Socrates vs COMELEC, 391 SCRA 457; G.R. No. 154512,
A recall election mid-way in the term
November 12, 2002
(Local Government, Recall Election: Exception to the 3 term
limit)
Facts: COMELEC gave due course to the Recall Resolution
against Mayor Socrates of the City of Puerto Princesa, and
scheduled the recall election on September 7, 2002.
On August 23, 2002, Hagedorn filed his COC for mayor in the
recall election.
Different petitioners filed their respective petitions, which
were consolidated seeking the disqualification of Hagedorn to
run for the recall election and the cancellation of his COC on
the ground that the latter 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 in 1992, 1995 and 1998 immediately prior to the
instant recall election for the same post.
COMELECs First Division dismissed in a resolution the
petitioner for lack of merit. And COMELEC declared Hagedorn
qualified to run in the recall election.
Issue: WON one who has been elected and served for 3
consecutive full terms is qualified to run for mayor in the
recall election.
Held: Yes. 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.
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 re-election 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 re-election after three consecutive terms. Second,
the intervening period constitutes an involuntary interruption
in the continuity of service.
Based from the deliberations of a Constitutional Commission,
what the Constitution prohibits is an immediate re-
election for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a
subsequent re-election for a fourth term as long as the re-
election is not immediately after the end of the third
consecutive term.
following the third consecutive term is a subsequent election
but not an immediate re-election after the third term.
Neither does the Constitution prohibit one barred from
seeking immediate re-election to run in any other subsequent
election involving the same term of office. What the
Constitution prohibits is a consecutive fourth term.
In the case of Hagedorn, his candidacy in the recall election
on September 24, 2002 is not an immediate re-election after
his third consecutive term which ended on June 30, 2001. The
immediate re-election that the Constitution barred Hagedorn
from seeking referred to the regular elections in 2001.
Adormeo vs COMELEC [76 SCRA 90; GR 147927;
February 4, 2002]
(Municipal Corporation: Interruption, Recall Exception to the
3 term limit)
Facts: Petitioner and private respondent incumbent mayor
were the only candidates who filed their COC for mayor of
Lucena City in the May 2001 elections.
Private respondent was elected mayor in May 1992, where he
served the full term. Again, he was re-elected in May 1995,
where he again served the full term. In the recall election of
May 2000, he again won and served only the unexpired term
of Tagarao after having lost to the latter in the 1998 election.
Petitioner filed a petition to cancel COC and/or disqualification
of the respondent in the ground that the latter was elected
and had served as city mayor for 3 consecutive terms
contending that serving the unexpired term of office is
considered as 1 term.
Private respondent maintains that his service as city mayor of
Lucena is not consecutive. He lost his bid for a second re-
election in 1998 and during Tagaraos incumbency, he was a
private citizen, thus he had not been a mayor for 3
consecutive terms.
Section 8, Article X of the 1987 Constitution provides that the
term of office of elective officials, except barangay officials,
which shall be determined by law, shall be 3 years and no
such official shall serve for more than 3 consecutive terms.
Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of
service for the full term for which the elective official
concerned was elected.
Section 43(b) of RA 7160 (Local Government Code) provides
that no local elective official shall serve for more than 3
consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for
the full term for which the elective official concerned was
elected.
Issue: WON private respondent had already served 3
consecutive term for mayor of Lucena City.
Held: No. Private respondent was not elected for 3
consecutive terms. For nearly 2 years, he was a private
citizen. The continuity of his term as mayor was disrupted by
his defeat in the 1998 elections.
Neither can respondents victory in the recall election be
deemed a voluntary renunciation for clearly it is not. 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 (Lonzanida vs COMELEC).
Hence, being elected in a recall election interrupts the 3
consecutive term limit.
Note: Recall a petition designed to remove an official from
office by reason of lack of confidence. It is initiated only in the
middle of the year.
AGUINALDO vs. COMELEC
Before us is a petition for prohibition under Rule 65 of
the Revised Rules of Court, with a prayer for the issuance of a
writ of preliminary injunction and/or a temporary restraining
order.
Petitioners, at the time of the filing of the petition, were
incumbent provincial or municipal officials in
Cagayan. Petitioner Rodolfo E. Aguinaldo was governor;
Florencio L. Vargas, vice governor; Romeo I. Calubaquib,
member of the Sangguniang Panlalawigan; Amado T.
