EN BANC

G.R. No. 184836

December 23, 2009

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N.

TALABONG, Petitioners,
vs.
COMMISSION
ON
ELECTIONS
AND
WILFREDO
F.
ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official an interruption
of his term of office for purposes of the three-term limit rule under
Section 8, Article X of the Constitution and Section 43(b) of Republic
Act No. 7160 (RA 7160, or the Local Government Code)?
The respondent Commission on Elections (COMELEC) ruled that
preventive suspension is an effective interruption because it renders
the suspended public official unable to provide complete service for
the full term; thus, such term should not be counted for the purpose of
the three-term limit rule.

to Asilos certificate of candidacy or to cancel it on the ground that he

had been elected and had served for three terms; his candidacy for a
fourth term therefore violated the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of RA 7160.
The COMELECs Second Division ruled against the petitioners and in
Asilos favour in its Resolution of November 28, 2007. It reasoned out
that the three-term limit rule did not apply, as Asilo failed to render
complete service for the 2004-2007 term because of the suspension
the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Divisions
ruling in its October 7, 2008 Resolution; hence, the PRESENT
PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is
an interruption of the three-term limit rule; and
2. Whether preventive suspension is considered involuntary
renunciation as contemplated in Section 43(b) of RA 7160
Thus presented, the case raises the direct issue of whether Asilos
preventive suspension constituted an interruption that allowed him to
run for a 4th term.

The present petition1 seeks to annul and set aside this COMELEC ruling
for having been issued with grave abuse of discretion amounting to
lack or excess of jurisdiction.

THE COURTS RULING

THE ANTECEDENTS

General Considerations

The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena

City for three consecutive terms: for the 1998-2001, 2001-2004, and
2004-2007 terms, respectively. In September 2005 or during his 20042007 term of office, the Sandiganbayan preventively suspended him
for 90 days in relation with a criminal case he then faced.This Court,
however, subsequently lifted the Sandiganbayans suspension order;
hence, he resumed performing the functions of his office and finished
his term.

The present case is not the first before this Court on the three-term
limit provision of the Constitution, but is the first on the effect of
preventive suspension on the continuity of an elective officials term.
To be sure, preventive suspension, as an interruption in the term of an
elective public official, has been mentioned as an example in Borja v.
Commission on Elections.2 Doctrinally, however, Borja is not a
controlling ruling; it did not deal with preventive suspension, but with
the application of the three-term rule on the term that an elective
official acquired by succession.

In the 2007 election, Asilo filed his certificate of candidacy for the
same position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller,
and Ferdinand N. Talabong (the petitioners) sought to deny due course

We find the petition meritorious.

a. The Three-term Limit Rule:

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials,
except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length
of time shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected.
Section 43 (b) of RA 7160 practically repeats the constitutional
provision, and any difference in wording does not assume any
significance in this case.
As worded, the constitutional provision fixes the term of a local elective
office and limits an elective officials stay in office to no more than
three consecutive terms. This is the first branch of the rule embodied
in Section 8, Article X.
Significantly, this provision refers to a "term" as a period of
time three years during which an official has title to office and can
serve. Appari v. Court of Appeals,3 a Resolution promulgated on
November 28, 2007, succinctly discusses what a "term" connotes, as
follows:
The word "term" in a legal sense means a fixed and definite
period of time which the law describes that an officer may hold
an office. According to Mechem, the term of office is the period during
which an office may be held. Upon expiration of the officers term,
unless he is authorized by law to holdover, his rights, duties and
authority as a public officer must ipso facto cease. In the law of public
officers, the most and natural frequent method by which a public
officer ceases to be such is by the expiration of the terms for which he
was elected or appointed. [Emphasis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit, 4 reiterated that "[T]he
term means the time during which the officer may claim to hold office
as of right, and fixes the interval after which the several incumbents
shall succeed one another."
The "limitation" under this first branch of the provision is expressed in
the negative "no such official shall serve for more than three
consecutive terms." This formulation no more than three consecutive
terms is a clear command suggesting the existence of an inflexible

rule. While it gives no exact indication of what to "serve. . . three

consecutive terms" exactly connotes, the meaning is clear reference
is to the term, not to the service that a public official may
render.1awphi1 In other words, the limitation refers to the term.
The second branch relates to the provisions express initiative to
prevent any circumvention of the limitation through voluntary
severance of ties with the public office; it expressly states that
voluntary renunciation of office "shall not be considered as an
interruption in the continuity of his service for the full term for which
he was elected." This declaration complements the term limitation
mandated by the first branch.
A notable feature of the second branch is that it does not textually
state that voluntary renunciation is the only actual interruption of
service that does not affect "continuity of service for a full term" for
purposes of the three-term limit rule. It is a pure declaratory statement
of what does not serve as an interruption of service for a full term, but
the phrase "voluntary renunciation," by itself, is not without
significance in determining constitutional intent.
The word "renunciation" carries the dictionary meaning of
abandonment. To renounce is to give up, abandon, decline, or
resign.5 It is an act that emanates from its author, as contrasted to an
act that operates from the outside. Read with the definition of a "term"
in mind, renunciation, as mentioned under the second branch of the
constitutional provision, cannot but mean an act that results in cutting
short the term, i.e., the loss of title to office. The descriptive word
"voluntary" linked together with "renunciation" signifies an act of
surrender based on the surenderees own freely exercised will; in other
words, a loss of title to office by conscious choice. In the context of the
three-term limit rule, such loss of title is not considered an interruption
because it is presumed to be purposely sought to avoid the application
of the term limitation.
The following exchanges in the deliberations of the Constitutional
Commission on the term "voluntary renunciation" shed further light on
the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the
Committee? This term "voluntary renunciation" does not appear in
Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.

MR. MAAMBONG. It is also a recurring phrase all over the Constitution.

Could the Committee please enlighten us exactly what "voluntary
renunciation" mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot
circumvent the restriction by merely resigning at any given time on the
second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary
renunciation" is more general than abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davides expansive
interpretation of the term "voluntary renunciation," the framers intent
apparently was to close all gaps that an elective official may seize to
defeat the three-term limit rule, in the way that voluntary renunciation
has been rendered unavailable as a mode of defeating the three-term
limit rule. Harking back to the text of the constitutional provision, we
note further that Commissioner Davides view is consistent with the
negative formulation of the first branch of the provision and the
inflexible interpretation that it suggests.
This examination of the wording of the constitutional provision and of
the circumstances surrounding its formulation impresses upon us the
clear intent to make term limitation a high priority constitutional
objective whose terms must be strictly construed and which cannot be
defeated by, nor sacrificed for, values of less than equal constitutional
worth. We view preventive suspension vis--vis term limitation with
this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a
lead into the concepts within the provisions contemplation,
particularly on the "interruption in the continuity of service for the full
term" that it speaks of.
Lonzanida v. Commission on Elections 7 presented the question of
whether the disqualification on the basis of the three-term limit applies
if the election of the public official (to be strictly accurate, the
proclamation as winner of the public official) for his supposedly third
term had been declared invalid in a final and executory judgment. We

ruled that the two requisites for the application of the disqualification
(viz., 1. that the official concerned has been elected for three
consecutive terms in the same local government post; and 2. that he
has fully served three consecutive terms) were not present. In so
ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the peoples choice and grant their
elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in
the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.
The petitioner vacated his post a few months before the next mayoral
elections, not by voluntary renunciation but in compliance with the
legal process of writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption of continuity
of service and thus, the petitioner did not fully serve the 1995-1998
mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from
office, or to be exact, loss of title, that renders the three-term limit rule
inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved
the issue of whether there had been a completed term for purposes of
the three-term limit disqualification. These cases, however, presented
an interesting twist, as their final judgments in the electoral contest
came after the term of the contested office had expired so that the
elective officials in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus
was never validly elected), the Court concluded that there was
nevertheless an election and service for a full term in contemplation of
the three-term rule based on the following premises: (1) the final
decision that the third-termer lost the election was without practical
and legal use and value, having been promulgated after the term of
the contested office had expired; and (2) the official assumed and
continuously exercised the functions of the office from the start to the
end of the term. The Court noted in Ong the absurdity and the
deleterious effect of a contrary view that the official (referring to the
winner in the election protest) would, under the three-term rule, be
considered to have served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served the term

pursuant to a proclamation made in due course after an election. This

factual variation led the Court to rule differently fromLonzanida.
In the same vein, the Court in Rivera rejected the theory that the
official who finally lost the election contest was merely a "caretaker of
the office" or a mere "de facto officer." The Court obeserved that
Section 8, Article X of the Constitution is violated and its purpose
defeated when an official fully served in the same position for three
consecutive terms. Whether as "caretaker" or "de facto" officer, he
exercised the powers and enjoyed the perquisites of the office that
enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term
limitation because of what they directly imply. Although the election
requisite was not actually present, the Court still gave full effect to the
three-term limitation because of the constitutional intent to strictly
limit elective officials to service for three terms. By so ruling, the Court
signalled how zealously it guards the three-term limit rule. Effectively,
these cases teach us to strictly interpret the term limitation rule in
favor of limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the effect of recall on
the three-term limit disqualification. The case presented the question
of whether the disqualification applies if the official lost in the regular
election for the supposed third term, but was elected in a recall
election covering that term. The Court upheld the COMELECs ruling
that the official was not elected for three (3) consecutive terms. The
Court reasoned out that for nearly two years, the official was a private
citizen; hence, the continuity of his mayorship was disrupted by his
defeat in the election for the third term.
Socrates v. Commission on Elections11 also tackled recall vis--vis the
three-term limit disqualification. Edward Hagedorn served three full
terms as mayor. As he was disqualified to run for a fourth term, he did
not participate in the election that immediately followed his third term.
In this election, the petitioner Victorino Dennis M. Socrates was elected
mayor. Less than 1 years after Mayor Socrates assumed the
functions of the office, recall proceedings were initiated against him,
leading to the call for a recall election. Hagedorn filed his certificate of
candidacy for mayor in the recall election, but Socrates sought his
disqualification on the ground that he (Hagedorn) had fully served
three terms prior to the recall election and was therefore disqualified to
run because of the three-term limit rule. We decided in Hagedorns
favor, ruling that:

After three consecutive terms, an elective local official cannot seek

immediate reelection for a fourth term. The prohibited election refers
to the next regular election for the same office following the end of the
third consecutive term. Any subsequent election, like a recall election,
is no longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an immediate
reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be
no further election after three terms, or whether there would be "no
immediate reelection" after three terms.
xxxx
Clearly, what the Constitution prohibits is an immediate reelection for a
fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term as
long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election involving
the same term of office. What the Constitution prohibits is a
consecutive fourth term.12
Latasa v. Commission on Elections13 presented the novel question of
whether a municipal mayor who had fully served for three consecutive
terms could run as city mayor in light of the intervening conversion of
the municipality into a city. During the third term, the municipality was
converted into a city; the cityhood charter provided that the elective
officials of the municipality shall, in a holdover capacity, continue to
exercise their powers and functions until elections were held for the
new city officials. The Court ruled that the conversion of the
municipality into a city did not convert the office of the municipal
mayor into a local government post different from the office of the city
mayor the territorial jurisdiction of the city was the same as that of
the municipality; the inhabitants were the same group of voters who
elected the municipal mayor for 3 consecutive terms; and they were
the same inhabitants over whom the municipal mayor held power and
authority as their chief executive for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically

included an exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for
the position of city mayor after having served for three consecutive
terms as a municipal mayor would obviously defeat the very intent of
the framers when they wrote this exception. Should he be allowed
another three consecutive terms as mayor of the City of Digos,
petitioner would then be possibly holding office as chief executive over
the same territorial jurisdiction and inhabitants for a total of
eighteen consecutive years. This is the very scenario sought to be
avoided by the Constitution, if not abhorred by it.14
Latasa instructively highlights, after a review of Lonzanida, Adormeo
and Socrates, that no three-term limit violation results if a rest period
or break in the service between terms or tenure in a given elective
post intervened. In Lonzanida, the petitioner was a private citizen with
no title to any elective office for a few months before the next mayoral
elections. Similarly, in Adormeo and Socrates, the private respondents
lived as private citizens for two years and fifteen months, respectively.
Thus, these cases establish that the law contemplates a complete
break from office during which the local elective official steps down
and ceases to exercise power or authority over the inhabitants of the
territorial jurisdiction of a particular local government unit.
Seemingly differing from these results is the case of Montebon v.
Commission on Elections,15 where the highest-ranking municipal
councilor succeeded to the position of vice-mayor by operation of law.
The question posed when he subsequently ran for councilor was
whether his assumption as vice-mayor was an interruption of his term
as councilor that would place him outside the operation of the threeterm limit rule. We ruled that an interruption had intervened so that he
could again run as councilor. This result seemingly deviates from the
results in the cases heretofore discussed since the elective official
continued to hold public office and did not become a private citizen
during the interim. The common thread that identifies Montebon with
the rest, however, is that the elective official vacated the office of
councilor and assumed the higher post of vice-mayor by operation of
law. Thus, for a time he ceased to be councilor an interruption that
effectively placed him outside the ambit of the three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term
exempting an elective official from the three-term limit rule is one that

involves no less than the involuntary loss of title to office. The elective
official must have involuntarily left his office for a length of time,
however short, for an effective interruption to occur. This has to be the
case if the thrust of Section 8, Article X and its strict intent are to be
faithfully served, i.e., to limit an elective officials continuous stay in
office to no more than three consecutive terms, using "voluntary
renunciation" as an example and standard of what does not constitute
an interruption.
Thus, based on this standard, loss of office by operation of law, being
involuntary, is an effective interruption of service within a term, as we
held in Montebon. On the other hand, temporary inability or
disqualification to exercise the functions of an elective post, even if
involuntary, should not be considered an effective interruption of a
term because it does not involve the loss of title to office or at least an
effective break from holding office; the office holder, while retaining
title, is simply barred from exercising the functions of his office for a
reason provided by law.
An interruption occurs when the term is broken because the office
holder lost the right to hold on to his office, and cannot be equated
with the failure to render service. The latter occurs during an office
holders term when he retains title to the office but cannot exercise his
functions for reasons established by law. Of course, the term "failure to
serve" cannot be used once the right to office is lost; without the right
to hold office or to serve, then no service can be rendered so that none
is really lost.
To put it differently although at the risk of repetition, Section 8, Article
X both by structure and substance fixes an elective officials term of
office and limits his stay in office to three consecutive terms as an
inflexible rule that is stressed, no less, by citing voluntary renunciation
as an example of a circumvention. The provision should be read in the
context of interruption of term, not in the context of interrupting the
full continuity of the exercise of the powers of the elective position. The
"voluntary renunciation" it speaks of refers only to the elective officials
voluntary relinquishment of office and loss of title to this office. It does
not speak of the temporary "cessation of the exercise of power or
authority" that may occur for various reasons, with preventive
suspension being only one of them. To quote Latasa v. Comelec:16
Indeed, [T]he law contemplates a rest period during which the local
elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a
particular local government unit. [Emphasis supplied].

Preventive Suspension and the Three-Term Limit Rule

a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government
Code,17 the Anti-Graft and Corrupt Practices Act,18 or the Ombudsman
Act19 is an interim remedial measure to address the situation of an
official who have been charged administratively or criminally, where
the evidence preliminarily indicates the likelihood of or potential for
eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code
"when the evidence of guilt is strong and given the gravity of the
offense, there is a possibility that the continuance in office of the
respondent could influence the witnesses or pose a threat to the safety
and integrity of the records and other evidence." Under the Anti-Graft
and Corrupt Practices Act, it is imposed after a valid information (that
requires a finding of probable cause) has been filed in court, while
under the Ombudsman Act, it is imposed when, in the judgment of the
Ombudsman, the evidence of guilt is strong; and (a) the charge
involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from
the service; or (c) the respondents continued stay in office may
prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is
barred from performing the functions of his office and does not receive
salary in the meanwhile, but does not vacate and lose title to his office;
loss of office is a consequence that only results upon an eventual
finding of guilt or liability.
Preventive suspension is a remedial measure that operates under
closely-controlled conditions and gives a premium to the protection of
the service rather than to the interests of the individual office holder.
Even then, protection of the service goes only as far as a temporary
prohibition on the exercise of the functions of the officials office; the
official is reinstated to the exercise of his position as soon as the
preventive suspension is lifted. Thus, while a temporary incapacity in
the exercise of power results, no position is vacated when a public
official is preventively suspended. This was what exactly happened to
Asilo.
That the imposition of preventive suspension can be abused is a reality
that is true in the exercise of all powers and prerogative under the
Constitution and the laws. The imposition of preventive suspension,
however, is not an unlimited power; there are limitations built into the

laws20 themselves that the courts can enforce when these limitations
are transgressed, particularly when grave abuse of discretion is
present. In light of this well-defined parameters in the imposition of
preventive suspension, we should not view preventive suspension from
the extreme situation that it can totally deprive an elective office
holder of the prerogative to serve and is thus an effective interruption
of an election officials term.
Term limitation and preventive suspension are two vastly different
aspects of an elective officials service in office and they do not
overlap. As already mentioned above, preventive suspension involves
protection of the service and of the people being served, and prevents
the office holder from temporarily exercising the power of his office.
Term limitation, on the other hand, is triggered after an elective official
has served his three terms in office without any break. Its companion
concept interruption of a term on the other hand, requires loss of
title to office. If preventive suspension and term limitation or
interruption have any commonality at all, this common point may be
with respect to the discontinuity of service that may occur in both. But
even on this point, they merely run parallel to each other and never
intersect; preventive suspension, by its nature, is a temporary
incapacity to render serviceduring an unbroken term; in the context
of term limitation, interruption of service occurs after there has been
abreak in the term.
b. Preventive Suspension and the Intent of the Three-Term
Limit Rule
Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that
allows an elective officials stay in office beyond three terms. A
preventive suspension cannot simply be a term interruption because
the suspended official continues to stay in office although he is barred
from exercising the functions and prerogatives of the office within the
suspension period.The best indicator of the suspended officials
continuity in office is the absence of a permanent replacement and the
lack of the authority to appoint one since no vacancy exists.
To allow a preventively suspended elective official to run for a fourth
and prohibited term is to close our eyes to this reality and to allow a
constitutional violation through sophistry by equating the temporary
inability to discharge the functions of office with the interruption of
term that the constitutional provision contemplates. To be sure, many
reasons exist, voluntary or involuntary some of them personal and
some of them by operation of law that may temporarily prevent an
elective office holder from exercising the functions of his office in the

way that preventive suspension does. A serious extended illness,

inability through force majeure, or the enforcement of a suspension as
a penalty, to cite some involuntary examples, may prevent an office
holder from exercising the functions of his office for a time without
forfeiting title to office. Preventive suspension is no different because it
disrupts actual delivery of service for a time within a term. Adopting
such interruption of actual service as the standard to determine
effective interruption of term under the three-term rule raises at least
the possibility of confusion in implementing this rule, given the many
modes and occasions when actual service may be interrupted in the
course of serving a term of office. The standard may reduce the
enforcement of the three-term limit rule to a case-to-case and possibly
see-sawing determination of what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does
not involve a voluntary act on the part of the suspended official, except
in the indirect sense that he may have voluntarily committed the act
that became the basis of the charge against him. From this
perspective, preventive suspension does not have the element of
voluntariness that voluntary renunciation embodies. Neither does it
contain the element of renunciation or loss of title to office as it merely
involves the temporary incapacity to perform the service that an
elective office demands. Thus viewed, preventive suspension is by its
very nature the exact opposite of voluntary renunciation; it is
involuntary and temporary, and involves only the actual delivery of
service, not the title to the office. The easy conclusion therefore is that
they are, by nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the
more important consideration of how they affect the three-term limit
rule.
Voluntary renunciation, while involving loss of office and the total
incapacity to render service, is disallowed by the Constitution as an
effective interruption of a term. It is therefore not allowed as a mode of
circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective
interruption of a term and should therefore not be a reason to avoid
the three-term limitation. It can pose as a threat, however, if we shall
disregard its nature and consider it an effective interruption of a term.
Let it be noted that a preventive suspension is easier to undertake than
voluntary renunciation, as it does not require relinquishment or loss of
office even for the briefest time. It merely requires an easily fabricated

administrative charge that can be dismissed soon after a preventive

suspension has been imposed. In this sense, recognizing preventive
suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the
Constitution expressly disallows as an interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the
Sandiganbayan-imposed preventive suspension in 2005, as preventive
suspension does not interrupt an elective officials term. Thus, the
COMELEC refused to apply the legal command of Section 8, Article X of
the Constitution when it granted due course to Asilos certificate of
candidacy for a prohibited fourth term. By so refusing, the COMELEC
effectively committed grave abuse of discretion amounting to lack or
excess of jurisdiction; its action was a refusal to perform a positive
duty required by no less than the Constitution and was one undertaken
outside the contemplation of law.21
WHEREFORE, premises considered, we GRANT the petition and
accordingly NULLIFY the assailed COMELEC rulings. The private
respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and
perforce to serve, as Councilor of Lucena City for a prohibited fourth
term. Costs against private respondent Asilo.SO ORDERED.
G.R. No. 121087

August 26, 1999

FELIPE
vs.
THE COURT OF APPEALS
PHILIPPINES, respondents.

NAVARRO, petitioner,
and

the

PEOPLE

OF

THE

MENDOZA, J.:
This is a petition for review on certiorari of the decision1 of the Court of
Appeals, dated December 14, 1994, which affirmed the judgment of
the Regional Trial Court, Branch 5, Lucena City, dated July 27, 1992,
finding petitioner Felipe Navarro guilty beyond reasonable doubt of
homicide and sentencing him to ten (10) years of prision mayor, as
minimum, and fourteen (14) years and eight (8) months, and (1) day
of reclusion temporal, as maximum, but increased the death indemnity
awarded to the heirs of the victim, Enrique "Ike" Lingan, from
P30,000.00 to P50,000.00.

The information against petitioner alleged

That on or about the 4th day of February, 1990, in the
nighttime, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court,
the said accused, being then a member of the Lucena
Integrated National Police, with intent to kill, did then and there
willfully, unlawfully and feloniously assault one Ike Lingan
inside the Lucena police headquarters, where authorities are
supposed to be engaged in the discharge of their duties, by
boxing the said Ike Lingan in the head with the butt of a gun
and thereafter when the said victim fell, by banging his head
against the concrete pavement, as a consequence of which
said Ike Lingan suffered cerebral concussion and shock which
directly caused his death.
The evidence show that, at around 8:40 in the evening of February 4,
1990, Stanley Jalbuena and Enrique "Ike" Lingan, who were reporters of
the radio station DWTI in Lucena City, together with one Mario Ilagan,
went to the Entertainment City following reports that it was showing
the nude dancers. After the three had seated themselves at a table
and ordered beer, a scantily clad dancer appeared on stage and began
to perform a strip act. As she removed her brassieres, Jalbuena brought
out his camera and took a picture.2
At that point, the floor manager, Dante Liquin, with a security guard,
Alex Sioco, approached Jalbuena and demanded to know why he took a
picture.3 Jalbuena replied: "Wala kang pakialam, because this is my
job."4 Sioco pushed Jalbuena towards the table as he warned the latter
that he would kill him.5 When Jalbuena saw that Sioco was about to pull
out his gun, he ran out of the joint followed by his companions.6
Jalbuena and his companions went to the police station to report the
matter. Three of the policeman on duty, including petitioner Navarro,
were having drinks in front of the police station, and they asked
Jalbuena and his companions to join them. Jalbuena declined and went
to the desk officer, Sgt. Aonuevo, to report the incident. In a while,
Liquin and Sioco arrived on a motorcycle.7
Sioco and Liquin were met by petitioner Navarro who talked with them
in a corner for around fifteen minutes.8Afterwards, petitioner Navarro

turned to Jalbuena and, pushing him to the wall, said to him: "Putang
ina, kinakalaban mo si Kabo Liquin, anak yan ni Kabo Liquin, hindi mo
ba kilala?"9 Petitioner Navarro then pulled out his firearm and cocked it,
and, pressing it on the face of Jalbuena, said "Ano, uutasin na kita?"10
At this point, Lingan intervened and said to petitioner Navarro: "Huwag
namang ganyan pumarito kami para magpa-blotter, I am here to
mediate."11 Petitoner Navarro replied: "Walang press, press, magsampu pa kayo."12He then turned to Sgt. Aonuevo and told him to
make of record the behavior of Jalbuena and Lingan.13
This angered Lingan, who said: "O, di ilagay mo diyan" 14 Petitioner
Navarro retorted: "Talagang ilalagay ko."15The two then had a heated
exchange.16 Finally, Lingan said: "Masyado kang abusado, alisin mo
yang baril mo at magsuntukan na lang tayo." 17 Petitioner Navarro
replied: "Ah, ganoon?"18
As Lingan was about turn away, petitioner Navarro hit him with the
handle of the pistol above the left eyebrow. Lingan fell on the floor,
blood flowing down his face. He tried to get up, but petitioner Navarro
gave him a fist blow on the forehead which floored him.19
Petitioner Navarro turned to Jalbuena and said: "Kita mo yan ha, buhay
kang testigo, si Ike Lingan and naghamon." 20 He said to Sgt. Aonuevo:
"Ilagay mo diyan sa blotter sa harap ni Alex Sioco at Dante Liquin, na si
Ike Lingan ang naghamon."21 He then poked his gun at the right temple
of Jalbuena and made him sign his name on the blotter. 22 Jalbuena
could not affix his signature. His right hand was trembling and he
simply wrote his name in print.23
Capt. Coronado, the station commander, called petitioner Navarro to
his office, while a policeman took Lingan to the Quezon Memorial
Hospital. The station manager of DWTI, Boy, Casaada, arrived and,
learning that Lingan had been taken to the hospital, proceeded there.
But Lingan died from his injuries.24
Unknown to petitioner Navarro, Jalbuena was able to record on tape
the exchange between petitioner and the deceased. 25 The following is
an excerpt from the tape recording:

Lingan: Pare, you are abusing yourself.

Lingan: Alisin mo ang baril mo! Alisin mo ang baril mo!

Suntukan tayo, sige.

Navarro: Who is that abusing?

Navarro: Mayabang ka ah!
Lingan: I'm here to mediate. Do not include me in the problem.
I'm out of the problem.
xxx

xxx

xxx

Navarro: Wala sa akin yan. Ang kaso lang . . .

Lingan: Kalaban mo ang media, pare, Ako at si Stanley, dalawa
kami. Okay. Do not fight with me. I just came here to ayusin
things. Do not say bad things against me. I'm the number one
loko sa media. I'm the best media man. . . .
Navarro: Huwag tayong mag-lokohan sa ganyan! Huwag na
tayong mag-takotan! Huwag mong sabihing loko ka!
Lingan: I'm brave also.
Navarro: Ay lalo na ako. Tahimik lang naman ako. Wala ka
namang masasabi sa akin dahil nag-tatrabaho lang ako ng
ayon sa serbisyo ko.
Lingan: You are challenging me and him. . . .
Navarro: Ay walastik ka naman Ike! Pag may problema ka dito
sinasabihan kita na may balita tayong maganda. Pambihira ka
Ike. Huwag mong sabihin na . . . Parang minomonopoly mo eh.
Lingan: Pati ako kalaban ninyo.
Navarro: Talagang kalaban namin ang press. Lahat, hindi lang
ikaw!
Lingan: You are wrong. Bakit kalaban nyo ang press?
Navarro: Pulis ito! Aba!

(Sounds of a scuffle)
Navarro: Hinamon ako nyan! Pare hinamon ako nyan! Pare
hinamon ako nyan, testigo kayo. Alisin ko daw ang baril ko.
Hinamon ako nyan. Pare, ilagay mo diyan, hinamon ako sa
harap ni Stanley. Testigo kayo, hinamon ako. Pulis tayo eh. Puta,
buti nga, suntok lang ang inabot nyan. Sa harap ni Alex, ni Joe,
ni Stanley, hinamon ako. Pare, hinamon ako, kinig nyo ha.
Hinamon ako nyan. Sige, dalhin nyo sa hospital yan.
Petitioner Felipe Navarro claims that it was the deceased who tried to
hit him twice, but he (petitioner) was able to duck both times, and that
Lingan was so drunk he fell on the floor twice, each time hitting his
head on the concrete.26
In giving credence to the evidence for the prosecution, the trial court
stated:
After a thorough and in-depth evaluation of the evidence
adduced by the prosecution and the defense, this court finds
that the evidence for the prosecution is the more credible,
concrete and sufficient to create that moral certainty in the
mind of the court that accused herein is criminally responsible.
The defense's evidence which consists of outright denial could
not under the circumstance overturn the strength of the
prosecution's evidence.
This court finds that the prosecution witnesses, more
particularly Stanley Jalbuena, lacked any motive to make false
accusation, distort the truth, testify falsehood or cause
accusation of one who had neither brought him harm or injury.
Going over the evidence on record, the postmortem report
issued by Dra. Eva Yamamoto confirms the detailed account

given by Stanley Jalbuena on how Lingan sustained head

injuries.
Said post-mortem report together with the testimony of
Jalbuena sufficiently belie the claim of the defense that the
head injuries of deceased Lingan were caused by the latter's
falling down on the concrete pavement head first.
The Court of Appeals affirmed:
We are far from being convinced by appellant's aforesaid
disquisition. We have carefully evaluated the conflicting
versions of the incident as presented by both parties, and we
find the trial court's factual conclusions to have better and
stronger evidentiary support.
In the first place, the mere fact that Jalbuena was himself a
victim of appellant's aggression does not impair the probative
worth of his positive and logical account of the incident in
question. In fact, far from proving his innocence, appellant's
unwarranted assault upon Jalbuena, which the defense has
virtually admitted, clearly betrays his violent character or
disposition and his capacity to harm others. Apparently, the
same motivation that led him into assailing Jalbuena must have
provoked him into also attacking Lingan who had interceded for
Jalbuena and humiliated him and further challenged to a fist
fight.1wphi1.nt
xxx

xxx

Hence, this appeal. Petitioner Navarro contends:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE CASE
NOT IN ACCORD WITH LAW AND WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT. ITS CONCLUSION IS A
FINDING BASED ON SPECULATION, SURMISE OR CONJECTURE;
THE INFERENCE IT MADE IS MANIFESTLY MISTAKEN, ABSURD OR
IMPOSSIBLE; IT COMMITTED GRAVE ABUSE OF DISCRETION; ITS
JUDGMENT IS BASED ON A MISAPPREHENSION OF FACTS; ITS
FINDING IS CONTRADICTED BY EVIDENCE ON RECORD; AND ITS
FINDING IS DEVOID OF SUPPORT IN THE RECORD.
The appeal is without merit.
First. Petitioner Navarro questions the credibility of the testimony of
Jalbuena on the ground that he was a biased witness, having a grudge
against him. The testimony of a witness who has an interest in the
conviction of the accused is not, for this reason alone, unreliable. 27 Trial
courts, which have the opportunity observe the facial expressions,
gestures, and tones of voice of a witness while testifying, are
competent to determine whether his or her testimony should be given
credence.28 In the instant case, petitioner Navarro has not shown that
the trial court erred in according weight to the testimony of Jalbuena.
Indeed, Jalbuena's testimony is confirmed by the voice recording had
made. It may be asked whether the tape is admissible in view of R.A.
No. 4200, which prohibits wire tapping. The answer is in the
affirmative. The law provides:

xxx

On the other hand, appellant's explanation as how Lingan was

injured is too tenuous and illogical to be accepted. It is in fact
contradicted by the number, nature and location of Lingan's
injuries as shown in thepost-mortem report (Exh. D). According
to the defense, Lingan fell two times when he was outbalanced
in the course of boxing the appellant. And yet, Lingan suffered
lacerated wounds in his left forehead, left eyebrow, between his
left and right eyebrows, and contusion in the right temporal
region of the head (Exh. E.). Certainly, these injuries could not
have been resulted from Lingan's accidental fall.

Sec. 1. It shall be unlawful for any person, not being authorized

by all the parties to any private communication or spoken word,
to tap any wire or cable, or by using any other device or
arrangement, to secretly overhear, intercept, or record such
communication or spoken word by using a device commonly
known as dictaphone or dictagraph of dectectaphone or walkietalkie or tape-recorder, or however otherwise described:
It shall also be unlawful for any person, be he a participant or
not in the act or acts penalized in the next preceding sentence,
to knowingly possess any tape record, wire record, disc record,
or any other such record, or copies thereof, of any

communication or spoken word secured either before or after

the effective date of this Act in the manner prohibited by this
law; or to replay the same for any other person or persons; or
to communicate the contents thereof, either verbally or in
writing, or to furnish transcriptions thereof, whether complete
or partial, to any other person: Provided, That the use of such
record or any copies thereof as evidence in any civil, criminal
investigation or trial of offenses mentioned in section 3 hereof,
shall not be covered by this prohibition.
xxx

xxx

xxx

Sec. 4. Any communication or spoken word, or the existence,

contents, substance, purport, effect, or meaning of the same or
any part thereof, or any information therein contained obtained
or secured by any person in violation of the preceding sections
of this Act shall not be admissible in evidence in any judicial,
quasi-judicial, legislative or administrative hearing or
investigation.
Thus, the law prohibits the overhearing, intercepting, or recording of
private communications.29 Since the exchange between petitioner
Navarro and Lingan was not private, its tape recording is not
prohibited.
Nor is there any question that it was duly authenticated. A voice
recording is authenticated by the testimony of a witness (1) that he
personally recorded the conversations; (2) that the tape played in the
court was the one he recorded; and (3) that the voices on the tape are
those of the persons such are claimed to belong. 30 In the instant case,
Jalbuena testified that he personally made the voice recording;31 that
the tape played in the court was the one he recorded; 32 and that the
speakers on the tape were petitioner Navarro and Lingan.33 A sufficient
foundation was thus laid for the authentication of the tape presented
by the prosecution.
Second. The voice recording made by Jalbuena established: (1) that
there was a heated exchange between petitioner Navarro and Lingan
on the placing in the police blotter of an entry against him and
Jalbuena; and (2) that some form of violence occurred involving
petitioner Navarro and Lingan, with the latter getting the worst of it.

Furthermore, Dr. Eva Yamamoto, who performed the autopsy on the

body of Lingan, issued the medical certificate, 34 dated February 5,
1990, containing the following findings:
Post Mortem Findings:
= Dried blood, forehead & face
= No blood oozed from the ears, nose & mouth
= Swelling, 3 cm x 2 cm, temporal region, head, right
= Lacerated wound, 2 cm in length, 1-2 in depth, lateral
eyebrow, Left
= Lacerated wound, 0.5 cm in length, superficial, between the
left & right eyebrow
= Lacerated wound, 2 cm in length, 1 cm in depth, forehead,
Left
= Cyanosis of the tips of fingers & toes
CAUSE OF DEATH:
= CEREBRAL CONCUSSION & SHOCK
= BLOW ON THE HEAD
Dr. Yamamato testified:
Q Give your opinion as to what was the possible cause of this findings
number one, which is oozing of blood from the forehead?
A It may be due to a blow on the forehead or it bumped to a hard
object, sir.
Q Could a metal like a butt of a gun have caused this wound No. 1.?
A It is possible, sir.

Q And in the alternative, could have it been caused by bumping on a

concrete floor?

In this same post mortem report and under the heading cause of death
it states: Cause of Death: Cerebral concussion and Shock, will you
explain it?

A Possible, sir.
FISCAL:
What could have been the cause of the contusion and swelling under
your findings No. 2 doctor?

A Cerebral concussion means in Tagalog "naalog ang utak" or jarring

of the brain, sir.
Q What could have been the cause of jarring of the brain?
A It could have been caused by a blow of a hard object, sir.

WITNESS:
Q What about the shock, what could have caused it?
It may be caused by bumping to a hard object, sir.
A It was due to peripheral circulatory failure, sir.
Q Could a butt of a gun have caused it doctor?
Q Could any one of both caused the death of the victim?
A The swelling is big so it could have not been caused by a butt of a
gun because the butt of a gun is small, sir.
Q How about this findings No. 4?

A Yes, sir.
Q Could cerebral concussion alone have caused the death of the
deceased?

A By a bump or contact of the body to a hard object, sir.

