Socrates vs COMELEC, 391 SCRA 457; G.R. No.

154512, November 12, 2002

considered as an interruption in the continuity of service for the full term for which the elective official was elected. The first part provides that an elective local official cannot serve for more than three consecutive terms. The clear intent is that only consecutive terms count in determining the three-term limit rule. The second part states that voluntary renunciation of office for any length of time does not interrupt the continuity of service. The clear intent is that involuntary severance from office for any length of time interrupts continuity of service and prevents the service before and after the interruption from being joined together to form a continuous service or consecutive terms. After three consecutive terms, an elective local official cannot seek immediate re-election for a fourth term. The prohibited election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate re-election after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of service. Based from the deliberations of a Constitutional Commission, what the Constitution prohibits is an immediate re-election for a fourth term following three consecutive terms. The Constitution, however, does not prohibit a subsequent re-election for a fourth term as long as the re-election is not immediately after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate re-election after the third term. Neither does the Constitution prohibit one barred from seeking immediate re-election to run in any other subsequent election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate re-election after his third consecutive term which ended on June 30, 2001. The immediate re-election that the Constitution barred Hagedorn from seeking referred to the regular elections in 2001.

(Local Government, Recall Election: Exception to the 3 term limit) Facts: COMELEC gave due course to the Recall Resolution against Mayor Socrates of the City of Puerto Princesa, and scheduled the recall election on September 7, 2002. On August 23, 2002, Hagedorn filed his COC for mayor in the recall election. Different petitioners filed their respective petitions, which were consolidated seeking the disqualification of Hagedorn to run for the recall election and the cancellation of his COC on the ground that the latter is disqualified from running for a fourth consecutive term, having been elected and having served as mayor of the city for three (3) consecutive full terms in 1992, 1995 and 1998 immediately prior to the instant recall election for the same post. COMELECs First Division dismissed in a resolution the petitioner for lack of merit. And COMELEC declared Hagedorn qualified to run in the recall election. Issue: WON one who has been elected and served for 3 consecutive full terms is qualified to run for mayor in the recall election. Held: Yes. The three-term limit rule for elective local officials is found in Section 8, Article X of the Constitution, which states: Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be considered as an interruption in the continuity of his service for the full term for which he was elected. This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which provides: Section 43. Term of Office. (a) x x x (b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renunciation of the office for any length of time shall not be

FIRST DIVISION [G.R. No. 146875. July 14, 2003] 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, petitioners, vs. BARANGAY CAPTAIN MANUEL D. LAXINA, SR., respondent. DECISION YNARES-SANTIAGO, J.: 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? This is the legal question raised in this petition under Rule 45 of the 1997 Rules of Civil Procedure, assailing the November 13, 2000 Summary Judgment1[1] of the Regional Trial Court of Quezon City, Branch 77, which set aside the decision of the City Council of Quezon City finding respondent Barangay Captain Manuel D. Laxina guilty of grave misconduct. On May 27, 1997, respondent took his oath and thereafter assumed office as the duly proclaimed and elected barangay captain of Barangay Batasan Hills, Quezon City, in the 1997 Barangay Elections. Meanwhile, Roque Fermo, his rival candidate, filed an election protest with the Metropolitan Trial Court of Quezon City, Branch 40. On January 18, 1999, Fermo was declared as the winner in the Barangay Elections. Respondent filed a notice of appeal with the COMELEC while Fermo filed a motion for execution pending appeal. On January 20, 1999, an order was issued by the trial court granting the motion for execution pending appeal. Hence, respondent vacated the position and relinquished the same to Fermo. Thereafter, respondent filed a petition with the COMELEC questioning the January 20, 1999 order of the trial court. On September 16, 1999, the COMELEC issued a resolution2[2] annulling the order which granted the

execution of the decision pending appeal on the ground that there existed no good reasons to justify execution. The dispositive portion thereof reads: WHEREFORE, in view of all the foregoing, the Commission En Banc GRANTS the petition. Accordingly, the January 20, 1999 Order of the Court a quo is hereby ANNULLED. Private respondent ROQUE FERMO is hereby ORDERED to CEASE and DESIST from further performing the functions of Punong Barangay of Barangay Batasan Hills, District II, Quezon City and to relinquish the same to Petitioner MANUEL LAXINA, SR, pending final resolution of appeal. SO ORDERED.3[3] On October 27, 1999, the COMELEC issued a writ of execution directing Fermo to vacate the office of Barangay Chairman of Barangay Batasan Hills. On October 28, 1999, Fermo was served a copy of the writ of execution but refused to acknowledge receipt thereof. He also refused to vacate the premises of the barangay hall of Batasan Hills.4[4] This did not, however, prevent respondent and his staff from discharging their functions and from holding office at the SK-Hall of Batasan Hills.5[5] On the same date, respondent appointed Godofredo L. Ramos as Barangay Secretary6[6] and on November 8, 1999, he appointed Rodel G. Liquido as Barangay Treasurer.7[7] On November 12, 1999, the COMELEC, acting on respondents motion to cite Fermo for contempt,8[8] issued