Gonzales, member of the Sangguniang Panlalawigan; Silverio
C. Salvanera, member of the Sangguniang Panlalawigan;
Alberta O. Quinto, mayor of the municipality of Peablanca; and
Aurora V. Estabillo, mayor of the municipality of Sta. Praxedes.
Petitioners seek to prevent the COMELEC from enforcing
during the 1998 elections Section 67 of the Omnibus Election
Code (B.P. Blg. 881) in accordance with its own tenor or as
modified by paragraph 3 of Section 11 of Republic Act No.
8436.
Section 67 of the Omnibus Election Code reads:
Sec. 67. Candidates holding elective office. -- Any elective
official, whether national or local, running for any office other
than the one which he is holding in a permanent capacity,
except for President and Vice-President, shall be considered
ipso facto resigned from his office upon the filing of his
certificate of candidacy.
On the other hand, the third paragraph of Section 11 of
R.A. No. 8436 reads:
SEC. 11. Official Ballot. --
Provided, That any elective official, whether national or local,
running for any office other than the one he/she is holding in a
permanent capacity, except for president and vice-president,
shall be deemed resigned only upon the start of the campaign
period corresponding to the position for which he/she is
running;
Petitioners contend that Section 67, of the Omnibus
Election Code is violative of the equal protection clause of the
Constitution, as its classification of persons running for office
is not a valid classification, following the guidelines laid down
by the Court in People v. Cayat.[1] According to the doctrine
laid down in Cayat, for a classification to be valid, (1) it must
be based upon substantial distinctions, (2) it must be
germane to the purpose of the law, (3) it must not be limited
to existing conditions only, and (4) it must apply equally to all
members of the same class.
Petitioners contend that the classification in Section 67 is
not based on substantial distinctions and, thus, violative of
the equal protection clause of the Constitution.
According to petitioners, candidates for elective office
are classified into the following groups under Section 67:
(a) First classification: an incumbent elective official who runs
for the same position as his present incumbency (and)
another incumbent elective official running for another
position; and
(b) Second Classification: an incumbent elective official who
runs for president or vice-president(and) another incumbent
elective [official] running for any other position (i.e., not his
incumbency nor for president or vice president) [2]
Petitioners argue that, in the first classification, the
reelectionist is given an undue advantage since he is able to
use the resources, prestige, and influence of his position. The
same is not available to one seeking an office different from
the one he is presently holding. This, according to petitioners,
does not equalize the playing field for all candidates.
As regards the second classification, petitioners argue
that there is no basis for giving candidates for president or
vice president the special privilege[3] of remaining in office.
Petitioners claim that the classifications result into
absurd or unwanted and difficult situations [4] and give the
following examples: (1) a mayor who runs for president
remains as mayor even though he is physically absent from
his city or municipality because he campaigns nationwide; (2)
a councilor or vice mayor who runs for mayor is considered
resigned from his position although he remains physically
present in his locality; (3) a president -- a national official --
who runs for a lower position is considered resigned from
office, while the mayor -- a local official -- who runs for
president is not.
Petitioners contend that the classifications could have
been made without sufficient study,[5] as the Omnibus Election
Code was passed during the Marcos years, when no one could
honestly believe he could be elected president or even vice
president.[6]Also during that time, members of the Batasang
Pambansa could run for reelection indefinitely so it was not
likely for any of them to run for a lower position. Petitioners
say that Section 67 was largely ignored as an innocous (sic)
oddity.[7] Their thesis therefore is that the provision did not get
sufficient attention and analysis that would have brought out
its constitutional infirmities.[8]
Petitioners also argue that Section 67 effectively
shortens the terms of office of elected officials, in violation of
Article X, Section 8 of the Constitution, which provides:
Sec. 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office
for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected.
Petitioners lament that no relevant discussions [9] seem to
have been made in relation to the re-enactment of Section 67
of the Omnibus Election Code into Section 11 of R.A. No. 8436.
The COMELEC, on the other hand, asserts that the
classification embodied in Section 67 is reasonable and based
on substantial distinction. It points out that incumbents
running for the same position are not considered resigned
because the intention of the law is to allow them to continue
serving their constituents and avoid a disruption in the
delivery of essential services. Those running for different
positions are considered resigned because they are
considered to have abandoned their present position by their
act of running for other posts.
For his part, the Solicitor General points out that the
issue regarding Section 67 had already been passed upon by
the Court in the case of Dimaporo v. Mitra, Jr.[10]
Mohammad Ali Dimaporo was a congressman
representing the second legislative district of Lanao del Sur.
