesses against them. The Solicitor General
correctly replied that it is not for the petitioners to say that
their admissions are all the evidence that the prosecution will
need to hold up its case against them. "The prosecution
must be given the opportunity to gather and prepare the
facts for trial under conditions which would ensure
nonintervention and noninterference for ninety (90) straight
days from petitioners' camp" (p. 13, Solicitor General's
Comment).
The fear of the petitioners that the municipal government of
Muntinlupa will be paralyzed for ninety (90) days when they
(petitioners) are preventively suspended, is remote. There
will still remain eight (8) councilors who can meet as the
Sangguniang Bayan. The President or his alter ego, the
Secretary of Interior and Local Government, will surely know
how to deal with the problem of filling up the temporarily
vacant positions of mayor, vice-mayor and six councilors in
accordance with the provisions of the Local Government
Code, R.A. No. 7160 (Samad vs. COMELEC, et al., G.R. No.
107854 and Samad vs. Executive Secretary, et al., G.R. No.
108642, July 16, 1993; Sanchez vs. COMELEC, 114 SCRA
454).
WHEREFORE, the petition for certiorari and prohibition is
DISMISSED for lack of merit. Costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Regalado, Davide, Jr.,
Romero, Nocon, Bellosillo, Melo, Quiason, Puno and Vitug,
JJ., concur.
Feliciano, J., is on leave.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. Nos. L-45376-77 July 26, 1988

23 | P a g e

Romerico P. Vencer for respondent Mayor Antonio C.

Acharon.

PADILLA, J.:
Petition for certiorari seeking to annul and set aside the order
of the Circuit Criminal Court, 16th Judicial District, Davao
City, dated 20 December 1976, in Criminal Case No. CCCXVI-1-GSC (255) and Criminal Case No. CCC-XVI-2-GSC
(256), which denied Petitioner's Motion for Reconsideration
of a previous order, dated 28 October 1976, resolving that
the informations filed therein are "invalid ab initio" and
consequently dismissing said criminal cases.
On 11 June 1971, an information was filed in the Court of
First Instance of South Cotabato, Branch I, General Santos
City, docketed as Criminal Case No. 255, charging City
Mayor Antonio C. Acharon for violation of Paragraphs (e) and
(f), Section 3 of Republic Act 3019, otherwise known as the
Anti-Graft and Corrupt Practices Act. The information reads
as follows:
That for the period from January to December
1968, in the City of General Santos, Philippines and
within the jurisdiction of this Honorable Court, said
accused being then the incumbent Municipal Mayor
of General Santos, South Cotabato, and thereafter
from July 8, 1968 to the present is the City Mayor of
the City of General Santos, Philippines, and being
the public officer charged with the grant of license
or permit to operate cockpits in the said City
(formerly a Municipality), did then and there willfully,
unlawfully and feloniously, deny the application for
renewal of one EMILIO EVANGELISTA for license
or permit to operate his cockpit situated at
Labangala, now City of General Santos,
Philippines, and issuing insteadin the same year
1968a license and permit to operate, as in fact
said accused did issue a license or permit to LUIS
ACHARON, his uncle (relative within the third civil
degree) to operate a new cockpit about 250 meters
away from the cockpit of Emilio Evangelista and
inspite of the order of the CFI in Civil Case No. 840,
entitled "MANDAMUS" in which Emilio Evangelista
is the Petitioner, directing the then Municipal
Mayor to accept and give due course to the
application of petitioner Emilio Evangelista for a
license or permit to operate his cockpit; the said
accused failed and refused to accept and give due
course to said application for a license or permit,
thereby causing injury to said applicant and gave
his uncle, LUIS ACHARON, an unwarranted benefit,
advantage or preference in connection with which
City Mayor under Section 10 of Republic Act 5412,
known as the City Charter of General Santos City,
has the sole charged (sic) of issuing license or
permits, giving his relative within the third civil
degree preference in the discharge of his official
functions thru his manifest partiality, evident bad
faith or gross inexcusable negligence and/or he has

neglected or refused after due demand or request

of Emilio Evangelista for the renewal of his permit to
operate his cockpit without any sufficient
justification, thus, giving directly or indirectly his own
uncle, LUIS ACHARON, benefit or advantage or
has discriminated on Emilio Evangelista in the
performance of his official duties.
CONTRARY TO PARAGRAPHS (e) and (f) of
Section 3, Republic Act No. 3019, .... 1
On the same day, another information was filed in the same
court, docketed as Criminal Case No. 256 charging City
Mayor Antonio C. Acharon and then City Vice-Mayor
Rosalina Bernabe of violating Section 3, in relation to
Section 1, of Republic Act 3019. Said information reads as
follows:
That for the period July to December, 1969, in the
City of General Santos, Philippines and within the
jurisdiction of this Honorable Court, said accused,
being the incumbent City Mayor and City Vice
Mayor, respectively, of General Santos City,
Philippines, taking advantage of their positions as
City Mayor and City Vice Mayor, which positions
and offices are public trust, conspiring,
confederating together and mutually assisting one
another, did then and there willfully, unlawfully and
feloniously, use the names of 327 employees of the
city government of General Santos City, fraudulently
procure and purchase 1,635 sacks of rice in bulk
with the Regional Office of the Rice & Corn
Administration, Region No. XIII, stationed at
General Santos City, by using their own money and
after obtaining said 1,635 sacks of RCA rice at a
price very much lower than the prevailing price in
the open market for the same quality of rice,
dispose the same illegally to persons other than the
said 327 employees of the city government in
violation of paragraph (a), (e), (h) and (j) of Section
3, in relation to Section 1 of Republic Act 3019, the
accused City Vice Mayor Rosalina Bernabe
persuading, inducing or influencing accused City
Mayor Antonio C. Acharon to make a fraudulent
official procurement of rice from the RCA and
accused City Mayor Antonio C. Acharon allowed
himself to be so persuaded, induced or influenced
to make said fraudulent official procurement and, as
a result the accused City Mayor has caused injury
to the government by the fraudulent official
procurement of rice from the RCA and has given
accused City Mayor an unwarranted benefit and
advantage thru said fraudulent official procurement
of rice from the RCA; the Mayor being an officer
charged with the grant of concession, namely, the
official procurement of rice for city employees
without whose intervention no such rice in bulk can
be obtained except from RCA accredited retailers
by the gantas and/or both accused, directly or
indirectly, had financial or pecuniary interest in the
fraudulent procurement of rice from the RCA in
connection with which the said accused intervened
in their official capacities, the accused City Vice
Mayor having used her own money in paying the
low price of said rice and, thereafter, illegally
disposing of the same and accused City Mayor
knowingly approved or granted the privilege or
benefit in favor of the accused City Vice Mayor who
was not qualified or legally entitled from procuring

24 | P a g e

said rice in bulk from said agency, the official

request being a privilege or a benefit.
CONTRARY To Section 3, in relation to Section 1,
Republic Act No. 3019. ... 2
The prosecution then filed an Urgent Motion for the issuance
of an order suspending the accused from office. The
accused Rosalina Bernabe filed a Motion to Dismiss in
Criminal Case No. 256. The trial court thereupon issued a
"show cause" order in both criminal cases, directing the
accused to show the invalidity of the informations filed
against them.
Before the pre-suspension hearings in the two (2) cases
could be held, the accused were arraigned, both pleading
not guilty. Likewise, pursuant to a resolution of this Court,
both cases were transferred to the Circuit Criminal Court, 6th
Judicial District, Davao City (hereinafter referred to as the
trial court) for trial and disposition. Criminal Case No. 255
and Criminal Case No. 256 were re-docketed as Criminal
Case No. CCC-XVI-1-GSC (255) and Criminal Case No.
CCC-XVI-2-GSC (256), respectively.
On 30 October 1972, the cases were set for trial. However,
at the instance of the Acting District State Prosecutor, and on
the latter's manifestation that a petition for reinvestigation
had been filed with his office by accused Acharon, and that
the granting of the same was still pending determination, trial
was postponed. Likewise, the presiding judge who was
hearing the cases was subsequently appointed to another
court: hence, the trial of the cases was further delayed until
herein respondent judge, Hon. Rodolfo B. Albano was
appointed in December 1975 presiding judge of the trial
court.
In September 1976, the cases were again set for hearing.
On the date of hearing, 4 October 1976, accused Acharon
filed a Motion to hear the validity of the informations filed
against him.
In said hearing, the contending parties in both cases agreed
to submit the question of the validity or invalidity of the two
(2) informations on the basis of the records of each case.
And with such submission, the trial court subsequently
issued an Order, dated 28 October 1976, deciding the cases
on the merits by making findings of fact based on its
assessment of the records of the antecedent proceedings
had in the cases, taking into consideration matters of
defense of the accused, resolving that the informations in
both cases are "invalid ab initio" and consequently
dismissing said cases. The prosecution moved for
reconsideration; however, on 20 December 1976, the trial
court issued its Order denying the same.
Hence this petition by the prosecution.
Basically, petitioner challenges the manner in which the trial
court arrived at its conclusion that the informations filed in
both cases are invalid. Petitioner assigns as reversible errors
the following:
1. THE HONORABLE RESPONDENT COURT
ERRED IN FINDING THAT THE ACTS FOR
WHICH BOTH ACCUSED ARE CHARGED DO
NOT CONSTITUTE VIOLATIONS OF THE
ANTIGRAFT AND CORRUPT PRACTICES ACT
(R.A. No. 3019) BY TAKING INTO

CONSIDERATION MATTERS NOT ALLEGED IN

THE INFORMATIONS.
2. THE HONORABLE RESPONDENT COURT
ERRED IN DECIDING THE CASE ON THE MERIT
WITHOUT TRIAL CONSEQUENTLY, THE
ORDERS OF DISMISSAL IS NULL AND VOID AB
INITIO FOR WANT OF DUE PROCESS. 3
This assignment of errors raises in turn the following issues:
1. whether in a pre-suspension proceeding to
determine the validity or invalidity of an information
filed under the Anti-Graft and Corrupt Practices Act,
a court may consider matters not alleged in the
information under consideration.
2. whether a court may, without a trial proper,
decide a case on the merits by making findings of
fact after an assessment of the evidence on the
record, taking into consideration matters of defense
of the accused, and, on the basis thereof, dismiss
the same.
Section 13 of Rep. Act 3019 provides that:
... Any public officer against whom any criminal
prosecution under a valid information under this Act
or under the provisions of the Revised Penal Code
on bribery is pending in court, shall be suspended.
Should he be convicted by final judgment, he shall
lose all retirement or gratuity benefits under any
law, but if he is acquitted, he shall be entitled to
reinstatement and to the salaries and benefits
which he failed to receive during suspension,
unless in the meantime administrative proceedings
have been filed against him.
The Court has previously ruled that, under Sec. 13, Rep. Act
3019, suspension of a public officer is mandatory. 4However,
suspension cannot be automatic, the reason being that "a
hearing on the validity of the information appears
conformable to the spirit of the law, taking into account the
serious and far reaching consequences of a suspension of
an elective public official even before his conviction and that
public interest demands a speedy determination of the
issues involved in (the) cases." 5 Thus, before a suspension
order can be issued, a hearing on the issue of the validity of
the information must first be had. This pre-suspension
hearing is conducted to determine basically the validity of the
information, from which the court can have a basis to either
suspend the accused, and proceed with the trial on the
merits of the case, or withhold the suspension of the latter
and dismiss the case, or correct any part of the proceeding
which impairs its validity.
As the Court held:
... No specific rules need be laid down for such presuspension hearing. Suffice it to state that the
accused should be given a fair and adequate
opportunity to challenge the VALIDITY OF THE
CRIMINAL PROCEEDINGS against him, e.g. that
he has not been afforded the right of due
preliminary investigation; that the acts for which he
stands charged do not constitute a violation of the
provisions of Republic Act 3019 or the bribery
provisions of the Revised Penal Code which would

25 | P a g e

warrant his mandatory suspension from office under

section 13 of the Act; or he may present a motion to
quash the information on any of the grounds
provided for in Rule 117 of the Rules of Court. ... 6
It should be stressed that the right to challenge the validity of
the information, in prosecutions under the anti-graft law, is
not limited to the right to challenge the completeness or
sufficiency of the recitals in the information vis-a-vis the
essential elements of the offense as defined by substantive
law. Considering the serious and far-reaching consequences
of a suspension of a public official even before his conviction,
the right to challenge the validity of an information entitles
the accused to challenge the validity of the CRIMINAL
PROCEEDINGS leading to the filing of the information
against him.
However, this right of the accused does not divest the
prosecution of its right to prove the guilt of the accused in a
trial on the merits, nor should the pre-suspension hearing
substitute the trial proper.
Thus, in a pre-suspension proceeding, the accused is
accorded the right to prove that the information filed against
him was filed without prior and due preliminary investigation
to which he is entitled under the law. 7 This is to protect him
from hasty, malicious and oppressive prosecution.
Likewise, he is accorded the right to challenge the propriety
of his prosecution on the ground that the acts for which he is
charged do not constitute a violation of Rep. Act 3019, or of
the provisions on bribery of the Revised Penal Code, and the
right to present a motion to quash the information on any of
the grounds provided in Rule 117 of the Rules of Court.
However, a challenge to the validity of the criminal
proceedings on the ground that the acts for which the
accused is charged do not constitute a violation of the
provisions of Rep. Act 3019, or of the provisions on bribery of
the Revised Penal Code, should be treated only in the same
manner as a challenge to the criminal proceeding by way of
a motion to quash on the ground provided in Paragraph (a),
Section 2 of Rule 117 of the Rules of Court, i.e., that the
facts charged do not constitute an offense. In other words, a
resolution of the challenge to the validity of the criminal
proceeding, on such ground, should be limited to an inquiry
whether the facts alleged in the information, if hypothetically
admitted, constitute the elements of an offense punishable
under Rep. Act 3019 or the provisions on bribery of the
Revised Penal Code.
Private respondent Bernabe objects to this procedure,
contending that:
... This would render nugatory the purpose of the
pre-suspension hearing. Considering the harshness
of suspension from office, an accused should be
allowed to present evidence in his behalf to refute
the allegations in the information. Otherwise, any
public officer can be suspended from the office on
the basis of an information complete and regular
upon its face but which may have been based on
false, malicious and unfounded imputation by
unscrupulous persons. ... 8
Contrary to private respondent's contention, the right to be
secured against false, malicious and unfounded imputations
is already covered by the right to a due preliminary

investigation granted to the accused. The law does not

require that the guilt of the accused must be established in a
pre-suspension proceeding before the trial on the merits
proceeds. Nor does it prohibit the trial, and thus the
suspension, of the innocent. The law permits the trial of the
accused based merely on probable cause, as long as
probable cause has been properly determined. And for
honest lapses in its administration, the law provides for
remedial measures upon which an innocent public officer is
vindicated and compensated. As the law provides:

accused Acharon was afforded due preliminary investigation

before the informations were filed against him.

... Should he [the accused] be convicted by final

judgment, he shall lose all retirement or gratuity
benefits under the law, but IF HE IS ACQUITTED,
HE SHALL BE ENTITLED TO REINSTATEMENT
AND TO THE SALARIES AND BENEFITS WHICH
HE FAILED TO RECEIVE DURING THE
SUSPENSION, unless in the meantime
administrative proceedings have been filed against
him. 9(Emphasis supplied)

To traverse the allegations contained in the information, and

conclude that "no law had been violated by the accused
" 14 merely on the basis of the records of the case which
contain evidence submitted by the prosecution in the
preliminary investigation, preemptively denies the
prosecution its right to exhaustively present its evidence
against the accused at the trial proper.

Considering the mandatory suspension of the accused under

a valid information, the law does not contemplate a
proceeding to determine (1) the strength of the evidence of
culpability against him, (2) the gravity of the offense charged,
or (3) whether or not his continuance in office could influence
the witnesses or pose a threat to the safety and integrity of
the records and other evidence, so that a court can have a
valid basis in evaluating the advisability of his suspension
pending the trial proper of the case filed against
him. 10 Besides, a requirement that the guilt of the accused
must first be established in the pre-suspension proceeding
before trial proper can proceed would negate the ruling of
the Court that the " ... mandatory suspension ... requires at
the same time that the hearing be expeditious, and not
unduly protracted such as to thwart the prompt suspension
envisioned by the Act" 11 and make the trial proper a
surplusage.
In the case at bar, respondent Antonio Acharon does not
claim that he was denied his right to due preliminary
investigation. Private respondent Bernabe filed a motion to
dismiss dated 18 June 1971, on the ground that the facts
alleged in the information against her do not constitute an
offense. Further, respondent Antonio Acharon filed a motion,
dated 4 October 1976, praying that a pre-suspension hearing
of the cases be held to determine the validity of the
informations against him, but he did not specify any ground
upon which he challenged the validity of the same.
In any event, when the contending parties in both cases
agreed to submit the question of the validity of the
informations on the basis of the records of the cases, among
others, 12 to determine whether accused Acharon can be
mandatorily suspended, the trial court was competent to
inquire only whether or not (1) accused Acharon had been
afforded due preliminary investigation prior to the filing of the
informations against him, (2) the acts for which he was
charged constitute a violation of the provisions of Rep. Act
3019 or of the provisions on bribery of the Revised Penal
Code, or (3) the informations against him can be quashed,
under any of the grounds provided in Section 2, Rule 117 of
the Rules of Court, not deemed waived in view of the
previous arraignment of the accused. 13
Consequently, the submission by the parties of the issue of
invalidity of the informations on the basis of the records of
the case makes said records, in addition to facts admitted by
the prosecution and indubitable facts contained therein, only
a legal source from which the trial court can inquire whether

26 | P a g e

Likewise, in determining whether the acts for which

respondent Antonio Acharon was charged do not constitute a
violation of the provisions of Rep. Act 3019 or of the
provisions on bribery of the Revised Penal Code, the trial
court should have limited its inquiry to (1) the averments in
the informations, as hypothetically admitted, (2) facts
admitted by the prosecution, and (3) indubitable facts.