an alias writ of execution,9[9] which was likewise returned unsatisfied. Finally, on November 16, 1999, respondent took his oath of office as Barangay Captain of Batasan Hills, Quezon City before Mayor Ismael Mathay, Jr.10[10] The following day, November 17, 1999, Roque Fermo turned over to respondent all the assets and properties of the barangay.11[11] On November 20, 1999, the Barangay Council of Batasan Hills issued Resolution No. 001-S-1999 ratifying the appointment of Godofredo L. Ramos as Barangay Secretary, effective November 1, 199912[12] and Resolution No. 002-S-1999 ratifying the appointment of Rodel G. Liquido, as Barangay Treasurer, also effective November 1, 1999.13[13] However, the appointees of Roque Fermo to the same position registered objections to the said Resolutions. In order to accommodate these appointees, respondent agreed to grant them allowances and renumerations for the period of November 1- 7, 1999.14[14] In Resolution No. 017-S-99 dated December 11, 1999, the barangay council of Batasan Hills, authorized the appropriation of P864,326.00 for the November to

December 1999 salary of its barangay officials and employees.15[15] Pursuant thereto, the barangay payroll was issued on December 18, 1999, enumerating the names of respondent and his appointed barangay secretary and barangay treasurer as among those entitled to compensation for services rendered for the period November 8, 1999 to December 31, 1999.16[16] Petitioners Jose G. Mendoza, Jr., Rosario E. Espino and Teresita S. Mendoza, who were barangay councilors, refused to sign Resolution No. 017-S99 as well as said payroll.17[17] Sometime in January 2000, petitioner barangay councilors filed with the Quezon City Council a complaint18[18] for violation of the anti-graft and corrupt practices act and falsification of legislative documents against respondent and all other barangay officials who signed the questioned resolution and payroll, namely, Barangay Secretary Godofredo L. Ramos, Barangay Treasurer Rodel G. Liquido, Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castaeda, Elias G. Gamboa, and SK-Chairman Sharone Amog. 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 respondent took his oath and assumed the office of barangay chairman. They further claimed that the effectivity date of the barangay secretary and barangay treasurers appointment, as approved in Resolution No. 001-S-1999, 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. In their joint counter-affidavit,19[19] 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 respondents 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.20[20] On October 2, 2000, 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, 1999.21[21] The Committee, however, found that respondent and the other barangay officials who signed the questioned resolution and payroll acted in good faith when they erroneously approved the grant of renumerations to respondents appointees starting November 8, 1999. Nevertheless, it found respondent guilty of grave misconduct and recommended the penalty of 2 months suspension. The charges against Barangay Secretary Godofredo Ramos and Barangay Treasurer Rodel Liquido were dismissed, inasmuch as the City Councils disciplinary jurisdiction is limited to elective barangay officials only. As to Barangay Kagawad Charlie O. Mangune, Gonzalo S. Briones, Sr., Maryann T. Castaeda, Elias G. Gamboa, and SK-Chairman Sharone Amog, the charges against them were likewise dismissed on the ground that there was no separate and independent proof that .. [they] conspired with Punong Barangay Laxina Ramos and Liquido in committing the acts therein complained of.22[22] On October 3, 2000, the Quezon City Council adopted the findings and recommendations of the Committee.23[23] Respondent filed a motion for reconsideration.24[24] On

