LAWS ON PUBLIC CORPORATIONS
ATTY. JP LEO ASONG
Topic: General Principles: Definitions,
Distinctions, Classifications (Who is a
Public Officer?)
Salvador H. Laurel Vs. Hon. Aniano
Disierto
Alexa Danielle C. Dayanghirang
Parties:
Salvador H. Laurel – petitioner
Hon. Aniano Disierto – Respondent
Facts:
President Fidel V. Ramos issued EO No.
128, "reconstituting the Committee for the
preparation of the National Centennial
Celebrations in 1988." It renamed the
Committee as the "National Centennial
Commission." Appointed to chair the
reconstituted Commission was Vice-
President Salvador H. Laurel. The existence
of the Commission "shall terminate upon
the completion of all activities related to
the Centennial Celebrations."
Subsequently, a corporation named the
Philippine Centennial Expo ’98 Corporation
(Expocorp) was created wherein Laurel
was elected Expocorp CEO.
Due to the alleged anomalies and
violations on the rules of public bidding,
the Senate Blue Ribbon Committee and the
Saguisag Committee recommended the
further investigation and prosecution by
the Ombudsman/DOJ of Dr. Salvador
Laurel. Laurel assails the jurisdiction of the
Ombudsman on the ground that he is not a
public officer because Expocorp is a private
corporation and not a GOCC, the National
Centennial Commission is not a public
office, and that Laurel is not a public officer
as defined under the Anti- Graft and
Corrupt Practices Act.
Issues:
WON Laurel is a public officer.
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WON the receipt of salary is a
determination that a person receiving the
same is a public officer.
WON the NCC which was characterized by
EO 128 as an ad hoc body make it less of a
public office.
WON the Sandiganbayan has jurisdiction
over Laurel.
Contentions:
Laurels’s contention –
Petitioner moves for a reconsideration of
the courts decision declaring him, as Chair
of the National Centennial Commission
(NCC), a public officer. Petitioner also prays
that the case be referred to the Court En
Banc.
petitioner points out that the decision has
serious constitutional
repercussions because the composition of
the NCC included members of the Cabinet,
the Senate, the House of Representatives
and the Supreme Court, who are
prohibited by the Constitution from
holding any other office during their term
or tenure.
In connection, the Court, in its decision,
allegedly disregarded the pronouncement
in Manila Electric Co. vs. Panay
Transportation Co.[4 that the Supreme
Court and its members should not and
cannot be required to exercise any power
or to perform any trust or to assume any
duty not pertaining to or connected with
the administering of judicial functions.
Second, petitioner invokes estoppel. He
claims that the official acts of the
President, the Senate President, the
Speaker of the House of Representatives,
and the Supreme Court, in designating
Cabinet members, Senators, Congressmen
and Justices to the NCC, led him to believe
that the NCC is not a public office
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Disierto’s Contention –
The petitioner as Chair of the NCC is a
public officer under the jurisdiction of the
Ombudsman. As the petitioner
presupposes, that the designation of other
members to the NCC runs counter to the
Constitution, it does not make him, as NCC
Chair less a public officer.
Second, in estoppel, the party representing
material facts must have the intention that
the other party would act upon the
representation. It is preposterous to
suppose that the President, the Senate
President, the Speaker and the Supreme
Court, by the designation of such officials
to the NCC, intended to mislead petitioner
just so he would accept the position of NCC
Chair. Estoppel must be unequivocal and
intentional.
Ruling:
Yes. As defined by Mechem in a cited
jurisprudence, A public office is the right,
authority and duty, created and conferred
by law, by which, for a given period, either
fixed by law or enduring at the pleasure of
the creating power, an individual is
invested with some portion of the
sovereign functions of the government, to
be exercised by him for the benefit of the
public. The individual so invested is a public
officer. The characteristics of a public
office, according to Mechem, include the
delegation of sovereign functions, its
creation by law and not by contract, an
oath, salary, continuance of the position,
scope of duties, and the designation of the
position as an office. The delegation to the
individual of some of the sovereign
functions of government as "[t]he most
important characteristic" in determining
whether a position is a public office or not.
The NCC performs executive functions. The
executive power "is generally defined as
the power to enforce and administer the
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laws. It is the power of carrying the laws
into practical operation and enforcing their
due observance." The executive function,
therefore, concerns the implementation of
the policies as set forth by law. E.O. No.
128, reconstituting the Committee for the
National Centennial Celebrations in 1998,
cited the "need to strengthen the said
Committee to ensure a more coordinated
and synchronized celebrations of the
Philippine Centennial and wider
participation from the government and
non-government or private organizations."
It also referred to the "need to rationalize
the relevance of historical links with other
countries." The NCC was precisely created
to execute the foregoing policies and
objectives, to carry them into effect.
Clearly, the NCC performs sovereign
functions. It is, therefore, a public office,
and petitioner, as its Chair, is a public
officer.
No. The allegation that Laurel did not
receive any compensation during his
tenure is of little consequence. A salary is a
usual but not a necessary criterion for
determining the nature of the position. It is
not conclusive. The salary is a mere
incident and forms no part of the office.
Where a salary or fees is annexed, the
office is provided for it is a naked or
honorary office, and is supposed to be
accepted merely for the public good.
Hence, the office of petitioner as NCC Chair
may be characterized as an honorary
office, as opposed to a lucrative office or an
office of profit, i.e., one to which salary,
compensation or fees are attached. But it
is a public office, nonetheless.
No. The element of continuance cannot be
considered as indispensable, for, if the
other elements are present "it can make no
difference," says Pearson, C.J., "whether
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there be but one act or a series of acts to
be done, -- whether the office expires as
soon as the one act is done, or is to be held
for years or during good behavior."
Yes. The Ombudsman has the power to
investigate any malfeasance, misfeasance
and non- feasance by a public officer or
employee of the government, or of any
subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations.
Definitions:
Definition of "public officer" under Section
2(b) of R.A. No. 3019: "Public officer"
includes elective and appointive officials
and employees, permanent or temporary,
whether in the classified or unclassified or
exemption service receiving
compensation, even nominal, from the
government as defined in the preceding
paragraph.
It is clear from Section 2 (b), above, that
the definition of a "public officer" is
expressly limited to the application of R.A.
No. 3019. Said definition does not apply for
purposes of determining the
Ombudsman’s jurisdiction, as defined by
the Constitution and the Ombudsman Act
of 1989. Moreover, the question of
whether petitioner is a public officer under
the Anti-Graft and Corrupt Practices Act
involves the appreciation of evidence and
interpretation of law, matters that are best
resolved at trial. To illustrate, the use of
the term "includes" in Section 2 (b)
indicates that the definition is not
restrictive. The Anti-Graft and Corrupt
Practices Act is just one of several laws that
define "public officers."
Definition of “public officer” under Article
203 of the Revised Penal Code: Any person
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who, by direct provision of law, popular
election or appointment by competent
authority, takes part in the performance of
public functions in the Government of
Philippines, or performs in said
Government or in any of its branches public
duties as an employee, agent or
subordinate official, of any rank or class.
Definition of “public officer” under Section
2 (14) of the Introductory Provisions of the
Administrative Code of 1987: Officer – as
distinguished from "clerk" or "employee",
refers to a person whose duties not being
of a clerical or manual nature, involves the
exercise of discretion in the performance
of the functions of the government. When
used with reference to a person having
authority to do a particular act or perform
a particular person in the exercise of
governmental power, "officer" includes
any government employee, agent or body
having authority to do the act or exercise
that function.
Definition of “public official” under Section 3
(b) of Republic Act No. 6713 (The Code of
Conduct and Ethical Standards for Public
Officials and Employees): "Public Officials"
include elective and appointive officials
and employees, permanent or temporary,
whether in the career or non-career
service including military and police
personnel, whether or not they receive
compensation, regardless of amount.
ABAKADA Guro Partylist vs Purisima
GR No. 166715 562 SCRA 251
Aug 14, 2008
Dale Angelique D. Lapulapu
PARTIES:
Petitioners: ABAKADA Guro Partylist
(formerly AASJS), officers/members-
Alcantara, Albano, Robiso, Gorospe &
Sandoval
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Respondents: Hon. Cesar Purisima (Sec. of
Finance), Hon. Guillermo Parayno, Jr.
(Commissioner of the BIR), & Hon. Alberto
Lina (Commissioner of BOC)
FACTS:
This is a petition for prohibition seeking to
prevent PURISIMA et al from implementing
and enforcing the Attrition Act of 2005 (RA
9335).
RA 9335 was enacted to optimize the
revenue-generation capability and
collection of the BIR and BOC. RA 9335
intends to encourage BIR and BOC officials
and employees to exceed their revenue
targets by providing a system of rewards
and sanctions through the creation of a
Rewards and Incentives Fund (Fund) and a
Revenue Performance Evaluation Board
(Board) wherein it covers all officials and
employees of BIR and BOC with at least
6months of service, regardless of
employment status.
The Fund is sourced from the collection of
the BIR and the BOC in excess of their
revenue targets for the year, as
determined by the Development Budget
and Coordinating Committee (DBCC). Any
incentive or reward is taken from the fund
and allocated to the BIR and the BOC in
proportion to their contribution in the
excess collection of the targeted amount of
tax revenue. Each Board in the BIR and the
BOC has the duty to (1) prescribe the rules
and guidelines for the allocation,
distribution and release of the Fund; (2) set
criteria and procedures for removing from
the service officials and employees whose
revenue collection falls short of the target;
(3) terminate personnel in accordance with
the criteria adopted by the Board; (4)
prescribe a system for performance
evaluation; (5) perform other functions,
including the issuance of rules and
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regulations; and, (6) submit an annual
report to Congress.
ABAKADA invoked their right as taxpayers,
filed this petition challenging the
constitutionality of RA 9335, a tax reform
legislation.
ABAKADA’s contentions: 1) by
establishing a system of rewards and
incentives it invites corruption and
undermines the constitutional mandated
duty of these officials and employees to
serve the people with utmost
responsibility, integrity, loyalty and
efficiency; 2) by limiting the scope of the
system of rewards and incentives only to
officials and employees of the BIR and the
BOC violates the constitutional guarantee
of equal protection since there is no valid
basis for the classification as to why the
system should not apply to all government
agencies; 3) there is undue delegation of
the power to fix the revenue targets for the
lack of sufficient standard of the matter;
and 4) that the creation of a congressional
oversight committee on the ground that it
violates the doctrine of separation of
powers.
PURISIMA et al’s contentions: 1) the
petiton is premature as there is no actual
case or controversy yet where ABAKADA
have not asserted any right or claim that
will necessitate the exercise of the court’s
jurisdiction; 2) asserted that the reward
system will breed mercenaries is mere
speculation; 3) law validly classifies the BIR
and BOC is distinct from tjose of the other
government agencies; 4) the law provides
a sufficient standard that will guide the
executive in the implementation of its
provisions; 5) the creation of congressional
oversight committee enhances the
separation of power by ensuring the
fulfillment of the legislative policy and
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serves as a check to any over-accumulation
of power on the part of the executive and
the implementing agencies.
ISSUE:
WON the claim of ABAKADA that the
implementation of RA 9335 will turn BIR
and BOC officials and employees into
"bounty hunters and mercenaries" is
supported by a legal basis.
WON RA9335 is not unconstitutional.
HELD:
No. It is not only without any factual and
legal basis, it is also purely speculative.
Public officers enjoy the presumption of
regularity in the performance of their
duties. This presumption necessarily
obtains in favor of BIR and BOC officials and
employees.
RA 9335 operates on the basis thereof and
reinforces it by providing a system of
rewards and sanctions for the purpose of
encouraging the officials and employees of
the BIR and the BOC to exceed their
revenue targets and optimize their
revenue-generation capability and
collection. The presumption is disputable
but proof to the contrary is required to
rebut it. It cannot be overturned by mere
conjecture or denied in advance (as
petitioners would have the Court do)
specially in this case where it is an
underlying principle to advance a declared
public policy.
Section 1, Article 11 of the Constitution
states:
Sec. 1. Public office is a public trust. Public
officers and employees must at all times be
accountable to the people, serve them
with utmost responsibility, integrity,
loyalty, and efficiency, act with patriotism,
and justice, and lead modest lives.
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Public office is a public trust. It must be
discharged by its holder not for his own
personal gain but for the benefit of the
public for whom he holds it in trust. By
demanding accountability and service with
responsibility, integrity, loyalty, efficiency,
patriotism and justice, all government
officials and employees have the duty to be
responsive to the needs of the people they
are called upon to serve.
In addition, RA 9335 establishes safeguards
to ensure that the reward will not be
claimed if it will be either the fruit of
"bounty hunting or mercenary activity" or
the product of the irregular performance
of official duties. One of these
precautionary measures is embodied in
Section 8 of the law: SEC. 8. Liability of
Officials, Examiners and Employees of the
BIR and the BOC. – The officials, examiners,
and employees of the BIR and the BOC who
violate this Act or who are guilty of
negligence, abuses or acts of malfeasance
or misfeasance or fail to exercise
extraordinary diligence in the performance
of their duties shall be held liable for any
loss or injury suffered by any business
establishment or taxpayer as a result of
such violation, negligence, abuse,
malfeasance, misfeasance or failure to
exercise extraordinary diligence.
Public service is its own reward.
Nevertheless, public officers may by law be
rewarded for exemplary and exceptional
performance. A system of incentives for
exceeding the set expectations of a public
office is not anathema to the concept of
public accountability. In fact, it recognizes
and reinforces dedication to duty, industry,
efficiency and loyalty to public service of
deserving government personnel.
2. RA 9335 is constitutional.
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A law enacted by Congress enjoys
the strong presumption of
constitutionality. To justify its nullification,
there must be a clear and unequivocal
breach of the Constitution, not a doubtful
and equivocal one. To invalidate RA 9335
based on petitioners’ baseless supposition
is an affront to the wisdom not only of the
legislature that passed it but also of the
executive which approved it.
G.R. No. 159813 August 9, 2006
TONY N. FIGUEROA and ROGELIO J.
FLAVIANO, Petitioners,
vs. THE PEOPLE OF THE
PHILIPPINES, Respondent.
FACTS:
On March 24, 1992, in the RTC of Davao
City, the city prosecutor of Davao,
Aproniano Rivera, filed an Information for
libel under Article 355 in relation to Article
360 of the Revised Penal Code against the
herein petitioners, Tony N. Figueroa and
Rogelio J. Flaviano.
The Information provides that on April 9,
1991, Tony VN. Figueroa, writer under the
column entitled "Footprints" of the
People's Daily Forum, conspired with his
co-accused Rogelio J. Flaviano, Publisher-
Editor of the same magazine, with
malicious intent of impeaching the
honesty, integrity, character as well as the
reputation and the social standing of one
Aproniano Rivera and with intent to cast
dishonor, discredit and contempt upon
him. The published article says that Rivera
is the vendor’s federation president of
Bangkerohan Public Market who has no
solid leadership but is backed by powerful
city government hooligans who have direct
hand in the planned manipulation in the
distribution of the stalls to privileged
applicants. The Regional Trial Court
rendered a decision against the two
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accused since the evidence they adduced is
not sufficient to afford their exoneration,
pursuant to Art. 355 in relation to Art. 360
of the Revised Penal Code. Upon appeal,
the Court of Appeals affirmed the decision
of the trial court. Petitioners contend that
Rivera is a public officer hence the
published article cannot be considered to
be within the purview of privileged
communication. On this premise, they
invoke in their favor the application of one
of the exceptions to the legal presumption
of the malicious nature of every
defamatory imputation, as provided for
under paragraph (2), Article 354 of the
Revised Penal Code, to wit:
Art. 354. Requirement for publicity. - Every
defamatory imputation is presumed to be
malicious, even if it be true, if no good
intention and justifiable motive for making
it is shown, except in the following cases:
(2). A fair and true report, made in good
faith, without any comments or remarks,
of any judicial, legislative, or other official
proceedings which are not of confidential
nature, or of any statement, report, or
speech delivered in said proceedings, or of
any other act performed by public officers
in the exercise of their functions.
ISSUE:
Whether Rivera is a public officer?
RULING:
No. As correctly found by both the trial
court and the CA, Rivera is not a public
officer or employee but a private citizen.
Hence, the published article cannot be
considered as falling within the ambit of
privileged communication within the
context of the above-quoted provision of
the Penal Code.
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A public office is the right, authority and
duty, created and conferred by law, by
which an individual is invested with some
portion of the sovereign functions of the
government, to be exercised by him for the
benefit of the public. The individual so
invested is a public officer. The most
important characteristic which
distinguishes an office from an
employment or contract is that the
creation and conferring of an office involve
a delegation to the individual of some of
the sovereign functions of government, to
be exercised by him for the benefit of the
public; that some portion of the
sovereignty of the country, either
legislative, executive or judicial, attaches,
to be exercised for the public benefit.
Unless the powers conferred are of this
nature, the individual is not a public
officer. 8
Clearly, Rivera cannot be considered a
public officer. Being a member of the
market committee did not vest upon him
any sovereign function of the government,
be it legislative, executive or judicial. As
reasoned out by the CA, the operation of a
public market is not a governmental
function but merely an activity undertaken
by the city in its private proprietary
capacity. Furthermore, Rivera's
membership in the market committee was
in representation of the association of
market vendors, a non-governmental
organization belonging to the private
sector.
Indeed, even if we were to pretend that
Rivera was a public officer, which he clearly
is not, the subject article still would not
pass muster as Article 354(2), supra, of the
Revised Penal Code expressly requires that
it be a "fair and true report, made in good
faith, without any comments or remarks."
Even a mere cursory glance at the article
reveals that it is far from being that.
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CAROLINA R. JAVIER, Petitioner,
vs.
THE FIRST DIVISION OF THE
SANDIGANBAYAN and the PEOPLE OF
THE PHILIPPINES, Respondents.
FACTS:
June 1995, RA 8047 or Book Publishing
Industry Development Act was enacted
into law, A state policy in promoting the
development of the book publishing
industry.
The law provided the creation of the
National Book Development Board (NBDB)
which shall be under the admin and
supervision of the Office of the President.
Since Feb 1996, Petitioner Javier was
appointed to the Governing Board as a
private sector representative and President
of the book suppliers association in the
Phils. To Which she was reappointed to,
every next year(until 1998). On Sept 1997,
She was issued by the Office of the
President a travel authority to attend the
Madrid International Book Fair in Spain on
Oct. 8-12, 1997 with P139,199 as traveling
expense.
Unfortunately, Petitioner was unable to
attend. And as a consequence, on Feb 1998
Resident Auditor Rosario Martin advised
petitioner to immediately return/refund
her cash advance. Petitioner failed to do so.
She was later issued a summary of
disallowances with a balance for
settlement amounting to P220,349. Yet still
no action from petitioner.