Considering that the law does not require the conviction of

the accused in the pre-uspension proceeding but only the
determination of the validity of the criminal proceeding
leading to the filing of the information, and given the ability of
the latter to overcome a motion to quash, the prosecution
should not be faulted if what it presents as evidence in the
pre-uspension proceedings does not satisfy a finding of guilt
beyond reasonable doubt of the accused.
The records of the instant case do not show that the
proceedings leading to the filing of the informations against
the accused were tainted with any irregularity so as to
invalidate the same. Likewise, a reading of the informations
shows that the allegations contained therein meet the
essential elements of offense as defined by substantive
law.15 The record is also bereft of undisputed facts to warrant
the quashal of the informations under any of the grounds
provided in Section 2, Rule 117 of the Rules of Court.
The trial court exceeded its jurisdiction when it practically
held that the prosecution failed to establish the culpability of
the accused in a proceeding which does not even require the
prosecution to do so. It acted with grave abuse of discretion,
tantamount to lack of jurisdiction, when it preemptively
dismissed the cases and, as a consequence thereof,
deprived the prosecution of its right to prosecute and prove
its case, thereby violating its fundamental right to due
process." 16 With this violation, its Orders, dated 28 October
1976 and 20 December 1976, are therefore null and
void. 17 Likewise, for being null and void, said orders cannot
constitute a proper basis for a claim of double jeopardy. 18 As
held by the Court:
... to raise the defense of double jeopardy, three
requisites must be present: (1) a first jeopardy must
have attached prior to the second; (2) the first
jeopardy must have been validly terminated; and (3)
the second jeopardy must be for the same offense
as that in the first.
Legal jeopardy attaches only (a) upon a valid
indictment, (b) before a competent court, (c) after
arraignment, (d) a valid plea having been entered;
and (e) the case was dismissed or otherwise
terminated without the express consent of the
accused (People vs. Ylagan, 58 Phil. 851). The
lower court was not competent as it was ousted of
its jurisdiction when it violated the right of the
prosecution to due process.

In effect, the first jeopardy was never terminated,

and the remand of the criminal case for further
hearing and/or trial before the lower courts amounts
merely to a continuation of the first jeopardy, and
does not expose the accused to a second
jeopardy. 19
WHEREFORE, petition is GRANTED. The challenged orders
of the trial court are hereby declared NULL and VOID.
Criminal Case No. CCC-XVI-1-GSC (255) and Criminal Case
No. CCC-XVI-2-GSC (256) are remanded to the trial court
for further proceedings in accordance with law, No costs.
SO ORDERED.
Melencio-Herrera (Chairperson), Paras and Sarmiento, JJ.,
concur.

Republic of the Philippines

Congress of the Philippines
Metro Manila
Eighth Congress

Republic Act No. 6713

February 20, 1989

AN ACT ESTABLISHING A CODE OF CONDUCT AND

ETHICAL STANDARDS FOR PUBLIC OFFICIALS AND
EMPLOYEES, TO UPHOLD THE TIME-HONORED
PRINCIPLE OF PUBLIC OFFICE BEING A PUBLIC
TRUST, GRANTING INCENTIVES AND REWARDS FOR
EXEMPLARY SERVICE, ENUMERATING PROHIBITED
ACTS AND TRANSACTIONS AND PROVIDING
PENALTIES FOR VIOLATIONS THEREOF AND FOR
OTHER PURPOSES
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled::
Section 1. Title. - This Act shall be known as the "Code of
Conduct and Ethical Standards for Public Officials and
Employees."
Section 2. Declaration of Policies. - It is the policy of the
State to promote a high standard of ethics in public service.
Public officials and employees shall at all times be
accountable to the people and shall discharge their duties
with utmost responsibility, integrity, competence, and loyalty,
act with patriotism and justice, lead modest lives, and uphold
public interest over personal interest.
Section 3. Definition of Terms. - As used in this Act, the
term:
(a) "Government" includes the National
Government, the local governments, and all other
instrumentalities, agencies or branches of the
Republic of the Philippines including governmentowned or controlled corporations, and their
subsidiaries.lawphi1.net

27 | P a g e

(b) "Public Officials" includes 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.
(c) "Gift" refers to a thing or a right to dispose of
gratuitously, or any act or liberality, in favor of
another who accepts it, and shall include a
simulated sale or an ostensibly onerous disposition
thereof. It shall not include an unsolicited gift of
nominal or insignificant value not given in
anticipation of, or in exchange for, a favor from a
public official or employee.
(d) "Receiving any gift" includes the act of accepting
directly or indirectly, a gift from a person other than
a member of his family or relative as defined in this
Act, even on the occasion of a family celebration or
national festivity like Christmas, if the value of the
gift is neither nominal nor insignificant, or the gift is
given in anticipation of, or in exchange for, a favor.
(e) "Loan" covers both simple loan and
commodatum as well as guarantees, financing
arrangements or accommodations intended to
ensure its approval.
(f) "Substantial stockholder" means any person who
owns, directly or indirectly, shares of stock sufficient
to elect a director of a corporation. This term shall
also apply to the parties to a voting trust.
(g) "Family of public officials or employees" means
their spouses and unmarried children under
eighteen (18) years of age.
(h) "Person" includes natural and juridical persons
unless the context indicates otherwise.
(i) "Conflict of interest" arises when a public official
or employee is a member of a board, an officer, or a
substantial stockholder of a private corporation or
owner or has a substantial interest in a business,
and the interest of such corporation or business, or
his rights or duties therein, may be opposed to or
affected by the faithful performance of official duty.
(j) "Divestment" is the transfer of title or disposal of
interest in property by voluntarily, completely and
actually depriving or dispossessing oneself of his
right or title to it in favor of a person or persons
other than his spouse and relatives as defined in
this Act.
(k) "Relatives" refers to any and all persons related
to a public official or employee within the fourth civil
degree of consanguinity or affinity, including bilas,
inso and balae.
Section 4. Norms of Conduct of Public Officials and
Employees. - (A) Every public official and employee shall
observe the following as standards of personal conduct in
the discharge and execution of official duties:

(a) Commitment to public interest. - Public officials

and employees shall always uphold the public
interest over and above personal interest. All
government resources and powers of their
respective offices must be employed and used
efficiently, effectively, honestly and economically,
particularly to avoid wastage in public funds and
revenues.

Constitution and put loyalty to country above loyalty

to persons or party.

(b) Professionalism. - Public officials and

employees shall perform and discharge their duties
with the highest degree of excellence,
professionalism, intelligence and skill. They shall
enter public service with utmost devotion and
dedication to duty. They shall endeavor to
discourage wrong perceptions of their roles as
dispensers or peddlers of undue patronage.

(B) The Civil Service Commission shall adopt

positive measures to promote (1) observance of
these standards including the dissemination of
information programs and workshops authorizing
merit increases beyond regular progression steps,
to a limited number of employees recognized by
their office colleagues to be outstanding in their
observance of ethical standards; and (2) continuing
research and experimentation on measures which
provide positive motivation to public officials and
employees in raising the general level of
observance of these standards.

(c) Justness and sincerity. - Public officials and

employees shall remain true to the people at all
times. They must act with justness and sincerity and
shall not discriminate against anyone, especially the
poor and the underprivileged. They shall at all times
respect the rights of others, and shall refrain from
doing acts contrary to law, good morals, good
customs, public policy, public order, public safety
and public interest. They shall not dispense or
extend undue favors on account of their office to
their relatives whether by consanguinity or affinity
except with respect to appointments of such
relatives to positions considered strictly confidential
or as members of their personal staff whose terms
are coterminous with theirs.
(d) Political neutrality. - Public officials and
employees shall provide service to everyone
without unfair discrimination and regardless of party
affiliation or preference.
(e) Responsiveness to the public. - Public officials
and employees shall extend prompt, courteous, and
adequate service to the public. Unless otherwise
provided by law or when required by the public
interest, public officials and employees shall provide
information of their policies and procedures in clear
and understandable language, ensure openness of
information, public consultations and hearings
whenever appropriate, encourage suggestions,
simplify and systematize policy, rules and
procedures, avoid red tape and develop an
understanding and appreciation of the socioeconomic conditions prevailing in the country,
especially in the depressed rural and urban areas.
(f) Nationalism and patriotism. - Public officials and
employees shall at all times be loyal to the Republic
and to the Filipino people, promote the use of
locally produced goods, resources and technology
and encourage appreciation and pride of country
and people. They shall endeavor to maintain and
defend Philippine sovereignty against foreign
intrusion.
(g) Commitment to democracy. - Public officials and
employees shall commit themselves to the
democratic way of life and values, maintain the
principle of public accountability, and manifest by
deeds the supremacy of civilian authority over the
military. They shall at all times uphold the

28 | P a g e

(h) Simple living. - Public officials and employees

and their families shall lead modest lives
appropriate to their positions and income. They
shall not indulge in extravagant or ostentatious
display of wealth in any form.

Section 5. Duties of Public Officials and Employees. - In the

performance of their duties, all public officials and employees
are under obligation to:lawphi1.net
(a) Act promptly on letters and requests. - All public
officials and employees shall, within fifteen (15)
working days from receipt thereof, respond to
letters, telegrams or other means of
communications sent by the public. The reply must
contain the action taken on the request.
(b) Submit annual performance reports. - All heads
or other responsible officers of offices and agencies
of the government and of government-owned or
controlled corporations shall, within forty-five (45)
working days from the end of the year, render a
performance report of the agency or office or
corporation concerned. Such report shall be open
and available to the public within regular office
hours.
(c) Process documents and papers expeditiously. All official papers and documents must be
processed and completed within a reasonable time
from the preparation thereof and must contain, as
far as practicable, not more than three (3)
signatories therein. In the absence of duly
authorized signatories, the official next-in-rank or
officer in charge shall sign for and in their behalf.
(d) Act immediately on the public's personal
transactions. - All public officials and employees
must attend to anyone who wants to avail himself of
the services of their offices and must, at all times,
act promptly and expeditiously.
(e) Make documents accessible to the public. - All
public documents must be made accessible to, and
readily available for inspection by, the public within
reasonable working hours.
Section 6. System of Incentives and Rewards. - A system of
annual incentives and rewards is hereby established in order
to motivate and inspire public servants to uphold the highest
standards of ethics. For this purpose, a Committee on
Awards to Outstanding Public Officials and Employees is

hereby created composed of the following: the Ombudsman

and Chairman of the Civil Service Commission as CoChairmen, and the Chairman of the Commission on Audit,
and two government employees to be appointed by the
President, as members.
It shall be the task of this Committee to conduct a periodic,
continuing review of the performance of public officials and
employees, in all the branches and agencies of Government
and establish a system of annual incentives and rewards to
the end that due recognition is given to public officials and
employees of outstanding merit on the basis of the standards
set forth in this Act.
The conferment of awards shall take into account, among
other things, the following: the years of service and the
quality and consistency of performance, the obscurity of the
position, the level of salary, the unique and exemplary quality
of a certain achievement, and the risks or temptations
inherent in the work. Incentives and rewards to government
officials and employees of the year to be announced in public
ceremonies honoring them may take the form of bonuses,
citations, directorships in government-owned or controlled
corporations, local and foreign scholarship grants, paid
vacations and the like. They shall likewise be automatically
promoted to the next higher position with the commensurate
salary suitable to their qualifications. In case there is no next
higher position or it is not vacant, said position shall be
included in the budget of the office in the next General
Appropriations Act. The Committee on Awards shall adopt its
own rules to govern the conduct of its activities.
Section 7. Prohibited Acts and Transactions. - In addition to
acts and omissions of public officials and employees now
prescribed in the Constitution and existing laws, the following
shall constitute prohibited acts and transactions of any public
official and employee and are hereby declared to be
unlawful:
(a) Financial and material interest. - Public officials
and employees shall not, directly or indirectly, have
any financial or material interest in any transaction
requiring the approval of their office.
(b) Outside employment and other activities related
thereto. - Public officials and employees during their
incumbency shall not:
(1) Own, control, manage or accept
employment as officer, employee,
consultant, counsel, broker, agent, trustee
or nominee in any private enterprise
regulated, supervised or licensed by their
office unless expressly allowed by law;
(2) Engage in the private practice of their
profession unless authorized by the
Constitution or law, provided, that such
practice will not conflict or tend to conflict
with their official functions; or
(3) Recommend any person to any
position in a private enterprise which has a
regular or pending official transaction with
their office.
These prohibitions shall continue to apply for a
period of one (1) year after resignation, retirement,

29 | P a g e

or separation from public office, except in the case

of subparagraph (b) (2) above, but the professional
concerned cannot practice his profession in
connection with any matter before the office he
used to be with, in which case the one-year
prohibition shall likewise apply.
(c) Disclosure and/or misuse of confidential
information. - Public officials and employees shall
not use or divulge, confidential or classified
information officially known to them by reason of
their office and not made available to the public,
either:
(1) To further their private interests, or give
undue advantage to anyone; or
(2) To prejudice the public interest.
(d) Solicitation or acceptance of gifts. - Public
officials and employees shall not solicit or accept,
directly or indirectly, any gift, gratuity, favor,
entertainment, loan or anything of monetary value
from any person in the course of their official duties
or in connection with any operation being regulated
by, or any transaction which may be affected by the
functions of their office.
As to gifts or grants from foreign governments, the
Congress consents to:
(i) The acceptance and retention by a
public official or employee of a gift of
nominal value tendered and received as a
souvenir or mark of courtesy;
(ii) The acceptance by a public official or
employee of a gift in the nature of a
scholarship or fellowship grant or medical
treatment; or
(iii) The acceptance by a public official or
employee of travel grants or expenses for
travel taking place entirely outside the
Philippine (such as allowances,
transportation, food, and lodging) of more
than nominal value if such acceptance is
appropriate or consistent with the interests
of the Philippines, and permitted by the
head of office, branch or agency to which
he belongs.
The Ombudsman shall prescribe such regulations
as may be necessary to carry out the purpose of
this subsection, including pertinent reporting and
disclosure requirements.
Nothing in this Act shall be construed to restrict or
prohibit any educational, scientific or cultural
exchange programs subject to national security
requirements.
Section 8. Statements and Disclosure. - Public officials and
employees have an obligation to accomplish and submit
declarations under oath of, and the public has the right to
know, their assets, liabilities, net worth and financial and
business interests including those of their spouses and of

unmarried children under eighteen (18) years of age living in

their households.
(A) Statements of Assets and Liabilities and
Financial Disclosure. - All public officials and
employees, except those who serve in an honorary
capacity, laborers and casual or temporary workers,
shall file under oath their Statement of Assets,
Liabilities and Net Worth and a Disclosure of
Business Interests and Financial Connections and
those of their spouses and unmarried children
under eighteen (18) years of age living in their
households.
The two documents shall contain information on the
following:
(a) real property, its improvements,
acquisition costs, assessed value and
current fair market value;

(1) Constitutional and national elective

officials, with the national office of the
Ombudsman;
(2) Senators and Congressmen, with the
Secretaries of the Senate and the House
of Representatives, respectively; Justices,
with the Clerk of Court of the Supreme
Court; Judges, with the Court
Administrator; and all national executive
officials with the Office of the President.
(3) Regional and local officials and
employees, with the Deputy Ombudsman
in their respective regions;
(4) Officers of the armed forces from the
rank of colonel or naval captain, with the
Office of the President, and those below
said ranks, with the Deputy Ombudsman
in their respective regions; and

(b) personal property and acquisition cost;

(c) all other assets such as investments,
cash on hand or in banks, stocks, bonds,
and the like;
(d) liabilities, and;
(e) all business interests and financial
connections.
The documents must be filed:
(a) within thirty (30) days after assumption
of office;
(b) on or before April 30, of every year
thereafter; and
(c) within thirty (30) days after separation
from the service.
All public officials and employees required under
this section to file the aforestated documents shall
also execute, within thirty (30) days from the date of
their assumption of office, the necessary authority in
favor of the Ombudsman to obtain from all
appropriate government agencies, including the
Bureau of Internal Revenue, such documents as
may show their assets, liabilities, net worth, and
also their business interests and financial
connections in previous years, including, if possible,
the year when they first assumed any office in the
Government.
Husband and wife who are both public officials or
employees may file the required statements jointly
or separately.
The Statements of Assets, Liabilities and Net Worth
and the Disclosure of Business Interests and
Financial Connections shall be filed by:

30 | P a g e

(5) All other public officials and employees,

defined in Republic Act No. 3019, as
amended, with the Civil Service
Commission.
(B) Identification and disclosure of relatives. - It shall be the
duty of every public official or employee to identify and
disclose, to the best of his knowledge and information, his
relatives in the Government in the form, manner and
frequency prescribed by the Civil Service Commission.
(C) Accessibility of documents. - (1) Any and all statements
filed under this Act, shall be made available for inspection at
reasonable hours.
(2) Such statements shall be made available for
copying or reproduction after ten (10) working days
from the time they are filed as required by law.
(3) Any person requesting a copy of a statement
shall be required to pay a reasonable fee to cover
the cost of reproduction and mailing of such
statement, as well as the cost of certification.
(4) Any statement filed under this Act shall be
available to the public for a period of ten (10) years
after receipt of the statement. After such period, the
statement may be destroyed unless needed in an
ongoing investigation.
(D) Prohibited acts. - It shall be unlawful for any person to
obtain or use any statement filed under this Act for:
(a) any purpose contrary to morals or public policy;
or
(b) any commercial purpose other than by news
and communications media for dissemination to the
general public.
Section 9. Divestment. - A public official or employee shall
avoid conflicts of interest at all times. When a conflict of
interest arises, he shall resign from his position in any private
business enterprise within thirty (30) days from his
assumption of office and/or divest himself of his

shareholdings or interest within sixty (60) days from such

assumption.
The same rule shall apply where the public official or
employee is a partner in a partnership.
The requirement of divestment shall not apply to those who
serve the Government in an honorary capacity nor to
laborers and casual or temporary workers.
Section 10. Review and Compliance Procedure. - (a) The
designated Committees of both Houses of the Congress
shall establish procedures for the review of statements to
determine whether said statements which have been
submitted on time, are complete, and are in proper form. In
the event a determination is made that a statement is not so
filed, the appropriate Committee shall so inform the reporting
individual and direct him to take the necessary corrective
action.
(b) In order to carry out their responsibilities under
this Act, the designated Committees of both Houses
of Congress shall have the power within their
respective jurisdictions, to render any opinion
interpreting this Act, in writing, to persons covered
by this Act, subject in each instance to the approval
by affirmative vote of the majority of the particular
House concerned.
The individual to whom an opinion is rendered, and
any other individual involved in a similar factual
situation, and who, after issuance of the opinion
acts in good faith in accordance with it shall not be
subject to any sanction provided in this Act.
(c) The heads of other offices shall perform the
duties stated in subsections (a) and (b) hereof
insofar as their respective offices are concerned,
subject to the approval of the Secretary of Justice,
in the case of the Executive Department and the
Chief Justice of the Supreme Court, in the case of
the Judicial Department.
Section 11. Penalties. - (a) Any public official or employee,
regardless of whether or not he holds office or employment
in a casual, temporary, holdover, permanent or regular
capacity, committing any violation of this Act shall be
punished with a fine not exceeding the equivalent of six (6)
months' salary or suspension not exceeding one (1) year, or
removal depending on the gravity of the offense after due
notice and hearing by the appropriate body or agency. If the
violation is punishable by a heavier penalty under another
law, he shall be prosecuted under the latter statute.
Violations of Sections 7, 8 or 9 of this Act shall be punishable
with imprisonment not exceeding five (5) years, or a fine not
exceeding five thousand pesos (P5,000), or both, and, in the
discretion of the court of competent jurisdiction,
disqualification to hold public office.
(b) Any violation hereof proven in a proper
administrative proceeding shall be sufficient cause
for removal or dismissal of a public official or
employee, even if no criminal prosecution is
instituted against him.
(c) Private individuals who participate in conspiracy
as co-principals, accomplices or accessories, with
public officials or employees, in violation of this Act,

31 | P a g e

shall be subject to the same penal liabilities as the

public officials or employees and shall be tried
jointly with them.
(d) The official or employee concerned may bring
an action against any person who obtains or uses a
report for any purpose prohibited by Section 8 (D)
of this Act. The Court in which such action is
brought may assess against such person a penalty
in any amount not to exceed twenty-five thousand
pesos (P25,000). If another sanction hereunder or
under any other law is heavier, the latter shall apply.
Section 12. Promulgation of Rules and Regulations,
Administration and Enforcement of this Act. - The Civil
Service Commission shall have the primary responsibility for
the administration and enforcement of this Act. It shall
transmit all cases for prosecution arising from violations of
this Act to the proper authorities for appropriate action:
Provided, however, That it may institute such administrative
actions and disciplinary measures as may be warranted in
accordance with law. Nothing in this provision shall be
construed as a deprivation of the right of each House of
Congress to discipline its Members for disorderly behavior.
The Civil Service Commission is hereby authorized to
promulgate rules and regulations necessary to carry out the
provisions of this Act, including guidelines for individuals who
render free voluntary service to the Government. The
Ombudsman shall likewise take steps to protect citizens who
denounce acts or omissions of public officials and employees
which are in violation of this Act.
Section 13. Provisions for More Stringent Standards. Nothing in this Act shall be construed to derogate from any
law, or any regulation prescribed by any body or agency,
which provides for more stringent standards for its official
and employees.
Section 14. Appropriations. - The sum necessary for the
effective implementation of this Act shall be taken from the
appropriations of the Civil Service Commission. Thereafter,
such sum as may be needed for its continued
implementation shall be included in the annual General
Appropriations Act.
Section 15. Separability Clause. - If any provision of this Act
or the application of such provision to any person or
circumstance is declared invalid, the remainder of the Act or
the application of such provision to other persons or
circumstances shall not be affected by such declaration.
Section 16. Repealing Clause. - All laws, decrees and
orders or parts thereof inconsistent herewith, are deemed
repealed or modified accordingly, unless the same provide
for a heavier penalty.
Section 17. Effectivity. - This Act shall take effect after thirty
(30) days following the completion of its publication in the
Official Gazette or in two (2) national newspapers of general
circulation.
Approved, February 20, 1989.
Republic of the Philippines
Congress of the Philippines
Metro Manila

Eighth Congress

Republic Act No. 6758

August 21, 1989

AN ACT PRESCRIBING A REVISED COMPENSATION

AND POSITION CLASSIFICATION SYSTEM IN THE
GOVERNMENT AND FOR OTHER PURPOSES
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled::
Section 1. Title. - This Act shall be known as the
"Compensation and Position Classification Act of 1989."
Section 2. Statement of Policy. - It is hereby declared the
policy of the State to provide equal pay for substantially
equal work and to base differences in pay upon substantive
differences in duties and responsibilities, and qualification
requirements of the positions. In determining rates of pay,
due regard shall be given to, among others, prevailing rates
in the private sector for comparable work. For this purpose,
the Department of Budget and Managements (DBM) is
hereby directed to establish and administer a unified
Compensation and Position Classification System,
hereinafter referred to as the System, as provided for in
Presidential Decree No. 985, as amended, that shall be
applied for all government entities, as mandated by the
Constitution.
Section 3. General Provisions. - The following principles
shall govern the Compensation and Position Classification
System of the Government:
(a) All government personnel shall be paid just and
equitable wages; and while pay distinctions must
necessarily exist in keeping with work distinctions,
the ratio of compensation for those occupying
higher ranks to those at lower ranks should be
maintained at equitable levels, giving due
consideration to higher percentage of increases to
lower level positions and lower percentage
increases to higher level positions;
(b) Basic compensation for all personnel in the
government and government-owned or controlled
corporations and financial institutions shall
generally be comparable with those in the private
sector doing comparable work, and must be in
accordance with prevailing laws on minimum
wages;
(c) The total compensation provided for government
personnel must be maintained at a reasonable level
in proportion to the national budget;
(d) A review of government compensation rates,
taking into account possible erosion in purchasing
power due to inflation and other factors, shall be
conducted periodically.
Section 4. Coverage. - The Compensation and Position
Classification System herein provided shall apply to all
positions, appointive or elective, on full or part-time basis,
now existing or hereafter created in the government,

32 | P a g e

including government-owned or controlled corporations and

government financial institutions.
The term "government" refers to the Executive, the
Legislative and the Judicial Branches and the Constitutional
Commissions and shall include all, but shall not be limited to,
departments, bureaus, offices, boards, commissions, courts,
tribunals, councils, authorities, administrations, centers,
institutes, state colleges and universities, local government
units, and the armed forces. The term "government-owned or
controlled corporations and financial institutions" shall
include all corporations and financial institutions owned or
controlled by the National Government, whether such
corporations and financial institutions perform governmental
or proprietary functions.
Section 5. Position Classification System. - The Position
Classification System shall consist of classes of positions
grouped into four main categories, namely: professional
supervisory, professional non-supervisory, sub-professional
supervisory, and sub-professional non-supervisory, and the
rules and regulations for its implementation.
Categorization of these classes of positions shall be guided
by the following considerations:
(a) Professional Supervisory Category. - This
category includes responsible positions of a
managerial character involving the exercise of
management functions such as planning,
organizing, directing, coordinating, controlling and
overseeing within delegated authority the activities
of an organization, a unit thereof or of a group,
requiring some degree of professional, technical or
scientific knowledge and experience, application of
managerial or supervisory skills required to carry
out their basic duties and responsibilities involving
functional guidance and control, leadership, as well
as line supervision. These positions require
intensive and thorough knowledge of a specialized
field usually acquired from completion of a
bachelor's degree or higher degree courses.
The positions in this category are assigned Salary
Grade 9 to Salary Grade 33.
(b) Professional Non-Supervisory Category. - This
category includes positions performing task which
usually require the exercise of a particular
profession or application of knowledge acquired
through formal training in a particular field or just
the exercise of a natural, creative and artistic ability
or talent in literature, drama, music and other
branches of arts and letters. Also included are
positions involved in research and application of
professional knowledge and methods to a variety of
technological, economic, social, industrial and
governmental functions; the performance of
technical tasks auxiliary to scientific research and
development; and in the performance of religious,
educational, legal, artistic or literary functions.
These positions require thorough knowledge in the
field of arts and sciences or learning acquired
through completion of at least four (4) years of
college studies.

The positions in this category are assigned Salary

Grade 8 to Salary Grade 30.
(c) Sub-Professional Supervisory Category. - This
category includes positions performing supervisory
functions over a group of employees engaged in
responsible work along technical, manual or clerical
lines of work which are short of professional work,
requiring training and moderate experience or lower
training but considerable experience and
knowledge of a limited subject matter or skills in
arts, crafts or trades. These positions require
knowledge acquired from secondary or vocational
education or completion of up to two (2) years of
college education.
The positions in this category are assigned Salary
Grade 4 to Salary Grade 18.
(d) Sub-Professional Non-Supervisory Category. This category includes positions involves in
structured work in support of office or fiscal
operations or those engaged in crafts, trades or
manual work. These positions usually require skills
acquired through training and experience of
completion of elementary education, secondary or
vocational education or completion of up to two (2)
years of college education.
The positions in this category are assigned Salary Grade 1
to Salary Grade 10.
Section 6. Index of Occupational Services, Position
Titles and Salary Grades of the Compensation and
Position Classification System. - All positions in the
government covered under Section 4 hereof shall be
allocated to their proper position titles and salary grades in
accordance with the Index of Occupational Services,
Position Titles and Salary Grades of the Compensation and
Position Classification System which shall be prepared by
the DBM.
Section 7. Salary Schedule. - The Department of Budget
and Management is hereby directed to implement the Salary
Schedule prescribed below:

Grade 1st
1 - 2,000
2 - 2,073
3 - 2,156
4 - 2,250
5 - 2,355
6 - 2,473
7 - 2,604
8 - 2,752
9 - 2,917
10 - 3,102
11 - 3,309
12 - 3,540
13 - 3,800
14 - 4,091
15 - 4,418
16 - 4,786

33 | P a g e

2nd
2,020
2,094
2,178
2,272
2,378
2,497
2,630
2,779
2,946
3,133
3,342
3,576
3,838
4,132
4,463
4,834

3rd
2,040
2,115
2,200
2,295
2,402
2,522
2,657
2,807
2,976
3,164
3,375
3,611
3,876
4,173
4,507
4,883

Salary Schedule
4th
2,061
2,136
2,222
2,318
2,426
2,547
2,683
2,835
3,005
3,196
3,409
3,647
3,915
4,215
4,552
4,932

17 - 5,201
18 - 5,670
19 - 6,199
20 - 6,798
21 - 7,478
22 - 8,250
23 - 9,131
24 -10,135
25 -11,385
26 -12,650
27 -13,915
28 -15,180
29 -17,075
30 -18,975
31 -19,550
32 -22,000
33 -25,000

5,253
5,726
6,261
6,866
7,553
8,333
9,222
10,236
11,499
12,777
14,054
15,332
17,246

5,306
5,784
6,323
6,935
7,628
8,416
9,314
10,339
11,614
12,904
14,195
15,485
17,418

5,359
5,841
6,386
7,004
7,704
8,500
9,407
10,442
11,730
13,033
14,337
15,640
17,592

5,4
5,9
6,4
7,0
7,7
8,5
9,5
10,5
11,8
13,1
14,4
15,7
17,7

The above Salary Schedule shall be used for positions that

are paid on the annual or monthly rate basis. All salaries in
the Salary Schedule expressed as monthly rates in pesos
shall represent full compensation for full-time employment,
regardless of where the work is performed. Salaries for
services rendered on a part-time basis shall be adjusted
proportionately.
The Department of Budget and Management shall update
the above Schedule whenever there are across-the-board
salary adjustments as may be provided by law.
The daily wage rate shall be determined by dividing the
monthly salary rate by twenty-two (22) working days per
month.
Section 8. Salaries of Constitutional Officials and their
Equivalent. - Pursuant to Section 17, Article XVIII of the
Constitution, the salary of the following officials shall be in
accordance with the Salary Grades indicated hereunder:
Salary Grades
President of the Philippines
Vice-President of the Philippines
President of the Senate
Speaker of the House of Representatives
Chief Justice of the Supreme Court
Senator
Member of the House of Representatives
Associate Justices of the Supreme Court
Chairman of a Constitutional Commission under
Article IX, 1987 Constitution
Member of a Constitutional Commission under
Article IX, 1987 Constitution
The Department of Budget and Management is hereby
authorized to determine the officials who are of equivalent
rank to the foregoing Officials, where applicable, and may be
assigned the same Salary Grades based on the following
guidelines:
GRADE 33 - This Grade is assigned to the
President of the Republic of the Philippines as the

3
3
3
3
3
3
3
3
3

highest position in the government. No other

position in the government service is considered to
be of equivalent rank.
GRADE 32 - This Grade is limited to the VicePresident of the Republic of the Philippines and
those positions which head the Legislative and
Judicial Branches of the government, namely: the
Senate President, Speaker of the House of
Representatives and Chief Justice of the Supreme
Court. No other positions in the government service
are considered to be of equivalent rank.
GRADE 31 - This Grade is assigned to Senators
and Members of the House of Representatives and
those with equivalent rank as follows: the Executive
Secretary, Department Secretary, Presidential
Spokesman, Ombudsman, Press Secretary,
Presidential Assistant with Cabinet Rank,
Presidential Adviser, National Economic and
Development Authority Director General, Court of
Appeals Presiding Justice, Sandiganbayan
Presiding Justice, Secretary of the Senate,
Secretary of the House of Representatives, and
President of the University of the Philippines.
An entity with a broad functional scope of
operations and wide area of coverage ranging from
top level policy formulation to the provision of
technical and administrative support to the units
under it, with functions comparable to the aforesaid
positions in the preceding paragraph, can be
considered organizationally equivalent to a
Department, and its head to that of a Department
Secretary.
GRADE 30 - Positions included are those of
Department Undersecretary, Cabinet
Undersecretary, Presidential Assistant, Solicitor
General, Government Corporate Counsel, Court
Administrator of the Supreme Court, Chief of Staff
of the Office of the Vice-President, National
Economic and Development Authority Deputy
Director General, Presidential Management Staff
Executive Director, Deputy Ombudsman, Associate
Justices of the Court of Appeals, Associate Justices
of the Sandiganbayan, Special Prosecutor,
University of the Philippines Executive VicePresident, Mindanao State University President,
Polytechnic University of the Philippines President
of and President of other state universities and
colleges of the same class.
Heads of councils, commissions, boards and similar entities
whose operations cut across offices or departments or are
serving a sizeable portion of the general public and whose
coverage is nationwide or whose functions are comparable
to the aforecited positions in the preceding paragraph, may
be placed at this level.
The equivalent rank of positions not mentioned herein or
those that may be created hereafter shall be determined
based on these guidelines.
The Provisions of this Act as far as they upgrade the
compensation of Constitutional Officials and their equivalent
under this section shall, however, take effect only in
accordance with the Constitution: Provided, That with
respect to the President and Vice-President of the Republic

34 | P a g e

of the Philippines, the President of the Senate, the Speaker

of the House of Representatives, the Senators, and the
Members of the House of Representatives, no increase in
salary shall take effect even beyond 1992, until this Act is
amended: Provided, further, That the implementation of this
Act with respect to Assistant Secretaries and
Undersecretaries shall be deferred for one (1) year from the
effectivity of this Act and for Secretaries, until July 1, 1992:
Provided, finally, That in the case of Assistant Secretaries,
Undersecretaries and Secretaries, the salary rates
authorized herein shall be used in the computation of the
retirement benefits for those who retire under the existing
retirement laws within the aforesaid period.
Section 9. Salary Grade Assignments for Other
Positions. - For positions below the Officials mentioned
under Section 8 hereof and their equivalent, whether in the
National Government, local government units, governmentowned or controlled corporations or financial institutions, the
Department of Budget and Management is hereby directed
to prepare the Index of Occupational Services to be guided
by the Benchmark Position Schedule prescribed hereunder
and the following factors: (1) the education and experience
required to perform the duties and responsibilities of the
positions; (2) the nature and complexity of the work to be
performed; (3) the kind of supervision received; (4) mental
and/or physical strain required in the completion of the work;
(5) nature and extent of internal and external relationships;
(6) kind of supervision exercised; (7) decision-making
responsibility; (8) responsibility for accuracy of records and
reports; (9) accountability for funds, properties and
equipment; and (10) hardship, hazard and personal risk
involved in the job.
Benchmark Position Schedule
Position Title
Laborer I
Messenger
Clerk I
Driver I
Stenographer I
Mechanic I
Carpenter II
Electrician II
Secretary I
Bookkeeper
Administrative Assistant
Education Research Assistant I
Cashier I
Nurse I
Teacher I
Agrarian Reform Program Technologist
Budget Officer I
Chemist I
Agriculturist I
Social Welfare Officer I
Engineer I
Veterinarian I
Legal Officer I
Administrative Officer II
Dentist II