October 9, 2000, however, the City Council implemented the decision and appointed Charlie Mangune as acting barangay chairman of Batasan Hills, Quezon City.25[25] Respondent filed a petition for certiorari26[26] with the Regional Trial of Quezon City, Branch 67, seeking to annul the decision of the Quezon City Council. In their answer, petitioners prayed for the dismissal of the petition, arguing that respondent failed to exhaust administrative remedies and the trial court has no jurisdiction over the case because appeals from the decision of the City Council should be brought to the Office of the President. On November 13, 2000, a summary judgment was rendered by the trial court in favor of respondent. It did not rule on the propriety of the re-taking of the oath office by the latter, but nevertheless, exonerated him on the basis of the finding of the City Council that he did not act in bad faith but merely misread the law as applied to the facts. The dispositive portion of the said decision, states: WHEREFORE, the decision finding herein petitioner guilty of grave misconduct and imposing upon him the penalty of suspension and loss of concomitant benefits for two (2) months is hereby annulled and set aside. The suspension of the petitioner is hereby lifted and all benefits due to him are ordered restored. The motion for a preliminary hearing on the affirmative defense of respondents and the motion to drop City Councilor Banal as party respondent are both denied. SO ORDERED.27[27] Petitioners filed the instant petition for review raising pure questions of law. Before going into the substantive issues, we shall first resolve the issue on exhaustion of administrative remedies.

The trial court ruled that Section 67 of the Local Government Code, which allows an appeal to the Office of the President, is not applicable because the decision of the City Council is final and executory. It added that respondent correctly filed a petition for certiorari because he had no other plain, speedy and adequate remedy. The trial court further ratiocinated that an appeal to the Office of the President before going to the regular courts might render the case moot and academic inasmuch as the penalty of suspension might have been fully served by the time the court renders a decision. Sections 61 and 67 of the Local Government Code, provide: Section 61. Form and Filing of Administrative Complaints. A verified complaint against any erring local elective official shall be prepared as follows: xxx xxx xxx

Sanggunian concerned. These phrases simply mean that the administrative appeals will not prevent the enforcement of the decisions.28[28] The decision is immediately executory but the respondent may nevertheless appeal the adverse decision to the Office of the President or to the Sangguniang Panlalawigan, as the case may be.29[29] It is clear that respondent failed to exhaust all the administrative remedies available to him. The rule is that, before a party is allowed to seek the intervention of the court, it is a pre-condition that he should have availed of all the means of administrative processes afforded him. Hence, if a remedy within the administrative machinery can still be availed of by giving the administrative officer concerned every opportunity to decide on a matter that comes within his jurisdiction, then such remedy should be exhausted first before the courts judicial power can be sought. The premature invocation of the courts intervention is fatal to ones cause of action.30[30] The application of the doctrine of exhaustion of administrative remedies, however, admits of exceptions, one of which is when the issue involved is purely legal.31[31] In the case at bar, the issues of whether or not the decision of the Sangguniang Panlungsod in disciplinary cases is appealable to the Office of the President, as well as the propriety of taking an oath of office anew by respondent, are certainly questions of law which call for judicial intervention.32[32] Furthermore, an appeal to the Office of the President would not necessarily render the case moot and academic. Under Section 68, in the event the appeal results in his exoneration, the respondent shall be paid his salary and such other emoluments during the pendency of the appeal. Hence, the execution of the penalty or expiration of term of the public official will not prevent recovery of all salaries and emoluments due him in

(c) A complaint against any elective barangay official shall be filed before the sangguniang panlungsod or sangguniang bayan concerned whose decision shall be final and executory. (emphasis supplied) Sec. 67. Administrative Appeals. Decisions in administrative cases may, within thirty (30) days from receipt thereof, be appealed to the following: xxx xxx xxx

(b) The Office of the President, in the case of decisions of the sangguniang panlalawigan and the sangguniang panlungsod of highly urbanized cities and independent component cities. Decision of the Office of the President shall be final and executory. In interpreting the foregoing provisions, the trial court did not consider Section 68 of the same code which provides: An appeal shall not prevent a decision from being final and executory. The respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in the event that he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such other emoluments during the pendency of the appeal. Obviously, the said Code does not preclude the taking of an appeal. On the contrary, it specifically allows a party to appeal to the Office of the President. The phrases final and executory, and final or executory in Sections 67 and 68, respectively, of the Local Government Code, are not, as erroneously ruled by the trial court, indicative of the appropriate mode of relief from the decision of the