A May be, sir.
Q And findings No. 5 what could have caused it?
FISCAL:
A Same cause, sir.
Which of these two more likely, to cause death?
Q This findings No. 6 what could have caused this wound?
WITNESS:
A Same thing sir.
Shock, sir.
Q How about the last finding, cyanosis of tips of fingers and toes,
what could have caused it doctor?

Q Please explain further the meaning of the medical term shock?

WITNESS:

A It is caused by peripheral circulatory failure as I have said earlier sir.

It indicates there was cardiac failure, sir.

xxx

FISCAL:

FISCAL:

xxx

xxx

Could a bumping or pushing of one's head against a concrete floor

have caused shock?
WITNESS:
Possible, sir.
How about striking with a butt of a gun, could it cause shock?
A Possible, sir.

35

The above testimony clearly supports the claim of Jalbuena that

petitioner Navarro hit Lingan with the handle of his pistol above the left
eyebrow and struck him on the forehead with his fist.
Third. It is argued that the mitigating circumstances of sufficient
provocation or threat on the part of the offended party immediately
preceding the act should have been appreciated in favor of petitioner
Navarro. Provocation is defined to be any unjust or improper conduct or
act of the offended party, capable of exciting, inciting or irritating
anyone.36 The provocation must be sufficient and should immediately
precede the act.37 To be sufficient, it must be adequate to excite a
person to commit the wrong, which must accordingly be proportionate
in gravity.38 And it must immediately precede the act so much so that
there is no interval between the provocation by the offended party and
the commission of the crime by the accused.39

that should be imposed on petitioner Navarro. The allowance of this

mitigating circumstance is consistent with the rule that criminal liability
shall be incurred by any person committing a felony although the
wrongful act done be different from that which he intended. 41 In People
v. Castro,42 the mitigating circumstance of lack of intent to commit so
grave a wrong as that committed was appreciated in favor of the
accused while finding him guilty of homicide.
However, the aggravating circumstance of commission of a crime in a
place where the public authorities are engaged in the discharge of
their duties should be appreciated against petitioner Navarro. The
offense in this case was committed right in the police station where
policemen were discharging their public functions.43
The crime committed as found by the trial court and the Court of
Appeals was homicide, for which the penalty under Art. 249 of the
Revised Penal Code is reclusion temporal. As there were two mitigating
circumstances and one aggravating circumstances, the penalty should
be fixed in its minimum period. 44 Applying the Indeterminate Sentence
Law, petitioner Navarro should be sentenced to an indeterminate
penalty, the minimum of which is within the range of the penalty next
lower degree, i.e., prision mayor, and the maximum of which
is reclusion temporal in its minimum period.45
The indemnity as increased by the Court of Appeals from P30,000.00 to
P50,000.00 is in accordance with the current jurisprudence.46

In the present case, the remarks of Lingan, which immediately

preceded the act of petitioner, constituted sufficient provocation.
In People v. Macaso,40 we appreciated this mitigating circumstance in
favor of the accused, a policeman, who shot a motorist after the latter
had repeatedly taunted him with defiant words. Hence, this mitigating
circumstance should be considered in favor of petitioner Navarro.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED with the

modification that petitioner Felipe Navarro is hereby SENTENCED to
suffer a prison terms of 18 years of prision mayor, as minimum, to 14
years and 8 months of reclusion temporal, as maximum.

Furthermore, the mitigating circumstance that the offender had no

intention to commit so grave a wrong as that committed should also be
appreciated in favor of petitioner. The frantic exclamations of petitioner
Navarro after the scuffle that it was Lingan who provoked him shows
that he had no intent to kill the latter. Thus, this mitigating
circumstance should be taken into account in determining the penalty

Bellosillo, Quisumbing and Buena, JJ., concur.

SO ORDERED.1wphi1.nt

EN BANC
G.R. No. 154512

November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa

City, petitioner,
vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL
ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim Chairman
Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary
Punong Bgy. BENJAMIN JARILLA, PRA Chairman and Presiding
Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary
Punong Bgy. CARLOS ABALLA, JR. respondents.
----------------------------G.R. No. 154683

November 12, 2002

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

JR., petitioner,

----------------------------G.R. Nos. 155083-84

November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO

OLLAVE,
SR., petitioners,
vs.
THE
COMMISSION
ON
ELECTIONS,
and
EDWARD
S.
HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari1 seeking the reversal
of the resolutions issued by the Commission on Elections ("COMELEC"
for brevity) in relation to the recall election for mayor of Puerto
Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent
barangay officials of the Puerto Princesa convened themselves into a
Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was
convened to initiate the recall2 of Victorino Dennis M. Socrates
("Socrates" for brevity) who assumed office as Puerto Princesa's mayor
on June 30, 2001. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as
interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall
Resolution" for brevity) which declared its loss of confidence in
Socrates and called for his recall. The PRA requested the COMELEC to
schedule the recall election for mayor within 30 days from receipt of
the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed
as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall
Resolution.

On August 14, 2002, the COMELEC en banc 3 promulgated a resolution

dismissing for lack of merit Socrates' petition. The COMELEC gave due
course to the Recall Resolution and scheduled the recall election on
September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution
No. 5673 prescribing the calendar of activities and periods of certain
prohibited acts in connection with the recall election. The COMELEC
fixed the campaign period from August 27, 2002 to September 5, 2002
or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed
his certificate of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and
Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC,
docketed as SPA No. 02-492, to disqualify Hagedorn from running in
the recall election and to cancel his certificate of candidacy. On August
30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a
petition-in-intervention in SPA No. 02-492 also seeking to disqualify
Hagedorn. On the same date, a certain Genaro V. Manaay filed another
petition, docketed as SPA No. 02-539, against Hagedorn alleging
substantially the same facts and involving the same issues. The
petitions were all anchored on the ground that "Hagedorn is
disqualified from running for a fourth consecutive term, having been
elected and having served as mayor of the city for three (3)
consecutive full terms immediately prior to the instant recall election
for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were
consolidated.
In a resolution promulgated on September 20, 2002, the COMELEC's
First Division4 dismissed for lack of merit SPA Nos. 02-492 and 02-539.
The COMELEC declared Hagedorn qualified to run in the recall election.
The COMELEC also reset the recall election from September 7, 2002 to
September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a
resolution denying the motion for reconsideration of Adovo and Gilo.
The COMELEC affirmed the resolution declaring Hagedorn qualified to
run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution

dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course
to the Recall Resolution and scheduled the recall election on
September 7, 2002.

Petitioners argue that the COMELEC gravely abused its discretion in

upholding Hagedorn's qualification to run for mayor in the recall
election despite the constitutional and statutory prohibitions against a
fourth consecutive term for elective local officials.

Socrates alleges that the COMELEC gravely abused its discretion in

upholding the Recall Resolution. Socrates cites the following
circumstances as legal infirmities attending the convening of the PRA
and its issuance of the Recall Resolution: (1) not all members of the
PRA were notified of the meeting to adopt the resolution; (2) the proof
of service of notice was palpably and legally deficient; (3) the members
of the PRA were themselves seeking a new electoral mandate from
their respective constituents; (4) the adoption of the resolution was
exercised with grave abuse of authority; and (5) the PRA proceedings
were conducted in a manner that violated his and the public's
constitutional right to information.

In a resolution dated September 24, 2002, the Court ordered the

COMELEC to desist from proclaiming any winning candidate in the
recall election until further orders from the Court. Petitioners were
required to post aP20,000 bond.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution
No. 5673 dated August 21, 2002 insofar as it fixed the recall election
on September 7, 2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from holding the
recall election on September 7, 2002 and that a new date be fixed
giving the candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined
the COMELEC from implementing Resolution No. 5673 insofar as it
fixed the date of the recall election on September 7, 2002. The Court
directed the COMELEC to give the candidates an additional fifteen 15
days from September 7, 2002 within which to campaign.
Accordingly, on September 9, 2002, the COMELEC en banc issued
Resolution No. 5708 giving the candidates an additional 15 days from
September 7, 2002 within which to campaign. Thus, the COMELEC
reset the recall election to September 24, 2002.

On September 27, 2002, Socrates filed a motion for leave to file an

attached petition for intervention seeking the same reliefs as those
sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in
the recall election with 20,238 votes. Rival candidates Socrates and
Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from
proclaiming the winning candidate and to allow him to assume office to
give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to
file a petition for intervention.
The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave
abuse of discretion in giving due course to the Recall Resolution
and scheduling the recall election for mayor of Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run
for mayor in the recall election of Puerto Princesa on September
24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions
dated September 20, 2002 and September 23, 2002 in SPA Nos. 02492 and 02-539 declaring Hagedorn qualified to run for mayor in the
recall election. They likewise prayed for the issuance of a temporary
restraining order to enjoin the proclamation of the winning candidate in
the recall election.

In G.R. No. 154683, the issue of whether the COMELEC committed

grave abuse of discretion in fixing a campaign period of only 10 days
has become moot. Our Resolution of September 3, 2002 and COMELEC
Resolution No. 5708 granted an additional 15 days for the campaign
period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse

of discretion in upholding the Recall Resolution despite the absence of
notice to 130 PRA members and the defective service of notice to other
PRA members. The COMELEC, however, found that

Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M.
Socrates.'

"On various dates, in the month of June 2002, the proponents for the
Recall of incumbent City Mayor Victorino Dennis M. Socrates sent
notices of the convening of the PRA to the members thereof pursuant
to Section 70 of the Local Government Code. Copies of the said notice
are in Volumes I and II entitled Notices to PRA. Likewise, Proof of
Service for each of the said notices were attached to the Petition and
marked as Annex "G" of Volumes II and III of the Petition.

This Court is bound by the findings of fact of the COMELEC on matters

within the competence and expertise of the COMELEC, unless the
findings are patently erroneous. In Malonzo v. COMELEC,5 which also
dealt with alleged defective service of notice to PRA members, we
ruled that

x x x ."

the
the
the
the

"Needless to state, the issue of propriety of the notices sent to the PRA
members is factual in nature, and the determination of the same is
therefore a function of the COMELEC. In the absence of patent error, or
serious inconsistencies in the findings, the Court should not disturb the
same. The factual findings of the COMELEC, based on its own
assessments and duly supported by gathered evidence, are conclusive
upon the court, more so, in the absence of a substantiated attack on
the validity of the same."

Notices of the convening of the Puerto Princesa PRA were also sent to
the following: [a list of 25 names of provincial elective officials, print
and broadcast media practitioners, PNP officials, COMELEC city,
regional and national officials, and DILG officials].

In the instant case, we do not find any valid reason to hold that the
COMELEC's findings of fact are patently erroneous.

Notices were likewise posted in conspicuous places particularly at

Barangay Hall. Photos establishing the same were attached to
Petition and marked as Annex "H". The proponents likewise utilized
broadcast mass media in the dissemination of the convening of
PRA.

xxx
The City Election Officer of Puerto Princesa City in her Certification
dated 10 July 2002 certified that upon a 'thorough and careful
verification of the signatures appearing in PRA Resolution 01-02, x x x
the majority of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single member/signatory
of the PRA complained or objected as to the veracity and authenticity
of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in
his Indorsement dated 10 July 2002, stated, 'upon proper review, all
documents submitted are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002
submitted the following recommendations:
'This Office, after evaluating the documents filed, finds the instant
Petition sufficient in form and substance. That the PRA was validly
constituted and that the majority of all members thereof approved

Socrates also claims that the PRA members had no authority to adopt
the Recall Resolution on July 2, 2002 because a majority of PRA
members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant
consideration considering that when the PRA members adopted the
Recall Resolution their terms of office had not yet expired. They were
all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70
of the Local Government Code.
Socrates bewails that the manner private respondents conducted the
PRA proceedings violated his constitutional right to information on
matters of public concern. Socrates, however, admits receiving notice
of the PRA meeting and of even sending his representative and counsel
who were present during the entire PRA proceedings. Proponents of the
recall election submitted to the COMELEC the Recall Resolution,
minutes of the PRA proceedings, the journal of the PRA assembly,
attendance sheets, notices sent to PRA members, and authenticated
master list of barangay officials in Puerto Princesa. Socrates had the
right to examine and copy all these public records in the official
custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates'

claim that respondents violated his constitutional right to information

on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in
scheduling the recall election on September 24, 2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8,
Article X of the Constitution, which states:
"Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for
the full term for which he was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,
otherwise known as the Local Government Code, which provides:
"Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for
which the elective official was elected."
These constitutional and statutory provisions have two parts. The first
part provides that an elective local official cannot serve for more than
three consecutive terms. The clear intent is that only consecutive
terms count in determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length of time does
not interrupt the continuity of service. The clear intent is that
involuntary severance from office for any length of time interrupts
continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or
consecutive terms.
After three consecutive terms, an elective local official cannot seek
immediate reelection for a fourth term. The prohibited election refers

to the next regular election for the same office following the end of the
third consecutive term. Any subsequent election, like a recall election,
is no longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an immediate
reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be
no further election after three terms, or whether there would be "no
immediate reelection" after three terms. This is clear from the following
deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two issues, as
indicated on the blackboard, and these are Alternative No. I
where there is no further election after a total of three terms
and Alternative No. 2 where there is no immediate reelection
after three successive terms."7
The Journal of the Constitutional Commission reports the following
manifestation on the term of elective local officials:
"MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body
would proceed to the consideration of two issues on the term of
Representatives and local officials, namely: 1) Alternative No. 1 (no
further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms)."8
The framers of the Constitution used the same "no immediate
reelection" question in voting for the term limits of Senators 9 and
Representatives of the House.10
Clearly, what the Constitution prohibits is an immediate reelection for a
fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term as
long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate
reelection after the third term.

Neither does the Constitution prohibit one barred from seeking

immediate reelection to run in any other subsequent election involving
the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to by the framers
of the Constitution is the immediate reelection after the third term, not
any other subsequent election.
If the prohibition on elective local officials is applied to any election
within the three-year full term following the three-term limit, then
Senators should also be prohibited from running in any election within
the six-year full term following their two-term limit. The constitutional
provision on the term limit of Senators is worded exactly like the term
limit of elective local officials, thus:
"No Senator shall serve for more than two consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full
term for which he was elected."11
In the debates on the term limit of Senators, the following exchange in
the Constitutional Convention is instructive:
"GASCON:12 I would like to ask a question with regard to the
issue after the second term. We will allow the Senator to rest
for a period of time before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before - if the
Gentleman will remember - was: How long will that period of
rest be? Will it be one election which is three years or one term
which is six years?
DAVIDE: If the Gentleman will remember, Commissioner
Rodrigo expressed the view that during the election following
the expiration of the first 12 years, whether such election will
be on the third or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of
hibernation for six years. That was the Committee's stand.
GASCON: So, effectively, the period of rest would be three
years at the least."14 (Emphasis supplied)

The framers of the Constitution thus clarified that a Senator can run
after only three years15 following his completion of two terms. The
framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election,
during the six-year period following the two term limit. The framers of
the Constitution did not intend "the period of rest" of an elective official
who has reached his term limit to be the full extent of the succeeding
term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking referred
to the regular elections in 2001. Hagedorn did not seek reelection in
the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995
and 1998 elections and served in full his three consecutive terms as
mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001
elections. The Constitution and the Local Government Code disqualified
Hagedorn, who had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. Thus, Hagedorn did
not run for mayor in the 2001 elections.16 Socrates ran and won as
mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased
to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes
over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002,
the mayor of Puerto Princesa was Socrates. During the same period,
Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn's service as mayor, not
because of his voluntary renunciation, but because of a legal
prohibition. Hagedorn's three consecutive terms ended on June 30,
2001. Hagedorn's new recall term from September 24, 2002 to June 30,
2004 is not a seamless continuation of his previous three consecutive
terms as mayor. One cannot stitch together Hagedorn's previous threeterms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary
interruption occurred from June 30, 2001 to September 24, 2002 which
broke the continuity or consecutive character of Hagedorn's service as
mayor.
In Lonzanida v. Comelec,17 the Court had occasion
interruption of continuity of service in this manner:

to

explain

"x x x The second sentence of the constitutional provision under

scrutiny states, "Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of service
for the full term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to circumvent the threeterm limit by a voluntary renunciation of office and at the same time
respect the people's choice and grant their elected official full service
of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the threeterm limit; conversely, involuntary severance from office for any length
of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office,
although short of a full term of three years, constituted an interruption
in the continuity of his service as mayor. The Constitution does not
require the interruption or hiatus to be a full term of three years. The
clear intent is that interruption "for any length of time," as long as the
cause is involuntary, is sufficient to break an elective local official's
continuity of service.
In the recent case of Adormeo v. Comelec and Talaga, 18 a unanimous
Court reiterated the rule that an interruption consisting of a portion of
a term of office breaks the continuity of service of an elective local
official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive
full terms as mayor of Lucena City. In his third bid for election as mayor
in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall
election of May 12, 2000, Talaga won and served the unexpired term of
Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again
for mayor in the 2001 elections, Raymundo Adormeo, the other
candidate for mayor, petitioned for Talaga's disqualification on the
ground that Talaga had already served three consecutive terms as
mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a
continuation of his previous two terms so that he was deemed to have
already served three consecutive terms as mayor. The Court ruled that
Talaga was qualified to run in the 2001 elections, stating that the
period from June 30, 1998 to May 12, 2000 when Talaga was out of
office interrupted the continuity of his service as mayor. Talaga's recall
term as mayor was not consecutive to his previous two terms because
of this interruption, there having been a break of almost two years
during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of
office interrupts the continuity of his service and prevents his recall

term from being stitched together as a seamless continuation of his

previous two consecutive terms. In the instant case, we likewise hold
that the nearly 15 months Hagedorn was out of office interrupted his
continuity of service and prevents his recall term from being stitched
together as a seamless continuation of his previous three consecutive
terms. The only difference between Adormeo and the instant case is
the time of the interruption. In Adormeo, the interruption occurred after
the first two consecutive terms. In the instant case, the interruption
happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he
assumed office after winning the recall election. Talaga's recall term
did not retroact to include the tenure in office of his predecessor. If
Talaga's recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already
have served three consecutive terms prior to the 2001 elections. One
who wins and serves a recall term does not serve the full term of his
predecessor but only the unexpired term. The period of time prior to
the recall term, when another elective official holds office, constitutes
an interruption in continuity of service. Clearly, Adormeo established
the rule that the winner in the recall election cannot be charged or
credited with the full term of three years for purposes of counting the
consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to
include the tenure in office of Socrates. Hagedorn can only be
disqualified to run in the September 24, 2002 recall election if the
recall term is made to retroact to June 30, 2001, for only then can the
recall term constitute a fourth consecutive term. But to consider
Hagedorn's recall term as a full term of three years, retroacting to June
30, 2001, despite the fact that he won his recall term only last
September 24, 2002, is to ignore reality. This Court cannot declare as
consecutive or successive terms of office which historically and
factually are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001
creates a legal fiction that unduly curtails the freedom of the people to
choose their leaders through popular elections. The concept of term
limits is in derogation of the sovereign will of the people to elect the
leaders of their own choosing. Term limits must be construed strictly to
give the fullest possible effect to the sovereign will of the people. As
this Court aptly stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the
Constitution reveals that the members of the Constitutional

Commission were as much concerned with preserving the freedom of

choice of the people as they were with preventing the monopolization
of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive
terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred
from running for the same position in the succeeding election following
the expiration of the third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will choose' as a
result of the proposed absolute disqualification, considering that the
draft constitution contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is
the start of a new term following the interruption. An official elected in
recall election serves the unexpired term of the recalled official. This
unexpired term is in itself one term for purposes of counting the threeterm limit. This is clear from the following discussion in the
Constitutional Commission:
"SUAREZ:20 For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion
of the term. Would that mean that serving the unexpired portion of the
term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator
concerned from running? Is that the meaning of this provision on
disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special
election, he will serve only for the unexpired portion of that particular
term plus one more term for the Senator and two more terms for the
Members of the Lower House."21
Although the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a recall
election of local officials. Otherwise, an elective local official who
serves a recall term can serve for more than nine consecutive years
comprising of the recall term plus the regular three full terms. A local
official who serves a recall term should know that the recall term is in
itself one term although less than three years. This is the inherent
limitation he takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the
September 24, 2002 recall election for mayor of Puerto Princesa
because:

1. Hagedorn is not running for immediate reelection following

his three consecutive terms as mayor which ended on June 30,
2001;
2. Hagedorn's continuity of service as mayor was involuntarily
interrupted from June 30, 2001 to September 24, 2002 during
which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30,
2004 cannot be made to retroact to June 30, 2001 to make a
fourth consecutive term because factually the recall term is not
a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest
possible effect to the right of the electorate to choose their
leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 15508384 are DISMISSED. The temporary restraining order issued by this
Court on September 24, 2002 enjoining the proclamation of the
winning candidate for mayor of Puerto Princesa in the recall election of
September 24, 2002 is lifted. No costs.
SO ORDERED.

EN BANC
G.R. No. 177736

October 6, 2008

MELANIE
P.
MONTUERTO, petitioner,
vs.
HONORABLE MAYOR ROLANDO E. TY and THE SANGGUNIANG
BAYAN, represented by HONORABLE VICE-MAYOR RICHARD D.
JAGUROS, all of the Municipality of Almeria, Biliran, respondents.
RESOLUTION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari1 under Rule 45 of
the Rules of Civil Procedure seeking the reversal of the Court of
Appeals (CA) Decision2 dated October 31, 2006 and Resolution 3 dated
March 29, 2007, which affirmed in toto the Resolution of the Civil
Service Commission (CSC) dated June 7, 2005.
The antecedents, as found by the CA, are as follows:
On March 17, 1992, petitioner was issued an appointment as Municipal
Budget Officer by the then Mayor Supremo T. Sabitsana of the
Municipality of Almeria, Biliran. On March 24, 1992, her appointment
was approved as permanent by Gerardo Corder, Acting Civil Service
Commission Field Officer.
On January 14, 2002, the Sangguniang Bayan of Almeria, Biliran
passed Sangguniang Bayan (SB) Resolution No. 01-S-2002 entitled "A
Resolution Requesting the Civil Service Commission Regional Office, to
Revoke the Appointment of Mrs. Melanie P. Montuerto, Municipal
Budget Officer of the Municipality of Almeria, Biliran for Failure to
Secure the Required Concurrence from the Sangguniang Bayan."
Consequently, the Municipality of Almeria, Biliran submitted the 201
file of petitioner to Civil Service Commission Regional Office No. VIII
(CSCRO No. VIII) which showed that petitioner's appointment lacked
the required concurrence of the local sanggunian. On the other hand,
petitioner submitted to the same office a Joint-Affidavit 4executed on

March 6, 2002, by the majority of the then members of

the Sangguniang Bayan of Almeria, Biliran, the pertinent portion of
which reads:

Office. After due consideration of the pleadings and documents

presented, the latter issued CSC Resolution No. 040728 dated July 1,
2004, disposing of petitioner's appeal in this wise:

4. Since the regular session focused on the deliberations

regarding the municipal budget, the concurrence on the
appointment of Municipal Budget Officer Melanie P. Montuerto
was not highlighted and the concurrence was inadvertently
omitted in the Minutes of the Regular Session for 2 March 1992.
But, we can still fully recall that there was really a verbal
concurrence on the appointment of Municipal Budget Officer
Melanie P. Montuerto x x x.

WHEREFORE, the instant appeal of Melanie P. Montuerto is

hereby DISMISSED. Accordingly, the appealed Order dated
March 11, 2002 of the Civil Service Commission-Regional Office
No. VIII, Palo, Leyte, recalling the initial approval of the
appointment of Montuerto as Municipal Budget Officer of
Almeria, Biliran, for lack of the required concurrence by the
majority of all the members of Sangguniang Bayan, is
herebyAFFIRMED.

On March 11, 2002, CSCRO No. VIII issued an Order decreeing:

WHEREFORE, foregoing premises considered, the approval on
the appointment of Melanie P. Montuerto as Municipal Budget
Officer of LGU-Almeria, Leyte xxx is hereby RECALLED on the
ground that it lacks the required concurrence of the majority of
all the members of the Sangguniang Bayan of LGU-Almeria,
Biliran.
Petitioner moved for reconsideration. Before resolving the motion,
CSCRO No. VIII invited Marcelo C. Maceda, Jr., incumbent SB Secretary,
to appear and bring with him any document showing that petitioner's
appointment as Municipal Budget Officer had been submitted to the SB
for concurrence. In reply, Maceda issued a Certification on June 10,
2002, which reads:
This is to certify that as per records kept on file by this office,
there is no record that would show that the appointment of Mrs.
Melanie P. Montuerto, as Municipal Budget Officer of Almeria,
Biliran was submitted to the Sangguniang Bayan for
concurrence from June 1992 up to the present.
However, the SB minutes of the March 2, 1992 regular session
pointed out the presence of a budget officer who explained fully
the details of the 1992 Municipal Annual Budget of Almeria,
Biliran.
Likewise, Maceda submitted a copy of the SB Minutes of the regular
session held on March 2, 1992.
On July 9, 2002, CSCRO No. VIII denied petitioner's motion for
reconsideration. Aggrieved, petitioner appealed to the CSC Central

Petitioner filed a motion for reconsideration which was denied in CSC

Resolution No. 050756 dated June 7, 2005. Meanwhile, on July 30,
2004, the Municipal Mayor of Almeria, Biliran issued Office Order No.
15 which directed the indefinite detail of the petitioner to the
Cooperative Development Project. In the same office order, the
commutable representation and transportation allowance of petitioner
was removed. On July 11, 2005, the Municipal Mayor issued a
Memorandum terminating the services of petitioner as Municipal
Budget Officer pursuant to CSC Resolution No. 050756.
Petitioner filed a Petition for Review under Rule 43 of the Rules of Civil
Procedure before the CA, which denied it for lack of merit.
Hence, the instant Petition raising the sole issue of whether the
appointment of petitioner as Municipal Budget Officer, without the
written concurrence of the Sanggunian, but duly approved by the CSC
and after the appointee had served as such for almost ten years
without interruption, can still be revoked by the Commission.
We resolve to deny the Petition.
The law is clear. Under Section 443(a) and (d) of Republic Act (R.A.) No.
71605 or the Local Government Code, the head of a department or
office in the municipal government, such as the Municipal Budget
Officer, shall be appointed by the mayor with the concurrence of the
majority of all Sangguniang Bayan members6 subject to civil service
law, rules and regulations. Per records, the appointment of petitioner
was never submitted to theSangguniang Bayan for its concurrence or,
even if so submitted, no such concurrence was obtained. Such factual
finding of quasi-judicial agencies, especially if adopted and affirmed by
the CA, is deemed final and conclusive and may not be reviewed on
appeal by this Court. This Court is not a trier of facts and generally,
does not weigh anew evidence already passed upon by the CA. Absent

a showing that this case falls under any of the exceptions to this
general rule, this Court will refrain from disturbing the findings of fact
of the tribunals below.
Moreover, we agree with the ruling of the CA that the verbal
concurrence allegedly given by the Sanggunian, as postulated by the
petitioner, is not the concurrence required and envisioned under R.A.
No. 7160. TheSanggunian, as a body, acts through a resolution or an
ordinance. Absent such resolution of concurrence, the appointment of
petitioner failed to comply with the mandatory requirement of Section
443(a) and (d) of R.A. No. 7160. Without a valid appointment,
petitioner acquired no legal title to the Office of Municipal Budget
Officer, even if she had served as such for ten years.
Accordingly, the CSC has the authority to recall the appointment of the
petitioner.7
All told, we find no reversible error on the part of the CA.
WHEREFORE, the instant Petition is DENIED for lack of merit. No
costs.
SO ORDERED.

G.R. Nos. 155083-84

November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO

OLLAVE,
SR., petitioners,
vs.
THE
COMMISSION
ON
ELECTIONS,
and
EDWARD
S.
HAGEDORN, respondents.
DECISION
CARPIO, J.:
The Case
Before us are consolidated petitions for certiorari1 seeking the reversal
of the resolutions issued by the Commission on Elections ("COMELEC"
for brevity) in relation to the recall election for mayor of Puerto
Princesa City, Palawan.
The Antecedents
On July 2, 2002, 312 out of 528 members of the then incumbent
barangay officials of the Puerto Princesa convened themselves into a

Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of

Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was
convened to initiate the recall2 of Victorino Dennis M. Socrates
("Socrates" for brevity) who assumed office as Puerto Princesa's mayor
on June 30, 2001. The members of the PRA designated Mark David M.
Hagedorn, president of the Association of Barangay Captains, as
interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 ("Recall
Resolution" for brevity) which declared its loss of confidence in
Socrates and called for his recall. The PRA requested the COMELEC to
schedule the recall election for mayor within 30 days from receipt of
the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition, docketed
as E.M. No. 02-010 (RC), to nullify and deny due course to the Recall
Resolution.
On August 14, 2002, the COMELEC en banc 3 promulgated a resolution
dismissing for lack of merit Socrates' petition. The COMELEC gave due
course to the Recall Resolution and scheduled the recall election on
September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution
No. 5673 prescribing the calendar of activities and periods of certain
prohibited acts in connection with the recall election. The COMELEC
fixed the campaign period from August 27, 2002 to September 5, 2002
or a period of 10 days.
On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed
his certificate of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and
Merly E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC,
docketed as SPA No. 02-492, to disqualify Hagedorn from running in
the recall election and to cancel his certificate of candidacy. On August
30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a
petition-in-intervention in SPA No. 02-492 also seeking to disqualify
Hagedorn. On the same date, a certain Genaro V. Manaay filed another
petition, docketed as SPA No. 02-539, against Hagedorn alleging
substantially the same facts and involving the same issues. The
petitions were all anchored on the ground that "Hagedorn is
disqualified from running for a fourth consecutive term, having been
elected and having served as mayor of the city for three (3)
consecutive full terms immediately prior to the instant recall election

for the same post." Subsequently, SPA Nos. 02-492 and 02-539 were
consolidated.
In a resolution promulgated on September 20, 2002, the COMELEC's
First Division4 dismissed for lack of merit SPA Nos. 02-492 and 02-539.
The COMELEC declared Hagedorn qualified to run in the recall election.
The COMELEC also reset the recall election from September 7, 2002 to
September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a
resolution denying the motion for reconsideration of Adovo and Gilo.
The COMELEC affirmed the resolution declaring Hagedorn qualified to
run in the recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution
dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course
to the Recall Resolution and scheduled the recall election on
September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in
upholding the Recall Resolution. Socrates cites the following
circumstances as legal infirmities attending the convening of the PRA
and its issuance of the Recall Resolution: (1) not all members of the
PRA were notified of the meeting to adopt the resolution; (2) the proof
of service of notice was palpably and legally deficient; (3) the members
of the PRA were themselves seeking a new electoral mandate from
their respective constituents; (4) the adoption of the resolution was
exercised with grave abuse of authority; and (5) the PRA proceedings
were conducted in a manner that violated his and the public's
constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution
No. 5673 dated August 21, 2002 insofar as it fixed the recall election
on September 7, 2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from holding the
recall election on September 7, 2002 and that a new date be fixed
giving the candidates at least an additional 15 days to campaign.

In a resolution dated September 3, 2002, the Court en banc enjoined

the COMELEC from implementing Resolution No. 5673 insofar as it
fixed the date of the recall election on September 7, 2002. The Court
directed the COMELEC to give the candidates an additional fifteen 15
days from September 7, 2002 within which to campaign.

The Issues
The issues for resolution of the Court are:
1. In G.R. No. 154512, whether the COMELEC committed grave
abuse of discretion in giving due course to the Recall Resolution
and scheduling the recall election for mayor of Puerto Princesa.

Accordingly, on September 9, 2002, the COMELEC en banc issued

Resolution No. 5708 giving the candidates an additional 15 days from
September 7, 2002 within which to campaign. Thus, the COMELEC
reset the recall election to September 24, 2002.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run

for mayor in the recall election of Puerto Princesa on September
24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions
dated September 20, 2002 and September 23, 2002 in SPA Nos. 02492 and 02-539 declaring Hagedorn qualified to run for mayor in the
recall election. They likewise prayed for the issuance of a temporary
restraining order to enjoin the proclamation of the winning candidate in
the recall election.
Petitioners argue that the COMELEC gravely abused its discretion in
upholding Hagedorn's qualification to run for mayor in the recall
election despite the constitutional and statutory prohibitions against a
fourth consecutive term for elective local officials.
In a resolution dated September 24, 2002, the Court ordered the
COMELEC to desist from proclaiming any winning candidate in the
recall election until further orders from the Court. Petitioners were
required to post aP20,000 bond.
On September 27, 2002, Socrates filed a motion for leave to file an
attached petition for intervention seeking the same reliefs as those
sought by Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in
the recall election with 20,238 votes. Rival candidates Socrates and
Sandoval obtained 17,220 votes and 13,241 votes, respectively.
Hagedorn filed motions to lift the order restraining the COMELEC from
proclaiming the winning candidate and to allow him to assume office to
give effect to the will of the electorate.
On October 1, 2002, the Court granted Socrates' motion for leave to
file a petition for intervention.

In G.R. No. 154683, the issue of whether the COMELEC committed

grave abuse of discretion in fixing a campaign period of only 10 days
has become moot. Our Resolution of September 3, 2002 and COMELEC
Resolution No. 5708 granted an additional 15 days for the campaign
period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.
Petitioner Socrates argues that the COMELEC committed grave abuse
of discretion in upholding the Recall Resolution despite the absence of
notice to 130 PRA members and the defective service of notice to other
PRA members. The COMELEC, however, found that
"On various dates, in the month of June 2002, the proponents for the
Recall of incumbent City Mayor Victorino Dennis M. Socrates sent
notices of the convening of the PRA to the members thereof pursuant
to Section 70 of the Local Government Code. Copies of the said notice
are in Volumes I and II entitled Notices to PRA. Likewise, Proof of
Service for each of the said notices were attached to the Petition and
marked as Annex "G" of Volumes II and III of the Petition.
Notices were likewise posted in conspicuous places particularly at
Barangay Hall. Photos establishing the same were attached to
Petition and marked as Annex "H". The proponents likewise utilized
broadcast mass media in the dissemination of the convening of
PRA.

the
the
the
the

Notices of the convening of the Puerto Princesa PRA were also sent to
the following: [a list of 25 names of provincial elective officials, print
and broadcast media practitioners, PNP officials, COMELEC city,
regional and national officials, and DILG officials].
xxx

The City Election Officer of Puerto Princesa City in her Certification

dated 10 July 2002 certified that upon a 'thorough and careful
verification of the signatures appearing in PRA Resolution 01-02, x x x
the majority of all members of the PRA concerned approved said
resolution.' She likewise certified 'that not a single member/signatory
of the PRA complained or objected as to the veracity and authenticity
of their signatures.'
The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in
his Indorsement dated 10 July 2002, stated, 'upon proper review, all
documents submitted are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002
submitted the following recommendations:
'This Office, after evaluating the documents filed, finds the instant
Petition sufficient in form and substance. That the PRA was validly
constituted and that the majority of all members thereof approved
Resolution No. 01-02 calling for the recall of Mayor Victorino Dennis M.
Socrates.'
x x x ."
This Court is bound by the findings of fact of the COMELEC on matters
within the competence and expertise of the COMELEC, unless the
findings are patently erroneous. In Malonzo v. COMELEC,5 which also
dealt with alleged defective service of notice to PRA members, we
ruled that
"Needless to state, the issue of propriety of the notices sent to the PRA
members is factual in nature, and the determination of the same is
therefore a function of the COMELEC. In the absence of patent error, or
serious inconsistencies in the findings, the Court should not disturb the
same. The factual findings of the COMELEC, based on its own
assessments and duly supported by gathered evidence, are conclusive
upon the court, more so, in the absence of a substantiated attack on
the validity of the same."
In the instant case, we do not find any valid reason to hold that the
COMELEC's findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt
the Recall Resolution on July 2, 2002 because a majority of PRA
members were seeking a new electoral mandate in the barangay
elections scheduled on July 15, 2002. This argument deserves scant

consideration considering that when the PRA members adopted the

Recall Resolution their terms of office had not yet expired. They were
all de jure sangguniang barangay members with no legal
disqualification to participate in the recall assembly under Section 70
of the Local Government Code.
Socrates bewails that the manner private respondents conducted the
PRA proceedings violated his constitutional right to information on
matters of public concern. Socrates, however, admits receiving notice
of the PRA meeting and of even sending his representative and counsel
who were present during the entire PRA proceedings. Proponents of the
recall election submitted to the COMELEC the Recall Resolution,
minutes of the PRA proceedings, the journal of the PRA assembly,
attendance sheets, notices sent to PRA members, and authenticated
master list of barangay officials in Puerto Princesa. Socrates had the
right to examine and copy all these public records in the official
custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates'
claim that respondents violated his constitutional right to information
on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in
scheduling the recall election on September 24, 2002.
Second Issue: Hagedorn's qualification to run for mayor
in the recall election of September 24, 2002.
The three-term limit rule for elective local officials is found in Section 8,
Article X of the Constitution, which states:
"Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for
the full term for which he was elected."
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,
otherwise known as the Local Government Code, which provides:
"Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation
of the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for
which the elective official was elected."