Salary
Grade

1
1
1
1
1
1
1
1
1
1
1
1
1

Postmaster IV
Forester III
Associate Professor I
Rural Health Physician
In no case shall the salary of the chairman, president,
general manager or administrator, and the board of directors
of government-owned or controlled corporations and
financial institutions exceed Salary Grade 30: Provided, That
the President may, in truly exceptional cases, approve higher
compensation for the aforesaid officials.
Section 10. Local Government Units (LGUs). - The rates
of pay in LGUs shall be determined on the basis of the class
and financial capability of each LGU: Provided, That such
rates of pay shall not exceed the following percentages of
the rates in the salary schedule prescribed under Section 7
hereof:
For
For
Provinces/Cities Municipalities
Special Cities
100%
1st Class
100%
90%
2nd Class
95%
85%
3rd Class
90%
80%
4th Class
85%
75%
5th Class
80%
70%
6th Class
75%
65%
Section 11. Military and Police Personnel. - The base pay
of uniformed personnel of the Armed Forces of the
Philippines and the Integrated National Police shall be as
prescribed in the salary schedule for these personnel in R.A.
No. 6638 and R.A. No. 6648. The longevity pay of these
personnel shall be as prescribed under R.A. No. 6638, and
R.A. No. 1134 as amended by R.A. No. 3725 and R.A. No.
6648: Provided, however, That the longevity pay of
uniformed personnel of the Integrated National Police shall
include those services rendered as uniformed members of
the police, jail and fire departments of the local government
units prior to the police integration.
All existing types of allowances authorized for uniformed
personnel of the Armed Forces of the Philippines and
Integrated National Police such as cost of living allowance,
longevity pay, quarters allowance, subsistence allowance,
clothing allowance, hazard pay and other allowances shall
continue to be authorized.
Section 12. Consolidation of Allowances and
Compensation. - All allowances, except for representation
and transportation allowances; clothing and laundry
allowances; subsistence allowance of marine officers and
crew on board government vessels and hospital personnel;
hazard pay; allowances of foreign service personnel
stationed abroad; and such other additional compensation
not otherwise specified herein as may be determined by the
DBM, shall be deemed included in the standardized salary
rates herein prescribed. Such other additional compensation,
whether in cash or in kind, being received by incumbents
only as of July 1, 1989 not integrated into the standardized
salary rates shall continue to be authorized.
Existing additional compensation of any national government
official or employee paid from local funds of a local

35 | P a g e

government unit shall be absorbed into the basic salary of

said official or employee and shall be paid by the National
Government.
Section 13. Pay Adjustments. - Paragraphs (b) and (c),
Section 15 of Presidential Decree No. 985 are hereby
amended to read as follows:
"(b) Pay Reduction - If an employee is moved from
a higher to a lower class, he shall not suffer a
reduction in salary: Provided, That such movement
is not the result of a disciplinary action or voluntary
demotion.
"(c) Step Increments - Effective January 1, 1990
step increments shall be granted based on merit
and/or length of service in accordance with rules
and regulations that will be promulgated jointly by
the DBM and the Civil Service Commission."
Section 14. Administration of Compensation and
Position Classification System. - Subparagraph (a),
Section 17 of Presidential Decree No. 985 is hereby
amended to read as follows:
"(a) Administer the compensation and position
classification system established herein and revise
it as necessary."
Section 15. Reference to Offices and Positions. - All
references to the "Commissioner of the Budget," "Budget
Commission" or "Commission" and "Office of Compensation
and Position Classification" or "OCPC" in Presidential
Decree No. 985 and Presidential Decree No. 1597 shall read
to mean the Secretary of Budget and Management, the
Department of Budget and Management or DBM, and the
Compensation and Position Classification Bureau or CPCB,
respectively.
Section 16. Repeal of Special Salary Laws and
Regulations. - All laws, decrees, executive orders, corporate
charters, and other issuances or parts thereof, that exempt
agencies from the coverage of the System, or that authorize
and fix position classification, salaries, pay rates or
allowances of specified positions, or groups of officials and
employees or of agencies, which are inconsistent with the
System, including the proviso under Section 2, and Section
16 of Presidential Decree No. 985 are hereby repealed.
Section 17. Salaries of Incumbents. - Incumbents of
positions presently receiving salaries and additional
compensation/fringe benefits including those absorbed from
local government units and other emoluments, the aggregate
of which exceeds the standardized salary rate as herein
prescribed, shall continue to receive such excess
compensation, which shall be referred to as transition
allowance. The transition allowance shall be reduced by the
amount of salary adjustment that the incumbent shall receive
in the future.
The transition allowance referred to herein shall be treated
as part of the basic salary for purposes of computing
retirement pay, year-end bonus and other similar benefits.
As basis for computation of the first across-the-board salary
adjustment of incumbents with transition allowance, no
incumbent who is receiving compensation exceeding the
standardized salary rate at the time of the effectivity of this

Act, shall be assigned a salary lower than ninety percent

(90%) of his present compensation or the standardized
salary rate, whichever is higher. Subsequent increases shall
be based on the resultant adjusted salary.

Section 22. Repealing Clause. - all laws, decrees, orders,

rules or regulations or parts thereof inconsistent with the
provisions of this Act are hereby repealed, amended, or
modified accordingly.

Section 18. Additional Compensation of Commission on

Audit Personnel and of Other Agencies. - In order to
preserve the independence and integrity of the Commission
on Audit (COA), its officials and employees are prohibited
from receiving salaries, honoraria, bonuses, allowances or
other emoluments from any government entity, local
government unit, and government-owned and controlled
corporations, and government financial institution, except
those compensation paid directly be the COA out of its
appropriations and contributions.

Section 23. Effectivity. - This Act shall take effect July 1,

1989. The DBM shall, within sixty (60) days after its
approval, allocate all positions in their appropriate position
titles and salary grades and prepare and issue the necessary
guidelines to implement the same.

Government entities, including government-owned or

controlled corporations including financial institutions and
local government units are hereby prohibited from assessing
or billing other government entities, government-owned or
controlled corporations including financial institutions or local
government units for services rendered by its officials and
employees as part of their regular functions for purposes of
paying additional compensation to said officials and
employees.
Section 19. Funding Source. - The funding sources for the
amounts necessary to implement this Act shall be as follows:
(a) For national government entities, the amount
shall be charged against the appropriations set
aside for the purpose in the 1989 General
Appropriations Act and from savings generated
from the different departments, bureaus, offices and
agencies. Thereafter, such amounts as are needed
shall be included in the annual General
Appropriations Act.
(b) For local government units, the amount shall be
charged against their respective funds. Local
government units which do not have adequate or
sufficient funds shall only partially implement the
established rates as may be approved by the Joint
Commission under Section 3 of Presidential Decree
No. 1136: Provided, That any partial implementation
shall be uniform and proportionate for all positions
in each local government unit: Provided, further,
That savings from National Assistance to Local
Government Units (NALGU) funds may be used for
this purpose.
(c) For government corporations, the amount shall
come from their respective corporate funds.

Approved: August 21, 1989

Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 141375

April 30, 2003

MUNICIPALITY OF KANANGA, Represented by its Mayor,

Hon. GIOVANNI M. NAPARI, petitioner,
vs.
Hon. FORTUNITO L. MADRONA, Presiding Judge,
Regional Trial Court of Ormoc City (Branch 35); and the
CITY OF ORMOC, Represented by its Mayor, Hon.
EUFROCINO M. CODILLA SR., respondents.
PANGANIBAN, J.:
Since there is no legal provision specifically governing
jurisdiction over boundary disputes between a municipality
and an independent component city, it follows that regional
trial courts have the power and the authority to hear and
determine such controversy.
The Case
Before us is a Petition for Certiorari1 under Rule 65 of the
Rules of Court, seeking to annul the October 29, 1999
Order2 issued by the Regional Trial Court (RTC) of Ormoc
City (Branch 35) in Civil Case No. 3722-O. The decretal
portion of the assailed Order reads as follows:
"For the foregoing considerations, this Court is not
inclined to approve and grant the motion to
dismiss[,] although the municipality has all the right
to bring the matter or issue to the Supreme Court
by way of certiorari purely on question of law."3
The Facts

Section 20. Separability Clause. - If for any reason any

section or provision of this Act is declared to be
unconstitutional or invalid, the other sections or provisions
thereof which are not affected thereby shall continue to be in
full force and effect.
Section 21. Applicability of Presidential Decree No. 985
as Amended by Presidential Decree No. 1597. - All
provisions of Presidential Decree No. 985, as amended by
Presidential Decree No. 1597, which are not inconsistent
with this Act and are not expressly modified, revoked or
repealed in this Act shall continue to be in full force and
effect.

36 | P a g e

A boundary dispute arose between the Municipality of

Kananga and the City of Ormoc. By agreement, the parties
submitted the issue to amicable settlement by a joint session
of the Sangguniang Panlungsod of Ormoc City and the
Sangguniang Bayan of Kananga on October 31, 1997.
No amicable settlement was reached. Instead, the members
of the joint session issued Resolution No. 97-01, which in
part reads:
"x x x IT IS HEREBY RESOLVED x x x to pass a
resolution certifying that both the Sangguniang
Panlungsod of Ormoc City and the Sangguniang

Bayan of Kananga, Leyte have failed to settle

amicably their boundary dispute and have agreed to
elevate the same to the proper court for settlement
by any of the interested party (sic)."4
To settle the boundary dispute, the City of Ormoc filed before
the RTC of Ormoc City (Branch 35) on September 2, 1999, a
Complaint docketed as Civil Case No. 3722-O.
On September 24, 1999, petitioner filed a Motion to Dismiss
on the following grounds:
"(1) That the Honorable Court has no jurisdiction
over the subject matter of the claim;
"(2) That there is no cause of action; and
"(3) That a condition precedent for filing the
complaint has not been complied with[.]"5
Ruling of the Trial Court
In denying the Municipality of Kanangas Motion to Dismiss,
the RTC held that it had jurisdiction over the action under
Batas Pambansa Blg. 129. It further ruled that Section 118 of
the Local Government Code had been substantially complied
with, because both parties already had the occasion to meet
and thresh out their differences. In fact, both agreed to
elevate the matter to the trial court via Resolution No. 97-01.
It also held that Section 118 governed venue; hence, the
parties could waive and agree upon it under Section 4(b) of
Rule 4 of the Rules of Court.
Not satisfied with the denial of its Motion, the Municipality of
Kananga filed this Petition.6
Issue
In their respective Memoranda, both parties raise the lone
issue of whether respondent court may exercise original
jurisdiction over the settlement of a boundary dispute
between a municipality and an independent component city.
The Courts Ruling
The Petition has no merit.
Sole Issue:
Jurisdiction
Jurisdiction is the right to act on a case or the power and the
authority to hear and determine a cause.7 It is a question of
law.8 As consistently ruled by this Court, jurisdiction over the
subject matter is vested by law.9 Because it is "a matter of
substantive law, the established rule is that the statute in
force at the time of the commencement of the action
determines the jurisdiction of the court."10
Both parties aver that the governing law at the time of the
filing of the Complaint is Section 118 of the 1991 Local
Government Code (LGC),11 which provides:
"Sec. 118. Jurisdictional Responsibility for
Settlement of Boundary Disputes. Boundary
disputes between and among local government

37 | P a g e

units shall, as much as possible, be settled

amicably. To this end:
"(a) Boundary disputes involving two (2) or
more barangays in the same city or municipality
shall be referred for settlement to the sangguniang
panlungsod or sangguniang bayan concerned.
"(b) Boundary disputes involving two (2) or more
municipalities within the same province shall be
referred for settlement to the sangguniang
panlalawigan concerned.
"(c) Boundary disputes involving municipalities or
component cities of different provinces shall be
jointly referred for settlement to the sanggunians of
the provinces concerned.
"(d) Boundary disputes involving a component city
or municipality on the one hand and a highly
urbanized city on the other, or two (2) or more
highly urbanized cities, shall be jointly referred for
settlement to the respective sanggunians of the
parties.
"(e) In the event the sanggunian fails to effect an
amicable settlement within sixty (60) days from the
date the dispute was referred thereto, it shall issue
a certification to that effect. Thereafter, the dispute
shall be formally tried by the sanggunian concerned
which shall decide the issue within sixty (60) days
from the date of the certification referred to above."
Under this provision, the settlement of a boundary dispute
between a component city or a municipality on the one hand
and a highly urbanized city on the other -- or between two or
more highly urbanized cities -- shall be jointly referred for
settlement to the respective sanggunians of the local
government units involved.
There is no question that Kananga is a municipality
constituted under Republic Act No. 542.12 By virtue of
Section 442(d) of the LGC, it continued to exist and operate
as such.
However, Ormoc is not a highly urbanized, but an
independent component, city created under Republic Act No.
179.13 Section 89 thereof reads:
"Sec. 89. Election of provincial governor and
members of the Provincial Board of the Province of
Leyte. The qualified voters of Ormoc City shall not
be qualified and entitled to vote in the election of
the provincial governor and the members of the
provincial board of the Province of Leyte."
Under Section 451 of the LGC, a city may be either
component or highly urbanized. Ormoc is deemed an
independent component city, because its charter prohibits its
voters from voting for provincial elective officials. It is a city
independent of the province. In fact, it is considered a
component, not a highly urbanized, city of Leyte in Region
VIII by both Batas Pambansa Blg. 643,14 which calls for a
plebiscite; and the Omnibus Election Code,15which
apportions representatives to the defunct Batasang
Pambansa. There is neither a declaration by the President of
the Philippines nor an allegation by the parties that it is
highly urbanized. On the contrary, petitioner asserted in its

Motion to Dismiss that Ormoc was an independent chartered

city.16
Section 118 of the LGC applies to a situation in which a
component city or a municipality seeks to settle a boundary
dispute with a highly urbanized city, not with an independent
component city. While Kananga is a municipality, Ormoc is
an independent component city. Clearly then, the procedure
referred to in Section 118 does not apply to them.
Nevertheless, a joint session was indeed held, but no
amicable settlement was reached. A resolution to that effect
was issued, and the sanggunians of both local government
units mutually agreed to bring the dispute to the RTC for
adjudication. The question now is: Does the regional trial
court have jurisdiction over the subject matter of the claim?
We rule in the affirmative.

Inasmuch as Section 118 of the LGC finds no application to

the instant case, the general rules governing jurisdiction
should then be used. The applicable provision is found in
Batas Pambansa Blg. 129,19 otherwise known as the
Judiciary Reorganization Act of 1980, as amended by
Republic Act No. 7691.20 Section 19(6) of this law provides:
"Sec. 19. Jurisdiction in civil cases. Regional Trial
Courts shall exercise exclusive original jurisdiction:
xxx

xxx

"(6) In all cases not within the exclusive jurisdiction

of any court, tribunal, person or body exercising
judicial or quasi-judicial functions[."
Since there is no law providing for the exclusive jurisdiction
of any court or agency over the settlement of boundary
disputes between a municipality and an independent
component city of the same province, respondent court
committed no grave abuse of discretion in denying the
Motion to Dismiss. RTCs have general jurisdiction to
adjudicate all controversies except those expressly withheld
from their plenary powers.21 They have the power not only to
take judicial cognizance of a case instituted for judicial action
for the first time, but also to do so to the exclusion of all other
courts at that stage. Indeed, the power is not only original,
but also exclusive.
In Mariano Jr. v. Commission on Elections,22 we held that
boundary disputes should be resolved with fairness and
certainty. We ruled as follows:
"The importance of drawing with precise strokes the
territorial boundaries of a local unit of government
cannot be overemphasized. The boundaries must
be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can
legitimately exercise powers of government only
within the limits of its territorial jurisdiction. Beyond
these limits, its acts are ultra vires. Needless to
state, any uncertainty in the boundaries of local

38 | P a g e

Indeed, unresolved boundary disputes have sown costly

conflicts in the exercise of governmental powers and
prejudiced the peoples welfare. Precisely because of these
disputes, the Philippine National Oil Company has withheld
the share in the proceeds from the development and the
utilization of natural wealth, as provided for in Section 289 of
the LGC.23
WHEREFORE, the Petition is DENIED and the challenged
Order AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Puno, Sandoval-Gutierrez, Corona, and Carpio-Morales,
JJ., concur.

As previously stated, "jurisdiction is vested by law and

cannot be conferred or waived by the parties."17 It must exist
as a matter of law and cannot be conferred by the consent of
the parties or by estoppel.18 It should not be confused with
venue.

xxx

government units will sow costly conflicts in the

exercise of governmental powers which ultimately
will prejudice the peoples welfare. x x x."