Sept 1999, The executive Director of NBDB.
Dr. Apolonio filed with the Ombudsman a
complaint against petitioner for
malversation of public funds and
properties, alleging the despite the
cancellation of the foreign trip, petitioner
failed to return to NBDB the cash advance
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as per government accounting and
auditing rules and regulations. And further
charged petitioner with violationg of RA
6713 for failure to file her Statement of
Assets and Liabilities.
Ombudsman found probable cause to
indict the petitioner for violation of Sec
3(e) of RA No 3019 ANTI-GRAFT AND
CORRUPT PRACTICES ACT, but dismissed
the charge for violating RA 6713.
On Oct, 1997, the accused, a public officer
and member of the NBDB, while in the
performance of her official and
administrative functions, and acting with
evident bad faith or gross inexcusable
negligence, the above-named accused, a
high ranking officer, being a member of the
Governing Board of the National Book
Development Board equated to Board
Member II with a salary grade 28 and as
such, is accountable for the public funds
she received as case advance in connection
with her trip to Spain from October 8-12,
1997 without any justifiable cause, and
despite due demand by the Resident
Auditor and the Executive Director of
NBDB, fail and refuse to return and/or
liquidate her cash advances intended for
official travel abroad which did not
materialize, in the total amount of
₱139,199.00 as of September 23, 1999, as
required under EO No. 248 and Sec. 5 of
COA Circular No. 97-002 thereby causing
damage and undue injury to the
Government. (she was charged with 2
criminal cases)
Oct 2000, Petitioner alleged that the
Sandiganbayan has no jurisdiction over her
criminal case as the information did not
allege that she is a public official.
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Neither did the information charge her as a
co-principal, accomplice or accessory to a
public officer committing an offense under
the Sandiganbayan's jurisdiction She also
averred that she is not a public officer or
employee and that she belongs to the
Governing Board only as a private sector
representative under R.A. No. 8047, hence,
she may not be charged under R.A. No.
3019 before the Sandiganbayan or under
any statute which covers public officials.
Moreover, she claimed that she does not
perform public functions and is without
any administrative or political power to
speak of – that she is serving the private
book publishing industry by advancing
their interest as participant in the
government's book development policy.
ISSUE:
WON THE ACCUSED IS A PUBLIC OFFICER
HELD:
YES, THE PETITIONER IS A PUBLIC OFFICER
The NBDB is the government agency
mandated to develop and support the
Philippine book publishing industry. It is a
statutory government agency created by
R.A. No. 8047, which was enacted into law
to ensure the full development of the book
publishing industry as well as for the
creation of organization structures to
implement the said policy. To achieve this
end, the Governing Board of the NBDB was
created to supervise the implementation.
The Governing Board was vested with
powers and functions, to wit: (skip the
enumerations and read next paragraph)
a) assume responsibility for carrying out
and implementing the policies, purposes
and objectives provided for in this Act;
b) formulate plans and programs as well as
operational policies and guidelines for
undertaking activities relative to
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promoting book development, production
and distribution as well as an incentive
scheme for individual authors and writers;
c) formulate policies, guidelines and
mechanisms to ensure that editors,
compilers and especially authors are paid
justly and promptly royalties due them for
reproduction of their works in any form
and number and for whatever purpose;
d) conduct or contract research on the
book publishing industry including
monitoring, compiling and providing data
and information of book production;
e) provide a forum for interaction among
private publishers, and, for the purpose,
establish and maintain liaison will all the
segments of the book publishing industry;
f) ask the appropriate government
authority to ensure effective
implementation of the National Book
Development Plan;
g) promulgate rules and regulations for the
implementation of this Act in consultation
with other agencies concerned, except for
Section 9 hereof on incentives for book
development, which shall be the concern
of appropriate agencies involved;
h) approve, with the concurrence of the
Department of Budget and Management
(DBM), the annual and supplemental
budgets submitted to it by the Executive
director;
i) own, lease, mortgage, encumber or
otherwise real and personal property for
the attainment of its purposes and
objectives;
j) enter into any obligation or contract
essential to the proper administration of
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its affairs, the conduct of its operations or
the accomplishment of its purposes and
objectives;
k) receive donations, grants, legacies,
devices and similar acquisitions which shall
form a trust fund of the Board to
accomplish its development plans on book
publishing;
l) import books or raw materials used in
book publishing which are exempt from all
taxes, customs duties and other charges in
behalf of persons and enterprises engaged
in book publishing and its related activities
duly registered with the board;
m) promulgate rules and regulations
governing the matter in which the general
affairs of the Board are to be exercised and
amend, repeal, and modify such rules and
regulations whenever necessary;
n) recommend to the President of the
Philippines nominees for the positions of
the Executive Officer and Deputy Executive
Officer of the Board;
o) adopt rules and procedures and fix the
time and place for holding meetings:
Provided, That at least one (1) regular
meeting shall be held monthly;
p) conduct studies, seminars, workshops,
lectures, conferences, exhibits, and other
related activities on book development
such as indigenous authorship, intellectual
property rights, use of alternative
materials for printing, distribution and
others; and
q) exercise such other powers and perform
such other duties as may be required by
the law.31
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A perusal of the above powers and
functions leads us to conclude that they
partake of the nature of public functions.
A public office is the right, authority and
duty, created and conferred by law, by
which, for a given period, either fixed by
law or enduring at the pleasure of the
creating power, an individual is invested
with some portion of the sovereign
functions of the government, to be
exercised by him for the benefit of the
public. The individual so invested is a public
officer.
Notwithstanding that petitioner came
from the private sector to sit as a member
of the NBDB, the law invested her with
some portion of the sovereign functions of
the government, so that the purpose of the
government is achieved. In this case, the
government aimed to enhance the book
publishing industry as it has a significant
role in the national development. Hence,
the fact that she was appointed from the
public sector and not from the other
branches or agencies of the government
does not take her position outside the
meaning of a public office. She was
appointed to the Governing Board in order
to see to it that the purposes for which the
law was enacted are achieved. The
Governing Board acts collectively and
carries out its mandate as one body. The
purpose of the law for appointing
members from the private sector is to
ensure that they are also properly
represented in the implementation of
government objectives to cultivate the
book publishing industry.
Moreover, the Court is not unmindful of
the definition of a public officer pursuant
to the Anti-Graft Law, which provides that
a public officer includes elective and
appointive officials and employees,
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permanent or temporary, whether in the
classified or unclassified or exempt service
receiving compensation, even nominal,
from the government.
No, 3019 ANTI-GRAFT AND CORRUPT
PRACTICES ACT definition:
Pursuant to the Anti-Graft Law, one is a
public officer if one has been elected or
appointed to a public office. Petitioner was
appointed by the President to the
Governing Board of the NDBD. Though her
term is only for a year that does not make
her private person exercising a public
function. The fact that she is not receiving
a monthly salary is also of no moment.
Section 7, R.A. No. 8047 provides that
members of the Governing Board shall
receive per diem and such allowances as
may be authorized for every meeting
actually attended and subject to pertinent
laws, rules and regulations. Also, under the
Anti-Graft Law, the nature of one's
appointment, and whether the
compensation one receives from the
government is only nominal, is immaterial
because the person so elected or
appointed is still considered a public
officer.
Revised Penal Code
On the other hand, the Revised Penal Code
defines a public officer as any person who,
by direct provision of the law, popular
election, popular election or appointment
by competent authority, shall take part in
the performance of public functions in the
Government of the Philippine Islands, or
shall perform in said Government or in any
of its branches public duties as an
employee, agent, or subordinate official, of
any rank or classes, shall be deemed to be
a public officer.34
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ATTY. JP LEO ASONG
Where, as in this case, petitioner performs
public functions in pursuance of the
objectives of R.A. No. 8047, verily, she is a
public officer who takes part in the
performance of public functions in the
government whether as an employee,
agent, subordinate official, of any rank or
classes. In fact, during her tenure,
petitioner took part in the drafting and
promulgation of several rules and
regulations implementing R.A. No. 8047.
Additionally, She was supposed to
represent the country in the canceled book
fair in Spain.
In fine, We hold that petitioner is a public
officer.
WHEREFORE, the Petition
is DISMISSED. The questioned Resolutions
and Order of the Sandiganbayan
are AFFIRMED. Costs against petitioner.
GWENDOLYN GARCIA VS
SANDIGANBAYAN
Topic: Eligibility, Qualifications,
Disqualifications
Mendoza v. Laxina
G.R. No. 146875
July 14, 2003
Parties:
Respondent: BARANGAY CAPTAIN
MANUEL D. LAXINA, SR.
Petitioners: KAGAWADS JOSE G.
MENDOZA, ROSARIO B. ESPINO, TERESITA
S. MENDOZA, JORGE BANAL, Chairman of
the Special Investigation Committee on
Administrative Cases Against Elected
Barangay Officials of the Quezon City
Council and ISMAEL A. MATHAY, JR., City
Mayor of Quezon City
Facts:
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On May 27, 1997, Manuel Laxina took his
oath and assumed office as the duly
proclaimed and elected barangay captain.
Meanwhile, his rival candidate, Fermo,
filed an election protest and the latter was
declared as the winner by the trial court.
Laxina filed a petition with the COMELEC
questioning the order and COMELEC
annulled the order on the ground that
there were no good reasons to justify it. On
October 27, 1999, a writ was issued
ordering Fermo to vacate said position. He
refused. However, this did not stop
respondent Laxina from the discharge of
his duties as the duly elected baranggay
captain. Laxina he held office in the SK-Hall
and appointed two people to become his
secretary and treasurer.
COMELEC issued an alias writ of execution
against Fermo but this was still unsatisfied.
Laxina was able to take his oath (again) on
November 16, 1999. It was only on the
following day that Fermo turned over all
the assets and properties of the barangay.
On November 20, 1999, the appointments
of Laxina’s secretary and treasurer were
ratified to reflect the appointment date of
November 1, 1999. Fermo's appointees
objected to this but they eventually agreed
only if they were paid for their services
from November 1-7, 1999.
Sometime in 2000, Mendoza and other
baranggay councillors filed a complaint for
violation of the anti-graft
and corrupt practices against Laxina’s
appointees.
Petitioners’ Contention: They contended
that defendants made it appear in the
payroll that he and his appointees
rendered services starting November 8,
1999 when, in truth, they commenced to
serve only on November 17, 1999 after
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ATTY. JP LEO ASONG
respondent took his oath and assumed the
office of barangay chairman. They further
claimed that the effectivity date of the
barangay secretary and barangay
treasurer’s appointment, was November
16, 1999, but respondent fraudulently
antedated it to November 1, 1999.
Petitioners also contended that
respondent connived with the other
barangay officials in crossing out their
names in the payroll.
Respondent’s Contention: Defendants
claimed that the taking anew of the oath of
office as barangay chairman was a mere
formality and was not a requirement
before respondent can validly discharge
the duties of his office. They contended
that respondent’s appointees are entitled
to the remuneration for the period stated
in the payroll as they commenced to serve
as early as October 28, 1999. They added
that the names of the 3 petitioner
barangay councilors who refused to sign
the assailed resolution and daily wage
payroll were crossed out from the said
payroll to prevent any further delay in the
release of the salaries of all barangay
officials and employees listed therein.
The Special Investigation Committee on
Administrative Cases of the City ruled that
respondent had no power to make
appointments prior to his oath taking on
November 16, 1999. It found respondent
guilty of grave misconduct and
recommended the penalty of 2 months
suspension. The Quezon City Council
adopted the findings and
recommendations of the Committee.
Laxina then appealed the case to the RTC.
A summary judgment was rendered by the
trial court in favor of respondent. Hence,
this petition.
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Issue:
Is the taking of an oath of office anew by a
duly proclaimed but subsequently
unseated local elective official a condition
sine qua non to the validity of his re-
assumption in office where the
Commission on Elections (COMELEC)
orders the relinquishment of the contested
position?
Held:
No. To be sure, an oath of office is a
qualifying requirement for a public office;
a prerequisite to the full investiture with
the office. It is only when the public officer
has satisfied the prerequisite of oath that
his right to enter into the position becomes
plenary and complete. However, once
proclaimed and duly sworn in office, a
public officer is entitled to assume office
and to exercise the functions thereof. The
pendency of an election protest is not
sufficient basis to enjoin him from
assuming office or from discharging his
functions. Unless his election is annulled by
a final and executory decision, or a valid
execution of an order unseating him
pending appeal is issued, he has the lawful
right to assume and perform the duties of
the office to which he has been elected.
In the case at bar, respondent was
proclaimed as the winner in the 1997
Barangay Elections in Batasan Hills,
Quezon City; he took his oath on May 27,
1997 and thereafter assumed office. He is
therefore vested with all the rights to
discharge the functions of his office.
Although in the interim, he was unseated
by virtue of a decision in an election
protest decided against him, the execution
of said decision was annulled by the
COMELEC in its September 16, 1999
Resolution which, incidentally, was
sustained by this Court on March 13, 2000,
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ATTY. JP LEO ASONG
in Fermo v. Commission on Elections. It
was held therein that when the COMELEC
nullified the writ of execution pending
appeal in favor of FERMO, the decision of
the MTC proclaiming FERMO as the winner
of the election was stayed and the status
quo or the last actual peaceful uncontested
situation preceding the controversy was
restored. The status quo referred to the
stage when respondent was occupying the
office of Barangay Captain and discharging
its functions. For purposes of determining
the continuity and effectivity of the rights
arising from respondent’s proclamation
and oath taken on May 27, 1997, it is as if
the said writ of execution pending appeal
was not issued and he was not ousted from
office. The re-taking of his oath of office on
November 16, 1999 was a mere formality
considering that his oath taken on May 27,
1997 operated as a full investiture on him
of the rights of the office. Hence, the taking
anew of his oath of office as Barangay
Captain of Batasan Hills, Quezon City was
not a condition sine qua non to the validity
of his re-assumption in office and to the
exercise of the functions thereof.
As to when is respondent considered to
have validly re-assumed office from
October 28, 1999, the date of service of the
writ of execution to Roque Fermo and the
date respondent actually commenced to
discharge the functions of the office, or
from November 17, 1999, the date Roque
Fermo turned over to respondent the
assets and properties of Barangay Batasan
Hills, Quezon City?: The records show that
the COMELEC served on October 28, 1999
a writ of execution ordering Fermo to
desist from performing the function of the
Office of Barangay Captain, but the latter
refused to comply therewith. His
supporters prevented respondent from
occupying the barangay hall, prompting
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the latter to move for the issuance of an
alias wit of execution, which was granted
on November 12, 1999. It was only on
November 17, 1999 that the turn-over to
respondent of the assets and properties of
the barangay was effected. Undoubtedly, it
was Fermos defiance of the writ that
prevented respondent from assuming
office at the barangay hall. To reckon,
therefore, the effectivity of respondent’s
assumption in office on November 17,
1999, as petitioners insist, would be to
sanction dilatory maneuvers and to put a
premium on disobedience of lawful orders
which this Court will not countenance. It is
essential to the effective administration of
justice that the processes of the courts and
quasi-judicial bodies be obeyed.[38
Moreover, it is worthy to note that
although the physical possession of the
Office of the Barangay Captain was not
immediately relinquished by Fermo to
respondent, the latter exercised the
powers and functions thereof at the SK-
Hall of Batasan Hills, Quezon City starting
October 28, 1999. His re-assumption in
office effectively enforced the decision of
the COMELEC which reinstated him in
office. It follows that all lawful acts of the
latter arising from his re-assumption in
office on October 28, 1999 are valid.
Hence, no grave misconduct was
committed by him in appointing
Godofredo L. Ramos and Rodel G. Liquido
as Barangay Secretary and Barangay
Treasurer, respectively, and in granting
them emoluments and renumerations for
the period served.
Respondent was also charged of conniving
with the other barangay officials in
crossing out the names of the petitioner
barangay councilors in the payroll. The
petition alleged that as a consequence of
the striking out of the names of the
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ATTY. JP LEO ASONG
petitioner barangay officials, they were not
able to receive their salaries for the period
November 8 to December 31, 1999. A
reading of the payroll reveals that the
names of said petitioners and their
corresponding salaries are written
thereon. However, they refused to sign the
payroll and to acknowledge receipt of their
salaries to manifest their protest. Quod
quis ex culpa sua damnum sentire. Indeed,
he who suffered injury through his own
fault is not considered to have suffered any
damage. Hence, the investigative
committee correctly brushed aside this
charge against respondent.
Joson vs Umbudsman
GR. Nos. 210220-21 April 6, 2016
Nur Haron Parao
Parties:
EDWARD THOMAS F. JOSON - Petitioner
THE OFFICE OF THE OMBUDSMAN, GOV.
AURELIO M. UMALI, ALEJANDRO R.
ABESAMIS, EDILBERTO M. PANCHO, MA.
CHRISTINA G. ROXAS, and FERDINAND R.
ABESAMIS - Respondents
FACTS: Petitioner Edward Thomas F.
Jason (Jason) filed his Affidavit-
3
Complaint, dated April 21, 2008, before
the Ombudsman charging the respondents
– Governor Aurelio M. Umali (Governor
Umali), Provincial Administrator Atty.
Alejandro R.
Abesamis (Alejandro), Consultant Atty.
Ferdinand R.
Abesamis (Ferdinand), Provincial
Treasurer Edilberto M.
Pancho (Pancho), and Officer-in Charge
Ma. Cristina G. Roxas (Roxas) of the Office
of the Provincial Accountant, all of the
Province of Nueva Ecija, with the criminal
offenses of Violation of Section 3(e) of
Republic Act (R.A.) No. 3019, otherwise
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known as the Anti-Graft and Corrupt
Practices Act, and Unlawful Appointment,
defined and penalized under Article 244 of
the Revised Penal Code (RPC) for the
alleged appointment of Ferdinand as
Consultant - Technical Assistance in the
Office of the Governor of Nueva Ecija.
Joson Contentions: that on July 2, 2007,
the Province of Nueva Ecija, represented
by Governor Umali, entered into a contract
of consultancy with Ferdinand wherein the
latter was appointed or employed as
Consultant - Technical Assistance in the
Office of the Governor. On February 28,
2008, Governor Umali and Ferdinand
entered into another contract of
consultancy on February 28, 2008, wherein
the former, representing the Provincial
Government of Nueva Ecija, again
appointed or re-employed the latter in the
same position. Joson asserted that
Governor Umali appointed Ferdinand
despite his knowledge of the latter’s
disqualification for appointment or re-
employment in any government position.
That Ferdinand was dismissed from the
service as Senior State Prosecutor of the
Department of Justice for "conduct
prejudicial to the best interest of the
service" pursuant to Administrative Order
(A.O.) No. 14, dated August 27, 1998; and
that such penalty of dismissal carried with
it his perpetual disqualification for re-
employment in the government service.