case he is exonerated of the charges. Clearly, therefore, the trial court correctly took cognizance of the case at bar, albeit for the wrong reasons. We now come to the substantive issues. 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.33[33] 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.34[34] Unless his election is annulled by a final and executory decision,35[35] 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, in Fermo v. Commission on Elections.36[36] It was held therein that [w]hen 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 restored37[37] 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 respondents 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. Having thus ruled out the necessity of respondents taking anew of the oath of office, the next question to be resolved is: when is respondent considered to have validly reassumed 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 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 respondents 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[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 petitioner barangay officials, they were not able to receive their salaries for the period November 8 to December 31, 1999.39[39] 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.40[40] Hence, the investigative committee correctly brushed aside this charge against respondent. The trial court therefore did not err in exonerating respondent and pursuant to Article 68 of the Local Government Code, he should be paid his salaries and emoluments for the period during which he was suspended without pay. WHEREFORE, in view of all the foregoing, the instant petition for review is DENIED. The Summary Judgment of the Regional Trial Court of Quezon City, Branch 77, in Civil Case No. Q-00-42155, exonerating respondent Manuel D. Laxina, Sr., of the charge of grave misconduct and ordering the payment of all benefits due him during the period of his suspension, is AFFIRMED. SO ORDERED.

SC Clarifies "Three-Term Limit" Rule, Proclaims Abundo Winner of 2010 Mayoral Elections in Viga, Catanduanes Posted: February 7, 2013; By Bianca M. Padilla The Supreme Court En Banc has partly granted the petition for certiorari under rule 65 of Abelardo Abundo, Sr., Mayor of Viga, Catanduanes, setting aside the Commission on Elections (COMELEC) Second Division Resolution dated February 8, 2012, COMELECs En Banc resolution in EAC (EA) No. A25-2010 dated May 10, 2012, and the Regional Trial Court (RTC) of Virac, Catanduanes Branch 43s Decision in Election Case No. 55 dated August 9, 2010, which declared Abundo ineligible to run in the 2010 Mayoral elections of Viga, Catanduanes under the three-term limit rule. Abundo ran for the position of Municipal Mayor of Viga, Catanduanes in the years 2001, 2004, 2007, and 2010. He was proclaimed winner of the 2001 and 2007 elections. In the 2004 election, however, Jose Torres was proclaimed the winner of the electoral race and Mayor of Viga, performing the functions of the office. Abundo protested Torres election and was eventually declared the winner of the 2004 mayoralty electoral contest. He assumed office from May 9, 2006 until the end of the 2004-2007 term on June 30, 2007. As a result of such reversal, the Court declared Abundo eligible for another term as Mayor to which he was duly elected in the May 2010 elections and immediately reinstated him to such position. Emeterio M. Tarin and Cesar O. Cervantes were also ordered to immediately vacate the positions of Mayor and Vice-Mayor of Viga, Catanduanes, respectively and to revert to their original positions of Vice-Mayor and first Councilor, respectively, upon receipt of this Decision, which is immediately executory. The Court likewise lifted the Temporary Restraining Order (TRO) it issued on July 3, 2012 to restrain the COMELEC from enforcing the abovementioned resolutions. As provided for in Section 8, Article X of the 1987 Constitution and Sec. 43(b) of the Local Government Code, the three-term limit rule constitutes a disqualification to run for an elective local office when an official has been elected for three consecutive terms in the same local government post and has fully served those three consecutive terms. In the Courts 35-page decision, written by Justice Presbitero J. Velasco, Jr., it unanimously held that Abundo did not serve three consecutive terms as

Mayor of Viga, Catanduanes due to an actual involuntary interruption during the 2004-2007 term. This was because he assumed the mayoralty post only on May 9, 2006 and served a little over one year and one month only. Thus, the two-year period which his opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos case from the ambit of the threeterm limit rule, ruled the Court. The Court further ruled that the COMELEC erred in applying Aldovino, Jr. v. Commission on Elections, which held that service of the unexpired portion of a term by a protestant who is declared winner in an election protest is considered as service for one full term within the contemplation of the three-term limit rule as the doctrine refers to a situation where the elected official is under preventive suspension and is only temporarily unable to discharge his functions yet is still entitled to the office as compared to the situation of Abundo where he did not have title to the office. The Court emphasized that pending the favorable resolution of Abundos election protest, he was relegated to being an ordinary constituent and private citizen since his opponent, as presumptive victor in the 2004 elections, was occupying the mayoralty seat. While awaiting the pendency of the election protest, Abundo ceased from exercising power or authority over the constituents of Viga and cannot be said to have retained title to the mayoralty office as he was at that time not the duly proclaimed winner. It stressed that Abundos case differs from other cases involving the effects of an election protest because while Abundo was the winning candidate, he was the one deprived of his right and opportunity to serve his constitutents. In his separate opinion, Justice Arturo D. Brion wrote to briefly expound on the Courts ruling in Aldovino, Jr. v. Commission on Elections which the COMELEC erroneously relied upon in affirming the grant of the quo warranto petition against Abundo, and to express my own views on how our present Decision should be read in light of other three-term limit cases that have been decided under a protest case scenario. He stressed that the Court cannot avoid considering the attendant factual and legal realities, based on the requirements that Borja established, and has no choice but to adjust its appreciation of these realities, as may be necessary. Justice Brion agreed that the Aldovino ruling relied upon by COMELEC cannot be used as a basis for the conclusion that there had been no interruption in the case of Abundo - the eventual winner who is so