Republic of the Philippines

Congress of the Philippines
Metro Manila
Eighth Congress

Republic Act No. 6735

August 4, 1989

AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE AND

REFERENDUM AND APPROPRIATING FUNDS
THEREFOR
Be it enacted by the Senate and House of Representatives
of the Philippines in Congress assembled::
I. General Provisions
Section 1. Title. This Act shall be known as "The
Initiative and Referendum Act."
Section 2. Statement of Policy. The power of the people
under a system of initiative and referendum to directly
propose, enact, approve or reject, in whole or in part, the
Constitution, laws, ordinances, or resolutions passed by any
legislative body upon compliance with the requirements of
this Act is hereby affirmed, recognized and guaranteed.
Section 3. Definition of Terms. For purposes of this Act,
the following terms shall mean:
(a) "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and
enact legislations through an election called for the
purpose.
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which
refers to a petition proposing amendments
to the Constitution;

a.2. Initiative on statutes which refers to a

petition proposing to enact a national
legislation; and
a.3. Initiative on local legislation which
refers to a petition proposing to enact a
regional, provincial, city, municipal, or
barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the
people through a proposition sent to Congress or
the local legislative body for action.
(c) "Referendum" is the power of the electorate to
approve or reject a legislation through an election
called for the purpose. It may be of two classes,
namely:

(b) A petition for an initiative on the 1987

Constitution must have at least twelve per centum
(12%) of the total number of registered voters as
signatories, of which every legislative district must
be represented by at least three per centum (3%) of
the registered voters therein. Initiative on the
Constitution may be exercised only after five (5)
years from the ratification of the 1987 Constitution
and only once every five (5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law
sought to be enacted, approved or
rejected, amended or repealed, as the
case may be;
c.2. the proposition;

c.1. Referendum on statutes which refers

to a petition to approve or reject an act or
law, or part thereof, passed by Congress;
and
c.2. Referendum on local law which refers
to a petition to approve or reject a law,
resolution or ordinance enacted by
regional assemblies and local legislative
bodies.
(d) "Proposition" is the measure proposed by the
voters.
(e) "Plebiscite" is the electoral process by which an
initiative on the Constitution is approved or rejected
by the people.
(f) "Petition" is the written instrument containing the
proposition and the required number of signatories.
It shall be in a form to be determined by and
submitted to the Commission on Elections,
hereinafter referred to as the Commission.
(g) "Local government units" refers to provinces,
cities, municipalities and barangays.
(h) "Local legislative bodies" refers to the
Sangguniang Panlalawigan, Sangguniang
Panlungsod, Sangguniang Bayan, and
Sangguniang Nayon.
(i) "Local executives" refers to the Provincial
Governors, City or Municipal Mayors and Punong
Barangay, as the case may be.

c.3. the reason or reasons therefor;

c.4. that it is not one of the exceptions
provided herein;
c.5. signatures of the petitioners or
registered voters; and
c.6. an abstract or summary in not more
than one hundred (100) words which shall
be legibly written or printed at the top of
every page of the petition.
(d) A referendum or initiative affecting a law,
resolution or ordinance passed by the legislative
assembly of an autonomous region, province or city
is deemed validly initiated if the petition thereof is
signed by at least ten per centum (10%) of the
registered voters in the province or city, of which
every legislative district must be represented by at
least three per centum (3%) of the registered voters
therein; Provided, however, That if the province or
city is composed only of one (1) legislative district,
then at least each municipality in a province or each
barangay in a city should be represented by at least
three per centum (3%) of the registered voters
therein.
(e) A referendum of initiative on an ordinance
passed in a municipality shall be deemed validly
initiated if the petition therefor is signed by at least
ten per centum (10%) of the registered voters in the
municipality, of which every barangay is
represented by at least three per centum (3%) of
the registered voters therein.

Section 4. Who may exercise. The power of initiative

and referendum may be exercised by all registered voters of
the country, autonomous regions, provinces, cities,
municipalities and barangays.

(f) A referendum or initiative on a barangay

resolution or ordinance is deemed validly initiated if
signed by at least ten per centum (10%) of the
registered voters in said barangay.

Section 5. Requirements. (a) To exercise the power of

initiative or referendum, at least ten per centum (10%) of the
total number of the registered voters, of which every
legislative district is represented by at least three per centum
(3%) of the registered voters thereof, shall sign a petition for
the purpose and register the same with the Commission.

Section 6. Special Registration. The Commission on

Election shall set a special registration day at least three (3)
weeks before a scheduled initiative or referendum.

39 | P a g e

Section 7. Verification of Signatures. The Election

Registrar shall verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters

identification cards used in the immediately preceding

election.
II. National Initiative and Referendum
SECTION 8. Conduct and Date of Initiative or
Referendum. The Commission shall call and supervise
the conduct of initiative or referendum.
Within a period of thirty (30) days from receipt of the petition,
the Commission shall, upon determining the sufficiency of
the petition, publish the same in Filipino and English at least
twice in newspapers of general and local circulation and set
the date of the initiative or referendum which shall not be
earlier than forty-five (45) days but not later than ninety (90)
days from the determination by the Commission of the
sufficiency of the petition.
Section 9. Effectivity of Initiative or Referendum
Proposition. (a) The Proposition of the enactment,
approval, amendment or rejection of a national law shall be
submitted to and approved by a majority of the votes cast by
all the registered voters of the Philippines.
If, as certified to by the Commission, the proposition
is approved by a majority of the votes cast, the
national law proposed for enactment, approval, or
amendment shall become effective fifteen (15) days
following completion of its publication in the Official
Gazette or in a newspaper of general circulation in
the Philippines. If, as certified by the Commission,
the proposition to reject a national law is approved
by a majority of the votes cast, the said national law
shall be deemed repealed and the repeal shall
become effective fifteen (15) days following the
completion of publication of the proposition and the
certification by the Commission in the Official
Gazette or in a newspaper of general circulation in
the Philippines.
However, if the majority vote is not obtained, the
national law sought to be rejected or amended shall
remain in full force and effect.
(b) The proposition in an initiative on the
Constitution approved by a majority of the votes
cast in the plebiscite shall become effective as to
the day of the plebiscite.
(c) A national or local initiative proposition approved
by majority of the votes cast in an election called for
the purpose shall become effective fifteen (15) days
after certification and proclamation by the
Commission.
Section 10. Prohibited Measures. The following cannot
be the subject of an initiative or referendum petition:
(a) No petition embracing more than one (1) subject
shall be submitted to the electorate; and
(b) Statutes involving emergency measures, the
enactment of which are specifically vested in
Congress by the Constitution, cannot be subject to
referendum until ninety (90) days after its effectivity.

40 | P a g e

Section 11. Indirect Initiative. Any duly accredited

people's organization, as defined by law, may file a petition
for indirect initiative with the House of Representatives, and
other legislative bodies. The petition shall contain a summary
of the chief purposes and contents of the bill that the
organization proposes to be enacted into law by the
legislature.
The procedure to be followed on the initiative bill shall be the
same as the enactment of any legislative measure before the
House of Representatives except that the said initiative bill
shall have precedence over the pending legislative
measures on the committee.
Section 12. Appeal. The decision of the Commission on
the findings of the sufficiency or insufficiency of the petition
for initiative or referendum may be appealed to the Supreme
Court within thirty (30) days from notice thereof.
III. Local Initiative and Referendum
SECTION 13. Procedure in Local Initiative. (a) Not less
than two thousand (2,000) registered voters in case of
autonomous regions, one thousand (1,000) in case of
provinces and cities, one hundred (100) in case of
municipalities, and fifty (50) in case of barangays, may file a
petition with the Regional Assembly or local legislative body,
respectively, proposing the adoption, enactment, repeal, or
amendment, of any law, ordinance or resolution.
(b) If no favorable action thereon is made by local
legislative body within (30) days from its
presentation, the proponents through their duly
authorized and registered representative may
invoke their power of initiative, giving notice thereof
to the local legislative body concerned.
(c) The proposition shall be numbered serially
starting from one (1). The Secretary of Local
Government or his designated representative shall
extend assistance in the formulation of the
proposition.
(d) Two or more propositions may be submitted in
an initiative.
(e) Proponents shall have one hundred twenty
(120) days in case of autonomous regions, ninety
(90) days in case of provinces and cities, sixty (60)
days in case of municipalities, and thirty (30) days
in case of barangays, from notice mentioned in
subsection (b) hereof to collect the required number
of signatures.
(f) The petition shall be signed before the Election
Registrar, or his designated representative, in the
presence of a representative of the proponent, and
a representative of the regional assemblies and
local legislative bodies concerned in a public place
in the autonomous region or local government unit,
as the case may be. Signature stations may be
established in as many places as may be
warranted.
(g) Upon the lapse of the period herein provided,
the Commission on Elections, through its office in
the local government unit concerned shall certify as
to whether or not the required number of signatures

has been obtained. Failure to obtain the required

number is a defeat of the proposition.
(h) If the required number of the signatures is
obtained, the Commission shall then set a date for
the initiative at which the proposition shall be
submitted to the registered voters in the local
government unit concerned for their approval within
ninety (90) days from the date of certification by the
Commission, as provided in subsection (g) hereof,
in case of autonomous regions, sixty (60) days in
case of the provinces and cities, forty-five (45) days
in case of municipalities, and thirty (30) days in
case of barangays. The initiative shall then be held
on the date set, after which the results thereof shall
be certified and proclaimed by the Commission on
Elections.
Section 14. Effectivity of Local Propositions. If the
proposition is approved by a majority of the votes cast, it
shall take effect fifteen (15) days after certification by the
Commission as if affirmative action thereon had been made
by the local legislative body and local executive concerned. If
it fails to obtain said number of votes, the proposition is
considered defeated.
Section 15. Limitations on Local Initiatives. (a) The
power of local initiative shall not be exercised more than
once a year.
(b) Initiative shall extend only to subjects or matters
which are within the legal powers of the local
legislative bodies to enact.

Section 18. Authority of Courts. Nothing in this Act shall

prevent or preclude the proper courts from declaring null and
void any proposition approved pursuant to this Act for
violation of the Constitution or want of capacity of the local
legislative body to enact the said measure.
IV. Final Provisions
SECTION 19. Applicability of the Omnibus Election
Code. The Omnibus Election Code and other election
laws, not inconsistent with the provisions of this Act, shall
apply to all initiatives and referenda.
Section 20. Rules and Regulations. The Commission is
hereby empowered to promulgate such rules and regulations
as may be necessary to carry out the purposes of this Act.
Section 21. Appropriations. The amount necessary to
defray the cost of the initial implementation of this Act shall
be charged against the Contingent Fund in the General
Appropriations Act of the current year. Thereafter, such sums
as may be necessary for the full implementation of this Act
shall be included in the annual General Appropriations Act.
Section 22. Separability Clause. If any part or provision
of this Act is held invalid or unconstitutional, the other parts
or provisions thereof shall remain valid and effective.
Section 23. Effectivity. This Act shall take effect fifteen
(15) days after its publication in a newspaper of general
circulation.
Approved: August 4, 1989

(c) If at any time before the initiative is held, the

local legislative body shall adopt in toto the
proposition presented, the initiative shall be
cancelled. However, those against such action may,
if they so desire, apply for initiative in the manner
herein provided.
Section 16. Limitations Upon Local Legislative
Bodies. Any proposition or ordinance or resolution
approved through the system of initiative and referendum as
herein provided shall not be repealed, modified or amended,
by the local legislative body concerned within six (6) months
from the date therefrom, and may be amended, modified or
repealed by the local legislative body within three (3) years
thereafter by a vote of three-fourths (3/4) of all its members:
Provided, however, that in case of barangays, the period
shall be one (1) year after the expiration of the first six (6)
months.
Section 17. Local Referendum. Notwithstanding the
provisions of Section 4 hereof, any local legislative body may
submit to the registered voters of autonomous region,
provinces, cities, municipalities and barangays for the
approval or rejection, any ordinance or resolution duly
enacted or approved.
Said referendum shall be held under the control and
direction of the Commission within sixty (60) days in case of
provinces and cities, forty-five (45) days in case of
municipalities and thirty (30) days in case of barangays.
The Commission shall certify and proclaim the results of the
said referendum.

41 | P a g e

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. 111230 September 30, 1994

ENRIQUE T. GARCIA, ET AL., petitioners,
vs.
COMMISSION ON ELECTIONS and SANGGUNIANG
BAYAN OF MORONG, BATAAN, respondents.
Alfonzo M. Cruz Law Offices for petitioners.

PUNO, J.:
The 1987 Constitution is borne of the conviction that people
power can be trusted to check excesses of government. One
of the means by which people power can be exercised is
thru initiatives where local ordinances and resolutions can be
enacted or repealed. An effort to trivialize the effectiveness of
people's initiatives ought to be rejected.
In its Pambayang Kapasyahan Blg. 10, Serye 1993, 1 the
Sangguniang Bayan ng Morong, Bataan agreed to the
inclusion of the municipality of Morong as part of the Subic

Special Economic Zone in accord with Republic Act

No. 7227.
On May 24, 1993, petitioners filed a petition 2 with the
Sangguniang Bayan of Morong to annul Pambayang
Kapasyahan Blg. 10, Serye 1993. The petition states:
I. Bawiin, nulipikahin at pawalang-bisa ang
Pambayang Kapasyahan Blg. 10, Serye 1993 ng
Sangguniang Bayan para sa pag-anib ng Morong
sa SSEZ na walang kondisyon.
II. Palitan ito ng isang Pambayang Kapasiyahan na
aanib lamang ang Morong sa SSEZ kung ang mga
sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at
interes ng Morong at Bataan:
(A). Ibalik sa Bataan ang "Virgin Forests" isang
bundok na hindi nagagalw at punong-puno ng
malalaking punong-kahoy at iba'-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEZ at ibalik ito
sa Bataan.
(K). Isama ang mga lupain ng Bataan na
nakapaloob sa SBMA sa pagkukuenta ng salaping
ipinagkakaloob ng pamahalaang national o "Internal
Revenue Allotment" (IRA) sa Morong, Hermosa at
sa Lalawigan.
(D). Payagang magtatag rin ng sariling "special
economic zones" ang bawat bayan ng Morong,
Hermosa at Dinalupihan.
(E). Ibase sa laki ng kanya-kanyang lupa ang
pamamahagi ng kikitain ng SBMA.
(G). Ibase rin ang alokasyon ng pagbibigay ng
trabaho sa laki ng nasabing mga lupa.
(H). Pabayaang bukas ang pinto ng SBMA na nasa
Morong ng 24 na oras at bukod dito sa magbukas
pa ng pinto sa hangganan naman ng Morong at
Hermosa upang magkaroon ng pagkakataong
umunlad rin ang mga nasabing bayan, pati na rin
ng iba pang bayan ng Bataan.
(I). Tapusin ang pagkokonkreto ng mga daang
Morong-Tala-Orani at Morong-Tasig-Dinalupihan
para sa kabutihan ng mga taga-Bataan at tuloy
makatulong sa pangangalaga ng mga kabundukan.
(J). Magkaroon ng sapat na representasyon sa
pamunuan ng SBMA ang Morong, Hermosa at
Bataan.
The municipality of Morong did not take any action on the
petition within thirty (30) days after its submission.
Petitioners then resorted to their power of initiative under the
Local Government Code of 1991. 3 They started to solicit the
required number of signatures 4 to cause the repeal of said
resolution. Unknown to the petitioners, however, the
Honorable Edilberto M. de Leon, Vice Mayor and Presiding
Officer of the Sangguniang Bayan ng Morong, wrote a letter
dated June 11, 1993 to the Executive Director of COMELEC
requesting the denial of " . . . the petition for a local initiative

42 | P a g e

and/or referendum because the exercise will just promote

divisiveness, counter productive and futility." 5 We quote the
letter, viz:
The Executive Director
COMELEC
Intramuros, Metro Manila
S i r:
In view of the petition filed by a group of proponents
headed by Gov. Enrique T. Garcia, relative to the
conduct of a local initiative and/or referendum for
the annulment of Pambayang Kapasyahan Blg. 10,
Serye 1993, may we respectfully request to deny
the petition referred thereto considering the issues
raised by the proponents were favorably acted upon
and endorsed to Congress and other government
agencies by the Sangguniang Bayan of Morong.
For your information and guidance, we are
enumerating hereunder the issues raised by the
petitioners with the corresponding actions
undertaken by the Sangguniang Bayan of Morong,
to wit:
ISSUES RAISED BY PROPONENTS
I. Pawalang-bisa ang Pambayang Kapasyahan Blg.
10, Serye ng taong 1993.
II. Palitan ito ng isang Kapasyahang Pag-anib sa
SSEZ kung:
a) Ibabalik sa Morong ang pag-aaring Grande
Island, kabundukan at Naval Reservation;
b) Ibase sa aring Lupa ng LGU ang kikitain at
mapapasok na manggagawa nila sa SSEZ;
c) Isama ang nasabing lupa sa pagkukuwenta ng
"IRA" ng Morong, Hermosa at Dinalupihan;
d) Makapagtatag ng sariling "economic zones" ang
Morong, Hermosa at Dinalupihan;
e) Pabayaan bukas ang pinto ng Morong
patungong SSEZ at magbukas ng dalawang (2)
pinto pa;
(f) Konkretohin ang daang Morong papunta sa
Orani at Dinalupihan;
g) Pumili ng SBMA Chairman na taga-ibang lugar.
ACTIONS UNDERTAKEN BY THE SB OF
MORONG
1. By virtue of R.A. 7227, otherwise known as the
Bases Conversion Development Act of 1992, all
actions of LGU's correlating on the above issues
are merely recommendatory in nature when such
provisions were already embodied in the statute.

2. Corollary to the notion, the Sangguniang Bayan

of Morong passed and approved Pambayang
Kapasyahan Blg. 18, Serye 1993, requesting
Congress of the Philippines to amend certain
provisions of R.A. 7227, wherein it reasserted its
position embodied in Pambayan Kapasyahan Blg.
08 and Blg. 12, Serye ng taong 1992, (Attached
and marked as Annex "A:) which tackled the same
issues raised by the petitioners particularly items a),
b), c), e), and g).
3. Item d) is already acted upon by BCDA Chairman
Arsenio Bartolome III in its letter to His Excellency
President Fidel V. Ramos, dated May 7, 1993
(Attached and marked as Annex "B") with clarifying
letter from BCDA Vice-Chairman Rogelio L. Singson
regarding lands on Mabayo and Minanga dated
June 3, 1993 that only lands inside the perimeter
fence are envisioned to be part of SBMA.
4. Item f), President Ramos in his marginal note
over the letter request of Morong, Bataan Mayor
Bienvenido L. Vicedo, the Sangguniang Bayan and
Congressman Payumo, when the Resolution of
Concurrence to SBMA was submitted last April 6,
1993, order the priority implementation of
completion of Morong-Dinalupihan (Tasik-Road)
Project, including the Morong-Poblacion-Mabayo
Road to DPWH. (Attached and marked as Annex
"C").
Based on the foregoing facts, the Sangguniang
Bayan of Morong had accommodated the clamor of
the petitioners in accordance with its limited powers
over the issues. However, the Sangguniang Bayan
of Morong cannot afford to wait for amendments by
Congress of R.A. 7227 that will perhaps drag for
several months or years, thereby delaying the
development of Morong, Bataan.
Henceforth, we respectfully reiterate our request to
deny the petition for a local initiative and/or
referendum because the exercise will just promote
divisiveness, counter productive and futility.
Thank you and more power.
Very truly yours,
(SGD.) EDILBERTO M. DE LEON
Mun. Vice Mayor/Presiding Officer
In its session of July 6, 1993, the COMELEC en
banc resolved to deny the petition for local initiative
on the ground that its subject is "merely a resolution
(pambayang kapasyahan) and not an
ordinance." 6 On July 13, 1993, the COMELEC en
banc further resolved to direct Provincial Election
Supervisor, Atty. Benjamin N. Casiano, to hold
action on the authentication of signatures being
gathered by petitioners. 7
These COMELEC resolutions are sought to be set aside in
the petition at bench. The petition makes the following
submissions:
5. This is a petition for certiorari and mandamus.