Joson further averred that the execution of
the contract of consultancy, dated
February 28, 2008, was legally defective
because its effectivity was made to
retroact to January 2, 2008 in violation of
the rule that "[i]n no case shall an
appointment take effect earlier than the
date of its issuance." He argued that
because no consultancy contract existed
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ATTY. JP LEO ASONG
from January 2, 2008 to February 28, 2008,
Ferdinand should not have been paid any
honorarium for his alleged services
rendered during the said period.
Joson also contended that the
appointment of Ferdinand as consultant by
Governor Umali in spite of being
disqualified to hold public office, and the
payment of his monthly honorarium from
the coffers of the provincial government by
the other respondents, were done with
manifest partiality, evident bad faith or
gross inexcusable negligence, giving
unwarranted benefit to Ferdinand and
causing great and irreparable damage and
prejudice to the taxpayers of the Province
of Nueva Ecija. In view of this, Joson
submitted that the private respondents
should be made liable for violation of
Section 3(e) of R.A. No. 3019. Joson added
that Governor Umali should also be held
liable for violation of Article 244 of the RPC
for knowingly extending appointments to
Ferdinand as legal consultant regardless of
the latter’s lack of legal qualification to the
said position. Lastly, Joson asserted that
Governor Umali’s act of illegally and
unlawfully hiring the services of Ferdinand
could be reasonably viewed as gross
misconduct in office because such act
involved the transgression of some
established and definite rules.
Gov. Umali’s contentions: He averred that
the consultancy services rendered by
Ferdinand could not be considered as
government service within the
contemplation of law and, hence, not
governed by the Civil Service Law, Rules
and Regulations. He pointed out that under
the twin contracts of consultancy,
Ferdinand had been engaged to render
lump sum consultancy services for a short
duration of six (6) months on a daily basis
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and had not been paid any salary or given
any benefits enjoyed by government
employees such as PERA, COLA and RATA,
but merely paid honoraria as stipulated in
the contracts.
Governor Umali argued that if Ferdinand
was indeed appointed or reemployed by
the provincial government, as erroneously
perceived by Joson, then there would be
no need for him to execute the second
consultancy contract which was merely a
renewal of his previous contract of July 2,
2007.
Ferdinands Contention: although his
dismissal from government service was not
yet final as his motion for reconsideration
had not yet been resolved by the Office of
the President at the time of his
appointment, there was no way that his
service contract with the Provincial
Government of Nueva Ecija could be
construed as to create a public office. He
alleged that his engagements squarely fell
within the ambit of contracts of service/job
orders under Section 2(a), Rule XI of the
Civil Service Commission Circular No. 40
series of 1998. He insisted that he was not
a government employee and the specifics
of his contracts were governed by the
Commission on Audit (COA).
The office of the ombudsman ruled in favor
of the respondents, dismissing the criminal
and administrative complaints against all
the respondents.
ISSUE:
WON Gov. Umali is guilty of the offense
under Art. 244 of the RPC.
WON a consultant is a public office
HELD:
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No, Ombudsman concluded that there
could be no legal basis to support a finding
that Governor Umali violated Article 244 of
the RPC considering that Ferdinand was
not appointed to a government office; and
that, there could be no finding that the
respondents violated R.A. No. 3019
considering that the alleged irregularity in
the engagements of Ferdinand was not
shown by substantial evidence.
The private respondents could not be held
criminally liable for violation of Section 3(e)
of R.A. No. 3019 because the two elements
of the offense are wanting. According to
the Ombudsman, there was no undue
injury amounting to actual damages to the
government as it was not disputed that
Ferdinand performed the tasks and duties
required of him under the questioned
contracts and, thus, the payment of
honoraria to him was in order and did not
cause damage to or result in prejudice to
the provincial government.
Umali believed in good faith that
Ferdinand’s dismissal from the service did
not disqualify him from being hired as a
consultant, hence, Art. 244 cannot apply
since to commit the crime, one must
knowingly appoint the disqualified person.
The term "knowingly" presupposes that
the public officer knows of the
disqualification and despite such, he
appointed said person.
No, In Posadas v. Sandiganbayan a
contract for consultancy services is not
covered by Civil Service Law, rules and
regulations because the said position is not
found in the index of position titles
approved by DBM.Accordingly, it does not
need the approval of the CSC. xxx A
"consultant" is defined as one who
provides professional advice on matters
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within the field of his specific knowledge or
training. There is no employer-employee
relationship in the engagement of a
consultant but that of client-professional
relationship.
The Court notes that Ferdinand did not
take an oath of office prior to his rendition
of consultancy services for the Provincial
Government of Nueva Ecija. All public
officers and employees from the highest to
the lowest rank are required to take an
oath of office which marks their
assumption to duty. It is well-settled that
on oath of office is a qualifying
requirement for public office, a
prerequisite to the full investiture of the
office. Ferdinand was not required to take
an oath of office because he rendered
consultancy services for the provincial
government not by virtue of an
appointment or election to a specific public
office or position but by a contractual
engagement.
ISSUE ON ABUSE OF DISCRETION:
Ombudsman did not commit grave abuse
of discretion in dismissing the criminal
charges against the private respondents.
United Coconut Planters Bank v. Looyuko:
By grave abuse of discretion is meant such
capricious and whimsical exercise of
judgment as is equivalent to lack of
jurisdiction. The abuse of discretion must
be grave as where the power is exercised
in an arbitrary or despotic manner by
reason of passion or personal hostility, and
must be so patent and gross as to amount
to an evasion of a positive duty or to a
virtual refusal to perform the duty
enjoined or to act at all in contemplation of
law.While the prosecutor, or in this case,
the investigating officers of the Office of
the Ombudsman, may err or even abuse
LAWS ON PUBLIC CORPORATIONS
ATTY. JP LEO ASONG
the discretion lodged in them by law, such
error or abuse alone does not render their
act amenable to correction and annulment
by the extraordinary remedy
of certiorari."Moreover, a finding of
probable cause, or lack of it, is a finding of
fact which is generally not reviewable by
this Court. Only when there is a clear case
of grave abuse of discretion will this Court
interfere with the findings of the Office of
the Ombudsman. As a general rule, the
Court does not interfere with the
Ombudsman’s determination of the
existence or absence of probable cause.
With respect to the dismissal of the
administrative charge for gross
misconduct, the Court finds that the same
has already attained finality because Joson
failed to file a petition for certiorari before
the Court of Appeals (CA).
Topic: Power of Congress to prescribe
qualifications/disqualifications
Pimentel v. Ermita
G.R. No. 164978, October 13, 2005
Konrad Stephen P. Ibabao
Facts:
Congress commenced their regular session
on July 26, 2004 and adjourned on
September 22 of the same year, President
Arroyo issued appointments to
respondents to their respective
departments on the next day. Respondents
took their oath of office and assumed their
duties as acting secretaries. Petitioners
questions the constitutionality of the
appointment since it was without the
consent of the Commission on
Appointments while Congress is in session.
Petitioners contend that President Arroyo
should not have appointed respondents as
acting secretaries because “in case of a
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vacancy in the Office of a Secretary, it is
only an Undersecretary who can be
designated as Acting Secretary. Petitioners
base their argument on Section 10,
Chapter 2, Book IV of Executive Order No.
292 (EO 292),which enumerates the
powers and duties of the undersecretary.
Paragraph 5 of Section 10 reads:
SEC. 10. Powers and Duties of the
Undersecretary. – The Undersecretary
shall:
(5) Temporarily discharge the duties of the
Secretary in the latter’s absence or inability
to discharge his duties for any cause or in
case of vacancy of the said office, unless
otherwise provided by law. Where there
are more than one Undersecretary, the
Secretary shall allocate the foregoing
powers and duties among them. The
President shall likewise make the
temporary designation of Acting Secretary
from among them; and
Petitioners further assert that “while
Congress is in session, there can be no
appointments, whether regular or acting,
to a vacant position of an office needing
confirmation by the Commission on
Appointments, without first having
obtained its consent.
In sharp contrast, respondents maintain
that the President can issue appointments
in an acting capacity to department
secretaries without the consent of the
Commission on Appointments even while
Congress is in session. Respondents point
to Section 16, Article VII of the 1987
Constitution. Section 16 reads:
SEC. 16. Power of Appointment. — The
President shall exercise the power to
appoint such officials as provided for in the
Constitution and laws.
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SEC. 17. Power to Issue Temporary
Designation.— (1) The President may
temporarily designate an officer already in
the government service or any other
competent person to perform the
functions of an office in the executive
branch, appointment to which is vested in
him by law, when: (a) the officer regularly
appointed to the office is unable to
perform his duties by reason of illness,
absence or any other cause; or (b) there
exists a vacancy[.]
(2) The person designated shall receive the
compensation attached to the position,
unless he is already in the government
service in which case he shall receive only
such additional compensation as, with his
existing salary, shall not exceed the salary
authorized by law for the position filled.
The compensation hereby authorized shall
be paid out of the funds appropriated for
the office or agency concerned.
(3) In no case shall a temporary designation
exceed one (1) year.
Issue:
W/N the appointments was
unconstitutional since it was made after
the recess of Congress.
Held:
No. The power to appoint is essentially
executive in nature, and the legislature
may not interfere with the exercise of this
executive power except in those instances
when the Constitution expressly allows it
to interfere.
Limitations on the executive power to
appoint are construed strictly against the
legislature. The scope of the legislature’s
interference in the executive’s power to
appoint is limited to the power to prescribe
the qualifications to an appointive office.
Congress cannot appoint a person to an
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office in the guise of prescribing
qualifications to that office. Neither may
Congress impose on the President the duty
to appoint any particular person to an
office.
However, even if the Commission on
Appointments is composed of members of
Congress, the exercise of its powers is
executive and not legislative. The
Commission on Appointments does not
legislate when it exercises its power to give
or withhold consent to presidential
appointments.
The Commission on Appointments is a
creature of the Constitution. Although its
membership is confined to members of
Congress, said Commission is independent
of Congress. The powers of the
Commission do not come from Congress,
but emanate directly from the
Constitution. Hence, it is not an agent of
Congress. In fact, the functions of the
Commissioner are purely executive in
nature.
In distinguishing ad interim appointments
from appointments in an acting capacity, a
noted textbook writer on constitutional
law has observed:
Ad-interim appointments must be
distinguished from appointments in an
acting capacity. Both of them are effective
upon acceptance. But ad-interim
appointments are extended only during a
recess of Congress, whereas acting
appointments may be extended any time
there is a vacancy. Moreover ad-interim
appointments are submitted to the
Commission on Appointments for
confirmation or rejection; acting
appointments are not submitted to the
Commission on Appointments. Acting
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appointments are a way of temporarily
filling important offices but, if abused, they
can also be a way of circumventing the
need for confirmation by the Commission
on Appointments.
Topic:Three-Term Limit
HALILI VS COMELEC
G.R. No. 231643 and 231657
January 15, 2019
Manuel Alameda
Parties:
Petitioners: Christian Halili
Respondents: COMELEC, Pyro Lucas and
Crisostomo Garbo
Facts:
Petitioner Morales was elected as Mayor
of the Municipality of Mabalacat for 3
consecutive terms: 1 st term (2007 to
2010), 2 nd term (2010 to 2013), 3 rd term
(2013 to 2016). On his 2 nd term, the
Municipality of Mabalacat became a
component city. On the 2016 elections, he
filed his CoC for the position of Mayor of
Mabalacat City. Respondent Lucas, also a
candidate for the same position, filed a
Petition for Cancellation of the COC and/or
Disqualification of Morales.
Lucas’ Allegations: that Morales was
disqualified to run for mayor, since he was
elected and had served three consecutive
terms prior to the 2016 elections. Morales
insists that his 2nd term as mayor of the
Municipality of Mabalacat was interrupted
by the conversion of the municipality into
a component city. Morales claimed that his
candidacy did not violate the three-term
limit rule, because the conversion of the
Municipality of Mabalacat into Mabalacat
City interrupted his term. According to
him, his term as mayor of Mabalacat City is
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not a continuation of his term as mayor of
the Municipality of Mabalacat.
Morales’ answer: that Lucas' petition
should be summarily dismissed for lack of
certification against forum shopping, for
being filed out of time, and for lack of
jurisdiction and/or cause of action.
Morales claimed that his candidacy did not
violate the three-term limit rule, because
the conversion of the Municipality of
Mabalacat into Mabalacat City interrupted
his term. According to him, his term as
mayor of Mabalacat City is not a
continuation of his term as mayor of the
Municipality of Mabalacat.
On 10 May 2016, following the canvass of
all election returns, the City Board of
Canvassers of Mabalacat City proclaimed
Morales as elected city mayor, and
petitioner Christian C. Halili (Halili) as
elected city vice mayor.
On 20 May 2016, Garbo, another candidate
for the position of mayor of Mabalacat
City, filed a Motion for Leave To Intervene
and To Admit Attached Petition-in-
Intervention alleging that he was
interested in the outcome of the case,
since he obtained the second highest
number of votes and he should be
proclaimed as mayor of Mabalacat City
should Morales' COC be cancelled.
(Granted by Comelec en banc)
On 28 June 2016, Halili also filed a Verified
Motion for Leave to Intervene (as
Respondent) and Admit Attached Answer-
in-Intervention 10 alleging that, as
incumbent vice mayor of Mabalacat City,
he should be proclaimed as mayor of
Mabalacat City should Morales' COC be
cancelled pursuant to the rule on
succession under Section 44 of RA 7160, or
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the Local Government Code. (Granted by
Comelec en banc)
Morales opposed alleging both petitions-
in-intervention are premature.
COMELEC cancelled Morales' COC, and
ordered the proclamation of the qualified
mayoralty candidate with the next higher
number of votes
COMELEC ruled that Lucas' petition was a
petition for cancellation of COC under
Section 78 of the Omnibus Election Code
(OEC), and it was timely filed. The
COMELEC First Division likewise held that
Morales committed a material
misrepresentation in his COC in stating that
he is eligible to run as mayor of Mabalacat
City, when in fact he is not eligible, because
he violated the three-term limit rule after
having served for the same local
government post for three consecutive
terms prior to the 2016 elections.
ISSUE:
Whether or not the COMELEC gravely
abused its discretion amounting to lack or
excess of jurisdiction: ( 1) in finding that
Morales committed a false material
representation in his COC when he
declared that he was eligible to run as
mayor of Mabalacat City for the 2016
elections despite his violation of the three-
term limit rule; and (2) in proclaiming
Garbo as the duly elected mayor of
Mabalacat City for being the qualified
candidate with the highest number of
votes.
SC RULING:
NO MERIT IN BOTH PETITIONS
The intention behind the three-term limit
rule is not only to abrogate the
"monopolization of political power" and
prevent elected officials from breeding
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"proprietary interest in their position" but
also to "enhance the people's freedom of
choice." There are two conditions which
must concur for the application of the
disqualification of a candidate based on
violation of the three-term limit rule: (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.
In the present case, Morales admits that he
has been elected and has served as mayor
of Mabalacat, Pampanga for three
consecutive terms: (1) 2007-2010; (2)
2010-2013; and (3) 2013-2016. However,
Morales insists that his second term as
mayor of the Municipality of Mabalacat
was interrupted by the conversion of the
municipality into a component city.
Morales claims that Mabalacat City is an
entirely different political unit from the
Municipality of Mabalacat, having an
increased territory, income and
population. ( SC not convinced )
Citing the case of Latasa v. COMELEC, the
SC held that the conversion of a
municipality into a city does not constitute
an interruption of the incumbent official's
continuity of service. We held that to be
considered as interruption of service, the
"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. " Applying our ruling in
Latasa, the provisions of RA 10164 mean
that the delineation of the metes and
bounds of Mabalacat City did not change
even by an inch the land area previously
covered by the Municipality of Mabalacat.
Consequently, the inhabitants are the
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same group of voters who elected Morales
to be their mayor for three consecutive
terms, and over whom he held power and
authority as their mayor. Accordingly,
Morales never ceased from acting and
discharging his duties and responsibilities
as chief executive of Mabalacat, despite
the conversion of the Municipality of
Mabalacat into Mabalacat City.
Similarly, in Laceda, Sr. v. Limena, we held
that the merger and conversion of the
municipalities of Sorsogon and Bacon into
Sorsogon City did not interrupt petitioner's
term as Punong Barangay for three
consecutive terms,
In the present case, RA 10164, or An Act
Converting the Municipality of Mabalacat
in the Province of Pampanga into a
Component City to be Known as Mabalacat
City, provides that:
Sec. 2. Mabalacat City. - The Municipality
of Mabalacat shall be converted into a
component city to be known as Mabalacat
City, hereinafter referred to as the City.
The territorial jurisdiction of the City shall
be within the present metes and bounds of
the Municipality of Mabalacat, Province of
Pampanga.
shall be within the present metes and
bounds of the Municipality of Mabalacat,
Province ofThe foregoing provision shall be
without prejudice to the resolution by the
appropriate agency or forum of any
boundary dispute or case involving
questions of territorial jurisdiction
between Mabalacat City and the adjoining
local government units.Pampanga.
xx xx Sec. 52. Officials of Mabalacat City. -
The present elective officials of the
Municipality of Mabalacat shall continue to
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exercise their powers and functions until
such time that a new election is held and
the duly-elected officials shall have already
qualified and assumed their offices.
Appointive officials and employees of the
municipality shall likewise continue
exercising their duties and functions and
they shall be automatically absorbed by
the city government of Mabalacat City.
(Emphasis supplied)
We find that Morales failed to substantiate
his claim that Mabalacat City is an entirely
different political unit as that of the
Municipality of Mabalacat. In his
Memorandum, Morales states that: "the
Political Boundary Map just offered as
EXHIBIT B never made it to be released
officially by the Bureau of Land
Management of the DENR and is being
used only in this case as a reference tool to
designate the original and specific intent of
Congress when it passed into law RA
10164, the Charter of Mabalacat City.
Though the political boundary map is
complete for its intended purpose,
respondent acknowledges that it never got
officially released because of
circumstances beyond anyone's control.
The notable stumbling blocks against the
release of this Political Boundary Map are
the already ongoing litigations among
various claimants and the protestations of
conflicting claims by would be
stakeholders with the new added areas.
Thus, Morales admits that there are on-
going litigations, and there is no resolution
by an appropriate agency on any boundary
dispute, as required by the second
paragraph of Section 2, RA 10164. The
Political Boundary Map is merely offered to
show the intent of Congress in passing RA
10164, when in fact, resort to intention is
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unnecessary when the law is clear.
Accordingly, there is no factual or legal
authority for Morales' claim that the
territorial jurisdiction of Mabalacat City is
different from that of the Municipality of
Mabalacat.