On January 15, 1990, he filed a certificate of candidacy for the
position of governor of the Autonomous Region in Muslim
Mindanao (ARMM). The COMELEC thereafter informed the
House of Representatives of this matter. Then House Speaker
Ramon V. Mitra, Jr. and the Secretary of the House of
Representatives Camilo L. Sabio excluded his name from the
roll of members.
Dimaporo lost in the ARMM elections. He wrote Mitra a
letter expressing his desire to resume his functions as a
member of the House of Representatives. It appears that this
did not materialize; thus, Dimaporo filed a petition with the
Supreme Court praying for his reinstatement.
Dimaporo claimed that his act of filing a certificate of
candidacy for another position did not divest him of his seat
as a member of the House of Representatives. He alleged that
Section 67 of the Omnibus Election Code was no longer
operative as it is violative of the Constitution. Dimaporo said
Section 67 shortens the term of office of a congressman on a
ground not provided for under Article XVIII, Section 2 of the
Constitution,[11] in relation to Article VI, Section 7.[12]
Dimaporo asserted that, as provided by law, the term of
a member of the House of Representatives may only be
shortened through the following:
(1) Forfeiture of his seat by holding any other office
or employment in the government or any
subdivision, agency or instrumentality thereof,
including government-owned or controlled
corporations or subsidiaries;[13]
(2) Expulsion as a disciplinary action for disorderly
behavior;[14]
(3) Disqualification as determined by resolution of
the Electoral Tribunal in an election contest;
[15]
and
(4) Voluntary renunciation of office.[16]
The Court proceeded to trace the history and examine
the rationale behind Section 67. We then ruled:
... rather than cut short the term of office of elective public
officials, this statutory provision seeks to ensure that such
officials serve out their entire term of office by discouraging
them from running for another public office and thereby
cutting short their tenure by making it clear that should they
fail in their candidacy, they cannot go back to their former
position. This is consonant with the constitutional edict that all
public officials must serve the people with utmost loyalty and
not trifle with the mandate which they have received from
their constituents.[17]
Indeed, we have dealt squarely with the issue of the
validity of Section 67 of the Omnibus Election Code
in Dimaporo v. Mitra, Jr.
Section 67 was crafted with the intention of giving flesh
to the constitutional pronouncement that public service is a
public trust. The following portion of our ruling in Dimaporo is
apropos:
Assemblyman Manuel M. Garcia, in answer to the query of
Assemblyman Arturo Tolentino on the constitutionality of
Cabinet Bill No. 2,[18] said:
MR. GARCIA (M.M.):
Thank you, Mr. Speaker.
Mr. Speaker, on the part of the Committee, we made this
proposal based on constitutional grounds. We did not propose
this amendment mainly on the rationale as stated by the
Gentlemen from Manila that the officials running for office
other than the ones they are holding will be considered
resigned not because of abuse of facilities of power or the use
of office facilities but primarily because under our
Constitution, we have this new chapter on accountability of
public officers...
...This only means that all elective public officials should
honor the mandate they have gotten from the people... a
Batasan Member who hold (sic) himself out with the people
and seek (sic) their support and mandate should not be
allowed to deviate or allow himself to run for any other
position unless he relinquishes or abandons his
office. Because his mandate to the people is to serve for 6
years. Now, if you allow a Batasan or a governor or a mayor
who was mandated to serve for 6 years to file for an office
other than the one he was elected to, then, that clearly shows
that he has not (sic) intention to service the mandate of the
people which was placed upon him and therefore he should
be considered ipso facto resigned. I think more than anything
that is the accountability that the Constitution requires of
elective public officials...[19]
Section 67 is not violative of the Constitution as it does
not unduly cut short the term of office of local officials. The
situation that results with the application of Section 67 is
covered by the term voluntary renunciation.
Even then, the concept of voluntary renunciation of office
under Section 7, Article VI of the Constitution is broad enough
to include the situation envisioned in Section 67, Article IX of
B.P. Blg. 881. As discussed by the Constitutional
Commissioners:
MR. MAAMBONG:
Could I address the clarificatory question to the
Committee? The term voluntary renunciation does
not only appear in Section 3; it appears in Section 6.
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 means? 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.
That the act, contemplated in Section 67, Article IX of B.P. Blg.
881, of filing a certificate of candidacy for another office
constitutes an overt, concrete act of voluntary renunciation of
the elective office presently being held is evident from this
exchange between the Members of Parliament Arturo
Tolentino and Jose Roo:
MR. ROO:
My reasonable ground is this: if you will make the
person ... my, shall we say, basis is that in one case
the person is intending to run for an office which is
different from his own, and therefore it should be
considered, at least from the legal significance, an
intention to relinquish his office.