43 | P a g e

5.01 For certiorari, conformably to Sec. 7, Art. IX of

the Constitution, to set aside Comelec Resolution
Nos. 93-1676 and 93-1623 (Annexes "E" and "H")
insofar as it disallowed the initiation of a local
initiative to annul PAMBAYANG KAPASYAHAN
BLG. 10, SERYE 1993 including the gathering and
authentication of the required number of signatures
in support thereof.
5.01.1 As an administrative agency, respondent
Comelec is bound to observe due process in the
conduct of its proceedings. Here, the subject
resolutions, Annexes "E" and "H", were issued ex
parte and without affording petitioners and the other
proponents of the initiative the opportunity to be
heard thereon. More importantly, these resolutions
and/or directives were issued with grave abuse of
discretion. A Sangguniang Bayan resolution being
an act of the aforementioned local legislative
assembly is undoubtedly a proper subject of
initiative. (Sec. 32, Art. VI, Constitution)
5.02 For mandamus, pursuant to Sec. 3, Rule 65,
Rules of Court, to command the respondent
Comelec to schedule forthwith the continuation of
the signing of the petition, and should the required
number of signatures be obtained, set a date for the
initiative within forty-five (45) days thereof.
5.02.1 Respondent Comelec's authority in the
matter of local initiative is merely ministerial. It is
duty-bound to supervise the gathering of signatures
in support of the petition and to set the date of the
initiative once the required number of signatures
are obtained.
If the required number of signatures is obtained, the
Comelec shall then set a date for the initiative
during which the proposition shall be submitted to
the registered voters in the local government unit
concerned for their approval within sixty (60) days
from the date of certification by the Comelec, as
provided in subsection (g) hereof, in case of
provinces and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of
barangays. The initiative shall then be held on the
date set, after which the results thereof shall be
certified and proclaimed by the Comelec. (Sec. 22,
par. (h) R.A. 7160.
Respondent COMELEC opposed the petition.
Through the Solicitor General, it contends that
under the Local Government Code of 1991, a
resolution cannot be the subject of a local initiative.
The same stance is assumed by the respondent
Sangguniang Bayan of Morong. 8
We grant the petition.
The case at bench is of transcendental significance because
it involves an issue of first impression delineating the
extent of the all important original power of the people to
legislate. Father Bernas explains that "in republican systems,
there are generally two kinds of legislative power, original
and derivative. Original legislative power is possessed by the
sovereign people. Derivative legislative power is that which
has been delegated by the sovereign people to legislative
bodies and is subordinate to the original power of the
people." 9

Our constitutional odyssey shows that up until 1987, our

people have not directly exercised legislative power, both the
constituent power to amend or revise the Constitution or the
power to enact ordinary laws. Section 1, Article VI of the
1935 Constitution delegated legislative power to Congress,
thus "the legislative power shall be vested in a Congress of
the Philippines, which shall consist of a Senate and a House
of Representatives." Similarly, section 1, Article VIII of the
1973 Constitution, as amended, provided that "the
Legislative power shall be vested in a Batasang
Pambansa." 10
Implicit in the set up was the trust of the people in Congress
to enact laws for their benefit. So total was their trust that the
people did not reserve for themselves the same power to
make or repeal laws. The omission was to prove unfortunate.
In the 70's and until the EDSA revolution, the legislature
failed the expectations of the people especially when former
President Marcos wielded lawmaking powers under
Amendment No. 6 of the 1973 Constitution. Laws which
could have bridled the nation's downslide from democracy to
authoritarianism to anarchy never saw the light of day.
In February 1986, the people took a direct hand in the
determination of their destiny. They toppled down the
government of former President Marcos in a historic
bloodless revolution. The Constitution was rewritten to
embody the lessons of their sad experience. One of the
lessons is the folly of completely surrendering the power to
make laws to the legislature. The result, in the perceptive
words of Father Bernas, is that the new Constitution became
"less trusting of public officials than the American
Constitution." 11
For the first time in 1987, the system of people's initiative
was thus installed in our fundamental law. To be sure, it was
a late awakening. As early as 1898, the state of South
Dakota has adopted initiative and referendum in its
constitution 12 and many states have followed suit. 13 In any
event, the framers of our 1987 Constitution realized the
value of initiative and referendum as an ultimate weapon of
the people to negate government malfeasance and
misfeasance and they put in place an overarching system.
Thus, thru an initiative, the people were given the power to
amend the Constitution itself. Sec. 2 of Art. XVII provides:
"Amendments to this Constitution may likewise be directly
proposed by the people through initiative upon a petition of
at least twelve per centum of the total number of registered
voters, of which every legislative district must be represented
by at least three per centum of the registered voters therein."
Likewise, thru an initiative, the people were also endowed
with the power to enact or reject any act or law by congress
or local legislative body. Sections 1 and 32 of Article VI
provide:
Sec. 1. The legislative power shall be vested in the
Congress of the Philippines which shall consist of a
Senate and a House of Representatives except to
the extent reserved to the people by the provisions
on initiative and referendum.
xxx xxx xxx
Sec. 32. The Congress shall, as early as possible,
provide for a system of initiative and referendum,
and the exceptions therefrom, whereby the people
can directly propose and enact laws or approve or
reject any act or law or part thereof passed by the
Congress or local legislative body after the

44 | P a g e

registration of a petition therefor signed by at least

ten per centum of the total number of registered
voters, of which every legislative district must be
represented by at least three per centum of the
registered voters thereto.
The COMELEC was also empowered to enforce
and administer all laws and regulations relative to
the conduct of an initiative and
referendum. 14 Worthwhile noting is the scope of
coverage of an initiative or referendum as
delineated by section 32 Art. VI of the
Constitution, supra any act or law passed by
Congress or local legislative body.
In due time, Congress respondent to the mandate of the
Constitution. It enacted laws to put into operation the
constitutionalized concept of initiative and referendum. On
August 4, 1989, it approved Republic Act No. 6735 entitled
"An Act Providing for a System of Initiative and Referendum
and Appropriating Funds Therefor." Liberally borrowed from
American laws, 15 R.A. No. 6735, among others, spelled out
the requirements 16 for the exercise of the power of initiative
and referendum, the conduct of national initiative and
referendum; 17 procedure of local initiative and
referendum; 18 and their limitations. 19 Then came Republic
Act No. 7160, otherwise known as The Local Government
Code of 1991. Chapter 2, Title XI, Book I of the Code
governed the conduct of local initiative and referendum.
In light of this legal backdrop, the essential issue to be
resolved in the case at bench is whether Pambayang
Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan
of Morong, Bataan is the proper subject of an initiative.
Respondents take the negative stance as they contend that
under the Local Government Code of 1991 only an
ordinance can be the subject of initiative. They rely on
section 120, Chapter 2, Title XI, Book I of the Local
Government Code of 1991 which provides: "Local Initiative
Defined. Local initiative is the legal process whereby the
registered voters of a local government unit may directly
propose, enact, or amend any ordinance."
We reject respondents' narrow and literal reading of the
above provision for it will collide with the Constitution and will
subvert the intent of the lawmakers in enacting the
provisions of the Local Government Code of 1991 on
initiative and referendum.
The Constitution clearly includes not only ordinances but
resolutions as appropriate subjects of a local initiative.
Section 32 of Article VI provides in luminous language: "The
Congress shall, as early as possible, provide for a system of
initiative and referendum, and the exceptions therefrom,
whereby the people can directly propose and enact laws or
approve or reject any act or law or part thereof passed by the
Congress, or local legislative body . . ." An act includes a
resolution. Black 20 defines an act as "an expression of will or
purpose . . . it may denote something done . . . as a
legislature, including not merely physical acts, but also
decrees, edicts, laws, judgments, resolves, awards, and
determinations . . . ." It is basic that a law should be
construed in harmony with and not in violation of the
constitution.21 In line with this postulate, we held in In Re
Guarina that "if there is doubt or uncertainty as to the
meaning of the legislative, if the words or provisions are
obscure, or if the enactment is fairly susceptible of two or
more constructions, that interpretation will be adopted which
will avoid the effect of unconstitutionality, even though it may

be necessary, for this purpose, to disregard the more usual

or apparent import of the language used." 22
The constitutional command to include acts (i.e., resolutions)
as appropriate subjects of initiative was implemented by
Congress when it enacted Republic Act No. 6735 entitled
"An Act Providing for a System of Initiative and Referendum
and Appropriating Funds Therefor." Thus, its section 3(a)
expressly includes resolutions as subjects of initiatives on
local legislations, viz:

ad referendum, fundamentally, Mr. Speaker, we

consolidated the Senate and the House versions,
so both versions are totally intact in the bill. The
Senators ironically provided for local initiative and
referendum and the House of Representatives
correctly provided for initiative and referendum on
the Constitution and on national legislation.
I move that we approve the consolidated bill.
MR. ALBANO. Mr. Speaker.

Sec. 3. Definition of Terms For purposes of this

Act, the following terms shall mean;

THE SPEAKER PRO TEMPORE. What is the

pleasure of the Minority Floor Leader?

(a) "Initiative" is the power of the people to propose

amendments to the Constitution or to propose and
enact legislations through an election called for the
purpose.

MR. ALBANO. Will the distinguished sponsor

answer just a few questions?

There are three (3) systems of initiative, namely:

THE SPEAKER PRO TEMPORE. What does the

sponsor say?

a.1. Initiative on the Constitution which refers to a

petition proposing amendments to the Constitution.

MR. ROCO. Willingly, Mr. Speaker.

a.2. Initiative on statutes which refers to a petition

proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution, or
ordinance. (Emphasis ours)
Similarly, its section 16 states: "Limitations Upon
Local Legislative Bodies Any proposition on
ordinance or resolution approved through the
system of initiative and referendum as herein
provided shall not be repealed, modified or
amended, by the local legislative body concerned
within six (6) months from the date therefrom . . . ."
On January 16, 1991, the COMELEC also
promulgated its Resolution No. 2300 entitled "In Re
Rules and Regulations Governing the Conduct of
Initiative on the Constitution, and Initiative and
Referendum, on National and Local Laws." It
likewise recognized resolutions as proper subjects
of initiatives. Section 5, Article I of its Rules states:
"Scope of power of initiative The power of
initiative may be exercised to amend the
Constitution, or to enact a national legislation, a
regional, provincial, city, municipal or barangay
law, resolution or ordinance."
There can hardly be any doubt that when Congress enacted
Republic Act No. 6735 it intend resolutions to be proper
subjects of local initiatives. The debates confirm this intent.
We quote some of the interpellations when the Conference
Committee Report on the disagreeing provisions between
Senate Bill No. 17 and House Bill No. 21505 were being
considered in the House of Representatives, viz:
THE SPEAKER PRO TEMPORE. The Gentleman
from Camarines Sur is recognized.
MR. ROCO. On the Conference Committee Report
on the disagreeing provisions between Senate Bill
No. 17 and the consolidated House Bill No. 21505
which refers to the system providing for the initiative

45 | P a g e

THE SPEAKER PRO TEMPORE. The Gentleman

will please proceed.
MR. ALBANO. I heard the sponsor say that the only
difference in the two bills was that in the Senate
version there was a provision for local initiative and
referendum, whereas the House version has none.
MR. ROCO. In fact, the Senate version provided
purely for local initiative and referendum, whereas
in the House version, we provided purely for
national and constitutional legislation.
MR. ALBANO. Is it our understanding, therefore,
that the two provisions were incorporated.?
MR. ROCO. Yes, Mr. Speaker.
MR. ALBANO. So that we will now have
a complete initiative and referendum both in the
constitutional amendment and national legislation.
MR. ROCO. That is correct.
MR. ALBANO. And provincial as well as municipal
resolutions?
MR. ROCO. Down to barangay, Mr. Speaker.
MR. ALBANO. And this initiative and referendum is
in consonance with the provision of the Constitution
whereby it mandates this Congress to enact the
enabling law, so that we shall have a system which
can be done every five years. Is it five years in the
provision of the Constitution?
MR. ROCO. That is correct, Mr. Speaker. For
constitutional amendments to the 1987 Constitution,
it is every five years. 23
Contrary to the submission of the respondents, the
subsequent enactment of the local Government Code of

1991 which also dealt with local initiative did not change the
scope of its coverage. More specifically, the Code did not
limit the coverage of local initiatives to ordinances alone.
Section 120, Chapter 2, Title IX Book I of the Code cited by
respondents merely defines the concept of local initiative as
the legal process whereby the registered voters of a local
government unit may directly propose, enact, or amend
any ordinance. It does not, however, deal with the subjects
or matters that can be taken up in a local initiative. It is
section 124 of the same Code which does. It states:
Sec. 124. Limitations on Local Initiatives. (a) The
power of local initiative shall not be exercised more
than once a year.
(b) Initiative shall extend only to subjects or matters
which are within the legal powers of the
Sanggunians to enact.
xxx xxx xxx
This provision clearly does not limit the application
of local initiatives to ordinances, but to all "subjects
or matters which are within the legal powers of the
Sanggunians to enact," which undoubtedly includes
resolutions. This interpretation is supported by
Section 125 of the same Code which provides:
"Limitations upon Sanggunians.
Any proposition or ordinance approved through the
system of initiative and referendum as herein
provided shall not be repealed, modified or
amended by the sanggunian concerned within six
(6) months from the date of the approval thereof . . .
." Certainly, the inclusion of the wordproposition is
inconsistent with respondents' thesis that only
ordinances can be the subject of local initiatives.
The principal author of the Local Government Code
of 1991, former Senator Aquilino Pimentel,
espouses the same view. In his commentaries on
the said law, he wrote, viz: 24
4. Subject Matter Of Initiative. All sorts of measures
may be the subject of direct initiative for as long as
these are within the competence of the Sanggunian
to enact. In California, for example, direct initiatives
were proposed to enact a fishing control bill, to
regulate the practice of chiropractors, to levy a
special tax to secure a new library, to grant a
franchise to a railroad company, and to prevent
discrimination in the sale of housing and similar
bills.
Direct initiative on the local lever may, therefore,
cover all kinds of measures provided that these are
within the power of the local Sanggunians to enact,
subject of course to the other requisites
enumerated in the Section.
5. Form of Initiative. Regarding the form of the
measure, the section speaks only of "ordinance,"
although the measure may be contained in a
resolution. If the registered voters can propose
ordinances, why are they not allowed to propose
resolutions too? Moreover, the wording of Sec. 125,
below, which deals not only with ordinances but with
"any proposition" implies the inclusion of
resolutions. The discussion hereunder will also
show support for the conclusion that resolutions
may indeed be the subject of local initiative.