Topic: Particular
qualification/disqualifications
Sofronio Albania Vs. Commission on
Elections and Edgardo Tallado
Alexa Danielle C. Dayanghirang
Parties:
Petitioner - Sofronio Albania
Respondent - Commission on Elections and
Edgardo Tallado
Facts:
In the May 14, 2007 elections, Tallado and
Typoco were both candidates for the
position of Governor in Camarines Norte.
After the counting and canvassing of votes,
Typoco was proclaimed as the winner.
Tallado questioned Typoco's proclamation
by filing with the COMELEC, a petition for
correction of a manifest error. The Petition
was decided in respondent's favor on
March 5, 2010 and Tallado assumed the
position of Governor of Camarines Norte
from March 22, 2010 to June 30, 2010, the
end of the 2007-2010 term. Tallado ran
again in the 2010 and 2013 Elections where
he won and served as Governor of
Camarines Norte, respectively. On October
16, 2015, Tallado filed his Certificate of
Candidacy as Governor of Camarines Norte
in the May 9, 2016 National and Local
elections.
Albania, a registered voter of Camarines
Norte, filed a petition for Tallado’s
disqualification from running as Governor
since he violated the three-term limit rule
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under Section 43 of RA No 7160 (Local
Government Code of 1991). COMELEC
Second Division dismissed the petition and
ruled that the alleged violation of three-
term limit rule is a ground for ineligibility
which constituted false material
representation under Section 78 of the
OEC.
Issue:
WON Tallado is ineligible to run in the 2016
elections for allegedly violating the three-
term limit?
Contentions:
Albania’s Contentions –
As a registered voter of Poblacion Sta.
Elena, Camarines Norte, filed a petition for
respondent's disqualification from running
as Governor based on Rule 25 of COMELEC
Resolution No. 9523 on two grounds: (1)
he violated the three term limit I rule under
Section 43 of RA No 7160, otherwise
known as the Local Government Code of
1991 (LGC); and (2) respondent's
suspension from office for one year
without pay, together with its accessory
penalties, after he was found guilty of
oppression and grave abuse of authority in
the Ombudsman's Order9 dated October
2, 2015.
Tallado’s Contentions –
That the petition was primarily based on
his alleged violation of the three-term limit
rule, the same1 should have been filed as a
petition to deny due course to or cancel
certificate of candidacy under Rule 23 of
COMELEC Resolution 9523, in relation to
Section 78 of the Omnibus Election Code,
as the ground cited affected a candidate's
eligibility; that based on Section 23, the
petition should had been filed on
November 10, 2015, but the petition was
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ATTY. JP LEO ASONG
filed only on November 13, 2015, hence,
the same had already prescribed and must
be dismissed. His suspension from office is
also not a ground for a petition for
disqualification. On the substantive issues,
he denied violating the three-term limit
rule as he did not fully serve three
consecutive terms since he only served as
Governor for the 2007 elections from
March 22, 2010 to June 30, 2010.
Ruling:
No. The two conditions that must concur
for the application of the disqualification of
a candidate based on violation of the
three-term limit rule, which are: (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.
The three- term limit rule is embodied in
Section 8 of Article X of the Constitution
which provides that “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.” 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.
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
officer's term, unless he is authorized by
law to holdover, his rights, duties and
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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.
In this case, while respondent ran as
Governor of Camarines Norte in the 2007
elections, he did not win as such. It was
only after he filed a petition for correction
of manifest error that he was proclaimed
as the duly-elected Governor. He assumed
the post and served the unexpired term of
his opponent from March 22, 2010 until
June 30, 2010. Consequently, he did not
hold the office for the full term of three
years to which he was supposedly entitled
to. Thus, such period of time that
respondent served as Governor did not
constitute a complete and full service of his
term. The period when he was out of office
involuntarily interrupted the continuity of
his service as Governor. As he had not fully
served the 2007-2010 term, and had not
been elected for three consecutive terms
as Governor, there was no violation of the
three-term limit rule when he ran again in
the 2016 elections.
Definitions:
Grounds for disqualification of a candidate
under Sections 12 and 48 of the Omnibus
Election Code of the Philippines and
Section 68 of the Local Government Code:
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
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moral turpitude, shall be disqualified to be
a candidate and to hold any office, unless
he has been given plenary pardon or
granted amnesty.
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 or sentence, unless within the
same period he again becomes
disqualified.
SEC. 68. Disqualifications. Any candidate
who, in an action or protest in which he is
a party is declared by final decision of a
competent court guilty of, or found by the
Commission of having (a) given money or
other material consideration to influence,
induce or corrupt the voters or public
officials performing electoral functions; (b)
committed acts of terrorism to enhance his
candidacy; (c) spent in his election
campaign an amount in excess of that
allowed by this Code; (d) solicited, received
or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been
elected, from holding the office. Any
person who is a permanent resident of or
an immigrant to a foreign country shall not
be qualified to run for any, elective office
under this Code, unless said person has
waived his status as a permanent resident
or immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws.
________
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SECTION 40. Disqualifications - The
following persons are disqualified from
running for any elective local position:
(a) Those sentence by final judgment for an
offense involving moral turpitude or for an
offense punishable by one (1) year or more
of imprisonment, within two (2) years after
serving sentence;
(b) Those removed from office as a result
of an administrative case; .
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitive from justice in criminal or
nonpolitical cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to avail
of the same right after the effectivity of this
Code; and
(g) The insane or feeble-minded.
ABUNDO vs COMELEC
GR No. 201716688 SCRA 149
Jan 8, 2013
Dale Angelique D. Lapulapu
PARTIES:
Petitioners: Mayor ABelardo Abundo, Sr
Respondents: COMELEC and Ernesto R.
Vega
FACTS:
This petiton for certiorari (Rule 65) assailed
by ABUNDO and seeked to nullify the
Resolutions of the COMELEC.
For four (4) successive regular elections (
2001, 2004, 2007 and 2010 elections),
ABUNDO vied for the position of municipal
mayor of Viga, Catanduanes. In both the
2001 and 2007 runs, ABUNDO emerged
and was proclaimed as the winning
mayoralty candidate and accordingly
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served the corresponding terms as mayor.
In the 2004 electoral derby, however, the
Viga municipal board of canvassers initially
proclaimed as winner one Jose Torres,
who, in due time, performed the functions
of the office of mayor. ABUNDO protested
Torres’ election and proclamation.
ABUNDO was eventually declared the
winner of the 2004 mayoralty electoral
contest, paving the way for his assumption
of office starting May 9, 2006 until the end
of the 2004-2007 term on June 30, 2007, or
for a period of a little over one year and
one month. Then came the May 10, 2010
elections where ABUNDO and Torres again
opposed each other. When ABUNDO filed
his certificate of candidacy for the
mayoralty seat relative to this electoral
contest, Torres sought the ABUNDO’s
disqualification to run, the corresponding
petition predicated on the three-
consecutive term limit rule. On June 16,
2010, the COMELEC First Division issued a
Resolution finding for ABUNDO, who in the
meantime bested Torres by 219 votes and
was accordingly proclaimed 2010 mayor-
elect of Viga, Catanduanes.
RTC ruling: declared ABUNDO ineligible to
serve as municipal mayor citing that
ABUNDO have already served the 3-
consecutive mayoralty terms (2001-2004,
2004-2007, & 2007- 2010) hence,
disqualified. ABUNDO appealed.
COMELEC 2nd Div’s ruling: affirmed the
RTC’s decision and dismissed ABUNDO’s
appeal for lack of merit citing on the
strength of Aldovino, Jr. and held that
service of the unexpired portion of a term
by a protestant who is declared the winner
in an election protest is considered as
service for one full term within the
contemplation of the three-term limit rule.
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COMELEC en banc’s ruling: ABUNDO’s
reconsideration is denied for lack of merit
and affirmed the COMELEC’s decision. The
COMELEC thereafter filed a resolution
declaring the decision as final and
executory. VEGA, filed a motion for
execution.
ISSUE:
WON the service of a term less than the full
three years by ABUNDO, an elected official,
arising from his being declared as the duly
elected official upon an election protest is
considered as full service of the term for
purposes of the application of the three
consecutive term limit for elective local
officials. (i.e. WON Abundo is deemed to
have served three consecutive terms)
HELD:
No.
The three-term limit rule for elective local
officials, a disqualification rule, is found in
Section 8, Article X of the 1987
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.
(Emphasis supplied.) and is reiterated in
Sec. 43(b) of Republic Act No. (RA) 7160, or
the Local Government Code (LGC) of 1991,
thusly: Sec. 43. Term of Office.―x 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
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which the elective official concerned was
elected. (Emphasis Ours.)
To constitute a disqualification to run for
an elective local office pursuant to the
aforequoted constitutional and statutory
provisions, the following requisites must
concur:
(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.
To summarize, hereunder are the
prevailing jurisprudence on issues affecting
consecutiveness of terms and/or
involuntary interruption, viz.:
1. When a permanent vacancy occurs
in an elective position and the official
merely assumed the position pursuant to
the rules on succession under the LGC,
then his service for the unexpired portion
of the term of the replaced official cannot
be treated as one full term as
contemplated under the subject
constitutional and statutory provision that
service cannot be counted in the
application of any term limit (Borja, Jr.). If
the official runs again for the same position
he held prior to his assumption of the
higher office, then his succession to said
position is by operation of law and is
considered an involuntary severance or
interruption (Montebon).
2. An elective official, who has served
for three consecutive terms and who did
not seek the elective position for what
could be his fourth term, but later won in a
recall election, had an interruption in the
continuity of the official’s service. For, he
had become in the interim, i.e., from the
end of the 3rd term up to the recall
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election, a private citizen (Adormeo and
Socrates).
3. The abolition of an elective local
office due to the conversion of a
municipality to a city does not, by itself,
work to interrupt the incumbent official’s
continuity of service (Latasa).
4. Preventive suspension is not a
term-interrupting event as the elective
officer’s continued stay and entitlement to
the office remain unaffected during the
period of suspension, although he is barred
from exercising the functions of his office
during this period (Aldovino, Jr.).
5. When a candidate is proclaimed as
winner for an elective position and
assumes office, his term is interrupted
when he loses in an election protest and is
ousted from office, thus disenabling him
from serving what would otherwise be the
unexpired portion of his term of office had
the protest been dismissed (Lonzanida and
Dizon). The break or interruption need not
be for a full term of three years or for the
major part of the 3-year term; an
interruption for any length of time,
provided the cause is involuntary, is
sufficient to break the continuity of service
(Socrates, citing Lonzanida).
6. When an official is defeated in an
election protest and said decision becomes
final after said official had served the full
term for said office, then his loss in the
election contest does not constitute an
interruption since he has managed to serve
the term from start to finish. His full
service, despite the defeat, should be
counted in the application of term limits
because the nullification of his
proclamation came after the expiration of
the term (Ong and Rivera).
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The intention behind the three-term limit
rule was not only to abrogate the
“monopolization of political power” and
prevent elected officials from breeding
“proprietary interest in their position” but
also to “enhance the people’s freedom of
choice.” In the words of Justice Vicente V.
Mendoza, “while people should be
protected from the evils that a monopoly
of power may bring about, care should be
taken that their freedom of choice is not
unduly curtailed.” A “term,” as defined in
Appari v. Court of Appeals, 127 SCRA 231
(1984), means, in a legal sense, “a fixed and
definite period of time which the law
describes that an officer may hold an
office.” It also means the “time during
which the officer may claim to hold office
as a matter of right, and fixes the interval
after which the several incumbents shall
succeed one another.” It is the period of
time during which a duly elected official
has title to and can serve the functions of
an elective office. From paragraph (a) of
Sec. 43, RA 7160, the term for local elected
officials is three (3) years starting from
noon of June 30 of the first year of said
term.
The notion of full service of three
consecutive terms is related to the
concepts of interruption of service and
voluntary renunciation of service. The
word interruption means temporary
cessation, intermission or suspension. To
interrupt is to obstruct, thwart or prevent.
When the Constitution and the LGC of
1991 speak of interruption, the reference
is to the obstruction to the continuance of
the service by the concerned elected
official by effectively cutting short the
service of a term or giving a hiatus in the
occupation of the elective office. On the
other hand, the word “renunciation”
connotes the idea of waiver or
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abandonment of a known right. To
renounce is to give up, abandon, decline or
resign. Voluntary renunciation of the office
by an elective local official would thus
mean to give up or abandon the title to the
office and to cut short the service of the
term the concerned elected official is
entitled to.
As aptly stated in Latasa, to be considered
as interruption of service, the “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.” Applying the said
principle in the present case, there is no
question that during the pendency of the
election protest, Abundo ceased from
exercising power or authority over the
good people of Viga, Catanduanes.
Consequently, the period during which
Abundo was not serving as mayor should
be considered as a rest period or break in
his service because, as earlier stated, prior
to the judgment in the election protest, it
was Abundo’s opponent, Torres, who was
exercising such powers by virtue of the still
then valid proclamation.
DEFINITIONS:
Involuntary interruption is claimed to
result from any of these events or causes:
succession or assumption of office by
operation of law, preventive suspension,
declaration of the defeated candidate as
the winner in an election contest,
declaration of the proclaimed candidate as
the losing party in an election contest,
proclamation of a non-candidate as the
winner in a recall election, removal of the
official by operation of law, and other
analogous causes.
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Assumption of Office by Operation of Law.
This contemplates a situation wherein an
elective local official fills by succession a
higher local government post permanently
left vacant due to any of the following
contingencies, i.e., when the supposed
incumbent refuses to assume office, fails
to qualify, dies, is removed from office,
voluntarily resigns or is otherwise
permanently incapacitated to discharge
the functions of his office.
In Borja, Jr. v. Commission on Elections and
Jose T. Capco, Jr. (1998), the Court held
that for the disqualification rule to apply,
"it is not enough that an individual has
served three consecutive terms in an
elective local office, he must also have
been elected to the same position for the
same number of times before the
disqualification can apply." There was, the
Court ruled, no violation of the three-term
limit, for Capco "was not elected to the
office of the mayor in the first term but
simply found himself thrust into it by
operation of law" when a permanent
vacancy occurred in that office.
In Montebon v. Commission on Elections
(2008), the Court ruled that Montebon’s
assumption of office as vice-mayor in
January 2004 was an interruption of his
continuity of service as councilor. The
Court emphasized that succession in local
government office is by operation of law
and as such, it is an involuntary severance
from office. Since the law no less allowed
Montebon to vacate his post as councilor
in order to assume office as vice-mayor, his
occupation of the higher office cannot,
without more, be deemed as a voluntary
renunciation of his position as councilor.
C. Recall Election. In Adormeo v.
Commission on Elections (2002), In
Adormeo, Ramon Talaga, Jr. (Talaga) was
elected and served as mayor of Lucena City
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during terms 1992-1995 and 1995-1998.
During the 1998 elections, Talaga lost to
Bernard G. Tagarao. However, before
Tagarao’s 1998-2001 term ended, a recall
election was conducted in May 2000
wherein Talaga won and served the
unexpired term of Tagarao until June 2001.
When Talaga ran for mayor in 2001, his
candidacy was challenged on the ground
he had already served as mayor for three
consecutive terms for violation of the three
term-limit rule. The Court held therein that
the remainder of Tagarao’s term after the
recall election during which Talaga served
as mayor should not be considered for
purposes of applying the three-term limit
rule. The Court emphasized that the
continuity of Talaga’s mayorship was
disrupted by his defeat during the 1998
elections.
D. Conversion of a Municipality into a City.
The conversion of a municipality into a city
does not constitute an interruption of the
incumbent official’s continuity of service.
The Court said so in Latasa v. Commission
on Elections (2003). Latasa never ceased
from acting as chief executive of the local
government unit. He never ceased from
discharging his duties and responsibilities
as chief executive of Digos. To be
considered as interruption of service, the
"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."
E. Period of Preventive Suspension. The
period during which a local elected official
is under preventive suspension cannot be
considered as an interruption of the
continuity of his service. A preventive
suspension cannot simply be a term
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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 official’s continuity in office
is the absence of a permanent
replacement and the lack of the authority
to appoint one since no vacancy exists.
F. Election Protest. In Lonzanida v.
Commission on Elections (1999), Lonzanida
cannot be considered as having been duly
elected to the post in the May 1995
elections since his assumption of office as
mayor "cannot be deemed to have been by
reason of a valid election but by reason of
a void proclamation." And as a corollary
point, the Court stated that Lonzanida did
not fully serve the 1995- 1998 mayoral
term having been ordered to vacate his
post before the expiration of the term, a
situation which amounts to an involuntary
relinquishment of office.
But in Ong v. Alegre (2006), the Court held
that his assumption of office as mayor for
the term 1998-2001 constitutes "service
for the full term" and hence, should be
counted for purposes of the three-term
limit rule. The Court modified the
conditions stated in Lonzanida in the sense
that Ong’s service was deemed and
counted as service for a full term because
Ong’s proclamation was voided only after
the expiry of the term. The Court noted
that the COMELEC decision which declared
Ong as not having won the 1998 elections
was "without practical and legal use and
value" promulgated as it was after the
contested term has expired.
The Court did not apply the ruling in
Lonzanida and ruled that the case of Ong
was different, to wit: The difference
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between the case at bench and Lonzanida
is at once apparent. For one, in Lonzanida,
the result of the mayoralty election was
declared a nullity for the stated reason of
"failure of election", and, as a consequence
thereof, the proclamation of Lonzanida as
mayor-elect was nullified, followed by an
order for him to vacate the office of mayor.
For another, Lonzanida did not fully serve
the 1995-1998 mayoral term, there being
an involuntary severance from office as a
result of legal processes. In fine, there was
an effective interruption of the continuity
of service.
SIMON B. ALDOVINO, JR., DANILO B.
FALLER AND FERDINAND N. TALABONG,
Petitioners,
vs. COMMISSION ON ELECTIONS AND
WILFREDO F. ASILO, Respondents.
RATIONALE: 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.
FACTS:
Wilfredo F. 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 2004-2007 term of
office, the Sandiganbayan preventively
suspended him for 90 days in relation with
a criminal case he then faced. The Court,
however, subsequently lifted the
Sandiganbayan’s suspension order; hence,
he resumed performing the functions of his
office and finished his term.
In the 2007 election, Asilo filed his
certificate of candidacy for the same
position. Simon B. Aldovino, Jr., Danilo B.
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Faller, and Ferdinand N. Talabong sought
cancel Asilo’s certificate of candidacy 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 COMELEC’s Second Division ruled
against the petitioners and in Asilo’s
favour. 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 Division’s ruling.
ISSUE:
Whether Asilo’s preventive suspension
constituted an interruption that allowed
him to run for a 4th term.
RULING:
Yes. Asilo’s 2004-2007 term was not
interrupted by the Sandiganbayan-
imposed preventive suspension in 2005, as
preventive suspension does not interrupt
an elective official’s term. 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 official’s 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.