recognized only after winning his protest case. Notably in Aldovino, while preventive suspension is an involuntary imposition, what it affects is merely the authority to discharge the functions of an office that the suspended local official continues to hold the local elective official continues to possess title to his office while under preventive suspension, so that no interruption of his term ensues. After discussing the prevailing jurisprudence cited by the majority (Ong v. Alegre, Lonzanida v. Commission on Elections, and Borja, Jr. v. Commission on Elections), Justice Brion pointed out that the differing factual situations of the cited cases and Abundo that necessarily gave rise to different perspectives in appreciating the same legal question, immediately suggest that the Courts ruling in the cited cases cannot simply be combined nor wholly be bodily lifted and applied to Abundo. At the simplest, both Lonzanida and Ong were protestees who faced the same legal reality of losing the election, although Ong fully served the elected term; for Abundo, the legal reality is his recognized and declared election victory, In terms of factual reality, Lonzanida and Abundo may be the same since they only partially served their term, but this similarity is fully negated by their differing legal realities with respect to the element of election. Ong and Abundo, on the other hand, have differing legal and factual realities; aside from their differing election results, Ong served the full term, while Abundo only enjoyed abbreviated term. Based on this analysis, Justice Brion concluded his separate opinion by stressing that Abundo should not be considered to have been elected for the full term for purposes of the three-term limit rule, despite the legal reality that he won the election; as in Ong, the factual reality should prevail, and that reality is that he served for less than this full term. Thus, where less than a full term is served by a winning protestant, no continous and uninterrupted term should be recognized. This is the view that best serves the purpose of the three-term limit rule. Justice Teresita J. Leonardo-De Castro joined Justice Brions separate opinion. The Court also summarized the prevailing jurisprudence on issues affecting consecutiveness of terms and involuntary interruption. Borja, Jr. v. Commission on Elections provides that when a permanent vacancy occurs in an elective position and the official merely assumed the position

through succession, his service for the unexpired portion of the term cannot be treated as one full term. Montebon v. Commission on Elections supplemented this by saying that if the official runs again for the same position he held rior to his assumption of the higher office, his succession to said position is by operation of law and is considered an involuntary severance or interruption. On the issue of recall elections, Adormeo v. Commission on Elections and Socrates v. Commission on Elections held that an elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his fourth trm, but later won in a recall election, had an interruption in the continuity of the officials servicefor he had become in the interim a private citizen. Latasa v. Commission on Elections ruled that the abolition of an elective office due to the conversion of a municipality to a city does not, by itself, work to interrupt the incumbent officials continuity of service. As mentioned above, Aldovino, Jr. v. Commission on Elections states that preventive suspension is not a term interrupting event as the elective officers continued stay and entitlement to the office remain unaffected during the period of suspension, although he is barred from exercising the functions of the office during this period. Lonzanida v. Commission on Elections and Dizon v. Commission on Elections continued on to rule that when a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he losess in an election protest and is ousted from office. An interruption for any length of time, provided the cause is involuntary is sufficient to break the continuity of service. Lastly, Ong v. Alegre and Rivera III v. Commission on Elections declared when an official is defeated in an election protest and decision becomes final only after the official had served the full term for the 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 should be counted in the application of term limits because the nullification of his proclamation came after the expiration of the term. (GR No. 201716, Abundo v. Commission on Elections, January 8, 2013)