46 | P a g e

We note that respondents do not give any reason why

resolutions should not be the subject of a local initiative. In
truth, the reason lies in the well known distinction between a
resolution and an ordinance i.e., that a resolution is used
whenever the legislature wishes to express an opinion which
is to have only a temporary effect while an ordinance is
intended to permanently direct and control matters applying
to persons or things in general. 25 Thus, resolutions are not
normally subject to referendum for it may destroy the
efficiency necessary to the successful administration of the
business affairs of a city. 26
In the case at bench, however, it can not be argued that the
subject matter of the resolution of the municipality of Morong
merely temporarily affects the people of Morong for it directs
a permanent rule of conduct or government. The inclusion of
Morong as part of the Subic Special Economic Zone has far
reaching implications in the governance of its people. This is
apparent from a reading of section 12 of Republic Act No.
7227 entitled "An Act Accelerating the Conversion of Military
Reservations Into Other Productive Uses, Creating the
Bases Conversion and Development Authority For This
Purpose, Providing Funds Therefor and For Other
Purposes." to wit:
Sec. 12. Subic Special Economic Zone. Subject
to the concurrence by resolution of thesangguniang
panlungsod of the City of Olongapo and
the sangguniang bayan of the Municipalities of
Subic, Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone
consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the
lands occupied by the Subic Naval Base and its
contiguous extensions as embraced, covered, and
defined by the 1947 Military Bases Agreement
between the Philippines and the United States of
America as amended, and within the territorial
jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred
to a as the Subic Special Economic Zone whose
metes and bounds shall be delineated in a
proclamation to be issued by the President of the
Philippines. Within thirty (30) days after the
approval of this Act, each local government unit
shall submit its resolution of concurrence to join the
Subic Special Economic Zone to the Office of the
President. Thereafter, the President of the
Philippines shall issue a proclamation defining the
metes and bounds of the zone as provided herein.
The abovementioned zone shall be subject to the
following policies:
(a) Within the framework and subject to the
mandate and limitations of the Constitution and the
pertinent provisions of the Local Government Code,
the Subic Special Economic Zone shall be
developed into a self-sustaining, industrial,
commercial, financial and investment center to
generate employment opportunities in and around
the zone and to attract and promote productive
foreign investments;
(b) The Subic Special Economic Zone shall be
operated and managed as a separate customs
territory ensuring free flow or movement of goods
and capital within, into a exported out of the Subic
Special Economic Zone, as well as provide
incentives such as tax and duty-free importations of

raw material, capital and equipment. However,

exportations or removal of goods from the territory
of the Subic Special Economic Zone to the other
parts of the Philippine territory shall be subject to
customs duties and taxes under the Customs and
Tariff Code and other relevant tax laws of the
Philippines:
(c) The provision of existing laws, rules and
regulations to the contrary notwithstanding, no
taxes, local and national, shall be imposed within
the Subic Special Economic Zone. In lieu of paying
taxes, three percent (3%) of the of the gross income
earned by all businesses and enterprises within the
Subic Special Economic Zone shall be remitted to
the National Government one percent (1%) each to
the local government units affected by the
declaration of the zone in proportion to their
population area, and other factors. In addition, there
is hereby established a development fund of one
percent (1%) of the gross income earned by all
businesses and enterprises within the Subic Special
Economic Zone to be utilized for the development
of municipalities outside the City of Olongapo and
the Municipality of Subic, and other municipalities
contiguous to the base areas.
In case of conflict between national and local laws
with respect to tax exemption privileges in the Subic
Special Economic Zone, the same shall be resolved
in favor of the latter;
(d) No exchange control policy shall be applied and
free markets for foreign exchange, gold, securities
and futures shall be allowed and maintained in the
Subic Special Economic Zone;
(e) The Central Bank, through the Monetary Board,
shall supervise and regulate the operations of
banks and other financial institutions within the
Subic Special Economic Zone;
(f) Banking and finance shall be liberalized with the
establishment of foreign currency depository units
of local commercial banks and offshore banking
units of foreign banks with minimum Central Bank
regulation;
(g) Any investor within the Subic Special Economic
Zone whose continuing investment shall not be less
than Two hundred fifty thousand dollars ($250,000),
his/her spouse and dependent children under
twenty-one (21) years of age, shall be granted
permanent resident status within the Subic Special
Economic Zone. They shall have freedom of ingress
and egress to and from the Subic Special Economic
Zone without any need of special authorization from
the Bureau of Immigration and Deportation. The
Subic Bay Metropolitan Authority referred to in
Section 13 of this Act may also issue working visas
renewable every two (2) years to foreign executives
and other aliens possessing highly-technical skills
which no Filipino within the Subic Special Economic
Zone possesses, as certified by the Department of
Labor and Employment. The names of aliens
granted permanent residence status and working
visas by the Subic Bay Metropolitan Authority shall
be reported to the Bureau of Immigration and

47 | P a g e

Deportation within thirty (30) days after issuance

thereof.
(h) The defense of the zone and the security of its
perimeters shall be the responsibility of the National
Government in coordination with the Subic Bay
Metropolitan Authority. The Subic Bay Metropolitan
Authority shall provide and establish its own internal
security and fire fighting forces; and
(i) Except as herein provided, the local government
units comprising the Subic Special Economic Zone
shall retain their basic autonomy and identity. The
cities shall be governed by their respective charters
and the municipalities shall operate and function in
accordance with Republic Act No. 7160, otherwise
known as the Local Government Code of 1991.
In relation thereto, section 14 of the same law
provides:
Sec. 14. Relationship with the Conversion Authority
and the Local Government Units.
(a) The provisions of existing laws, rules and
regulations to the contrary notwithstanding, the
Subic Authority shall exercise administrative
powers, rule-making and disbursement of funds
over the Subic Special Economic Zone in
conformity with the oversight function of the
Conversion Authority.
(b) In case of conflict between the Subic Authority
and the local government units concerned on
matters affecting the Subic Special Economic zone
other than defense and security, the decision of the
Subic Authority shall prevail.
Considering the lasting changes that will be
wrought in the social, political, and economic
existence of the people of Morong by the inclusion
of their municipality in the Subic Special Economic
Zone, it is but logical to hear their voice on the
matter via an initiative. It is not material that the
decision of the municipality of Morong for the
inclusion came in the form of a resolution for what
matters is its enduring effect on the welfare of the
people of Morong.
Finally, it cannot be gained that petitioners were denied due
process. They were not furnished a copy of the letter-petition
of Vice Mayor Edilberto M. de Leon to the respondent
COMELEC praying for denial of their petition for a local
initiative on Pambayang Kapasyahan Blg. 10, Serye 1993.
Worse, respondent COMELEC granted the petition without
affording petitioners any fair opportunity to oppose it. This
procedural lapse is fatal for at stake is not an ordinary right
but the sanctity of the sovereignty of the people, their original
power to legislate through the process of initiative. Ours is
the duty to listen and the obligation to obey the voice of the
people. It could well be the only force that could foil the
mushrooming abuses in government.
IN VIEW WHEREOF, the petition is GRANTED and
COMELEC Resolution 93-1623 dated July 6, 1993 and
Resolution 93-1676 dated July 13, 1993 are ANNULLED and
SET ASIDE. No costs.

SO ORDERED.
Narvasa, C.J., Cruz, Regalado, Davide, Jr.,
Romero, Bellosillo, Melo, Quiason, Vitug, Kapunan
and Mendoza, JJ., concur.
Feliciano, Padilla, Bidin, JJ., are on leave.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. 125416 September 26, 1996

SUBIC BAY METROPOLITAN AUTHORITY, petitioner,
vs.
COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and
CATALINO A. CALIMBAS, respondents.

PANGANIBAN, J.:
The 1987 Constitution is unique in many ways. For
one thing, it institutionalized people power in lawmaking. Learning from the bitter lesson of
completely surrending to Congress the sole
authority to make, amend or repeal laws, the
present Constitution concurrently vested such
prerogatives in the electorate by expressly
recognizing their residual and sovereign authority to
ordain legislation directly through the concepts and
processes of initiative and of referendum.
In this Decision, this Court distinguishes
referendum from initiative and discusses the
practical and legal implications of such differences.
It also sets down some guidelines in the conduct
and implementation of these two novel and vital
features of popular democracy, as well as settles
some relevant questions on jurisdiction all with
the purpose of nurturing, protecting and promoting
the people's exercise of direct democracy.
In this action for certiorari and prohibition, petitioner
seeks to nullify the respondent Commission on
Elections' Ruling dated April 17, 1996 and
Resolution No. 2848 promulgated on June 27,
1996 1 denying petitioner's plea to stop the holding
of a local initiative and referendum on the
proposition to recall Pambayang Kapasyahan Blg.
10, Serye 1993, of the Sangguniang Bayan of
Morong, Bataan.
The Facts
On March 13, 1992, Congress enacted Republic
Act No. 7227 (The Bases Conversion and
Development Act of 1992), which among others,
provided for the creation of the Subic Economic
Zone, thus:

48 | P a g e

Sec. 12. Subic Special Economic Zone. Subject

to the concurrence by resolution of the
Sangguniang Panlugnsod of the City of Olongapo
and the Sangguniang Bayan of the Municipalities of
Subic. Morong and Hermosa, there is hereby
created a Special Economic and Free-port Zone
consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the
lands occupied by the Subic Naval Base and its
contiguous extensions as embraced, covered and
defined by the 1947 Military Bases Agreement
between the Philippines and the United States of
America as amended, and within the territorial
jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred
to as the Subic Special Economic Zone whose
metes and bounds shall be delineated in a
proclamation to be issued by the President of the
Philippines. Within thirty (30) days after the
approval of this Act, each local government unit
shall submit its resolution of concurrence to join the
Subic Special Economic Zone to the Office of the
President. Thereafter, the President of the
Philippines shall issue a proclamation defining the
metes and bounds of the zone as provided herein."
(Emphasis supplied)
RA 7227 likewise created petitioner to implement
the declared national policy of converting the Subic
military reservation into alternative productive
uses. 2 Petitioner was organized with an authorized
capital stock of P20 billion which was fully
subscribed and fully paid up by the Republic of the
Philippines with, among other assets, "(a)ll lands
embraced, covered and defined in Section 12
hereof, as well as permanent improvements and
fixtures upon proper inventory not otherwise
alienated, conveyed, or transferred to another
government agency". 3
On November 24, 1992, the American navy turned
over the Subic military reservation to the Philippines
government. Immediately, petitioner commenced
the implementation of its task, particularly the
preservation of the sea-ports, airport, buildings,
houses and other installations left by the American
navy.
In April 1993, the Sangguniang Bayan of Morong,
Bataan passed Pambayang Kapasyahan Bilang 10,
Serye 1993, expressing therein its absolute
concurrence, as required by said Sec. 12 of RA
7227, to join the Subic Special Economic Zone. On
September 5, 1993, the Sangguniang Bayan of
Morong submitted Pambayang Kapasyahan Bilang
10, Serye 1993 to the Office of the President.
On May 24, 1993, respondents Garcia, Calimbas
and their companions filed a petition with the
Sangguniang Bayan of Morong
to annul Pambayang Kapasyahan Blg. 10, Serye
1993. The petition prayed for the following:
I. Bawiin, nulipikahin at pawalang-bisa and
Pambayang Kapasyahang Blg. 10, Serye 1993 ng
Sangguniang Bayan para sa pag-anib ng Morong
sa SSEFZ na walang kundisyon.

II. Palitan ito ng isang Pambayang kapasyahan na

aanib lamang ang Morong sa SSEFZ kung ang
mga sumusunod na kondisyones ay ipagkakaloob,
ipatutupad at isasagawa para sa kapakanan at
interest ng Morong at Bataan:
(A) Ibalik sa Bataan ang "Virgin Forests" isang
bundok na hindi nagagalaw at punong-puno ng
malalaking punong-kahoy at iba't-ibang halaman.
(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik
ito sa Bataan.
(K) Isama ang mga lupain ng Bataan na
nakapaloob sa SBMA sa pagkukuenta ng salaping
ipinagkaloob ng pamahalaang national o "Internal
Revenue Allotment" (IRA) sa Morong, Hermosa at
sa Lalawigan.
(D) Payagang magtatag rin ng sariling "special
economic zones" and bawat bayan ng Morong,
Hermosa at Dinalupihan.
(E) Ibase sa laki ng kanya-kanyang lupa ang
pamamahagi ng kikitain ng SBMA.
(G) Ibase rin ang alokasyon ng pagbibigay ng
trabaho sa laki ng nasabing mga lupa.
(H) Pabayaang bukas ang pinto ng SBMA na nasa
Morong ng 24 na oras at bukod dito sa magbukas
pa ng pinto sa hangganan naman ng Morong at
Hermosa upang magkaroon ng pagkakataong
umunlad rin ang mga nasabing bayan, pati na rin
ng iba pang bayan ng Bataan.
(I) Tapusin ang pagkokonkreto ng mga daang
Morong-Tala-Orani at Morong-Tasig-Dinalupihan
para sa kabutihan ng mga taga-Bataan at tuloy
makatulong sa pangangalaga ng mga kabundukan.
(J) Magkakaroon ng sapat na representasyon sa
pamunuan ng SBMA ang Morong, Hermosa at
Bataan.
The Sangguniang Bayan ng Morong acted upon the
petition of respondents Garcia, Calimbas, et al. by
promulgating Pambayang Kapasyahan Blg. 18,
Serye 1993, requesting Congress of the Philippines
so amend certain provisions of RA 7227,
particularly those concerning the matters cited in
items (A), (B), (K), (E), and (G) of private
respondent's petition. The Sangguniang Bayan of
Morong also informed respondents that items (D)
and (H) had already been referred to and favorably
acted upon by the government agencies concerned,
such as the Bases Conversion Development
Authority and the Office of the President.
Not satisfied, and within 30 days from submission of
their petition, herein respondents resorted to their
power initiative under the Local Government Code
of 1991, 4 Sec. 122 paragraph (b) of which provides
as follows:
Sec. 122. Procedure in Local Initiative.

49 | P a g e

xxx xxx xxx

(b) If no favorable action thereon is taken by the
sanggunian concerned, the proponents, through
their duly authorized and registered
representatives, may invoke their power of initiative,
giving notice thereof to the sangguniang concerned.
xxx xxx xxx
On July 6, 1993, respondent Commission En
Banc in Comelec Resolution No. 93-1623 denied
the petition for local initiative by herein private
respondents on the ground that the subject thereof
was merely a resolution (pambayang kapasyahan)
and not an ordinance. On July 13, 1993, public
respondent ComelecEn Banc (thru Comelec
Resolution no. 93-1676) further directed its
Provincial Election Supervisor to hold action on the
authentication of signatures being solicited by
private respondents.
On August 15, 1993, private respondents instituted
a petition for certiorari and mandamus 5 before this
Court against the Commission on Elections and the
Sangguniang Bayan of Morong, Bataan, to set
aside Comelec Resolution No. 93-1623 insofar as it
disallowed the conduct of a local initiative to annul
Pambayang Kapasyahan Bilang 10, Serye 1993,
and Comelec Resolution No. 93-1676 insofar as it
prevented the Provincial Election Supervisor of
Bataan from proceeding with the authentication of
the required number of signatures in support of the
initiative and the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA
7227, the President of the Philippines issued
Proclamation No. 532 defining the metes and
bounds of the SSEZ. Said proclamation included in
the SSEZ all the lands within the former Subic
Naval Base, including Grande Island and that
portion of the former naval base within the territorial
jurisdiction of the Municipality of Morong.
On June 18, 19956, respondent Comelec issued
Resolution No. 2845, adopting therein a "Calendar
of Activities for local referendum on certain
municipal ordinance passed by the Sangguniang
Bayan of Morong, Bataan", and which indicated,
among others, the scheduled Referendum Day
(July 27, 1996, Saturday). On June 27, 1996, the
Comelec promulgated the assailed Resolution No.
2848 providing for "the rules and guidelines to
govern the conduct of the referendum proposing to
annul or repeal Kapasyahan Blg. 10, Serye 1993 of
the Sangguniang Bayan of Morong, Bataan".
On July 10, 1996, petitioner instituted the present
petition for certiorari and prohibition contesting the
validity of Resolution No. 2848 and alleging, inter
alia, that public respondent "is intent on proceeding
with a local initiative that proposes an amendment
of a national law. . . .
The Issues
The petition 6 presents the following "argument":

Respondent Commission on Elections committed a

grave abuse of discretion amounting to lack of
jurisdiction in scheduling a local initiative which
seeks the amendment of a national law.
In his Comment, private respondent Garcia claims
that (1) petitioner has failed to show the existence
of an actual case of controversy: (2) . . . petitioner
seeks to overturn a decision/judgment which has
long become final and executory; (3) . . . public
respondent has not abused its discretion and has in
fact acted within its jurisdiction; (and) (4) . . . the
concurrence of local government units is required
for the establishment of the Subic Special
Economic Zone."
Private respondent Calimbas, now the incumbent
Mayor of Morong, in his Reply (should be
Comment) joined petitioner's cause because "(a)fter
several meetings with petitioner's Chairman and
staff and after consultation with legal counsel,
respondent Calimbas discovered that the demands
in the petition for a local initiative/referendum were
not legally feasible." 7
The Solicitor General, as counsel for public
respondent, identified two issues, as follows:
1. Whether or not the Comelec can be enjoined
from scheduling/conducting the local initiative
proposing to annul Pambayang Kapasyahan Blg.
10, Serye 1993 of the Sangguniang Bayan of
Morong, Bataan.
2. Whether or not the Comelec committed grave
abuse of discretion in denying the request of
petitioner SBMA to stop the local initiative.
On July 23, 1996, the Court heard oral argument by
the parties, after which, it issued the following
Resolution:
The Court Resolved to: (1) GRANT the Motion to
Admit the Attachment Comment filed by counsel for
private respondent Enrique T. Garcia, dated July 22,
1996 and (2) NOTE the: (a) Reply (should be
comment) to the petition for certiorari and
prohibition with prayer for temporary restraining
order and/or writ of preliminary injunction, filed by
counsel for respondent Catalino Calimbas, date
July 22, 1996; (b) Separate Comments on the
petition, filed by: (b-1) the Solicitor General for
respondent Commission on Elections dated July 19,
1996 and (b-2) counsel for private respondent
Enrique T. Garcia, dated July 22, 1996, all filed in
compliance with the resolution of July 16, 1996 and
(c) Manifestation filed by counsel for petitioner,
dated July 22, 1996.
At the hearing of this case this morning, Atty.
Rodolfo O. Reyes appeared and argued for
petitioner Subic Bay Metropolitan Authority (SBMA)
while Atty. Sixto Brillantes for private respondent
Enrique T. Garcia, and Atty. Oscar L. Karaan for
respondent Catalino Calimbas. Solicitor General
Raul Goco, Assistant Solicitor General Cecilio O.
Estoesta and Solicitor Zenaida Hernandez-Perez

50 | P a g e

appeared for respondent Commission on Elections

with Solicitor General Goco arguing.
Before the Court adjourned, the Court directed the
counsel for both parties to INFORM this Court by
Friday, July 26, 1996, whether or not Commission
on Elections would push through with the
initiative/referendum this Saturday, July 27, 1996.
Thereafter, the case shall be considered
SUBMITTED for resolution.
At 2:50 p.m., July 23, 1996, the Court received by
facsimile transmission an Order dated also on July
23, 1996 from the respondent Commission on
Elections En Banc inter alia "to hold in abeyance
the scheduled referendum (initiative) on July 27,
1996 pending resolution of G.R. No. 125416." In
view of this Order, the petitioner's application for a
temporary restraining order and/or writ of
preliminary injunction has become moot and
academic and will thus not be passed upon by this
Court at this time. Puno, J., no part due to
relationship. Bellosillo, J., is on leave.
After careful study of and judicious deliberation on
the submissions and arguments of the parties, the
Court believes that the issues may be restated as
follows:
(1) Whether this petition "seeks to overturn a
decision/judgment which has long become final and
executory"; namely, G.R. No. 111230, Enrique
Garcia, et al. vs. Commission on Elections, et al.;
(2) Whether the respondent Comelec committed
grave abuse of discretion in promulgating and
implementing its Resolution No. 2848 which
"govern(s) the conduct of the referendum proposing
to annul or repeal Pambayang Kapasyahan Blg. 10,
Serye 1993 of the Sangguniang Bayan of Morong,
Bataan;" and
(3) Whether the questioned local initiative covers a
subject within the powers of the people of Morong
to enact; i.e., whether such initiative "seeks the
amendment of a national law."
First Issue: Bar by Final Judgment
Respondent Garcia contends that this Court had
already ruled with finality in Enrique T. Garcia, et
al. vs.Commission on Elections, et al. 8 on "the very
issue raised in (the) petition: whether or not there
can be an initiative by the people of Morong,
Bataan on the subject proposition the very same
proposition, it bears emphasizing, the submission of
which to the people of Morong, Bataan is now
sought to be enjoined by petitioner . . .".
We disagree. The only issue resolved in the
earlier Garcia case is whether a municipal
resolution as contra-distinguished from an
ordinance may be the proper subject of an initiative
and/or referendum. We quote from our said
Decision: 9

