BENJAMIN U. BORJA, JR., petitioner, vs.

COMMISSION ON ELECTIONS,
PATEROS MUNICIPAL BOARD OF CANVASSERS and JOSE T.
CAPCO, JR.,respondents.
DECISION
ROMERO, J.:
Petitioner Benjamin U. Borja, Jr. questions the authority of respondent
Commission on Elections en banc to hear and decide at the first instance a
petition seeking to declare a failure of election without the benefit of prior
notice and hearing.
During the May 8, 1995 elections, Borja and private respondent Jose T.
Capco vied for the position of Mayor of the Municipality of Pateros which
was won by Capco by a margin of 6,330 votes. Capco was consequently
proclaimed and has since been serving as Mayor of Pateros.
Alleging lack of notice of the date and time of canvass, fraud, violence,
terrorism and analogous causes, such as disenfranchisement of voters,
presence of flying voters, and unqualified members of the Board of Election
Inspectors, Borja filed before the COMELEC a petition to declare a failure of
election and to nullify the canvass and proclamation made by the Pateros
Board of Canvassers.
Concluding that the grounds relied upon by Borja were warranted only
in an election contest, the COMELEC en banc dismissed the petition in its
resolution dated May 25, 1995. It declared that forced majeure, violence,
terrorism, fraud and other analogous causes . . . are merely the causes which
may give rise to the grounds to declare failure of elections. These grounds,
which include (a) no election held on the designated election date; (b)
suspension of election before the hour fixed by law for the closing of voting;
and (c) election in any polling place resulted in a failure to elect, were not
present in Borjas petition.
Aggrieved by said resolution, petitioner elevated the matter to this
Court,
arguing
the
same
matters
while
claiming
that
the COMELEC committed grave abuse of discretion in issuing the questioned
resolution of May 25, 1995. He avers that the COMELEC en banc does not
have the power to hear and decide the merits of the petition he filed below
because under Article IX-C, Section 3 of the Constitution, all election cases,
including pre-proclamation controversies, shall be heard and decided in
division, provided that motions for reconsideration of decision shall be
decided by the Commissionen banc.
After a careful scrutiny of petitioners arguments, this Court finds the
same to be untenable. The petition must inevitably be dismissed.
In order to resolve the threshold issue formulated at the outset, there
must first be a determination as to whether a petition to declare a failure of
election qualifies as an election case or a pre-proclamation controversy. If it
does, the Constitution mandates that it be heard and adjudged by
the COMELEC through any of its Divisions. The COMELEC en banc is only
empowered to resolve motions for reconsideration of cases decided by a
Division for Article IX-C, Section 3 of the Constitution expressly provides:
SEC 3. The Commission on Elections may sit en banc or in two divisions, and
shall promulgate its rules of procedure in order to expedite disposition of
election cases, including pre-proclamation controversies. All such election
cases shall be heard and decided in division, provided that motions for
reconsideration shall be decided by the Commission en banc.
In the case at bar, no one, much less the COMELEC, is disputing the
mandate of the aforequoted Article IX-C, Section 3 of the Constitution. As
Borja himself maintained, the soundness of this provision has already been
affirmed by the Supreme Court in a number of cases, albeit with some
dissent.[1] In Ong, the Court declared that if a case raises pre-proclamation
issues, the COMELEC, sitting en banc,has no original jurisdiction over the
same. Accordingly, said case should be remanded to the COMELEC which, in
turn, will refer the same to any of its Divisions for proper disposition.

A petition to declare a failure of election is neither a pre-proclamation

controversy as classified under Section 5(h), Rule 1 of the
Revised COMELEC Rules of Procedure, nor an election case.
It must be remembered that Capco was duly elected and proclaimed
as Mayor of Pateros. Such proclamation enjoys the presumption of
regularity and validity.[2] To destroy the presumption, Borja must
convincingly show that his opponents victory was procured through extralegal means. This he tried to do by alleging matters in his petition which he
thought constituted failure of election, such as lack of notice of the date and
time of canvass; fraud, violence, terrorism and analogous causes;
disenfranchisement of voters; presence of flying voters; and unqualified
members of the Board of Election Inspectors. These grounds, however, as
correctly pointed out by the COMELEC, are proper only in an election contest
but not in a petition to declare a failure of election and to nullify a
proclamation. Section 6 of the Omnibus Election Code lays down the
instances when a failure of election may be declared. It states thus:
SEC. 6. Failure of Election. If, on account of force majeure, violence,
terrorism, fraud, or other analogous causes the election in any polling place
has not been held on the date fixed, or had been suspended before the hour
fixed by law for the closing of the voting, or after the voting and during the
preparation and the transmission of the election returns or in the custody or
canvass thereof, such election results in a failure to elect, and in any of such
cases the failure or suspension of election would affect the result of the
election, the Commission shall, on the basis of a verified petition by any
interested party and after due notice, and hearing, call for the holding or
continuation of the election not held, suspended or which resulted in a
failure to elect on a date reasonably close to the date of the election not
held, suspended or which resulted in a failure to elect but not later than
thirty days after the cessation of the cause of such postponement or
suspension of the election or failure to elect.
The same provisions are reiterated under Section 2, Rule 26 of the
Revised COMELEC Rules. In other words, the COMELEC can call for the
holding or continuation of election by reason of failure of election only when
the election is not held, is suspended or results in a failure to elect. The
latter phrase, in turn, must be understood in its literal sense, which is
nobody was elected. None of these circumstances is present in the case at
bar. At best, the grounds cited by Borja are simply events which give rise
to the three consequences just mentioned.
In reality, Borjas petition was nothing but a simple election protest
involving an elective municipal position which, under Section 251 of the
Election Code, falls within the exclusive original jurisdiction of the
appropriate Regional Trial Court. Section 251 states:
Section 251. Election contests for municipal offices. A sworn petition
contesting the election of a municipal officer shall be filed with the
proper regional trial court by any candidate who has duly filed a certificate of
candidacy and has been voted for the same office, within ten days after
proclamation of the results of the election. (Italics supplied)
The COMELEC in turn exercises appellate jurisdiction over the trial courts
decision pursuant to Article IX-C, Section 2(2) of the Constitution which
states:
Sec. 2. The Commission on Elections shall exercise the following powers and
functions:
xxx xxx

xxx

(2) Exercise exclusive original jurisdiction over all contests relating to the
elections, returns, and qualifications of all elective regional, provincial, and
city officials, and appellate jurisdiction over all contests involving elective
municipal officials decided by trial courts of general jurisdiction, or involving
elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests

involving elective municipal and barangay offices shall be final, executory,
and not appealable.
The COMELEC, therefore, had no choice but to dismiss Borjas petition,
not only for being deficient in form but also for having been filed before the
wrong tribunal. This reason need not even be stated in the body of the
decision as the same is patent on the face of the pleading itself. Nor can
Borja claim that he was denied due process because when the COMELEC en
banc reviewed and evaluated his petition, the same was tantamount to a fair
hearing of his case. The fact that Capco was not even ordered to rebut the
allegations therein certainly did not deprive him of his day in court. If
anybody here was aggrieved by the alleged lack of notice and hearing, it was
Capco whose arguments were never ventilated. If he remained complacent,
it was because the COMELECs actuation was favorable to him.
Certainly, the COMELEC cannot be said to have committed abuse of
discretion, let alone grave abuse thereof, in dismissing Borjas petition. For
having applied the clear provisions of the law, it deserves, not condemnation,
but commendation.
WHEREFORE, the instant petition is hereby DISMISSED. The
Resolution of the Commission on Elections dated May 25, 1995 is
hereby AFFIRMED. No pronouncement as to cost.

In the hearing of May 10, 2007, the parties were directed to file their
respective memoranda.
In petitioners memorandum, they maintained that respondents assumption
of office as vice-mayor in January 2004 should not be considered an
interruption in the service of his second term since it was a voluntary
renunciation of his office as municipal councilor. They argued that, according
to the law, voluntary renunciation of the office for any length of time shall
not be considered an interruption in the continuity of service for the full term
for which the official concerned was elected.
On the other hand, respondent alleged that a local elective official is not
disqualified from running for the fourth consecutive time to the same office
if there was an interruption in one of the previous three terms.
On June 2, 2007, the COMELEC First Division denied the petition for
disqualification ruling that respondents assumption of office as vice-mayor
should be considered an interruption in the continuity of his service. His
second term having been involuntarily interrupted, respondent should thus
not be disqualified to seek reelection as municipal councilor.5
On appeal, the COMELEC En Banc upheld the ruling of the First Division, as
follows:

SO ORDERED.

Republic
SUPREME
Manila

of

the

Philippines
COURT

EN BANC
G.R. No. 180444

Respondents assumption to the office of the vice-mayor of

Tuburan in January 2004 during his second term as councilor is
not a voluntary renunciation of the latter office. The same
therefore operated as an effective disruption in the full service of
his second term as councilor. Thus, in running for councilor again
in the May 14, 2007 Elections, respondent is deemed to be
running only for a second consecutive term as councilor of
Tuburan, the first consecutive term fully served being his 20042007 term.

April 8, 2008

FEDERICO T. MONTEBON and ELEANOR M. ONDOY, petitioners,

vs.
COMMISSION ON ELECTION and SESINANDO F. POTENCIOSO,
JR., respondents.
DECISION

Petitioner Montebons and Ondoys June 9, 2007 manifestation

and omnibus motion are hereby declared moot and academic
with the instant disposition of their motion for reconsideration.
WHEREFORE, premises considered, petitioners motion for
reconsideration is hereby DENIED for lack of merit.
SO ORDERED.6

YNARES-SANTIAGO, J.:
1

This petition for certiorari assails the June 2, 2007 Resolution of the First
Division of the Commission on Elections (COMELEC) in SPA No. 07-421,
denying the petition for disqualification filed by petitioners Federico T.
Montebon and Eleanor M. Ondoy against respondent Sesinando F.
Potencioso, Jr., as well as the September 28, 2007 Resolution3 of the
COMELEC En Banc denying the motion for reconsideration.
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were
candidates for municipal councilor of the Municipality of Tuburan, Cebu for
the May 14, 2007 Synchronized National and Local Elections. On April 30,
2007, petitioners and other candidates4 for municipal councilor filed a
petition for disqualification against respondent with the COMELEC alleging
that respondent had been elected and served three consecutive terms as
municipal councilor in 1998-2001, 2001-2004, and 2004-2007. Thus, he is
proscribed from running for the same position in the 2007 elections as it
would be his fourth consecutive term.
In his answer, respondent admitted that he had been elected for three
consecutive terms as municipal councilor. However, he claimed that the
service of his second term in 2001-2004 was interrupted on January 12, 2004
when he succeeded as vice mayor of Tuburan due to the retirement of Vice
Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying
for the position of municipal councilor in the 2007 elections.

Petitioners filed the instant petition for certiorari on the ground that the
COMELEC committed grave abuse of discretion amounting to lack or excess
of jurisdiction in ruling that respondents assumption of office as vice-mayor
in January 2004 interrupted his 2001-2004 term as municipal councilor.
The petition lacks merit.
The 1987 Constitution bars and disqualifies local elective officials from
serving more than three consecutive terms in the same post. Section 8,
Article X thereof states:
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 officials shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.
Section 43 of the Local Government Code also provides:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three
consecutive terms in the same position. Voluntary renunciation of

the office for any length of time shall not be considered as an

interruption in the continuity of service for the full term for which
the elective official concerned was elected.
In Lonzanida v. Commission on Elections,7 the Court held that the two
conditions for the application of the disqualification 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.8 In Borja, Jr. v. Commission on Elections,9 the Court emphasized that
the term limit for elective officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Thus, for
the disqualification to apply, it is not enough that the official has been
elected three consecutive times; he must also have served three consecutive
terms in the same position.10
While it is undisputed that respondent was elected municipal councilor for
three consecutive terms, the issue lies on whether he is deemed to have fully
served his second term in view of his assumption of office as vice-mayor of
Tuburan on January 12, 2004.
Succession in local government offices is by operation of law.11 Section
4412 of Republic Act No. 7160, otherwise known as the Local Government
Code, provides that if a permanent vacancy occurs in the office of the vice
mayor, the highest ranking sanggunian member shall become vice mayor.
Thus:
SEC. 44. Permanent Vacancies in the Offices of the Governor, Vice
Governor, Mayor, and Vice Mayor. (a) If a permanent vacancy
occurs in the office of the governor or mayor, the vice governor or
vice mayor concerned shall become the governor or mayor. If a
permanent vacancy occurs in the offices of the governor, vice
governor, mayor or vice mayor, the highest ranking sanggunian
member or, in case of his permanent inability, the second highest
ranking sanggunian member, shall become the governor, vice
governor, mayor or vice mayor, as the case may be. Subsequent
vacancies in the said office shall be filled automatically by the
other sanggunian members according to their ranking as defined
herein. x x x
In this case, a permanent vacancy occurred in the office of the vice mayor
due to the retirement of Vice Mayor Mendoza. Respondent, being the
highest ranking municipal councilor, succeeded him in accordance with law.
It is clear therefore that his assumption of office as vice-mayor can in no way
be considered a voluntary renunciation of his office as municipal councilor.
In Lonzanida v. Commission on Elections, the Court explained the concept of
voluntary renunciation as follows:
The second sentence of the constitutional provision under
scrutiny states, Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of
service for the full term for which he was elected. The clear
intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of
office and at the same time respect the peoples choice and grant
their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the
renounced term in the computation of the three term limit;
conversely, involuntary severance from office for any length of
time short of the full term provided by law amounts to an
interruption of continuity of service.13 (Emphasis added)
Thus, respondents assumption of office as vice-mayor in January 2004 was
an involuntary severance from his office as municipal councilor, resulting in
an interruption in the service of his 2001-2004 term. It cannot be deemed to
have been by reason of voluntary renunciation because it was by operation
of law. We quote with approval the ruling of the COMELEC that

The legal successor is not given any option under the law on
whether to accept the vacated post or not. Section 44 of the Local
Government Code makes no exception. Only if the highestranking councilor is permanently unable to succeed to the post
does the law speak of alternate succession. Under no
circumstances can simple refusal of the official concerned be
considered as permanent inability within the contemplation of
law. Essentially therefore, the successor cannot refuse to assume
the office that he is mandated to occupy by virtue of succession.
He can only do so if for some reason he is permanently unable to
succeed and occupy the post vacated.
xxxx
Thus, succession by law to a vacated government office is
characteristically not voluntary since it involves the performance
of a public duty by a government official, the non-performance of
which exposes said official to possible administrative and criminal
charges of dereliction of duty and neglect in the performance of
public functions. It is therefore more compulsory and obligatory
rather than voluntary.14
WHEREFORE, the petition is DISMISSED for lack of merit. The June 2, 2007
Resolution of the COMELEC First Division denying the petition for
disqualification and the September 28, 2007 Resolution of the COMELEC en
banc denying the motion for reconsideration, are AFFIRMED.
SO ORDERED.

RUPERTO A. AMBIL, JR.,

G.R. No.
Petitioner,

- versus -

SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES,

Respondent.
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

ALEXANDRINO R. APELADO, SR.,

Petitioner,

G.R. No.
Present:

CORONA,

Chai
- versus -

CARPIO,*

BERSAMIN

PEOPLE OF THE PHILIPPINES,

Respondent.