Upon resumption of session, Mr. Romulo manifested that the Body

would proceed to the consideration of two issues on the term of
Representatives and local officials, namely: 1) Alternative No. 1 (no
further reelection after a total of three terms), and 2) Alternative No. 2
(no immediate reelection after three successive terms)."8

These constitutional and statutory provisions have two parts. The first
part provides that an elective local official cannot serve for more than
three consecutive terms. The clear intent is that only consecutive
terms count in determining the three-term limit rule. The second part
states that voluntary renunciation of office for any length of time does
not interrupt the continuity of service. The clear intent is that
involuntary severance from office for any length of time interrupts
continuity of service and prevents the service before and after the
interruption from being joined together to form a continuous service or
consecutive terms.

The framers of the Constitution used the same "no immediate

reelection" question in voting for the term limits of Senators 9 and
Representatives of the House.10

After three consecutive terms, an elective local official cannot seek

immediate reelection for a fourth term. The prohibited election refers
to the next regular election for the same office following the end of the
third consecutive term. Any subsequent election, like a recall election,
is no longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an immediate
reelection after three consecutive terms. Second, the intervening
period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be
no further election after three terms, or whether there would be "no
immediate reelection" after three terms. This is clear from the following
deliberations of the Constitutional Commission:
"THE PRESIDENT: The Acting Floor Leader is recognized.
MR. ROMULO:6 We are now ready to discuss the two issues, as
indicated on the blackboard, and these are Alternative No. I
where there is no further election after a total of three terms
and Alternative No. 2 where there is no immediate reelection
after three successive terms."7
The Journal of the Constitutional Commission reports the following
manifestation on the term of elective local officials:
"MANIFESTATION OF MR. ROMULO

Clearly, what the Constitution prohibits is an immediate reelection for a

fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term as
long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the
third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election involving
the same term of office. What the Constitution prohibits is a
consecutive fourth term. The debates in the Constitutional Commission
evidently show that the prohibited election referred to by the framers
of the Constitution is the immediate reelection after the third term, not
any other subsequent election.
If the prohibition on elective local officials is applied to any election
within the three-year full term following the three-term limit, then
Senators should also be prohibited from running in any election within
the six-year full term following their two-term limit. The constitutional
provision on the term limit of Senators is worded exactly like the term
limit of elective local officials, thus:
"No Senator shall serve for more than two consecutive terms.
Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full
term for which he was elected."11
In the debates on the term limit of Senators, the following exchange in
the Constitutional Convention is instructive:
"GASCON:12 I would like to ask a question with regard to the
issue after the second term. We will allow the Senator to rest
for a period of time before he can run again?

DAVIDE:13 That is correct.

GASCON: And the question that we left behind before - if the
Gentleman will remember - was: How long will that period of
rest be? Will it be one election which is three years or one term
which is six years?
DAVIDE: If the Gentleman will remember, Commissioner
Rodrigo expressed the view that during the election following
the expiration of the first 12 years, whether such election will
be on the third or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of
hibernation for six years. That was the Committee's stand.
GASCON: So, effectively, the period of rest would be three
years at the least."14 (Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run
after only three years15 following his completion of two terms. The
framers expressly acknowledged that the prohibited election refers
only to the immediate reelection, and not to any subsequent election,
during the six-year period following the two term limit. The framers of
the Constitution did not intend "the period of rest" of an elective official
who has reached his term limit to be the full extent of the succeeding
term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate
reelection that the Constitution barred Hagedorn from seeking referred
to the regular elections in 2001. Hagedorn did not seek reelection in
the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995
and 1998 elections and served in full his three consecutive terms as
mayor of Puerto Princesa. Under the Constitution and the Local
Government Code, Hagedorn could no longer run for mayor in the 2001
elections. The Constitution and the Local Government Code disqualified
Hagedorn, who had reached the maximum three-term limit, from
running for a fourth consecutive term as mayor. Thus, Hagedorn did
not run for mayor in the 2001 elections.16 Socrates ran and won as
mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased
to be mayor on June 30, 2001, he became a private citizen until the
recall election of September 24, 2002 when he won by 3,018 votes
over his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002,
the mayor of Puerto Princesa was Socrates. During the same period,
Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorn's service as mayor, not
because of his voluntary renunciation, but because of a legal
prohibition. Hagedorn's three consecutive terms ended on June 30,
2001. Hagedorn's new recall term from September 24, 2002 to June 30,
2004 is not a seamless continuation of his previous three consecutive
terms as mayor. One cannot stitch together Hagedorn's previous threeterms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary
interruption occurred from June 30, 2001 to September 24, 2002 which
broke the continuity or consecutive character of Hagedorn's service as
mayor.
In Lonzanida v. Comelec,17 the Court had occasion
interruption of continuity of service in this manner:

to

explain

"x x x The second sentence of the constitutional provision under

scrutiny states, "Voluntary renunciation of office for any length of time
shall not be considered as an interruption in the continuity of service
for the full term for which he was elected." The clear intent of the
framers of the constitution to bar any attempt to circumvent the threeterm limit by a voluntary renunciation of office and at the same time
respect the people's choice and grant their elected official full service
of a term is evident in this provision. Voluntary renunciation of a term
does not cancel the renounced term in the computation of the threeterm limit; conversely, involuntary severance from office for any length
of time short of the full term provided by law amounts to an
interruption of continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office,
although short of a full term of three years, constituted an interruption
in the continuity of his service as mayor. The Constitution does not
require the interruption or hiatus to be a full term of three years. The
clear intent is that interruption "for any length of time," as long as the
cause is involuntary, is sufficient to break an elective local official's
continuity of service.
In the recent case of Adormeo v. Comelec and Talaga, 18 a unanimous
Court reiterated the rule that an interruption consisting of a portion of
a term of office breaks the continuity of service of an elective local
official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive
full terms as mayor of Lucena City. In his third bid for election as mayor
in 1998, Talaga lost to Bernard G. Tagarao. However, in the recall
election of May 12, 2000, Talaga won and served the unexpired term of

Tagarao from May 12, 2000 to June 30, 2001. When Talaga ran again
for mayor in the 2001 elections, Raymundo Adormeo, the other
candidate for mayor, petitioned for Talaga's disqualification on the
ground that Talaga had already served three consecutive terms as
mayor.
Thus, the issue in Adormeo was whether Talaga's recall term was a
continuation of his previous two terms so that he was deemed to have
already served three consecutive terms as mayor. The Court ruled that
Talaga was qualified to run in the 2001 elections, stating that the
period from June 30, 1998 to May 12, 2000 when Talaga was out of
office interrupted the continuity of his service as mayor. Talaga's recall
term as mayor was not consecutive to his previous two terms because
of this interruption, there having been a break of almost two years
during which time Tagarao was the mayor.
We held in Adormeo that the period an elective local official is out of
office interrupts the continuity of his service and prevents his recall
term from being stitched together as a seamless continuation of his
previous two consecutive terms. In the instant case, we likewise hold
that the nearly 15 months Hagedorn was out of office interrupted his
continuity of service and prevents his recall term from being stitched
together as a seamless continuation of his previous three consecutive
terms. The only difference between Adormeo and the instant case is
the time of the interruption. In Adormeo, the interruption occurred after
the first two consecutive terms. In the instant case, the interruption
happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he
assumed office after winning the recall election. Talaga's recall term
did not retroact to include the tenure in office of his predecessor. If
Talaga's recall term was made to so retroact, then he would have been
disqualified to run in the 2001 elections because he would already
have served three consecutive terms prior to the 2001 elections. One
who wins and serves a recall term does not serve the full term of his
predecessor but only the unexpired term. The period of time prior to
the recall term, when another elective official holds office, constitutes
an interruption in continuity of service. Clearly, Adormeo established
the rule that the winner in the recall election cannot be charged or
credited with the full term of three years for purposes of counting the
consecutiveness of an elective official's terms in office.
In the same manner, Hagedorn's recall term does not retroact to
include the tenure in office of Socrates. Hagedorn can only be
disqualified to run in the September 24, 2002 recall election if the

recall term is made to retroact to June 30, 2001, for only then can the
recall term constitute a fourth consecutive term. But to consider
Hagedorn's recall term as a full term of three years, retroacting to June
30, 2001, despite the fact that he won his recall term only last
September 24, 2002, is to ignore reality. This Court cannot declare as
consecutive or successive terms of office which historically and
factually are not.
Worse, to make Hagedorn's recall term retroact to June 30, 2001
creates a legal fiction that unduly curtails the freedom of the people to
choose their leaders through popular elections. The concept of term
limits is in derogation of the sovereign will of the people to elect the
leaders of their own choosing. Term limits must be construed strictly to
give the fullest possible effect to the sovereign will of the people. As
this Court aptly stated in Borja, Jr. v. Comelec:
"Thus, a consideration of the historical background of Art. X, 8 of the
Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization
of political power. Indeed, they rejected a proposal put forth by
Commissioner Edmundo F. Garcia that after serving three consecutive
terms or nine years there should be no further reelection for local and
legislative officials. Instead, they adopted the alternative proposal of
Commissioner Christian Monsod that such officials be simply barred
from running for the same position in the succeeding election following
the expiration of the third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will choose' as a
result of the proposed absolute disqualification, considering that the
draft constitution contained provisions 'recognizing people's
power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is
the start of a new term following the interruption. An official elected in
recall election serves the unexpired term of the recalled official. This
unexpired term is in itself one term for purposes of counting the threeterm limit. This is clear from the following discussion in the
Constitutional Commission:
"SUAREZ:20 For example, a special election is called for a Senator, and
the Senator newly elected would have to serve the unexpired portion
of the term. Would that mean that serving the unexpired portion of the
term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator
concerned from running? Is that the meaning of this provision on
disqualification, Madam President?

DAVIDE: Yes, because we speak of 'term,' and if there is a special

election, he will serve only for the unexpired portion of that particular
term plus one more term for the Senator and two more terms for the
Members of the Lower House."21
Although the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a recall
election of local officials. Otherwise, an elective local official who
serves a recall term can serve for more than nine consecutive years
comprising of the recall term plus the regular three full terms. A local
official who serves a recall term should know that the recall term is in
itself one term although less than three years. This is the inherent
limitation he takes by running and winning in the recall election.
In summary, we hold that Hagedorn is qualified to run in the
September 24, 2002 recall election for mayor of Puerto Princesa
because:
1. Hagedorn is not running for immediate reelection following
his three consecutive terms as mayor which ended on June 30,
2001;
2. Hagedorn's continuity of service as mayor was involuntarily
interrupted from June 30, 2001 to September 24, 2002 during
which time he was a private citizen;
3. Hagedorn's recall term from September 24, 2002 to June 30,
2004 cannot be made to retroact to June 30, 2001 to make a
fourth consecutive term because factually the recall term is not
a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest
possible effect to the right of the electorate to choose their
leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 15508384 are DISMISSED. The temporary restraining order issued by this
Court on September 24, 2002 enjoining the proclamation of the
winning candidate for mayor of Puerto Princesa in the recall election of
September 24, 2002 is lifted. No costs.
SO ORDERED.

EN BANC
G.R. No. 168550 August 10, 2006
URBANO
M.
MORENO, Petitioner,
vs.
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICONAZARIO, Respondents.
DECISION
TINGA, J.:
In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails
the Resolution 2 of the Commission on Elections (Comelec) en
banc dated June 1, 2005, affirming the Resolution 3 of the Comelec First
Division dated November 15, 2002 which, in turn, disqualified him from
running for the elective office of Punong Barangay of Barangay
Cabugao, Daram, Samar in the July 15, 2002 Synchronized Barangay
and Sangguniang Kabataan Elections.
The following are the undisputed facts:
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from
running for Punong Barangay on the ground that the latter was
convicted by final judgment of the crime of Arbitrary Detention and
was sentenced to suffer imprisonment of Four (4) Months and One (1)
Day to Two (2) Years and Four (4) Months by the Regional Trial Court,
Branch 28 of Catbalogan, Samar on August 27, 1998.
Moreno filed an answer averring that the petition states no cause of
action because he was already granted probation. Allegedly, following
the case of Baclayon v. Mutia, 4 the imposition of the sentence of
imprisonment, as well as the accessory penalties, was thereby
suspended. Moreno also argued that under Sec. 16 of the Probation
Law of 1976 (Probation Law), the final discharge of the probation shall
operate to restore to him all civil rights lost or suspended as a result of
his conviction and to fully discharge his liability for any fine imposed.
The order of the trial court dated December 18, 2000 allegedly
terminated his probation and restored to him all the civil rights he lost

as a result of his conviction, including the right to vote and be voted for
in the July 15, 2002 elections.
The case was forwarded to the Office of the Provincial Election
Supervisor of Samar for preliminary hearing. After due proceedings, the
Investigating Officer recommended that Moreno be disqualified from
running for Punong Barangay.
The Comelec First Division adopted this recommendation. On motion
for reconsideration filed with the Comelec en banc, the Resolution of
the First Division was affirmed. According to the Comelec en banc, Sec.
40(a) of the Local Government Code provides that those sentenced by
final judgment for an offense involving moral turpitude or for an
offense punishable by one (1) year or more of imprisonment, within
two (2) years after serving sentence, are disqualified from running for
any elective local position. 5 Since Moreno was released from probation
on December 20, 2000, disqualification shall commence on this date
and end two (2) years thence. The grant of probation to Moreno merely
suspended the execution of his sentence but did not affect his
disqualification from running for an elective local office.
Further, the Comelec en banc held that the provisions of the Local
Government Code take precedence over the case of Baclayon v.
Mutia cited by Moreno and the Probation Law because it is a much later
enactment and a special law setting forth the qualifications and
disqualifications of elective local officials.
In this petition, Moreno argues that the disqualification under the Local
Government Code applies only to those who have served their
sentence and not to probationers because the latter do not serve the
adjudged sentence. The Probation Law should allegedly be read as an
exception to the Local Government Code because it is a special law
which applies only to probationers. Further, even assuming that he is
disqualified, his subsequent election as Punong Barangay allegedly
constitutes an implied pardon of his previous misconduct.
In its Comment 6 dated November 18, 2005 on behalf of the Comelec,
the Office of the Solicitor General argues that this Court in Dela Torre v.
Comelec 7 definitively settled a similar controversy by ruling that
conviction for an offense involving moral turpitude stands even if the
candidate was granted probation. The disqualification under Sec. 40(a)
of the Local Government Code subsists and remains totally unaffected
notwithstanding the grant of probation.
Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating
his arguments and pointing out material differences between his case

and Dela Torre v. Comelec which allegedly warrant a conclusion

favorable to him. According to Moreno, Dela Torre v. Comelec involves
a conviction for violation of the Anti-Fencing Law, an offense involving
moral turpitude covered by the first part of Sec. 40(a) of the Local
Government Code. Dela Torre, the petitioner in that case, applied for
probation nearly four (4) years after his conviction and only after
appealing his conviction, such that he could not have been eligible for
probation under the law.
In contrast, Moreno alleges that he applied for and was granted
probation within the period specified therefor. He never served a day of
his sentence as a result. Hence, the disqualification under Sec. 40(a) of
the Local Government Code does not apply to him.
The resolution of the present controversy depends on the application of
the phrase "within two (2) years after serving sentence" found in Sec.
40(a) of the Local Government Code, which reads:
Sec. 40. Disqualifications. The following persons are disqualified from
running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral
turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
[Emphasis supplied.]
....
We should mention at this juncture that there is no need to rule on
whether Arbitrary Detention, the crime of which Moreno was convicted
by final judgment, involves moral turpitude falling under the first part
of the above-quoted provision. The question of whether Arbitrary
Detention is a crime involving moral turpitude was never raised in the
petition for disqualification because the ground relied upon by Mejes,
and which the Comelec used in its assailed resolutions, is his alleged
disqualification from running for a local elective office within two (2)
years from his discharge from probation after having been convicted
by final judgment for an offense punishable by Four (4) Months and
One (1) Day to Two (2) Years and Four (4) Months. Besides, a
determination that the crime of Arbitrary Detention involves moral
turpitude is not decisive of this case, the crucial issue being whether
Morenos sentence was in fact served.
In this sense, Dela Torre v. Comelec is not squarely applicable. Our
pronouncement therein that the grant of probation does not affect the

disqualification under Sec. 40(a) of the Local Government Code was

based primarily on the finding that the crime of fencing of which
petitioner was convicted involves moral turpitude, a circumstance
which does not obtain in this case. At any rate, the phrase "within two
(2) years after serving sentence" should have been interpreted and
understood to apply both to those who have been sentenced by final
judgment for an offense involving moral turpitude and to those who
have been sentenced by final judgment for an offense punishable by
one (1) year or more of imprisonment. The placing of the comma (,) in
the provision means that the phrase modifies both parts of Sec. 40(a)
of the Local Government Code.
The Courts declaration on the effect of probation on Sec. 40(a) of the
Local Government Code, we should add, ought to be considered
an obiter in view of the fact that Dela Torre was not even entitled to
probation because he appealed his conviction to the Regional Trial
Court which, however, affirmed his conviction. It has been held that the
perfection of an appeal is a relinquishment of the alternative remedy of
availing of the Probation Law, the purpose of which is to prevent
speculation or opportunism on the part of an accused who, although
already eligible, did not at once apply for probation, but did so only
after failing in his appeal. 9
Sec. 40(a) of the Local Government Code appears innocuous enough at
first glance. The phrase "service of sentence," understood in its
general and common sense, means the confinement of a convicted
person in a penal facility for the period adjudged by the court. 10 This
seemingly clear and unambiguous provision, however, has spawned a
controversy worthy of this Courts attention because the Comelec, in
the assailed resolutions, is alleged to have broadened the coverage of
the law to include even those who did not serve a day of their sentence
because they were granted probation.
Moreno argues, quite persuasively, that he should not have been
disqualified because he did not serve the adjudged sentence having
been granted probation and finally discharged by the trial court.
In Baclayon v. Mutia, the Court declared that an order placing
defendant on probation is not a sentence but is rather, in effect, a
suspension of the imposition of sentence. We held that the grant of
probation to petitioner suspended the imposition of the principal
penalty of imprisonment, as well as the accessory penalties of
suspension from public office and from the right to follow a profession
or calling, and that of perpetual special disqualification from the right
of suffrage. We thus deleted from the order granting probation the

paragraph which required that petitioner refrain from continuing with

her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of
suspension from public office, from the right to follow a profession or
calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum
period to prision correccional in its minimum period 11 imposed upon
Moreno were similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is
not even disqualified from running for a public office because the
accessory penalty of suspension from public office is put on hold for
the duration of the probation.
Clearly, the period within which a person is under probation cannot be
equated with service of the sentence adjudged. Sec. 4 of the Probation
Law specifically provides that the grant of probation suspends the
execution of the sentence. During the period of probation, 12 the
probationer does not serve the penalty imposed upon him by the court
but is merely required to comply with all the conditions prescribed in
the probation order. 13
It is regrettable that the Comelec and the OSG have misapprehended
the real issue in this case. They focused on the fact that Morenos
judgment of conviction attained finality upon his application for
probation instead of the question of whether his sentence had been
served.
The Comelec could have correctly resolved this case by simply
applying the law to the letter. Sec. 40(a) of the Local Government Code
unequivocally disqualifies only those who have been sentenced by final
judgment for an offense punishable by imprisonment of one (1) year or
more, within two (2) years after serving sentence.
This is as good a time as any to clarify that those who have not served
their sentence by reason of the grant of probation which, we reiterate,
should not be equated with service of sentence, should not likewise be
disqualified from running for a local elective office because the two (2)year period of ineligibility under Sec. 40(a) of the Local Government
Code does not even begin to run.
The fact that the trial court already issued an order finally discharging
Moreno fortifies his position. Sec. 16 of the Probation Law provides that
"[t]he final discharge of the probationer shall operate to restore to him

all civil rights lost or suspended as a result of his conviction and to fully
discharge his liability for any fine imposed as to the offense for which
probation was granted." Thus, when Moreno was finally discharged
upon the courts finding that he has fulfilled the terms and conditions
of his probation, his case was deemed terminated and all civil rights
lost or suspended as a result of his conviction were restored to him,
including the right to run for public office.
Even assuming that there is an ambiguity in Sec. 40(a) of the Local
Government Code which gives room for judicial interpretation, 14 our
conclusion will remain the same.
It is unfortunate that the deliberations on the Local Government Code
afford us no clue as to the intended meaning of the phrase "service of
sentence," i.e., whether the legislature also meant to disqualify those
who have been granted probation. The Courts function, in the face of
this seeming dissonance, is to interpret and harmonize the Probation
Law and the Local Government Code. Interpretare et concordare legis
legibus est optimus interpretandi.
Probation is not a right of an accused but a mere privilege, an act of
grace and clemency or immunity conferred by the state, which is
granted to a deserving defendant who thereby escapes the extreme
rigors of the penalty imposed by law for the offense of which he was
convicted. 15 Thus, the Probation Law lays out rather stringent
standards regarding who are qualified for probation. For instance, it
provides that the benefits of probation shall not be extended to those
sentenced to serve a maximum term of imprisonment of more than six
(6) years; convicted of any offense against the security of the State;
those who have previously been convicted by final judgment of an
offense punished by imprisonment of not less than one (1) month and
one (1) day and/or a fine of not less than P200.00; those who have
been once on probation; and those who are already serving sentence
at the time the substantive provisions of the Probation Law became
applicable. 16
It is important to note that the disqualification under Sec. 40(a) of the
Local Government Code covers offenses punishable by one (1) year or
more of imprisonment, a penalty which also covers probationable
offenses. In spite of this, the provision does not specifically disqualify
probationers from running for a local elective office. This omission is
significant because it offers a glimpse into the legislative intent to treat
probationers as a distinct class of offenders not covered by the
disqualification.

Further, it should be mentioned that the present Local Government

Code was enacted in 1991, some seven (7) years after Baclayon v.
Mutia was decided. When the legislature approved the enumerated
disqualifications under Sec. 40(a) of the Local Government Code, it is
presumed to have knowledge of our ruling in Baclayon v. Mutia on the
effect of probation on the disqualification from holding public office.
That it chose not to include probationers within the purview of the
provision is a clear expression of the legislative will not to disqualify
probationers.
On this score, we agree with Moreno that the Probation Law should be
construed as an exception to the Local Government Code. While the
Local Government Code is a later law which sets forth the qualifications
and disqualifications of local elective officials, the Probation Law is a
special legislation which applies only to probationers. It is a canon of
statutory construction that a later statute, general in its terms and not
expressly repealing a prior special statute, will ordinarily not affect the
special provisions of such earlier statute. 17
In construing Sec. 40(a) of the Local Government Code in a way that
broadens the scope of the disqualification to include Moreno, the
Comelec committed an egregious error which we here correct. We rule
that Moreno was not disqualified to run for Punong Barangay of
Barangay Cabugao, Daram, Samar in the July 15, 2002 Synchronized
Barangay and Sangguniang Kabataan Elections.
Finally, we note that Moreno was the incumbent Punong Barangay at
the time of his conviction of the crime of Arbitrary Detention. He claims
to have obtained a fresh mandate from the people of Barangay
Cabugao, Daram, Samar in the July 15, 2002 elections. This situation
calls to mind the poignant words of Mr. Justice now Chief Justice
Artemio Panganiban in Frivaldo v. Comelec 18 where he said that "it
would be far better to err in favor of popular sovereignty than to be
right in complex but little understood legalisms."
WHEREFORE, the petition is GRANTED. The Resolution of the
Commission on Elections en banc dated June 1, 2005 and the
Resolution of its First Division dated November 15, 2002, as well as all
other actions and orders issued pursuant thereto, are ANNULLED and
SET ASIDE. The Commission on Elections is directed to proceed in
accordance with this Decision. No pronouncement as to costs.
SO ORDERED.

G.R. No. 180363

April 28, 2009

EDGAR
vs.
THE
COMMISSION
TEVES, Respondents.

Y.

DECISION

ON

TEVES, Petitioner,
ELECTIONS

and

HERMINIO

G.

YNARES-SANTIAGO, J.:

I.

The issue for resolution is whether the crime of which petitioner Edgar
Y. Teves was convicted in Teves v. Sandiganbayan1 involved moral
turpitude.

THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS

OF JURISDICTION, WHEN THE COMELEC EN BANC DEMURRED IN
RESOLVING THE MAIN ISSUE RAISED IN PETITIONERS MOTION FOR
RECONSIDERATION, WHETHER PETITIONER IS DISQUALIFIED TO RUN
FOR PUBLIC OFFICE TAKING INTO CONSIDERATION THE DECISION OF
THE SUPREME COURT IN G.R. NO. 154182.

The facts of the case are undisputed.

Petitioner was a candidate for the position of Representative of the 3rd
legislative district of Negros Oriental during the May 14, 2007
elections. On March 30, 2007, respondent Herminio G. Teves filed a
petition to disqualify2petitioner on the ground that in Teves v.
Sandiganbayan,3 he was convicted of violating Section 3(h), Republic
Act (R.A.) No. 3019, or the Anti-Graft and Corrupt Practices Act, for
possessing pecuniary or financial interest in a cockpit, which is
prohibited under Section 89(2) of the Local Government Code (LGC) of
1991, and was sentenced to pay a fine of P10,000.00. Respondent
alleged that petitioner is disqualified from running for public office
because he was convicted of a crime involving moral turpitude which
carries the accessory penalty of perpetual disqualification from public
office.4 The case was docketed as SPA No. 07-242 and assigned to the
COMELECs First Division.
On May 11, 2007, the COMELEC First Division disqualified petitioner
from running for the position of member of House of Representatives
and ordered the cancellation of his Certificate of Candidacy.5
Petitioner filed a motion for reconsideration before the COMELEC en
banc which was denied in its assailed October 9, 2007 Resolution for
being moot, thus:
It appears, however, that [petitioner] lost in the last 14 May 2007
congressional elections for the position of member of the House of
Representatives of the Third district of Negros Oriental thereby
rendering the instant Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration
dated 28 May 2007 filed by respondent Edgar Y. Teves challenging the
Resolution of this Commission (First Division) promulgated on 11 May
2007 is hereby DENIED for having been rendered moot and academic.
SO ORDERED.6
Hence, the instant petition based on the following grounds:

II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE
RESOLUTION THEREOF WILL DETERMINE PETITIONERS QUALIFICATION
TO RUN FOR OTHER PUBLIC POSITIONS IN FUTURE ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION, WHEN THE COMELEC EN BANC IN EFFECT AFFIRMED
THE FINDINGS OF THE FIRST DIVISION WHICH RULED THAT
PETITIONERS CONVICTION FOR VIOLATION OF SECTION 3(H) OF R.A.
3019 AND THE IMPOSITION OF FINE IS A CONVICTION FOR A CRIME
INVOLVING MORAL TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME
INVOLVING MORAL TURPITUDE SHOULD BE RESOLVED TAKING INTO
CONSIDERATION THE FINDINGS OF THE SUPREME COURT IN G.R. NO.
154182.
B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT THAT
SUPPORTS THE FINDINGS OF THE FIRST DIVISION OF THE COMELEC,
THAT BASED ON THE "TOTALITY OF FACTS" DOCTRINE, PETITIONER
WAS CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in the May 14,
2007 elections did not effectively moot the issue of whether he was
disqualified from running for public office on the ground that the crime
he was convicted of involved moral turpitude. It is still a justiciable

issue which the COMELEC should have resolved instead of merely

declaring that the disqualification case has become moot in view of
petitioners defeat.
Further, there is no basis in the COMELECs findings that petitioner is
eligible to run again in the 2010 elections because his disqualification
shall be deemed removed after the expiration of a period of five years
from service of the sentence. Assuming that the elections would be
held on May 14, 2010, the records show that it was only on May 24,
2005 when petitioner paid the fine of P10,000.00 he was sentenced to
pay in Teves v. Sandignbayan.8Such being the reckoning point, thus,
the five-year disqualification period will end only on May 25, 2010.
Therefore he would still be ineligible to run for public office during the
May 14, 2010 elections.
Hence, it behooves the Court to resolve the issue of whether or not
petitioners violation of Section 3(h), R.A. No. 3019 involves moral
turpitude.1avvphi1
Section 12 of the Omnibus Election Code reads:
Sec. 12. Disqualifications. - Any person who has been declared by
competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion, or for any offense
for which he has been sentenced to a penalty of more than eighteen
months, or for a crime involving moral turpitude, shall be disqualified
to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.lawphil.net
The disqualifications to be a candidate herein provided shall be
deemed removed upon the declaration by competent authority that
said insanity or incompetence had been removed or after the
expiration of a period of five years from his service of sentence, unless
within the same period he again becomes disqualified. (Emphasis
supplied)
Moral turpitude has been defined as everything which is done contrary
to justice, modesty, or good morals; an act of baseness, vileness or
depravity in the private and social duties which a man owes his
fellowmen, or to society in general.9
Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:
Sec. 3. Corrupt practices of public officers. In addition to acts or
omissions of public officers already penalized by existing law, the

following shall constitute corrupt practices of any public officer and are
hereby declared to be unlawful:
xxxx
(h) Directly or indirectly having financial or pecuniary interest in any
business, contract or transaction in connection with which he
intervenes or takes part in his official capacity, or in which he is
prohibited by the Constitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows:
1) The accused is a public officer; 2) he has a direct or indirect financial
or pecuniary interest in any business, contract or transaction; 3) he
either: a) intervenes or takes part in his official capacity in connection
with such interest, or b) is prohibited from having such interest by the
Constitution or by law.10
Thus, there are two modes by which a public officer who has a direct or
indirect financial or pecuniary interest in any business, contract, or
transaction may violate Section 3(h) of R.A. 3019. The first mode is
when the public officer intervenes or takes part in his official capacity
in connection with his financial or pecuniary interest in any business,
contract, or transaction. The second mode is when he is prohibited
from having such an interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the
second mode for having pecuniary or financial interest in a cockpit
which is prohibited under Sec. 89(2) of the Local Government Code of
1991. The Court held therein:
However, the evidence for the prosecution has established that
petitioner Edgar Teves, then mayor of Valencia, Negros Oriental, owned
the cockpit in question. In his sworn application for registration of
cockpit filed on 26 September 1983 with the Philippine Gamefowl
Commission, Cubao, Quezon City, as well as in his renewal application
dated 6 January 1989 he stated that he is the owner and manager of
the said cockpit. Absent any evidence that he divested himself of his
ownership over the cockpit, his ownership thereof is rightly to be
presumed because a thing once proved to exist continues as long as is
usual with things of that nature. His affidavit dated 27 September 1990
declaring that effective January 1990 he "turned over the management
of the cockpit to Mrs. Teresita Z. Teves for the reason that [he] could no
longer devote a full time as manager of the said entity due to other
work pressure" is not sufficient proof that he divested himself of his
ownership over the cockpit. Only the management of the cockpit was

transferred to Teresita Teves effective January 1990. Being the owner of

the cockpit, his interest over it was direct.

involve moral turpitude, while crimes mala prohibita do not, the

rationale of which was set forth in "Zari v. Flores," to wit:

Even if the ownership of petitioner Edgar Teves over the cockpit were
transferred to his wife, still he would have a direct interest thereon
because, as correctly held by respondent Sandiganbayan, they
remained married to each other from 1983 up to 1992, and as such
their property relation can be presumed to be that of conjugal
partnership of gains in the absence of evidence to the contrary. Article
160 of the Civil Code provides that all property of the marriage is
presumed to belong to the conjugal partnership unless it be proved
that it pertains exclusively to the husband or to the wife. And Section
143 of the Civil Code declares all the property of the conjugal
partnership of gains to be owned in common by the husband and wife.
Hence, his interest in the Valencia Cockpit is direct and is, therefore,
prohibited under Section 89(2) of the LGC of 1991, which reads:

"It (moral turpitude) implies something immoral in itself, regardless of

the fact that it is punishable by law or not. It must not be merely mala
prohibita, but the act itself must be inherently immoral. The doing of
the act itself, and not its prohibition by statute fixes the moral
turpitude. Moral turpitude does not, however, include such acts as are
not of themselves immoral but whose illegality lies in their being
positively prohibited."

Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be

unlawful for any local government official or employee, directly or
indirectly, to:
xxxx
(2) Hold such interests in any cockpit or other games licensed by a
local government unit. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of
Section 3(h) of the Anti-Graft Law, which is possession of a prohibited
interest.13
However, conviction under the second mode does not automatically
mean that the same involved moral turpitude. A determination of all
surrounding circumstances of the violation of the statute must be
considered. Besides, moral turpitude does not include such acts as are
not of themselves immoral but whose illegality lies in their being
positively prohibited, as in the instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court clarified
that:
Not every criminal act, however, involves moral turpitude. It is for this
reason that "as to what crime involves moral turpitude, is for the
Supreme Court to determine." In resolving the foregoing question, the
Court is guided by one of the general rules that crimes mala in se

This guideline nonetheless proved short of providing a clear-cut

solution, for in "International Rice Research Institute v. NLRC, the Court
admitted that it cannot always be ascertained whether moral turpitude
does or does not exist by merely classifying a crime as malum in se or
as malum prohibitum. There are crimes which are mala in se and yet
but rarely involve moral turpitude and there are crimes which involve
moral turpitude and are mala prohibita only. In the final analysis,
whether or not a crime involves moral turpitude is ultimately a
question of fact and frequently depends on all the circumstances
surrounding the violation of the statute. (Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances
surrounding petitioners conviction and found that the same does not
involve moral turpitude.
First, there is neither merit nor factual basis in COMELECs finding that
petitioner used his official capacity in connection with his interest in
the cockpit and that he hid the same by transferring the management
to his wife, in violation of the trust reposed on him by the people.
The COMELEC, in justifying its conclusion that petitioners conviction
involved moral turpitude, misunderstood or misapplied our ruling in
Teves v. Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which [petitioner] was
convicted may per se not involve moral turpitude, still the totality of
facts evinces [his] moral turpitude. The prohibition was intended to
avoid any conflict of interest or any instance wherein the public official
would favor his own interest at the expense of the public interest. The
[petitioner] knew of the prohibition but he attempted to circumvent the
same by holding out that the Valencia Cockpit and Recreation Center is
to be owned by a certain Daniel Teves. Later on, he would aver that he
already divested himself of any interest of the cockpit in favor of his
wife. But the Supreme Court saw through the ruse and declared that
what he divested was only the management of the cockpit but not the

ownership. And even if the ownership is transferred to his wife, the

respondent would nevertheless have an interest thereon because it
would still belong to the conjugal partnership of gains, of which the
[petitioner] is the other half.
[Petitioner] therefore maintained ownership of the cockpit by deceit.
He has the duty to divest himself but he did not and instead employed
means to hide his interests. He knew that it was prohibited he
nevertheless concealed his interest thereon. The facts that he hid his
interest denotes his malicious intent to favor self-interest at the
expense of the public. Only a man with a malevolent, decadent,
corrupt and selfish motive would cling on and conceal his interest, the
acquisition of which is prohibited. This plainly shows his moral
depravity and proclivity to put primacy on his self interest over that of
his fellowmen. Being a public official, his act is also a betrayal of the
trust reposed on him by the people. Clearly, the totality of his acts is
contrary to the accepted rules of right and duty, honesty and good
morals. The crime, as committed by the [petitioner], plainly involves
moral turpitude.15
On the contrary, the Courts ruling states:
The Sandiganbayan found that the charge against Mayor Teves for
causing the issuance of the business permit or license to operate the
Valencia Cockpit and Recreation Center is "not well-founded." This it
based, and rightly so, on the additional finding that only the
Sangguniang Bayan could have issued a permit to operate the Valencia
Cockpit in the year 1992. Indeed, under Section 447(3) of the LGC of
1991, which took effect on 1 January 1992, it is the Sangguniang
Bayan that has the authority to issue a license for the establishment,
operation, and maintenance of cockpits. Unlike in the old LGC, Batas
Pambansa Blg. 337, wherein the municipal mayor was the presiding
officer of the Sangguniang Bayan, under the LGC of 1991, the mayor is
not so anymore and is not even a member of the Sangguniang Bayan.
Hence, Mayor Teves could not have intervened or taken part in his
official capacity in the issuance of a cockpit license during the material
time, as alleged in the information, because he was not a member of
the Sangguniang Bayan.16
Thus, petitioner, as then Mayor of Valencia, did not use his influence,
authority or power to gain such pecuniary or financial interest in the
cockpit. Neither did he intentionally hide his interest in the subject
cockpit by transferring the management thereof to his wife considering
that the said transfer occurred before the effectivity of the present LGC
prohibiting possession of such interest.