 MR. TOLENTINO:
Yes.
MR. ROO:
And in the other, because he is running for the same
position, it is otherwise.
MR. TOLENTINO:
Yes, but what I cannot see is why are you going to compel
a person to quit an office which he is only intending
to leave? A relinquishment of office must be clear,
must be definite.
MR. ROO:
Yes, sir. Thats precisely, Mr. Speaker, what Im saying that
while I do not disagree with the conclusion that the
intention cannot be enough, but I am saying that the
filing of the certificate of candidacy is an overt act of
such intention. Its not just an intention: its already
there.[20]
Our foregoing ruling in Dimaporo is still applicable in this
case.
Petitioners further assert that Section 67 could have
been formulated without sufficient study (emphasis
supplied). Petitioners choice of words betray their own
uncertainty as to whether or not the implications of Section 67
were thoroughly analyzed before such section became
law. Unfortunately for petitioners, uncertainties do not justify
nullification of a law.
Moreover, it must be pointed out that this present
petition is one for prohibition which is a preventive
remedy. The act sought to be enjoined had already been
accomplished with the holding of the 1998
elections. Prohibition, as a rule, does not lie to restrain an act
that is already a fait accompli.[21]
WHEREFORE, the instant petition is hereby dismissed
for lack of merit.
SO ORDERED.
Latasa vs. COMELEC
Facts:
Petitioner Latasa, was elected mayor of the Municipality of
Digos, Davao del Sur in the elections of 1992, 1995, and
1998. In February 2001, he filed his certificate of candidacy
for city mayor for the 2001 elections. He stated therein that
he is eligible therefor, and likewise disclosed that he had
already served for three consecutive terms as mayor of the
Municipality of Digos and is now running for the first time for
the position of city mayor.
Sunga, also a candidate for city mayor in the said elections,
filed before the COMELEC a petition to deny petitioner's
candidacy since the latter had already been elected and
served for three consecutive terms. Petitioner countered that
this fact does not bar him from filing a certificate of candidacy
for the 2001 elections since this will be the first time that he
will be running for the post of city mayor.
The Comelecs First Division denied petitioner's certificate of
candidacy. However, his motion for reconsideration was not
acted upon by the Comelec en banc before election day and
he was proclaimed winner. Only after the proclamation did the
Comelec en banc issue a resolution that declared him
disqualified from running for mayor of Digos City, and ordered
that all votes cast in his favor should not be counted.
Petitioner appealed, contending that when Digos was
converted from a municipality to a city, it attained a different
juridical personality separate from the municipality of Digos.
So when he filed his certificate of candidacy for city mayor, it
should not be construed as vying for the same local
government post.
Issue: Is petitioner Latasa eligible to run as candidate for the
position of mayor of the newly-created City of Digos
immediately after he served for three consecutive terms as
mayor of the Municipality of Digos?
Held: As a rule, in a representative democracy, the people
should be allowed freely to choose those who will govern
them. Article X, Section 8 of the Constitution is an exception
to this rule, in that it limits the range of choice of the people.
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.
An elective local official, therefore, is not barred from running
again in for same local government post, unless two
conditions concur: 1.) that the official concerned has been
elected for three consecutive terms to the same local
government post, and 2.) that he has fully served three
consecutive terms.
True, the new city acquired a new corporate existence
separate and distinct from that of the municipality. This does
not mean, however, that for the purpose of applying the
subject Constitutional provision, the office of the municipal
mayor would now be construed as a different local
government post as that of the office of the city mayor. As
stated earlier, the territorial jurisdiction of the City of Digos is
the same as that of the municipality. Consequently, the
inhabitants of the municipality are the same as those in the
city. These inhabitants are the same group of voters who
elected petitioner Latasa to be their municipal mayor for three
consecutive terms. These are also the same inhabitants over
whom he held power and authority as their chief executive for
nine years.
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.(Latasa vs. Comelec, G.R. No. 154829, 10
December 2003)
Recabo vs. Comelec
FACTS:
On March 27, 1998, Francisco R. Reyes, Jr., filed his certificate
of candidacy for vice-mayor of Mainit, Surigao Del Norte under
the LAKAS NUCD-UMDP (LAKAS). His nomination is evidence
by the certificate of nomination and acceptance signed by
Fidel V. Ramos and Jose de Venecia, National Chairman and
Secretary General, respectively, of the said political party.