DEL CASTILLO,
detention
and prisoner (Mayor Francisco Adalim) under accused RUPERTO A.
AMBIL, JR.s custody, by allowing said Mayor Adalim to stay at accused
VILLARAMA,
JR., JJ.
Ambils
residence for a period of Eighty-Five (85) days, more or less which act
was done without any court order, thus accused in the performance of
official functions had given unwarranted benefits and advantage to detainee
Mayor Francisco Adalim to the prejudice of the government.
Promulgated:
CONTRARY TO LAW.
BAIL BOND RECOMMENDED: P30,000.00 each.[13]
July 6, 2011

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION
VILLARAMA, JR., J.:
Before us are two consolidated petitions for review on certiorari filed by
petitioner Ruperto A. Ambil, Jr.[1] and petitioner Alexandrino R. Apelado
Sr.[2] assailing the Decision[3]promulgated on September 16, 2005 and
Resolution[4] dated November 8, 2006 of the Sandiganbayan in Criminal Case
No. 25892.
The present controversy arose from a letter[5] of Atty. David B. Loste,
President of the Eastern Samar Chapter of the Integrated Bar of the
Philippines (IBP), to the Office of the Ombudsman, praying for an
investigation into the alleged transfer of then Mayor Francisco Adalim, an
accused in Criminal Case No. 10963 for murder, from the provincial jail of
Eastern Samar to the residence of petitioner, then Governor Ruperto A.
Ambil, Jr. In a Report[6] dated January 4, 1999, the National Bureau of
Investigation (NBI) recommended the filing of criminal charges against
petitioner Ambil, Jr. for violation of Section 3(e)[7] of Republic Act (R.A.) No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act, as
amended. On September 22, 1999, the new President of the IBP, Eastern
Samar Chapter, informed the Ombudsman that the IBP is no longer
interested in pursuing the case against petitioners. Thus, he recommended
the dismissal of the complaint against petitioners.[8]
Nonetheless, in an Information[9] dated January 31, 2000, petitioners
Ambil, Jr. and Alexandrino R. Apelado, Sr. were charged with violation of
Section 3(e) of R.A. No. 3019, together with SPO3 Felipe A. Balano. Upon
reinvestigation,
the
Office
of
the
Ombudsman
issued
a
Memorandum[10] dated August 4, 2000, recommending the dismissal of the
complaint as regards Balano and the amendment of the Information to
include the charge of Delivering Prisoners from Jail under Article 156 [11] of
the Revised Penal Code, as amended, (RPC) against the remaining
accused. The Amended Information[12] reads:
That on or about the 6th day of September 1998, and for sometime prior [or]
subsequent thereto, [in] the Municipality of Borongan, Province of Eastern
Samar, Philippines, and within the jurisdiction of this Honorable Court, [the]
above-named accused, Ruperto A. Ambil, Jr.[,] being then the Provincial
Governor of Eastern Samar, and Alexandrino R. Apelado, being then the
Provincial Warden of Eastern Samar, both having been public officers, duly
elected, appointed and qualified as such, committing the offense in relation
to office, conniving and confederating together and mutually helping x x x
each other, with deliberate intent, manifest partiality and evident bad faith,
did then and there wilfully, unlawfully and criminally order and cause the
release from the Provincial Jail of detention prisoner Mayor Francisco
Adalim, accused in Criminal Case No. 10963, for Murder, by virtue of a
warrant of Arrest issued by Honorable Arnulfo P. Bugtas, Presiding Judge,
RTC-Branch 2, Borongan, Eastern Samar, and thereafter placed said

On arraignment, petitioners pleaded not guilty and posted bail.

At the pre-trial, petitioners admitted the allegations in the
Information. They reason, however, that Adalims transfer was justified
considering the imminent threats upon his person and the dangers posed by
his detention at the provincial jail. According to petitioners, Adalims sister,
Atty. Juliana A. Adalim-White, had sent numerous prisoners to the same jail
where Mayor Adalim was to be held.
Consequently, the prosecution no longer offered testimonial evidence
and rested its case after the admission of its documentary
exhibits. Petitioners filed a Motion for Leave to File Demurrer to Evidence
with Reservation to Present Evidence in Case of Denial[14] but the same was
denied.
At the trial, petitioners presented three witnesses: petitioner Ambil, Jr.,
Atty. Juliana A. Adalim-White and Mayor Francisco C. Adalim.
Petitioner Ambil, Jr. testified that he was the Governor of Eastern Samar
from 1998 to 2001. According to him, it was upon the advice of Adalims
lawyers that he directed the transfer of Adalims detention to his home. He
cites poor security in the provincial jail as the primary reason for taking
personal custody of Adalim considering that the latter would be in the
company of inmates who were put away by his sister and guards identified
with his political opponents.[15]
For her part, Atty. White stated that she is the District Public Attorney of
Eastern Samar and the sister of Mayor Adalim. She recounted how Mayor
Adalim was arrested while they were attending a wedding in Sulat, Eastern
Samar, on September 6, 1998. According to Atty. White, she sought the
alternative custody of Gov. Ambil, Jr. after Provincial Warden and herein
petitioner Apelado, Sr. failed to guarantee the mayors safety.[16]
Meanwhile, Francisco Adalim introduced himself as the Mayor of Taft,
Eastern Samar. He confirmed his arrest on September 6, 1998 in connection
with a murder case filed against him in the Regional Trial Court (RTC) of
Borongan, Eastern Samar. Adalim confirmed Atty. Whites account that he
spotted inmates who served as bodyguards for, or who are associated with,
his political rivals at the provincial jail. He also noticed a prisoner, Roman
Akyatan, gesture to him with a raised clenched fist. Sensing danger, he called
on his sister for help. Adalim admitted staying at Ambil, Jr.s residence for
almost three months before he posted bail after the charge against him was
downgraded to homicide.[17]
Petitioner Apelado, Sr. testified that he was the Provincial Jail Warden
of Eastern Samar. He recalls that on September 6, 1998, SPO3 Felipe Balano
fetched him at home to assist in the arrest of Mayor Adalim. Allegedly, Atty.
White was contesting the legality of Mayor Adalims arrest and arguing with
the jail guards against booking him for detention. At the provincial jail,
petitioner was confronted by Atty. White who informed him that he was
under the governor, in the latters capacity as a provincial jailer. Petitioner
claims that it is for this reason that he submitted to the governors order to
relinquish custody of Adalim.[18]

Further, petitioner Apelado, Sr. described the physical condition of the

jail to be dilapidated and undermanned. According to him, only two guards
were incharge of looking after 50 inmates. There were two cells in the jail,
each housing 25 inmates, while an isolation cell of 10 square meters was
unserviceable at the time. Also, there were several nipa huts within the
perimeter for use during conjugal visits.[19]
On September 16, 2005, the Sandiganbayan, First Division, promulgated
the assailed Decision[20] finding petitioners guilty of violating Section 3(e) of
R.A. No. 3019. The court ruled that in moving Adalim to a private residence,
petitioners have conspired to accord him unwarranted benefits in the form
of more comfortable quarters with access to television and other privileges
that other detainees do not enjoy. It stressed that under the Rules, no
person under detention by legal process shall be released or transferred
except upon order of the court or when he is admitted to bail.[21]
The Sandiganbayan brushed aside petitioners defense that Adalims
transfer was made to ensure his safety. It observed that petitioner Ambil, Jr.
did not personally verify any actual threat on Adalims life but relied simply
on the advice of Adalims lawyers. The Sandiganbayan also pointed out the
availability of an isolation cell and nipa huts within the 10-meter-high
perimeter fence of the jail which could have been used to separate Adalim
from other prisoners. Finally, it cited petitioner Ambil, Jr.s failure to turn
over Adalim despite advice from Assistant Secretary Jesus Ingeniero of the
Department of Interior and Local Government.
Consequently, the Sandiganbayan sentenced petitioner Ambil, Jr. to an
indeterminate penalty of imprisonment for nine (9) years, eight (8) months
and one (1) day to twelve (12) years and four (4) months. In favor of
petitioner Apelado, Sr., the court appreciated the incomplete justifying
circumstance of obedience to a superior order and sentenced him to
imprisonment for six (6) years and one (1) month to nine (9) years and eight
(8) months.
Hence, the present petitions.
Petitioner Ambil, Jr. advances the following issues for our consideration:
I
WHETHER OR NOT SECTION 3(e) REPUBLIC ACT NO. 3019, AS AMENDED,
APPLIES TO PETITIONERS CASE BEFORE THE SANDIGANBAYAN.
II
WHETHER OR NOT A PUBLIC OFFICER SUCH AS PETITIONER IS A PRIVATE
PARTY FOR PURPOSES OF SECTION 3(e), REPUBLIC ACT NO. 3019, AS
AMENDED.

WHETHER OR NOT PETITIONER IS ENTITLED TO THE JUSTIFYING

CIRCUMSTANCE OF FULFILLMENT OF A DUTY OR THE LAWFUL EXERCISE OF A
RIGHT OR OFFICE.
VI
WHETHER OR NOT PETITIONER SHOULD HAVE BEEN ACQUITTED BECAUSE
THE PROSECUTION EVIDENCE DID NOT ESTABLISH HIS GUILT BEYOND
REASONABLE DOUBT.[22]
For his part, petitioner Apelado, Sr. imputes the following errors on the
Sandiganbayan:
I
THERE WAS MISAPPREHENSION OF FACTS AND/OR MISAPPLICATION OF THE
LAW AND JURISPRUDENCE IN CONVICTING ACCUSED APELADO, EITHER AS
PRINCIPAL OR IN CONSPIRACY WITH HIS CO-ACCUSED AMBIL.
II
IN THE ABSENCE OF COMPETENT PROOF BEYOND REASONABLE DOUBT OF
CONSPIRACY BETWEEN ACCUSED AMBIL AND HEREIN PETITIONER, THE
LATTER SHOULD BE ACCORDED FULL CREDIT FOR THE JUSTIFYING
CIRCUMSTANCE UNDER PARAGRAPH 6, ARTICLE 11 OF THE REVISED PENAL
CODE.
III
THE COURT A QUOS BASIS IN CONVICTING BOTH ACCUSED AMBIL AND
HEREIN PETITIONER OF HAVING GIVEN MAYOR ADALIM UNWARRANTED
BENEFITS AND ADVANTAGE TO THE PREJUDICE x x x OF THE GOVERNMENT
IS, AT THE MOST, SPECULATIVE.[23]
The issues raised by petitioner Ambil, Jr. can be summed up into three:
(1) Whether he is guilty beyond reasonable doubt of violating Section 3(e),
R.A. No. 3019; (2) Whether a provincial governor has authority to take
personal custody of a detention prisoner; and (3) Whether he is entitled to
the justifying circumstance of fulfillment of duty under Article 11(5)[24]of the
RPC.
Meanwhile, petitioner Apelado, Sr.s assignment of errors can be
condensed into two: (1) Whether he is guilty beyond reasonable doubt of
violating Section 3(e), R.A. No. 3019; and (2) Whether he is entitled to the
justifying circumstance of obedience to an order issued by a superior for
some lawful purpose under Article 11(6)[25] of the RPC.

IV

Fundamentally, petitioner Ambil, Jr. argues that Section 3(e), R.A. No.
3019 does not apply to his case because the provision contemplates only
transactions of a pecuniary nature. Since the law punishes a public officer
who extends unwarranted benefits to a private person, petitioner avers that
he cannot be held liable for extending a favor to Mayor Adalim, a public
officer. Further, he claims good faith in taking custody of the mayor pursuant
to his duty as a Provincial Jailer under the Administrative Code of
1917. Considering this, petitioner believes himself entitled to the justifying
circumstance of fulfillment of duty or lawful exercise of duty.

WHETHER OR NOT PETITIONER AS PROVINCIAL GOVERNOR AND JAILER

UNDER SECTIONS 1730 AND 1733, ARTICLE III, CHAPTER 45 OF THE
ADMINISTRATIVE CODE OF 1917 AND SECTION 61, CHAPTER V, REPUBLIC
ACT 6975 HAS THE AUTHORITY TO TAKE CUSTODY OF A DETENTION
PRISONER.

Petitioner Apelado, Sr., on the other hand, denies allegations of

conspiracy between him and petitioner Ambil, Jr. Petitioner Apelado, Sr.
defends that he was merely following the orders of a superior when he
transferred the detention of Adalim. As well, he invokes immunity from
criminal liability.

For the State, the Office of the Special Prosecutor (OSP) points out the
absence of jurisprudence that restricts the application of Section 3(e), R.A.

III
WHETHER OR NOT PETITIONER ACTED WITH DELIBERATE INTENT, MANIFEST
PARTIALITY, EVIDENT BAD FAITH OR GROSS INEXCUSABLE NEGLIGENCE IN
THE CONTEXT OF SAID SECTION 3(e).

No. 3019 to transactions of a pecuniary nature. The OSP explains that it is

enough to show that in performing their functions, petitioners have accorded
undue preference to Adalim for liability to attach under the
provision. Further, the OSP maintains that Adalim is deemed a private party
for purposes of applying Section 3(e), R.A. No. 3019 because the
unwarranted benefit redounded, not to his person as a mayor, but to his
person as a detention prisoner accused of murder. It suggests further that
petitioners were motivated by bad faith as evidenced by their refusal to turn
over Adalim despite instruction from Asst. Sec. Ingeniero. The OSP also
reiterates petitioners lack of authority to take custody of a detention
prisoner without a court order. Hence, it concludes that petitioners are not
entitled to the benefit of any justifying circumstance.
After a careful review of this case, the Court finds the present petitions
bereft of merit.
Petitioners were charged with violation of Section 3(e) of R.A. No. 3019
or the Anti-Graft and Corrupt Practices Act which provides:
Section. 3. Corrupt practices of public officers. - In addition to acts or
omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby
declared to be unlawful:
xxxx
(e) Causing any undue injury to any party, including the Government, or
giving any private party any unwarranted benefits, advantage or preference
in the discharge of his official, administrative or judicial functions through
manifest partiality, evident bad faith or gross inexcusable negligence. This
provision shall apply to officers and employees of offices or government
corporations charged with the grant of licenses or permits or other
concessions.
In order to hold a person liable under this provision, the following
elements must concur: (1) the accused must be a public officer discharging
administrative, judicial or official functions; (2) he must have acted with
manifest partiality, evident bad faith or gross inexcusable negligence; and (3)
his action caused any undue injury to any party, including the government, or
gave any private party unwarranted benefits, advantage or preference in the
discharge of his functions.[26]
As to the first element, there is no question that petitioners are public
officers discharging official functions and that jurisdiction over them lay with
the Sandiganbayan. Jurisdiction of the Sandiganbayan over public officers
charged with violation of the Anti-Graft Law is provided under Section 4 of
Presidential Decree No. 1606,[27] as amended by R.A. No. 8249.[28] The
pertinent portions of Section 4, P.D. No. 1606, as amended, read as follows:
SEC. 4. Jurisdiction.The Sandiganbayan shall exercise exclusive original
jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019, as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II,
Section 2, Title VII, Book II of the Revised Penal Code, where one or more of
the accused are officials occupying the following positions in the
government, whether in a permanent, acting or interim capacity, at the time
of the commission of the offense:
(1) Officials of the executive branch occupying the positions of regional
director and higher, otherwise classified as Grade 27 and higher, of the
Compensation and Position Classification Act of 1989 (Republic Act No.
6758), specifically including:

(a) Provincial governors, vice-governors, members of the sangguniang

panlalawigan and provincial treasurers, assessors, engineers and other
provincial department heads[;]
xxxx
In cases where none of the accused are occupying positions
corresponding to Salary Grade 27 or higher, as prescribed in the said
Republic Act No. 6758, or military and PNP officers mentioned above,
exclusive original jurisdiction thereof shall be vested in the proper regional
trial court, metropolitan trial court,
municipal trial court, and municipal
circuit trial court, as the case may be, pursuant to their respective jurisdiction
as provided in Batas Pambansa Blg. 129, as amended.
xxxx
Thus, the jurisdiction of the Sandiganbayan over petitioner Ambil, Jr. is
beyond question. The same is true as regards petitioner Apelado, Sr. As to
him, a Certification[29] from the Provincial Government Department Head of
the HRMO shows that his position as Provincial Warden is classified as Salary
Grade 22. Nonetheless, it is only when none of the accused are occupying
positions corresponding to salary grade 27 or higher shall exclusive
jurisdiction be vested in the lower courts. Here, petitioner Apelado, Sr. was
charged as a co-principal with Governor Ambil, Jr., over whose position the
Sandiganbayan has jurisdiction. Accordingly, he was correctly tried jointly
with said public officer in the proper court which had exclusive original
jurisdiction over them the Sandiganbayan.
The second element, for its part, describes the three ways by which a
violation of Section 3(e) of R.A. No. 3019 may be committed, that is, through
manifest partiality, evident bad faith or gross inexcusable negligence.
In Sison v. People,[30] we defined partiality, bad faith and gross
negligence as follows:
Partiality is synonymous with bias which excites a disposition to see and
report matters as they are wished for rather than as they are. Bad faith
does not simply connote bad judgment or negligence; it imputes a dishonest
purpose or some moral obliquity and conscious doing of a wrong; a breach of
sworn duty through some motive or intent or ill will; it partakes of the nature
of fraud. Gross negligence has been so defined as negligence characterized
by the want of even slight care, acting or omitting to act in a situation where
there is a duty to act, not inadvertently but wilfully and intentionally with a
conscious indifference to consequences in so far as other persons may be
affected. It is the omission of that care which even inattentive and
thoughtless men never fail to take on their own property. x x x[31]
In this case, we find that petitioners displayed manifest partiality and
evident bad faith in transferring the detention of Mayor Adalim to petitioner
Ambil, Jr.s house. There is no merit to petitioner Ambil, Jr.s contention that
he is authorized to transfer the detention of prisoners by virtue of his power
as the Provincial Jailer of Eastern Samar.
Section 28 of the Local Government Code draws the extent of the power
of local chief executives over the units of the Philippine National Police
within their jurisdiction:
SEC. 28. Powers of Local Chief Executives over the Units of the Philippine
National Police.The extent of operational supervision and control of local
chief executives over the police force, fire protection unit, and jail
management personnel assigned in their respective jurisdictions shall be
governed by the provisions of Republic Act Numbered Sixty-nine hundred
seventy-five (R.A. No. 6975), otherwise known as The Department of the
Interior and Local Government Act of 1990, and the rules and regulations
issued pursuant thereto.