As aptly observed in Teves v. Sandiganbayan:

As early as 1983, Edgar Teves was already the owner of the Valencia
Cockpit. Since then until 31 December 1991, possession by a local
official of pecuniary interest in a cockpit was not yet prohibited. It was
before the effectivity of the LGC of 1991, or on January 1990, that he
transferred the management of the cockpit to his wife Teresita. In
accordance therewith it was Teresita who thereafter applied for the
renewal of the cockpit registration. Thus, in her sworn applications for
renewal of the registration of the cockpit in question dated 28 January
1990 and 18 February 1991, she stated that she is the Owner/Licensee
and Operator/Manager of the said cockpit. In her renewal application
dated 6 January 1992, she referred to herself as the Owner/Licensee of
the cockpit. Likewise in the separate Lists of Duly Licensed Personnel
for Calendar Years 1991 and 1992, which she submitted on 22
February 1991 and 17 February 1992, respectively, in compliance with
the requirement of the Philippine Gamefowl Commission for the
renewal of the cockpit registration, she signed her name as
Operator/Licensee.17 (Emphasis supplied)
Second, while possession of business and pecuniary interest in a
cockpit licensed by the local government unit is expressly prohibited by
the present LGC, however, its illegality does not mean that violation
thereof necessarily involves moral turpitude or makes such possession
of interest inherently immoral. Under the old LGC, mere possession by
a public officer of pecuniary interest in a cockpit was not among the
prohibitions. Thus, in Teves v. Sandiganbayan, the Court took judicial
notice of the fact that:
x x x under the old LGC, mere possession of pecuniary interest in a
cockpit was not among the prohibitions enumerated in Section 41
thereof. Such possession became unlawful or prohibited only upon the
advent of the LGC of 1991, which took effect on 1 January 1992.
Petitioner Edgar Teves stands charged with an offense in connection
with his prohibited interest committed on or about 4 February 1992,
shortly after the maiden appearance of the prohibition. Presumably, he
was not yet very much aware of the prohibition. Although ignorance
thereof would not excuse him from criminal liability, such would justify
the imposition of the lighter penalty of a fine of P10,000 under Section
514 of the LGC of 1991.18 (Italics supplied)
The downgrading of the indeterminate penalty of imprisonment of nine
years and twenty-one days as minimum to twelve years as maximum
to a lighter penalty of a fine of P10,000.00 is a recognition that
petitioners violation was not intentionally done contrary to justice,

modesty, or good morals but due to his lack of awareness or ignorance

of the prohibition.
Lastly, it may be argued that having an interest in a cockpit is
detrimental to public morality as it tends to bring forth idlers and
gamblers, hence, violation of Section 89(2) of the LGC involves moral
turpitude.
Suffice it to state that cockfighting, or sabong in the local parlance, has
a long and storied tradition in our culture and was prevalent even
during the Spanish occupation.19 While it is a form of gambling, the
morality thereof or the wisdom in legalizing it is not a justiciable issue.
In Magtajas v. Pryce Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is not
illegal per se. While it is generally considered inimical to the interests
of the people, there is nothing in the Constitution categorically
proscribing or penalizing gambling or, for that matter, even mentioning
it at all. It is left to Congress to deal with the activity as it sees fit. In
the exercise of its own discretion, the legislature may prohibit gambling
altogether or allow it without limitation or it may prohibit some forms
of gambling and allow others for whatever reasons it may consider
sufficient. Thus, it has prohibited jueteng and monte but permits
lotteries, cockfighting and horse-racing. In making such choices,
Congress has consulted its own wisdom, which this Court has no
authority to review, much less reverse. Well has it been said that
courts do no sit to resolve the merits of conflicting theories. That is the
prerogative of the political departments. It is settled that questions
regarding the wisdom, morality, or practicability of statutes are not
addressed to the judiciary but may be resolved only by the legislative
and executive departments, to which the function belongs in our
scheme of government. That function is exclusive. Whichever way
these branches decide, they are answerable only to their own
conscience and the constituents who will ultimately judge their acts,
and not to the courts of justice.
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the
Commission on Elections dated May 11, 2007 and October 9, 2007
disqualifying petitioner Edgar Y. Teves from running for the position of
Representative of the 3rd District of Negros Oriental, are REVERSED
and SET ASIDE and a new one is entered declaring that the crime
committed by petitioner (violation of Section 3(h) of R.A. 3019) did not
involve moral turpitude.
SO ORDERED.

JUAN
GALLANOSA
FRIVALDO, petitioner,
vs.
COMMISSION
ON
ELECTIONS
AND
THE
LEAGUE
OF
MUNICIPALITIES, SORSOGON CHAPTER, HEREIN REPRESENTED
BY ITS PRESIDENT, SALVADOR NEE ESTUYE, respondents.
J.L. Misa & Associates for petitioner.
Lladoc, Huab & Associates for private respondent.

CRUZ, J.:
Petitioner Juan G. Frivaldo was proclaimed governor-elect of the
province of Sorsogon on January 22, 1988, and assumed office in due
time. On October 27, 1988, the League of Municipalities, Sorsogon
Chapter (hereafter, League), represented by its President, Salvador
Estuye, who was also suing in his personal capacity, filed with the
Commission on Elections a petition for the annulment of Frivaldo;
election and proclamation on the ground that he was not a Filipino
citizen, having been naturalized in the United States on January 20,
1983. In his answer dated May 22, 1988, Frivaldo admitted that he was
naturalized in the United States as alleged but pleaded the special and
affirmative defenses that he had sought American citizenship only to
protect himself against President Marcos. His naturalization, he said,
was "merely forced upon himself as a means of survival against the
unrelenting persecution by the Martial Law Dictator's agents abroad."
He added that he had returned to the Philippines after the EDSA
revolution to help in the restoration of democracy. He also argued that
the challenge to his title should be dismissed, being in reality a quo
warranto petition that should have been filed within ten days from his
proclamation, in accordance with Section 253 of the Omnibus Election
Code. The League, moreover, was not a proper party because it was
not a voter and so could not sue under the said section.

G.R. No. 87193 June 23, 1989

Frivaldo moved for a preliminary hearing on his affirmative defenses

but the respondent Commission on Elections decided instead by its
Order of January 20, 1988, to set the case for hearing on the merits.
His motion for reconsideration was denied in another Order dated
February 21, 1988. He then came to this Court in a petition

forcertiorari and prohibition to

the ground that they had
discretion. Pending resolution
order against the hearing on
and at the same time required

ask that the said orders be set aside on

been rendered with grave abuse of
of the petition, we issued a temporary
the merits scheduled by the COMELEC
comments from the respondents.

In their Comment, the private respondents reiterated their assertion

that Frivaldo was a naturalized American citizen and had not
reacquired Philippine citizenship on the day of the election on January
18, 1988. He was therefore not qualified to run for and be elected
governor. They also argued that their petition in the Commission on
Elections was not really for quo warranto under Section 253 of the
Omnibus Election Code. The ultimate purpose was to prevent Frivaldo
from continuing as governor, his candidacy and election being null and
void ab initio because of his alienage. Even if their petition were to be
considered as one for quo warranto, it could not have been filed within
ten days from Frivaldo's proclamation because it was only in
September 1988 that they received proof of his naturalization. And
assuming that the League itself was not a proper party, Estuye himself,
who was suing not only for the League but also in his personal
capacity, could nevertheless institute the suit by himself alone.
Speaking for the public respondent, the Solicitor General supported the
contention that Frivaldo was not a citizen of the Philippines and had not
repatriated himself after his naturalization as an American citizen. As
an alien, he was disqualified from public office in the Philippines. His
election did not cure this defect because the electorate of Sorsogon
could not amend the Constitution, the Local Government Code, and the
Omnibus Election Code. He also joined in the private respondent's
argument that Section 253 of the Omnibus Election Code was not
applicable because what the League and Estuye were seeking was not
only the annulment of the proclamation and election of Frivaldo. He
agreed that they were also asking for the termination of Frivaldo's
incumbency as governor of Sorsogon on the ground that he was not a
Filipino.
In his Reply, Frivaldo insisted that he was a citizen of the Philippines
because his naturalization as an American citizen was not "impressed
with voluntariness." In support he cited the Nottebohm Case, [(1955
I.C.J. 4; 49 A.J.I.L. 396 (1955)] where a German national's naturalization
in Liechtenstein was not recognized because it had been obtained for

reasons of convenience only. He said he could not have repatriated

himself before the 1988 elections because the Special Committee on
Naturalization created for the purpose by LOI No. 27C had not yet been
organized then. His oath in his certificate of candidacy that he was a
natural-born citizen should be a sufficient act of repatriation.
Additionally, his active participation in the 1987 congressional
elections had divested him of American citizenship under the laws of
the United States, thus restoring his Philippine citizenship. He ended by
reiterating his prayer for the rejection of the move to disqualify him for
being time-barred under Section 253 of the Omnibus Election Code.
Considering the importance and urgency of the question herein raised,
the Court has decided to resolve it directly instead of allowing the
normal circuitous route that will after all eventually end with this Court,
albeit only after a, long delay. We cannot permit this delay. Such delay
will be inimical to the public interest and the vital principles of public
office to be here applied.
It is true that the Commission on Elections has the primary jurisdiction
over this question as the sole judge of all contests relating to the
election, returns and qualifications of the members of the Congress
and elective provincial and city officials. However, the decision on
Frivaldo's citizenship has already been made by the COMELEC through
its counsel, the Solicitor General, who categorically claims that Frivaldo
is a foreigner. We assume this stance was taken by him after
consultation with the public respondent and with its approval. It
therefore represents the decision of the COMELEC itself that we may
now review. Exercising our discretion to interpret the Rules of Court
and the Constitution, we shall consider the present petition as having
been filed in accordance with Article IX-A Section 7, of the Constitution,
to challenge the aforementioned Orders of the COMELEC.
The basic question we must resolve is whether or not Juan G. Frivaldo
was a citizen of the Philippines at the time of his election on January
18, 1988, as provincial governor of Sorsogon. All the other issues
raised in this petition are merely secondary to this basic question.
The reason for this inquiry is the provision in Article XI, Section 9, of
the Constitution that all public officials and employees owe the State
and the Constitution "allegiance at all times" and the specific
requirement in Section 42 of the Local Government Code that a

candidate for local elective office must be inter alia a citizen of the
Philippines and a qualified voter of the constituency where he is
running. Section 117 of the Omnibus Election Code provides that a
qualified voter must be, among other qualifications, a citizen of the
Philippines, this being an indispensable requirement for suffrage under
Article V, Section 1, of the Constitution.
In the certificate of candidacy he filed on November 19, 1987, Frivaldo
described himself as a "natural-born" citizen of the Philippines,
omitting mention of any subsequent loss of such status. The evidence
shows, however, that he was naturalized as a citizen of the United
States in 1983 per the following certification from the United States
District Court, Northern District of California, as duly authenticated by
Vice Consul Amado P. Cortez of the Philippine Consulate General in San
Francisco, California, U.S.A.
OFFICE
OF
THE
UNITED
STATES
DISTRICT
NORTHERN DISTRICT OF CALIFORNIA

CLERK
COURT

September 23, 1988

TO WHOM IT MAY CONCERN:
Our records show that JUAN GALLANOSA FRIVALDO,
born on October 20, 1915, was naturalized in this Court
on January 20, 1983, and issued Certificate of
Naturalization No. 11690178.
Petition No. 280225.
Alien Registration No. A23 079 270.
Very truly yours,

WILLIAM L. WHITTAKER
Clerk

by:
(Sgd.)

ARACELI V. BAREN
Deputy Clerk
This evidence is not denied by the petitioner. In fact, he
expressly admitted it in his answer. Nevertheless, as
earlier noted, he claims it was "forced" on him as a
measure of protection from the persecution of the
Marcos government through his agents in the United
States.
The Court sees no reason not to believe that the
petitioner was one of the enemies of the Marcos
dictatorship. Even so, it cannot agree that as a
consequence thereof he was coerced into embracing
American citizenship. His feeble suggestion that his
naturalization was not the result of his own free and
voluntary choice is totally unacceptable and must be
rejected outright.
There were many other Filipinos in the United States
similarly situated as Frivaldo, and some of them subject
to greater risk than he, who did not find it necessary
nor do they claim to have been coerced to abandon
their cherished status as Filipinos. They did not take the
oath of allegiance to the United States, unlike the
petitioner who solemnly declared "on oath, that I
absolutely and entirely renounce and abjure all
allegiance and fidelity to any foreign prince, potentate,
state or sovereignty of whom or which I have heretofore
been a subject or citizen," meaning in his case the
Republic of the Philippines. The martyred Ninoy Aquino
heads the impressive list of those Filipinos in exile who,
unlike the petitioner, held fast to their Philippine

citizenship despite the perils of their resistance to the

Marcos regime.
The Nottebohm case cited by the petitioner invoked the
international law principle of effective nationality which
is clearly not applicable to the case at bar. This principle
is expressed in Article 5 of the Hague Convention of
1930 on the Conflict of Nationality Laws as follows:
Art. 5. Within a third State a person
having more than one nationality shall
be treated as if he had only one. Without
prejudice to the application of its law in
matters of personal status and of any
convention in force, a third State shall, of
the nationalities which any such person
possesses, recognize exclusively in its
territory either the nationality of the
country in which he is habitually and
principally resident or the nationality of
the
country
with
which
in
the
circumstances he appears to be in fact
most closely connected.
Nottebohm was a German by birth but a resident of
Guatemala for 34 years when he applied for and
acquired naturalization in Liechtenstein one month
before the outbreak of World War II. Many members of
his family and his business interests were in Germany.
In 1943, Guatemala, which had declared war on
Germany, arrested Nottebohm and confiscated all his
properties on the ground that he was a German
national. Liechtenstein thereupon filed suit on his
behalf, as its citizen, against Guatemala. The
International Court of Justice held Nottebohm to be still
a national of Germany, with which he was more closely
connected than with Liechtenstein.
That case is not relevant to the petition before us
because it dealt with a conflict between the nationality
laws of two states as decided by a third state. No third

state is involved in the case at bar; in fact, even the

United States is not actively claiming Frivaldo as its
national. The sole question presented to us is whether
or not Frivaldo is a citizen of the Philippines under our
own laws, regardless of other nationality laws. We can
decide this question alone as sovereign of our own
territory, conformably to Section 1 of the said
Convention providing that "it is for each State to
determine under its law who are its nationals."
It is also worth noting that Nottebohm was invoking his
naturalization in Liechtenstein whereas in the present
case Frivaldo is rejecting his naturalization in the United
States.
If he really wanted to disavow his American citizenship
and reacquire Philippine citizenship, the petitioner
should have done so in accordance with the laws of our
country. Under CA No. 63 as amended by CA No. 473
and PD No. 725, Philippine citizenship may be
reacquired by direct act of Congress, by naturalization,
or by repatriation.
While Frivaldo does not invoke either of the first two
methods, he nevertheless claims he has reacquired
Philippine citizenship by virtue of a valid repatriation. He
claims that by actively participating in the elections in
this country, he automatically forfeited American
citizenship under the laws of the United States. Such
laws do not concern us here. The alleged forfeiture is
between him and the United States as his adopted
country. It should be obvious that even if he did lose his
naturalized American citizenship, such forfeiture did not
and could not have the effect of automatically restoring
his citizenship in the Philippines that he had earlier
renounced. At best, what might have happened as a
result of the loss of his naturalized citizenship was that
he became a stateless individual.
Frivaldo's contention that he could not have repatriated
himself under LOI 270 because the Special Committee

provided for therein had not yet been constituted seems

to suggest that the lack of that body rendered his
repatriation unnecessary. That is far-fetched if not
specious Such a conclusion would open the floodgates,
as it were. It would allow all Filipinos who have
renounced this country to claim back their abandoned
citizenship without formally rejecting their adoptedstate
and reaffirming their allegiance to the Philippines.
It does not appear that Frivaldo has taken these
categorical acts. He contends that by simply filing his
certificate of candidacy he had, without more, already
effectively recovered Philippine citizenship. But that is
hardly the formal declaration the law envisions
surely, Philippine citizenship previously disowned is not
that cheaply recovered. If the Special Committee had
not yet been convened, what that meant simply was
that the petitioner had to wait until this was done, or
seek
naturalization
by
legislative
or
judicial
proceedings.
The argument that the petition filed with the
Commission on Elections should be dismissed for
tardiness is not well-taken. The herein private
respondents are seeking to prevent Frivaldo from
continuing to discharge his office of governor because
he is disqualified from doing so as a foreigner.
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. If, say, a female legislator were
to marry a foreigner during her term and by her act or
omission acquires his nationality, would she have a
right to remain in office simply because the challenge to
her title may no longer be made within ten days from
her proclamation? It has been established, and not even
denied, that the evidence of Frivaldo's naturalization
was discovered only eight months after his

proclamation and his title was challenged shortly

thereafter.
This Court will not permit the anomaly of a person
sitting as provincial governor in this country while owing
exclusive allegiance to another country. 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.
It is true as the petitioner points out that the status of
the natural-born citizen is favored by the Constitution
and our laws, which is all the more reason why it should
be treasured like a pearl of great price. But once it is
surrendered and renounced, the gift is gone and cannot
be lightly restored. This country of ours, for all its
difficulties and limitations, is like a jealous and
possessive mother. Once rejected, it is not quick to
welcome back with eager arms its prodigal if repentant
children. The returning renegade must show, by an
express and unequivocal act, the renewal of his loyalty
and love.
WHEREFORE, the petition is DISMISSED and petitioner
JUAN G. FRIVALDO is hereby declared not a citizen of
the Philippines and therefore DISQUALIFIED from
serving as Governor of the Province of Sorsogon.
Accordingly, he is ordered to vacate his office and
surrender the same to the duly elected Vice-Governor of
the said province once this decision becomes final and

executory. The temporary restraining order dated March

9, 1989, is LIFTED.

DECISION
CORONA, J.:

SO ORDERED.

In this original petition for mandamus,1 petitioners Social Justice

Society (SJS), Vladimir Alarique T. Cabigao and Bonifacio S. Tumbokon
seek to compel respondent Hon. Jose L. Atienza, Jr., mayor of the City
of Manila, to enforce Ordinance No. 8027.
The antecedents are as follows.
On November 20, 2001, the Sangguniang Panlungsod of Manila
enacted Ordinance No. 8027.2 Respondent mayor approved the
ordinance on November 28, 2001.3 It became effective on December
28, 2001, after its publication.4
Ordinance No. 8027 was enacted pursuant to the police power
delegated to local government units, a principle described as the
power inherent in a government to enact laws, within constitutional
limits, to promote the order, safety, health, morals and general welfare
of the society.5 This is evident from Sections 1 and 3 thereof which
state:
SECTION 1. For the purpose of promoting sound urban planning and
ensuring health, public safety, and general welfare of the residents of
Pandacan and Sta. Ana as well as its adjoining areas, the land use of
[those] portions of land bounded by the Pasig River in the north, PNR
Railroad Track in the east, Beata St. in the south, Palumpong St. in the
southwest, and Estero de Pancacan in the west[,] PNR Railroad in the
northwest area, Estero de Pandacan in the [n]ortheast, Pasig River in
the southeast and Dr. M.L. Carreon in the southwest. The area of Punta,
Sta. Ana bounded by the Pasig River, Marcelino Obrero St., Mayo 28
St., and F. Manalo Street, are hereby reclassified from Industrial II to
Commercial I.
xxx xxx xxx

G.R. No. 156052

March 7, 2007

SOCIAL JUSTICE SOCIETY (SJS), VLADIMIR ALARIQUE T.

CABIGAO,
and
BONIFACIO
S.
TUMBOKON,Petitioners,
vs.
HON. JOSE L. ATIENZA, JR., in his capacity as Mayor of the City
of Manila, Respondent.

SEC. 3. Owners or operators of industries and other businesses, the

operation of which are no longer permitted under Section 1 hereof, are
hereby given a period of six (6) months from the date of effectivity of
this Ordinance within which to cease and desist from the operation of
businesses which are hereby in consequence, disallowed.
Ordinance No. 8027 reclassified the area described therein from
industrial to commercial and directed the owners and operators of

businesses disallowed under Section 1 to cease and desist from

operating their businesses within six months from the date of
effectivity of the ordinance. Among the businesses situated in the area
are the so-called "Pandacan Terminals" of the oil companies Caltex
(Philippines), Inc., Petron Corporation and Pilipinas Shell Petroleum
Corporation.
However, on June 26, 2002, the City of Manila and the Department of
Energy (DOE) entered into a memorandum of understanding
(MOU)6 with the oil companies in which they agreed that "the scaling
down of the Pandacan Terminals [was] the most viable and practicable
option." Under the MOU, the oil companies agreed to perform the
following:
Section 1. - Consistent with the objectives stated above, the OIL
COMPANIES shall, upon signing of this MOU, undertake a program to
scale down the Pandacan Terminals which shall include, among others,
the immediate removal/decommissioning process of TWENTY EIGHT
(28) tanks starting with the LPG spheres and the commencing of works
for the creation of safety buffer and green zones surrounding the
Pandacan Terminals. xxx
Section 2. Consistent with the scale-down program mentioned
above, the OIL COMPANIES shall establish joint operations and
management, including the operation of common, integrated and/or
shared facilities, consistent with international and domestic technical,
safety, environmental and economic considerations and standards.
Consequently, the joint operations of the OIL COMPANIES in the
Pandacan Terminals shall be limited to the common and integrated
areas/facilities. A separate agreement covering the commercial and
operational terms and conditions of the joint operations, shall be
entered into by the OIL COMPANIES.
Section 3. - The development and maintenance of the safety and
green buffer zones mentioned therein, which shall be taken from the
properties of the OIL COMPANIES and not from the surrounding
communities, shall be the sole responsibility of the OIL COMPANIES.
The City of Manila and the DOE, on the other hand, committed to do
the following:
Section 1. - The City Mayor shall endorse to the City Council this MOU
for its appropriate action with the view of implementing the spirit and
intent thereof.

Section 2. - The City Mayor and the DOE shall, consistent with the
spirit and intent of this MOU, enable the OIL COMPANIES to
continuously operate in compliance with legal requirements, within the
limited area resulting from the joint operations and the scale down
program.
Section 3. - The DOE and the City Mayor shall monitor the OIL
COMPANIES compliance with the provisions of this MOU.
Section 4. - The CITY OF MANILA and the national government shall
protect the safety buffer and green zones and shall exert all efforts at
preventing future occupation or encroachment into these areas by
illegal settlers and other unauthorized parties.
The Sangguniang Panlungsod ratified the MOU in Resolution No. 97. 7 In
the same resolution, the Sangguniandeclared that the MOU was
effective only for a period of six months starting July 25,
2002.8 Thereafter, on January 30, 2003, the Sanggunian adopted
Resolution No. 139 extending the validity of Resolution No. 97 to April
30, 2003 and authorizing Mayor Atienza to issue special business
permits to the oil companies. Resolution No. 13, s. 2003 also called for
a reassessment of the ordinance.10
Meanwhile, petitioners filed this original action for mandamus on
December 4, 2002 praying that Mayor Atienza be compelled to enforce
Ordinance No. 8027 and order the immediate removal of the terminals
of the oil companies.11
The issues raised by petitioners are as follows:
1. whether respondent has the mandatory legal duty to enforce
Ordinance No. 8027 and order the removal of the Pandacan
Terminals, and
2. whether the June 26, 2002 MOU and the resolutions ratifying
it can amend or repeal Ordinance No. 8027.12
Petitioners contend that respondent has the mandatory legal duty,
under Section 455 (b) (2) of the Local Government Code (RA 7160), 13 to
enforce Ordinance No. 8027 and order the removal of the Pandacan
Terminals of the oil companies. Instead, he has allowed them to stay.
Respondents defense is that Ordinance No. 8027 has been superseded
by the MOU and the resolutions.14However, he also confusingly argues
that the ordinance and MOU are not inconsistent with each other and

that the latter has not amended the former. He insists that the
ordinance remains valid and in full force and effect and that the MOU
did not in any way prevent him from enforcing and implementing it. He
maintains that the MOU should be considered as a mere guideline for
its full implementation.15
Under Rule 65, Section 316 of the Rules of Court, a petition
for mandamus may be filed when any tribunal, corporation, board,
officer or person unlawfully neglects the performance of an act which
the law specifically enjoins as a duty resulting from an office, trust or
station. Mandamus is an extraordinary writ that is employed to compel
the performance, when refused, of a ministerial duty that is already
imposed on the respondent and there is no other plain, speedy and
adequate remedy in the ordinary course of law. The petitioner should
have a well-defined, clear and certain legal right to the performance of
the act and it must be the clear and imperative duty of respondent to
do the act required to be done.17
Mandamus will not issue to enforce a right, or to compel compliance
with a duty, which is questionable or over which a substantial doubt
exists. The principal function of the writ of mandamus is to command
and to expedite, not to inquire and to adjudicate; thus, it is neither the
office nor the aim of the writ to secure a legal right but to implement
that which is already established. Unless the right to the relief sought
is unclouded, mandamus will not issue.18
To support the assertion that petitioners have a clear legal right to the
enforcement of the ordinance, petitioner SJS states that it is a political
party registered with the Commission on Elections and has its offices in
Manila. It claims to have many members who are residents of Manila.
The other petitioners, Cabigao and Tumbokon, are allegedly residents
of Manila.
We need not belabor this point. We have ruled in previous cases that
when a mandamus proceeding concerns a public right and its object is
to compel a public duty, the people who are interested in the execution
of the laws are regarded as the real parties in interest and they need
not show any specific interest.19 Besides, as residents of Manila,
petitioners have a direct interest in the enforcement of the citys
ordinances. Respondent never questioned the right of petitioners to
institute this proceeding.
On the other hand, the Local Government Code imposes upon
respondent the duty, as city mayor, to "enforce all laws and ordinances
relative to the governance of the city.">20 One of these is Ordinance
No. 8027. As the chief executive of the city, he has the duty to enforce

Ordinance No. 8027 as long as it has not been repealed by

theSanggunian or annulled by the courts.21 He has no other choice. It is his ministerial duty
to do so. In Dimaporo v. Mitra, Jr.,22 we stated the reason for this:

These officers cannot refuse to perform their duty on the ground of an

alleged invalidity of the statute imposing the duty. The reason for this
is obvious. It might seriously hinder the transaction of public business
if these officers were to be permitted in all cases to question the
constitutionality of statutes and ordinances imposing duties upon them
and which have not judicially been declared unconstitutional. Officers
of the government from the highest to the lowest are creatures of the
law and are bound to obey it.23
The question now is whether the MOU entered into by respondent with
the oil companies and the subsequent resolutions passed by
the Sanggunian have made the respondents duty to enforce
Ordinance No. 8027 doubtful, unclear or uncertain. This is also
connected to the second issue raised by petitioners, that is, whether
the MOU and Resolution Nos. 97, s. 2002 and 13, s. 2003 of
the Sanggunian can amend or repeal Ordinance No. 8027.
We need not resolve this issue. Assuming that the terms of the MOU
were inconsistent with Ordinance No. 8027, the resolutions which
ratified it and made it binding on the City of Manila expressly gave it
full force and effect only until April 30, 2003. Thus, at present, there
is nothing that legally hinders respondent from enforcing Ordinance
No. 8027.24
Ordinance No. 8027 was enacted right after the Philippines, along with
the rest of the world, witnessed the horror of the September 11, 2001
attack on the Twin Towers of the World Trade Center in New York City.
The objective of the ordinance is to protect the residents of Manila
from the catastrophic devastation that will surely occur in case of a
terrorist attack25 on the Pandacan Terminals. No reason exists why
such a protective measure should be delayed.
WHEREFORE, the petition is hereby GRANTED. Respondent Hon. Jose
L. Atienza, Jr., as mayor of the City of Manila, is directed to immediately
enforce Ordinance No. 8027.
SO ORDERED.

G.R. No. 189793

April 7, 2010

SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE

ROBREDO, Petitioners,
vs.
COMMISSION ON ELECTIONS represented by its Chairman JOSE
A.R. MELO and its Commissioners, RENE V. SARMIENTO,
NICODEMO T. FERRER, LUCENITO N. TAGLE, ARMANDO
VELASCO,
ELIAS
R.
YUSOPH
AND
GREGORIO
LARRAZABAL, Respondents.
DECISION
PEREZ, J.:
This case comes before this Court by way of a Petition for Certiorari
and Prohibition under Rule 65 of the Rules of Court. In this original
action, petitioners Senator Benigno Simeon C. Aquino III and Mayor
Jesse Robredo, as public officers, taxpayers and citizens, seek the
nullification as unconstitutional of Republic Act No. 9716, entitled "An
Act Reapportioning the Composition of the First (1st) and Second (2nd)
Legislative Districts in the Province of Camarines Sur and Thereby
Creating a New Legislative District From Such Reapportionment."
Petitioners consequently pray that the respondent Commission on
Elections be restrained from making any issuances and from taking any
steps relative to the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was
signed into law by President Gloria Macapagal Arroyo on 12 October
2009. It took effect on 31 October 2009, or fifteen (15) days following

its publication in the Manila Standard, a newspaper of general

circulation.1 In substance, the said law created an additional legislative
district for the Province of Camarines Sur by reconfiguring the existing
first and second legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was
estimated to have a population of 1,693,821,2distributed among four
(4) legislative districts in this wise:
District

Municipalities/Cities

1st District

Del
Gallego Libmanan
Ragay
Minalabac
Lupi
Pamplona
Sipocot
Pasacao
Cabusao
San Fernando

2nd District

3rd District

4th District

Gainza
Milaor
Naga
Pili
Ocampo

Canaman
Camaligan
Magarao
Bombon
Calabanga

Caramoan
Garchitorena
Goa
Lagonoy
Presentacion

Sangay
San
Tigaon
Tinamba
Siruma

Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

Population

Del Gallego
Ragay
Lupi
Sipocot
Cabusao

2nd District

Libmanan
Minalabac
Pamplona
Pasacao

429,070

Municipalities/Cities

Populatio
n

San
Fernando
Gainza
Milaor

276,777

(formerly

2nd Naga
Pili
Ocampo
Canaman

Camaligan
Magarao
Bombon
Calabanga

4th District
District)

(formerly

3rd Caramoan
Garchitoren
a
Goa
Lagonoy
Presentacio
n

Sangay
372,548
San
Jose
Tigaon
Tinamba
Siruma

5th District
District)

(formerly

4th Iriga
Baao
Balatan
Bato

Buhi
Bula
Nabua

474,899

Jose 372,548

176,383

3rd District
District)

417,304

Following the enactment of Republic Act No. 9716, the first and second
districts of Camarines Sur were reconfigured in order to create an
additional legislative district for the province. Hence, the first district
municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San
Fernando were combined with the second district municipalities of
Milaor and Gainza to form a new second legislative district. The
following table3 illustrates the reapportionment made by Republic Act
No. 9716:
District

1st District

439,043

429,070

Republic Act No. 9716 is a well-milled legislation. The factual recitals

by both parties of the origins of the bill that became the law show that,
from the filing of House Bill No. 4264 until its approval by the Senate
on a vote of thirteen (13) in favor and two (2) against, the process
progressed step by step, marked by public hearings on the sentiments
and position of the local officials of Camarines Sur on the creation of a
new congressional district, as well as argumentation and debate on the
issue, now before us, concerning the stand of the oppositors of the bill
that a population of at least 250,000 is required by the Constitution for
such new district.4
Petitioner Aquino III was one of two senators who voted against the
approval of the Bill by the Senate. His co-petitioner, Robredo, is the
Mayor of Naga City, which was a part of the former second district from
which the municipalities of Gainza and Milaor were taken for inclusion
in the new second district. No other local executive joined the two;
neither did the representatives of the former third and fourth districts
of the province.

Petitioners contend that the reapportionment introduced by Republic

Act No. 9716, runs afoul of the explicit constitutional standard that
requires a minimum population of two hundred fifty thousand
(250,000) for the creation of a legislative district. 5 The petitioners claim
that the reconfiguration by Republic Act No. 9716 of the first and
second districts of Camarines Sur is unconstitutional, because the
proposed first district will end up with a population of less than
250,000 or only 176,383.

population of fifty five million (55,000,000) for the year

1986.10 According to the petitioners, 55 million people represented by
200 district representatives translates to roughly 250,000 people for
every one (1) representative.11 Thus, the 250,000 population
requirement found in Section 5(3), Article VI of the 1987 Constitution is
actually based on the population constant used by the Constitutional
Commission in distributing the initial 200 legislative seats.

Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as

basis for the cited 250,000 minimum population standard. 6 The
provision reads:

Thus did the petitioners claim that in reapportioning legislative districts

independently from the creation of a province, Congress is bound to
observe a 250,000 population threshold, in the same manner that the
Constitutional Commission did in the original apportionment.

Article VI

Verbatim, the submission is that:

Section 5. (1) x x x x
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory.Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.
(4) x x x x (Emphasis supplied).
The petitioners posit that the 250,000 figure appearing in the abovecited provision is the minimum population requirement for the creation
of a legislative district. 7 The petitioners theorize that, save in the case
of a newly created province, each legislative district created by
Congress must be supported by a minimum population of at least
250,000 in order to be valid.8 Under this view, existing legislative
districts may be reapportioned and severed to form new districts,
provided each resulting district will represent a population of at least
250,000. On the other hand, if the reapportionment would result in the
creation of a legislative seat representing a populace of less than
250,000 inhabitants, the reapportionment must be stricken down as
invalid for non-compliance with the minimum population requirement.
In support of their theory, the petitioners point to what they claim is
the intent of the framers of the 1987 Constitution to adopt a population
minimum of 250,000 in the creation of additional legislative seats. 9 The
petitioners argue that when the Constitutional Commission fixed the
original number of district seats in the House of Representatives to two
hundred (200), they took into account the projected national

1. Republic Act 9716 is unconstitutional because the newly

apportioned first district of Camarines Sur failed to meet the
population requirement for the creation of the legislative
district as explicitly provided in Article VI, Section 5, Paragraphs
(1) and (3) of the Constitution and Section 3 of the Ordinance
appended thereto; and
2. Republic Act 9716 violates the principle of proportional
representation as provided in Article VI, Section 5 paragraphs
(1), (3) and (4) of the Constitution.12
The provision subject of this case states:
Article VI
Section 5. (1) The House of Representatives shall be composed of not
more than two hundred and fifty members, unless otherwise fixed by
law, who shall be elected from legislative districts apportioned among
the provinces, cities and the Metropolitan Manila area in accordance
with the number of their respective inhabitants, and on the basis of a
uniform and progressive ratio, and those who, as provided by law, shall
be elected through a party-list system of registered national, regional
and sectoral parties or organizations.
(2) x x x x
(3) Each legislative district shall comprise, as far as practicable,
contiguous, compact, and adjacent territory. Each city with a
population of at least two hundred fifty thousand, or each
province, shall have at least one representative.