In light of this legal backdrop, the essential issue to

be resolved in the case at bench is whether
Pambayang Kapasyahan Blg. 10, serye 1993 of the
Sangguniang Bayan of Morong, Bataan is the
proper subject of an initiative. Respondents take the
negative stance as they contend that under the
Local Government Code of 1991 only an ordinance
can be the subject of initiative. They rely on Section
120, Chapter 2, Title XI, Book I of the Local
Government Code of 1991 which provides: "Local
Initiative
Defined. Local initiative is the legal process
whereby the registered voters of a local government
until may directly propose, enact, or amend any
ordinance."
We reject respondents' narrow and literal reading of
the above provision for it will collide with the
Constitution and will subvert the intent of the
lawmakers in enacting the provisions of the Local
Government of 1991 on initiative and referendum.
The Constitution clearly includes not only ordinance
but resolutions as appropriate subjects of a local
initiative. Section 32 of Article VI provides in
luminous language: "The Congress shall, as early
as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby
the people can directly propose and enact laws or
approve or reject any act or law or part thereof
passed by the Congress, or local legislative body . .
.". An act includes a resolution. Black defines an act
as "an expression of will or purpose . . . it may
denote something done . . . as a legislature,
including not merely physical acts, but also
decrees, edicts, laws, judgments, resolves, awards,
and determinations . . .". It is basic that a law should
be construed in harmony with and not in violation of
the Constitution. In line with this postulate, we held
in In Re Guarina that "if there is doubt or uncertainty
as to the meaning of the legislative, if the words or
provisions are obscure, or if the enactment is fairly
susceptible of two or more constructions, that
interpretation will be adopted which will avoid the
effect of unconstitutionality, even though it may be
necessary, for this purpose, to disregard the more
usual or apparent import of the language used."
Moreover, we reviewed our rollo in said G.R. No.
111230 and we found that the sole issue presented
by the pleadings was the question of "whether or
not a Sangguniang Bayan Resolution can be the
subject of a valid initiative or referendum". 10
In the present case, petitioner is not contesting the
propriety of a municipal resolution as the form by
which these two new constitutional prerogatives of
the people may be validly exercised. What is at
issue here is whether Pambayang Kapasyahan Blg.
10, Serye 1993, as worded, is sufficient in form and
substance for submission to the people for their
approval; in fine, whether the Comelec acted
properly and juridically in promulgating and
implementing Resolution No. 2848.
Second Issue: Sufficiency of Comelec Resolution
No. 2848

The main issue in this case may be re-stated thus:

Did respondent Comelec commit grave abuse of
discretion in promulgating and implementing
Resolution No. 2848?
We answer the question in the affirmative.
To begin with, the process started by private
respondents was an INITIATIVE but respondent
Comelec made preparations for a
REFERENDUM only. In fact, in the body of the
Resolution 11 as reproduced in the footnote below,
the word "referendum" is repeated at least 27 times,
but "initiative" is not mentioned at all. The Comelec
labeled the exercise as a "Referendum"; the
counting of votes was entrusted to a "Referendum
Committee"; the documents were called
"referendum returns"; the canvassers, "Referendum
Board of Canvassers" and the ballots themselves
bore the description "referendum". To repeat, not
once was the word "initiative" used in said body of
Resolution No. 2848. And yet, this exercise is
unquestionably an INITIATIVE.
There are statutory and conceptual demarcations
between a referendum and an initiative. In enacting
the "Initiative and Referendum Act, 12 Congress
differentiated one term from the other, thus:
(a) "Initiative" is the power of the people to propose
amendments to the Constitution or to propose and
enact legislations through an election called for the
purpose.
There are three (3) systems of initiative, namely:
a.1. Initiative on the Constitution which refers to a
petition proposing amendments to the Constitution;
a.2. Initiative on statutes which refers to a petition
proposing to enact a national legislation; and
a.3. Initiative on local legislation which refers to a
petition proposing to enact a regional, provincial,
city, municipal, or barangay law, resolution or
ordinance.
(b) "Indirect initiative" is exercise of initiative by the
people through a proposition sent to Congress or
the local legislative body for action.
(c) "Referendum" is the power of the electorate to
approve or reject a legislation through an election
called for the purpose. It may be of two classes,
namely:
c.1. Referendum on statutes which refers to a
petition to approve or reject an act or law, or part
thereof, passed by Congress; and
c.2 Referendum on local law which refers to a
petition to approve or reject a law, resolution or
ordinance enacted by regional assemblies and local
legislative bodies.
Along these statutory definitions, Justice Isagani A.
Cruz 13 defines initiative as the "power of the people

51 | P a g e

to propose bills and laws, and to enact or reject

them at the polls independent of the legislative
assembly." On the other hand, he explains that
referendum "is the right reserved to the people to
adopt or reject any act or measure which has been
passed by a legislative body and which in most
cases would without action on the part of electors
become a law." The foregoing definitions, which are
based on Black's 14 and other leading American
authorities, are echoed in the Local Government
Code (RA 7160) substantially as follows:

Hence, the process and the voting in an initiative

are understandably more complex than in a
referendum where expectedly the voters will simply
write either "Yes" of "No" in the ballot.

Sec. 120. Local Initiative Defined. Local initiative

is the legal process whereby the registered voters
of local government unit may directly propose,
enact, or amend any ordinance.

From the above differentiation, it follows that there

is need for the Comelec to supervise an initiative
more closely, its authority thereon extending not
only to the counting and canvassing of votes but
also to seeing to it that the matter or act submitted
to the people is in the proper form and language so
it may be easily understood and voted upon by the
electorate. This is especially true where the
proposed legislation is lengthy and complicated,
and should thus be broken down into several
autonomous parts, each such part to be voted upon
separately. Care must also be exercised that "(n)o
petition embracing more than one subject shall be
submitted to the electorate," 16 although "two or
more propositions may be submitted in an
initiative". 17

Sec. 126. Local Referendum Defined. Local

referendum is the legal process whereby the
registered voters of the local government units may
approve, amend or reject any ordinance enacted by
the sanggunian.
The local referendum shall be held under the
control and direction of the Comelec within sixty
(60) days in case of provinces and cities, forty-five
(45) days in case of municipalities and thirty (30)
days in case of baranggays.
The Comelec shall certify and proclaim the results
of the said referendum.
Prescinding from these definitions, we gather that
initiative is resorted to (or initiated) by the people
directly either because the law-making body fails or
refuses to enact the law, ordinance, resolution or
act that they desire or because they want to amend
or modify one already existing. Under Sec. 13 of
R.A. 6735, the local legislative body is given the
opportunity to enact the proposal. If it
refuses/neglects to do so within thirty (30) days
from its presentation, the proponents through their
duly-authorized and registered representatives may
invoke their power of initiative, giving notice thereof
to the local legislative body concerned. Should the
proponents be able to collect the number of signed
conformities within the period granted by said
statute, the Commission on Elections "shall then set
a date for the initiative (not referendum) at which
the proposition shall be submitted to the registered
voters in the local government unit concerned . . .".
On the other hand, in a local referendum, the lawmaking body submits to the registered voters of its
territorial jurisdiction, for approval or rejection, any
ordinance or resolution which is duly enacted or
approved by such law-making authority. Said
referendum shall be conducted also under the
control and direction of the Commission on
Elections. 15
In other words, while initiative is entirely the work of
the electorate, referendum is begun and consented
to by the law-making body. Initiative is a process of
law-making by the people themselves without the
participation and against the wishes of their elected
representatives, while referendum consists merely
of the electorate approving or rejecting what has
been drawn up or enacted by a legislative body.

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[Note: While the above quoted laws variously refer

to initiative and referendum as "powers" or "legal
processes", these can be also be "rights", as
Justice Cruz terms them, or "concepts", or "the
proposal" itself (in the case of initiative) being
referred to in this Decision.]

It should be noted that under Sec. 13 (c) of RA

6735, the "Secretary of Local Government or his
designated representative shall extend assistance
in the formulation of the proposition."
In initiative and referendum, the Comelec exercises
administration and supervision of the process itself,
akin to its powers over the conduct of elections.
These law-making powers belong to the people,
hence the respondent Commission cannot control
or change the substance or the content of
legislation. In the exercise of its authority, it may (in
fact it should have done so already) issue relevant
and adequate guidelines and rules for the orderly
exercise of these "people-power" features of our
Constitution.
Third Issue: Withdrawal of Adherence and
Imposition of Conditionalities Ultra Vires?
Petitioner maintains that the proposition sought to
be submitted in the plebiscite, namely, Pambayang
Kapasyahan Blg. 10, Serye 1993, is ultra vires or
beyond the powers of the Sangguniang Bayan to
enact,18 stressing that under Sec. 124 (b) of RA
7160 (the Local Government Code), "local initiative
shall cover only such subjects or matters as are
within the legal powers of the sangguniang to
enact." Elsewise stated, a local initiative may enact
only such ordinances or resolutions as the
municipal council itself could, if it decided to so
enact. 19 After the Sangguniang Bayan of Morong
and the other municipalities concerned (Olongapo,
Subic and Hermosa) gave their resolutions of
concurrence, and by reason of which the SSEZ had
been created, whose metes and bounds had
already been delineated by Proclamation No. 532
issued on February 1, 1995 in accordance with
Section 12 of R.A. No. 7227, the power to withdraw
such concurrence and/or to substitute therefor a

conditional concurrence is no longer within the

authority and competence of the Municipal Council
of Morong to legislate. Furthermore, petitioner adds,
the specific conditionalities included in the
questioned municipal resolution are beyond the
powers of the Council to impose. Hence, such
withdrawal can no longer be enacted or
conditionalities imposed by initiative. In other words,
petitioner insists, the creation of SSEZ is now
a faith accompli for the benefit of the entire nation.
Thus, Morong cannot unilaterally withdraw its
concurrence or impose new conditions for such
concurrence as this would effectively render
nugatory the creation by (national) law of the SSEZ
and would deprive the entire nation of the benefits
to be derived therefrom. Once created. SSEZ has
ceased to be a local concern. It has become a
national project.
On the other hand, private respondent Garcia
counters that such argument is premature and
conjectural because at this point, the resolution is
just a proposal. If the people should reject it during
the referendum, then there is nothing to declare as
illegal.
Deliberating on this issue, the Court agrees with
private respondent Garcia that indeed, the
municipal resolution is still in the proposal stage. It
is not yet an approved law. Should the people reject
it, then there would be nothing to contest and to
adjudicate. It is only when the people have voted for
it and it has become an approved ordinance or
resolution that rights and obligations can be
enforced or implemented thereunder. At this point, it
is merely a proposal and the writ or prohibition
cannot issue upon a mere conjecture or possibility.
Constitutionally speaking, courts may decide only
actual controversies, not hypothetical questions or
cases. 20
We also note that the Initiative and Referendum Act
itself provides 21 that "(n)othing in this Act shall
prevent or preclude the proper courts from
declaring null and void any
proposition approved pursuant to this Act . . . ."
So too, the Supreme Court is basically a review
court. 22 It passes upon errors of law (and
sometimes of fact, as in the case of mandatory
appeals of capital offenses) of lower courts as well
as determines whether there had been grave abuse
of discretion amounting to lack or excess of
jurisdiction on the part of any "branch or
instrumentality" of government. In the present case,
it is quite clear that the Court has authority to review
Comelec Resolution No. 2848 to determine the
commission of grave abuse of discretion. However,
it does not have the same authority in regard to the
proposed initiative since it has not been
promulgated or approved, or passed upon by any
"branch or instrumentality" or lower court, for that
matter. The Commission on Elections itself has
made no reviewable pronouncements about the
issues brought by the pleadings. The Comelec
simply included verbatim the proposal in its
questioned Resolution No. 2848. Hence, there is
really no decision or action made by a branch,
instrumentality or court which this Court could take

cognizance of and acquire jurisdiction over, in the

exercise of its review powers.
Having said that, we are in no wise suggesting that
the Commelec itself has no power to pass
uponproposed resolutions in an initiative. Quite the
contrary, we are ruling that these matters are in fact
within the initiatory jurisdiction of the Commission
to which then the herein basic questions ought to
have been addressed, and by which the same
should have been decided in the first instance. In
other words, while regular courts may take
jurisdiction over "approved propositions" per said
Sec. 18 of R.A. 6735, the Comelec in the exercise
of its quasi-judicial and administrative powers may
adjudicate and pass upon such proposals insofar as
their form and language are concerned, as
discussed earlier; and it may be added, even as to
content, where the proposals or parts thereof are
patently and clearly outside the "capacity of the
local legislative body to enact." 23 Accordingly, the
question of whether the subject of this initiative is
within the capacity of the Municipal Council of
Morong to enact may be ruled upon by the Comelec
upon remand and after hearing the parties thereon.
While on the subject of capacity of the local
lawmaking body, it would be fruitful for the parties
and the Comelec to plead and adjudicate,
respectively, the question of whether Grande Island
and the "virgin forest" mentioned in the proposed
initiative belong to the national government and
thus cannot be segregated from the Zone and
"returned to Bataan" by the simple expedient of
passing a municipal resolution. We note that Sec.
13 (e) of R.A. 7227 speaks of the full subscription
and payment of the P20 billion authorized capital
stock of the Subic Authority by the Republic, with,
aside from cash and other assets, the ". . . lands
embraced, covered and defined in Section 12
hereof, . . ." which includes said island and forests.
The ownership of said lands is question of fact that
may be taken up in the proper forum the
Commission on Elections.
Another question which the parties may wish to
submit to the Comelec upon remand of the initiative
is whether the proposal, assuming it is within the
capacity of the Municipal Council to enact, may be
divided into several parts for purposes of voting.
Item "I" is a proposal to recall, nullify and render
without effect (bawiin, nulipikahin at pawalangbisa)
Municipal Resolution No. 10, Series of 1993. On the
other hand, Item "II" proposes to change or replace
(palitan) said resolution with another municipal
resolution of concurrenceprovided certain
conditions enumerated thereunder would be
granted, obeyed and implemented (ipagkakaloob,
ipatutupad at isasagawa) for the benefit and interest
of Morong and Bataan. A voter may favor Item I
i.e., he may want a total dismemberment of
Morong from the Authority but may not agree
with any of the conditions set forth in Item II. Should
the proposal then be divided and be voted upon
separately and independently?
All told, we shall not pass upon the third issue
of ultra vires on the ground of prematurity.
Epilogue

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In sum, we hold that (i) our decision in the

earlier Garcia case is not a bar to the present
controversy as the issue raised and decided therein
is different from the questions involved here; (iii) the
respondent Commission should be given an
opportunity to review and correct its errors in
promulgating its Resolution No. 2848 and in
preparing if necessary for the plebiscite; and
(iii) that the said Commission has administrative
and initiatory quasi-judicial jurisdiction to pass upon
the question of whether the proposal is sufficient in
form and language and whether such proposal or
part or parts thereof are clearly and patently outside
the powers of the municipal council of Morong to
enact, and therefore violative of law.
In deciding this case, the Court realizes that
initiative and referendum, as concepts and
processes, are new in our country. We are
remanding the matter to the Comelec so that proper
corrective measures, as above discussed, may be
undertaken, with a view to helping fulfill our people's
aspirations for the actualization of effective direct
sovereignty. Indeed we recognize that "(p)rovisions
for initiative and referendum are liberally construed
to effectuate their purposes, to facilitate and not to
hamper the exercise by the voters of the rights
granted thereby." 24 In his authoritative treatise on
the Constitution, Fr. Joaquin G. Bernas, S. J.
treasures these "instruments which can be used
should the legislature show itself indifferent to the
needs of the people." 25Impelled by a sense or
urgency, Congress enacted Republic Act No. 6735
to give life and form to the constitutional mandate.
Congress also interphased initiative and
referendum into the workings of local governments
by including a chapter on this subject in the Local
Government Code of 1991. 26 And the Commission
on Elections can do no less by seasonably and
judiciously promulgating guidelines and rules, for
both national and local use, in implementation of
these laws. For its part, this Court early on
expressly recognized the revolutionary import of
reserving people power in the process of lawmaking. 27
Like elections, initiative and referendum are
powerful and valuable modes of expressing popular
sovereignty. And this Court as a matter of policy and
doctrine will exert every effort to nurture, protect
and promote their legitimate exercise. For it is but
sound public policy to enable the electorate to
express their free and untrammeled will, not only in
the election of their anointed lawmakers and
executives, but also in the formulation of the very
rules and laws by which our society shall be
governed and managed.
WHEREFORE the petition is GRANTED.
Resolution No. 2848 is ANNULLED and SET
ASIDE. The initiative on Pambayang Kapasyahan
Blg. 10, Serye 1993 is REMANDED to the
Commission on Elections for further proceeding
consistent with the foregoing discussion. No costs.
IT IS SO ORDERED.
Narvasa, C.J., Padilla, Regalado, Davide, Jr., Bellosillo,
Melo, Vitug, Kapunan, Francisco, Hermosisima, Jr. and
Torres, Jr., JJ., concur.

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Puno, J., took no part.

Romero and Mendoza, JJ., are on leave.