In particular, Section 61, Chapter 5 of R.A. No. 6975[32] on the Bureau of

Jail Management and Penology provides:

administrative powers, the governor can only enforce the law but not
supplant it.

Sec. 61. Powers and Functions. - The Jail Bureau shall exercise
supervision and control over all city and municipal jails. The provincial jails
shall be supervised and controlled by the provincial government within its
jurisdiction, whose expenses shall be subsidized by the National Government
for not more than three (3) years after the effectivity of this Act.

Besides, the only reference to a transfer of prisoners in said article is

found in Section 1737[39] under which prisoners may be turned over to the
jail of the neighboring province in case the provincial jail be insecure or
insufficient to accommodate all provincial prisoners. However, this provision
has been superseded by Section 3, Rule 114 of the Revised Rules of Criminal
Procedure, as amended. Section 3, Rule 114 provides:

The power of control is the power of an officer to alter or modify or set

aside what a subordinate officer had done in the performance of his duties
and to substitute the judgment of the former for that of the latter.[33] An
officer in control lays down the rules in the doing of an act. If they are not
followed, he may, in his discretion, order the act undone or re-done by his
subordinate or he may even decide to do it himself.[34]
On the other hand, the power of supervision means overseeing or the
authority of an officer to see to it that the subordinate officers perform their
duties.[35] If the subordinate officers fail or neglect to fulfill their duties, the
official may take such action or step as prescribed by law to make them
perform their duties. Essentially, the power of supervision means no more
than the power of ensuring that laws are faithfully executed, or that
subordinate officers act within the law.[36] The supervisor or superintendent
merely sees to it that the rules are followed, but he does not lay down the
rules, nor does he have discretion to modify or replace them.[37]
Significantly, it is the provincial government and not the governor alone
which has authority to exercise control and supervision over provincial
jails. In any case, neither of said powers authorizes the doing of acts beyond
the parameters set by law. On the contrary, subordinates must be enjoined
to act within the bounds of law. In the event that the subordinate performs
an act ultra vires, rules may be laid down on how the act should be done, but
always in conformity with the law.
In a desperate attempt to stretch the scope of his powers, petitioner
Ambil, Jr. cites Section 1731, Article III of the Administrative Code of 1917 on
Provincial jails in support. Section 1731 provides:
SEC. 1731. Provincial governor as keeper of jail.The governor of the
province shall be charged with the keeping of the provincial jail, and it shall
be his duty to administer the same in accordance with law and the
regulations prescribed for the government of provincial prisons. The
immediate custody and supervision of the jail may be committed to the care
of a jailer to be appointed by the provincial governor. The position of jailer
shall be regarded as within the unclassified civil service but may be filled in
the manner in which classified positions are filled, and if so filled, the
appointee shall be entitled to all the benefits and privileges of classified
employees, except that he shall hold office only during the term of office of
the appointing governor and until a successor in the office of the jailer is
appointed and qualified, unless sooner separated. The provincial governor
shall, under the direction of the provincial board and at the expense of the
province, supply proper food and clothing for the prisoners; though the
provincial board may, in its discretion, let the contract for the feeding of the
prisoners to some other person. (Emphasis supplied.)
This provision survived the advent of the Administrative Code of
1987. But again, nowhere did said provision designate the provincial
governor as the provincial jailer, or even slightly suggest that he is
empowered to take personal custody of prisoners. What is clear from the
cited provision is that the provincial governors duty as a jail keeper is
confined to the administration of the jail and the procurement of food and
clothing for the prisoners. After all, administrative acts pertain only to those
acts which are necessary to be done to carry out legislative policies and
purposes already declared by the legislative body or such as are devolved
upon it[38] by the Constitution. Therefore, in the exercise of his

SEC. 3. No release or transfer except on court order or bail.-No person under

detention by legal process shall be released or transferred except upon order
of the court or when he is admitted to bail.
Indubitably, the power to order the release or transfer of a person
under detention by legal process is vested in the court, not in the provincial
government, much less the governor. This was amply clarified by Asst. Sec.
Ingeniero in his communication[40] dated October 6, 1998 addressed to
petitioner Ambil, Jr. Asst. Sec. Ingeniero wrote:
06 October 1996
GOVERNOR RUPERTO AMBIL
Provincial Capitol
Borongan, Eastern Samar

Dear Sir:

This has reference to the letter of Atty. Edwin B. Docena, and the reports
earlier received by this Department, relative to your alleged action in taking
into custody Mayor Francisco Aising Adalim of Taft, that province, who
has been previously arrested by virtue by a warrant of arrest issued in
Criminal Case No. 10963.

If the report is true, it appears that your actuation is not in accord with the
provision of Section 3, Rule 113 of the Rules of Court, which mandates that
an arrested person be delivered to the nearest police station or jail.

Moreover, invoking Section 61 of RA 6975 as legal basis in taking custody of

the accused municipal mayor is misplaced. Said section merely speaks of the
power of supervision vested unto the provincial governor over provincial
jails. It does not, definitely, include the power to take in custody any person
in detention.

In view of the foregoing, you are hereby enjoined to conduct yourself within
the bounds of law and to immediately deliver Mayor Adalim to the provincial
jail in order to avoid legal complications.

Please be guided accordingly.

Very truly yours,

considering that Section 3(e) of R.A. No. 3019 punishes the giving by a public
officer of unwarranted benefits to a private party, does the fact that Mayor
Adalim was the recipient of such benefits take petitioners case beyond the
ambit of said law?

(SGD.)
We believe not.
JESUS I. INGENIERO
Assistant Secretary
Still, petitioner Ambil, Jr. insisted on his supposed authority as a provincial
jailer. Said petitioners usurpation of the court's authority, not to mention
his open and willful defiance to official advice in order to accommodate a
former political party mate,[41] betray his unmistakable bias and the evident
bad faith that attended his actions.
Likewise amply established beyond reasonable doubt is the third
element of the crime. As mentioned above, in order to hold a person liable
for violation of Section 3(e), R.A. No. 3019, it is required that the act
constituting the offense consist of either (1) causing undue injury to any
party, including the government, or (2) giving any private party any
unwarranted benefits, advantage or preference in the discharge by the
accused of his official, administrative or judicial functions.
In the case at hand, the Information specifically accused petitioners of giving
unwarranted benefits and advantage to Mayor Adalim, a public officer
charged with murder, by causing his release from prison and detaining him
instead at the house of petitioner Ambil, Jr. Petitioner Ambil, Jr. negates the
applicability of Section 3(e), R.A. No. 3019 in this case on two points. First,
Section 3(e) is not applicable to him allegedly because the last sentence
thereof provides that the provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses,
permits or other concessions and he is not such government officer or
employee. Second, the purported unwarranted benefit was accorded not to
a private party but to a public officer.
However, as regards his first contention, it appears that petitioner
Ambil, Jr. has obviously lost sight, if he is not altogether unaware, of our
ruling in Mejorada v. Sandiganbayan[42] where we held that a prosecution for
violation of Section 3(e) of the Anti-Graft Law will lie regardless of whether or
not the accused public officer is charged with the grant of licenses or
permits or other concessions. Following is an excerpt of what we said
in Mejorada,
Section 3 cited above enumerates in eleven subsections the corrupt
practices of any public officers (sic) declared unlawful. Its reference to any
public officer is without distinction or qualification and it specifies the acts
declared unlawful. We agree with the view adopted by the Solicitor General
that the last sentence of paragraph [Section 3] (e) is intended to make clear
the inclusion of officers and employees of officers (sic) or government
corporations which, under the ordinary concept of public officers may not
come within the term. It is a strained construction of the provision to read it
as applying exclusively to public officers charged with the duty of granting
licenses or permits or other concessions.[43] (Italics supplied.)
In the more recent case of Cruz v. Sandiganbayan,[44] we affirmed that a
prosecution for violation of said provision will lie regardless of whether the
accused public officer is charged with the grant of licenses or permits or
other concessions.[45]
Meanwhile, regarding petitioner Ambil, Jr.s second contention, Section
2(b) of R.A. No. 3019 defines a public officer to include 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. Evidently, Mayor Adalim is one. But

In drafting the Anti-Graft Law, the lawmakers opted to use private

party rather than private person to describe the recipient of the
unwarranted benefits, advantage or preference for a reason. The term
party is a technical word having a precise meaning in legal parlance[46] as
distinguished from person which, in general usage, refers to a human
being.[47] Thus, a private person simply pertains to one who is not a public
officer. While a private party is more comprehensive in scope to mean either
a private person or a public officer acting in a private capacity to protect his
personal interest.
In the present case, when petitioners transferred Mayor Adalim from
the provincial jail and detained him at petitioner Ambil, Jr.s residence, they
accorded such privilege to Adalim, not in his official capacity as a mayor, but
as a detainee charged with murder. Thus, for purposes of applying the
provisions of Section 3(e), R.A. No. 3019, Adalim was a private party.
Moreover, in order to be found guilty under the second mode, it suffices
that the accused has given unjustified favor or benefit to another in the
exercise of his official, administrative or judicial functions.[48] The word
unwarranted means lacking adequate or official support; unjustified;
unauthorized or without justification or adequate reason. Advantage
means a more favorable or improved position or condition; benefit, profit or
gain of any kind; benefit from some course of action. Preference signifies
priority or higher evaluation or desirability; choice or estimation above
another.[49]
Without a court order, petitioners transferred Adalim and detained him
in a place other than the provincial jail. The latter was housed in much more
comfortable quarters, provided better nourishment, was free to move about
the house and watch television. Petitioners readily extended these benefits
to Adalim on the mere representation of his lawyers that the mayors life
would be put in danger inside the provincial jail.
As the Sandiganbayan ruled, however, petitioners were unable to
establish the existence of any risk on Adalims safety. To be sure, the latter
would not be alone in having unfriendly company in lockup. Yet, even if we
treat Akyatans gesture of raising a closed fist at Adalim as a threat of
aggression, the same would still not constitute a special and compelling
reason to warrant Adalims detention outside the provincial jail. For one,
there were nipa huts within the perimeter fence of the jail which could have
been used to separate Adalim from the rest of the prisoners while the
isolation cell was undergoing repair. Anyhow, such repair could not have
exceeded the 85 days that Adalim stayed in petitioner Ambil, Jr.s
house. More importantly, even if Adalim could have proven the presence of
an imminent peril on his person to petitioners, a court order was still
indispensable for his transfer.
The foregoing, indeed, negates the application of the justifying
circumstances claimed by petitioners.
Specifically, petitioner Ambil, Jr. invokes the justifying circumstance of
fulfillment of duty or lawful exercise of right or office. Under paragraph 5,
Article 11 of the RPC, any person who acts in the fulfillment of a duty or in
the lawful exercise of a right or office does not incur any criminal liability. In
order for this justifying circumstance to apply, two requisites must be
satisfied: (1) the accused acted in the performance of a duty or in the lawful
exercise of a right or office; and (2) the injury caused or the offense
committed be the necessary consequence of the due performance of duty or

the lawful exercise of such right or office.[50] Both requisites are lacking in
petitioner Ambil, Jr.s case.
As we have earlier determined, petitioner Ambil, Jr. exceeded his
authority when he ordered the transfer and detention of Adalim at his
house. Needless to state, the resulting violation of the Anti-Graft Law did not
proceed from the due performance of his duty or lawful exercise of his office.
In like manner, petitioner Apelado, Sr. invokes the justifying
circumstance of obedience to an order issued for some lawful
purpose. Under paragraph 6, Article 11 of the RPC, any person who acts in
obedience to an order issued by a superior for some lawful purpose does not
incur any criminal liability. For this justifying circumstance to apply, the
following requisites must be present: (1) an order has been issued by a
superior; (2) such order must be for some lawful purpose; and (3) the means
used by the subordinate to carry out said order is lawful.[51] Only the first
requisite is present in this case.
While the order for Adalims transfer emanated from petitioner Ambil,
Jr., who was then Governor, neither said order nor the means employed by
petitioner Apelado, Sr. to carry it out was lawful. In his capacity as the
Provincial Jail Warden of Eastern Samar, petitioner Apelado, Sr. fetched
Mayor Adalim at the provincial jail and, unarmed with a court order,
transported him to the house of petitioner Ambil, Jr. This makes him liable
as a principal by direct participation under Article 17(1)[52] of the RPC.
An accepted badge of conspiracy is when the accused by their acts
aimed at the same object, one performing one part of and another
performing another so as to complete it with a view to the attainment of the
same object, and their acts although apparently independent were in fact
concerted and cooperative, indicating closeness of personal association,
concerted action and concurrence of sentiments.[53]
Conspiracy was sufficiently demonstrated by petitioner Apelado, Sr.s
willful cooperation in executing petitioner Ambil, Jr.s order to move Adalim
from jail, despite the absence of a court order. Petitioner Apelado, Sr., a law
graduate, cannot hide behind the cloak of ignorance of the law. The Rule
requiring a court order to transfer a person under detention by legal process
is elementary. Truth be told, even petitioner governor who is unschooled in
the intricacies of the law expressed reservations on his power to transfer
Adalim. All said, the concerted acts of petitioners Ambil, Jr. and Apelado, Sr.
resulting in the violation charged, makes them equally responsible as
conspirators.
As regards the penalty imposed upon petitioners, Section 9(a) of R.A.
No. 3019 punishes a public officer or a private person who violates Section 3
of R.A. No. 3019 with imprisonment for not less than six (6) years and one (1)
month to not more than fifteen (15) years and perpetual disqualification
from public office. Under Section 1 of the Indeterminate Sentence Law or
Act No. 4103, as amended by Act No. 4225, if the offense is punished by a
special law, the court shall sentence the accused to an indeterminate
sentence, the maximum term of which shall not exceed the maximum fixed
by said law and the minimum shall not be less than the minimum term
prescribed by the same.
Thus, the penalty imposed by the Sandiganbayan upon petitioner Ambil,
Jr. of imprisonment for nine (9) years, eight (8) months and one (1) day to
twelve (12) years and four (4) months is in accord with law. As a co-principal
without the benefit of an incomplete justifying circumstance to his credit,
petitioner Apelado, Sr. shall suffer the same penalty.
WHEREFORE, the consolidated petitions are DENIED. The Decision of
the Sandiganbayan in Criminal Case No. 25892 is AFFIRMED WITH
MODIFICATION. We find petitioners Ruperto A. Ambil, Jr. and Alexandrino R.
Apelado, Sr. guilty beyond reasonable doubt of violating Section 3(e), R.A.

No. 3019. Petitioner Alexandrino R. Apelado, Sr. is, likewise, sentenced to an

indeterminate penalty of imprisonment for nine (9) years, eight (8) months
and one (1) day to twelve (12) years and four (4) months.
With costs against the petitioners.
SO ORDERED.
G.R. No. 173121

April 3, 2013

FRANKLlN
ALEJANDRO, Petitioner,
vs.
OFFICE OF THE OMBUDSMAN FACT-FINDING AND INTELLIGENCE BUREAU,
represented by Atty. Maria Olivia Elena A. Roxas, Respondent.
DECISION
BRION, J.:
We resolve the petition for review on certiorari,1 filed by Franklin Alejanctro
(petitioneJ), assailing the February 21, 2006 decision2 and the June 15, 2006
resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 88544. The CA
dismissed for prematurity the petitioner's appeal on the August 20, 2004
decision4 of the Office of the Deputy Ombudsman in OMB-C-A-03-0310-I
finding him administratively liable for grave misconduct.
The Factual Antecedents
On May 4, 2000, the Head of the Non-Revenue Water Reduction Department
of the Manila Water Services, Inc. (MWSI) received a report from an
Inspectorate and Special Projects team that the Mico Car Wash (MICO),
owned by Alfredo Rap Alejandro, has been illegally opening an MWSI fire
hydrant and using it to operate its car-wash business in Binondo, Manila.5
On May 10, 2000, the MWSI, in coordination with the Philippine National
Police Criminal Investigation and Detection Group (PNP-CIDG), conducted an
anti-water pilferage operation against MICO.6
During the anti-water pilferage operation, the PNP-CIDG discovered that
MICOs car-wash boys indeed had been illegally getting water from an MWSI
fire hydrant. The PNP-CIDG arrested the car-wash boys and confiscated the
containers used in getting water. At this point, the petitioner, Alfredos
father and the Barangay Chairman or punong barangay of Barangay 293,
Zone 28, Binondo, Manila, interfered with the PNP-CIDGs operation by
ordering several men to unload the confiscated containers. This intervention
caused further commotion and created an opportunity for the apprehended
car-wash boys to escape.7
On August 5, 2003, the respondent Office of the Ombudsman Fact-Finding
and Intelligence Bureau, after conducting its initial investigation, filed with
the Office of the Overall Deputy Ombudsman an administrative complaint
against the petitioner for his blatant refusal to recognize a joint legitimate
police activity, and for his unwarranted intervention.8
In its decision9 dated August 20, 2004, the Office of the Deputy Ombudsman
found the petitioner guilty of grave misconduct and ordered his dismissal
from the service. The Deputy Ombudsman ruled that the petitioner cannot
overextend his authority as Barangay Chairman and induce other people to
disrespect proper authorities. The Deputy Ombudsman also added that the
petitioner had tolerated the illegal acts of MICOs car-wash boys.10
The petitioner filed a motion for reconsideration which the Office of the
Deputy Ombudsman denied in its order11 of November 2, 2004.