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Thus, based on this standard, loss of office
by operation of law, being involuntary, is
an effective interruption of service within a
term. 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 holder’s
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.
Preventive suspension should not be
considered an interruption that allows an
elective official’s 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 official’s continuity in office is
the absence of a permanent replacement
and the lack of the authority to appoint
one since no vacancy exists.
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IMPORTANT DOCTRINES:
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. 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. 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.
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
officer’s 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.
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.
In Lonzanida v. Commission on Elections,
the court ruled that the two requisites for
the application of the disqualification: 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.
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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. The
Constitution does not 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.
Term of Limitation V Preventive
Suspension
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
service during an unbroken term; in the
context of term limitation, interruption of
service occurs after there has been a break
in the term.
Preventive Suspension VS Voluntary
Renunciation
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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. 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.
MORENO VS COMELEC
Topic: Disqualifications under the Local
Government Code (Sec. 40 Local
Government Code)
Meracado vs Manzano
GR 135083 (307 SCRA 630)
May 26 1999
Stephen Renz A. Barrion
Facts:
Petitioner Ernesto Mercado and Private
Respondent Eduardo Manzano were
candidates for vice mayor of the City of
Makati in the May 11, 1998 elections. The
results are: 1) Eduardo Manzano – 103,
853; 2) Ernesto Mercado – 100, 894; 3)
Gabriel Daza III – 54, 275.
The proclamation of private respondent
was suspended in view of a pending
petition for disqualification filed by a
certain Ernesto Mamaril who alleged that
private respondent was not a citizen of the
Philippines but of the United States.
On May 7, 1998, the 2nd division of the
Comelec granted the petition of Mamaril
and ordered the cancellation of the
certificate of candidacy on the ground that
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he is a dual citizen and, under Sec. 40(d) of
the Local Government Code, persons with
dual citizenship are disqualified from
running for any elective position.
On May 8, 1998, private respondent filed a
motion for reconsideration. Such motion
remained pending even after election
Pursuant to Omnibus resolution no 3044,
dated May 10, 1998, of the Comelec, the
boar.d of canvassers tabulated the votes
cast for vice mayor but suspended the
proclamation of the winner.
On May 19, 1998, petitioner sought to
intervene in the case for disqualification.
Such motion was opposed by private
respondent.
On August 31, 1998, the Comelec en banc
rendered its resolution. The Comelec en
banc reversed the ruling if its 2nd division
and declared private respondent qualified
to run for vice mayor of the City of Makati.
It is an undisputed fact that when private
respondent attained the age of majority,
he registered himself as a voter, and voted
in the elections of 1992, 1995, and 1998,
which effectively renounced his US
Citizenship under the American law. Under
the Philippine law, he no longer had US
citizenship.
Pursuant to the resolution of the Comelec
en banc, the board of canvassers
proclaimed private respondent as vice
mayor of the City of Makati.
Hence, this petition for certiorari seeking
to set aside the resolution of the Comelec
en banc and to declare private respondent
disqualified to hold the office of Vice
Mayor.
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Issue:
Whether or not private respondent is
qualified to run and hold office as Vice
Mayor of the City of Makati.
Ruling:
Yes, private respondent is qualified to run
and hold office as vice mayor of the City of
Makati.
Dual citizenship is different from Dual
allegiance. The former arises when, as a
result of the concurrent application of the
different laws of two or more states, a
person is simultaneously considered a
national by the said states. For instance,
such a situation may arise when a person
whose parents are citizens of a state which
adheres to the principle of jus sanguinis is
born in a state which follows the doctrine
of jus soli. Such a person, ipso facto and
without any voluntary act in his part, is
concurrently considered a citizen of both
states.
Dual allegiance on the other hand, refers to
the situation in which a person
simultaneously owes, by some positive act,
loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is
the result of an individual’s volition.
Clearly, in including Sec.5 in Article IV on
Citizenship, the concern of the
Constitutional Commission was not with
dual citizens per se but with naturalized
citizens who maintain their allegiance to
their countries of origin even after their
naturalization. Hence, the phrase “dual
citizenship” in RA 7160 Sec. 40(d) and RA
7854 Sec. 20 must be understood as
referring to “dual allegiance”.
Consequently, persons with mere dual
citizenship do not fall under this
disqualification. Unlike those with dual
allegiance, who must, therefore, be subject
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to strict process with respect to the
termination of their status, for candidates
with dual citizenship, it should suffice if,
upon filing of their certificates of
candidacy, they elect citizenship to
terminate their status as persons with dual
citizenship considering that their condition
is the unavoidable consequence of
conflicting laws of different states.
By electing Philippine citizenship, such
candidates at the same time forswear
allegiance to the other country of which
they are also citizens and thereby
terminate their status as dual citizens.
The filing of such certificate of candidacy
sufficed to renounce his American
citizenship, effectively removing any
disqualification he might have as a dual
citizen.
Hence, the petition for certiorari was
dismissed for lack of merit.
Rodriguez vs COMELEC
G.R No. 120099 July 24, 1996
Michael Kenneth B. Mamaril
PARTIES:
A. Petitioner: Eduardo T. Rodriguez
B. Respondents: Bienvenido O. Marquez
Jr., COMELEC
FACTS:
Marquez challenged Rodriguez' victory via
petition for quo warranto before the
COMELEC (EPC No. 92-28). Marquez
revealed that Rodriguez left the United
States where a charge, filed on November
12, 1985, is pending against the latter
before the Los Angeles Municipal Court for
fraudulent insurance claims, grand theft
and attempted grand theft of personal
property. Rodriguez is therefore a "fugitive
from justice" which is a ground for his
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disqualification/ineligibility under Section
40(e) of the Local Government Code (R.A.
7160), so argued Marquez.
In resolving that Marquez petition
(112889), the Court in "Marquez, Jr. vs.
COMELEC"' promulgated on April 18, 1995,
now appearing in Volume 243, page 538 of
the SCRA and hereinafter referred to as the
MARQUEZ Decision.
In the May 8, 1995 election, Rodriguez and
Marquez renewed their rivalry for the
same position of governor. This time,
Marquez challenged Rodriguez' candidacy
via petition for disqualification before the
COMELEC, based principally on the same
allegation that Rodriguez is a "fugitive from
justice." This petition for disqualification
(SPA No. 95-089) was filed by Marquez on
April 11, 1995 when Rodriguez' petition for
certiorari (112889) — from where the April
18, 1995 MARQUEZ Decision sprung — was
still then pending before the Court.
On May 7, 1995 and after the promulgation
of the MARQUEZ Decision, the COMELEC
promulgated a Consolidated Resolution for
EPC No. 92-28 (quo warranto case) and SPA
NO. 95-089 (disqualification case).
CONTENTIONS:
Marquez: Marquez challenged the
qualification of Rodriguez as governor in
May 1992 and May 1995 elections all on
the same ground that Rodriguez fled from
Los Angeles, United States to evade
pending charges against him. (In both
instances, Rodriguez won the position as
Governor that is why Marquez is to
persistent on disqualifying Rodriguez)
ISSUE:
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WON Rodriguez should be disqualified
under Sec. 40(e) of Local Government Code
for being “fugitive from justice”.
RULING:
NO. Rodriguez is NOT a "fugitive from
justice" as defined in the main opinion in
the MARQUEZ Decision.
Rodriguez' case just cannot fit in this
concept. There is no dispute that his arrival
in the Philippines from the US on June 25,
1985, as per certifications issued by the
Bureau of Immigrations dated April 27 and
June 26 of 1995, preceded the filing of the
felony complaint in the Los Angeles Court
on November 12, 1985 and of the issuance
on even date of the arrest warrant by the
same foreign court, by almost five (5)
months. It was clearly impossible for
Rodriguez to have known about such
felony complaint and arrest warrant at the
time he left the US, as there was in fact no
complaint and arrest warrant — much less
conviction — to speak of yet at such time.
What prosecution or punishment then was
Rodriguez deliberately running away from
with his departure from the US? The very
essence of being a "fugitive from justice"
under the MARQUEZ Decision definition, is
just nowhere to be found in the
circumstances of Rodriguez.
Filing of charges prior to flight is not always
an antecedent requirement to label one a
"fugitive from justice". Mere commission
of a "crime" without charges having been
filed for the same and flight subsequent
thereto sufficiently meet the definition.
Attention is directed at the use of the word
"crime" which is not employed to connote
guilt or conviction for the commission
thereof. Attention is directed at the use of
the word "crime" which is not employed to
connote guilt or conviction for the
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commission thereof. Justice Davide's
separate opinion in G.R. No. 112889
elucidates that the disqualification for
being a fugitive does not involve the issue
of the presumption of innocence, the
reason for disqualification being that a
person "was not brought within the
jurisdiction of the court because he had
successfully evaded arrest; or if he was
brought within the jurisdiction of the court
and was tried and convicted, he has
successfully evaded service of sentence
because he had jumped bail or escaped.
The disqualification then is based on his
flight from justice."
To summarize, the term "fugitive from
justice" as a ground for the disqualification
or ineligibility of a person seeking to run for
any elective local petition under Section
40(e) of the Local Government Code,
should be understood according to the
definition given in the MARQUEZ Decision,
to wit:
A "fugitive from justice" includes not only
those who flee after conviction to avoid
punishment but likewise those who, after
being charged, flee to avoid prosecution.
Intent to evade on the part of a candidate
must therefore be established by proof
that there has already been a conviction or
at least, a charge has already been filed, at
the time of flight. Not being a "fugitive
from justice" under this definition,
Rodriguez cannot be denied the Quezon
Province gubernatorial post.
DEFINITIONS:
Section 40. Disqualifications. - The
following persons are disqualified from
running for any elective local position:
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(a) Those sentenced by final judgment for
an offense involving moral turpitude or for
an offense punishable by one (1) year or
more of imprisonment, within two (2)
years after serving sentence;
(b) Those removed from office as a result
of an administrative case;
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-
political cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to avail
of the same right after the effectivity of this
Code; and
(g) The insane or feeble-minded.
According to the Case: "fugitive from
justice" includes not only those who flee
after conviction to avoid punishment but
likewise those who, after being charged,
flee to avoid prosecution. This definition
truly finds support from jurisprudence (. .
.), and it may be so conceded as expressing
the general and ordinary connotation of
the term.
To reiterate, a "fugitive from justice":
. . . includes not only those who flee after
conviction to avoid punishment but
likewise who, after being charged, flee to
avoid prosecution.
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Sobejana-Condon v. Comelec
G.R. No. 198742
August 10, 2012
Parties:
Petitioner: TEODORA SOBEJANA-CONDON
Respondent: COMMISSION ON ELECTIONS,
LUIS M. BAUTISTA, ROBELITO V. PICAR and
WILMA P. PAGADUAN
Facts:
The petitioner is a natural-born Filipino
citizen having been born of Filipino parents
on August 8, 1944. On December 13, 1984,
she became a naturalized Australian citizen
owing to her marriage to a certain Kevin
Thomas Condon.
On December 2, 2005, she filed an
application to re-acquire Philippine
citizenship before the Philippine Embassy
in Canberra, Australia pursuant to Section
3 of R.A. No. 9225 otherwise known as the
"Citizenship Retention and Re-Acquisition
Act of 2003."5 The application was
approved and the petitioner took her oath
of allegiance to the Republic of the
Philippines on December 5, 2005.
On September 18, 2006, the petitioner
filed an unsworn Declaration of
Renunciation of Australian Citizenship
before the Department of Immigration and
Indigenous Affairs, Canberra, Australia,
which in turn issued the Order dated
September 27, 2006 certifying that she has
ceased to be an Australian citizen.6
The petitioner ran for Mayor in her
hometown of Caba, La Union in the 2007
elections. She lost in her bid. She again
sought elective office during the May 10,
2010 elections this time for the position of
Vice-Mayor. She obtained the highest
numbers of votes and was proclaimed as
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the winning candidate. She took her oath
of office on May 13, 2010.
Soon thereafter, private respondents
Robelito V. Picar, Wilma P. Pagaduan7 and
Luis M. Bautista,8 (private respondents) all
registered voters of Caba, La Union, filed
separate petitions for quo warranto
questioning the petitioner’s eligibility
before the RTC. The petitions similarly
sought the petitioner’s disqualification
from holding her elective post on the
ground that she is a dual citizen and that
she failed to execute a "personal and
sworn renunciation of any and all foreign
citizenship before any public officer
authorized to administer an oath" as
imposed by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen
and averred that since September 27,
2006, she ceased to be an Australian
citizen. She claimed that the Declaration of
Renunciation of Australian Citizenship she
executed in Australia sufficiently complied
with Section 5(2), R.A. No. 9225 and that
her act of running for public office is a clear
abandonment of her Australian citizenship.
Ruling of the RTC:
In its consolidated Decision dated October
22, 2010, the trial court held that the
petitioner’s failure to comply with Section
5(2) of R.A. No. 9225 rendered her
ineligible to run and hold public office. As
admitted by the petitioner herself during
trial, the personal declaration of
renunciation she filed in Australia was not
under oath. The law clearly mandates that
the document containing the renunciation
of foreign citizenship must be sworn
before any public officer authorized to
administer oath.
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Ruling of the Comelec:
The petitioner appealed to the COMELEC
but the appeal was dismissed by the
Second Division in its Order10 dated
November 30, 2010 for failure to pay the
docket fees within the prescribed period.
On motion for reconsideration, the appeal
was reinstated by the COMELEC en banc in
its Resolution11 dated September 6, 2011.
In the same issuance, the substantive
merits of the appeal were given due
course. The COMELEC en banc concurred
with the findings and conclusions of the
RTC; it also granted the Motion for
Execution Pending Appeal filed by the
private respondents.
Petitioner’s Contention:
The petitioner contends that since she
ceased to be an Australian citizen on
September 27, 2006, she no longer held
dual citizenship and was only a Filipino
citizen when she filed her certificate of
candidacy as early as the 2007 elections.
Hence, the "personal and sworn
renunciation of foreign citizenship"
imposed by Section 5(2) of R.A. No. 9225 to
dual citizens seeking elective office does
not apply to her.
She further argues that a sworn
renunciation is a mere formal and not a
mandatory requirement. In support
thereof, she cites portions of the Journal of
the House of Representatives dated June 2
to 5, 2003 containing the sponsorship
speech for House Bill (H.B.) No. 4720, the
precursor of R.A. No. 9225.
She claims that the private respondents
are estopped from questioning her
eligibility since they failed to do so when
she filed certificates of candidacy for the
2007 and 2010 elections.
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Lastly, she disputes the power of the
COMELEC en banc to: (a) take cognizance
of the substantive merits of her appeal
instead of remanding the same to the
COMELEC Second Division for the
continuation of the appeal proceedings;
and (b) allow the execution pending appeal
of the RTC’s judgment.
Issue:
For purposes of determining the
petitioner’s eligibility to run for public
office, whether or not the "sworn
renunciation of foreign citizenship" in
Section 5(2) of R.A. No. 9225 is a mere pro-
forma requirement.
Held:
Yes. Petitioner is disqualified from running
for elective office for failure to renounce
her Australian
citizenship in accordance with Section 5(2)
of R.A. No. 9225.
R.A. No. 9225 allows the retention and re-
acquisition of Filipino citizenship for
natural-born citizens who have lost their
Philippine citizenship by taking an oath of
allegiance to the Republic, thus:
Section 3. Retention of Philippine
Citizenship. – Any provision of law to the
contrary notwithstanding, natural-born
citizens of the Philippines who have lost
their Philippine citizenship by reason of
their naturalization as citizens of a foreign
country are hereby deemed to have re-
acquired Philippine citizenship upon taking
the following oath of allegiance to the
Republic.
The petitioner has validly re-acquired her
Filipino citizenship when she took an Oath
of Allegiance to the Republic of the
Philippines on December 5, 2005. At that
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ATTY. JP LEO ASONG
point, she held dual citizenship, i.e.,
Australian and Philippine.
On September 18, 2006, or a year before
she initially sought elective public office,
she filed a renunciation of Australian
citizenship in Canberra, Australia.
Admittedly, however, the same was not
under oath contrary to the exact mandate
of Section 5(2) that the renunciation of
foreign citizenship must be sworn before
an officer authorized to administer oath.
To obviate the fatal consequence of her
inutile renunciation, the petitioner pleads
the Court to interpret the "sworn
renunciation of any and all foreign
citizenship" in Section 5(2) to be a mere
pro forma requirement in conformity with
the intent of the Legislature. She anchors
her submission on the statement made by
Representative Javier during the floor
deliberations on H.B. No. 4720, the
precursor of R.A. No. 9225.
It was Representative Javier’s position that
they should be considered as repatriated
Filipinos and not as natural-born citizens
since they will have to execute a personal
and sworn renunciation of foreign
citizenship. Natural-born citizens are those
who need not perform an act to perfect
their citizenship. Representative Libanan,
however, maintained that they will revert
to their original status as natural-born
citizens. To reconcile the renunciation
imposed by Section 5(2) with the principle
that natural-born citizens are those who
need not perform any act to perfect their
citizenship, Representative Javier
suggested that the sworn renunciation of
foreign citizenship be considered as a mere
pro forma requirement.
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Petitioner’s argument, therefore, loses its
point. The "sworn renunciation of foreign
citizenship" must be deemed a formal
requirement only with respect to the re-
acquisition of one’s status as a natural-
born Filipino so as to override the effect of
the principle that natural-born citizens
need not perform any act to perfect their
citizenship. Never was it mentioned or
even alluded to that, as the petitioner
wants this Court to believe, those who re-
acquire their Filipino citizenship and
thereafter run for public office has the
option of executing an unsworn affidavit of
renunciation.
It is also palpable in the above records that
Section 5 was intended to complement
Section 18, Article XI of the Constitution on
public officers’ primary accountability of
allegiance and loyalty, which provides:
Sec. 18. – Public officers and employees
owe the State and this Constitution
allegiance at all times and any public
officer or employee who seeks to change
his citizenship or acquire the status of an
immigrant of another country during his
tenure shall be dealt with by law.
An oath is a solemn declaration,
accompanied by a swearing to God or a
revered person or thing, that one’s
statement is true or that one will be bound
to a promise. The person making the oath
implicitly invites punishment if the
statement is untrue or the promise is
broken. The legal effect of an oath is to
subject the person to penalties for perjury
if the testimony is false.28
Indeed, the solemn promise, and the risk of
punishment attached to an oath ensures
truthfulness to the prospective public
officer’s abandonment of his adopted state
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ATTY. JP LEO ASONG
and promise of absolute allegiance and
loyalty to the Republic of the Philippines.
To hold the oath to be a mere pro forma
requirement is to say that it is only for
ceremonial purposes; it would also
accommodate a mere qualified or
temporary allegiance from government
officers when the Constitution and the
legislature clearly demand otherwise.