x x x." SC Clarifies "Three-Term Limit" Rule, Proclaims Abundo Winner of 2010 Mayoral Elections in Viga, Catanduanes In the Courts 35-page decision, written by Justice Presbitero J. Velasco, Jr., it unanimously held that Abundo did not serve three consecutive terms as Mayor of Viga, Catanduanes due to an actual involuntary interruption during the 2004-2007 term. This was because he assumed the mayoralty post only on May 9, 2006 and served a little over one year and one month only. Thus, the two-year period which his opponent, Torres, was serving as mayor should be considered as an interruption, which effectively removed Abundos case from the ambit of the threeterm limit rule, ruled the Court. Justice Brion agreed that the Aldovino ruling relied upon by COMELEC cannot be used as a basis for the conclusion that there had been no interruption in the case of Abundo - the eventual winner who is so recognized only after winning his protest case. Notably in Aldovino, while preventive suspension is an involuntary imposition, what it affects is merely the authority to discharge the functions of an office that the suspended local official continues to hold the local elective official continues to possess title to his office while under preventive suspension, so that no interruption of his term ensues. (GR No. 201716, Abundo v. Commission on Elections, January 8, 2013)

Partisan politics and the law In the midst of the vindictive and discriminatory partisan politics prevailing in the Philippines, which, in most cases, has rendered the Philippine justice system helpless, the Philippine Supreme Court, in the recent case of THE SANGGUNIANG BARANGAY OF BARANGAY DON MARIANO MARCOS, MUNICIPALITY OF BAYOMBONG PROVINCE OF NUEVA VISCAYA vs. PUNONG BARANGAY SEVERINO MARTINEZ, G.R. No. 170626, March 3, 2008, reiterated its past rulings stating (a) that the Office of the President and the local Sangguniang (local legislative councils at the Barangay, municipal/city and provincial levels) were without any power to remove elected officials, since the power was exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code; (b) that Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991 was invalid and unconstitutional; and (c) that where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial an aggrieved party may have direct recourse to the courts, as an exception to the doctrine of exhaustion of administrative remedies. On 5 November 2004, respondent Barangay Chairman Severino Martinez was administratively charged with Dishonesty and Graft and Corruption by petitioner Sangguniang Barangay (municipal legislative council) through the filing of a verified complaint before the Sangguniang Bayan as the disciplining authority over elective barangay officials pursuant to Section 61 of Rep. Act No. 7160, otherwise

known as the Local Government Code, alleging the respondents: 1. Failure to submit and fully Barangay Treasurer the income waste management project particularly the sale of fertilizer composting. remit to the of their solid since 2001 derived from

2. Failure to submit/remit to the barangay treasurer the sale of recyclable materials taken from garbage collection. 3. Using the garbage truck for other purposes like hauling sand and gravel for private persons without monetary benefit to the barangay because no income from this source appears in the year end report even if payments were collected x x x. 4. Using/spending barangay funds for repair, gasoline, lubricants, wheels and other spare parts of the garbage truck instead of using the money or income of said truck from the garbage fees collected as income from its Sold Waste Management Project. x x x. 5. Unliquidated traveling expenses for Seminar/Lakbay-Aral in 2003 because although a cash advance was made by the respondent for the said purpose, he, however, did not attend said seminar because on the dates when he was supposed to be on seminar they saw him in the barangay. x x x. 6. That several attempts to discuss said problem during sessions were all in vain because respondent declined to discuss it and would adjourn the session. x x x. Pending the administrative proceedings, Martinez was placed under preventive

suspension for 60 days by the Sangguniang Bayan. On 28 July 2005, the Sangguniang Bayan rendered its Decision which imposed upon Martinez the penalty of removal from office. On 26 August 2005, Martinez filed a Special Civil Action for Certiorari with a prayer for Temporary Restraining Order and Preliminary Injunction before the trial court against petitioner, the Sangguniang Bayan and Mayor Bagasao questioning the validity of the Decision dated 28 July 2005 of the Sangguniang Bayan. On 20 October 2005, the trial court issued an Order declaring the Decision of the Sangguniang Bayan and the Memorandum of Mayor Bagasao void. It maintained that the proper courts, and not the petitioner, are empowered to remove an elective local official from office, in accordance with Section 60 of the Local Government Code. Thus, the Order of the Sangguniang Bayan removing Martinez from service is void. The trial court further ruled that Martinez properly availed himself of the remedy of Special Civil Action, where the order assailed was a patent nullity. Although Martinezs term as Punong Barangay expired upon the holding of the 29 October 2007 Synchronized Barangay and Sangguniang Kabataan elections and, thus, rendering this petition moot and academic, the Court nevertheless settled the legal question because it was capable of repetition yet evading review. The pivotal issue was whether or not the Sangguniang Bayan may remove Martinez, an elective local official, from office.