The petitioner appealed to the CA via a petition for review under Rule 43 of
the Rules of Court. In its decision12 dated February 21, 2006, the CA
dismissed the petition for premature filing. The CA ruled that the petitioner
failed to exhaust proper administrative remedies because he did not appeal
the Deputy Ombudsmans decision to the Ombudsman.
The petitioner moved for the reconsideration of the CA ruling. On June 15,
2006, the CA denied the motion.13

We disagree with the CAs application of the doctrine of exhaustion of

administrative remedies which states that when there is "a procedure for
administrative review, x x x appeal, or reconsideration, the courts x x x will
not entertain a case unless the available administrative remedies have been
resorted to and the appropriate authorities have been given an opportunity
to act and correct the errors committed in the administrative forum."17
Section 7, Rule III of Administrative Order No. 07, dated April 10, 1990,
provides that:

The Petition
The petitioner posits that the CA erred in dismissing his petition outright
without considering Rule 43 of the Rules of Court and Administrative Order
No. 07 (otherwise known as the Rules of Procedure of the Office of the
Ombudsman),14 on the belief that the filing of a motion for reconsideration
of the decision of the Office of the Overall Deputy Ombudsman can already
be considered as an exhaustion of administrative remedies. The petitioner
further argues that the Office of the Ombudsman has no jurisdiction to order
his dismissal from the service since under Republic Act No. (RA) 7160
(otherwise known as the Local Government Code of 1991), an elective local
official may be removed from office only by the order of a proper court.
Finally, he posits that the penalty of dismissal from the service is not
warranted under the available facts.
The Office of the Deputy Ombudsman, through the Office of the Solicitor
General, pointed out in its Comment15 that the petitioner failed to exhaust
administrative remedies since he did not appeal the decision of the Deputy
Ombudsman to the Ombudsman. The Office of the Deputy Ombudsman
maintained that under RA 677016 (The Ombudsman Act of 1989), the Office
of the Ombudsman has disciplinary authority over all elective and appointive
officials. It also asserted that sufficient evidence exists to justify the
petitioners dismissal from the service.

Section 7. FINALITY OF DECISION. Where the respondent is absolved of the

charge and in case of conviction where the penalty imposed is public censure
or reprimand, suspension of not more than one (1) month, or a fine
equivalent to one (1) month salary, the decision shall be final and
unappealable. In all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the respondent, unless a
motion for reconsideration or petition for certiorari shall have been filed by
him as prescribed in Section 27 of RA 6770. [italics supplied; emphasis and
underscore ours]
Administrative Order No. 07 did not provide for another appeal from the
decision of the Deputy Ombudsman to the Ombudsman. It simply requires
that a motion for reconsideration or a petition for certiorari may be filed in
all other cases where the penalty imposed is not one involving public censure
or reprimand, suspension of not more than one (1) month, or a fine
equivalent to one (1) month salary. This post-judgment remedy is merely an
opportunity for the Office of the Deputy Ombudsman, or the Office of the
Ombudsman, to correct itself in certain cases. To our mind, the petitioner
has fully exhausted all administrative remedies when he filed his motion for
reconsideration on the decision of the Deputy Ombudsman. There is no
further need to review the case at the administrative level since the Deputy
Ombudsman has already acted on the case and he was acting for and in
behalf of the Office of the Ombudsman.

As framed by the parties, the case poses the following issues:

I.
WHETHER THE PRINCIPLE OF EXHAUSTION OF ADMINISTRATIVE REMEDIES
REQUIRES A REQUEST FOR RECONSIDERATION FROM THE OFFICE OF THE
DEPUTY OMBUDSMAN TO THE OMBUDSMAN FOR THE PURPOSE OF A RULE
43 REVIEW.
II.
WHETHER THE OFFICE OF THE OMBUDSMAN HAS JURISDICTION OVER
ELECTIVE OFFICIALS AND HAS THE POWER TO ORDER THEIR DISMISSAL
FROM THE SERVICE.
III.
WHETHER PETITIONERS ACT CONSTITUTES GRAVE MISCONDUCT TO
WARRANT HIS DISMISSAL.
The Courts Ruling
We deny the petition for lack of merit.
Preliminary Issues
The CA committed no reversible error in affirming the findings and
conclusions of the Deputy Ombudsman.
No further need exists to exhaust administrative remedies from the decision
of the Deputy Ombudsman because he was acting in behalf of the
Ombudsman

The Ombudsman has concurrent jurisdiction over administrative cases

which are within the jurisdiction of the regular courts or administrative
agencies
The Office of the Ombudsman was created by no less than the
Constitution.18 It is tasked to exercise disciplinary authority over all elective
and appointive officials, save only for impeachable officers. While Section 21
of The Ombudsman Act19and the Local Government Code both provide for
the procedure to discipline elective officials, the seeming conflicts between
the two laws have been resolved in cases decided by this Court.20
In Hagad v. Gozo-Dadole,21 we pointed out that "there is nothing in the Local
Government Code to indicate that it has repealed, whether expressly or
impliedly, the pertinent provisions of the Ombudsman Act. The two statutes
on the specific matter in question are not so inconsistent x x x as to compel
us to only uphold one and strike down the other." The two laws may be
reconciled by understanding the primary jurisdiction and concurrent
jurisdiction of the Office of the Ombudsman.
The Ombudsman has primary jurisdiction to investigate any act or omission
of a public officer or employee who is under the jurisdiction of the
Sandiganbayan. RA 6770 provides:
Section 15. Powers, Functions and Duties. The Office of the Ombudsman
shall have the following powers, functions and duties:
(1) Investigate and prosecute on its own or on complaint by any person, any
act or omission of any public officer or employee, office or agency, when
such act or omission appears to be illegal, unjust, improper or inefficient. It
has primary jurisdiction over cases cognizable by the Sandiganbayan and, in
the exercise of this primary jurisdiction, it may take over, at any stage, from

any investigatory agency of Government, the investigation of such cases.

[italics supplied; emphasis and underscore ours]
The Sandiganbayans jurisdiction extends only to public officials occupying
positions corresponding to salary grade 27 and higher.22
Consequently, as we held in Office of the Ombudsman v. Rodriguez,23 any act
or omission of a public officer or employee occupying a salary grade lower
than 27 is within the concurrent jurisdiction of the Ombudsman and of the
regular courts or other investigative agencies.24
In administrative cases involving the concurrent jurisdiction of two or more
disciplining authorities, the body where the complaint is filed first, and which
opts to take cognizance of the case, acquires jurisdiction to the exclusion of
other tribunals exercising concurrent jurisdiction.25 In this case, the
petitioner is a Barangay Chairman, occupying a position corresponding to
salary grade 14.26 Under RA 7160, the sangguniang panlungsod or
sangguniang bayan has disciplinary authority over any elective barangay
official, as follows:
Section 61. Form and Filing of Administrative Complaints. A verified
complaint against any erring local elective official shall be prepared as
follows:
xxxx
(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. [italics supplied]
Since the complaint against the petitioner was initially filed with the Office
of the Ombudsman, the Ombudsman's exercise of jurisdiction is to the
exclusion of the sangguniang bayan whose exercise of jurisdiction
is concurrent.
The Ombudsman has the power to impose administrative sanctions
Section 15 of RA 677027 reveals the manifest intent of the lawmakers to give
the Office of the Ombudsman fulladministrative disciplinary authority. This
provision covers the entire range of administrative activities attendant to
administrative adjudication, including, among others, the authority to receive
complaints, conduct investigations, hold hearings in accordance with its rules
of procedure, summon witnesses and require the production of documents,
place under preventive suspension public officers and employees pending an
investigation, determine the appropriate penalty imposable on erring public
officers or employees as warranted by the evidence, and, necessarily, impose
the corresponding penalty.28
These powers unmistakably grant the Office of the Ombudsman the power
to directly impose administrative sanctions; its power is not merely
recommendatory. We held in Office of the Ombudsman v. Apolonio29 that:
It is likewise apparent that under RA 6770, the lawmakers intended to
provide the Office of the Ombudsman with sufficient muscle to ensure that it
can effectively carry out its mandate as protector of the people against inept
and corrupt government officers and employees. The Office was granted the
power to punish for contempt in accordance with the Rules of Court. It was
given disciplinary authority over all elective and appointive officials of the
government and its subdivisions, instrumentalities and agencies (with the
exception only of impeachable officers, members of Congress and the
Judiciary). Also, it can preventively suspend any officer under its authority
pending an investigation when the case so warrants.30 (italics supplied;
emphasis and underscore ours)
Substantive Issue

The petitioner is liable for grave misconduct

At the outset, we point out that the maintenance of peace and order is a
function of both the police and the Barangay Chairman, but crime prevention
is largely a police matter. At the time when the police officers were hauling
the confiscated equipment, they were creating a commotion. As Barangay
Chairman, the petitioner was clearly in the performance of his official duty
when he interfered. Under Section 389(b)(3) of RA 7160, the law provides
that a punong barangay must "maintain public order in the barangay and, in
pursuance thereof, assist the city or municipal mayor and the sanggunian
members in the performance of their duties and functions." The PNP-CIDGs
anti-water pilferage operation against the car-wash boys was affecting the
peace and order of the community and he was duty-bound to investigate and
try to maintain public order.31
After the petitioner introduced himself and inquired about the operation, the
police officers immediately showed their identifications and explained to him
that they were conducting an anti-water pilferage operation. However,
instead of assisting the PNP-CIDG, he actually ordered several bystanders to
defy the PNP-CIDGs whole operation. The petitioners act stirred further
commotion that unfortunately led to the escape of the apprehended carwash boys.32
The petitioner, as Barangay Chairman, is tasked to enforce all laws and
ordinances which are applicable within the barangay, in the same manner
that the police is bound to maintain peace and order within the community.
While the petitioner has general charge of the affairs in the barangay, the
maintenance of peace and order is largely a police matter, with police
authority being predominant33 especially when the police has began to act on
an enforcement matter.34 The maintenance of peace and order in the
community is a general function undertaken by the punong barangay. It is a
task expressly conferred to the punong barangay under Section 389(b)(3) of
RA 7160.35 On the other hand, the maintenance of peace and order carries
both general and specific functions on the part of the police. Section 24 of RA
6975 (otherwise known as "the Department of the Interior and Local
Government Act of 1990"),36as amended,37 enumerates the powers and
functions of the police. In addition to the maintenance of peace and order,
the police has the authority to "investigate and prevent crimes, effect the
arrest of criminal offenders, bring offenders to justice and assist in their
prosecution," and are charged with the enforcement of "laws and ordinances
relative to the protection of lives and properties."38 Examined side by side,
police authority is superior to the punong barangays authority in a situation
where the maintenance of peace and order has metamorphosed into crime
prevention and the arrest of criminal offenders.
In this case, a criminal act was actually taking place and the situation was
already beyond the general maintenance of peace and order. The police was,
at that point, under the obligation to prevent the commission of a crime and
to effect the arrest, as it actually did, of criminal offenders.1wphi1
From another perspective, the peace and order function of the punong
barangay must also be related to his function of assisting local executive
officials (i.e., the city mayor), under Section 389(b), Chapter III of the Local
Government Code.39Local executive officials have the power to employ and
deploy police for the maintenance of peace and order, the prevention of
crimes and the arrest of criminal offenders.40 Accordingly, in the
maintenance of peace and order, the petitioner is bound, at the very least, to
respect the PNP-CIDGs authority even if he is not in the direct position to
give aid. By interfering with a legitimate police operation, he effectively
interfered with this hierarchy of authority.1wphi1 Thus, we are left with no
other conclusion other than to rule that Alejandro is liable for misconduct in
the performance of his duties.

Misconduct is considered grave if accompanied by corruption, a clear intent

to violate the law, or a flagrant disregard of established rules, which must all
be supported by substantial evidence.41 If the misconduct does not involve
any of the additional elements to qualify the misconduct as grave, the person
charged may only be held liable for simple misconduct. "Grave misconduct
necessarily includes the lesser offense of simple misconduct.''42
Sufficient records exist to justify the imposition of a higher penalty against
the petitioner. His open interference in a legitimate police activity. and
defiance of the police's authority only show his clear i1itent to violate the
law; in fact, he reneged on his first obligation as the grassroot official tasked
at the first level with the enforcement of the law. The photographs, taken
together with the investigation report of the Police Superintendent and the
testimonies of the witnesses, even lead to conclusions beyond interference
and defiance; the petitioner himself could have been involved in corrupt
activities, although we cannot make this conclusive finding at this point.43 We
make this observation though as his son owns MICO whose car-wash boys
were engaged in water pilferage. What we can conclusively confirm is that
the petitioner violated the law by directly interfering with a legitimate police
activity where his own son appeared to be involved. This act qualifies the
misconduct as grave. Section 52(A)(3), Rule IV of the Revised Uniform Rules
on Administrative Cases in the Civil Service provides that the penalty for
grave misconduct is dismissal from the service.
WHEREFORE, in view of the foregoing, we hereby DENY the petition for lack
of merit, and AFFIRM the decision of the Court of Appeals in CA-G.R. SP No.
88544.

In acquitting the petitioners, the Court agrees with the SolicitorGeneral 1 who, in 80 pages of his consolidated manifestation and motion,
recommended that Messrs. Arias and Data be acquitted of the crime
charged, with costs de oficio. Earlier, Tanodbayan Special Prosecutor
Eleuterio F. Guerrero had also recommended the dropping of Arias from the
information before it was filed.
There is no question about the need to ferret out and convict public officers
whose acts have made the bidding out and construction of public works and
highways synonymous with graft or criminal inefficiency in the public eye.
However, the remedy is not to indict and jail every person who may have
ordered the project, who signed a document incident to its construction, or
who had a hand somewhere in its implementation. The careless use of the
conspiracy theory may sweep into jail even innocent persons who may have
been made unwitting tools by the criminal minds who engineered the
defraudation.
Under the Sandiganbayan's decision in this case, a department secretary,
bureau chief, commission chairman, agency head, and all chief auditors
would be equally culpable for every crime arising from disbursements which
they have approved. The department head or chief auditor would be guilty of
conspiracy simply because he was the last of a long line of officials and
employees who acted upon or affixed their signatures to a transaction. Guilt
must be premised on a more knowing, personal, and deliberate participation
of each individual who is charged with others as part of a conspiracy.
The records show that the six accused persons were convicted in connection
with the overpricing of land purchased by the Bureau of Public Works for the
Mangahan Floodway Project. The project was intended to ease the perennial
floods in Marikina and Pasig, Metro Manila.

SO ORDERED.
The accused were prosecuted because 19,004 square meters of "riceland" in
Rosario, Pasig which had been assessed at P5.00 a square meter in 1973
were sold as residential land" in 1978 for P80.00 a square meter. The land for
the floodway was acquired through negotiated purchase,

G.R. No. 81563 December 19, 1989

AMADO
C.
vs.
THE SANDIGANBAYAN, respondent.

ARIAS, petitioner,
We agree with the Solicitor-General that the assessor's tax valuation of P5.00
per square meter of land in Rosario, Pasig, Metro Manila is completely
unrealistic and arbitrary as the basis for conviction.

G.R. No. 82512 December 19, 1989

Herein lies the first error of the trial court.
CRESENCIO
D.
vs.
THE SANDIGANBAYAN, respondent.

DATA, petitioner,

Paredes Law Office for petitioner.