The Court has admitted certain exceptions
to the above rules and held that the
existence of a foreign law may also be
established through: (1) a testimony under
oath of an expert witness such as an
attorney-at-law in the country where the
foreign law operates wherein he quotes
verbatim a section of the law and states
that the same was in force at the time
material to the facts at hand; and (2)
likewise, in several naturalization cases, it
was held by the Court that evidence of the
law of a foreign country on reciprocity
regarding the acquisition of citizenship,
although not meeting the prescribed rule
of practice, may be allowed and used as
basis for favorable action, if, in the light of
all the circumstances, the Court is
"satisfied of the authenticity of the written
proof offered." Thus, in a number of
decisions, mere authentication of the
Chinese Naturalization Law by the Chinese
Consulate General of Manila was held to be
a competent proof of that law.
The petitioner failed to prove the
Australian Citizenship Act of 1948 through
any of the above methods. As uniformly
observed by the RTC and COMELEC, the
petitioner failed to show proof of the
existence of the law during trial. Also, the
letter issued by the Australian government
showing that petitioner already renounced
her Australian citizenship was
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unauthenticated hence, the courts a quo
acted judiciously in disregarding the same.
The petitioner’s act of running for public
office does not suffice to serve as an
effective renunciation of her Australian
citizenship. While this Court has previously
declared that the filing by a person with
dual citizenship of a certificate of
candidacy is already considered a
renunciation of foreign citizenship, such
ruling was already adjudged superseded by
the enactment of R.A. No. 9225 on August
29, 2003 which provides for the additional
condition of a personal and sworn
renunciation of foreign citizenship.
Jalosjos vs Comelec
G.R. No. 193237 October 9, 2012
Nur Haron Parao
Parties:
Petitioner: Dominador Jalosjos
Respondent: COMELEC
In G.R. No. 193237, Dominador G. Jalosjos,
Jr. (Jalosjos) seeks to annul the 10 May
2010 Resolution2 of the COMELEC First
Division and the 11 August 2010
Resolution3 of the COMELEC En Banc,
which both ordered the cancellation of his
certificate of candidacy on the ground of
false material representation. In G.R. No.
193536, Agapito J. Cardino (Cardino)
challenges the 11 August 2010 Resolution
of the COMELEC En Banc, which applied
the rule on succession under the Local
Government Code in filling the vacancy in
the Office of the Mayor of Dapitan City,
Zamboanga del Norte created by the
cancellation of Jalosjos’ certificate of
candidacy.
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ATTY. JP LEO ASONG
FACTS:
Both Jalosjos and Cardino were candidates
for Mayor of Dapitan City, Zamboanga del
Norte in the May 2010 elections. Jalosjos
was running for his third term. Cardino
filed on 6 December 2009 a petition under
Section 78 of the Omnibus Election Code to
deny due course and to cancel the
certificate of candidacy of Jalosjos. Cardino
asserted that Jalosjos made a false
material representation in his certificate of
candidacy when he declared under oath
that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos
filed his certificate of candidacy, Jalosjos
had already been convicted by final
judgment for robbery and sentenced to
prisión mayor by the Regional Trial Court.
Cardino asserted that Jalosjos has not yet
served his sentence.
This prompted Cardino to call the attention
of the Commission on the decision of the
Sandiganbayan dated September 29, 2008
finding Gregorio F. Bacolod, former
Administrator of the Parole and Probation
Administration, guilty of violating Section
3(e) of R.A. 3019 for issuing a falsified
Certification on December 19, 2003
attesting to the fact that respondent
Jalosjos had fully complied with the terms
and conditions of his probation.
COMELEC RULING: COMELEC First Division
granted Cardino’s petition and cancelled
Jalosjos’ certificate of candidacy. The
COMELEC First Division concluded that
"Jalosjos has indeed committed material
misrepresentation in his certificate of
candidacy when he declared, under oath,
that he is eligible for the office he seeks to
be elected to when in fact he is not by
reason of a final judgment in a criminal
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case, the sentence of which he has not yet
served."
Jalosjos filed his petition on 25 August
2010, docketed as G.R. No. 193237, while
Cardino filed his petition on 17 September
2010, docketed as G.R. No. 193536.
On 22 February 2011, this Court issued a
Resolution dismissing G.R. No. 193237.
On 29 March 2011, this Court resolved11 to
consolidate G.R. No. 193536 with G.R. No.
193237.Jalosjos then filed a Manifestation
on 1 June 2012 which stated that "he has
resigned from the position of Mayor of the
City of Dapitan effective 30 April 2012,
which resignation was accepted by the
Provincial Governor of Zamboanga del
Norte, Atty. Rolando E. Yebes."12 Jalosjos’
resignation was made "in deference with
the provision of the Omnibus Election Code
in relation to his candidacy as Provincial
Governor of Zamboanga del Sur in May
2013."
ISSUE:
WON Jalosjos candidacy is void due to false
representation.
HELD:
Yes. The perpetual special disqualification
against Jalosjos arising from his criminal
conviction by final judgment is a material
fact involving eligibility which is a proper
ground for a petition under Section 78 of
the Omnibus Election Code. Jalosjos’
certificate of candidacy was void from the
start since he was not eligible to run for any
public office at the time he filed his
certificate of candidacy. Jalosjos was never
a candidate at any time, and all votes for
Jalosjos were stray votes. As a result of
Jalosjos’ certificate of candidacy being void
ab initio, Cardino, as the only qualified
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ATTY. JP LEO ASONG
candidate, actually garnered the highest
number of votes for the position of Mayor.
A false statement in a certificate of
candidacy that a candidate is eligible to run
for public office is a false material
representation which is a ground for a
petition under Section 78 of the same
Code. Sections 74 and 78 read:
Sec. 74. Contents of certificate of
candidacy. – The certificate of candidacy
shall state that the person filing it is
announcing his candidacy for the office
stated therein and that he is eligible for
said office; if for Member of the Batasang
Pambansa, the province, including its
component cities, highly urbanized city or
district or sector which he seeks to
represent; the political party to which he
belongs; civil status; his date of birth;
residence; his post office address for all
election purposes; his profession or
occupation; that he will support and
defend the Constitution of the Philippines
and will maintain true faith and allegiance
thereto; that he will obey the laws, legal
orders, and decrees promulgated by the
duly constituted authorities; that he is not
a permanent resident or immigrant to a
foreign country; that the obligation
imposed by his oath is assumed voluntarily,
without mental reservation or purpose of
evasion; and that the facts stated in the
certificate of candidacy are true to the best
of his knowledge.
Sec. 78. Petition to deny due course to or
cancel a certificate of candidacy. – A
verified petition seeking to deny due
course or to cancel a certificate of
candidacy may be filed by the person
exclusively on the ground that any material
representation contained therein as
required under Section 74 hereof is false.
The petition may be filed at any time not
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later than twenty-five days from the time
of the filing of the certificate of candidacy
and shall be decided, after due notice and
hearing, not later than fifteen days before
the election. (Emphasis supplied)
Section 74 requires the candidate to state
under oath in his certificate of candidacy
"that he is eligible for said office." A
candidate is eligible if he has a right to run
for the public office.14 If a candidate is not
actually eligible because he is barred by
final judgment in a criminal case from
running for public office, and he still states
under oath in his certificate of candidacy
that he is eligible to run for public office,
then the candidate clearly makes a false
material representation that is a ground
for a petition under Section 78.
A sentence of prisión mayor by final
judgment is a ground for disqualification
under Section 40 of the Local Government
Code and under Section 12 of the Omnibus
Election Code. It is also a material fact
involving the eligibility of a candidate
under Sections 74 and 78 of the Omnibus
Election Code. Thus, a person can file a
petition under Section 40 of the Local
Government Code or under either Section
12 or Section 78 of the Omnibus Election
Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following
persons are disqualified from running for
any elective local position:
(a) Those sentenced by final judgment for
an offense involving moral turpitude or for
an offense punishable by one (1) year or
more of imprisonment, within two (2)
years after serving sentence;
(b) Those removed from office as a result
of an administrative case;
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ATTY. JP LEO ASONG
(c) Those convicted by final judgment for
violating the oath of allegiance to the
Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-
political cases here or abroad;
(f) Permanent residents in a foreign
country or those who have acquired the
right to reside abroad and continue to avail
of the same right after the effectivity of this
Code; and
(g) The insane or feeble-minded.
Section 12, Omnibus Election Code:
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 was 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.
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.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate
who, in an action or protest in which he is
a party is declared by final decision by a
competent court guilty of, or found by the
Commission of having (a) given money or
other material consideration to influence,
induce or corrupt the voters or public
officials performing electoral functions; (b)
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committed acts of terrorism to enhance his
candidacy; (c) spent in his election
campaign an amount in excess of that
allowed by this Code; (d) solicited, received
or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; or (e)
violated any of Sections 80, 83, 85, 86 and
261, paragraphs d, e, k, v, and cc, sub-
paragraph 6, shall be disqualified from
continuing as a candidate, or if he has been
elected, from holding the office. Any
person who is a permanent resident of or
an immigrant to a foreign country shall not
be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident or
immigrant of a foreign country in
accordance with the residence
requirement provided for in the election
laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary
disqualification. — The duration of the
penalties of prisión mayor and temporary
disqualification shall be from six years and
one day to twelve years, except when the
penalty of disqualification is imposed as an
accessory penalty, in which case, it shall be
that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of
perpetual or temporary absolute
disqualification. — The penalties of
perpetual or temporary absolute
disqualification for public office shall
produce the following effects:
1. The deprivation of the public offices and
employments which the offender may
have held, even if conferred by popular
election.
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2. The deprivation of the right to vote in
any election for any popular elective office
or to be elected to such office.
3. The disqualification for the offices or
public employments and for the exercise of
any of the rights mentioned.
In case of temporary disqualification, such
disqualification as is comprised in
paragraphs 2 and 3 of this article shall last
during the term of the sentence.
4. The loss of all rights to retirement pay or
other pension for any office formerly held.
Art. 31. Effects of the penalties of
perpetual or temporary special
disqualification. — The penalties of
perpetual or temporary special
disqualification for public office, profession
or calling shall produce the following
effects:
1. The deprivation of the office,
employment, profession or calling
affected.
2. The disqualification for holding similar
offices or employments either perpetually
or during the term of the sentence,
according to the extent of such
disqualification.
Art. 32. Effects of the penalties of
perpetual or temporary special
disqualification for the exercise of the right
of suffrage. —
The perpetual or temporary special
disqualification for the exercise of the right
of suffrage shall deprive the offender
perpetually or during the term of the
sentence, according to the nature of said
penalty, of the right to vote in any popular
election for any public office or to be
elected to such office. Moreover, the
offender shall not be permitted to hold any
public office during the period of his
disqualification.
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Art. 42. Prisión mayor — its accessory
penalties. — The penalty of prisión mayor
shall carry with it that of temporary
absolute disqualification and that of
perpetual special disqualification from the
right of suffrage which the offender shall
suffer although pardoned as to the
principal penalty, unless the same shall
have been expressly remitted in the
pardon. (Emphasis supplied)
The penalty of prisión mayor automatically
carries with it, by operation of law,15 the
accessory penalties of temporary absolute
disqualification and perpetual special
disqualification. Under Article 30 of the
Revised Penal Code, temporary absolute
disqualification produces the effect of
"deprivation of the right to vote in any
election for any popular elective office or
to be elected to such office." The duration
of the temporary absolute disqualification
is the same as that of the principal penalty.
On the other hand, under Article 32 of the
Revised Penal Code perpetual special
disqualification means that "the offender
shall not be permitted to hold any public
office during the period of his
disqualification," which is perpetually.
Both temporary absolute disqualification
and perpetual special disqualification
constitute ineligibilities to hold elective
public office. A person suffering from these
ineligibilities is ineligible to run for elective
public office, and commits a false material
representation if he states in his certificate
of candidacy that he is eligible to so run.
The accessory penalty of temporary
absolute disqualification disqualifies the
convict for public office and for the right to
vote, such disqualification to last only
during the term of the sentence (Article 27,
paragraph 3, & Article 30, Revised Penal
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ATTY. JP LEO ASONG
Code) that, in the case of Abes, would have
expired on 13 October 1961.
But this does not hold true with respect to
the other accessory penalty of perpetual
special disqualification for the exercise of
the right of suffrage. This accessory penalty
deprives the convict of the right to vote or
to be elected to or hold public office
perpetually, as distinguished from
temporary special disqualification, which
lasts during the term of the sentence.
Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of
perpetual or temporary special
disqualification for the exercise of the right
of suffrage. —
The perpetual or temporary special
disqualification for the exercise of the right
of suffrage shall deprive the offender
perpetually or during the term of the
sentence, according to the nature of said
penalty, of the right to vote in any popular
election for any public office or to be
elected to such office. Moreover, the
offender shall not be permitted to hold any
public office during the period of
disqualification.
The word "perpetually" and the phrase
"during the term of the sentence" should
be applied distributively to their respective
antecedents; thus, the word "perpetually"
refers to the perpetual kind of special
disqualification, while the phrase "during
the term of the sentence" refers to the
temporary special disqualification. The
duration between the perpetual and the
temporary (both special) are necessarily
different because the provision, instead of
merging their durations into one period,
states that such duration is "according to
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the nature of said penalty" — which means
according to whether the penalty is the
perpetual or the temporary special
disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory
penalty of perpetual special
disqualification "deprives the convict of
the right to vote or to be elected to or hold
public office perpetually."
The accessory penalty of perpetual special
disqualification takes effect immediately
once the judgment of conviction becomes
final. The effectivity of this accessory
penalty does not depend on the duration
of the principal penalty, or on whether the
convict serves his jail sentence or not.
Perpetual special disqualification is a
ground for a petition under Section 78 of
the Omnibus Election Code because this
accessory penalty is an ineligibility, which
means that the convict is not eligible to run
for public office, contrary to the statement
that Section 74 requires him to state under
oath. As used in Section 74, the word
"eligible" means having the right to run for
elective public office, that is, having all the
qualifications and none of the ineligibilities
to run for public office.
As this Court held in Fermin v. Commission
on Elections,17 the false material
representation may refer to "qualifications
or eligibility." One who suffers from
perpetual special disqualification is
ineligible to run for public office. If a person
suffering from perpetual special
disqualification files a certificate of
candidacy stating under oath that "he is
eligible to run for (public) office," as
expressly required under Section 74, then
he clearly makes a false material
representation that is a ground for a
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ATTY. JP LEO ASONG
petition under Section 78. As this Court
explained in Fermin:
Lest it be misunderstood, the denial of due
course to or the cancellation of the CoC is
not based on the lack of qualifications but
on a finding that the candidate made a
material representation that is false, which
may relate to the qualifications required of
the public office he/she is running for.
Dispute on Sec. 40 of LGC,Sec. 78 and 12of
OEC: What is indisputably clear is that the
false material representation of Jalosjos is
a ground for a petition under Section 78.
However, since the false material
representation arises from a crime
penalized by prisión mayor, a petition
under Section 12 of the Omnibus Election
Code or Section 40 of the Local
Government Code can also be properly
filed. The petitioner has a choice whether
to anchor his petition on Section 12 or
Section 78 of the Omnibus Election Code,
or on Section 40 of the Local Government
Code. The law expressly provides multiple
remedies and the choice of which remedy
to adopt belongs to the petitioner.
Topic: De facto Officer Doctrine
AMANDO M. TETANGCO, JR., PETER B.
FAVILA, JUANITA D. AMATONG, NELLY A.
FAVIS-VILLAFUERTE, ALFREDO C.
ANTONIO, IGNACIO R. BUNYE, MARIE
MICHELLE N. ONG, BELLA M. PRUDENCIO,
ESMEGARDO S. REYES, MA. CORAZON G.
CATARROJA, Petitioners
vs.
COMMISSION ON AUDIT, Respondent
Alexa Danielle C. Dayanghirang
Parties:
PETITIONER: AMANDO M. TETANGCO, JR.,
PETER B. FAVILA, JUANITA D. AMATONG,
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NELLY A. FAVIS-VILLAFUERTE, ALFREDO C.
ANTONIO, IGNACIO R. BUNYE, MARIE
MICHELLE N. ONG, BELLA M. PRUDENCIO,
ESMEGARDO S. REYES, MA. CORAZON G.
CATARROJA
RESPONDENT: COMMISSION ON AUDIT
Facts:
This case stemmed from the COA's act of
disallowing the Extraordinary and
Miscellaneous Expenses (EMEs) of the ex
officio members of the Monetary Board
(MBM), allegedly in violation of their
respective constitutional rights.
Petitioner Amanda M. Tetangco, Jr.,
(Tetangco Jr.) is the Governor of the Banko
Sentral ng Pilipinas (BSP). Petitioners Peter
B. Favila (Favila), Juanita D. Amatong
(Amatong), Nelly A. Favis-Villafuerte (Favis-
Villafuerte ), Alfredo C. Antonio (Antonio)
and Ignacio R. Bunye (Bunye). Were the
MBM at the time that the allowance· for
EMEs was approved. Petitioners Marie
Michelle N. Ong (Ong), Bella M. Prudencio
(Prudencio), Esmegardo S. Reyes (Reyes)
and Ma. Corazon G. Catarroja (Catarroja)
were employees of the BSP who
participated in the processing and approval
of the EME.
COA's March 23, 2010 Decision No. 2010-
048, 8 on the Performance Audit Report on
the allocation and utilization of EME of the
MBM, stated, among others, that " x x x the
ex-officio member of the Monetary Board
x x x shall not be entitled to additional
EMEs, other than that appropriated for
him or her under the GAA as a cabinet
member x x x."
Pursuant to this Decision, COA conducted
an actual audit of the specific accounts that
allegedly exceeded the prescribed
limitations and/or were not properly
documented/justified.
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As a consequence, the EMEs of MBM Neri
and Favila were disallowed and became
the subject of ND dated August 13, 2010.
Eventually, the MBM and BSP personnel,
which include the petitioners.
For its part, the COA countered that:
Petitioners failed to show grave abuse of
discretion on the part of COA in rendering
its assailed Decision and subsequent
Resolution; COA did not gravely abuse its
discretion in disallowing the EMEs of the ex
officio MBM, because the allowances were
based on the applicable laws,
jurisprudence, rules and regulations; the
defense of good faith in approving the
grant of EMEs to the ex officio MBM with
reliance on BSP's independence and
autonomy is unavailing; there was no
violation of the equal protection clause in
the subject disallowances; and petitioner
Favila is solidarily liable with other officials
of the BSP under ND No. 10-004 GF (2007-
2009) because he was a member of the
Monetary Board and also the recipient of
the irregular EMEs.
Issue:
WON as ex officio members of the
Monetary Board are entitled to EMEs to
the extent of that appropriated in the
General Appropriations Act (GAA).