(4) Within three years following the return of every census, the
Congress shall make a reapportionment of legislative districts
based on the standards provided in this section.
On the other hand, the respondents, through the Office of the Solicitor
General, seek the dismissal of the present petition based on procedural
and substantive grounds.
On procedural matters, the respondents argue that the petitioners are
guilty of two (2) fatal technical defects: first, petitioners committed an
error in choosing to assail the constitutionality of Republic Act No. 9716
via the remedy of Certiorari and Prohibition under Rule 65 of the Rules
of Court; and second, the petitioners have no locus standi to question
the constitutionality of Republic Act No. 9716.
On substantive matters, the respondents call attention to an apparent
distinction between cities and provinces drawn by Section 5(3), Article
VI of the 1987 Constitution. The respondents concede the existence of
a 250,000 population condition, but argue that a plain and simple
reading of the questioned provision will show that the same has no
application with respect to the creation of legislative districts in
provinces.13 Rather, the 250,000 minimum population is only a
requirement for the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population
requirement for the reapportionment of districts in provinces.
Therefore, Republic Act No. 9716, which only creates an additional
legislative district within the province of Camarines Sur, should be
sustained as a perfectly valid reapportionment law.
We first pass upon the threshold issues.
The respondents assert that by choosing to avail themselves of the
remedies of Certiorari and Prohibition, the petitioners have committed
a fatal procedural lapse. The respondents cite the following reasons:
1. The instant petition is bereft of any allegation that the
respondents had acted without or in excess of jurisdiction, or
with grave abuse of discretion.1avvphi1
2. The remedy of Certiorari and Prohibition must be directed
against a tribunal, board, officer or person, whether exercising
judicial, quasi-judicial, or ministerial functions. Respondents
maintain that in implementing Republic Act No. 9716, they

were not acting as a judicial or quasi-judicial body, nor were

they engaging in the performance of a ministerial act.
3. The petitioners could have availed themselves of another
plain, speedy and adequate remedy in the ordinary course of
law. Considering that the main thrust of the instant petition is
the declaration of unconstitutionality of Republic Act No. 9716,
the same could have been ventilated through a petition for
declaratory relief, over which the Supreme Court has only
appellate, not original jurisdiction.
The respondents likewise allege that the petitioners had failed to show
that they had sustained, or is in danger of sustaining any substantial
injury as a result of the implementation of Republic Act No. 9716. The
respondents, therefore, conclude that the petitioners lack the required
legal standing to question the constitutionality of Republic Act No.
9716.
This Court has paved the way away from procedural debates when
confronted with issues that, by reason of constitutional importance,
need a direct focus of the arguments on their content and substance.
The Supreme Court has, on more than one occasion, tempered the
application of procedural rules,14 as well as relaxed the requirement of
locus standi whenever confronted with an important issue of
overreaching significance to society.15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation
(PAGCOR)16 and Jaworski v. PAGCOR,17this Court sanctioned momentary
deviation from the principle of the hierarchy of courts, and took original
cognizance of cases raising issues of paramount public importance.
The Jaworski case ratiocinates:
Granting arguendo that the present action cannot be properly treated
as a petition for prohibition, the transcendental importance of the
issues involved in this case warrants that we set aside the technical
defects and take primary jurisdiction over the petition at bar. One
cannot deny that the issues raised herein have potentially pervasive
influence on the social and moral well being of this nation, specially the
youth; hence, their proper and just determination is an imperative
need. This is in accordance with the well-entrenched principle that
rules of procedure are not inflexible tools designed to hinder or delay,
but to facilitate and promote the administration of justice. Their strict
and rigid application, which would result in technicalities that tend to
frustrate, rather than promote substantial justice, must always be
eschewed. (Emphasis supplied)

Anent the locus standi requirement, this Court has already uniformly
ruled
in
Kilosbayan
v.
Guingona,18 Tatad
v.
Executive
Secretary,19 Chavez v. Public Estates Authority 20 and Bagong Alyansang
Makabayan v. Zamora,21 just to name a few, that absence of direct
injury on the part of the party seeking judicial review may be excused
when the latter is able to craft an issue of transcendental importance.
In Lim v. Executive Secretary,22 this Court held that in cases of
transcendental importance, the cases must be settled promptly and
definitely, and so, the standing requirements may be relaxed. This
liberal stance has been echoed in the more recent decision on Chavez
v. Gonzales.23
Given the weight of the issue raised in the instant petition, the
foregoing principles must apply. The beaten path must be taken. We go
directly to the determination of whether or not a population of 250,000
is an indispensable constitutional requirement for the creation of a new
legislative district in a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries
with it the presumption of constitutionality.24Before a law may be
declared unconstitutional by this Court, there must be a clear showing
that a specific provision of the fundamental law has been violated or
transgressed. When there is neither a violation of a specific provision of
the Constitution nor any proof showing that there is such a violation,
the presumption of constitutionality will prevail and the law must be
upheld. To doubt is to sustain.25
There is no specific provision in the Constitution that fixes a 250,000
minimum population that must compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of
Section 5(3), Article VI of the 1987 Constitution, coupled with what
they perceive to be the intent of the framers of the Constitution to
adopt a minimum population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution,
succinctly provides: "Each city with a population of at least two
hundred fifty thousand, or each province, shall have at least one
representative."
The provision draws a plain and clear distinction between the
entitlement of a city to a district on one hand, and the entitlement of a
province to a district on the other. For while a province is entitled to at

least a representative, with nothing mentioned about population, a city

must first meet a population minimum of 250,000 in order to be
similarly entitled.
The use by the subject provision of a comma to separate the phrase
"each city with a population of at least two hundred fifty thousand"
from the phrase "or each province" point to no other conclusion than
that the 250,000 minimum population is only required for a city, but
not for a province. 26
Plainly read, Section 5(3) of the Constitution requires a 250,000
minimum population only for a city to be entitled to a representative,
but not so for a province.
The 250,000 minimum population requirement for legislative districts
in cities was, in turn, the subject of interpretation by this Court in
Mariano, Jr. v. COMELEC.27
In Mariano, the issue presented was the constitutionality of Republic
Act No. 7854, which was the law that converted the Municipality of
Makati into a Highly Urbanized City. As it happened, Republic Act No.
7854 created an additional legislative district for Makati, which at that
time was a lone district. The petitioners in that case argued that the
creation of an additional district would violate Section 5(3), Article VI of
the Constitution, because the resulting districts would be supported by
a population of less than 250,000, considering that Makati had a total
population of only 450,000. The Supreme Court sustained the
constitutionality of the law and the validity of the newly created
district, explaining the operation of the Constitutional phrase "each city
with a population of at least two hundred fifty thousand," to wit:
Petitioners cannot insist that the addition of another legislative district
in Makati is not in accord with section 5(3), Article VI of the
Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said
section provides, inter alia, that a city with a population of at least two
hundred
fifty
thousand (250,000)
shall
have at
least
one
representative. Even granting that the population of Makati as of the
1990 census stood at four hundred fifty thousand (450,000), its
legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In
fact, Section 3 of the Ordinance appended to the Constitution provides
that a city whose population has increased to more than two hundred
fifty thousand (250,000) shall be entitled to at least one congressional
representative.28(Emphasis supplied)

The Mariano case limited the application of the 250,000 minimum

population requirement for cities only to its initial legislative district. In
other words, while Section 5(3), Article VI of the Constitution requires a
city to have a minimum population of 250,000 to be entitled to a
representative, it does not have to increase its population by another
250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation
of an additional district within a city, should not be applied to
additional districts in provinces. Indeed, if an additional legislative
district created within a city is not required to represent a population of
at least 250,000 in order to be valid, neither should such be needed for
an additional district in a province, considering moreover that a
province is entitled to an initial seat by the mere fact of its creation
and regardless of its population.
Apropos for discussion is the provision of the Local Government Code
on the creation of a province which, by virtue of and upon creation, is
entitled to at least a legislative district. Thus, Section 461 of the Local
Government Code states:
Requisites for Creation. (a) A province may be created if it has an
average annual income, as certified by the Department of Finance, of
not less than Twenty million pesos (P20,000,000.00) based on 1991
constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000)
square kilometers, as certified by the Lands Management
Bureau; or
(ii) a population of not less than two hundred fifty thousand
(250,000) inhabitants as certified by the National Statistics
Office.
Notably, the requirement of population is not an indispensable
requirement, but is merely an alternative addition to the indispensable
income requirement.
Mariano, it would turn out, is but a reflection of the pertinent ideas that
ran through the deliberations on the words and meaning of Section 5 of
Article VI.
The whats, whys, and wherefores of the population requirement of "at
least two hundred fifty thousand" may be gleaned from the records of
the Constitutional Commission which, upon framing the provisions of

Section 5 of Article VI, proceeded to form an ordinance that would be

appended to the final document. The Ordinance is captioned
"APPORTIONING THE SEATS OF THE HOUSE OF REPRESENTATIVES OF
THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT LEGISLATIVE
DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA
AREA." Such records would show that the 250,000 population
benchmark was used for the 1986 nationwide apportionment of
legislative districts among provinces, cities and Metropolitan Manila.
Simply put, the population figure was used to determine how
many districts a province, city, or Metropolitan Manila should
have. Simply discernible too is the fact that, for the purpose,
population had to be the determinant. Even then, the requirement of
250,000 inhabitants was not taken as an absolute minimum for one
legislative district. And, closer to the point herein at issue, in the
determination of the precise district within the province to which,
through the use of the population benchmark, so many districts have
been apportioned, population as a factor was not the sole,though it
was among, several determinants.
From its journal,29 we can see that the Constitutional Commission
originally divided the entire country into two hundred (200) districts,
which corresponded to the original number of district representatives.
The 200 seats were distributed by the Constitutional Commission in
this manner: first, one (1) seat each was given to the seventy-three
(73) provinces and the ten (10) cities with a population of at least
250,000;30 second, the remaining seats were then redistributed among
the provinces, cities and the Metropolitan Area "in accordance with the
number of their inhabitants on the basis of a uniform and progressive
ratio."31 Commissioner Davide, who later became a Member and then
Chief Justice of the Court, explained this in his sponsorship remark 32 for
the Ordinance to be appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of
legislative seats which are, in turn, apportioned among provinces and
cities with a population of at least 250, 000 and the Metropolitan Area
in accordance with the number of their respective inhabitants on the
basis of a uniform and progressive ratio. The population is based on
the 1986 projection, with the 1980 official enumeration as the point of
reckoning. This projection indicates that our population is more or less
56 million. Taking into account the mandate that each city with at least
250, 000 inhabitants and each province shall have at least one
representative, we first allotted one seat for each of the 73 provinces,
and each one for all cities with a population of at least 250, 000, which
are the Cities of Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod,
Cagayan de Oro, Davao and Zamboanga. Thereafter, we then
proceed[ed] to increase whenever appropriate the number of seats for
the provinces and cities in accordance with the number of their

inhabitants on the basis of a uniform and progressive ratio. (Emphasis

supplied).

whose inhabitants are not interested in politics. He then suggested that

Puerto Princesa be included in the south or the Second District.

Thus was the number of seats computed for each province and city.
Differentiated from this, the determination of the districts within the
province had to consider "all protests and complaints formally
received" which, the records show, dealt with determinants other than
population as already mentioned.

Mr. Davide stated that the proposal would be considered during the
period of amendments. He requested that the COMELEC staff study
said proposal.33

Palawan is a case in point. Journal No. 107 of the Constitutional

Commission narrates:

On the districting of Palawan, Mr. Nolledo pointed out that it was

explained in the interpellations that District I has a total population of
265,358 including the City of Puerto Princesa, while the Second District
has a total population of 186,733. He proposed, however, that Puerto
Princesa be included in the Second District in order to satisfy the
contiguity requirement in the Constitution considering that said City is
nearer the southern towns comprising the Second District.

INTERPELLATION OF MR. NOLLEDO:

Mr. Nolledo inquired on the reason for including Puerto Princesa in the
northern towns when it was more affinity with the southern town of
Aborlan, Batarasa, Brookes Point, Narra, Quezon and Marcos. He
stated that the First District has a greater area than the Second
District. He then queried whether population was the only factor
considered by the Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into
account the standards set in Section 5 of the Article on the Legislative
Department, namely: 1) the legislative seats should be apportioned
among the provinces and cities and the Metropolitan Manila area in
accordance with their inhabitants on the basis of a uniform and
progressive ratio; and 2) the legislative district must be compact,
adjacent and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto
Princesa was included with the northern towns. He then inquired what
is the distance between Puerto Princesa from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of
75,480 and based on the apportionment, its inclusion with the northern
towns would result in a combined population of 265,000 as against
only 186,000 for the south. He added that Cuyo and Coron are very
important towns in the northern part of Palawan and, in fact, Cuyo was
the capital of Palawan before its transfer to Puerto Princesa. He also
pointed out that there are more potential candidates in the north and
therefore if Puerto Princesa City and the towns of Cuyo and Coron are
lumped together, there would be less candidates in the south, most of

"PROPOSED AMENDMENT OF MR. NOLLEDO

In reply to Mr. Monsods query, Mr. Nolledo explained that with the
proposed transfer of Puerto Princesa City to the Second District, the
First District would only have a total population of 190,000 while the
Second District would have 262,213, and there would be no substantial
changes.
Mr. Davide accepted Mr. Nolledos proposal to insert Puerto Princesa
City before the Municipality of Aborlan.
There being no objection on the part of the Members the same was
approved by the Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being
no objection, the apportionment and districting for the province of
Palawan was approved by the Body.34
The districting of Palawan disregarded the 250,000 population figure. It
was decided by the importance of the towns and the city that
eventually composed the districts.
Benguet and Baguio are another reference point. The Journal further
narrates:

At this juncture, Mr. Davide informed the Body that Mr. Regalado made
a reservation with the Committee for the possible reopening of the
approval of Region I with respect to Benguet and Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio
City and Tuba are placed in one district. He stated that he was toying
with the idea that, perhaps as a special consideration for Baguio
because it is the summer capital of the Philippines, Tuba could be
divorced from Baguio City so that it could, by itself, have its own
constituency and Tuba could be transferred to the Second District
together with Itogon. Mr. Davide, however, pointed out that the
population of Baguio City is only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be
lower during certain times of the year, but the transient population
would increase the population substantially and, therefore, for
purposes of business and professional transactions, it is beyond
question that population-wise, Baguio would more than qualify, not to
speak of the official business matters, transactions and offices that are
also there.
Mr. Davide adverted to Director de Limas statement that unless Tuba
and Baguio City are united, Tuba will be isolated from the rest of
Benguet as the place can only be reached by passing through Baguio
City. He stated that the Committee would submit the matter to the
Body.
Upon inquiry of the Chair whether he is insisting on his amendment,
Mr. Regalado stated that the Body should have a say on the matter and
that the considerations he had given are not on the demographic
aspects but on the fact that Baguio City is the summer capital, the
venue and situs of many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved
the reconsideration of the earlier approval of the apportionment and
districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the
amendment of Mr. Regalado was put to a vote. With 14 Members
voting in favor and none against, the amendment was approved by the
Body.

Mr. Davide informed that in view of the approval of the amendment,

Benguet with Baguio City will have two seats. The First District shall
comprise of the municipalities of Mankayan, Buguias, Bakun, Kabayan,
Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon
and Tuba. The Second District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and
districting of Region I.35
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was
divided into districts based on the distribution of its three cities, with
each district having a city: one district "supposed to be a fishing area;
another a vegetable and fruit area; and the third, a rice growing area,"
because such consideration "fosters common interests in line with the
standard of compactness."36 In the districting of Maguindanao, among
the matters discussed were "political stability and common interest
among the people in the area" and the possibility of "chaos and
disunity" considering the "accepted regional, political, traditional and
sectoral leaders."37 For Laguna, it was mentioned that municipalities in
the highland should not be grouped with the towns in the lowland. For
Cebu, Commissioner Maambong proposed that they should "balance
the area and population."38
Consistent with Mariano and with the framer deliberations on district
apportionment, we stated in Bagabuyo v. COMELEC39 that:
x x x Undeniably, these figures show a disparity in the population sizes
of the districts. The Constitution, however, does not require
mathematical exactitude or rigid equality as a standard in gauging
equality of representation. x x x. To ensure quality representation
through commonality of interests and ease of access by the
representative to the constituents, all that the Constitution requires is
that every legislative district should comprise, as far as practicable,
contiguous, compact and adjacent territory. (Emphasis supplied).
This 2008 pronouncement is fresh reasoning against the
uncompromising stand of petitioner that an additional provincial
legislative district, which does not have at least a 250,000 population
is not allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.

Neither in the text nor in the essence of Section 5, Article VI of the

Constitution can, the petition find support. And the formulation of the
Ordinance in the implementation of the provision, nay, even the
Ordinance itself, refutes the contention that a population of 250,000 is
a constitutional sine qua non for the formation of an additional
legislative district in a province, whose population growth has
increased beyond the 1986 numbers.
Translated in the terms of the present case:
1. The Province of Camarines Sur, with an estimated population
of 1,693,821 in 2007 is based on the formula and constant
number of 250,000 used by the Constitutional Commission in
nationally apportioning legislative districts among provinces
and cities entitled to two (2) districts in addition to the four
(4) that it was given in the 1986 apportionment. Significantly,
petitioner Aquino concedes this point.40 In other words, Section
5 of Article VI as clearly written allows and does not prohibit an
additional district for the Province of Camarines Sur, such as
that provided for in Republic Act No. 9786;
2. Based on the pith and pitch of the exchanges on the
Ordinance on the protests and complaints against strict
conformity with the population standard, and more importantly
based on the final districting in the Ordinance on
considerations other than population, the reapportionment or
the recomposition of the first and second legislative districts in
the Province of Camarines Sur that resulted in the creation of a
new legislative district is valid even if the population of the new
district is 176,383 and not 250,000 as insisted upon by the
petitioners.
3. The factors mentioned during the deliberations on House Bill
No. 4264, were:
(a) the dialects spoken in the grouped municipalities;
(b) the size of the original groupings compared to that
of the regrouped municipalities;
(c) the natural division separating the municipality
subject of the discussion from the reconfigured District
One; and

(d) the balancing of the areas of the three districts

resulting from the redistricting of Districts One and
Two.41
Each of such factors and in relation to the others considered together,
with the increased population of the erstwhile Districts One and Two,
point to the utter absence of abuse of discretion, much less grave
abuse of discretion,42 that would warrant the invalidation of Republic
Act No. 9716.
To be clear about our judgment, we do not say that in the
reapportionment of the first and second legislative districts of
Camarines Sur, the number of inhabitants in the resulting additional
district should not be considered. Our ruling is that population is not
the only factor but is just one of several other factors in the
composition of the additional district. Such settlement is in accord with
both the text of the Constitution and the spirit of the letter, so very
clearly given form in the Constitutional debates on the exact issue
presented by this petition.1avvphi1
WHEREFORE, the petition is hereby DISMISSED. Republic Act No.
9716 entitled "An Act Reapportioning the Composition of the First (1st)
and Second (2nd) Legislative Districts in the Province of Camarines Sur
and Thereby Creating a New Legislative District From Such
Reapportionment" is a VALID LAW.
SO ORDERED.

EN BANC
G.R. No. 163072

April 2, 2009

MANILA
INTERNATIONAL
AIRPORT
AUTHORITY, Petitioner,
vs.
CITY OF PASAY, SANGGUNIANG PANGLUNGSOD NG PASAY, CITY
MAYOR OF PASAY, CITY TREASURER OF PASAY, and CITY
ASSESSOR OF PASAY, Respondents.
DECISION
CARPIO, J.:
This is a petition for review on certiorari1 of the Decision2 dated 30
October 2002 and the Resolution dated 19 March 2004 of the Court of
Appeals in CA-G.R. SP No. 67416.
The Facts
Petitioner Manila International Airport Authority (MIAA) operates and
administers the Ninoy Aquino International Airport (NAIA) Complex
under Executive Order No. 903 (EO 903), 3 otherwise known as the
Revised Charter of the Manila International Airport Authority. EO 903
was issued on 21 July 1983 by then President Ferdinand E. Marcos.
Under Sections 34 and 225 of EO 903, approximately 600 hectares of
land, including the runways, the airport tower, and other airport
buildings, were transferred to MIAA. The NAIA Complex is located along
the border between Pasay City and Paraaque City.
On 28 August 2001, MIAA received Final Notices of Real Property Tax
Delinquency from the City of Pasay for the taxable years 1992 to 2001.
MIAAs real property tax delinquency for its real properties located in
NAIA Complex, Ninoy Aquino Avenue, Pasay City (NAIA Pasay
properties) is tabulated as follows:
TAX
TAXABL
DECLAE YEAR
RATION

TAX DUE

PENALTY

TOTAL

A7183-

243,522,855.0
0

123,351,728.1
8

366,874,583.18

19972001

the NAIA Pasay properties if the delinquent real property taxes remain
unpaid.

08346
A718305224

19922001

113,582,466.0
0

71,159,414.98

184,741,880.98

A719100843

19922001

54,454,800.00

34,115,932.20

88,570,732.20

A719100140

19922001

1,632,960.00

1,023,049.44

2,656,009.44

A719100139

19922001

6,068,448.00

3,801,882.85

9,870,330.85

A718305409

19922001

59,129,520.00

37,044,644.28

96,174,164.28

A718305410

19922001

20,619,720.00

12,918,254.58

33,537,974.58

A718305413

19922001

7,908,240.00

4,954,512.36

12,862,752.36

A718305412

19922001

18,441,981.20

11,553,901.13

29,995,882.33

A718305411

19922001

109,946,736.0
0

68,881,630.13

178,828,366.13

A718305245

19922001

On 29 October 2001, MIAA filed with the Court of Appeals a petition for
prohibition and injunction with prayer for preliminary injunction or
temporary restraining order. The petition sought to enjoin the City of
Pasay from imposing real property taxes on, levying against, and
auctioning for public sale the NAIA Pasay properties.
On 30 October 2002, the Court of Appeals dismissed the petition and
upheld the power of the City of Pasay to impose and collect realty
taxes on the NAIA Pasay properties. MIAA filed a motion for
reconsideration, which the Court of Appeals denied. Hence, this
petition.
The Court of Appeals Ruling

GRAND TOTAL

The Court of Appeals held that Sections 193 and 234 of Republic Act
No. 7160 or the Local Government Code, which took effect on 1
January 1992, withdrew the exemption from payment of real property
taxes granted to natural or juridical persons, including governmentowned or controlled corporations, except local water districts,
cooperatives duly registered under Republic Act No. 6938, non-stock
and non-profit hospitals and educational institutions. Since MIAA is a
government-owned corporation, it follows that its tax exemption under
Section 21 of EO 903 has been withdrawn upon the effectivity of the
Local Government Code.
The Issue
The issue raised in this petition is whether the NAIA Pasay properties of
MIAA are exempt from real property tax.
The Courts Ruling

7,440,000.00

4,661,160.00

12,101,160.00
The petition is meritorious.

P642,747,726.
20

P373,466,110.
13

P1,016,213,836.
33

On 24 August 2001, the City of Pasay, through its City Treasurer, issued
notices of levy and warrants of levy for the NAIA Pasay properties.
MIAA received the notices and warrants of levy on 28 August 2001.
Thereafter, the City Mayor of Pasay threatened to sell at public auction

In ruling that MIAA is not exempt from paying real property tax, the
Court of Appeals cited Sections 193 and 234 of the Local Government
Code which read:
SECTION 193. Withdrawal of Tax Exemption Privileges. Unless
otherwise provided in this Code, tax exemptions or incentives granted
to, or presently enjoyed by all persons, whether natural or juridical,
including government-owned or controlled corporations, except local

water districts, cooperatives duly registered under R.A. No. 6938, nonstock and non-profit hospitals and educational institutions, are hereby
withdrawn upon the effectivity of this Code.
SECTION 234. Exemptions from Real Property Tax. The following are
exempted from payment of the real property tax:
(a) Real property owned by the Republic of the Philippines or
any of its political subdivisions except when the beneficial use
thereof has been granted, for consideration or otherwise to a
taxable person;
(b) Charitable institutions, churches, parsonages or convents
appurtenant thereto, mosques, non-profit or religious
cemeteries and all lands, buildings and improvements actually,
directly, and exclusively used for religious, charitable or
educational purposes;
(c) All machineries and equipment that are actually, directly
and exclusively used by local water districts and government
owned or controlled corporations engaged in the supply and
distribution of water and/or generation and transmission of
electric power;
(d) All real property owned by duly registered cooperatives as
provided for under R.A. No. 6938; and
(e) Machinery and equipment used for pollution control and
environment protection.
Except as provided herein, any exemption from payment of real
property tax previously granted to, or presently enjoyed by, all
persons, whether natural or juridical, including all government-owned
or controlled corporations are hereby withdrawn upon the effectivity of
this Code.
The Court of Appeals held that as a government-owned corporation,
MIAAs tax exemption under Section 21 of EO 903 has already been
withdrawn upon the effectivity of the Local Government Code in 1992.
In Manila International Airport Authority v. Court of Appeals6 (2006
MIAA case), this Court already resolved the issue of whether the airport
lands and buildings of MIAA are exempt from tax under existing laws.
The 2006 MIAA case originated from a petition for prohibition and
injunction which MIAA filed with the Court of Appeals, seeking to

restrain the City of Paraaque from imposing real property tax on,
levying against, and auctioning for public sale the airport lands and
buildings located in Paraaque City. The only difference between the
2006 MIAA case and this case is that the 2006 MIAA case involved
airport lands and buildings located in Paraaque City while this case
involved airport lands and buildings located in Pasay City. The 2006
MIAA case and this case raised the same threshold issue: whether the
local government can impose real property tax on the airport lands,
consisting mostly of the runways, as well as the airport buildings, of
MIAA. In the 2006 MIAA case, this Court held:
To summarize, MIAA is not a government-owned or controlled
corporation under Section 2(13) of the Introductory Provisions of the
Administrative Code because it is not organized as a stock or non-stock
corporation. Neither is MIAA a government-owned or controlled
corporation under Section 16, Article XII of the 1987 Constitution
because MIAA is not required to meet the test of economic viability.
MIAA is a government instrumentality vested with corporate powers
and performing essential public services pursuant to Section 2(10) of
the Introductory Provisions of the Administrative Code. As a
government instrumentality, MIAA is not subject to any kind of tax by
local governments under Section 133(o) of the Local Government
Code. The exception to the exemption in Section 234(a) does not apply
to MIAA because MIAA is not a taxable entity under the Local
Government Code. Such exception applies only if the beneficial use of
real property owned by the Republic is given to a taxable entity.
Finally, the Airport Lands and Buildings of MIAA are properties devoted
to public use and thus are properties of public dominion. Properties of
public dominion are owned by the State or the Republic. Article 420 of
the Civil Code provides:
Art. 420. The following things are property of public dominion:
(1) Those intended for public use, such as roads, canals,
rivers, torrents, ports and bridgesconstructed by the State,
banks, shores, roadsteads, and others of similar character;
(2) Those which belong to the State, without being for public
use, and are intended for some public service or for the
development of the national wealth.
The term "ports x x x constructed by the State" includes airports and
seaports. The Airport Lands and Buildings of MIAA are intended for
public use, and at the very least intended for public service. Whether
intended for public use or public service, the Airport Lands and

Buildings are properties of public dominion. As properties of public

dominion, the Airport Lands and Buildings are owned by the Republic
and thus exempt from real estate tax under Section 234(a) of the Local
Government Code.7 (Emphasis in the original)
The definition of "instrumentality" under Section 2(10) of the
Introductory Provisions of the Administrative Code of 1987 uses the
phrase "includes x x x government-owned or controlled corporations"
which means that a government "instrumentality" may or may not be a
"government-owned or controlled corporation." Obviously, the term
government "instrumentality" is broader than the term "governmentowned or controlled corporation." Section 2(10) provides:
SEC. 2. General Terms Defined. x x x

that will not

corporation."

qualify

as

"government-owned

or

controlled

A close scrutiny of the definition of "government-owned or controlled

corporation" in Section 2(13) will show that MIAA would not fall under
such definition. MIAA is a government "instrumentality" that
does not qualify as a "government-owned or controlled
corporation." As explained in the 2006 MIAA case:
A government-owned or controlled corporation must be "organized as
a stock or non-stock corporation." MIAA is not organized as a stock or
non-stock corporation. MIAA is not a stock corporation because it has
no capital stock divided into shares. MIAA has no stockholders or
voting shares. x x x

(10) Instrumentality refers to any agency of the national Government,

not integrated within the department framework, vested with special
functions or jurisdiction by law, endowed with some if not all corporate
powers, administering special funds, and enjoying operational
autonomy, usually through a charter. This term includes regulatory
agencies, chartered institutions and government-owned or controlled
corporations.

Section 3 of the Corporation Code defines a stock corporation as one

whose "capital stock is divided into shares and x x x authorized to
distribute to the holders of such shares dividends x x x." MIAA has
capital but it is not divided into shares of stock. MIAA has no
stockholders or voting shares. Hence, MIAA is not a stock corporation.

The term "government-owned or controlled corporation" has a

separate definition under Section 2(13)8 of the Introductory Provisions
of the Administrative Code of 1987:

MIAA is also not a non-stock corporation because it has no members.

Section 87 of the Corporation Code defines a non-stock corporation as
"one where no part of its income is distributable as dividends to its
members, trustees or officers." A non-stock corporation must have
members. Even if we assume that the Government is considered as the
sole member of MIAA, this will not make MIAA a non-stock corporation.
Non-stock corporations cannot distribute any part of their income to
their members. Section 11 of the MIAA Charter mandates MIAA to
remit 20% of its annual gross operating income to the National
Treasury. This prevents MIAA from qualifying as a non-stock
corporation.

SEC. 2. General Terms Defined. x x x

(13) Government-owned or controlled corporation refers to any agency
organized as a stock or non-stock corporation, vested with functions
relating to public needs whether governmental or proprietary in nature,
and owned by the Government directly or through its instrumentalities
either wholly, or, where applicable as in the case of stock corporations,
to the extent of at least fifty-one (51) percent of its capital
stock: Provided, That government-owned or controlled corporations
may further be categorized by the department of Budget, the Civil
Service Commission, and the Commission on Audit for the purpose of
the exercise and discharge of their respective powers, functions and
responsibilities with respect to such corporations.
The fact that two terms have separate definitions means that while a
government "instrumentality" may include a "government-owned or
controlled corporation," there may be a government "instrumentality"

xxx

Section 88 of the Corporation Code provides that non-stock

corporations are "organized for charitable, religious, educational,
professional, cultural, recreational, fraternal, literary, scientific, social,
civil service, or similar purposes, like trade, industry, agriculture and
like chambers." MIAA is not organized for any of these purposes. MIAA,
a public utility, is organized to operate an international and domestic
airport for public use.

Since MIAA is neither a stock nor a non-stock corporation, MIAA does

not qualify as a government-owned or controlled corporation. What
then is the legal status of MIAA within the National Government?

Pasay on the NAIA Pasay properties of the Manila International Airport

Authority, except for the portions that the Manila International Airport
Authority has leased to private parties.

MIAA is a government instrumentality vested with corporate powers to

perform efficiently its governmental functions. MIAA is like any other
government instrumentality, the only difference is that MIAA is vested
with corporate powers. x x x

No costs.
SO ORDERED.

When the law vests in a government instrumentality corporate powers,

the instrumentality does not become a corporation. Unless the
government instrumentality is organized as a stock or non-stock
corporation, it remains a government instrumentality exercising not
only governmental but also corporate powers. Thus, MIAA exercises the
governmental powers of eminent domain, police authority and the
levying of fees and charges. At the same time, MIAA exercises "all the
powers of a corporation under the Corporation Law, insofar as these
powers are not inconsistent with the provisions of this Executive
Order."9
Thus, MIAA is not a government-owned or controlled corporation but a
government instrumentality which is exempt from any kind of tax from
the local governments. Indeed, the exercise of the taxing power of
local government units is subject to the limitations enumerated in
Section 133 of the Local Government Code. 10 Under Section 133(o)11of
the Local Government Code, local government units have no power to
tax instrumentalities of the national government like the MIAA. Hence,
MIAA is not liable to pay real property tax for the NAIA Pasay
properties.
Furthermore, the airport lands and buildings of MIAA are properties of
public dominion intended for public use, and as such are exempt from
real property tax under Section 234(a) of the Local Government Code.
However, under the same provision, if MIAA leases its real property to
a taxable person, the specific property leased becomes subject to real
property tax.12 In this case, only those portions of the NAIA Pasay
properties which are leased to taxable persons like private parties are
subject to real property tax by the City of Pasay.
WHEREFORE, we GRANT the petition. We SET ASIDE the Decision
dated 30 October 2002 and the Resolution dated 19 March 2004 of the
Court of Appeals in CA-G.R. SP No. 67416. We DECLARE the NAIA
Pasay
properties
of
the
Manila
International
Airport
Authority EXEMPT from real property tax imposed by the City of Pasay.
We declare VOID all the real property tax assessments, including the
final notices of real property tax delinquencies, issued by the City of

G.R. No. 155491

July 21, 2009

SMART
COMMUNICATIONS,
INC., Petitioner,
vs.
THE CITY OF DAVAO, represented herein by its Mayor Hon.
RODRIGO DUTERTE, and the SANGGUNIANG PANLUNSOD OF
DAVAO CITY, Respondents.
RESOLUTION

NACHURA, J.:
Before the Court is a Motion for Reconsideration1 filed by Smart
Communications, Inc. (Smart) of the Decision 2 of the Court dated
September 16, 2008, denying its appeal of the Decision and Order of
the Regional Trial Court (RTC) of Davao City, dated July 19, 2002 and
September 26, 2002, respectively.

to Section 2 of Executive Order No. 72 unless the latter enactment is

amended or repealed, in which case the amendment or repeal shall be
applicable thereto.
xxx5
Section 23 of RA 7925, otherwise known as the most favored treatment
clause or equality clause, contains the word "exemption," viz.:

Briefly, the factual antecedents are as follows:

On February 18, 2002, Smart filed a special civil action for declaratory
relief3 for the ascertainment of its rights and obligations under the Tax
Code of the City of Davao, which imposes a franchise tax on
businesses enjoying a franchise within the territorial jurisdiction of
Davao. Smart avers that its telecenter in Davao City is exempt from
payment of franchise tax to the City.
On July 19, 2002, the RTC rendered a Decision denying the petition.
Smart filed a motion for reconsideration, which was denied by the trial
court in an Order dated September 26, 2002. Smart filed an appeal
before this Court, but the same was denied in a decision dated
September 16, 2008. Hence, the instant motion for reconsideration
raising the following grounds: (1) the "in lieu of all taxes" clause in
Smarts franchise, Republic Act No. 7294 (RA 7294), covers local taxes;
the rule of strict construction against tax exemptions is not applicable;
(2) the "in lieu of all taxes" clause is not rendered ineffective by the
Expanded VAT Law; (3) Section 23 of Republic Act No. 7925 4 (RA 7925)
includes a tax exemption; and (4) the imposition of a local franchise
tax on Smart would violate the constitutional prohibition against
impairment of the obligation of contracts.
Section 9 of RA 7294 and Section 23 of RA 7925 are once again put in
issue. Section 9 of Smarts legislative franchise contains the
contentious "in lieu of all taxes" clause. The Section reads:
Section 9. Tax provisions. The grantee, its successors or assigns
shall be liable to pay the same taxes on their real estate buildings and
personal property, exclusive of this franchise, as other persons or
corporations which are now or hereafter may be required by law to pay.
In addition thereto, the grantee, its successors or assigns shall pay a
franchise tax equivalent to three percent (3%) of all gross receipts of
the business transacted under this franchise by the grantee, its
successors or assigns and the said percentage shall be in lieu of all
taxes on this franchise or earnings thereof: Provided, That the grantee,
its successors or assigns shall continue to be liable for income taxes
payable under Title II of the National Internal Revenue Code pursuant

SEC. 23. Equality of Treatment in the Telecommunications Industry

Any advantage, favor, privilege, exemption, or immunity granted under
existing franchises, or may hereafter be granted, shall ipso facto
become part of previously granted telecommunications franchises and
shall be accorded immediately and unconditionally to the grantees of
such franchises: Provided, however, That the foregoing shall neither
apply to nor affect provisions of telecommunications franchises
concerning territory covered by the franchise, the life span of the
franchise, or the type of the service authorized by the franchise.6
A review of the recent decisions of the Court on the matter of
exemptions from local franchise tax and the interpretation of the word
"exemption" found in Section 23 of RA 7925 is imperative in order to
resolve this issue once and for all.
In Digital Telecommunications Philippines, Inc. (Digitel) v. Province of
Pangasinan,7 Digitel used as an argument the "in lieu of all taxes"
clauses/provisos found in the legislative franchises of Globe, 8 Smart
and Bell,9 vis--visSection 23 of RA 7925, in order to claim exemption
from the payment of local franchise tax. Digitel claimed, just like the
petitioner in this case, that it was exempt from the payment of any
other taxes except the national franchise and income taxes. Digitel
alleged that Smart was exempted from the payment of local franchise
tax.
However, it failed to substantiate its allegation, and, thus, the Court
denied Digitels claim for exemption from provincial franchise tax.
Cited was the ruling of the Court in PLDT v. City of Davao, 10 wherein the
Court, speaking through Mr. Justice Vicente V. Mendoza, held that in
approving Section 23 of RA No. 7925, Congress did not intend it to
operate as a blanket tax exemption to all telecommunications entities.
Section 23 cannot be considered as having amended PLDTs franchise
so as to entitle it to exemption from the imposition of local franchise
taxes. The Court further held that tax exemptions are highly disfavored
and that a tax exemption must be expressed in the statute in clear
language that leaves no doubt of the intention of the legislature to
grant such exemption. And, even in the instances when it is granted,

the exemption must be interpreted in strictissimi juris against the

taxpayer and liberally in favor of the taxing authority.
The Court also clarified the meaning of the word "exemption" in
Section 23 of RA 7925: that the word "exemption" as used in the
statute refers or pertains merely to an exemption from regulatory or
reporting requirements of the Department of Transportation and
Communication or the National Transmission Corporation and not to an
exemption from the grantees tax liability.
In Philippine Long Distance Telephone Company (PLDT) v. Province of
Laguna,11 PLDT was a holder of a legislative franchise under Act No.
3436, as amended. On August 24, 1991, the terms and conditions of its
franchise were consolidated under Republic Act No. 7082, Section 12 of
which embodies the so-called "in-lieu-of-all taxes" clause. Under the
said Section, PLDT shall pay a franchise tax equivalent to three percent
(3%) of all its gross receipts, which franchise tax shall be "in lieu of all
taxes." The issue that the Court had to resolve was whether PLDT was
liable to pay franchise tax to the Province of Laguna in view of the "in
lieu of all taxes" clause in its franchise and Section 23 of RA
7925.lawph!l
Applying the rule of strict construction of laws granting tax exemptions
and the rule that doubts are resolved in favor of municipal corporations
in interpreting statutory provisions on municipal taxing powers, the
Court held that Section 23 of RA 7925 could not be considered as
having amended petitioner's franchise so as to entitle it to exemption
from the imposition of local franchise taxes.
In ruling against the claim of PLDT, the Court cited the previous
decisions in PLDT v. City of Davao 12 and PLDT v. City of Bacolod, 13 in
denying the claim for exemption from the payment of local franchise
tax.
In sum, the aforecited jurisprudence suggests that aside from the
national franchise tax, the franchisee is still liable to pay the local
franchise tax, unless it is expressly and unequivocally exempted from
the payment thereof under its legislative franchise. The "in lieu of all
taxes" clause in a legislative franchise should categorically state that
the exemption applies to both local and national taxes; otherwise, the
exemption claimed should be strictly construed against the taxpayer
and liberally in favor of the taxing authority.
Republic Act No. 7716, otherwise known as the "Expanded VAT Law,"
did not remove or abolish the payment of local franchise tax. It merely
replaced the national franchise tax that was previously paid by

telecommunications franchise holders and in its stead imposed a ten

percent (10%) VAT in accordance with Section 108 of the Tax Code. VAT
replaced the national franchise tax, but it did not prohibit nor abolish
the imposition of local franchise tax by cities or municipaties.
The power to tax by local government units emanates from Section 5,
Article X of the Constitution which empowers them to create their own
sources of revenues and to levy taxes, fees and charges subject to
such guidelines and limitations as the Congress may provide. The
imposition of local franchise tax is not inconsistent with the advent of
the VAT, which renders functus officio the franchise tax paid to the
national government. VAT inures to the benefit of the national
government, while a local franchise tax is a revenue of the local
government unit.
WHEREFORE, the motion for reconsideration is DENIED, and this denial
is final.
SO ORDERED.