GUTIERREZ, JR., J.:

The facts of this case are stated in the dissenting opinion of Justice Carolina
C. Grio-Aquino which follows this majority opinion. The dissent substantially
reiterates the draft report prepared by Justice Grio-Aquino as a working
basis for the Court's deliberations when the case was being discussed and for
the subsequent votes of concurrence or dissent on the action proposed by
the report.
There is no dispute over the events which transpired. The division of the
Court is on the conclusions to be drawn from those events and the facts
insofar as the two petitioners are concerned. The majority is of the view that
Messrs. Arias and Data should be acquitted on grounds of reasonable doubt.
The Court feels that the quantum of evidence needed to convict petitioners
Arias and Data beyond reasonable doubt, as co-conspirators in the
conspiracy to cause undue injury to the Government through the irregular
disbursement and expenditure of public funds, has not been satisfied.

It must be stressed that the petitioners are not charged with conspiracy in
the falsification of public documents or preparation of spurious supporting
papers. The charge is causing undue injury to the Government and giving a
private party unwarranted benefits through manifest partiality, evident bad
faith, or inexcusable negligence.
The alleged undue injury in a nutshell is the Government purchase of land in
Pasig, Rizal for P80.00 a square meter instead of the P5.00 value per square
meter appearing in the tax declarations and fixed by the municipal assessor,
not by the landowner.
The Sandiganbayan, without any clear factual basis for doing so has assumed
that the P5.00 per square meter value fixed by the assessor in the tax
declarations was the correct market value of the Mangahan property and if
the Government purchased the land for P80.00 a square meter, it follows
that it must have suffered undue injury.
The Solicitor General explains why this conclusion is erroneous:
1. No undue injury was caused to the Government
a. The P80.00 per square rneter
acquisition cost is just fair and
reasonable.

It bears stress that the Agleham property was acquired

through negotiated purchase. It was, therefor, nothing
more than an ordinary contract of sale where the
purchase price had to be arrived at by agreement
between the parties and could never be left to the
discretion of one of the contracting parties (Article
1473, New Civil Code). For it is the essence of a
contract of sale that there must be a meeting of the
minds between the seller and the buyer upon the thing
which is the object of the contract and upon the price
(Article 1475, New Civil Code). Necessarily, the parties
have to negotiate the reasonableness of the price,
taking into consideration such other factors as
location, potentials, surroundings and capabilities.
After taking the foregoing premises into consideration,
the parties have, thus, arrived at the amount of P80.00
per square meter as the fair and reasonable price for
the Agleham property.
It bears stress that the prosecution failed to adduce
evidence to prove that the true and fair market value
in 1978 of the Agleham property was indeed P5.00 per
square meter only as stated by the assessor in the tax
declaration (Exhibit W). On the contrary, the
prosecution's principal witness Pedro Ocol, the
Assistant Municipal Assessor of Pasig, admitted that
the purchase price of P80.00 per square meter paid for
the Agleham property as stated in the Deed of Sale
(Exhibit G) is reasonable (tsn, August 19,1983, p. 20)
and fair (Ibid, p. 76); that 'the value of lands within the
town of Pasig ranges from P80.00 to P500.00' (Ibid, p.
21); that the Agleham property is "around 300 meters"
from Ortigas Avenue, "adjacent to the existing
Leongson [Liamson] Subdivision ... and near Eastland
Garment Building" (Ibid, pp. 12-13); that said property
is surrounded by factories, commercial establishments
and residential subdivisions (Ibid, pp. 73-74); that the
P5.00 per square meter assessed valuation of the
Agleham property appearing on the tax declaration
(Exhibit W) was based on actual use only (lbid, pp. 2627), it being the uniform rate for all ricefields in Pasig
irrespective of their locations (Ibid, pp. 72-74) and did
not take into account the existence of many factories
and subdivisions in the area (Ibid., pp. 25-27, 72-74),
and that the assessed value is different from and
always lower than the actual market value (Ibid, pp.
22-23). (At pp. 256-259, Rollo)
A negotiated purchase may usually entail a higher buying price than one
arrived at in the course of expropriation proceedings.
In Export Processing Zone Authority v. Dulay (149 SCRA 305, 310 [1987]) we
struck down the martial law decree that pegged just compensation in
eminent domain cases to the assessed value stated by a landowner in his tax
declaration or fixed by the municipal assessor, whichever is lower. Other
factors must be considered. These factors must be determined by a court of
justice and not by municipal employees.
In the instant case, the assessor's low evaluation, in the fixing of which the
landowner had no participation, was used for a purpose infinitely more
weighty than mere expropriation of land. It forms the basis for a criminal
conviction.
The Court is not prepared to say that P80.00 to P500.00 a square meter for
land in Pasig in 1978 would be a fair evaluation. The value must be
determined in eminent domain proceedings by a competent court. We are
certain, however, that it cannot be P5.00 a square meter. Hence, the
decision, insofar as it says that the "correct" valuation is P5.00 per square
meter and on that basis convicted that petitioners of causing undue injury,
damage, and prejudice to the Government because of gross overpricing, is
grounded on shaky foundations.

There can be no overpricing for purposes of a criminal conviction where no

proof adduced during orderly proceedings has been presented and accepted.
The Court's decision, however, is based on a more basic reason. Herein lies
the principal error of the respondent court.
We would be setting a bad precedent if a head of office plagued by all too
common problems-dishonest or negligent subordinates, overwork, multiple
assignments or positions, or plain incompetence is suddenly swept into a
conspiracy conviction simply because he did not personally examine every
single detail, painstakingly trace every step from inception, and investigate
the motives of every person involved in a transaction before affixing, his
signature as the final approving authority.
There appears to be no question from the records that documents used in
the negotiated sale were falsified. A key tax declaration had a typewritten
number instead of being machine-numbered. The registration stampmark
was antedated and the land reclassified as residential instead of ricefield. But
were the petitioners guilty of conspiracy in the falsification and the
subsequent charge of causing undue in injury and damage to the
Government?
We can, in retrospect, argue that Arias should have probed records,
inspected documents, received procedures, and questioned persons. It is
doubtful if any auditor for a fairly sized office could personally do all these
things in all vouchers presented for his signature. The Court would be asking
for the impossible. All heads of offices have to rely to a reasonable extent 'on
their subordinates and on the good faith of those prepare bids, purchase
supplies, or enter into negotiations. If a department secretary entertains
important visitors, the auditor is not ordinarily expected to call the
restaurant about the amount of the bill, question each guest whether he was
present at the luncheon, inquire whether the correct amount of food was
served and otherwise personally look into the reimbursement voucher's
accuracy, propriety, and sufficiency. There has to be some added reason why
he should examine each voucher in such detail. Any executive head of
evensmall government agencies or commissions can attest to the volume of
papers that must be signed. There are hundreds of document , letters and
supporting paper that routinely pass through his hands. The number in
bigger offices or departments is even more appalling.
There should be other grounds than the mere signature or approval
appearing on a voucher to sustain a conspiracy charge and conviction.
Was petitioner Arias part of the planning, preparation, and perpetration of
the alleged conspiracy to defraud the government?
Arias joined the Pasig office on July 19, 1978. The negotiations for the
purchase of the property started in 1977. The deed of sale was executed on
April 20, 1978. Title was transferred to the Republic on June 8, 1978. In other
words, the transaction had already been consummated before his arrival.
The pre-audit, incident to payment of the purchase, was conducted in the
first week of October, 1978. Arias points out that apart from his signature
linking him to the signature on the voucher, there is no evidence transaction.
On the contrary, the other co-accused testified they did not know him
personally and none approached him to follow up the payment.
Should the big amount of P1,520,320.00 have caused him to investigate .
gate the smallest detains of the transaction?
Yes, if the land was really worth only P5.00 a square meter. However, if land
in Pasig was already worth P80.00 a square meter at the time, no warning
bell of intuition would have sounded an inner alarm. Land along Ortigas
Avenue on the way to Pasig is now worth P20,000.00 to P30,000.00 a square
meter. The falsification of the tax declaration by changing "riceland" to
"residential' was done before Arias was assigned to Pasig besides, there is no
such thing as "riceland" in inner Metro Manila. Some lots in outlying or easily
flooded areas may still be planted to rice or kangkong but this is only until
the place is dedicated to its real purpose which is commercial, industrial, or

residential. If the Sandiganbayan is going to send somebody to jail for six

years, the decision should be based on firmer foundation.

A Yes, Your Honor. The only thing

we do is to determine whether
there is an appropriation set
aside to cover the said
specification. As of the price it is
under the sole authority of the
proper officer making the sale.

The Sandiganbayan asked why Arias kept the documents from October, 1978
to June 23, 1982. Arias explained that the rules of the Commission on Audit
require auditors to keep these d documents and under no circumstance to
relinquish custody to other persons. Arias was auditor of the Bureau of Public
Works in Pasig up to September 1, 1981. The seven months delay in the
formal turnover of custody to the new auditor was explained by prosecution
witness Julito Pesayco, who succeeded him as auditor and who took over the
custody of records in that office.

Q My point is this. Did you not

consider it unusual for a piece of
property to be bought by the
government; the sale was
consummated; the title was
issued in favor of the
government without the price
being paid first to the seller?

The main reason for the judgment of conviction, for the finding of undue
injury and damage to the Government is the alleged gross overprice for the
land purchased for the floodway project. Assuming that P80.00 is indeed
exorbitant, petitioner Arias cites his testimony as follows:

A No, Your Honor. In all cases

usually, payments made by the
government comes later than
the transfer.

Q In conducting the pre-audit,

did
you
determine
the
reasonableness of the price of
the property?

Q That is usual procedure utilized

in road right of way transaction?

A In this case, the price has been

stated, the transaction had been
consummated
and
the
corresponding
Transfer
Certificate of little had been
issued and transferred to the
government of the Philippines.
The auditors have no more
leeway to return the papers and
then question the purchase
price.

A Yes, Your Honor. (TSN, p. 18,

April 27,1987).
Q And of course as auditor,
'watch-dog' of the government
there is also that function you
are also called upon by going
over the papers . . . (TSN, page
22, April 27,1987). I ... vouchers
called upon to determine
whether there is any irregularity
as at all in this particular
transaction, is it not?

Q Is it not a procedure in your

office that before payment is
given by the government to
private individuals there should
be a pre-audit of the papers and
the corresponding checks issued
to the vendor?

A Yes, Ma'am.
Q And that was in fact the
reason why you scrutinized also,
not only the tax declaration but
also the certification by Mr. Jose
and Mr. Cruz?

A Correct, Your Honor, but it

depends on the kind of
transaction there is.
Q Yes, but in this particular case,
the papers were transferred to
the government without paying
the price Did you not consider
that rather odd or unusual?
(TSN, page 17, April 27,1987).

A As what do you mean of the

certification, ma'am?
Q Certification of Mr. Jose and
Mr. Cruz in relation to PD No.
296, A They are not required
documents that an auditor must
see. (TSN, page 23, April
27,1987).

A No, Your Honor.

Q Why not?
A Because in the Deed of Sale as
being noted there, there is a
condition that no payments will
be
made
unless
the
corresponding title in the
payment of the Republic is
committed is made.
Q In this case you said that the
title is already in the name of the
government?

and continuing:
A ... The questioning of the
purchase price is now beyond
the authority of the auditor
because it is inasmuch as the
amount involved is beyond his
counter-signing authority. (TSN,
page 35, April 27, 1987). (At pp.
15-16, Petition. Underlinings
supplied by petitioner)

The Solicitor General summarizes the participation of petitioner Data as

follows:
As regards petitioner Data's alleged participation, the
evidence on record shows that as the then District
Engineer of the Pasig Engineering District he created a
committee, headed by Engr. Priscillo Fernando with
Ricardo Asuncion, Alfonso Mendoza, Ladislao Cruz,
Pedro Hucom and Carlos Jose, all employees of the
district office, as members, specifically to handle the
Mangahan Floodway Project, gather and verify
documents, conduct surveys, negotiate with the
owners for the sale of their lots, process claims and
prepare the necessary documents; he did not take any
direct and active part in the acquisition of land for the
Mangahan floodway; it was the committee which
determined the authenticity of the documents
presented to them for processing and on the basis
thereof prepared the corresponding deed of sale;
thereafter, the committee submitted the deed of sale
together with the supporting documents to petitioner
Data for signing; on the basis of the supporting
certified documents which appeared regular and
complete on their face, petitioner Data, as head of the
office and the signing authority at that level, merely
signed but did not approve the deed of sale (Exhibit G)
as the approval thereof was the prerogative of the
Secretary of Public Works; he thereafter transmitted
the signed deed of sale with its supporting documents
to Director Anolin of the Bureau of Public Works who
in turn recommended approval thereof by the
Secretary of Public Works; the deed of sale was
approved by the Asst. Secretary of Public Works after a
review and re-examination thereof at that level; after
the approval of the deed of sale by the higher
authorities the covering voucher for payment thereof
was prepared which petitioner Data signed; petitioner
Data did not know Gutierrez and had never met her
during the processing and payment of her claims (tsn,
February 26, 1987, pp. 10-14, 16-24, 31-32). (At pp.
267-268, Rollo.)
On the alleged conspiracy, the Solicitor General argues:
It is respectfully submitted that the prosecution
likewise has not shown any positive and convincing
evidence of conspiracy between the petitioners and
their co-accused. There was no direct finding of
conspiracy. Respondent Court's inference on the
alleged existence of conspiracy merely upon the
purported 'pre-assigned roles (of the accused) in the
commission of the (alleged) illegal acts in question is
not supported by any evidence on record. Nowhere in
the seventy- eight (78) page Decision was there any
specific allusion to some or even one instance which
would link either petitioner Arias or Data to their coaccused in the planning, preparation and/or
perpetration, if any, of the purported fraud and
falsifications alleged in the information That
petitioners Data and Arias happened to be officials of
the Pasig District Engineering Office who signed the
deed of sale and passed on pre-audit the general
voucher covering the subject sale, respectively, does
hot raise any presumption or inference, that they were
part of the alleged plan to defraud the Government, as
indeed there was none. It should be remembered that,
as aboveshown, there was no undue injury caused to
the Government as the negotiated purchase of the
Agleham property was made at the fair and reasonable
price of P80.00 per square meter.