On April 2, 1998, Kaiser B. Recabo, Jr., claiming to be
the official candidate of LAKAS as vice-mayor of the same
municipality, also filed his certificate of candidacy. Recabo
submitted to the Comelec a copy of the certificate of his
nomination and acceptance signed only by one representative
of LAKAS, Francisco T. Matugas. The space of the other
representative (Robert Z. Barbers) is blank.
Reyes filed with the Comelec a petition to cancel the
certificate of candidacy of Recabo, alleging that Recabo is a
substitute candidate of his mother, Candelaria B. Recabo.
Reyes submits that since the certificate of nomination and
acceptance in favor of Candelaria B. Recabo is not signed by
Robert Barbers, there is no valid nomination by LAKAS in favor
of Candelaria. Therefore, Candelaria not having been validly
nominated, should be deemed an independent candidateonly.
And since Candelaria is an independent candidate, she cannot
be validly substituted because under Sec. 11 of Comelec Res.
No. 2977 promulgated on January 15, 1998, no substitution
shall be allowed for an independent candidate.
Comelec cancelled the certificate of candidacy of Recabo. The
Motion for Reconsideration was denied.
Hence, Recabo filed before the SC a petition for certiorari
under Rule 65 alleging that: 1) His certificate of candidacy and
that of his mother whom he substituted substantially complied
with the requirements of being official candidate of the LAKAS;
2) The people of Mainit have spoken loud and clear in his
favor by giving him a resounding majority of 1,102 votes or
12% of the votes cast for both of them; and, 3) By cancelling
his certificate of candidacy, Comelec acted without or in
excess of jurisdiction or with grave abuse of discretion.
ISSUE: Whether or not petitioners certificate of
nomination by LAKAS NUCD-UMDP is valid?
NO. COMELEC Resolution No. 2977 provides under Section 5
thereof: The certificate of nomination by registered political
parties of their official candidates shall be filed with
the certificates of candidacy not later than the last day for
filing of certificates of candidacy as specified in Section 4
hereof, duly signed and attested under oath by the party
president, chairman, secretary-general or any other party
officer duly authorized in writing to do so.
Pursuant to said resolution, the political party of LAKAS NUCD-
UMDP issued an `Authorization designating two (2) Party
officers to nominate, sign, attest under oath and issue
the Official Certificates of Nomination, namely, Francisco T.
Matugas and Robert Ace S. Barbers. Consistent with the
foregoing, the certificate of nomination and acceptance, as
pointed out by the Comelec, requires the joint signing of the
two party officers.
The certificate of nomination of the petitioner as well as his
mother did not comply with the requirements of
being official candidates of LAKAS Party. The certificate of
nomination was invalid because it was signed only by one
authorized party officer as compared to Reyes which was
signed by the National Chairman and Secretary General,
respectively, of said political party.
Moreover, the chronology of events would still call for the
cancellation of petitioners certificate of candidacy to curb the
evil that the Comelec sought to abate pursuant to its mandate
to hold free, orderly, honest, peaceful and credible elections.
As the respondent Commission stated, to allow respondent to
run under the circumstances adverted to herein would put the
election process in mockery and disrepute for we would in
effect be allowing an anomalous situation where a single
political party may field-in multiple candidates for a single
election position.
It will be recalled that the mother of herein petitioner filed her
certificate of candidacy on March 25, 1998 and later withdrew
the same on March 31, 1998. In the meantime, Reyes, Jr. filed
his certificate of candidacy on March 27, 1998. Thereafter,
Recabo, Jr. filed his certificate of candidacy on April 2, 1998, in
substitution of his mother who had withdrawn earlier.
Assuming all three candidates were fielded-in by the same
political party, at the time petitioner Recabo, Jr. filed his
certificate of candidacy there was no more void to fill in as
respondent Reyes, Jr. had already filed his certificate of
candidacy as official candidate of LAKAS NUCD-UMDP.
Verily, there was no more vacancy to be substituted for.
Disunity and discord amongst members of a political party
should not be allowed to create a mockery of our electoral
process, which envisions one candidate from a political party
for each position.
ISSUE: Whether or not a certificate of votes is
sufficient to establish the results of the election.
To put matters in the proper perspective, we shall resolve the
second issue first that the electorate has spoken loud and
clear in favor of petitioner by giving him a resounding majority
of 1,102 votes or 12% of the votes cast for both of them.