SECOND DIVISION
JOEPHIL C. BIEN,

Petitioner,

G.R. No. 179333

Present:
CARPIO, J.,
Chairperson,
NACHURA,
PERALTA,
ABAD and
MENDOZA, JJ.

- versus -

PEDRO B. BO,
Respondent.

Promulgated:
August 3, 2010

x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before us is a petition for review on certiorari challenging the Court of
Appeals (CA) decision in CA-G.R SP No. 92874 [1] which affirmed in
toto the decision of the Deputy Ombudsman for Luzon in OMB-L-A-040488-H finding petitioner administratively liable for Abuse of Authority.
[2]

The factual antecedents, summarized by the CA, follow:

[Respondent Pedro B. Bo], since 1993, has applied with

the Department of Environment and Natural Resources
Community Environment and Natural Resources Office
(DENR-CENRO) Legazpi City for the lease of a 10,000
square meter foreshore lot in Palale Beach, Bgy. San
Isidro, Ilawod. Pending his application, he introduced
improvements in the area necessary in putting up and
in running a beach resort, secured DENR approval of his
survey plan, obtained a barangay permit to operate his
business, and paid the corresponding yearly occupation
fees over the public land. The DENR in the meantime
conducted an appraisal report on the status of the
foreshore lot.
But a month before the DENR released its approval in
April 2003 for the bidding of the lease covering the
public land Col. Bo was applying for, his cottage and his
coconut trees were destroyed. He had this occurrence
entered in the police blotter in the Malilipot Municipal
Police Station, and named Bgy. Captain Bello and Kgd.
Bisona as those who led in the removal of his
improvements to give way for the construction of
twenty-two cottages, and that this was done in defiance
of the directive of the DENR representative not to push
through with this plan because they had no right to do
so.
The bidding that was scheduled for June 2003 for the
lease of the foreshore land never took place because
the Sangguniang Barangay of San Isidro, Ilawod
opposed Col. Bos lease application before the DENR,
reasoning that the land should be used instead for
barangay projects and not to benefit private individuals.
The protest was then referred to the DENR-Provincial
Environment and Natural Resources Office (PENRO) for
resolution. Land Management Officer (LMO) Santiago
Olfindo took hold of the dispute and on October 21,
2003 conducted an ocular inspection on the public land.
He noted in his findings the list of improvements as of
that time and the owners of the cottages located
therein:

At the time of the ocular inspection, the

actual improvements found on the area
are reflected on a matrix hereto
attached. Some of the owners of the
cottages constructed on the area
covered by the application of ApplicantRespondent [Bo] were not present during
the inspection but were identified by the
Barangay Officials who were present on
the premises. From the attached matrix
it must be noted that almost all of the
Barangay Officials had their own
cottages and that the total cost of all
improvements on the area subject of this
case amounts to Four Hundred Seventy
Nine (sic) (P479,000.00) Pesos.
During
the
field
inspection,
the
improvements made by the ApplicantRespondent [Bo] as reflected in the
Appraisal Report was not anymore
around. The area occupied by his
improvement,
(Cottage)
is
already
occupied by a certain Carmelo Tuyo and
Jimeno Balana.
xxx xxx xxx
The matrix referred to by LMO Olfindo included
[petitioner] Joephil Bien as one of the owners of the
cottages built on Palale Beach on March 2003, and said
report of LMO Olfindo became the DENR Regional
Directors basis for denying the Sangguniang Barangays
protest, finding that the cottages found therein were
privately owned and illegally constructed, i.e., without
securing the DENRs permit. Thus, the bidding for the
public lease of a portion of Palale Beach was upheld.
As regards Col. Bos complaint before the Ombudsman,
he pinpointed not only the barangay officials of San
Isidro, Ilawod as the culprits responsible for the
destruction of his cottage and plantation but also
[petitioner] Joephil Bien. Col. Bo stressed that all of
them connived in doing this injustice to him in order
that respondents [including herein petitioner] may be
able to construct their own private cottages for their
own benefit.

Defending himself separately from his co-respondents,

[petitioner] Joephil Bien maintained his innocence and
vehemently denied ownership of the cottage. To prove
the latter, he averred that it is not he who owns the
cottage but a certain Renaldo Belir. He affixed as
evidence in his position paper the affidavit of Renaldo
Belir affirming that it is he and not Bgy. Captain Bien
who constructed the cottage. As his additional proof, he
included an official receipt issued to Belir as payment
for the barangay permit.[3]
As previously adverted to, the Deputy Ombudsman for Luzon found all
respondents therein, including herein petitioner Bien, administratively
liable for Abuse of Authority, to wit:
WHEREFORE, premises considered, it is hereby
respectfully recommended that respondents JULIO
BELLO,
JOEL
BISONA,
ROLANDO
VOLANTE,
MARTINEZ BEA, RICARDO BILAN, RENATO BARIAS,
HERBES BOTIS, MILAGROS BALANA, and JOEPHIL
BIEN, be meted out the penalty of three (3) months
suspension without pay for Abuse of Authority.
SO RESOLVED.[4]
Objecting to the penalty meted out by the Deputy Obmudsman,
petitioner appealed to the CA which ruled, thus:
WHEREFORE, the instant petition is DENIED for lack of
merit. The September 5, 2005 Decision and November
23, 2005 Order of the Deputy Ombudsman
for Luzon anent OMB-L-A-04-0488-H are AFFIRMED in
toto.
SO ORDERED. [5]
Hence, this appeal by petitioner hinging on the singular issue of
whether he is liable for abuse of authority.

Petitioner seeks to evade liability on the following grounds:

mind might accept as adequate to justify a conclusion. [6] In the case at

bar, substantial evidence consisted in the findings of the DENR-PENRO

1. Respondent

failed

to

prove

petitioners

participation

in

the

identifying petitioner as one of the owners of the twenty-two (22)

destruction of the improvements introduced by the former on the

cottages illegally erected on the subject property covered by a lease

subject property;

application of respondent. The Final Report of the DENR-PENRO

narrates

2. Corollary

thereto,

respondent

failed

to

establish

petitioners

ownership of one of the twenty-two (22) cottages on the subject

property found by the DENR to have been illegally erected; and

3. Petitioner is not a barangay official of San Isidro Ilawod; thus, he has

no authority and jurisdiction over the subject property.

We are in complete accord with the Deputy Ombudsman

for Luzons and the appellate courts uniform rulings.

Petitioners participation in the destruction of the improvements

on the subject property introduced by the respondent, as well as
petitioners ownership of one of the cottages subsequently erected
therein, were supported by substantial evidence.

In administrative cases, the requisite proof is substantial

evidence, i.e., that amount of relevant evidence which a reasonable

the

circumstances

surrounding

the

conflict

between

respondent and the barangay officials of San Isidro Ilawod, concerning

respondents application for lease of the subject property:
On May 11, 1993, Applicant-Respondent filed with the
DENR-CENRO, Legazpi a foreshore lease application and
designated as F.L.A. No. 050509-01. After six (6) years
of follow-up by Applicant-Respondent on the actions
taken on his application, it was on April 28, 2003 that
the Notice to Lease Public Land was ultimately released
for posting in the barangay where the applied area is
located. Instead of having it posted by the Barangay
Officials of San Isidro Ilawod, Malilipot, Albay, they
refused its posting and consequently filed their
opposition on June 4, 2003, just five (5) days before the
scheduled bidding of the applied area.[7]

Moreover, the DENR Regional Executive Director categorically found

that the barangay officials, respondents in the proceedings before the
Deputy Ombudsman for Luzon, including herein petitioner Bien,
illegally erected cottages on the subject property:
The Sangguniang Barangay of San Isidro Ilawod, cannot,
in the guise of resolutions assume the authority and
task that pertain solely to the DENR as regards the
administration and management of the subject

foreshore land. The introduction of improvements on the

premises without the necessary permit from the DENR
is illegal which we cannot countenance.[8]

From

the

sufficiently
More importantly, the CA found that the evidence presented by
respondent buttressed his positive and consistent claim that petitioner
connived with the barangay officials of San Isidro Ilawod to destroy the

foregoing

separate

established

the barangayofficials,

that

albeit

factual

findings,

petitioner
from

Bien

respondent
was

one

different barangay,

has
of
who

participated in the destruction of respondents cottage and coconut

trees built and planted on the subject property.

improvements he introduced on the subject property so that these

officials could construct their own cottages thereon. Specifically, the
appellate court proclaimed, thus:

Petitioner

further

makes

capital

of

the

fact

that

he

is

not

a barangay official of San Isidro Ilawod; necessarily, for him to be liable

for abuse of authority, the exercise of power should have been done in

The result of the DENRs field inspection that revealed

petitioner as one who owned one of the 22 cottages
that dislodged Col. Bos cottage and coconut trees is
what Bgy. Capt. Bien is pouncing on, for a confirmation
in this administrative case of his alleged ownership of
the cottage in PalaleBeach will buttress Col. Bos positive
and consistent claim, as inferred from all his pleadings
before the Ombudsman, that there was connivance
among the[rein] respondents in removing his
improvements so that they may put up their own
cottages.

the discharge of his office.

xxxx. Renaldo Belir declared in his affidavit that he

constructed his cottage in Palale Beach in May 2003,
but the subject here concerns the 22 cottages that were
built immediately after the destruction of Col. Bos
cottage and coconut plantations. As against that of LMO
Olfindos report which listed those 22 cottages built in
March 2003 [showing] that one of these cottages is
ostensibly owned by petitioner, the information which
was gathered from the barangay officers themselves of
San Isidro Ilawod who accompanied LMO Olfindo during
the ocular inspection, the proof that petitioner
submitted to substantiate his defense that another
person owns the cottage is weak.[9]

petitioners status as ABC President is not disputed. We concur with the

As the CA did, we likewise do not agree. Suffice it to say that

CAs following disquisition:

His line of reasoning may be convincing had this been
the only circumstance. But it must be taken into
consideration that he is the ABC President to whom the
barangay officials show deference to. Also, as correctly
held by the Ombudsman, he is the ex-officio member of
the Sangguniang Bayan which is significantly mentioned
to be the legislative body with the power to review
barangay ordinances and with the authority to discipline
barangay officials. The presence of his cottage as well
as that of the other barangay officials in San Isidro
Ilawod in Palale Beach showed an apparent connivance

among them. It then follows that his participation as a

higher authority had put a semblance of legality over
the removal of complainants improvements in order
that they may protect their personal interests over the
foreshore lot. In this sense, there shows his
misdemeanor as a public officer, an abuse of his
authority.[10]

With the foregoing discussion, we see no need to dispose of the

peripheral issues raised by petitioner.

WHEREFORE, premises considered, the petition is DENIED. The

Decision of the Court of Appeals in CA-G.R SP No. 92874 and the
Decision and Order of the Deputy Ombudsman for Luzon in OMB-L-A04-0488-H are AFFIRMED. Costs against petitioner.

OMBUDSMAN, Petitioner,

DECISION
REYES, J.:
This is a petition for review on certiorari 1 assailing the Decision2 dated
July 29, 2011 of the Court of Appeals (CA) in CA-G.R. SP No. 119071,
and the Resolution3 dated April 12, 2012, denying the Office of the
Ombudsman's (Ombudsman) Motion for Reconsideration.
The Facts
The case arose from the Complaint-Affidavit4 for violation of Section
85 of Republic Act (R.A.) No. 67136, Perjury under Article 183 of the
Revised Penal Code, and serious dishonesty and grave misconduct
under the Uniform Rules on Administrative Cases in the Civil Service 7,
filed on July 27, 2009, before the Ombudsman, docketed as OMB-C-C09-0560-J (LSC) and OMB-C-A-09-0570-J (LSC), by Joselito P. Fangon,
Acting Director of the General Investigation Bureau of the Ombudsman,
against respondent Jose T. Capulong (Capulong), Customs Operation
Officer V of the Bureau of Customs (BOC).
These charges were based on two particular acts: first, for failure to file
the required Statements of Assets, Liabilities and Net Worth (SALN) for
calendar years 1987, 1990, 1991, 1993 and 1998; and second, for
failure to disclose in his SALNs for calendar years 1999 to 2004 his
wifes business interest in two corporations, namely, SYJ Realty
Corporation and Radsy Production, Inc. Accordingly, the Ombudsman
issued an Order8 dated December 7, 2009 directing Capulong to file a
counter-affidavit.

SO ORDERED.

G.R. No. 201643

OFFICE
OF
THE
vs.
JOSE T. CAPULONG, Respondent.

March 12, 2014

In his Counter-Affidavit9 filed on February 24, 2010, Capulong denied all

the allegations against him, asserting that he had been diligently filing
his SALNs since his assumption of office. He claimed that since he had
never received any order from their head office requiring him to submit
his SALNs for the aforesaid periods as stated under Section 3 10 of the
Civil Service Commission Resolution No. 060231, a presumption exists
that he had faithfully complied with the annual filing of the SALN. He
further asserted that he was not informed by his wife that she was
made an incorporator of the aforementioned corporations; hence there
was no willful and deliberate assertion of falsehood on his part.
Besides, the registration of both corporations had already been

revoked by the Securities and Exchange Commission (SEC) as of March

15, 2004.

already been lifted, thus the CA held in abeyance the application for
preliminary injunction.18

On March 17, 2010, Capulong filed a Rejoinder 11 arguing that: (1) the
submission of photocopies of his SALNs for calendar years 1991 and
1998 to a responsive pleading is a matter of ordinary procedure; (2) he
had filed his SALNs in accordance with the regular procedure practiced
in the Manila International Container Port (MICP) of the BOC; (3) his
1991 and 1998 SALNs are contained in the records of the BOC, as
evidenced by the MICP-BOC Certification dated March 15, 2010; (4) the
complaint against him is barred by prescription; (5) no legal and
factual basis exists to support the complaint; and (6) criminal rules
should be strictly construed.

On May 18, 2011, Capulong filed a Manifestation with Motion for Leave
to File and Admit Memorandum asking the CA to rule on the merits of
the petition. On the other hand, the Ombudsman filed a manifestation
on June 9, 2011 declaring that the lifting of Capulongs preventive
suspension had rendered the case moot and academic; hence the
petition should be dismissed.

Capulong filed a motion to set the case for hearing for the presentation
of certified true copies of his SALNs for calendar years 1991 and 1998.
He also filed, on July 30, 2010, a motion for early resolution of the
complaint considering that the parties have already filed their
respective pleadings. However, the Ombudsman did not act on the said
motions.
On March 30, 2011, Capulong received an undated Order12 issued by
the Ombudsman placing him under preventive suspension without pay
which shall continue until the case is terminated but shall not exceed
six months effective from receipt of the Order.
Capulong filed an Urgent Motion to Lift/Reconsider Order of Preventive
Suspension with Motion to Resolve13contending that his preventive
suspension was not warranted because his continued stay in office will
not prejudice the investigation of the case against him.14
Questioning the preventive suspension and wary of the threatening
and coercive nature of the Ombudsmans order, Capulong, on April 19,
2011, filed with the CA a petition for certiorari, docketed as CA-G.R. SP
No. 119071, with urgent prayer for the issuance of a temporary
restraining order (TRO) and a writ of preliminary injunction. 15The CA
granted the petition and issued a TRO dated April 26, 2011, enjoining
and prohibiting the Ombudsman and any person representing them or
acting under their authority from implementing the preventive
suspension order of the Ombudsman until further orders from the
court.16
Meanwhile, the Ombudsman issued an Order 17 dated May 13, 2011
lifting Capulongs preventive suspension. On the same date, in the
scheduled hearing, the Ombudsmans representative manifested in
open court that the assailed order of preventive suspension had

On July 29, 2011, the CA rendered the herein assailed Decision, 19 which
granted Capulongs petition and dismissed the criminal charge
docketed as OMB-C-C-09-0560-J (LSC). According to the CA, the
petition is not rendered moot and academic by the subsequent lifting
of Capulongs preventive suspension. Thus:
It must be noted that the Petition likewise prays for "other reliefs just
and equitable under the premises." This is sanctioned by Section 1,
Rule 65 of the Rules of Court which states that the aggrieved person,
that is Petitioner herein, may, among others, pray for "such incidental
reliefs as law and justice may require." Hence, as long as there is, as
can be gleaned from the evidence presented, an indicia of grave abuse
of discretion on the part of the Respondent, even in the absence of a
specified prayer in the petition, a ruling on the merits is nevertheless
imperative. x x x. Moreover, it bears emphasis that the prayers in a
petition are not determinative of what legal principles will operate
based on the factual allegations thereof.20 (Citations omitted)
The CA further held that: (a) the Ombudsman has lost its right to
prosecute Capulong for non-filing of SALNs because it had already
prescribed in accordance with Act No. 3326; 21 and (b) the simple
allegation of non-disclosure of Capulongs spouses business interest
does not constitute gross misconduct and serious dishonesty since the
complaint-affidavit failed to allege that the said non-disclosure were
deliberately done. Hence, there was absolutely no basis to warrant
Capulongs preventive suspension as it is evident on the face of the
complaint that there was nothing to support the same.
The Ombudsman sought reconsideration22 thereto but the same was
denied.23 Aggrieved by the foregoing disquisition of the CA, the
Ombudsman assails the same before this Court via a Petition for
Review on Certiorari.24
The Issue

Essentially, the issue presented to the Court for resolution is whether

the CA has jurisdiction over the subject matter and can grant reliefs,
whether primary or incidental, after the Ombudsman has lifted the
subject order of preventive suspension.
The Courts Ruling
The petition has no merit.
As a rule, it is the consistent and general policy of the Court not to
interfere with the Ombudsmans exercise of its investigatory and
prosecutory powers. The rule is based not only upon respect for the
investigatory and prosecutory powers granted by the Constitution to
the Ombudsman but upon practicality as well. It is within the context of
this well-entrenched policy that the Court proceeds to pass upon the
validity of the preventive suspension order issued by the
Ombudsman.25
While it is an established rule in administrative law that the courts of
justice should respect the findings of fact of said administrative
agencies, the courts may not be bound by such findings of fact when
there is absolutely no evidence in support thereof or such evidence is
clearly, manifestly and patently insubstantial; and when there is a clear
showing that the administrative agency acted arbitrarily or with grave
abuse of discretion or in a capricious and whimsical manner, such that
its action may amount to an excess or lack of jurisdiction. 26 These
exceptions exist in this case and compel the appellate court to review
the findings of fact of the Ombudsman.
In the instant case, the subsequent lifting of the preventive suspension
order against Capulong does not render the petition moot and
academic. It does not preclude the courts from passing upon the
validity of a preventive suspension order, it being a manifestation of its
constitutionally mandated power and authority to determine whether
or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of
the Government.
The preventive suspension order is interlocutory in character and not a
final order on the merits of the case. The aggrieved party may then
seek redress from the courts through a petition for certiorari under
Section 1,27 Rule 65 of the 1997 Rules of Court. While it is true that the
primary relief prayed for by Capulong in his petition has already been
voluntarily corrected by the Ombudsman by the issuance of the order
lifting his preventive suspension, we must not lose sight of the fact that
Capulong likewise prayed for other remedies. There being a finding of

grave abuse of discretion on the part of the Ombudsman, it was

certainly imperative for the CA to grant incidental reliefs, as sanctioned
by Section 1 of Rule 65.
The decision of the appellate court to proceed with the merits of the
case is included in Capulongs prayer for such "other reliefs as may be
just and equitable under the premises." Such a prayer in the petition
justifies the grant of a relief not otherwise specifically prayed
for.28 More importantly, we have ruled that it is the allegations in the
pleading which determine the nature of the action and the Court shall
grant relief warranted by the allegations and proof even if no such
relief is prayed for.29
Significantly, the power of adjudication, vested in the CA is not
restricted to the specific relief claimed by the parties to the dispute,
but may include in the order or decision any matter or determination
which may be deemed necessary and expedient for the purpose of
settling the dispute or preventing further disputes, provided said
matter for determination has been established by competent evidence
during the hearing. The CA is not bound by technical rules of procedure
and evidence, to the end that all disputes and other issues will be
adjudicated in a just, expeditious and inexpensive proceeding.1wphi1
The requisites for the Ombudsman to issue a preventive suspension
order are clearly contained in Section 2430 of R.A. No. 6770.31 The rule
is that whether the evidence of guilt is strong is left to the
determination of the Ombudsman by taking into account the evidence
before him. In the very words of Section 24, the Ombudsman may
preventively suspend a public official pending investigation if "in his
judgment" the evidence presented before him tends to show that the
officials guilt is strong and if the further requisites enumerated in
Section 24 are present.32 The Court, however, can substitute its own
judgment for that of the Ombudsman on this matter, with a clear
showing of grave abuse of discretion on the part of the Ombudsman.
Undoubtedly, in this case, the CA aptly ruled that the Ombudsman
abused its discretion because it failed to sufficiently establish any basis
to issue the order of preventive suspension. Capulongs non-disclosure
of his wifes business interest does not constitute serious dishonesty or
grave misconduct. Nothing in the records reveals that Capulong
deliberately placed "N/A" in his SALN despite knowledge about his
wifes business interest. As explained by Capulong, the SEC already
revoked the registration of the corporations where his wife was an
incorporator; hence, he deemed it not necessary to indicate it in his
SALN.

Ineluctably, the dismissal of an administrative case does not

necessarily bar the filing of a criminal prosecution for the same or
similar acts, which were the subject of the administrative complaint.
The Court finds no cogent reason to depart from this rule. However, the
crime of perjury for which Capulong was charged, requires a willful and
deliberate assertion of a falsehood in a statement under oath or in an
affidavit, and the statement or affidavit in question here is Capulong's
SALNs. It then becomes necessary to consider the administrative
charge against Capulong to determine whether or not he has
committed perjury. Therefore, with the dismissal of Capulong's
administrative case, the CA correctly dismissed its criminal counterpart
since the crime of perjury which stemmed from misrepresentations in
his SALNs will no longer have a leg to stand on.
WHEREFORE, in consideration of the foregoing premises, the Decision
dated July 29, 2011 and Resolution dated April 12, 2012 of the Court of
Appeals in CA-G.R. SP No. 119071 are AFFIRMED.
SO ORDERED.

G.R. No. 203974

April 22, 2014

AURELIO
M.
UMALI, Petitioner,
vs.
COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and
THE CITY GOVERNMENT OF CABANATUAN, Respondents.
x-----------------------x
G.R. No. 204371
J.V.
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION

BAUTISTA, Petitioner,

VELASCO, JR., J.:

Before the Court is the consolidated case for Petition for Certiorari and
Prohibition with prayer for injunctive relief, docket as G.R. No. 203974,
assailing Minute Resolution No. 12-0797 1 and Minute Resolution No. 1209252 dated September 11, 2012 and October 16, 2012, respectively,
both promulgated by public respondent Commission on Elections
(COMELEC), and Petition for Mandamus, docketed G.R. No. 204371,
seeking to compel public respondent to implement the same.
The Facts
On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City
passed Resolution No. 183-2011, requesting the President to declare
the conversion of Cabanatuan City from a component city of the
province of Nueva Ecija into a highly urbanized city (HUC). Acceding to
the request, the President issued Presidential Proclamation No. 418,
Series of 2012, proclaiming the City of Cabanatuan as an HUC subject
to "ratification in a plebiscite by the qualified voters therein, as
provided for in Section 453 of the Local Government Code of 1991."
Respondent COMELEC, acting on the proclamation, issued the assailed
Minute Resolution No. 12-0797 which reads:
WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES, that
for purposes of the plebiscite for the conversion of Cabanatuan City
from component city to highly-urbanized city, only those registered
residents of Cabanatuan City should participate in the said plebiscite.
The COMELEC based this resolution on Sec. 453 of the Local
Government Code of 1991 (LGC), citing conversion cases involving
Puerto Princesa City in Palawan, Tacloban City in Southern Leyte, and
Lapu-Lapu City in Cebu, where only the residents of the city proposed
to be converted were allowed to vote in the corresponding plebiscite.
In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed
a Verified Motion for Reconsideration, maintaining that the proposed
conversion in question will necessarily and directly affect the mother
province of Nueva Ecija. His main argument is that Section 453 of the
LGC should be interpreted in conjunction with Sec. 10, Art. X of the
Constitution. He argues that while the conversion in question does not
involve the creation of a new or the dissolution of an existing city, the
spirit of the Constitutional provision calls for the people of the local
government unit (LGU) directly affected to vote in a plebiscite
whenever there is a material change in their rights and responsibilities.

The phrase "qualified voters therein" used in Sec. 453 of the LGC
should then be interpreted to refer to the qualified voters of the units
directly affected by the conversion and not just those in the component
city proposed to be upgraded. Petitioner Umali justified his position by
enumerating the various adverse effects of the Cabanatuan Citys
conversion and how it will cause material change not only in the
political and economic rights of the city and its residents but also of
the province as a whole.
To the Verified Motion for Reconsideration, private respondent Julius
Cesar Vergara, city mayor of Cabanatuan, interposed an opposition on
the ground that Sec. 10, Art. X does not apply to conversions, which is
the meat of the matter. He likewise argues that a specific provision of
the LGC, Sec. 453, as couched, allows only the qualified voters of
Cabanatuan City to vote in the plebiscite. Lastly, private respondent
pointed out that when Santiago City was converted in 1994 from a
municipality to an independent component city pursuant to Republic
Act No. (RA) 7720, the plebiscite held was limited to the registered
voters of the then municipality of Santiago.
Following a hearing conducted on October 4, 2012, 3 the COMELEC En
Banc on October 16, 2012, in E.M No. 12-045 (PLEB), by a vote of 524 ruled in favor of respondent Vergara through the assailed Minute
Resolution 12-0925. The dispositive portion reads:
The Commission, taking into consideration the arguments of counsels
including the Reply-memorandum of Oppositor, after due deliberation,
RESOLVED, as it hereby RESOLVES, as follows:
1) To DENY the Motion for Reconsideration of oppositor
Governor Aurelio M. Umali; and
2) To SCHEDULE the conduct of Plebiscite for the conversion of
Cabanatuan City from component city into highly-urbanized city
with registered residents only of Cabanatuan City to participate
in said plebiscite.
Let the Deputy Executive Director for Operations implement this
resolution.
SO ORDERED.
Hence, the Petition for Certiorari with prayer for injunctive relief,
docketed as G.R. No. 203974, on substantially the same arguments
earlier taken by petitioner Umali before the poll body. On the other

hand, public respondent COMELEC, through the Office of the Solicitor

General, maintained in its Comment that Cabanatuan City is merely
being converted from a component city into an HUC and that the
political unit directly affected by the conversion will only be the city
itself. It argues that in this instance, no political unit will be created,
merged with another, or will be removed from another LGU, and that
no boundaries will be altered. The conversion would merely reinforce
the powers and prerogatives already being exercised by the city, with
the political units probable elevation to that of an HUC as demanded
by its compliance with the criteria established under the LGC. Thus, the
participation of the voters of the entire province in the plebiscite will
not be necessary.
Private respondent will later manifest that it is adopting the Comment
of the COMELEC.
Meanwhile, on October 25, 2012, respondent COMELEC promulgated
Resolution No. 9543, which adopted a calendar of activities and periods
of prohibited acts in connection with the conversion of Cabanatuan City
into an HUC. The Resolution set the conduct of the plebiscite on
December 1, 2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a
Petition for Declaratory Relief which was raffled to the Regional Trial
Court (RTC), Branch 40 in Palayan City. In the said case, Punzalan
prayed that Minute Resolution No. 12-0797 be declared
unconstitutional, that the trial court decree that all qualified voters of
the province of Nueva Ecija be included in the plebiscite, and that a
Temporary Restraining Order (TRO) be issued enjoining public
respondent from implementing the questioned resolution. On October
19, 2012, the RTC granted the prayer for a TRO.
On November 6, 2012, public respondent through Minute Resolution
No. 12-0989 suspended the preparations for the event in view of the
TRO issued by the RTC. On November 27, 2012, the plebiscite was
once again rescheduled to give way to the May 13, 2013 national, local
and ARMM regional elections as per Resolution No. 9563.
After this development, petitioner J.V. Bautista, on December 3, 2012,
filed a case before this Court for Mandamus, docketed as G.R. No.
204371, praying that public respondent be ordered to schedule the
plebiscite either on December 15 or 22, 2012. Petitioner Bautista
argued that since the TRO issued by the RTC has already expired, the
duty of the public respondent to hold the plebiscite has become
mandatory and ministerial. Petitioner Bautista also alleged that the
delay in holding the plebiscite is inexcusable given the requirement
that it should be held within a period of 120 days form the date of the
Presidents declaration.

In its Comment to the Bautista petition, public respondent justified its

position by arguing that mandamus will not issue to enforce a right
which is in substantial dispute. With all the legal conflicts surrounding
the case, it cannot be said that there is a clear showing of petitioner
Bautistas entitlement to the relief sought. Respondent COMELEC
likewise relied on Sec. 5 of the Omnibus Election Code to justify the
postponements, citing incidents of violence that ensued in the locality
during the plebiscite period.
After the conclusion of the 2013 elections, public respondent issued
Resolution No. 1353 scheduling the plebiscite to January 25, 2014.
However, a TRO was issued by this Court on January 15, 2014 in G.R.
No. 203974 to suspend the conduct of the plebiscite for Cabanatuan
Citys conversion. Given the intertwining factual milieu of the two
petitions before the Court, both cases were consolidated on March 18,
2014.
The Issue
The bone of contention in the present controversy boils down to
whether the qualified registered voters of the entire province of Nueva
Ecija or only those in Cabanatuan City can participate in the plebiscite
called for the conversion of Cabanatuan City from a component city
into an HUC.
Resolving the Petition for Certiorari either way will necessarily render
the Petition for Mandamus moot and academic for ultimately, the
public respondent will be ordered to hold the plebiscite. The only
variation will be as regards its participants.
The Courts Ruling
The Petition for Certiorari is meritorious.
Sec. 453 of the LGC should be interpreted in accordance with Sec. 10,
Art. X of the Constitution
Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution
should be the basis for determining the qualified voters who will
participate in the plebiscite to resolve the issue. Sec. 10, Art. X reads:
Section 10, Article X. No province, city, municipality, or barangay
may be created, divided, merged, abolished, or its boundary
substantially altered, except in accordance with the criteria established
in the local government code and subject to approval by a majority of

the votes cast in a plebiscite in the political units directly affected.

(emphasis supplied)
Petitioner Umali elucidates that the phrase "political units directly
affected" necessarily encompasses not only Cabanatuan City but the
entire province of Nueva Ecija. Hence, all the registered voters in the
province are qualified to cast their votes in resolving the proposed
conversion of Cabanatuan City.

The power to create, divide, merge, abolish or substantially alter

boundaries of provinces, cities, municipalities or barangays, which is
pertinent in the case at bar, is essentially legislative in nature.5 The
framers of the Constitution have, however, allowed for the delegation
of such power in Sec. 10, Art. X of the Constitution as long as (1) the
criteria prescribed in the LGC is met and (2) the creation, division,
merger, abolition or the substantial alteration of the boundaries is
subject to the approval by a majority vote in a plebiscite.

On the other hand, respondents invoke Sec. 453 of the LGC to support
their claim that only the City of Cabanatuan should be allowed to take
part in the voting. Sec. 453 states:

True enough, Congress delegated such power to the Sangguniang

Panlalawigan or Sangguniang Panlungsod to create barangays
pursuant to Sec. 6 of the LGC, which provides:

Section 453. Duty to Declare Highly Urbanized Status. It shall be the

duty of the President to declare a city as highly urbanized within thirty
(30) days after it shall have met the minimum requirements prescribed
in the immediately preceding Section, upon proper application therefor
and ratification in a plebiscite by the qualified voters therein.
(emphasis supplied)

Section 6. Authority to Create Local Government Units. - A local

government unit may be created, divided, merged, abolished, or its
boundaries substantially altered either by law enacted by Congress in
the case of a province, city, municipality, or any other political
subdivision, or by ordinance passed by the sangguniang panlalawigan
or sangguniang panlungsod concerned in the case of a barangay
located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code." (emphasis supplied)

Respondents take the phrase "registered voters therein" in Sec. 453 as

referring only to the registered voters in the city being converted,
excluding in the process the voters in the remaining towns and cities of
Nueva Ecija.
Before proceeding to unravel the seeming conflict between the two
provisions, it is but proper that we ascertain first the relationship
between Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.