That there were erasures and superimpositions of the

words and figures of the purchase price in the deed of
sale from P1,546,240.00 to P1,520,320.00 does not
prove conspiracy. It may be noted that there was a
reduction in the affected area from the estimated
19,328 square meters to 19,004 square meters as
approved by the Land Registration Commission, which
resulted in the corresponding reduction in the
purchase price from P1,546,240.00 to Pl,520,320.00.
The erasures in the deed of sale were simple
corrections that even benefited the Government.
Moreover, contrary to the respondent Court's
suspicion, there was nothing irregular in the use of the
unapproved survey plan/technical description in the
deed of sale because the approval of the survey plan/
technical description was not a prerequisite to the
approval of the deed of sale. What is important is that
before any payment is made by the Government under
the deed of sale the title of the seller must have
already been cancelled and another one issued to the
Government incorporating therein the technical
description as approved by the Land Registration
Commission, as what obtained in the instant case. (At
pp. 273-275, Rollo)
We agree with the counsel for the People. There is no adequate evidence to
establish the guilt of the petitioners, Amado C. Arias and Cresencio D. Data,
beyond reasonable doubt. The inadequate evidence on record is not
sufficient to sustain a conviction.
WHEREFORE, the questioned decision of the Sandiganbayan insofar as it
convicts and sentences petitioners Amado C. Arias and Cresencio D. Data is
hereby SET ASIDE. Petitioners Arias and Data are acquitted on grounds of
reasonable doubt. No costs.
SO ORDERED.
Fernan, C.J., Narvasa, Melencio-Herrera, Cruz, Paras, Gancayco, Bidin, Cortes
and Medialdea, JJ., concur.
Separate Opinions

GRIO-AQUINO, J., dissenting:

The lone issue in these consolidated petitions for review is whether the
Sandiganbayan committed a reversible error in convicting the petitioners,
Amado C. Arias and Cresencio D. Data, of having violated Section 3,
paragraph (e), of the Anti Graft and Corrupt Practices Act, in connection with
the scandalous overpricing of land purchased by the Government as right of
way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent
provision of the Anti-Graft Law reads as follows:
SEC. 3. Corrupt Practices of Public Officers-In addition
to acts or omissions of public officers already penalized
by existing law. the following shall constitute corrupt
practices of any public officer and are hereby declared
to be unlawful:
xxxxxxxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith

or gross inexcusable negligence. This provision shall

apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
The amended information against them, to which they pleaded not guilty,
alleged:
That on or about the period covering April, 1978 to
October 1978, in Rosario, Pasig, Metro Manila,
Philippines, and with the jurisdiction of this Honorable
Court, accused Cresencio D. Data, being then the
district Engineer of the province of Rizal, Ministry of
Public Works, and as such, headed and supervised the
acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at
Sitio Mangahan, Rosario, Pasig, Metro Manila;
accused Priscillo G. Fernando, then the Supervising
Engineer of the Office of the District Engineer of Rizal,
Ministry of Public Works who acted as assistant of
accused Cresencio D. Data in the Mangahan Floodway
Project; accused Ladislao G. Cruz, then the Senior
Engineer of the Office of the District Engineer of Rizal,
Ministry of Public Works, who was charged with the
acquisition of lots needed for the Mangahan Floodway
Project; accused Carlos L. Jose then the Instrumentman
of the office of the District Engineer of Rizal, Ministry
of Public Works who acted as the surveyor of the
Mangahan Floodway Project; accused Claudio H.
Arcaya, then the Administrative Officer I of the Rizal
District Engineer's Office, Ministry of Public Works who
passed upon all papers and documents pertaining to
private lands acquired by the Government for the
Mangahan Floodway Project; and accused Amado C.
Arias, then the Auditor of Rizal Engineering District,
Pasig, Metro Manila, who passed upon and approved
in audit the acquisition as well as the payment of lands
needed for the Mangahan Floodway Project all taking
advantage of their public and official positions, and
conspiring, confederating and confabulating with
accused Natividad C. Gutierrez, the attorney-in-fact of
Benjamin Agleham, who is the registered owner of a
parcel of land situated at Rosario, Pasig, Metro Manila
and covered by Original Certificate of Title No. 0097,
with accused Ladislao G. Cruz, Carlos L. -Jose and
Claudio Arias, acting with evident bad faith, while
accused Cresencio D. Data, Priscillo G. Fernando and
Amado C. Arias, acting with manifest partiality in the
discharge of their official public and/or administrative
functions, did then and there wilfully, unlawfully and
feloniously cause undue injury, damage and prejudice
to the Government of the Republic of the Philippines
by causing, allowing and/or approving the illegal and
irregular disbursement and expenditure of public funds
in favor of and in the name of Benjamin P. Agleham in
the amount of P1,520,320.00 under General Voucher
No. 8-047, supported by a certification, dated
September 14, 1978, which was purportedly issued by
the Municipal Treasurer of Pasig, and certified xerox
copies of Tax Declarations Nos. 47895 and A-018-0091
1, both in the name of Benjamin P. Agleham, and an
alleged owner's copy of Tax Declaration No. 49948, in
the name of the Republic of the Philippines,
said supporting documents having been falsified by the
accused to make it appear that the land mentioned in
the above-stated supporting papers is a residential
land with a market value of P80.00 per square meter
and that 19,004 square meters thereof were
transferred in the name of the Government of the
Republic of the Philippines under Tax Declaration No.
49948, when in truth and in fact, the afore-stated land
is actually a riceland with a true and actual market

value of P5.00 per square meter only and Tax

Declaration No. 49948 was truly and officially
registered in the names of spouses Moises Javillonar
and Sofia San Andres, not in the name of the
Government, and refers to a parcel of land at Sagad,
Pasig, Metro Manila; that the foregoing falsities were
committed by the accused to conceal the fact that the
true and actual pace of the 19,004 square meters of
land of Benjamin P. Agleham, which was acquired in
behalf of the Government by way of negotiated
purchase by the accused officials herein for the right of
way of the Mangahan Floodway project at an overprice
of P1,520,320.00 was P92,020.00 only; and finally,
upon receipt of the overpriced amount, the accused
misappropriated, converted and misapplied the excess
of the true and actual value of the above-mentioned
land, i.e., P1,428,300.00 for their own personal needs,
uses and benefits, to the damage and prejudice of the
Government in the amount of P1,428,300.00. (pp.
2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present
whereabouts being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of
G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway
Project to ease the perennial floods affecting the towns of Marikina and
Pasig, Metro Manila. The project would traverse the northern and southern
portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An
announcement was published in leading newspapers advising affected
property owners to file their applications for payment at the District
Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the
Pasig Engineering District headed by the District Engineer, Cresencio Data. He
formed a committee composed of Supervising Civil Engineer Priscillo
Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for
acquisition of improvements, and Instrumentman Carlos Jose for surveys (p.
26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot
owners affected by the project of the impending expropriation of their
properties and to receive and process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was
suspended in 1975 by order of the President (p. 45, Sandiganbayan Decision,
p. 72, Ibid.). Implementing that order, a memorandum was sent to Data on
August 27,1976, by Public Works Director Desiderio Anolin, directing that all
affected lands covered by the Mangahan Floodway Project shall be excluded
from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit of
Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169square-meter riceland in Pasig registered in the name of Benjamin Agleham
under Original Certificate of Title No. 0097 issued on May 5, 1977 (Exh. H).
The land was previously owned by Andrea Arabit and Evaristo Gutierrez,
parents of the accused Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez
spouses, he had it subdivided into three (3) lots under plan (LRC) Psd-278456
which was approved by the Land Registration Commission on June 1, 1978
(Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square
meters, is the portion that Agleham, through Natividad Gutierrez, sold to the
Government in 1978 for the Mangahan Floodway Project.
On December 15, 1973, Agleham's property, classified as a "ricefield" with an
area of 3.2 hectares, was declared for taxation under Tax Declaration No.
28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter (p.
10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax
Declaration No. 47895 (Exh. Y-1) was issued for the same ricefield" with a
revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.

Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was
cancelled and replaced by Tax Declaration No. A018- 00911 (Exh. Y-2)
wherein the market value of the same "ricefield," jumped to P301,690 (P10
per square meter). Its assessed value was fixed at P120,680. The description
and value of the property, according to Pedro Ocol, the assistant Municipal
Assessor of Pasig, was based on the actual use of the property (riceland) not
on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The
valuation was based on a compilation of sales given to the Municipal
Assessor's office by the Register of Deeds, from which transactions the
Assessor obtained the average valuation of the properties in the same
vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the
District Engineer's Office was the accused, Natividad Gutierrez, who was
armed with a Special Power of Attorney allegedly executed on February
24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a
falsified xerox copy of Tax Declaration No. 47895 (Exh. B) bearing a false
date: December 15,1973 (instead of February 27, 1978) and describing
Agleham's 30,169-square-meter property as "residential" (instead of
riceland), with a fair market value of P2,413,520 or P80 per square meter
(instead of P150,845 at P5 per square meter). Its assessed value appeared to
be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original
Certificate of Title No. 0097 (Exh. H-1), the technical description of the
property, and a xerox copy of a "Sworn Statement of the True Current and
Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The
xerox copy of Tax Declaration No. 47895 was supposedly certified by the
Municipal Treasurer of Pasig, Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the
Administrative Officer, accused Claudio Arcaya, who, after initiating them,
turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for
Lot 1 (19,004 square meters valued at P80 per square meter) was prepared
by Cruz who also initialed the supporting documents and transmitted them
to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by
Data and Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent
the papers to Director Desiderio Anolin of the Bureau of Public Works who
recommended to the Assistant Secretary of Public Works the approval of the
Deed of Sale (Exh. G-1). Afterwards, the documents were returned to Data's
office for the transfer of title to the Government. On June 8, 1978, the sale
was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was
issued in the name of the Government.

Assistant Municipal Assessor Pedro Ocol produced and Identified the original
or genuine Tax Declaration No. 47895 dated February 27, 1978, and a
certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169
square meters was classified as a "ricefield" and appraised at P5 per square
meter, with an assessed value of P60,340 and a market value of PI 50,850.
Ocol testified that the supposed xerox copy of Tax Declaration No. 47895
(Exh. B), which Gutierrez submitted as one of the supporting documents of
the general voucher (Exh. S), was fake, because of the following tell-tale
signs:
(1) the tax declaration number was typewritten, not machine numbered as in
the genuine tax declaration, Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in
the fake, instead of the correct date February 27, 1978-- in the genuine tax
declaration;
(3) the classification of the property was "residential," instead of "ricefield"
which is its classification in the genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax
declaration, instead of the appraised value of only P5 per square meter
appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the
Republic of the Philippines (Exhs. K and K-1). The genuine Tax Declaration No.
49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the names
of the spouses Moises Javillonar and Sofia Andres, for their 598-squaremeters' residential property with a declared market value of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal
Engineering District, Amado Arias, who approved the payment of Pl,520,320
to Gutierrez without questioning the fact that the amount of the purchase
price therein had been altered, i.e., "snow-flaked (sic) and later
superimposed by the amount of P1,520,320 in words and figures" (p. 71,
Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the
supporting documents listed at the back of the General Voucher (Exh. S),
numbering fifteen (15) in all, among which were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land
was P80 per square meter (Exh. B);

General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount
of P1,520,320 bore fourth certifications of. (1) Cruz as Senior Civil Engineer;
(2) Priscillo G. Fernando as Supervising Civil Engineer II; (3) Cresencio Data as
District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p.
56, Sandiganbayan Decision, p. 83, Ibid.).

(2) fake Tax Declaration No. 49948 In the name of the Republic of the
Philippines (Exh. K)

On October 23, 1978, the voucher and its supporting documents were preaudited and approved for payment by the accused, Amado C. Arias, as
auditor of the Engineering District. The next day, October 24, 1978, sixteen
(16) PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1
5), for the total sum of Pl,520,320.00 were issued to Gutierrez as payment for
Agleham's 19,004-square-meter lot.

(4) a false certification (Exh. D) dated September 19, 1978 signed by accused
Cruz, Jose, and Fernando, certifying that the Agleham property was upon
ocular inspection by them, found to be "residential;"

In October, 1979, an investigation was conducted by the Ministry of National

Defense on the gross overpricing of Agleham's property. During the
investigation, sworn statements were taken from Alfredo Prudencio,
Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal
Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE).
Prudencio denied having issued or signed the certification dated September
14,1978 (Exh. J), attesting that Agleham's property covered by Tax
Declaration No. 47895 had a market value of P2,413,520 and that the taxes
had been paid from 1975 to 1978. Prudencio also impugned the initial
(purporting to be that of his subordinate Ruben Gatchalian, Chief of the Land
Tax Division) that was affixed below Prudencio's typewritten name in Exhibit
J. Both Prudencio and Gatchalian disowned the typewritten certification.
They declared that such certifications are usually issued by their office on
mimeographed forms (Exh. J-1).

(3) the forged certification of Municipal Treasurer Prudencio that the fair
market value of 'the land was P100 per square meter (Exh. J);

(5) a falsely dated certification where the original date was erased and a false
date (February 15, 1978) was superimposed (Exh.E), issued by Engr.
Fernando pursuant to DPWTC Circular No. 557, certifying that he had
examined the real estate tax receipts of the Agleham property for the last
three (3) years;
(6) the technical description of the land (Exhs. F and F-1) attached to the
deed of sale dated April 20, 1978 was not an approved technical description
for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro
was verified and approved by the Land Registration Commission on May
28,1978 only. There were "substantial variations" noted by the
Sandiganbayan between the approved technical description and the
technical description of the land in the deed of sale (p. 61, Sandiganbayan
Decision, p. 88, Ibid.);

(7) the special power of attorney dated February 24, 1978, supposedly given
to Gutierrez by Agleham (Exhs. C, C-1) bore a fictitious residence certificate
Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real
Properties (Exh. Z) dated October 1, 1973, contained a forged signature of
Agleham, presumably made by Gutierrez herself The Sandiganbayan
observed that Agleham's supposed signature "appears to be identical to
accused Gutierrez' signatures in the General Voucher (Exh. S), in the release
and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh.
CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan
Decision, pp. 91-92, Ibid.).

certifications of their subordinates, and approved without question the

million-peso purchase which, by the standards prevailing in 1976-78, should
have pricked their curiosity and prompted them to make inquiries and to
verify the authenticity of the documents presented to them for approval. The
petitioners kept silent when they should have asked questions they looked
the other way when they should have probed deep into the transaction.
Since it was too much of a coincidence that both petitioners were negligent
at the same time over the same transaction, the Sandiganbayan was justified
in concluding that they connived and conspired to act in that manner to
approve the illegal transaction which would favor the seller of the land and
defraud the Government.

After payment of the Agleham claim, all the supporting documents were kept
by Arias. Even after he had been replaced by Julito Pesayco on September 1,
1981, as auditor of the Rizal Engineering District, he did not turn over the
documents to Pesayco. It was only on June 23, 1982, after this case had been
filed in the Sandiganbayan and the trial had begun, that Arias delivered them
to Pesayco (Exh. T-1).

We cannot accept Arias' excuse that because the deed of sale had been
signed and the property transferred to the Government which received a
title in its name, there was nothing else for him to do but approve the
voucher for payment. The primary function of an auditor is to prevent
irregular, unnecessary, excessive or extravagant expenditures of government
funds.

After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page
decision on November 16, 1987, whose dispositive portion reads as follows:

The auditorial function of an auditor, as a representative of the Commission

on Audit, comprises three aspects: (1) examination; (2) audit: and (3)
settlement of the accounts, funds, financial transactions and resources of the
agencies under their respective audit jurisdiction (Sec. 43, Government
Auditing Code of the Phil.). Examination, as applied to auditing, means "to
probe records, or inspect securities or other documents; review procedures,
and question persons, all for the purpose of arriving at an opinion of
accuracy, propriety, sufficiency, and the like." (State Audit Code of the
Philippines, Annotated by Tantuico, 1982 Ed., p. 57.)

WHEREFORE, judgment is hereby rendered finding

accused Natividad G. Gutierrez, Cresencio D. Data,
Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and
Amado C. Arias GUILTY beyond reasonable doubt of
the violation of Section 3, paragraph (e) of Republic Act
No. 3019, as ascended, otherwise known as the AntiGraft and Corrupt Practices Act, and hereby sentences
each of them to suffer the penalty of imprisonment for
THREE (3) YEARS, as minimum to SIX (6) YEARS, as
maximum; to further suffer perpetual disqualification
from public office; to indemnify jointly and severally,
the Government of the Republic of the Philippines in
the amount of P1,425,300, and to pay their
proportional costs of this action. (p. 104, Rollo of G.R.
No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R.
No. 81563) on his contention that the court's findings that he conspired with
his co-accused and that he was grossly negligent are based on
misapprehension of facts, speculation, surmise, and conjecture.
Data's main defense is that the acquisition of the Agleham property was the
work of the committee of Prescillo Fernando iii which he did not take an
active part, and that the price which the government paid for it was
reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General
recommends the acquittal of the petitioners because the Agleham property
was allegedly not grossly overpriced.
After deliberating on the petitions in these cases, we find no error in the
decision under review. The Sandiganbayan did not err in finding that the
petitioners conspired with their co-accused to cause injury to the
Government and to unduly favor the lot owner, Agleham.
A conspiracy need not be proved by direct evidence of the acts charged, but
may and generally must be proven by a number of indefinite acts, conditions
and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People
vs. Roca, G.R. No. 77779, June 27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office
who should have been vigilant to protect the interest of the Government in
the purchase of Agleham's two-hectare riceland, accepted as gospel truth the

Arias admitted that he did not check or verify the papers supporting the
general voucher that was submitted to him for payment of Pl,520,320 to
Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question
any person for the purpose of determining the accuracy and integrity of the
documents submitted to him and the reasonableness of the price that the
Government was paying for the less than two-hectare riceland. We reject his
casuistic explanation that since his subordinates had passed upon the
transaction, he could assume that it was lawful and regular for, if he would
be a mere rubber stamp for his subordinates, his position as auditor would
be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data
who claims innocence because he allegedly did not take any direct and active
participation in the acquisition of the Agleham property, throwing the blame
on the committee which he created, composed of Fernando, Asuncion,
Mendoza, Cruz, Hucom and Jose that negotiated with the property owners
for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he
himself selected and to which he delegated the task that was assigned to his
office to identify the lots that would be traversed by the floodway project,
gather and verify documents, make surveys, negotiate with the owners for
the price, prepare the deeds of sale, and process claims for payment. By
appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command
responsibility, he was responsible for the manner in which the committee
performed its tasks for it was he who in fact signed the deed of sale prepared
by the committee. By signing the deed of sale and certifications prepared for
his signature by his committee, he in effect, made their acts his own. He is,
therefore, equally guilty with those members of the committee (Fernando,
Cruz and Jose) who accepted the fake tax declarations and made false
certifications regarding the use and value of the Agleham property.
The Solicitor General has pointed out that Data signed, but did not approve,
the deed of sale of Agleham's property because the approval thereof was the
prerogative of the Secretary of Public Works. It should not be overlooked,
however, that Data's signature on the deed of sale was equivalent to an
attestation that the transaction was fair, honest and legal. It was he who was
charged with the task of implementing the Mangahan Floodway Project
within his engineering district.