Petitioner, in effect, argues that the popular will as clearly
expressed in votes cast and counted should prevail, such that
the election of a candidatecannot be annulled because of
formal defects in his certificate.
Recabo submitted a Certified List of Candidates with their
Votes Obtained and an undated `Certified List of Winning
Candidates both signed by the Acting Election Officer and
Election Officer-OIC, respectively.
In Garay vs. Commission on Elections, we had occasion to rule
that: xxx. According to Section 17, a certificate of votes can
only be evidence to prove tampering, alteration, falsification
or any other anomaly committed in the election returns
concerned, when duly authenticated x x x. A certificate of
votes does not constitute sufficient evidence of the true and
genuine results of the election; only election returns are.
In like manner, neither is the certified list of winning
candidates sufficient evidence of the real results of the
election. Moreover, the certificate of votes submitted does
not conform with Section 16 of R.A. 6646. It does not state the
number of votes obtained in words; it does not state the
number of the precinct, the total number of voters who voted
in the precinct and the time issued. Most importantly, it was
merely certified true and correct by a certain Lydia P. Mahinay
as acting election officer. As aforequoted, Section 16 of R.A.
6646 requires that the certificate of votes be signed and
thumbmarked by each member of the board of election
inspectors.
Thus, the doctrine that a mere technicality cannot be used to
frustrate the peoples will finds no application in the case at
bar considering that the results of the election have not been
duly established.
ISSUE: Should Reyes be proclaimed winner and assume
the position of vice-mayor being the second highest
winning candidate?
No. A certificate of votes is not sufficient to establish the true
and genuine results of the election. A certificate of canvass
issued on the basis of the election returns is required to
proclaim the elected candidate. It is settled that the
disqualification or non-qualification of the winner in a vice
mayoralty race does not justify the proclamation of the
defeated candidate who obtained the second highest number
of votes. To simplistically assume that the second placer
would have received the other votes would be to substitute
our judgment for the mind of the voter. The second placer is
just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could
not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate,
the conditions would have substantially changed. We are not
prepared to extrapolate the results under the circumstances.
ISSUE: How then the vacancy should be filled up?
The vacancy due to the ineligibility of herein petitioner should
be filled up in accordance with Section 44 of the Local
Government Code of 1991 which provides that the highest
ranking sanggunian member shall become the vice-
mayor. (G.R. No. 134293, June 21, 1999)
GOVERNOR RODOLFO C. FARIAS vs. MAYOR ANGELO
N. BARBA
FACTS:
Carlito B. Domingo was a member of the Sangguniang Bayan
of San Nicolas, Ilocos Norte. On March 24, 1994, he resigned
after going without leave to the United States.
To fill the vacancy created by his resignation, a
recommendation for the appointment of Edward Palafox was
made by the Sangguniang Bayan of San Nicolas but the
recommendation was made to Mayor Barba. The resolution,
containing the recommendation, was submitted to the
Sangguniang Panlalawigan of Ilocos Norte purportedly in
compliance with Sec. 56 of the Local Government Code (R.A.
No. 7160).
The Sangguniang Panlalawigan, purporting to act under this
provision of the Local Government Code, disapproved the
resolution for the reason that the authority and power to
appoint Sangguniang Bayan members are lodged in the
Governor. Accordingly, the Sangguniang Panlalawigan
recommended to the Governor the appointment of petitioner
Al Nacino. On June 8, 1994, the Governor appointed petitioner
Nacino and swore him in office that same day. On the other
hand, respondent Mayor Barba appointed respondent Edward
Palafox to the same position.
On June 14, 1994, petitioners filed with the Regional Trial
Court of Ilocos Norte a petition for quo warranto and
prohibition.
On July 8, 1994 the trial court rendered its decision, upholding
the appointment of respondent Palafox by respondent Mayor
Barba.
ISSUE:
Who can appoint the replacement and in accordance with
what procedure?
HELD:
The person who has the power to appoint under such
circumstance is the Governor upon the recommendation of
the Sangguniang concerned which is the Sangguniang Bayan
of San Nicolas where the vacancy occurs.
The upshot of this is that in the case at bar, since neither
petitioner Al Nacino nor respondent Edward Palafox was
appointed in the manner indicated in the preceding
paragraph, neither is entitled to the seat in the Sangguniang
Bayan of San Nicolas, Ilocos Norte which was vacated by
member Carlito B. Domingo. For while petitioner Al Nacino
was appointed by the provincial governor, he was not
recommended by the Sangguniang Bayan of San Nicolas. On
the other hand, respondent Edward Palafox was
recommended by the Sangguniang Bayan but it was the
mayor and not the provincial governor who appointed him.