The guidelines for the exercise of this authority have sufficiently been
outlined by the various LGC provisions detailing the requirements for
the creation of barangays6, municipalities7, cities8, and provinces9.
Moreover, compliance with the plebiscite requirement under the
Constitution has also been directed by the LGC under its Sec. 10, which
reads:

First of all, we have to restate the general principle that legislative

power cannot be delegated. Nonetheless, the general rule barring
delegation is subject to certain exceptions allowed in the Constitution,
namely:

Section 10. Plebiscite Requirement. No creation, division, merger,

abolition, or substantial alteration of boundaries of local government
units shall take effect unless approved by a majority of the votes cast
in a plebiscite called for the purpose in the political unit or units
directly affected." (emphasis supplied)

(1) Delegation by Congress to the President of the power to fix

"tariff rates, import and export quotas, tonnage and wharfage
dues, and other duties or imposts within the framework of the
national development program of the Government" under
Section 28(2) of Article VI of the Constitution; and

With the twin criteria of standard and plebiscite satisfied, the

delegation to LGUs of the power to create, divide, merge, abolish or
substantially alter boundaries has become a recognized exception to
the doctrine of non-delegation of legislative powers.

(2) Delegation of emergency powers by Congress to the

President "to exercise powers necessary and proper to carry out
a declared national policy" in times of war and other national
emergency under Section 23(2) of Article VI of the Constitution.

Likewise, legislative power was delegated to the President under Sec.

453 of the LGC quoted earlier, which states:
Section 453. Duty to Declare Highly Urbanized Status. It shall be the
duty of the President to declare a city as highly urbanized within thirty

(30) days after it shall have met the minimum requirements prescribed
in the immediately preceding Section, upon proper application therefor
and ratification in a plebiscite by the qualified voters therein.
In this case, the provision merely authorized the President to make a
determination on whether or not the requirements under Sec. 452 10 of
the LGC are complied with. The provision makes it ministerial for the
President, upon proper application, to declare a component city as
highly urbanized once the minimum requirements, which are based on
certifiable and measurable indices under Sec. 452, are satisfied. The
mandatory language "shall" used in the provision leaves the President
with no room for discretion.
In so doing, Sec. 453, in effect, automatically calls for the conduct of a
plebiscite for purposes of conversions once the requirements are met.
No further legislation is necessary before the city proposed to be
converted becomes eligible to become an HUC through ratification, as
the basis for the delegation of the legislative authority is the very LGC.
In view of the foregoing considerations, the Court concludes that the
source of the delegation of power to the LGUs under Sec. 6 of the LGC
and to the President under Sec. 453 of the same code is none other
than Sec. 10, Art. X of the Constitution.
Respondents, however, posit that Sec. 453 of the LGC is actually
outside the ambit of Sec. 10, Art. X of the Constitution, considering
that the conversion of a component city to an HUC is not "creation,
division, merge, abolition or substantial alternation of boundaries"
encompassed by the said constitutional provision.
This proposition is bereft of merit.
First, the Courts pronouncement in Miranda vs. Aguirre 11 is apropos
and may be applied by analogy. While Miranda involves the
downgrading, instead of upgrading, as here, of an independent
component city into a component city, its application to the case at bar
is nonetheless material in ascertaining the proper treatment of
conversions. In that seminal case, the Court held that the downgrading
of an independent component city into a component city comes within
the purview of Sec. 10, Art. X of the Constitution.
In Miranda, the rationale behind the afore-quoted constitutional
provision and its application to cases of conversion were discussed
thusly:

A close analysis of the said constitutional provision will reveal that the
creation, division, merger, abolition or substantial alteration of
boundaries of local government units involve a common denominator - - material change in the political and economic rights of the local
government units directly affected as well as the people therein. It is
precisely for this reason that the Constitution requires the approval of
the people "in the political units directly affected." It is not difficult to
appreciate the rationale of this constitutional requirement. The 1987
Constitution, more than any of our previous Constitutions, gave more
reality to the sovereignty of our people for it was borne out of the
people power in the 1986 EDSA revolution. Its Section 10, Article X
addressed the undesirable practice in the past whereby local
government units were created, abolished, merged or divided on the
basis of the vagaries of politics and not of the welfare of the people.
Thus, the consent of the people of the local government unit directly
affected was required to serve as a checking mechanism to any
exercise of legislative power creating, dividing, abolishing, merging or
altering the boundaries of local government units. It is one instance
where the people in their sovereign capacity decide on a matter that
affects them - - - direct democracy of the people as opposed to
democracy thru peoples representatives. This plebiscite requirement
is also in accord with the philosophy of the Constitution granting more
autonomy to local government units.12
It was determined in the case that the changes that will result from the
conversion are too substantial that there is a necessity for the plurality
of those that will be affected to approve it. Similar to the enumerated
acts in the constitutional provision, conversions were found to result in
material changes in the economic and political rights of the people and
LGUs affected. Given the far-reaching ramifications of converting the
status of a city, we held that the plebiscite requirement under the
constitutional provision should equally apply to conversions as well.
Thus, RA 852813 was declared unconstitutional in Miranda on the
ground that the law downgraded Santiago City in Isabela without
submitting it for ratification in a plebiscite, in contravention of Sec. 10,
Art. X of the Constitution.
Second, while conversion to an HUC is not explicitly provided in Sec.
10, Art. X of the Constitution we nevertheless observe that the
conversion of a component city into an HUC is substantial alteration of
boundaries.
As the phrase implies, "substantial alteration of boundaries" involves
and necessarily entails a change in the geographical configuration of a
local government unit or units. However, the phrase "boundaries"
should not be limited to the mere physical one, referring to the metes

and bounds of the LGU, but also to its political boundaries. It also
connotes a modification of the demarcation lines between political
subdivisions, where the LGUs exercise of corporate power ends and
that of the other begins. And as a qualifier, the alteration must be
"substantial" for it to be within the ambit of the constitutional
provision.
Pertinent is Art. 12(c) of
Regulations, which reads:

the

LGCs

Implementing

Rules

and

Art. 12. Conversion of a Component City into a Highly Urbanized City.

xxxx
(c) Effect of Conversion The conversion of a component city into a
highly-urbanized city shall make it independent of the province where
it is geographically located. (emphasis added)
Verily, the upward conversion of a component city, in this case
Cabanatuan City, into an HUC will come at a steep price. It can be
gleaned from the above-cited rule that the province will inevitably
suffer a corresponding decrease in territory brought about by
Cabanatuan Citys gain of independence. With the citys newfound
autonomy, it will be free from the oversight powers of the province,
which, in effect, reduces the territorial jurisdiction of the latter. What
once formed part of Nueva Ecija will no longer be subject to
supervision by the province. In more concrete terms, Nueva Ecija
stands to lose 282.75 sq. km. of its territorial jurisdiction with
Cabanatuan Citys severance from its mother province. This is
equivalent to carving out almost 5% of Nueva Ecijas 5,751.3 sq. km.
area. This sufficiently satisfies the requirement that the alteration be
"substantial."
Needless to stress, the alteration of boundaries would necessarily
follow Cabanatuan Citys conversion in the same way that creations,
divisions, mergers, and abolitions generally cannot take place without
entailing the alteration. The enumerated acts, after all, are not
mutually exclusive, and more often than not, a combination of these
acts attends the reconfiguration of LGUs.
In light of the foregoing disquisitions, the Court rules that conversion to
an HUC is substantial alternation of boundaries governed by Sec. 10,
Art. X and resultantly, said provision applies, governs and prevails over
Sec. 453 of the LGC.

Moreover, the rules of statutory construction dictate that a particular

provision should be interpreted with the other relevant provisions in
the law The Court finds that it is actually Sec. 10 of the LGC which is
undeniably the applicable provision on the conduct of plebiscites. The
title of the provision itself, "Plebiscite Requirement", makes this
obvious. It requires a majority of the votes cast in a plebiscite called for
the purpose in the political unit or units directly affected. On the other
hand, Sec. 453 of the LGC, entitled "Duty to Declare Highly Urbanized
Status", is only on the duty to declare a city as highly urbanized. It
mandates the Office of the President to make the declaration after the
city has met the requirements under Sec. 452, and upon proper
application and ratification in a plebiscite. The conduct of a plebiscite is
then a requirement before a declaration can be made. Thus, the Court
finds that Sec. 10 of the LGC prevails over Sec. 453 of the LGC on the
plebiscite requirement.
We now take the bull by the horns and resolve the issue whether Sec.
453 of the LGC trenches on Sec. 10, Art. X of the Constitution.
Hornbook doctrine is that neither the legislative, the executive, nor the
judiciary has the power to act beyond the Constitutions mandate. The
Constitution is supreme; any exercise of power beyond what is
circumscribed by the Constitution is ultra vires and a nullity. As
elucidated by former Chief Justice Enrique Fernando in Fernandez v.
Cuerva:14
Where the assailed legislative or executive act is found by the judiciary
to be contrary to the Constitution, it is null and void. As the new Civil
Code puts it: "When the courts declare a law to be inconsistent with
the Constitution, the former shall be void and the latter shall govern."
Administrative or executive acts, orders and regulations shall be valid
only when they are not contrary to the laws or the Constitution. The
above provision of the civil Code reflects the orthodox view that an
unconstitutional act, whether legislative or executive, is not a law,
confers no rights, imposes no duties, and affords no protection. x x x
Applying this orthodox view, a law should be construed in harmony
with and not in violation of the Constitution. 15 In a long line of cases,
the cardinal principle of construction established is that a statute
should be interpreted to assure its being in consonance with, rather
than repugnant to, any constitutional command or prescription. 16 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 constitution, that interpretation which will avoid the
effect of unconstitutionality will be adopted, even though it may be

necessary, for this purpose, to disregard the more usual or apparent

import of the language used.17
Pursuant to established jurisprudence, the phrase "by the qualified
voters therein" in Sec. 453 should be construed in a manner that will
avoid conflict with the Constitution. If one takes the plain meaning of
the phrase in relation to the declaration by the President that a city is
an HUC, then, Sec. 453 of the LGC will clash with the explicit provision
under Sec. 10, Art. X that the voters in the "political units directly
affected" shall participate in the plebiscite. Such construction should
be avoided in view of the supremacy of the Constitution. Thus, the
Court treats the phrase "by the qualified voters therein" in Sec. 453 to
mean the qualified voters not only in the city proposed to be converted
to an HUC but also the voters of the political units directly affected by
such conversion in order to harmonize Sec. 453 with Sec. 10, Art. X of
the Constitution.
The Court finds that respondents are mistaken in construing Sec. 453
in a vacuum. Their interpretation of Sec. 453 of the LGC runs afoul of
Sec. 10, Art. X of the Constitution which explicitly requires that all
residents in the "political units directly affected" should be made to
vote.
Respondents make much of the plebiscites conducted in connection
with the conversion of Puerto Princesa City, Tacloban City and LapuLapu City where the ratification was made by the registered voters in
said cities alone. It is clear, however, that the issue of who are entitled
to vote in said plebiscites was not properly raised or brought up in an
actual controversy. The issue on who will vote in a plebiscite involving
a conversion into an HUC is a novel issue, and this is the first time that
the Court is asked to resolve the question. As such, the past plebiscites
in the aforementioned cities have no materiality or relevance to the
instant petition. Suffice it to say that conversion of said cities prior to
this judicial declaration will not be affected or prejudiced in any
manner following the operative fact doctrinethat the actual
existence of a statute prior to such a determination is an operative fact
and may have consequences which cannot always be erased by a new
judicial declaration.18
The
entire
province
of
Nueva
Ecija
affected by Cabanatuan Citys conversion

will

be

directly

After the Court has resolved the seeming irreconcilability of Sec. 10,
Art. X of the Constitution and Sec. 453 of the LGC, it is now time to
elucidate the meaning of the phrase "political units directly affected"
under Sec. 10, Art. X.

a. "Political units directly affected" defined

In identifying the LGU or LGUs that should be allowed to take part in
the plebiscite, what should primarily be determined is whether or not
the unit or units that desire to participate will be "directly affected" by
the change. To interpret the phrase, Tan v. COMELEC 19 and Padilla v.
COMELEC20 are worth revisiting.
We have ruled in Tan, involving the division of Negros Occidental for
the creation of the new province of Negros del Norte, that the LGUs
whose boundaries are to be altered and whose economy would be
affected are entitled to participate in the plebiscite. As held:
It can be plainly seen that the aforecited constitutional provision makes
it imperative that there be first obtained "the approval of a majority of
votes in the plebiscite in the unit or units affected" whenever a
province is created, divided or merged and there is substantial
alteration of the boundaries. It is thus inescapable to conclude that the
boundaries of the existing province of Negros Occidental would
necessarily be substantially altered by the division of its existing
boundaries in order that there can be created the proposed new
province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected.
The first would be the parent province of Negros Occidental because its
boundaries would be substantially altered. The other affected entity
would be composed of those in the area subtracted from the mother
province to constitute the proposed province of Negros del Norte.21
xxxx
To form the new province of Negros del Norte no less than three cities
and eight municipalities will be subtracted from the parent province of
Negros Occidental. This will result in the removal of approximately
2,768.4 square kilometers from the land area of an existing province
whose boundaries will be consequently substantially altered. It
becomes easy to realize that the consequent effects of the division of
the parent province necessarily will affect all the people living in the
separate areas of Negros Occidental and the proposed province of
Negros del Norte. The economy of the parent province as well as that
of the new province will be inevitably affected, either for the better or
for the worse. Whatever be the case, either or both of these political
groups will be affected and they are, therefore, the unit or units
referred to in Section 3 of Article XI of the Constitution which must be
included in the plebiscite contemplated therein.22 (emphasis added)

Sec. 3, Art. XI of the 1973 Constitution, as invoked in Tan, states:

SEC. 3. No province, city, municipality or barrio may be created,
divided, merged abolished, or its boundary substantially altered,
except in accordance with the criteria established in the local
government code, and subject to the approval by a majority of the
votes in a plebiscite in the unit or units affected. (emphasis added)
Despite the change in phraseology compared to what is now Sec. 10,
Art. X, we affirmed our ruling in Tan in the latter case of Padilla. As
held, the removal of the phrase "unit or" only served to sustain the
earlier finding that what is contemplated by the phase "political units
directly affected" is the plurality of political units which would
participate in the plebiscite. As reflected in the journal of the
Constitutional Commission:23
Mr. Maambong: While we have already approved the deletion of "unit
or," I would like to inform the Committee that under the formulation in
the present Local Government Code, the words used are actually
"political unit or units." However, I do not know the implication of the
use of these words. Maybe there will be no substantial difference, but I
just want to inform the Committee about this.
Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there
be no objection on the part of the two Gentlemen from the floor?
Mr. Davide: I would object. I precisely asked for the deletion of the
words "unit or" because in the plebiscite to be conducted, it must
involve all the units affected. If it is the creation of a barangay
plebiscite because it is affected. It would mean a loss of a territory.
(emphasis added)

Senator Guingona. So the plebiscite will not be held only in the two
municipalities which are being merged, but the entire province will now
have to undergo.
Senator Pimentel. I suppose that was the ruling in the Negros del Norte
case.
Senator Guingona. Supposing it refers to barangays, will the entire
municipality have to vote? There are two barangays being merged,
say, out of 100 barangays. Would the entire municipality have to
participate in the plebiscite?
Senator Pimentel. Yes, Mr. President, because the municipality is
affected directly by the merger of two of its barangay.
Senator Guingona. And, if, out of 100 barangay, 51 are being merged,
abolished, whatever, would the rest of the municipality not participate
in the plebiscite?
Senator Pimentel. Do all the 51 barangay that the Gentleman
mentioned, Mr. President, belong to one municipality?
Senator Guingona. Yes.
Senator Pimentel. Then it will only involve the municipality where the
51 barangays belong.
Senator Guingona. Yes. So, the entire municipality will now have to
undergo a plebiscite.
Senator Pimentel. That is correct, Mr. President.

The same sentiment was shared by the Senate during its deliberations
on Senate Bill No. 155the predecessor of the LGCthus:
Senator Guingona. Can we make that clearer by example? Let us
assume that a province has municipalities and there is a merger of two
municipalities. Would this therefore mean that the plebiscite will be
conducted within the two merged municipalities and not in the eight
other municipalities?
Senator Pimentel. The whole province, Mr. President, will be affected,
and that is the reason we probably have to involve the entire province.

Senator Guingona. In the earlier example, if it is only a merger of two

municipalities, let us say, in a province with 10 municipalities the
entire province will the other municipalities although not affected
also have to participate in the plebiscite?
Senator Pimentel. Yes. The reason is that the municipalities are within
the territorial boundaries of the province itself, it will have to be altered
as a result of the two municipalities that the Gentleman mentioned.24
In the more recent case of Miranda, the interpretation in Tan and
Padilla was modified to include not only changes in economic but also
political rights in the criteria for determining whether or not an LGU

shall be considered "directly affected." Nevertheless, the requirement

that the plebiscite be participated in by the plurality of political units
directly affected remained.
b. Impact on Economic Rights
To recall, it was held in Miranda that the changes that will result in the
downgrading of an LGU from an independent component city to a
component city cannot be categorized as insubstantial, thereby
necessitating the conduct of a plebiscite for its ratification. In a similar
fashion, herein petitioner Umali itemized the adverse effects of
Cabanatuan Citys conversion to the province of Nueva Ecija to justify
the provinces participation in the plebiscite to be conducted.

residents of the city will cease to be political constituencies of the

province, effectively reducing the latters population. Taking this
decrease in territory and population in connection with the above
formula, it is conceded that Nueva Ecija will indeed suffer a reduction
in IRA given the decrease of its multipliers values. As assessed by the
Regional Director of the Department of Budget and Management (DBM)
for Region III:25
Basis for IRA Province
of Cabanatua
Computation
Nueva Ecija
n
City

1,843,853

Often raised is that Cabanatuan Citys conversion into an HUC and its
severance from Nueva Ecija will result in the reduction of the Internal
Revenue Allotment (IRA) to the province based on Sec. 285 of the LGC.
The law states:

No.
of
Population
CY 2007 Census

Section 285. Allocation to Local Government Units. - The share of local

government units in the internal revenue allotment shall be collected
in the following manner:

Land
(sq. km.)

(a) Provinces - Twenty-three percent (23%);

IRA Share of Actual

Nueva Ecija Share

(b) Cities - Twenty-three percent (23%);

(c) Municipalities - Thirty-four percent (34%); and
(d) Barangays - Twenty percent (20%)
Provided, however, That the share of each province, city, and
municipality shall be determined on the basis of the following formula:
(a) Population - Fifty percent (50%);
(b) Land Area - Twenty-five percent (25%); and
(c) Equal sharing - Twenty-five percent (25%)
In our earlier disquisitions, we have explained that the conversion into
an HUC carries the accessory of substantial alteration of boundaries
and that the province of Nueva Ecija will, without a doubt, suffer a
reduction in territory because of the severance of Cabanatuan City. The

Area 5,751.33

Province
of
Nueva
Ecija
Net
of Cabanatuan
City

259,267

259,267

282.75

5,468.58

IRA Estimated
IRA
share
excluding
Cabanatuan
City

Reduction

Based
on P800,772,618
Population
.45

P688,174,751.
66

P112,597,866.
79

Based
Land
Area

P250,517,594.
56

P
12,952,878.06

Total

on P263,470,472
.62

P125,550,744
.85

Clear as crystal is that the province of Nueva Ecija will suffer a

substantial reduction of its share in IRA once Cabanatuan City attains
autonomy. In view of the economic impact of Cabanatuan Citys
conversion, petitioner Umalis contention, that its effect on the
province is not only direct but also adverse, deserves merit.

Moreover, his claim that the province will lose shares in provincial
taxes imposed in Cabanatuan City is well-founded. This is based on
Sec. 151 of the LGC, which states:

(i) a contiguous territory of at least two thousand (2,000)

square kilometers, as certified by the Lands Management
Bureau; or

SECTION 151. Scope of Taxing Powers. Except as otherwise provided

in this Code, the city, may levy the taxes, fees, and charges which the
province or municipality may impose: Provided, however, That the
taxes, fees and charges levied and collected by highly urbanized and
independent component cities shall accrue to them and distributed in
accordance with the provisions of this Code. (emphasis added)

(ii) a population of not less than two hundred fifty thousand

(250,000) inhabitants as certified by the National Statistics
Office:

Once converted, the taxes imposed by the HUC will accrue to itself.
Prior to this, the province enjoys the prerogative to impose and collect
taxes such as those on sand, gravel and other quarry
resources,26 professional taxes,27 and amusement taxes28 over the
component city. While, it may be argued that this is not a derogation of
the provinces taxing power because it is in no way deprived of its right
to collect the mentioned taxes from the rest of its territory, the
conversion will still reduce the provinces taxing jurisdiction, and
corollary to this, it will experience a corresponding decrease in shares
in local tax collections. This reduction in both taxing jurisdiction and
shares poses a material and substantial change to the provinces
economic rights, warranting its participation in the plebiscite.
To further exemplify the impact of these changes, a perusal of Secs.
452(a) and 461(a) of the LGC is in order, viz:
Section 452. Highly Urbanized Cities.
(a) Cities with a minimum population of two hundred thousand
(200,000) inhabitants as certified by the National Statistics
Office, and within the latest annual income of at least Fifty
Million Pesos (P50,000,000.00) based on 1991 constant prices,
as certified by the city treasurer, shall be classified as highly
urbanized cities.
Section 461. Requisites for Creation.
(a) A province may be created if it has an average annual income, as
certified by the Department of Finance, of not less than Twenty million
pesos (P20,000,000.00) based on 1991 constant prices and either of
the following requisites:

Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
A component citys conversion into an HUC and its resultant autonomy
from the province is a threat to the latters economic viability.
Noteworthy is that the income criterion for a component city to be
converted into an HUC is higher than the income requirement for the
creation of a province. The ensuing reduction in income upon
separation would clearly leave a crippling effect on the provinces
operations as there would be less funding to finance infrastructure
projects and to defray overhead costs. Moreover, the quality of
services being offered by the province may suffer because of looming
austerity measures. These are but a few of the social costs of the
decline in the provinces economic performance, which Nueva Ecija is
bound to experience once its most progressive city of Cabanatuan
attains independence.
c. Impact on Political Rights
Aside from the alteration of economic rights, the political rights of
Nueva Ecija and those of its residents will also be affected by
Cabanatuans conversion into an HUC. Notably, the administrative
supervision of the province over the city will effectively be revoked
upon conversion. Secs. 4 and 12, Art. X of the Constitution read:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities with
respect to component barangays shall ensure that the acts of their
component units are within the scope of their prescribed powers and
functions.
Sec 12. Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting for
provincial elective officials, shall be independent of the province. The
voters of component cities within a province, whose charters contain

no such prohibition, shall not be deprived of their right to vote for

elective provincial officials.
Duties, privileges and obligations appertaining to HUCs will attach to
Cabanatuan City if it is converted into an HUC. This includes the right
to be outside the general supervision of the province and be under the
direct supervision of the President. An HUC is not subject to provincial
oversight because the complex and varied problems in an HUC due to
a bigger population and greater economic activity require greater
autonomy.29 The provincial government stands to lose the power to
ensure that the local government officials of Cabanatuan City act
within the scope of its prescribed powers and functions,30 to review
executive orders issued by the city mayor, and to approve resolutions
and ordinances enacted by the city council. 31 The province will also be
divested of jurisdiction over disciplinary cases concerning the elected
city officials of the new HUC, and the appeal process for administrative
case decisions against barangay officials of the city will also be
modified accordingly.32 Likewise, the registered voters of the city will no
longer be entitled to vote for and be voted upon as provincial
officials.33
In cutting the umbilical cord between Cabanatuan City and the
province of Nueva Ecija, the city will be separated from the territorial
jurisdiction of the province, as earlier explained. The provincial
government will no longer be responsible for delivering basic services
for the city residents benefit. Ordinances and resolutions passed by
the provincial council will no longer cover the city. Projects queued by
the provincial government to be executed in the city will also be
suspended if not scrapped to prevent the LGU from performing
functions outside the bounds of its territorial jurisdiction, and from
expending its limited resources for ventures that do not cater to its
constituents.1wphi1
In view of these changes in the economic and political rights of the
province of Nueva Ecija and its residents, the entire province certainly
stands to be directly affected by the conversion of Cabanatuan City
into an HUC. Following the doctrines in Tan and Padilla, all the qualified
registered voters of Nueva Ecija should then be allowed to participate
in the plebiscite called for that purpose.
Respondents apprehension that requiring the entire province to
participate in the plebiscite will set a dangerous precedent leading to
the failure of cities to convert is unfounded. Their fear that provinces
will always be expected to oppose the conversion in order to retain the
citys dependence is speculative at best. In any event, any vote of
disapproval cast by those directly affected by the conversion is a valid

exercise of their right to suffrage, and our democratic processes are

designed to uphold the decision of the majority, regardless of the
motive behind the vote. It is unfathomable how the province can be
deprived of the opportunity to exercise the right of suffrage in a matter
that is potentially deleterious to its economic viability and could
diminish the rights of its constituents. To limit the plebiscite to only the
voters of the areas to be partitioned and seceded from the province is
as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and
to nullify the basic principle of majority rule.34
WHEREFORE, premises considered, the Petition for Certiorari, docketed
as G.R. No. 203974, is hereby GRANTED. COMELEC Minute Resolution
No. 12-0797 dated September 11, 2012 and Minute Resolution No. 120925 dated October 16, 2012 are hereby declared NULL and VOID.
Public respondent COMELEC is hereby enjoined from implementing the
said Resolutions. Additionally, COMELEC is hereby ordered to conduct a
plebiscite for the purpose of converting Cabanatuan City into a Highly
Urbanized City to be participated in by the qualified registered voters
of Nueva Ecij a within 120 days from the finality of this Decision. The
Petition for Mandamus, docketed as G.R. No. 204371, is hereby
DISMISSED.
SO ORDERED.

G.R. No. 159310

February 24, 2009

CAMILO
F.
BORROMEO, Petitioner,
vs.
ANTONIETTA O. DESCALLAR, Respondent.
DECISION

PUNO, C.J.:
What are the rights of an alien (and his successor-in-interest) who
acquired real properties in the country as against his former Filipina
girlfriend in whose sole name the properties were registered under the
Torrens system?
The facts are as follows:
Wilhelm Jambrich, an Austrian, arrived in the Philippines in 1983 after
he was assigned by his employer, Simmering-Graz Panker A.G., an
Austrian company, to work at a project in Mindoro. In 1984, he
transferred to Cebu and worked at the Naga II Project of the National
Power Corporation. There, he met respondent Antonietta OpallaDescallar, a separated mother of two boys who was working as a
waitress at St. Moritz Hotel. Jambrich befriended respondent and asked
her to tutor him in English. In dire need of additional income to support
her children, respondent agreed. The tutorials were held in Antoniettas
residence at a squatters area in Gorordo Avenue.
Jambrich and respondent fell in love and decided to live together in a
rented house in Hernan Cortes, Mandaue City. Later, they transferred
to their own house and lots at Agro-Macro Subdivision, Cabancalan,
Mandaue City. In the Contracts to Sell dated November 18, 1985 1 and
March 10, 19862 covering the properties, Jambrich and respondent
were referred to as the buyers. A Deed of Absolute Sale dated
November 16, 19873 was likewise issued in their favor. However, when
the Deed of Absolute Sale was presented for registration before the
Register of Deeds, registration was refused on the ground that
Jambrich was an alien and could not acquire alienable lands of the
public domain. Consequently, Jambrichs name was erased from the
document. But it could be noted that his signature remained on the left
hand margin of page 1, beside respondents signature as buyer on
page 3, and at the bottom of page 4 which is the last page. Transfer
Certificate of Title (TCT) Nos. 24790, 24791 and 24792 over the
properties were issued in respondents name alone.
Jambrich also formally adopted respondents two sons in Sp. Proc. No.
39-MAN,4 and per Decision of the Regional Trial Court of Mandaue City
dated May 5, 1988.5
However, the idyll lasted only until April 1991. By then, respondent
found a new boyfriend while Jambrich began to live with another
woman in Danao City. Jambrich supported respondents sons for only
two months after the break up.

Jambrich met petitioner Camilo F. Borromeo sometime in 1986.

Petitioner was engaged in the real estate business. He also built and
repaired speedboats as a hobby. In 1989, Jambrich purchased an
engine and some accessories for his boat from petitioner, for which he
became indebted to the latter for about P150,000.00. To pay for his
debt, he sold his rights and interests in the Agro-Macro properties to
petitioner for P250,000, as evidenced by a "Deed of Absolute
Sale/Assignment."6 On July 26, 1991, when petitioner sought to register
the deed of assignment, he discovered that titles to the three lots have
been transferred in the name of respondent, and that the subject
property has already been mortgaged.
On August 2, 1991, petitioner filed a complaint against respondent for
recovery of real property before the Regional Trial Court of Mandaue
City. Petitioner alleged that the Contracts to Sell dated November 18,
1985 and March 10, 1986 and the Deed of Absolute Sale dated
November 16, 1987 over the properties which identified both Jambrich
and respondent as buyers do not reflect the true agreement of the
parties since respondent did not pay a single centavo of the purchase
price and was not in fact a buyer; that it was Jambrich alone who paid
for the properties using his exclusive funds; that Jambrich was the real
and absolute owner of the properties; and, that petitioner acquired
absolute ownership by virtue of the Deed of Absolute Sale/Assignment
dated July 11, 1991 which Jambrich executed in his favor.
In her Answer, respondent belied the allegation that she did not pay a
single centavo of the purchase price. On the contrary, she claimed that
she "solely and exclusively used her own personal funds to defray and
pay for the purchase price of the subject lots in question," and that
Jambrich, being an alien, was prohibited to acquire or own real
property in the Philippines.
At the trial, respondent presented evidence showing her alleged
financial capacity to buy the disputed property with money from a
supposed copra business. Petitioner, in turn, presented Jambrich as his
witness and documentary evidence showing the substantial salaries
which Jambrich received while still employed by the Austrian company,
Simmering-Graz Panker A.G.
In its decision, the court a quo found
Evidence on hand clearly show that at the time of the purchase and
acquisition of [the] properties under litigation that Wilhelm Jambrich
was still working and earning much. This fact of Jambrich earning much
is not only supported by documentary evidence but also by the
admission made by the defendant Antoniet[t]a Opalla. So that,

Jambrichs financial capacity

properties . . . is not disputed.7

to

acquire

and

purchase

the

xxx
On the other hand, evidence . . . clearly show that before defendant
met Jambrich sometime in the latter part of 1984, she was only
working as a waitress at the St. Moritz Hotel with an income
of P1,000.00 a month and was . . . renting and living only in . . . [a]
room at . . . [a] squatter area at Gorordo Ave., Cebu City; that Jambrich
took pity of her and the situation of her children that he offered her a
better life which she readily accepted. In fact, this miserable financial
situation of hers and her two children . . . are all stated and reflected in
the Child Study Report dated April 20, 1983 (Exhs. "G" and "G-1")
which facts she supplied to the Social Worker who prepared the same
when she was personally interviewed by her in connection with the
adoption of her two children by Wilhelm Jambrich. So that, if such facts
were not true because these are now denied by her . . . and if it was
also true that during this time she was already earning as much
as P8,000.00 to P9,000.00 as profit per month from her copra business,
it would be highly unbelievable and impossible for her to be living only
in such a miserable condition since it is the observation of this Court
that she is not only an extravagant but also an expensive person and
not thrifty as she wanted to impress this Court in order to have a big
saving as clearly shown by her actuation when she was already
cohabiting and living with Jambrich that according to her . . . the
allowance given . . . by him in the amount of $500.00 a month is not
enough to maintain the education and maintenance of her children.8
This being the case, it is highly improbable and impossible that she
could acquire the properties under litigation or could contribute any
amount for their acquisition which according to her is worth more
than P700,000.00 when while she was working as [a] waitress at St.
Moritz Hotel earning P1,000.00 a month as salary and tips of more or
less P2,000.00 she could not even provide [for] the daily needs of her
family so much so that it is safe to conclude that she was really in
financial distress when she met and accepted the offer of Jambrich to
come and live with him because that was a big financial opportunity for
her and her children who were already abandoned by her husband.9
xxx
The only probable and possible reason why her name appeared and
was included in [the contracts to sell dated November 18, 1985 and
March 10, 1986 and finally, the deed of absolute sale dated November
16, 1987] as buyer is because as observed by the Court, she being a

scheming and exploitive woman, she has taken advantage of the

goodness of Jambrich who at that time was still bewitched by her
beauty, sweetness, and good attitude shown by her to him since he
could still very well provide for everything she needs, he being earning
(sic) much yet at that time. In fact, as observed by this Court, the
acquisition of these properties under litigation was at the time when
their
relationship
was
still
going
smoothly
and
harmoniously.10 [Emphasis supplied.]
The dispositive portion of the Decision states:
WHEREFORE, . . . Decision is hereby rendered in favor of the plaintiff
and against the defendant Antoniet[t]a Opalla by:
1) Declaring plaintiff as the owner in fee simple over the
residential house of strong materials and three parcels of land
designated as Lot Nos. 1, 3 and 5 which are covered by TCT
Nos. 24790, 24791 and 24792 issued by the Register of Deeds
of Mandaue City;
2) Declaring as null and void TCT Nos. 24790, 24791 and 24792
issued in the name of defendant Antoniet[t]a Descallar by the
Register of Deeds of Mandaue City;
3) Ordering the Register of Deeds of Mandaue City to cancel
TCT Nos. 24790, 24791 and 24792 in the name of defendant
Antoniet[t]a Descallar and to issue new ones in the name of
plaintiff Camilo F. Borromeo;
4) Declaring the contracts now marked as Exhibits "I," "K" and
"L" as avoided insofar as they appear to convey rights and
interests over the properties in question to the defendant
Antoniet[t]a Descallar;
5) Ordering the defendant to pay plaintiff attorneys fees in the
amount of P25,000.00 and litigation expenses in the amount
of P10,000.00; and,
6) To pay the costs.11
Respondent appealed to the Court of Appeals. In a Decision dated April
10, 2002,12 the appellate court reversed the decision of the trial court.
In ruling for the respondent, the Court of Appeals held:

We disagree with the lower courts conclusion. The circumstances

involved in the case cited by the lower court and similar cases decided
on by the Supreme Court which upheld the validity of the title of the
subsequent Filipino purchasers are absent in the case at bar. It should
be noted that in said cases, the title to the subject property has been
issued in the name of the alien transferee (Godinez et al., vs. Fong Pak
Luen et al., 120 SCRA 223 citing Krivenko vs. Register of Deeds of
Manila, 79 Phils. 461; United Church Board for World Ministries vs.
Sebastian, 159 SCRA 446, citing the case of Sarsosa Vda. De Barsobia
vs. Cuenco, 113 SCRA 547; Tejido vs. Zamacoma, 138 SCRA 78). In the
case at bar, the title of the subject property is not in the name of
Jambrich but in the name of defendant-appellant. Thus, Jambrich could
not have transferred a property he has no title thereto.13
Petitioners motion for reconsideration was denied.
Hence, this petition for review.
Petitioner assigns the following errors:
I. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
DISREGARDING RESPONDENTS JUDICIAL ADMISSION AND OTHER
OVERWHELMING EVIDENCE ESTABLISHING JAMBRICHS PARTICIPATION,
INTEREST AND OWNERSHIP OF THE PROPERTIES IN QUESTION AS
FOUND BY THE HONORABLE TRIAL COURT.
II. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN HOLDING
THAT JAMBRICH HAS NO TITLE TO THE PROPERTIES IN QUESTION AND
MAY NOT THEREFORE TRANSFER AND ASSIGN ANY RIGHTS AND
INTERESTS IN FAVOR OF PETITIONER.
III. THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN
REVERSING THE WELL-REASONED DECISION OF THE TRIAL COURT AND
IN IMPOSING DOUBLE COSTS AGAINST HEREIN PETITIONER (THEN,
PLAINTIFF-APPELLEE).14
First, who purchased the subject properties?