We find no merit in the Solicitor General's argument that the Agleham

riceland was not overpriced because the price of P80 per square meter fixed
in the deed of sale was reasonable, hence, the petitioners are not guilty of
having caused undue injury and prejudice to the Government, nor of having
given unwarranted benefits to the property owner and/or his attorney-infact, Gutierrez. He further argues that the valuation in the owner's genuine
tax declaration may not be used as a standard in determining the fair market
value of the property because PD Nos. 76 and 464 (making it mandatory in
expropriation cases to fix the price at the value of the property as declared
by the owner, or as determined by the assessor, whichever is lower), were
declared null and void by this Court in the case of Export Processing Zone
Authority(EPZA) vs. Dulay, 149 SCRA 305, and other related cases.
That argument is not well taken because PD Nos. 76 and 464 (before they
were nullified) applied to the expropriation of property for public use. The
acquisition of Agleham's riceland was not done by expropriation but through
a negotiated sale. In the course of the negotiations, there was absolutely no
allegation nor proof that the price of P80 per square meter was its fair
market value in 1978, i.e., eleven (11) years ago. What the accused did was
to prove the value of the land through fake tax declarations (Exhs. B, F, K),
false certifications (Exhs. J, D and E) and a forged sworn statement on the
current and fair market value of the real property (Exh. Z) submitted by the
accused in support of the deed of sale. Because fraudulent documents were
used, it may not be said that the State agreed to pay the price on the basis of
its fairness, for the Government was in fact deceived concerning the
reasonable value of the land.
When Ocol testified in 1983 that P80 was a reasonable valuation for the
Agleham's land, he did not clarify that was also its reasonable value in 1975,
before real estate values in Pasig soared as a result of the implementation of
the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to
rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895
that the fair valuation of the riceland then was only P5 per square meter. A
Tax Declaration is a guide or indicator of the reasonable value of the property
(EPZA vs. Dulay, supra).
The petitioner's partiality for Agleham/Gutierrez may be inferred from their
having deliberately closed their eyes to the defects and irregularities of the
transaction in his favor and their seeming neglect, if not deliberate omission,
to check, the authenticity of the documents presented to them for approval.
Since partiality is a mental state or predilection, in the absence of direct
evidence, it may be proved by the attendant circumstance instances.
WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB
Crim. Case No. 2010, with costs against the petitioners, Amado Arias and
Cresencio Data.
Feliciano, Padilla, Sarmiento, and Regalado, JJ., concur.

Separate Opinions
GRIO-AQUINO, J., dissenting:
The lone issue in these consolidated petitions for review is whether the
Sandiganbayan committed a reversible error in convicting the petitioners,
Amado C. Arias and Cresencio D. Data, of having violated Section 3,
paragraph (e), of the Anti Graft and Corrupt Practices Act, in connection with
the scandalous overpricing of land purchased by the Government as right of
way for its Mangahan Floodway Project in Pasig, Rizal. The pertinent
provision of the Anti-Graft Law reads as follows:
SEC. 3. Corrupt Practices of Public Officers-In addition
to acts or omissions of public officers already penalized
by existing law. the following shall constitute corrupt
practices of any public officer and are hereby declared
to be unlawful:

xxxxxxxxx
(e) Causing any undue injury to any party, including the
Government, or giving any private party any
unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial
functions through manifest partiality, evident bad faith
or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or
government corporations charged with the grant of
licenses or permits or other concessions.
The amended information against them, to which they pleaded not guilty,
alleged:
That on or about the period covering April, 1978 to
October 1978, in Rosario, Pasig, Metro Manila,
Philippines, and with the jurisdiction of this Honorable
Court, accused Cresencio D. Data, being then the
district Engineer of the province of Rizal, Ministry of
Public Works, and as such, headed and supervised the
acquisition of private lands for the right-of-way of the
Mangahan Floodway Project of the Government at
Sitio Mangahan, Rosario, Pasig, Metro Manila;
accused Priscillo G. Fernando, then the Supervising
Engineer of the Office of the District Engineer of Rizal,
Ministry of Public Works who acted as assistant of
accused Cresencio D. Data in the Mangahan Floodway
Project; accused Ladislao G. Cruz, then the Senior
Engineer of the Office of the District Engineer of Rizal,
Ministry of Public Works, who was charged with the
acquisition of lots needed for the Mangahan Floodway
Project; accused Carlos L. Jose then the Instrumentman
of the office of the District Engineer of Rizal, Ministry
of Public Works who acted as the surveyor of the
Mangahan Floodway Project; accused Claudio H.
Arcaya, then the Administrative Officer I of the Rizal
District Engineer's Office, Ministry of Public Works who
passed upon all papers and documents pertaining to
private lands acquired by the Government for the
Mangahan Floodway Project; and accused Amado C.
Arias, then the Auditor of Rizal Engineering District,
Pasig, Metro Manila, who passed upon and approved
in audit the acquisition as well as the payment of lands
needed for the Mangahan Floodway Project all taking
advantage of their public and official positions, and
conspiring, confederating and confabulating with
accused Natividad C. Gutierrez, the attorney-in-fact of
Benjamin Agleham, who is the registered owner of a
parcel of land situated at Rosario, Pasig, Metro Manila
and covered by Original Certificate of Title No. 0097,
with accused Ladislao G. Cruz, Carlos L. -Jose and
Claudio Arias, acting with evident bad faith, while
accused Cresencio D. Data, Priscillo G. Fernando and
Amado C. Arias, acting with manifest partiality in the
discharge of their official public and/or administrative
functions, did then and there wilfully, unlawfully and
feloniously cause undue injury, damage and prejudice
to the Government of the Republic of the Philippines
by causing, allowing and/or approving the illegal and
irregular disbursement and expenditure of public funds
in favor of and in the name of Benjamin P. Agleham in
the amount of P1,520,320.00 under General Voucher
No. 8-047, supported by a certification, dated
September 14, 1978, which was purportedly issued by
the Municipal Treasurer of Pasig, and certified xerox
copies of Tax Declarations Nos. 47895 and A-018-0091
1, both in the name of Benjamin P. Agleham, and an
alleged owner's copy of Tax Declaration No. 49948, in
the name of the Republic of the Philippines,
said supporting documents having been falsified by the
accused to make it appear that the land mentioned in

the above-stated supporting papers is a residential

land with a market value of P80.00 per square meter
and that 19,004 square meters thereof were
transferred in the name of the Government of the
Republic of the Philippines under Tax Declaration No.
49948, when in truth and in fact, the afore-stated land
is actually a riceland with a true and actual market
value of P5.00 per square meter only and Tax
Declaration No. 49948 was truly and officially
registered in the names of spouses Moises Javillonar
and Sofia San Andres, not in the name of the
Government, and refers to a parcel of land at Sagad,
Pasig, Metro Manila; that the foregoing falsities were
committed by the accused to conceal the fact that the
true and actual pace of the 19,004 square meters of
land of Benjamin P. Agleham, which was acquired in
behalf of the Government by way of negotiated
purchase by the accused officials herein for the right of
way of the Mangahan Floodway project at an overprice
of P1,520,320.00 was P92,020.00 only; and finally,
upon receipt of the overpriced amount, the accused
misappropriated, converted and misapplied the excess
of the true and actual value of the above-mentioned
land, i.e., P1,428,300.00 for their own personal needs,
uses and benefits, to the damage and prejudice of the
Government in the amount of P1,428,300.00. (pp.
2931, Rollo of G.R. No. 81563.)
Priscillo Fernando did not face trial for he has remained at large, his present
whereabouts being unknown (p. 48, Sandiganbayan Decision, p. 75, Rollo of
G.R. No. 81563).
In 1975, the Bureau of Public Works initiated the Mangahan Floodway
Project to ease the perennial floods affecting the towns of Marikina and
Pasig, Metro Manila. The project would traverse the northern and southern
portions of Ortigas Avenue in Pasig, Metro Manila (Exhibits A and A-1). An
announcement was published in leading newspapers advising affected
property owners to file their applications for payment at the District
Engineer's Office (p. 29, Sandiganbayan Decision, p. 56, Ibid.).
The implementation of the Mangahan Floodway Project was entrusted to the
Pasig Engineering District headed by the District Engineer, Cresencio Data. He
formed a committee composed of Supervising Civil Engineer Priscillo
Fernando, as over-all in charge, Alfonso Mendoza and Pedro Hucom for
acquisition of improvements, and Instrumentman Carlos Jose for surveys (p.
26, Sandiganbayan Decision, p. 53, Ibid.). The team was tasked to notify lot
owners affected by the project of the impending expropriation of their
properties and to receive and process applications for payment.
The reclassification of all lands around the Mangahan Floodway Project was
suspended in 1975 by order of the President (p. 45, Sandiganbayan Decision,
p. 72, Ibid.). Implementing that order, a memorandum was sent to Data on
August 27,1976, by Public Works Director Desiderio Anolin, directing that all
affected lands covered by the Mangahan Floodway Project shall be excluded
from reevaluation and reassessment (Annex A, Exh. DD, Counter-Affidavit of
Data, p. 70, Sandiganbayan Decision, P. 97, Ibid).
Among the lots affected was a 19,004-square-meter portion of a 30,169square-meter riceland in Pasig registered in the name of Benjamin Agleham
under Original Certificate of Title No. 0097 issued on May 5, 1977 (Exh. H).
The land was previously owned by Andrea Arabit and Evaristo Gutierrez,
parents of the accused Natividad Gutierrez.
After Agleham acquired the 3-hectare land in 1973 from the Gutierrez
spouses, he had it subdivided into three (3) lots under plan (LRC) Psd-278456
which was approved by the Land Registration Commission on June 1, 1978
(Entry No. 27399/12071, Exh. H). Lot 1, with an area of 19,004 square
meters, is the portion that Agleham, through Natividad Gutierrez, sold to the
Government in 1978 for the Mangahan Floodway Project.

On December 15, 1973, Agleham's property, classified as a "ricefield" with an

area of 3.2 hectares, was declared for taxation under Tax Declaration No.
28246 (Exh-Y). Its assessed value was P4,800 or P0.15 per square meter (p.
10, Sandiganbayan Decision, p. 37, Ibid.). On February 27, 1978, another Tax
Declaration No. 47895 (Exh. Y-1) was issued for the same ricefield" with a
revised area of 30,169 square meters. The declared market value was
P150,850 (or P5 per square meter), and the assessed value was P60,340.
Ten months later, or on December 15, 1978, Tax Declaration No. 47895 was
cancelled and replaced by Tax Declaration No. A018- 00911 (Exh. Y-2)
wherein the market value of the same "ricefield," jumped to P301,690 (P10
per square meter). Its assessed value was fixed at P120,680. The description
and value of the property, according to Pedro Ocol, the assistant Municipal
Assessor of Pasig, was based on the actual use of the property (riceland) not
on its potential use (p. 13, Sandiganbayan Decision, p. 40, Ibid.). The
valuation was based on a compilation of sales given to the Municipal
Assessor's office by the Register of Deeds, from which transactions the
Assessor obtained the average valuation of the properties in the same
vicinity (p. 14, Sandiganbayan Decision, p. 41, Ibid.).
Among those who filed an application for payment (Exhs. FF and FF-1) at the
District Engineer's Office was the accused, Natividad Gutierrez, who was
armed with a Special Power of Attorney allegedly executed on February
24,1978 by Benjamin Agleham in her favor (Exhs. C and C-1). She submitted a
falsified xerox copy of Tax Declaration No. 47895 (Exh. B) bearing a false
date: December 15,1973 (instead of February 27, 1978) and describing
Agleham's 30,169-square-meter property as "residential" (instead of
riceland), with a fair market value of P2,413,520 or P80 per square meter
(instead of P150,845 at P5 per square meter). Its assessed value appeared to
be P724,056 (instead of P60,340). Gutierrez submitted Agleham's Original
Certificate of Title No. 0097 (Exh. H-1), the technical description of the
property, and a xerox copy of a "Sworn Statement of the True Current and
Fair Market Value of Real Property" required under P.D. No. 76 (Exh. 1). The
xerox copy of Tax Declaration No. 47895 was supposedly certified by the
Municipal Treasurer of Pasig, Alfredo Prudencio.
The documents supporting Agleham's claim were "examined" by the
Administrative Officer, accused Claudio Arcaya, who, after initiating them,
turned them over to accused Ladislao G. Cruz, A Deed of Absolute Sale for
Lot 1 (19,004 square meters valued at P80 per square meter) was prepared
by Cruz who also initialed the supporting documents and transmitted them
to District Engr. Data.
On April 20,1978, the Deed of Absolute Sale (Exhs. G and G-1) was signed by
Data and Gutierrez (as attorney-in-fact of Agleham). Thereafter, Data sent
the papers to Director Desiderio Anolin of the Bureau of Public Works who
recommended to the Assistant Secretary of Public Works the approval of the
Deed of Sale (Exh. G-1). Afterwards, the documents were returned to Data's
office for the transfer of title to the Government. On June 8, 1978, the sale
was registered and Transfer Certificate of Title No. T-12071 (Exh. T) was
issued in the name of the Government.
General Voucher (Exh. S) No. 85-2-7809-52 dated "9/29/78" for the amount
of P1,520,320 bore fourth certifications of. (1) Cruz as Senior Civil Engineer;
(2) Priscillo G. Fernando as Supervising Civil Engineer II; (3) Cresencio Data as
District Engineer II and (4) Cesar V. Franco as Project Acting Accountant (p.
56, Sandiganbayan Decision, p. 83, Ibid.).
On October 23, 1978, the voucher and its supporting documents were preaudited and approved for payment by the accused, Amado C. Arias, as
auditor of the Engineering District. The next day, October 24, 1978, sixteen
(16) PNB checks with Serial Nos. 188532 to 188547, inclusive (Exhs. X to X-1
5), for the total sum of Pl,520,320.00 were issued to Gutierrez as payment for
Agleham's 19,004-square-meter lot.
In October, 1979, an investigation was conducted by the Ministry of National
Defense on the gross overpricing of Agleham's property. During the
investigation, sworn statements were taken from Alfredo Prudencio,
Municipal Treasurer of Pasig (Exh. AA), Pedro Ocol, Assistant Municipal
Assessor of Pasig (Exh. BB), and the accused Claudio Arcaya (Exh. EE).