According to the Court, the pertinent legal provisions and cases decided by this Court firmly establish that the Sangguniang Bayan is not empowered to do so. Section 60 of the Local Government Code conferred upon the courts the power to remove elective local officials from office when it provides that an elective local official may be removed from office xxx by order of the proper court. The Court reiterated its previous ruling In the case of Salalima v. Guingona, Jr., where the Court en banc categorically ruled that the Office of the President is without any power to remove elected officials, since the power is exclusively vested in the proper courts as expressly provided for in the last paragraph of Section 60 of the Local Government Code. It further invalidated Article 125, Rule XIX of the Rules and Regulations Implementing the Local Government Code of 1991, which provided that an elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article by order of the proper court or the disciplining authority whichever first acquires jurisdiction to the exclusion of the other. The Court nullified the aforequoted rule since the Oversight Committee that prepared the Rules and Regulations of the Local Government Code exceeded its authority when it granted to the disciplining authority the power to remove elective officials, a power which the law itself granted only to the proper courts. The Court likewise reiterated its ruling in the case of Pablico v. Villapando, where it declared that the power to remove erring elective local

officials from service is lodged exclusively with the courts; that Article 125 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it vests power on the disciplining authority to remove from office erring elective local officials, is void for being repugnant to the last paragraph of Section 60 of the Local Government Code of 1991; that the law on suspension or removal of elective public officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through the exercise of their constitutional right of suffrage; that the their will must not be put to naught by the caprice or partisanship of the disciplining authority; that where the disciplining authority is given only the power to suspend and not the power to remove, it should not be permitted to manipulate the law by usurping the power to remove. The Court opined that the rule which confers to the proper courts the power to remove an elective local official from office is intended as a check against any capriciousness or partisan activity by the disciplining authority; and that vesting the local legislative body with the power to decide whether or not a local chief executive may be removed from office, and only relegating to the courts a mandatory duty to implement the decision, would still not free the resolution of the case from the capriciousness or partisanship of the disciplining authority; that such an arrangement clearly demotes the courts to nothing more than an implementing arm of the Sangguniang Panglunsod, or Sangguniang Bayan, which would be an unmistakable breach of the doctrine on separation of powers because it

would place the courts under the orders of the legislative bodies of local governments; that in such a case, the courts would be stripped of their power of review, and their discretion in imposing the extreme penalty of removal from office (would be) left to be exercised by political factions which stand to benefit from the removal from office of the local elective official concerned, the very evil which Congress sought to avoid when it enacted Section 60 of the Local Government Code. According to the Court, Congress clearly meant that the removal of an elective local official be done only after a trial before the appropriate court, where court rules of procedure and evidence can ensure impartiality and fairness and protect against political maneuverings and that elevating the removal of an elective local official from office from an administrative case to a court case may be justified by the fact that such removal not only punishes the official concerned but also, in effect, deprives the electorate of the services of the official for whom they voted. The Court clarified that Section 61 of the Local Government Code provides for the procedure for the filing of an administrative case against an erring elective barangay official before the Sangguniang Panglunsod or Sangguniang Bayan. However, the Sangguniang Panglunsod or Sangguniang Bayan cannot order the removal of an erring elective barangay official from office, as the courts are exclusively vested with this power under Section 60 of the Local Government Code. Thus, if the acts allegedly committed by the barangay official are of a grave nature and, if found guilty, would merit the penalty of removal from office, the case should be filed with the regional trial court. Once the court assumes jurisdiction, it retains

jurisdiction over the case even if it would be subsequently apparent during the trial that a penalty less than removal from office is appropriate. On the other hand, the most extreme penalty that the Sangguniang Panglunsod or Sangguniang Bayan may impose on the erring elective barangay official is suspension and that if it deems that the removal of the official from service is warranted, then it can resolve that the proper charges be filed in court. The Court cited Paragraph 2, Section 1, Article VIII of the 1987 Constitution, which provides that judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government. In rejecting the theory of the petitioner that the respondent should have first sought recourse from the Sangguniang Panlalawigan (doctrine of exhaustion of administrative remedies, the Court stated that although the doctrine of exhaustion of administrative remedies calls for resort first to the appropriate administrative authorities in the resolution of a controversy falling under their jurisdiction before the same may be elevated to the courts of justice for review and that non-observance of the doctrine results in lack of a cause of action, which is one of the grounds allowed by the Rules of Court for the dismissal of the complaint, nonetheless, the said doctrine is not inflexible because it is subject to the following exceptions: 1) where there is estoppel on the part of the party invoking the doctrine; 2) where the challenged administrative act is patently illegal,