Navarro v. Court of Appeals, G.R. No. 141307. March
28, 2001
Facts: On March 25, 1999, elected Mayor Calimlim died thus
creating a vacancy in his position. By virtue of Section 44 of
the Local Government Code, Vice Mayor Aquino succeeded
him. Since a vacancy occurred inthe Sangguniang Bayan by
the elevation of Tamayo, the highest ranking member of
Sanggunian, to the Vice Mayor's position. Gov. Agbayani of
Pangasinan appointed herein petitioner Navarro as member of
the said Sanggunian. Navarro belonged to the same party as
that of Tamayo. Private respondents filed an action to nullify
the appointment of Navarro. They argued in the CA that the
former Vice Mayor who created the permanent vacancy, thus,
the appointees should come from the former Vice Mayor's
political party. In the decision of the CA, it concluded that
according to the hierarchy, it was the appointment of the 8th
Counselor to the 7th position which created the vacancy,
therefore, the appointee should come from his party.
Issue: Whether or not the appointment of Navarro as a
member of the Sangguniang Bayan is valid.
Held: Yes. It is pursuant to Section 44 and 45 of the Local
Government Code.
The reason behind the right given to a political party to
nominate a replacement where a permanent vacancy occurs
is to maintain the party representation as willed by the people
in the election. Such appointment is required to have a
nomination and certification or it would be null and void ab
initio.
The term "last vacancy" by no means refers to the vacancy of
the *th position in the Sangguniang Bayan. Such construction
will result to absurdity.
Gamboa vs. Marcelo Aguirre
The query herein is purely legal. May an incumbent Vice-
Governor, while concurrently the Acting Governor, continue to
preside over the sessions of the Sangguniang
Panlalawigan (SP)?
The facts are not in dispute.
In the 1995 elections, Rafael Coscolluela, petitioner
Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre, Jr., and
Juan Y. Araneta were elected Negros Occidental Governor,
Vice-Governor and SP members, respectively.Sometime in
August of 1995, the governor designated petitioner as Acting
Governor for the duration of the formers official trip abroad
until his return. When the SP held its regular session on
September 6, 1995, respondents questioned the authority of
petitioner to preside therein in view of his designation as
Acting Governor and asked him to vacate the Chair. The latter,
however, refused to do so. In another session, seven (7)
members of the SP voted to allow petitioner to continue
presiding while four (4) others voted against with one (1)
abstention. On September 22, 1995, respondents filed before
the lower court a petition for declaratory relief and
prohibition. In the meantime, on October 2, 1995, the
Governor re-assumed his office. Later, the trial court rendered
a decision and declared petitioner as temporarily legally
incapacitated to preside over the sessions of the SP during the
period that he is the Acting Governor. [1] Aggrieved, petitioner
filed a petition for review raising the issue earlier
mentioned. Although this case is dismissible for having
become moot and academic considering the expiration in
1998 of the terms of office of the local officials involved
herein, the Court nonetheless proceeds to resolve this
common controversy but novel issue under the existing laws
on local government.
Sections 49(a) and 466(a)(1) of Republic Act (R.A.) No.
7160 otherwise known as the Local Government Code of
1991, provide that the Vice-Governor shall be the presiding
officer of the SP.[2] In addition to such function, he become(s)
[3]
the Governor and assume(s)[4] the higher office for the
unexpired term of his predecessor, in case of permanent
vacancy therein. When the vacancy, however, is merely
temporary, the Vice-Governor shall automatically exercise the
powers (subject to certain limitations) and perform the duties
and functions[5] of the Governor. It may be noted that the Code
provides only for modes of succession in case of permanent
vacancy in the office of the Governor and the Vice-Governor
(whether single or simultaneously) as well as in case of a
temporary vacancy in the office of the Governor. But, no such
contingency is provided in case of temporary vacancy in the
office of the Vice-Governor, just like the 1983 Local
Government Code.[6]
It is correct that when the Vice-Governor exercises the
powers and duties of the Office of the Governor, he does not
assume the latter office. He only acts as the Governor but
does not become the Governor. His assumption of the powers,
duties and functions of the provincial Chief Executive does not
create a permanent vacuum or vacancy in his position as the
Vice-Governor. Necessarily, he does not relinquish nor
abandon his position and title as Vice-Governor by merely
becoming an Acting Governor, (not Governor) or by merely
exercising the powers and duties of the higher office. But the
problem is, while in such capacity, does he temporarily
relinquish the powers, functions, duties and responsibilities of
the Vice-Governor, including the power to preside over the
sessions of the SP?