Contentions:
Petitioner’s contentions:
Petitioners filed a Motion for
Reconsideration and/or Appeal with the
COA Director on May 26, 2011, but the
same was denied. They filed a Petition for
Review 10 with the COA, but the same was
likewise denied in the COA's December 23,
2013 Decision No. 2013-227. 11
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With their Motion for Reconsideration and
Supplemental Motion for Reconsideration
having been denied in the COA's
Resolution dated August 12, 2014, they
filed the instant petition.
The petitioners alleged that the COA acted
without or in excess of its jurisdiction,
and/or with grave abuse of discretion
amounting to lack or excess of jurisdiction:
(A) in disallowing the EMEs of the ex
officio MB Ms: (1) because the March 23,
2010 COA Decision No. 2010-048, should
not be applied since the disallowed EMEs
were incurred by the ex officio MBMs in
the years 2007, 2008 and 2009, which
years are prior to the date of finality (May
5, 2010) of the ·said decision; (2) since as
MBMs, they incur extraordinary and
miscellaneous expenses in the discharge of
their functions, separate and distinct from
the expenses they incur in relation to their
· principal office; (3) since it cannot be said
that the MB Ms failed to exercise the
highest degree of responsibility in
approving the grant of EMEs; (4) since it
violates the equal protection clause under
Article III, Section 1 of the 1987
Constitution; and (B) in including Petitioner
Favila as one of the persons solidarily liable
under ND No. 10-004 GF (2007-2008),
despite the fact that he had no
participation in the approval of the EMEs
covered by the ND.
Respondents Contentions:
This Commission finds that the Petitioners
MBM, in approving the irregular
allowance, were remiss in their duty to
protect the interest of the Bank. x x x they
ought to know that the ex officio members
of theMonetary Board were already
receiving the same allowance from their
respective Departments, hence, they were
no longer entitled to the additional EMEs.
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It must be emphasized that the degree of
diligence required from bank employees
and officials is not ordinary but
requires the highest standards of integrity
and performance. Section 2 of R.A. No.
8791, also known as the General Banking
Law of 2000, provides for the degree of
diligence expected from the industry, to
wit:
Section 2. Declaration of Policy. - The State
recognizes the vital role of banks providing
an environment conducive to the
sustained development of the national
economy and the fiduciary nature of
banking that requires high standards of
integrity and performance. xxx
In support of the above privision of the law,
the Supreme Court, in the case
of Philippine National Bank v. Rodriguez,
et.al. (G.R. No. 170325, September 26,
2008), ruled, viz:
Banks handle daily transactions involving
millions of pesos. By the very nature of
their work the degree of responsibility,
care and trustworthiness expected of their
employees and officials is far greater than
those of ordinary clerks and employees.
For obvious reasons, the banks are
expected to exercise the highest degree of
diligence in the selection and supervision
of their employees. x x x
xx x for failure of the Petitioners MBM to
exercise the highest degree of
responsibility required by law, their
defense of good faith fails.
Ruling:
No. Absent any showing that COA
capriciously, arbitrarily or whimsically
exercised its discretion that would be
tantamount to evasion of a positive duty or
a virtual refusal to perform the duty or to
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act at all in contemplation of law resulting
to the prejudice of the rights of the
claimants, the Court finds no reason to set
aside its decision.
In the absence of grave abuse of discretion;
the factual findings of the COA, which are
undoubtedly supported by the evidence on
record, must be accorded great respect
and finality. COA, as the duly authorized
agency to adjudicate money claims against
government agencies and
instrumentalities has acquired special
knowledge and expertise in handling
matters falling under its specialized
jurisdiction.
The nature of EME, however, was not the
foremost reason for the disallowance, but
the limitations imposed by law in availing
such allowance. x x x the ex
officio members of the Monetary Board
are entitled to EMEs to the extent of that
appropriated in the General
Appropriations Act (GAA). Since the ex
officio members already received their
EMEs from their respective Departments
(as appropriated in the GAA), the
additional EMEs from BSP are no longer
necessary. It must be stressed that the ex
officio position is actually and, in legal
contemplation, part of the principal office;
hence, the ex officio member is no longer
entitled to receive any form of
compensation, allowance or other
euphemism from the extended agency. x
x x we quote the pertinent discussion of
the subject COA Decision: [Emphasis
.Supplied.]
x x x In fact, the ex officio membership of
the cabinet member in the Monetary
Board does not comprise 'another office'
but rather annexed to or is required by the
primary functions of his or her official
position as cabinet member. Of equal
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significance, too, is that the ex
officio member of the Monetary Board
already receives separate appropriations
under the GAA for EMEs, he or she being a
member of the cabinet. Being such, it is
highly irregular that the said
ex officio member of the Monetary Board,
who performs only additional duties by
virtue of his or her primary functions, will
be provided with additional EMEs, which in
this case, appear much higher than his or
her appropriations for the same expenses
under the GAA as a cabinet member. x x x
x x x the irregularity of giving additional
compensation or allowances to ex
officio members was no longer a hovel
issue during the time that the subject
allowances were authorized by BSP. As
early as 1991, the issue was already ruled
on by the Supreme Court in the case of Civil
Liberties Union vs. Executive
Secretary, followed by several
jurisprudence in the cases of Dela Cruz, et.
al. vs. COA, and NationalAmnesty
Commission vs. COA, to name a few.
RE: NOMINATION OF ATTY. LYNDA
CHAGUILE
Dale Angelique D. Lapulapu
RE: NOMINATION OF ATTY. LYNDA
CHAGUILE, IBP IFUGAO PRESIDENT, AS
REPLACEMENT FOR IBP GOVERNOR FOR
NORTHERN LUZON, DENIS B. HABAWEL
A.M. No. 13-05-08-SC
RE: ALLEGED NULLITY OF THE ELECTION OF
IBP SOUTHERN LUZON GOVERNOR
VICENTE M. JOYAS AS IBP EXECUTIVE VICE
PRESIDENT [FOR 2011-2013]
A.M. No. 13-06-11-SC
RE: LETTER REQUEST OF THE NATIONAL
SECRETARY OF THE IBP RE PROPOSED
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OATH TAKING BEFORE THE SUPREME
COURT OF THE ELECTED IBP REGIONAL
GOVERNORS AND THE EXECUTIVE VICE
PRESIDENT FOR THE TERM 2013 TO 2015
FACTS:
This is a consolidated cases involving two
Administrative Matters.
The first Administrative Matter (A.M. No.
13-04-03-SC) arose from a Motion filed by
Atty. Marlou B. Ubano, IBP Governor for
Western Visayas. Atty. Ubano sought to
invalidate or have this Court declared as
ultra vires the portion of the March 21,
2013 Resolution of the IBP Board of
Governors which approved the nomination
of Atty. Lynda Chaguile as replacement of
IBP Governor for Northern Luzon, Denis B.
Habawel.
The second Administrative Matter arose
from another Motion filed by Atty. Ubano
who sought to nullify the May 22, 2013
election for IBP Executive Vice President
(EVP) and restrain Atty. Vicente M. Joyas
from discharging the duties of IBP
EVP/Acting President. In a Resolution
dated June 18, 2013, this Court
consolidated the second Administrative
Matter with the first.
A.M. No. 13-04-03-SC:
Atty. Ubano, IBP Governor for
Western Visayas, filed a Motion in relation
to A.M. No. 09-5-2-SC seeking to invalidate
or have this Court declare as ultra vires the
portion of the March 21, 2013 Resolution
of the IBP Board of Governors which
approved the nomination of Atty. Chaguile
as the replacement of IBP Governor for
Northern Luzon, Denis B. Habawel.
Atty. Ubano noted that on December 4,
2012, this Court approved an amendment
to Article I, Section 4 of the IBP By-Laws
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which considers as ipso facto resigned
from his or her post any official of the IBP
who files a COC for any elective public
office. Under the amended By-Laws, the
resignation takes effect on the starting
date of the official campaign period.
Atty. Ubano alleged that the IBP Governor
for Northern Luzon, Denis B. Habawel, filed
a COC to run for the position of Provincial
Governor of the Province of Ifugao on or
before October 5, 2012, and that on or
before December 21, 2012, IBP President,
Roan Libarios, filed a Certificate of
Substitution to run as a substitute
congressional candidate for the First
District of Agusan del Norte.
Atty. Ubano further alleged that "in light of
the impending ipso facto resignation of
Pres. Libarios on 30 March 2013," the IBP
Board of Governors agreed to constitute a
five (5)-member Executive Committee (Ex
Com) to "prevent hiatus in the leadership
of the IBP."
The Executive Committee was "tasked to
temporarily administer the affairs of the
IBP without prejudice to the outcome of
the Honorable Court’s resolution of the
pending incident."
Atty. Ubano also alleged that Atty.
Habawel nominated Atty. Lynda Chaguile,
and without prior deliberation and voting,
declared that the Board of Governors
approved the succession of Atty. Chaguile
as IBP Governor for Northern Luzon. Atty.
Ubano challenged the IBP Board of
Governor’s approval of Atty. Chaguile’s
succession as IBP Governor for Northern
Luzon on two grounds: 1) there was, as yet,
no vacancy. Atty. Habawel was himself
present at the meeting where his
replacement was named. There was,
therefore, no need to name a replacement;
2) the right to elect the successor of a
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resigned IBP Governor is vested, not in the
IBP Board of Governors, but in the
delegates of the concerned region; thus,
the IBP Board of Governors’ approval of
the nominee to succeed Atty. Habawel is
ultra vires.
A.M. No. 13-05-08-SC:
The second Administrative Matter
assails the conduct of the May 22, 2013
election of the IBP Executive Vice President
(EVP). In this election, Atty. Vicente M. Joy
as was elected IBP Governor for Southern
Luzon. Atty. Ubano sought to nullify the
May 22, 2013 election claiming that the
election violated Section 47 of the IBP By-
Laws which requires that the EVP be
elected by a vote of at least five (5)
Governors. Atty. Ubano emphasized that
Atty. Chaguile’s vote in favor of Atty. Joy
was invalid, as Atty. Chaguile’s
appointment as governor was itself ultra
vires, and therefore,void ab initio.
ISSUES:
1. WON Atty. Chaguile took on the role of
IBP Governor for Northern Luzon in a
de facto capacity.
2. WON the acts of Atty. Chaguile as a de
facto officer are valid.
HELD:
1. Yes.
Section 44(3) of the IBP By-Laws
clearly provides that "the delegates from
the region shall by majority, elect a
successor from among the members of the
Chapter to which the resigned governor is
a member." There is no ambiguity in this
text. We are surprised that the IBP—an
institution expected to uphold the rule of
law—has chosen to rely on "tradition" to
validate its action. The IBP Board of
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ATTY. JP LEO ASONG

Governors arrogated unto itself a power our jurisprudence. In Luna v. Rodriguez,

which is vested in the delegates of the
concerned IBP region. This arrogation is a
manifest violation of the clear and
unmistakable terms of the IBP’s By-Laws.
We cannot countenance this. No amount
of previous practice or "tradition" can
validate such a patently erroneous action.
It is, therefore, clear that Atty. Chaguile’s
designation as IBP Governor for Northern
Luzon is tainted with irregularity, and
therefore, invalid.
Nevertheless, following the adoption of
the IBP Board of Governors Omnibus
Resolution dated March 21, 2013 at the
time Atty. Ubano filed the Original Motion
and up until June 30, 2013 when her "term
x x x expired," Atty. Chaguile acted as and
performed the functions of the IBP
Governor for Northern Luzon. This is an
accomplished fact which no amount of
legal abstraction can undo. De facto means
"in point of fact." To speak of something as
being de facto is, thus, to say that it is
"[a]ctual [or] existing in fact" as opposed to
"existing by right or according to law," that
is, de jure. Being factual though not being
founded on right or law, de facto is,
therefore, "illegitimate but in effect."
The concept of a de facto officer was
explained in Civil Service Commission v.
Joson, Jr.: "One who has the reputation of
being the officer he assumes and yet is not
a good officer in point of law." A de facto
officer is one who is in possession of the
office and discharging its duties under
color of authority. By color of authority is
meant that derived from an election or
appointment, however irregular or
informal, so that the incumbent is not a
mere volunteer.
The expanse of the de facto doctrine was
established early in the development of
the doctrine was established to
contemplate situations where the duties of
the office were exercised: (a) Without a
known appointment or election, but under
such circumstances of reputation or
acquiescence as were calculated to induce
people, without inquiry, to submit to or
invoke his action, supposing him to be the
officer he assumes to be; (b) under color of
a known or valid appointment or election,
where the officer has failed to conform to
some precedent requirement or condition,
for example, a failure to take the oath or
give and, obor similar defect; (c) under
color of a known election or appointment,
void because the officer was not eligible, or
because there was a want of power in the
electing or appointing body, or by reason
of some defect or irregularity in its
exercise, such ineligibility, want of power
or defect being unknown to the public; and
(d) under color of an election, or
appointment, by or pursuant to a public
unconstitutional law, before the same is
adjudged to be such.
This coverage, unequivocally includes
officers whose election is void because the
body that elected (or otherwise
designated) them lacked the capacity to do
so. This is precisely the situation in this
case: The power to elect an IBP Governor is
lodged in the delegates of the concerned
region, not in the IBP Board of Governors;
yet the IBP Board of Governors approved
Atty. Chaguile’s nomination as IBP
Governor for Northern Luzon.
To be a de facto officer, all of the following
elements must be present:
1) There must be a de jure office;
2) There must be color of right or general
acquiescence by the public; and

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3) There must be actual physical
possession of the office in good faith.
2. Yes.
All official actions of Atty. Chaguile as de
facto IBP Governor for Northern Luzon
must be deemed valid, binding, and
effective, as though she were the officer
validly appointed and qualified for the
office. It follows that her participation and
vote in the election for IBP EVP held on
May 22, 2013 are in order. To reiterate,
one that is de facto is "illegitimate but in
effect."
Thus, it is settled that "the acts of the de
facto officer are just as valid for all
purposes as those of a de jure officer, in so
far as the public or third persons who are
interested therein are concerned." This is
necessary so as to protect the sanctity of
their dealings with those relying on their
ostensible authority: "third persons x x x
cannot always investigate the right of one
assuming to hold an important office. They
have a right to assume that officials
apparently qualified and in office are
legally such."
DENNIS A.B. FUNA, Petitioner,
vs. ACTING SECRETARY OF JUSTICE
ALBERTO C. AGRA, IN HIS OFFICIAL
CONCURRENT CAPACITIES AS ACTING
SECRETARY OF THE DEPARTMENT OF
JUSTICE AND AS ACTING SOLICITOR
GENERAL, EXECUTIVE SECRETARY
LEANDRO R. MENDOZA, OFFICE OF THE
PRESIDENT, Respondents.
FACTS:
Dennis Funa claims that President Gloria
M. Macapagal-Arroyo appointed Alberto C.
Agra as the Acting Secretary of Justice
following the resignation of Secretary
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Agnes VST Devanadera in order to vie for a
congressional seat in Quezon Province.
President Arroyo designated Agra as the
Acting Solicitor General in a concurrent
capacity. Funa, in his capacity as a
taxpayer, a concerned citizen and a lawyer,
commenced a suit to challenge the
constitutionality of Agra’s concurrent
appointments or designations, claiming
that it is prohibited under Section 13,
Article VII of the 1987 Constitution; that
during the pendency of the suit, President
Benigno S. Aquino III appointed Atty. Jose
Anselmo I. Cadiz as the Solicitor General;
and that Cadiz assumed as the Solicitor
General and commenced his duties as such
on August 5, 2010. Agra, on the other
hand, claimed that he was then the
Government Corporate Counsel when
President Arroyo designated him as the
Acting Solicitor General in place of Solicitor
General Devanadera who had been
appointed as the Secretary of Justice;
President Arroyo designated him also as
the Acting Secretary of Justice vice
Secretary Devanadera who had meanwhile
tendered her resignation in order to run for
Congress representing a district in Quezon
Province in the May 2010 elections; that he
then relinquished his position as the
Government Corporate Counsel; and that
pending the appointment of his successor,
Agra continued to perform his duties as the
Acting Solicitor General. Notwithstanding
the conflict in the versions of the parties,
the fact that Agra has admitted to holding
the two offices concurrently in acting
capacities is settled, which is sufficient for
purposes of resolving the constitutional
question that Funa raises herein.
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Funa submits that the prohibition under
Section 13, Article VII of the 1987
Constitution does not distinguish between
an appointment or designation of a
Member of the Cabinet in an acting or
temporary capacity, on the one hand, and
one in a permanent capacity, on the other
hand; and that Acting Secretaries, being
nonetheless Members of the Cabinet, are
not exempt from the constitutional ban.
He emphasizes that the position of the
Solicitor General is not an ex
officio position in relation to the position
of the Secretary of Justice, considering that
the Office of the Solicitor General (OSG) is
an independent and autonomous office
attached to the Department of Justice
(DOJ). He insists that the fact that Agra was
extended an appointment as the Acting
Solicitor General shows that he did not
occupy that office in an ex officio capacity
because an ex officio position does not
require any further warrant or
appointment.
Respondents contend that Agra’s
concurrent designations as the Acting
Secretary of Justice and Acting Solicitor
General were only in a temporary capacity,
the only effect of which was to confer
additional duties to him. Thus, as the
Acting Solicitor General and Acting
Secretary of Justice, Agra was not
"holding" both offices in the strict
constitutional sense. They argue that an
appointment, to be covered by the
constitutional prohibition, must be regular
and permanent, instead of a mere
designation. They further contend that,
even on the assumption that Agra’s
concurrent designation constituted
"holding of multiple offices," his continued
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service as the Acting Solicitor General was
akin to a hold-over; that upon Agra’s
designation as the Acting Secretary of
Justice, his term as the Acting Solicitor
General expired in view of the
constitutional prohibition against holding
of multiple offices by the Members of the
Cabinet; that under the principle of hold-
over, Agra continued his service as the
Acting Solicitor General "until his successor
is elected and qualified to "prevent a hiatus
in the government pending the time when
a successor may be chosen and inducted
into office; and that during his continued
service as the Acting Solicitor General, he
did not receive any salaries and
emoluments from the OSG after becoming
the Acting Secretary of Justice on March 5,
2010.
They point out that the OSG’s
independence and autonomy are defined
by the powers and functions conferred to
that office by law, not by the person
appointed to head such office;13 and that
although the OSG is attached to the DOJ,
the DOJ’s authority, control and
supervision over the OSG are limited only
to budgetary purposes.