amounting to lack of jurisdiction; 3) where there is unreasonable delay or official inaction that will irretrievably prejudice the complainant; 4) where the amount involved is relatively small as to make the rule impractical and oppressive; 5) where the question raised is purely legal and will ultimately have to be decided by the courts of justice; 6) where judicial intervention is urgent; 7) where its application may cause great and irreparable damage; 8) where the controverted acts violate due process; 9) when the issue of nonexhaustion of administrative remedies has been rendered moot; 10) where there is no other plain, speedy and adequate remedy; 11) when strong public interest is involved; and 13) in quo warranto proceedings. In fine, although as a general rule, no recourse to courts can be had until all administrative remedies have been exhausted, the rule is not applicable where the challenged administrative act is patently illegal, amounting to lack of jurisdiction and where the question or questions involved are essentially judicial. In this case, the Sangguniang Bayan acted beyond its jurisdiction when it issued the assailed Order dated 28 July 2005 removing Martinez from office. Such act was patently illegal and, therefore, Martinez was no longer required to avail himself of an administrative appeal in order to annul the said Order of the Sangguniang Bayan. Thus, his direct recourse to regular courts of justice was justified. In addition, citing its ruling in the case of Castro v. Gloria, the Court held that where the case involves only legal questions, the litigant need not exhaust all administrative remedies before such judicial relief can be sought. Issues of law cannot be resolved with finality by the

administrative officer and an appeal to the administrative officer would only be an exercise in futility. A legal question is properly addressed to a regular court of justice rather than to an administrative body, the Court said.
REYNALDO O. MALONZO, petitioner, vs. THE HONORABLE COMMISSION ON ELECTIONS and THE LIGA NG MGA BARANGAY (Caloocan Chapter) and ALEX L. DAVID, CONRADO G. CRUZ, TRINIDAD REPUNO, GLORIA M. CRUZ, MIRALI M. DURR, FERMIN JIMENEZ, AURELIO BILUAN, ROGELIO SARAZA, HELENE VALBUENA, and HIGINO RULLEPA, respondents. G.R. No. 127066 March 11, 1997 FACTS: Malonzo was elected as Mayor of Caloocan City in the elections held on May 8, 1995. However, barely a year after his election, on July 7, 1996, 1,057 Punong Barangays, Sangguniang Barangay members and SK chairmen constituting a majority of the Preparatory Recall Assembly of Caloocan passed Preparatory Recall Assembly Resolution No. 01-96, expressing loss of confidence in Mayor Malonzo, and calling for the initiation of recall proceedings against him. The said resolution, along with other relevant documents, was filed by the PRA with the COMELEC. Malonzo filed a petition with COMELEC challenging the validity of recall process. The COMELEC, however, rejected the petition. It then declared the recall proceedings to be in order. Malonzo then filed a Petition for Certiorari With Prayer For Temporary Restraining Order and Application for Writ of Preliminary Injunction", assailing the COMELEC's resolution as having been issued with grave abuse of discretion. Malonzo challenged the recall proceedings, essentially claiming that the notices for the meeting of the PRA were not properly served. Moreover, he argued that it was the Liga ng mga Barangay and not the PRA which initiated the recall, contrary to the

requirements under the Local Government Code. He also claimed that the proceeding followed for adopting the recall resolution was defective and therefore void. ISSUE: Whether or not the recall proceeding was valid. HELD: Yes. The recall process was valid. The notices were propery served to the members of the PRA. Moreover, it was the PRA which initiated the recall and not the Liga ng mga Barangay. The resolution was properly adopted in a meeting conducted by the PRA. RATIO I. Service of the notices The COMELEC adequately ruled on the issue of the service of notices to the members of the PRA. In response to petitioner's request for a technical examination of the recall documents, the COMELEC directed its Election Records and Statistics Department (ERSD) to resolve the matter of notices sent to the Preparatory Recall Assembly members. The ERSD in turn performed its task and reported its findings to the COMELEC. The ERSD and the COMELEC found that the notices were properly served. At the time the PRA was convened, there were 1, 699 barangay officials. 1, 927 notices were sent. Service was done through personal delivery or by mail. Most of these were properly received while there were some who refused to accept the notice. These were all duly noted. The COMELEC found no irregularities in the service of the notices. Morever, that Alex David, president of the Liga ng mga Barangay, sent the notices is of no moment. As a member of the PRA, he could validly exercise

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