Sad to say the new Local Government Code is silent on
this matter, yet this query should be answered in the
positive. A Vice-Governor who is concurrently an Acting
Governor is actually a quasi-Governor. This means, that for
purposes of exercising his legislative prerogatives and powers,
he is deemed as a non-member of the SP for the time
being. By tradition, the offices of the provincial Governor and
Vice-Governor are essentially executive in nature, whereas
plain members of the provincial board perform functions
partaking of a legislative character. This is because the
authority vested by law in the provincial boards involves
primarily a delegation of some legislative powers of Congress.
[7]
Unlike under the old Code, where the Governor is not only
the provincial Chief Executive,[8] but also the presiding officer
of the local legislative body,[9] the new Code delineated the
union of the executive-legislative powers in the provincial, city
and municipal levels except in the Barangay. Under R.A. 7160,
the Governor was deprived of the power to preside over the
SP and is no longer considered a member thereof. [10] This is
clear from the law, when it provides that local legislative
power shall be vested in the SP,[11] which is the legislative
body of the province, and enumerates therein its membership
consisting of the:
1.) Vice-Governor, as presiding officer,
2.) regular elective SP members,
3.) three elective sectoral representatives, and
4.) those ex-officio members, namely:
a.) president of the provincial chapter of the liga ng mga
barangay,
b.) president of the panlalawigang pederasyon ng mga
sangguniang kabataan,
c.) president of the provincial federation of sanggunian
members of municipalities and component cities. [12]
Not being included in the enumeration, the Governor is
deemed excluded applying the rule in legal hermeneutics that
when the law enumerates, the law necessarily excludes. On
the contrary, local executive power in the province is vested
alone in the Governor.[13] Consequently, the union of
legislative-executive powers in the office of the local chief
executive under the former Code has been disbanded, so that
either department now comprises different and non-
intermingling official personalities with the end in view of
ensuring a better delivery of public service and provide a
system of check and balance between the two.
It has been held that if a Mayor who is out of the country
is considered effectively absent, the Vice-Mayor should
discharge the duties of the mayor during the latters absence.
[14]
This doctrine should equally apply to the Vice-Governor
since he is similarly situated as the Vice-Mayor. Although it is
difficult to lay down a definite rule as to what constitutes
absence, yet this term should be reasonably construed to
mean effective absence,[15] that is, one that renders the officer
concerned powerless, for the time being, to discharge the
powers and prerogatives of his office. [16] There is no vacancy
whenever the office is occupied by a legally qualified
incumbent. A sensu contrario, there is a vacancy when there
is no person lawfully authorized to assume and exercise at
present the duties of the office. [17] By virtue of the foregoing
definition, it can be said that the designation, appointment or
assumption of the Vice-Governor as the Acting Governor
creates a corresponding temporary vacancy in the office of
the Vice-Governor during such contingency. Considering the
silence of the law on the matter, the mode of succession
provided for permanent vacancies, under the new Code, in the
office of the Vice-Governor may likewise be observed in the
event of temporary vacancy occurring in the same office.
[18]
This is so because in the eyes of the law, the office to
which he was elected was left barren of a legally qualified
person to exercise the duties of the office of the Vice-
Governor.
Being the Acting Governor, the Vice-Governor cannot
continue to simultaneously exercise the duties of the latter
office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them.
[19]
Such is not only consistent with but also appears to be the
clear rationale of the new Code wherein the policy of
performing dual functions in both offices has already been
abandoned. To repeat, the creation of a temporary vacancy in
the office of the Governor creates a corresponding temporary
vacancy in the office of the Vice-Governor whenever the latter
acts as Governor by virtue of such temporary vacancy. This
event constitutes an inability on the part of the regular
presiding officer (Vice Governor) to preside during the SP
sessions, which thus calls for the operation of the remedy set
in Article 49(b) of the Local Government Code concerning the
election of a temporary presiding officer.The continuity of the
Acting Governors (Vice-Governor) powers as presiding officer
of the SP is suspended so long as he is in such capacity. Under
Section 49(b), (i)n the event of the inability of the regular
presiding officer to preside at the sanggunian session, the
members present and constituting a quorum shall elect from
among themselves a temporary presiding officer. [20]
WHEREFORE, the petition is DENIED for lack of merit.