The evidence clearly shows, as pointed out by the trial court, who
between respondent and Jambrich possesses the financial capacity to
acquire the properties in dispute. At the time of the acquisition of the
properties in 1985 to 1986, Jambrich was gainfully employed at
Simmering-Graz Panker A.G., an Austrian company. He was earning an
estimated monthly salary of P50,000.00. Then, Jambrich was assigned
to Syria for almost one year where his monthly salary was
approximately P90,000.00.
On the other hand, respondent was employed as a waitress from 1984
to 1985 with a monthly salary of not more than P1,000.00. In 1986,
when the parcels of land were acquired, she was unemployed, as
admitted by her during the pre-trial conference. Her allegations of
income from a copra business were unsubstantiated. The supposed
copra business was actually the business of her mother and their
family, with ten siblings. She has no license to sell copra, and had not
filed any income tax return. All the motorized bancas of her mother
were lost to fire, and the last one left standing was already scrap.
Further, the Child Study Report 15 submitted by the Department of
Social Welfare and Development (DSWD) in the adoption proceedings
of respondents two sons by Jambrich disclosed that:
Antonietta tried all types of job to support the children until she was
accepted as a waitress at St. Moritz Restaurant in 1984. At first she had
no problem with money because most of the customers of St. Moritz
are (sic) foreigners and they gave good tips but towards the end of
1984 there were no more foreigners coming because of the situation in
the Philippines at that time. Her financial problem started then. She
was even renting a small room in a squatters area in Gorordo Ave.,
Cebu City. It was during her time of great financial distress that she
met Wilhelm Jambrich who later offered her a decent place for herself
and her children.16
The DSWD Home Study Report17 further disclosed that:
[Jambrich] was then at the Restaurant of St. Moritz when he saw
Antonietta Descallar, one of the waitresses of the said Restaurants. He
made friends with the girl and asked her to tutor him in [the] English
language. Antonietta accepted the offer because she was in need of
additional income to support [her] 2 young children who were
abandoned by their father. Their session was agreed to be scheduled
every afternoon at the residence of Antonietta in the squatters area in
Gorordo Avenue, Cebu City. The Austrian was observing the situation of
the family particularly the children who were malnourished. After a few
months sessions, Mr. Jambrich offered to transfer the family into a
decent place. He told Antonietta that the place is not good for the

children. Antonietta who was miserable and financially distressed at

that time accepted the offer for the sake of the children.18
Further, the following additional pieces of evidence point to Jambrich
as the source of fund used to purchase the three parcels of land, and to
construct the house thereon:
(1) Respondent Descallar herself affirmed under oath, during
her re-direct examination and during the proceedings for the
adoption of her minor children, that Jambrich was the owner of
the properties in question, but that his name was deleted in the
Deed of Absolute Sale because of legal constraints.
Nonetheless, his signature remained in the deed of sale, where
he signed as buyer.
(2) The money used to pay the subject parcels of land in
installments was in postdated checks issued by Jambrich.
Respondent has never opened any account with any bank.
Receipts of the installment payments were also in the name of
Jambrich and respondent.
(3) In 1986-1987, respondent lived in Syria with Jambrich and
her two children for ten months, where she was completely
under the support of Jambrich.
(4) Jambrich executed a Last Will and Testament, where he, as
owner, bequeathed the subject properties to respondent.
Thus, Jambrich has all authority to transfer all his rights, interests and
participation over the subject properties to petitioner by virtue of the
Deed of Assignment he executed on July 11, 1991.
Well-settled is the rule that this Court is not a trier of facts. The
findings of fact of the trial court are accorded great weight and respect,
if not finality by this Court, subject to a number of exceptions. In the
instant case, we find no reason to disturb the factual findings of the
trial court. Even the appellate court did not controvert the factual
findings of the trial court. They differed only in their conclusions of law.
Further, the fact that the disputed properties were acquired during the
couples cohabitation also does not help respondent. The rule that coownership applies to a man and a woman living exclusively with each
other as husband and wife without the benefit of marriage, but are
otherwise capacitated to marry each other, does not apply. 19 In the
instant case, respondent was still legally married to another when she

and Jambrich lived together. In such an adulterous relationship, no coownership exists between the parties. It is necessary for each of the
partners to prove his or her actual contribution to the acquisition of
property in order to be able to lay claim to any portion of it.
Presumptions of co-ownership and equal contribution do not apply.20
Second, we dispose of the issue of registration of the properties in the
name of respondent alone. Having found that the true buyer of the
disputed house and lots was the Austrian Wilhelm Jambrich, what now
is the effect of registration of the properties in the name of
respondent?
It is settled that registration is not a mode of acquiring ownership. 21 It
is only a means of confirming the fact of its existence with notice to the
world at large.22 Certificates of title are not a source of right. The mere
possession of a title does not make one the true owner of the property.
Thus, the mere fact that respondent has the titles of the disputed
properties in her name does not necessarily, conclusively and
absolutely make her the owner. The rule on indefeasibility of title
likewise does not apply to respondent. A certificate of title implies that
the title is quiet,23and that it is perfect, absolute and
indefeasible.24 However, there are well-defined exceptions to this rule,
as when the transferee is not a holder in good faith and did not acquire
the subject properties for a valuable consideration. 25 This is the
situation in the instant case. Respondent did not contribute a single
centavo in the acquisition of the properties. She had no income of her
own at that time, nor did she have any savings. She and her two sons
were then fully supported by Jambrich.
Respondent argued that aliens are prohibited from acquiring private
land. This is embodied in Section 7, Article XII of the 1987
Constitution,26 which is basically a reproduction of Section 5, Article XIII
of the 1935 Constitution,27and Section 14, Article XIV of the 1973
Constitution.28 The capacity to acquire private land is dependent on the
capacity "to acquire or hold lands of the public domain." Private land
may be transferred only to individuals or entities "qualified to acquire
or hold lands of the public domain." Only Filipino citizens or
corporations at least 60% of the capital of which is owned by Filipinos
are qualified to acquire or hold lands of the public domain. Thus, as the
rule now stands, the fundamental law explicitly prohibits non-Filipinos
from acquiring or holding title to private lands, except only by way of
legal succession or if the acquisition was made by a former naturalborn citizen.29
Therefore, in the instant case, the transfer of land from Agro-Macro
Development Corporation to Jambrich, who is an Austrian, would have

been declared invalid if challenged, had not Jambrich conveyed the

properties to petitioner who is a Filipino citizen. In United Church Board
for World Ministries v. Sebastian,30 the Court reiterated the consistent
ruling in a number of cases 31 that if land is invalidly transferred to an
alien who subsequently becomes a Filipino citizen or transfers it to a
Filipino, the flaw in the original transaction is considered cured and the
title of the transferee is rendered valid. Applying United Church Board
for World Ministries, the trial court ruled in favor of petitioner, viz.:
[W]hile the acquisition and the purchase of (sic) Wilhelm Jambrich of
the properties under litigation [were] void ab initio since [they were]
contrary to the Constitution of the Philippines, he being a foreigner,
yet, the acquisition of these properties by plaintiff who is a Filipino
citizen from him, has cured the flaw in the original transaction and the
title of the transferee is valid.
The trial court upheld the sale by Jambrich in favor of petitioner and
ordered the cancellation of the TCTs in the name of respondent. It
declared petitioner as owner in fee simple of the residential house of
strong materials and three parcels of land designated as Lot Nos. 1, 3
and 5, and ordered the Register of Deeds of Mandaue City to issue new
certificates of title in his name. The trial court likewise ordered
respondent to pay petitioner P25,000 as attorneys fees and P10,000
as litigation expenses, as well as the costs of suit.
We affirm the Regional Trial Court.
The rationale behind the Courts ruling in United Church Board for
World Ministries, as reiterated in subsequent cases, 32 is this since the
ban on aliens is intended to preserve the nations land for future
generations of Filipinos, that aim is achieved by making lawful the
acquisition of real estate by aliens who became Filipino citizens by
naturalization or those transfers made by aliens to Filipino citizens. As
the property in dispute is already in the hands of a qualified person, a
Filipino citizen, there would be no more public policy to be protected.
The objective of the constitutional provision to keep our lands in
Filipino hands has been achieved.
IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court
of Appeals in C.A. G.R. CV No. 42929 dated April 10, 2002 and its
Resolution dated July 8, 2003 are REVERSED and SET ASIDE. The
Decision of the Regional Trial Court of Mandaue City in Civil Case No.
MAN-1148 is REINSTATED.
SO ORDERED.

ONG
vs.
REPUBLIC OF THE
APPEALS, respondents.

CHIA, petitioner,
PHILIPPINES

and

THE

COURT

OF

MENDOZA, J.:
This is a petition for review of the decision 1 of the Court of Appeals
reversing the decision of the Regional Trial Court, Branch 24,
Koronadal, South Cotabato2 admitting petitioner Ong Chia to Philippine
citizenship.
The facts are as follows:
Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a
nine-year old boy, he arrived at the port of Manila on board the vessel
"Angking." Since then, he has stayed in the Philippines where he found
employment and eventually started his own business, married a
Filipina, with whom he had four children. On July 4, 1989, at the age of
66, he filed a verified petition to be admitted as a Filipino citizen under
C.A. No. 473, otherwise known as the Revised Naturalization Law, as
amended. Petitioner, after stating his qualifications as required in 2,
and lack of the disqualifications enumerated in 3 of the law, stated
17. That he has heretofore made (a) petition for citizenship
under the provisions of Letter of Instruction No. 270 with the
Special Committee on Naturalization, Office of the Solicitor
General, Manila, docketed as SCN Case No. 031776, but the
same was not acted upon owing to the fact that the said
Special Committee on Naturalization was not reconstituted
after the February, 1986 revolution such that processing of
petitions for naturalization by administrative process was
suspended;
During the hearings, petitioner testified as to his qualifications and
presented three witnesses to corroborate his testimony. So impressed
was Prosecutor Isaac Alvero V. Moran with the testimony of petitioner
that, upon being asked by the court whether the State intended to
present any witness present any witness against him, he remarked:
G.R. No. 127240

March 27, 2000

Actually, Your Honor, with the testimony of the petitioner

himself which is rather surprising, in the sense that he seems to
be well-versed with the major portion of the history of the
Philippines, so, on our part, we are convinced, Your Honor
Please, that petitioner really deserves to be admitted as a
citizen of the Philippines.And for this reason, we do not wish to
present any evidence to counteract or refute the testimony of
the witnesses for the petitioner, as well as the petitioner
himself.3

required in accordance with Art. 76 of the Civil Code because petitioner

and Ramona Villaruel had been living together as husband and wife
since 1953 without the benefit of marriage. This, according to the
State, belies his claim that when he started living with his wife in 1953,
they had already been married.

Accordingly, on August 25, 1999, the trial court granted the petition
and admitted petitioner to Philippine citizenship. The State, however,
through the Office of the Solicitor General, appealed all the names by
which he is or had been known; (2) failed to state all his former placer
of residence in violation of C.A. No. 473, 7; (3) failed to conduct
himself in a proper and irreproachable manner during his entire stay in
the Philippines, in violation of 2; (4) has no known lucrative trade or
occupation and his previous incomes have been insufficient or
misdeclared, also in contravention of 2; and (5) failed to support his
petition with the appropriate documentary evidence.4

On November 15, 1996, the Court of Appeals rendered its decision

which, as already noted, reversed the trial court and denied
petitioner's application for naturalization. It ruled that due to the
importance naturalization cases, the State is not precluded from
raising questions not presented in the lower court and brought up for
the first time on appeal. 11 The appellate court held:

Annexed to the State's appellant's brief was a copy of a 1977 petition

for naturalization filed by petitioner with the Special Committee on
Naturalization in SCN Case No. 031767, 5 in which petitioner stated that
in addition to his name of "Ong Chia," he had likewise been known
since childhood as "Loreto Chia Ong." As petitioner, however, failed to
state this other name in his 1989 petition for naturalization, it was
contended that his petition must fail.6The state also annexed income
tax returns7 allegedly filed by petitioner from 1973 to 1977 to show
that his net income could hardly support himself and his family. To
prove that petitioner failed to conduct himself in a proper and
irreproachable manner during his stay in the Philippines, the State
contended that, although petitioner claimed that he and Ramona
Villaruel had been married twice, once before a judge in 1953, and
then again in church in 1977, petitioner actually lived with his wife
without the benefit of marriage from 1953 until they were married in
1977. It was alleged that petitioner failed to present his 1953 marriage
contract, if there be any. The State also annexed a copy of petitioner's
1977 marriage contract8 and a Joint-Affidavit9 executed by petitioner
and his wife. These documents show that when petitioner married
Ramona Villaruel on February 23, 1977, no marriage license had been

The State also argued that, as shown by petitioner's Immigrant

Certificate of Residence, 10 petitioner resided at "J.M. Basa Street,
Iloilo," but he did not include said address in the petition.

As correctly observed by the Office of the Solicitor General,

petitioner Ong Chia failed to state in this present petition for
naturalization his other name, "LORETO CHIA ONG," which
name appeared in his previous application under Letter of
Instruction No. 270. Names and pseudonyms must be stated in
the petition for naturalization and failure to include the same
militates against a decision in his favor. . . This is a mandatory
requirement to allow those persons who know (petitioner) by
those other names to come forward and inform the authorities
of any legal objection which might adversely affect his
application for citizenship.
Furthermore, Ong Chia failed to disclose in his petition for
naturalization that he formerly resided in "J.M. Basa St., Iloilo"
and "Alimodian, Iloilo." Section 7 of the Revised Naturalization
Law requires the applicant to state in his petition "his present
and former places of residence." This requirement is mandatory
and failure of the petitioner to comply with it is fatal to the
petition. As explained by the Court, the reason for the provision
is to give the public, as well as the investigating agencies of the
government, upon the publication of the petition, an
opportunity to be informed thereof and voice their objections
against the petitioner. By failing to comply with this provision,

the petitioner is depriving the public and said agencies of such

opportunity, thus defeating the purpose of the law. . .
Ong Chia had not also conducted himself in a proper and
irreproachable manner when he lived-in with his wife for
several years, and sired four children out of wedlock. It has
been the consistent ruling that the "applicant's 8-year
cohabitation with his wife without the benefit of clergy and
begetting by her three children out of wedlock is a conduct far
from being proper and irreproachable as required by the
Revised Naturalization Law", and therefore disqualifies him
from becoming a citizen of the Philippines by naturalization . . .
Lastly, petitioner Ong Chia's alleged annual income in 1961 of
P5,000.00, exclusive of bonuses, commissions and allowances,
is not lucrative income. His failure to file an income tax return
"because he is not liable for income tax yet" confirms that his
income is low. . . "It is not only that the person having the
employment gets enough for his ordinary necessities in life. It
must be shown that the employment gives one an income such
that there is an appreciable margin of his income over
expenses as to be able to provide for an adequate support in
the event of unemployment, sickness, or disability to work and
thus avoid one's becoming the object of charity or public
charge." . . . Now that they are in their old age, petitioner Ong
Chia and his wife are living on the allowance given to them by
their children. The monthly pension given by the elder children
of the applicant cannot be added to his income to make it
lucrative because like bonuses, commissions and allowances,
said pensions are contingent, speculative and precarious. . .
Hence, this petition based on the following assignment of errors:
I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN
RULING THAT IN NATURALIZATION CASES, THE APPELLATE
COURT CAN DENY AN APPLICATION FOR PHILIPPINE CITIZENSHIP
ON THE BASIS OF DOCUMENTS NOT PRESENTED BEFORE THE
TRIAL COURT AND NOT FORMING PART OF THE RECORDS OF
THE CASE.

II. THE FINDING OF THE COURT OF APPEALS THAT THE

PETITIONER HAS BEEN KNOWN BY SOME OTHER NAME NOT
STATED IN HIS PETITION IS NOT SUPPORTED BY THE EVIDENCE
ON RECORD.
III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS,
THE PETITIONER STATED IN HIS PETITION AND ITS ANNEXES HIS
PRESENT AND FORMER PLACES OF RESIDENCE.
IV. THE FINDING OF THE COURT OF APPEALS THAT THE
PETITIONER FAILED TO CONDUCT HIMSELF IN A PROPER AND
IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE
EVIDENCE ON RECORD.
Petitioner's principal contention is that the appellate court erred in
considering the documents which had merely been annexed by the
State to its appellant's brief and, on the basis of which, justified the
reversal of the trial court's decision. Not having been presented and
formally offered as evidence, they are mere "scrap(s) of paper devoid
of any evidentiary value," 12 so it was argued, because under Rule 132,
34 of the Revised Rules on Evidence, the court shall consider no
evidence which has not been formally offered.
The contention has no merit. Petitioner failed to note Rule 143
Rules of Court which provides that

13

of the

These rules shall not apply to land registration, cadastral and

election cases, naturalization and insolvency proceedings, and
other cases not herein provided for, except by analogy or in a
suppletory character and whenever practicable and convenient.
(Emphasis added).
Prescinding from the above, the rule on formal offer of evidence (Rule
132, 34) now being invoked by petitioner is clearly not applicable to
the present case involving a petition for naturalization. The only
instance when said rules may be applied by analogy or suppletorily in
such cases is when it is "practicable and convenient." That is not the
case here, since reliance upon the documents presented by the State
for the first time on appeal, in fact, appears to be the more practical
and convenient course of action considering that decisions in
naturalization proceedings are not covered by the rule on res

judicata. 14 Consequently, a final favorable judgment does not preclude

the State from later on moving for a revocation of the grant of
naturalization on the basis of the same documents.
Petitioner claims that as a result of the failure of the State to present
and formally offer its documentary evidence before the trial court, he
was denied the right to object against their authenticity, effectively
depriving him of his fundamental right to procedural due process. 15 We
are not persuaded. Indeed, the reason for the rule prohibiting the
admission of evidence which has not been formally offered is to afford
the
opposite
party
the
chance
to
object
to
their
admissibility. 16 Petitioner cannot claim that he was deprived of the
right to object to the authenticity of the documents submitted to the
appellate court by the State. He could have included his objections, as
he, in fact, did, in the brief he filed with the Court of Appeals. thus:
The authenticity of the alleged petition for naturalization (SCN
Case No. 031767) which was supposedly filed by Ong Chia
under LOI 270 has not been established. In fact, the case
number of the alleged petition for naturalization. . .
is 031767 while the case number of the petition actually filed
by the appellee is 031776. Thus, said document is totally
unreliable and should not be considered by the Honorable Court
in resolving the instant appeal. 17
Indeed, the objection is flimsy as the alleged discrepancy is trivial, and,
at most, can be accounted for as a typographical error on the part of
petitioner himself. That "SCN Case No. 031767," a copy of which was
annexed to the petition, is the correct case number is confirmed by the
Evaluation Sheet 18 of the Special Committee on Naturalization which
was also docketed as "SCN Case No. 031767." Other than this,
petitioner offered no evidence to disprove the authenticity of the
documents presented by the State.

Furthermore, the Court notes that these documents namely, the

petition in SCN Case No. 031767, petitioner's marriage contract, the
joint affidavit executed by him and his wife, and petitioner's income tax
returns are all public documents. As such, they have been executed
under oath. They are thus reliable. Since petitioner failed to make a
satisfactory showing of any flaw or irregularity that may cast doubt on
the authenticity of these documents, it is our conclusion that the
appellate court did not err in relying upon them.
One last point. The above discussion would have been enough to
dispose of this case, but to settle all the issues raised, we shall briefly
discuss the effect of petitioner's failure to include the address "J.M.
Basa St., Iloilo" in his petition, in accordance with 7, C.A. No. 473. This
address appears on petitioner's Immigrant Certificate of Residence, a
document which forms part of the records as Annex A of his 1989
petition for naturalization. Petitioner admits that he failed to mention
said address in his petition, but argues that since the Immigrant
Certificate of Residence containing it had been fully published, 19 with
the petition and the other annexes, such publication constitutes
substantial compliance with 7. 20 This is allegedly because the
publication effectively satisfied the objective sought to be achieved by
such requirement, i.e., to give investigating agencies of the
government the opportunity to check on the background of the
applicant and prevent suppression of information regarding any
possible misbehavior on his part in any community where he may have
lived at one time or another. 21 It is settled, however, that naturalization
laws should be rigidly enforced and strictly construed in favor of the
government and against the applicant. 22 As noted by the State, C.A.
No. 473, 7 clearly provides that the applicant for naturalization shall
set forth in the petition his present and former places of
residence. 23 This provision and the rule of strict application of the law
in naturalization cases defeat petitioner's argument of "substantial
compliance" with the requirement under the Revised Naturalization
Law. On this ground alone, the instant petition ought to be
denied.1wphi1.nt
WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the
instant petition is hereby DENIED.
SO ORDERED.

Representatives of the Congress of the Philippines, and

JOCELYN SY LIMKAICHONG, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 179132-33

July 30, 2009

OLIVIA
P.
PARAS, Petitioner,
vs.
HON. PROSPERO NOGRALES, in his capacity as Speaker of the
House of Representatives; HON. ROBERTO NAZARENO, in his
capacity as Secretary General of the House of Representatives;
HON. RHODORA SEVILLA, in her capacity as Deputy Secretary
General for Finance of the House of Representatives; THE
COMMISSION
ON
ELECTIONS
and
JOCELYN
SY
LIMKAICHONG, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. Nos. 179240-41

July 30, 2009

RENALD
F.
vs.
COMMISSION
ON
ELECTIONS
LIMKAICHONG, Respondents.

VILLANDO, Petitioner,
and

JOCELYN

SY

RESOLUTION
PERALTA, J.:
G.R. Nos. 178831-32

July 30, 2009

JOCELYN
SY
LIMKAICHONG, Petitioner,
vs.
COMMISSION ON ELECTIONS, NAPOLEON N. CAMERO and
RENALD F. VILLANDO, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 179120
LOUIS
vs.
HON. PROSPERO

July 30, 2009

C.
NOGRALES,

BIRAOGO, Petitioner,
Speaker

of

the

House

of

The instant motion with prayer for oral argument filed by Louis C.
Biraogo, petitioner in G.R. No. 179120, seeks a reconsideration of the
Courts April 1, 2009 Decision, which granted Jocelyn D. Sy
Limkaichongs petition forcertiorari in G.R. Nos. 178831-32. The Court
dismissed all the other petitions, including Biraogos petition, and
reversed the Joint Resolution of the Commission on Elections
(COMELEC) Second Division dated May 17, 2007 in SPA Nos. 07-247
and 07-248 disqualifying Limkaichong from running as a congressional
candidate in the First District of Negros Oriental due to lack of
citizenship requirement.
Biraogo prefaced his motion by stating that justice and
constitutionalism must remain entrenched in Philippine case law. To
achieve this end, he maintained that the Court should reconsider its
April 1, 2009 Decision. He also prayed for an oral argument, which he

posited, would help the Court in the just and proper disposition of the
pending incident.
After an assiduous review of the motion for reconsideration, we resolve
that the same should be denied for lack of merit.
Most of the arguments advanced by Biraogo are a mere rehash of his
previous arguments, which we have all considered and found without
merit in the Decision dated April 1, 2009. Nonetheless, in order to lay
to rest once and for all Biraogo's misgivings, we shall discuss only the
relevant issues and revalidate our Decision by ruling on his motion as
follows:
The core issue in the consolidated petitions is the qualification of
Limkaichong to run for, be elected to, and assume and discharge, the
position of Representative for the First District of Negros Oriental. The
contention of the parties who sought her disqualification is that she is
not a natural-born citizen, hence, she lacks the citizenship requirement
in Section 6,1 Article VI of the 1987 Constitution. In the election that
ensued, she was voted for by the constituents of Negros Oriental and
garnered the highest votes. She was eventually proclaimed as the
winner and has since performed her duties and responsibilities as
Member of the House of Representatives.
Indeed, the citizenship requirement was enshrined in our Constitution
in order to ensure that our people and country do not end up being
governed by aliens.2 With this principle in mind, we have said in Aquino
v. COMELEC3 that if one of the essential qualifications for running for
membership in the House of Representatives is lacking, then not even
the will of a majority or plurality of the voters would substitute for a
requirement mandated by the fundamental law itself. Hence assuming,
time constraints notwithstanding, and after proper proceedings before
the proper tribunal be had, that Limkaichong would prove to be an
alien, the court of justice would tilt against her favor and would not
sanction such an imperfection in her qualification to hold office. But,
first things first.
The proponents against Limkaichong's qualification stated that she is
not a natural-born citizen because her parents were Chinese citizens at
the time of her birth. They went on to claim that the proceedings for
the naturalization of Julio Ong Sy, her father, never attained finality
due to procedural and substantial defects.
In our Decision, We held that:

However, in assailing the citizenship of the father, the proper

proceeding should be in accordance with Section 18 of Commonwealth
Act No. 473 which provides that:
Sec. 18. Cancellation of Naturalization Certificate Issued. - Upon
motion made in the proper proceedings by the Solicitor
General or his representative, or by the proper provincial
fiscal, the competent judge may cancel the naturalization
certificate issued and its registration in the Civil Register:
1. If it is shown that said naturalization certificate was obtained
fraudulently or illegally;
2. If the person naturalized shall, within five years next
following the issuance of said naturalization certificate, return
to his native country or to some foreign country and establish
his permanent residence there: Provided, That the fact of the
person naturalized remaining more than one year in his native
country or the country of his former nationality, or two years in
any other foreign country, shall be considered asprima
facie evidence of his intention of taking up his permanent
residence in the same:
3. If the petition was made on an invalid declaration of
intention;
4. If it is shown that the minor children of the person
naturalized failed to graduate from a public or private high
school recognized by the Office of Private Education [now
Bureau of Private Schools] of the Philippines, where Philippine
history, government or civics are taught as part of the school
curriculum, through the fault of their parents either by
neglecting to support them or by transferring them to another
school or schools. A certified copy of the decree canceling the
naturalization certificate shall be forwarded by the Clerk of
Court of the Department of Interior [now Office of the
President] and the Bureau of Justice [now Office of the Solicitor
General];
5. If it is shown that the naturalized citizen has allowed himself
to be used as a dummy in violation of the constitutional or legal
provisions requiring Philippine citizenship as a requisite for the
exercise, use or enjoyment of a right, franchise or privilege.
(Emphasis supplied)

As early as the case of Queto v. Catolico, where the Court of First

Instance judge motu propio and not in the proper denaturalization
proceedings called to court various grantees of certificates of
naturalization (who had already taken their oaths of allegiance) and
cancelled their certificates of naturalization due to procedural
infirmities, the Court held that:
x x x It may be true that, as alleged by said respondents, that the
proceedings for naturalization were tainted with certain
infirmities, fatal or otherwise, but that is beside the point in this
case. The jurisdiction of the court to inquire into and rule upon such
infirmities must be properly invoked in accordance with the procedure
laid down by law. Such procedure is the cancellation of the
naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in
the manner fixed in Section 18 of Commonwealth Act No. 473,
hereinbefore quoted, namely, "upon motion made in the proper
proceedings by the Solicitor General or his representatives, or by the
proper provincial fiscal." In other words, the initiative must come
from these officers, presumably after previous investigation in
each particular case. (Emphasis supplied)
Clearly, under law and jurisprudence, it is the State, through its
representatives designated by statute, that may question the illegally
or invalidly procured certificate of naturalization in the appropriate
denaturalization proceedings. It is plainly not a matter that may be
raised by private persons in an election case involving the naturalized
citizens descendant.
Accordingly, it is not enough that one's qualification, or lack of it, to
hold an office requiring one to be a natural-born citizen, be attacked
and questioned before any tribunal or government institution. Proper
proceedings must be strictly followed by the proper officers under the
law. Hence, in seeking Limkaichong's disqualification on account of her
citizenship, the rudiments of fair play and due process must be
observed, for in doing so, she is not only deprived of the right to hold
office as a Member of the House of Representative but her constituents
would also be deprived of a leader in whom they have put their trust
on through their votes. The obvious rationale behind the foregoing
ruling is that in voting for a candidate who has not been disqualified by
final judgment during the election day, the people voted for her bona
fide, without any intention to misapply their franchise, and in the
honest belief that the candidate was then qualified to be the person to
whom they would entrust the exercise of the powers of
government.4lavvphil

These precepts, notwithstanding, Biraogo remained firm in his belief

that this Court erred in its Decision and that the COMELEC Joint
Resolution dated May 17, 2007 disqualifying Limkaichong should have
been affirmed. He even went to a great extent of giving a dichotomy of
the said Joint Resolution by stating that it was composed of two parts,
the first part of which is the substantive part, and the second, pertains
to the injunctive part. For this purpose, the dispositive portion of the
said COMELEC Joint Resolution is reproduced below:
WHEREFORE, the Petitions are GRANTED and Jocelyn D. SyLimkaichong is declared as DISQUALIFIED from her candidacy for
Representative of the First District of Negros Oriental.
The Provincial Supervisor of the Commission on Elections of Negros
Oriental is hereby directed to strike out the name JOCELYN SYLIMKAICHONG from the list of eligible candidates for the said position,
and the concerned Board of Canvassers is hereby directed to hold
and/or suspend the proclamation of JOCELYN SY-LIMKAICHONG as
winning candidate, if any, until this decision has become final.
SO ORDERED.5
Biraogo maintained that the Motion for Reconsideration filed by
Limkaichong suspended only the execution of the substantive relief or
the first part of the above-quoted COMELEC Joint Resolution. However,
it did not suspend the execution of the injunctive part and, accordingly,
the Provincial Supervisor of the COMELEC should not have proceeded
with Limkaichong's proclamation as the winning candidate in the
elections.
His argument has no leg to stand on. We cannot take a decision or
resolution on a piece-meal basis and apply only that part which is
seemingly beneficial to one's cause and discard the prejudicial part
which, obviously, would just be a hindrance in advancing one's stance
or interests. Besides, the COMELEC Joint Resolution which Biraogo
dichotomized was effectively suspended when Limkaichong timely filed
her Motion for Reconsideration pursuant to Section 13(c), 6 Rule 18 and
Section 2,7 Rule 19 of the COMELEC Rules of Procedure. Hence, it
cannot as yet be implemented for not having attained its finality.
Nevertheless, events have already transpired after the COMELEC has
rendered its Joint Resolution. Limkaichong was proclaimed by the
Provincial Board of Canvassers, she had taken her oath of office, and
she was allowed to officially assume the office on July 23, 2007.
Accordingly, we ruled in our April 1, 2009 Decision that the House of
Representatives Electoral Tribunal (HRET), and no longer the COMELEC,

should now assume jurisdiction over the disqualification cases.

Pertinently, we held:
x x x The Court has invariably held that once a winning candidate has
been proclaimed, taken his oath, andassumed office as a Member
of the House of Representatives, the COMELEC's jurisdiction over
election contests relating to his election, returns, and
qualifications ends, and the HRET's own jurisdiction begins.8 It
follows then that the proclamation of a winning candidate divests the
COMELEC of its jurisdiction over matters pending before it at the time
of the proclamation. The party questioning his qualification should now
present his case in a proper proceeding before the HRET, the
constitutionally mandated tribunal to hear and decide a case involving
a Member of the House of Representatives with respect to the latter's
election, returns and qualifications. The use of the word "sole" in
Section 17, Article VI of the Constitution and in Section 2509 of the OEC
underscores the exclusivity of the Electoral Tribunals' jurisdiction over
election contests relating to its members.10
Section 17, Article VI of the 1987 Constitution provides:
Sec. 17. The Senate and the House of Representatives shall each
have an Electoral Tribunal which shall be the sole judge of all
contests relating to the election, returns, and qualifications of
their respective Members. Each Electoral Tribunal shall be
composed of nine Members, three of whom shall be Justices of the
Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis
of proportional representation from the political parties and the parties
or organizations registered under the party-list system represented
therein. The senior Justice in the Electoral Tribunal shall be its
Chairman.
xxxx
Petitioners (in G.R. Nos. 179120, 179132-33, and 179240-41)
steadfastly maintained that Limkaichongs proclamation was tainted
with irregularity, which will effectively prevent the HRET from acquiring
jurisdiction.
The fact that the proclamation of the winning candidate, as in this
case, was alleged to have been tainted with irregularity does not divest
the HRET of its jurisdiction.11 The Court has shed light on this in the
case of Vinzons-Chato,12 to the effect that:

In the present case, it is not disputed that respondent Unico has

already been proclaimed and taken his oath of office as a Member of
the House of Representatives (Thirteenth Congress); hence, the
COMELEC correctly ruled that it had already lost jurisdiction over
petitioner Chato's petition. The issues raised by petitioner Chato
essentially relate to the canvassing of returns and alleged invalidity of
respondent Unico's proclamation. These are matters that are best
addressed to the sound judgment and discretion of the HRET.
Significantly, the allegation that respondent Unico's proclamation is
null and void does not divest the HRET of its jurisdiction:
x x x [I]n an electoral contest where the validity of the proclamation of
a winning candidate who has taken his oath of office and assumed his
post as congressman is raised, that issue is best addressed to the
HRET. The reason for this ruling is self-evident, for it avoids duplicity of
proceedings and a clash of jurisdiction between constitutional bodies,
with due regard to the people's mandate.
Further, for the Court to take cognizance of petitioner Chato's election
protest against respondent Unico would be to usurp the constitutionally
mandated functions of the HRET.
In fine, any allegations as to the invalidity of the proclamation will not
prevent the HRET from assuming jurisdiction over all matters essential
to a members qualification to sit in the House of Representatives.
The 1998 HRET Rules, as amended, provide for the manner of filing
either an election protest or a petition for quo warranto against a
Member of the House of Representatives. In our Decision, we ruled that
the ten-day prescriptive period under the 1998 HRET Rules does not
apply to disqualification based on citizenship, because 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.13 Accordingly, the 1987 Constitution requires that Members
of the House of Representatives must be natural-born citizens not only
at the time of their election but during their entire tenure. Being a
continuing requirement, one who assails a member's citizenship or lack
of it may still question the same at any time, the ten-day prescriptive
period notwithstanding.lavvphi1
In fine, we hold that Biraogo had not successfully convinced us to
reconsider our Decision and grant his motion for reconsideration.

In a last-ditched attempt to muddle the issues, Biraogo observed that

the Decision dated April 1, 2009 is a complete turn-around from the
ruling embodied in the Decision written by Justice Ruben T. Reyes
which, although unpromulgated, was nonetheless signed by fourteen
(14) Associate Justices and approved by the Court en banc on July 15,
2008. He decried the absence of an explanation in the Decision dated
April 1, 2009 for the said departure or turn-around.
Such a position deserves scant consideration.
The Court in Belac v. Commision on Elections,14 held that a decision
must not only be signed by the Justices who took part in the
deliberation, but must also be promulgated to be considered
a Decision, to wit:
[A] true decision of the Court is the decision signed by the
Justices and duly promulgated. Before that decision is so
signed and promulgated, there is no decision of the Court to
speak of. The vote cast by a member of the Court after the
deliberation is always understood to be subject to confirmation at the
time he has to sign the decision that is to be promulgated. The vote is
of no value if it is not thus confirmed by the Justice casting it. The
purpose of this practice is apparent. Members of this Court, even after
they have cast their votes, wish to preserve their freedom of action till
the last moment when they have to sign the decision, so that they may
take full advantage of what they may believe to be the best fruit of
their most mature reflection and deliberation. In consonance with this
practice, before a decision is signed and promulgated, all
opinions and conclusions stated during and after the
deliberation of the Court, remain in the breasts of the Justices,
binding upon no one, not even upon the Justices themselves. Of
course, they may serve for determining what the opinion of the
majority provisionally is and for designating a member to prepare the

decision of the Court, but inno way is that decision binding unless
and until signed and promulgated.
We add that at any time before promulgation, the ponencia may be
changed by the ponente. Indeed, if any member of the court who may
have already signed it so desires, he may still withdraw his
concurrence and register a qualification or dissent as long as the
decision has not yet been promulgated. A promulgation signifies
that on the date it was made the judge or judges who signed
the decision continued to support it.
Thus, an unpromulgated decision is no decision at all. At the very least,
they are part of the confidential internal deliberations of the Court
which must not be released to the public. A decision becomes binding
only after it is validly promulgated.15 Until such operative act occurs,
there is really no decision to speak of, even if some or all of the Justices
have already affixed their signatures thereto. During the intervening
period from the time of signing until the promulgation of the decision,
any one who took part in the deliberation and had signed the decision
may, for a reason, validly withdraw one's vote, thereby preserving
one's freedom of action.
In sum, we hold that Biraogos Motion for Reconsideration with Prayer
for Oral Argument must be denied. This Court did not err in ruling that
the proper remedy of those who may assail Limkaichong's
disqualification based on citizenship is to file before the HRET the
proper petition at any time during her incumbency.
WHEREFORE, the Motion for Reconsideration with Prayer for Oral
Argument filed by petitioner Louis C. Biraogo in G.R. No. 179120 is
DENIED with FINALITY.
SO ORDERED.