Funa counters that there was no
"prevailing special circumstance" that
justified the non-application to Agra of
Section 13, Article VII of the 1987
Constitution; that the temporariness of the
appointment or designation is not an
excuse to disregard the constitutional ban
against holding of multiple offices by the
Members of the Cabinet; that Agra’s
invocation of the principle of hold-over is
misplaced for being predicated upon an
erroneous presentation of a material fact
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ATTY. JP LEO ASONG
as to the time of his designation as the
Acting Solicitor General and Acting
Secretary of Justice; that Agra’s concurrent
designations further violated
the Administrative Code of 1987 which
mandates that the OSG shall be
autonomous and independent.
ISSUE:
Did the designation of Agra as the Acting
Secretary of Justice, concurrently with his
position of Acting Solicitor General, violate
the constitutional prohibition against dual
or multiple offices for the Members of the
Cabinet and their deputies and assistants?
RULING:
Yes. The designation of Agra as Acting
Secretary of Justice concurrently with his
position of Acting Solicitor General was
unconstitutional and void for being in
violation of the constitutional prohibition
under Section 13, Article VII of the 1987
Constitution. While all other appointive
officials in the civil service are allowed to
hold other office or employment in the
government during their tenure when such
is allowed by law or by the primary
functions of their positions, members of
the Cabinet, their deputies and assistants
may do so only when expressly authorized
by the Constitution itself. In other words,
Section 7, Article IX-B is meant to lay
down the general rule applicable to all
elective and appointive public officials
and employees, while Section 13, Article
VII is meant to be the exception applicable
only to the President, the Vice-President,
Members of the Cabinet, their deputies
and assistants. Being designated as the
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Acting Secretary of Justice concurrently
with his position of Acting Solicitor
General, therefore, Agra was undoubtedly
covered by Section 13, Article VII, supra,
whose text and spirit were too clear to be
differently read. Hence, Agra could not
validly hold any other office or
employment during his tenure as the
Acting Solicitor General, because the
Constitution has not otherwise so
provided. To hold an office means to
possess or to occupy the office, or to be in
possession and administration of the
office, which implies nothing less than the
actual discharge of the functions and
duties of the office. Indeed, in the language
of Section 13 itself, supra, the Constitution
makes no reference to the nature of the
appointment or designation. The
prohibition against dual or multiple offices
being held by one official must be
construed as to apply to all appointments
or designations, whether permanent or
temporary, for it is without question that
the avowed objective of Section 13, supra,
is to prevent the concentration of powers
in the Executive Department officials,
specifically the President, the Vice-
President, the Members of the Cabinet and
their deputies and assistants.
According to Public Interest Center, Inc. v.
Elma, the only two exceptions against the
holding of multiple offices are: (1) those
provided for under the Constitution, such
as Section 3, Article VII, authorizing the
Vice President to become a member of the
Cabinet; and (2) posts occupied by
Executive officials specified in Section 13,
Article VII without additional
compensation in ex officio capacities as
provided by law and as required by the
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primary functions of the officials’ offices. t
is equally remarkable, therefore, that
Agra’s designation as the Acting Secretary
of Justice was not in an ex officio capacity,
by which he would have been validly
authorized to concurrently hold the two
positions due to the holding of one office
being the consequence of holding the
other. Being included in the stricter
prohibition embodied in Section 13, supra,
Agra cannot liberally apply in his favor the
broad exceptions provided in Section 7,
paragraph 2, Article IX-B of the
Constitution ("Unless otherwise allowed by
law or the primary functions of his
position") to justify his designation as
Acting Secretary of Justice concurrently
with his designation as Acting Solicitor
General, or vice versa. Agra’s concurrent
designations as Acting Secretary of Justice
and Acting Solicitor General did not come
within the definition of an ex
officio capacity.
IMPORTANT DOCTRINES:
THE POWER OF JUDICIAL review is subject
to limitations, to wit: (1) there must be an
actual case or controversy calling for the
exercise of judicial power; (2) the person
challenging the act must have the standing
to assail the validity of the subject act or
issuance, that is, he must have a personal
and substantial interest in the case such
that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the
question of constitutionality must be
raised at the earliest opportunity; and (4)
the issue of constitutionality must be the
very lis mota of the case. Here, the OSG
does not dispute the justiciability and
ripeness for consideration and resolution
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by the Court of the matter raised by the
petitioner. Also, the locus standi of the
petitioner as a taxpayer, a concerned
citizen and a lawyer to bring a suit of this
nature has already been settled in his favor
in rulings by the Court on several other
public law litigations he brought.
LEGAL STANDING
To have legal standing, therefore, a suitor
must show that he has sustained or will
sustain a "direct injury" as a result of a
government action, or have a "material
interest" in the issue affected by the
challenged official act. However, the Court
has time and again acted liberally on
the locus standi requirements and has
accorded certain individuals, not
otherwise directly injured, or with
material interest affected, by a
Government act, standing to sue provided
a constitutional issue of critical
significance is at stake. The rule on locus
standi is after all a mere procedural
technicality in relation to which the Court,
in a catena of cases involving a subject of
transcendental import, has waived, or
relaxed, thus allowing non-traditional
plaintiffs, such as concerned citizens,
taxpayers, voters or legislators, to sue in
the public interest, albeit they may not
have been personally injured by the
operation of a law or any other
government act. In David, the Court laid
out the bare minimum norm before the
so-called "non-traditional suitors" may be
extended standing to sue, thusly:
1.) For taxpayers, there must be a
claim of illegal disbursement of
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public funds or that the tax
measure is unconstitutional;
2.) For voters, there must be a
showing of obvious interest in the
validity of the election law in
question;
3.) For concerned citizens, there
must be a showing that the issues
raised are of transcendental
importance which must be settled
early; and
4.) For legislators, there must be a
claim that the official action
complained of infringes their
prerogatives as legislators.
This case before Us is of transcendental
importance, since it obviously has "far-
reaching implications," and there is a
need to promulgate rules that will guide
the bench, bar, and the public in future
analogous cases. We, thus, assume a
liberal stance and allow petitioner to
institute the instant petition.
MOOT AND ACADEMIC
A moot and academic case is one that
ceases to present a justiciable controversy
by virtue of supervening events, so that a
declaration thereon would be of no
practical use or value. Although the
controversy could have ceased due to the
intervening appointment of and
assumption by Cadiz as the Solicitor
General during the pendency of this suit,
and such cessation of the controversy
seemingly rendered moot and academic
the resolution of the issue of the
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constitutionality of the concurrent holding
of the two positions by Agra, the Court
should still go forward and resolve the
issue and not abstain from exercising its
power of judicial review because this case
comes under several of the well-
recognized exceptions established in
jurisprudence. Verily, the Court did not
desist from resolving an issue that a
supervening event meanwhile rendered
moot and academic if any of the following
recognized exceptions obtained, namely:
(1) there was a grave violation of the
Constitution; (2) the case involved a
situation of exceptional character and was
of paramount public interest; (3) the
constitutional issue raised required the
formulation of controlling principles to
guide the Bench, the Bar and the public;
and (4) the case was capable of repetition,
yet evading review.
The ex officio position being actually and in
legal contemplation part of the principal
office, it follows that the official concerned
has no right to receive additional
compensation for his services in the said
position. The reason is that these services
are already paid for and covered by the
compensation attached to his principal
office.
The powers and functions of the OSG are
neither required by the primary functions
nor included by the powers of the DOJ, and
vice versa. The OSG, while attached to the
DOJ, is not a constituent unit of the
latter, as, in fact, the Administrative Code
of 1987 decrees that the OSG is
independent and autonomous. With the
enactment of Republic Act No. 9417, the
Solicitor General is now vested with a
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cabinet rank, and has the same
qualifications for appointment, rank,
prerogatives, salaries, allowances, benefits
and privileges as those of the Presiding
Justice of the Court of Appeals.
The general rule contained in Article IX-B
of the 1987 Constitution permits an
appointive official to hold more than one
office only if "allowed by law or by the
primary functions of his position."
[I]ncompatibility between two offices, is
an inconsistency in the functions of the
two; x x x Where one office is not
subordinate to the other, nor the relations
of the one to the other such as are
inconsistent and repugnant, there is not
that incompatibility from which the law
declares that the acceptance of the one is
the vacation of the other.
Who are not covered by the prohibition
under Section 13, Article 7 of the
Constitution?
- Public officials given the rank equivalent
to a Secretary, Undersecretary, or Assistant
Secretary are not covered by the
prohibition, nor is the Solicitor General
affected thereby.
EFFECT OF DECLARATION OF
UNCONSTITUTIONALITY OF AGRA’S
CONCURRENT APPOINTMENT; THE DE
FACTO OFFICER DOCTRINE
- The Court holds that all official actions of
Agra as a de facto Acting Secretary of
Justice, assuming that was his later
designation, were presumed valid, binding
and effective as if he was the officer legally
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appointed and qualified for the office A de
facto officer is one who derives his
appointment from one having colorable
authority to appoint, if the office is an
appointive office, and whose appointment
is valid on its face. He may also be one who
is in possession of an office, and is
discharging its duties under color of
authority, by which is meant authority
derived from an appointment, however
irregular or informal, so that the
incumbent is not a mere volunteer.
Consequently, the acts of the de
facto officer are just as valid for all
purposes as those of a de jure officer, in so
far as the public or third persons who are
interested therein are concerned.
VELICARIA-GARAFIL VS OP
SARMIENTO VS MISON
BAUTISTA VS SALONGA
Calderon v. Carale
G.R. No. 91636
April 23, 1992
Parties:
Respondent: BARTOLOME CARALE, in his
capacity as Chairman of the National Labor
Relations Commission
Petitioner: PETER JOHN D. CALDERON
Facts: The controversy is focused anew on
Sec. 16, Art. VII of the 1987 Constitution
which provides:
Sec. 16. - The President shall nominate
and, with the consent of the Commission
on Appointments, appoint the heads of the
executive departments, ambassadors,
other public ministers and consuls, or
officers of the armed forces from the rank
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of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. He shall also
appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint. The Congress may, by law, vest
the appointment of other officers lower in
rank in the President alone, in the courts,
or in the heads of departments, agencies,
commissions, or boards.
The President shall have the power to
make appointments during the recess of
the Congress, whether voluntary or
compulsory, but such appointments shall
be effective only until disapproval by the
Commission on Appointments or until the
next adjournment of the Congress.
Sometime in March 1989, RA 6715
(Herrera-Veloso Law), amending the Labor
Code (PD 442) was approved. It provides in
Section 13 thereof as follows:
The Chairman, the Division
Presiding Commissioners and other
Commissioners shall all be
appointed by the President, subject
to confirmation by the Commission
on Appointments. Appointments to
any vacancy shall come from the
nominees of the sector which
nominated the predecessor. The
Executive Labor Arbiters and Labor
Arbiters shall also be appointed by
the President, upon
recommendation of the Secretary
of Labor and Employment, and shall
be subject to the Civil Service Law,
rules and regulations.
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Pursuant to said law (RA 6715), President
Aquino appointed the Chairman and
Commissioners of the NLRC representing
the public, workers and employers’
sectors. The appointments stated that the
appointees may qualify and enter upon the
performance of the duties of the office.
After said appointments, then Labor
Secretary Franklin Drilon issued
Administrative Order No. 161, series of
1989, designating the places of assignment
of the newly appointed commissioners.
This petition for prohibition questions the
constitutionality and legality of the
permanent appointments extended by the
President of the Philippines to the
respondents Chairman and Members of
the National Labor Relations Commission
(NLRC), without submitting the same to the
Commission on Appointments for
confirmation pursuant to Art. 215 of the
Labor Code as amended by said RA 6715.
Petitioner’s Contention: Petitioner insists
on a mandatory compliance with RA 6715
which has in its favor the presumption of
validity. RA 6715 is not, according to
petitioner, an encroachment on the
appointing power of the executive
contained in Section 16, Art. VII, of the
Constitution, as Congress may, by law,
require confirmation by the Commission
on Appointments of other officers
appointed by the President additional to
those mentioned in the first sentence of
Section 16 of Article VII of the Constitution.
Petitioner claims that the Mison and
Bautista rulings are not decisive of the
issue in this case for in the case at bar, the
President issued permanent appointments
to the respondents without submitting
them to the CA for confirmation despite
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passage of a law (RA 6715) which requires
the confirmation by the Commission on
Appointments of such appointments.
The Solicitor General, on the other hand,
contends that RA 6715 which amended the
Labor Code transgresses Section 16, Article
VII by expanding the confirmation powers
of the Commission on Appointments
without constitutional basis.
Issue: Whether or not Congress may, by
law, require confirmation by the
Commission on Appointments of
appointments extended by the president
to government officers additional to those
expressly mentioned in the first sentence
of Sec. 16, Art. VII of the Constitution
whose appointments require confirmation
by the Commission on Appointments.
Held: No. To resolve the issue, we go back
to Mison where the Court stated:
. . . there are four (4) groups of officers
whom the President shall appoint. These
four (4) groups, to which we will hereafter
refer from time to time, are:
 First, the heads of the executive
departments, ambassadors, other
public ministers and consuls,
officers of the armed forces from
the rank of colonel or naval captain,
and other officers whose
appointments are vested in him in
this Constitution;
 Second, all other officers of the
Government whose appointments
are not otherwise provided for by
law;
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 Third, those whom the president
may be authorized by law to
appoint;
 Fourth, officers lower in rank
whose appointments the Congress
may by law vest in the President
alone.
The second sentence of Sec. 16, Art. VII
refers to all other officers of the
government whose appointments are not
otherwise provided for by law and those
whom the President may be authorized by
law to appoint.
Indubitably, the NLRC Chairman and
Commissioners fall within the second
sentence of Section 16, Article VII of the
Constitution, more specifically under the
"third groups" of appointees referred to
in Mison, i.e. those whom the President
may be authorized by law to appoint.
Undeniably, the Chairman and Members of
the NLRC are not among the officers
mentioned in the first sentence of Section
16, Article VII whose appointments
requires confirmation by the Commission
on Appointments. To the extent that RA
6715 requires confirmation by the
Commission on Appointments of the
appointments of respondents Chairman
and Members of the National Labor
Relations Commission, it is
unconstitutional because:
1) it amends by legislation, the
first sentence of Sec. 16, Art. VII
of the Constitution by adding
thereto appointments requiring
confirmation by the
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Commission on Appointments;
and
2) it amends by legislation the
second sentence of Sec. 16, Art.
VII of the Constitution, by
imposing the confirmation of
the Commission on
Appointments on
appointments which are
otherwise entrusted only with
the President.
Deciding on what laws to pass is a
legislative prerogative. Determining their
constitutionality is a judicial function. The
Court respects the laudable intention of
the legislature. Regretfully, however, the
constitutional infirmity of Sec. 13 of RA
6715 amending Art. 215 of the Labor Code,
insofar as it requires confirmation of the
Commission on Appointments over
appointments of the Chairman and
Member of the National Labor Relations
Commission (NLRC) is, as we see it, beyond
redemption if we are to render fealty to
the mandate of the Constitution in Sec. 16,
Art. VII thereof.
The function of the Court in passing upon
an act of Congress is to "lay the article of
the Constitution which is invoked beside
the statute which is challenged and to
decide whether the latter squares with the
former" and to "announce its considered
judgment upon the question."
It cannot be overlooked that Sec. 16, Art.
VII of the 1987 Constitution was
deliberately, not unconsciously, intended
by the framers of the 1987 Constitution to
be a departure from the system embodied
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in the 1935 Constitution where the
Commission on Appointments exercised
the power of confirmation over almost all
presidential appointments, leading to
many cases of abuse of such power of
confirmation.
The deliberate limitation on the power of
confirmation of the Commission on
Appointments over presidential
appointments, embodied in Sec. 16, Art. VII
of the 1987 Constitution, has undoubtedly
evoked the displeasure and disapproval of
members of Congress. The solution to the
apparent problem, if indeed a problem, is
not judicial or legislative but constitutional.
A future constitutional convention or
Congress sitting as a constituent
(constitutional) assembly may then
consider either a return to the 1935
Constitutional provisions or the adoption
of a hybrid system between the 1935 and
1987 constitutional provisions. Until then,
it is the duty of the Court to apply the 1987
Constitution in accordance with what it
says and not in accordance with how the
legislature or the executive would want it
interpreted.
JESUS ARMANDO A.R.
TARROSA, petitioner,
vs.
GABRIEL C. SINGSON and HON.
SALVADOR M. ENRIQUEZ III, respondents
G.R. No. 111243 May 25, 1994
Nur Haron Parao
FACTS: Respondent Singson was appointed
Governor of the Bangko Sentral by
President Fidel V. Ramos on July 2, 1993,
effective on July 6, 1993Petitioner argues
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that respondent Singson's appointment is
null and void since it was not submitted for
confirmation to the Commission on
Appointments. The petition is anchored on
the provisions of Section 6 of R.A. No.
7653, which established the Bangko
Sentral as the Central Monetary Authority
of the Philippines. Section 6, Article II of
R.A. No. 7653 provides:
Sec. 6. Composition of the Monetary
Board. The powers and functions of the
Bangko Sentral shall be exercised by the
Bangko Sentral Monetary Board, hereafter
referred to as the Monetary Board,
composed of seven (7) members
appointed by the President of the
Philippines for a term of six (6) years.
The seven (7) members are:
(a) The Governor of the Bangko Sentral,
who shall be the Chairman of the Monetary
Board. The Governor of the Bangko Sentral
shall be head of a department and his
appointment shall be subject to
confirmation by the Commission on
Appointments.
Singson’s Contention: Singson claims that
Congress exceeded its legislative powers in
requiring the confirmation by the
Commission on Appointments of the
appointment of the Governor of the
Bangko Sentral. They contend that an
appointment to the said position is not
among the appointments which have to be
confirmed by the Commission on
Appointments, citing Section 16 of Article
VII of the Constitution which provides that:
Sec. 16. The President shall nominate and,
with the consent of the Commission on
Appointments, appoint the heads of the
executive departments, ambassadors,
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other public ministers and consuls, or
officers of the armed forces from the rank
of colonel or naval captain, and other
officers whose appointments are vested in
him in this Constitution. He shall also
appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those
whom he may be authorized by law to
appoint. The Congress may, by law, vest
the appointment of other officers lower in
rank in the President alone, in the courts,
or in the heads of department, agencies,
commissions, or boards . . .
ISSUES
1. Whether or not Tarrosa has the
capacity to challenge the appointment of
Singson.
2. Whether or not the
appointment was validly made.
HELD:
(1) NO, he has no capacity. Tarrosa filed
the petition in his capacity as a mere
taxpayer. He is not a person claiming to be
entitled to a public office or position
unlawfully held or exercised by Singson.
He failed to prove that he is entitled to
the controverted position.
(2) YES, the appointment was validly
made. The court’s ruling in the case of
Calderon v. Carale states that “Congress
cannot by law expand the confirmation
powers of the CA and require
confirmation of appointment of other
government officials not expressly
mentioned in the 1st sentence of Section
16, Article VII of the Constitution.