Prudencio denied having issued or signed the certification dated September

14,1978 (Exh. J), attesting that Agleham's property covered by Tax
Declaration No. 47895 had a market value of P2,413,520 and that the taxes
had been paid from 1975 to 1978. Prudencio also impugned the initial
(purporting to be that of his subordinate Ruben Gatchalian, Chief of the Land
Tax Division) that was affixed below Prudencio's typewritten name in Exhibit
J. Both Prudencio and Gatchalian disowned the typewritten certification.
They declared that such certifications are usually issued by their office on
mimeographed forms (Exh. J-1).
Assistant Municipal Assessor Pedro Ocol produced and Identified the original
or genuine Tax Declaration No. 47895 dated February 27, 1978, and a
certified copy thereof (Exh. Y-1). Therein, Agleham's property of 30,169
square meters was classified as a "ricefield" and appraised at P5 per square
meter, with an assessed value of P60,340 and a market value of PI 50,850.
Ocol testified that the supposed xerox copy of Tax Declaration No. 47895
(Exh. B), which Gutierrez submitted as one of the supporting documents of
the general voucher (Exh. S), was fake, because of the following tell-tale
signs:
(1) the tax declaration number was typewritten, not machine numbered as in
the genuine tax declaration, Exhibit Y;
(2) the stampmark of registration was antedated to December 15, 1973 in
the fake, instead of the correct date February 27, 1978-- in the genuine tax
declaration;
(3) the classification of the property was "residential," instead of "ricefield"
which is its classification in the genuine document; and
(4) the lot was over priced at P80 per square meter in the fake tax
declaration, instead of the appraised value of only P5 per square meter
appearing in the genuine declaration.
Also found to be fake was Tax Declaration No. 49948 in the name of the
Republic of the Philippines (Exhs. K and K-1). The genuine Tax Declaration No.
49948 (Exhs. U and V-2) was actually filed on October 18, 1978 in the names
of the spouses Moises Javillonar and Sofia Andres, for their 598-squaremeters' residential property with a declared market value of P51,630.
The Agleham deed of sale was pre-audited by the auditor of the Rizal
Engineering District, Amado Arias, who approved the payment of Pl,520,320
to Gutierrez without questioning the fact that the amount of the purchase
price therein had been altered, i.e., "snow-flaked (sic) and later
superimposed by the amount of P1,520,320 in words and figures" (p. 71,
Sandiganbayan Decision, p. 98, Ibid.), nor checking the veracity of the
supporting documents listed at the back of the General Voucher (Exh. S),
numbering fifteen (15) in all, among which were:
(1) the fake Tax Declaration No. 47895 showing that the value of the land
was P80 per square meter (Exh. B);
(2) fake Tax Declaration No. 49948 In the name of the Republic of the
Philippines (Exh. K)
(3) the forged certification of Municipal Treasurer Prudencio that the fair
market value of 'the land was P100 per square meter (Exh. J);
(4) a false certification (Exh. D) dated September 19, 1978 signed by accused
Cruz, Jose, and Fernando, certifying that the Agleham property was upon
ocular inspection by them, found to be "residential;"
(5) a falsely dated certification where the original date was erased and a false
date (February 15, 1978) was superimposed (Exh.E), issued by Engr.
Fernando pursuant to DPWTC Circular No. 557, certifying that he had
examined the real estate tax receipts of the Agleham property for the last
three (3) years;

(6) the technical description of the land (Exhs. F and F-1) attached to the
deed of sale dated April 20, 1978 was not an approved technical description
for the subdivision survey executed by Geodetic Engineer Cipriano C. Caro
was verified and approved by the Land Registration Commission on May
28,1978 only. There were "substantial variations" noted by the
Sandiganbayan between the approved technical description and the
technical description of the land in the deed of sale (p. 61, Sandiganbayan
Decision, p. 88, Ibid.);
(7) the special power of attorney dated February 24, 1978, supposedly given
to Gutierrez by Agleham (Exhs. C, C-1) bore a fictitious residence certificate
Agleham (p. 64, Sandiganbayan Decision, p. 91, Ibid.); and
(8) the fake Sworn Statement on the Current and Fair Market Value of Real
Properties (Exh. Z) dated October 1, 1973, contained a forged signature of
Agleham, presumably made by Gutierrez herself The Sandiganbayan
observed that Agleham's supposed signature "appears to be Identical to
accused Gutierrez' signatures in the General Voucher (Exh. S), in the release
and Quitclaim which she signed in favor of Agleham on July 20, 1983 (Exh.
CC), and in her affidavits (Exhs. FF and FF-1)." (pp. 64-65, Sandiganbayan
Decision, pp. 91-92, Ibid.).
After payment of the Agleham claim, all the supporting documents were kept
by Arias. Even after he had been replaced by Julito Pesayco on September 1,
1981, as auditor of the Rizal Engineering District, he did not turn over the
documents to Pesayco. It was only on June 23, 1982, after this case had been
filed in the Sandiganbayan and the trial had begun, that Arias delivered them
to Pesayco (Exh. T-1).
After a trial lasting nearly six years, the Sandiganbayan rendered a 78-page
decision on November 16, 1987, whose dispositive portion reads as follows:
WHEREFORE, judgment is hereby rendered finding
accused Natividad G. Gutierrez, Cresencio D. Data,
Ladislao G. Cruz, Carlos L. Jose, Claudio H. Arcaya and
Amado C. Arias GUILTY beyond reasonable doubt of
the violation of Section 3, paragraph (e) of Republic Act
No. 3019, as ascended, otherwise known as the AntiGraft and Corrupt Practices Act, and hereby sentences
each of them to suffer the penalty of imprisonment for
THREE (3) YEARS, as minimum to SIX (6) YEARS, as
maximum; to further suffer perpetual disqualification
from public office; to indemnify jointly and severally,
the Government of the Republic of the Philippines in
the amount of P1,425,300, and to pay their
proportional costs of this action. (p. 104, Rollo of G.R.
No. 81563.)
Both Arias and Data appealed.
Arias anchors his petition for review of the Sandiganbayan's decision (G.R.
No. 81563) on his contention that the court's findings that he conspired with
his co-accused and that he was grossly negligent are based on
misapprehension of facts, speculation, surmise, and conjecture.
Data's main defense is that the acquisition of the Agleham property was the
work of the committee of Prescillo Fernando iii which he did not take an
active part, and that the price which the government paid for it was
reasonable. Hence, it uttered no jury in the transaction.
In his consolidated brief or comment for the State, the Solicitor General
recommends the acquittal of the petitioners because the Agleham property
was allegedly not grossly overpriced.
After deliberating on the petitions in these cases, we find no error in the
decision under review. The Sandiganbayan did not err in finding that the
petitioners conspired with their co-accused to cause injury to the
Government and to unduly favor the lot owner, Agleham.

A conspiracy need not be proved by direct evidence of the acts charged, but
may and generally must be proven by a number of indefinite acts, conditions
and circumstances (People vs. Maralit, G.R. No. 71143, Sept. 19,1988; People
vs. Roca, G.R. No. 77779, June 27, 1988).
This case presents a conspiracy of silence and inaction where chiefs of office
who should have been vigilant to protect the interest of the Government in
the purchase of Agleham's two-hectare riceland, accepted as gospel truth the
certifications of their subordinates, and approved without question the
million-peso purchase which, by the standards prevailing in 1976-78, should
have pricked their curiosity and prompted them to make inquiries and to
verify the authenticity of the documents presented to them for approval. The
petitioners kept silent when they should have asked questions they looked
the other way when they should have probed deep into the transaction.
Since it was too much of a coincidence that both petitioners were negligent
at the same time over the same transaction, the Sandiganbayan was justified
in concluding that they connived and conspired to act in that manner to
approve the illegal transaction which would favor the seller of the land and
defraud the Government.
We cannot accept Arias' excuse that because the deed of sale had been
signed and the property transferred to the Government which received a
title in its name, there was nothing else for him to do but approve the
voucher for payment. The primary function of an auditor is to prevent
irregular, unnecessary, excessive or extravagant expenditures of government
funds.
The auditorial function of an auditor, as a representative of the Commission
on Audit, comprises three aspects: (1) examination; (2) audit: and (3)
settlement of the accounts, funds, financial transactions and resources of the
agencies under their respective audit jurisdiction (Sec. 43, Government
Auditing Code of the Phil.). Examination, as applied to auditing, means "to
probe records, or inspect securities or other documents; review procedures,
and question persons, all for the purpose of arriving at an opinion of
accuracy, propriety, sufficiency, and the like." (State Audit Code of the
Philippines, Annotated by Tantuico, 1982 Ed., p. 57.)
Arias admitted that he did not check or verify the papers supporting the
general voucher that was submitted to him for payment of Pl,520,320 to
Agleham or his attorney-in-fact, Natividad Gutierrez. Arias did not question
any person for the purpose of determining the accuracy and integrity of the
documents submitted to him and the reasonableness of the price that the
Government was paying for the less than two-hectare riceland. We reject his
casuistic explanation that since his subordinates had passed upon the
transaction, he could assume that it was lawful and regular for, if he would
be a mere rubber stamp for his subordinates, his position as auditor would
be useless and unnecessary.
We make the same observation concerning District Engineer Cresencio Data
who claims innocence because he allegedly did not take any direct and active
participation in the acquisition of the Agleham property, throwing the blame
on the committee which he created, composed of Fernando, Asuncion,
Mendoza, Cruz, Hucom and Jose that negotiated with the property owners
for the purchase of properties on the path of the Mangahan Floodway
Project. He in effect would hide under the skirt of the committee which he
himself selected and to which he delegated the task that was assigned to his
office to Identify the lots that would be traversed by the floodway project,
gather and verify documents, make surveys, negotiate with the owners for
the price, prepare the deeds of sale, and process claims for payment. By
appointing the committee, he did not cease to be responsible for the
implementation of the project. Under the principle of command
responsibility, he was responsible for the manner in which the committee
performed its tasks for it was he who in fact signed the deed of sale prepared
by the committee. By signing the deed of sale and certifications prepared for
his signature by his committee, he in effect, made their acts his own. He is,
therefore, equally guilty with those members of the committee (Fernando,
Cruz and Jose) who accepted the fake tax declarations and made false
certifications regarding the use and value of the Agleham property.

The Solicitor General has pointed out that Data signed, but did not approve,
the deed of sale of Agleham's property because the approval thereof was the
prerogative of the Secretary of Public Works. It should not be overlooked,
however, that Data's signature on the deed of sale was equivalent to an
attestation that the transaction was fair, honest and legal. It was he who was
charged with the task of implementing the Mangahan Floodway Project
within his engineering district.
We find no merit in the Solicitor General's argument that the Agleham
riceland was not overpriced because the price of P80 per square meter fixed
in the deed of sale was reasonable, hence, the petitioners are not guilty of
having caused undue injury and prejudice to the Government, nor of having
given unwarranted benefits to the property owner and/or his attorney-infact, Gutierrez. He further argues that the valuation in the owner's genuine
tax declaration may not be used as a standard in determining the fair market
value of the property because PD Nos. 76 and 464 (making it mandatory in
expropriation cases to fix the price at the value of the property as declared
by the owner, or as determined by the assessor, whichever is lower), were
declared null and void by this Court in the case of Export Processing Zone
Authority(EPZA) vs. Dulay, 149 SCRA 305, and other related cases.
That argument is not well taken because PD Nos. 76 and 464 (before they
were nullified) applied to the expropriation of property for public use. The
acquisition of Agleham's riceland was not done by expropriation but through
a negotiated sale. In the course of the negotiations, there was absolutely no
allegation nor proof that the price of P80 per square meter was its fair
market value in 1978, i.e., eleven (11) years ago. What the accused did was
to prove the value of the land through fake tax declarations (Exhs. B, F, K),
false certifications (Exhs. J, D and E) and a forged sworn statement on the
current and fair market value of the real property (Exh. Z) submitted by the
accused in support of the deed of sale. Because fraudulent documents were
used, it may not be said that the State agreed to pay the price on the basis of
its fairness, for the Government was in fact deceived concerning the
reasonable value of the land.
When Ocol testified in 1983 that P80 was a reasonable valuation for the
Agleham's land, he did not clarify that was also its reasonable value in 1975,
before real estate values in Pasig soared as a result of the implementation of
the Mangahan Floodway Project. Hence, Ocol's testimony was insufficient to
rebut the valuation in Agleham's genuine 1978 Tax Declaration No. 47895
that the fair valuation of the riceland then was only P5 per square meter. A
Tax Declaration is a guide or indicator of the reasonable value of the property
(EPZA vs. Dulay, supra).
The petitioner's partiality for Agleham/Gutierrez may be inferred from their
having deliberately closed their eyes to the defects and irregularities of the
transaction in his favor and their seeming neglect, if not deliberate omission,
to check, the authenticity of the documents presented to them for approval.
Since partiality is a mental state or predilection, in the absence of direct
evidence, it may be proved by the attendant circumstance instances.
WHEREFORE, I vote to affirm in toto the decision of the Sandiganbayan in SB
Crim. Case No. 2010, with costs against the petitioners, Amado Arias and
Cresencio Data.
Feliciano, Padilla, Sarmiento and Regalado, JJ., concur.

MAYOR FELIPE K. CONSTANTINO,

G.R. No. 140656

Petitioner,
Present:

QUISUMBING, J.,

Chairperson,
- versus -

CARPIO,

TINGA, J.:

CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.

Before us are two (2) consolidated petitions, the determination of both

rests ultimately on whether Felipe K. Constantino (Constantino), mayor of
Malungon, Sarangani Province, was indeed guilty beyond reasonable doubt
of violating Section 3(e) of Republic Act No. 3019 (R.A. No. 3019), otherwise
known as The Anti-Graft and Corrupt Practices Act.

HON. SANDIGANBAYAN (FIRST

DIVISION) and THE PEOPLE OF
THE PHILIPPINES,

Promulgated:

Respondents.
September 13, 2007

In G.R. No. 140656, Constantino filed a petition for review on certiorari

under Rule 45 of the 1997 Rules of Civil Procedure, assailing the 15 November
1999 decision[1] and the 15 March 2000 resolution[2] of the Sandiganbayan
(First Division) in Criminal Case No. 23433 finding him and his co-accused,
petitioner Norberto N. Lindong (Lindong) guilty beyond reasonable doubt of
violating Section 3(e) of R.A. No. 3019.

x-----------------------------------------------------------------------------x

NORBERTO N. LINDONG,

G.R. No. 154482

On the other hand, G.R. No. 154482 is a petition for certiorari with
prayer for preliminary injunction under Rule 65 of the 1997 Rules of Civil
Procedure, filed by Lindong questioning three (3) orders[3] of the
Sandiganbayan (First Division) relative to the execution of judgment against
him also in Criminal Case No. 23433.

Petitioner,

The Antecedents

versus -

PEOPLE OF THE PHILIPPINES and

SANDIGANBAYAN,
Respondents.
x-----------------------------------------------------------------------------x

DECISION

In an Information dated 31 July 1996, Constantino, in his capacity as

mayor of Malungon, Sarangani Province, together with his co-accused
Lindong, was charged with violation of Section 3 (e) of R.A. No. 3019 before
the Sandiganbayan, to wit:

That on or about February 28, 1996, in Davao City, Philippines,

and within the jurisdiction of this Honorable Court, accused Felipe K.
Constantino, a public officer, being then the Mayor of the Municipality of
Malungon, Sarangani Province, committing the crime herein-charged in
relation to, while in the performance and taking advantage of his official
functions, with evident bad faith, manifest partiality or through gross
inexcusable negligence, and conspiring and confederating with
accused Norberto N. Lindong, President and Chairman of the Board of the
Norlovanian Corporation, Davao City, did then and there wil[l]fully, unlawfully
and criminally enter into a Lease Agreement for the rental of various heavy
equipments (sic) for a period of six (6) years for and in consideration of the
sum of PESOS: TWO HUNDRED FIFTY-SEVEN THOUSAND ONE HUNDRED
ELEVEN and 11/100 (P257,111.11) per month or a total consideration
of PESOS: EIGHTEEN MILLION FIVE HUNDRED ELEVEN THOUSAND NINE
HUNDRED NINETY-NINE and 92/100 (P18,511,999.92) and a guaranty
deposit
of PESOS:
ONE
MILLION
SEVEN
HUNDRED
EIGHTY
THOUSAND (P1,780,000.00) contrary to the express mandate of Resolution
No. 2, series of 1995, of the Municipal Planning and Development Council
implementing Sangguniang Bayan Resolution No. 198, series of 1995 and
Sangguniang Bayan Resolution No. 21 dated February 22, 1996 authorizing
the Municipal Mayor of Malungon to enter into an agreement for the
purchase of heavy equipments (sic) on a five-year term basis for and in
consideration of the amount of PESOS: TWO MILLION TWO HUNDRED

THOUSAND (P2,200,000.00) per year or a total consideration of only

PESOS: ELEVEN MILLION (P11,000,000.00), thus, giving said Norlovanian
Corporation, which was fully paid for the Guaranty Deposit and was actually
paid heavy equipment rentals for the period March 5 to May 6,

1996 in the aggregate sum of PESOS: TWO MILLION ONE HUNDRED

SEVENTY-SEVEN THOUSAND NINETY and 91/100 (P2,177,090.91),
unwarranted benefits and advantage and causing undue injury to the
government.

On 6 June 1996, the Sangguniang Bayan passed Resolution No. 47,

urging the municipality to stop all forms of unauthorized
payment/expenditure relative to the illegally acquired pool of heavy
equipment by the Municipality of Malungon.[14]

CONTRARY TO LAW.[4]

Both accused pleaded not guilty to the charge. In the ensuing trial, the
prosecution presented Nazario B. Tomanan (Tomanan), Commission on Audit
(COA) Auditor III of the COA Regional Office No. XI. In rebuttal, it presented
Benjamin
C.
Asgapo
(Asgapo),
councilor
of
Malungon, Sarangani Province and one of the complainants below. The
prosecution sought to establish the facts as follows:

The Municipality of Malungon listed as one of its priority programs, the

acquisition of a fleet of heavy equipment needed by the municipality in its
development projects.[5] For this purpose, it appropriated an amount of P2.2
Million per annum for a period of five (5) years beginning in 1996 for the
amortization of such purchase.[6] Pursuant thereto, the municipality
conducted two (2) public biddings for suppliers of the required fleet of heavy
equipment. Both attempts, however, failed. Hence, the Sangguniang
Bayan instead passed Resolution No. 21 on 22 February 1996, authorizing
petitioner Constantino to enter into a negotiated contract for the
lease/purchase of the needed fleet of heavy equipment.[7]

On 28 February 1996, Constantino entered into a Lease

Agreement[8] with Norlovanian Corporation, represented by Lindong. The
agreement required, among others, the municipality to provide Norlovanian
Corporation with a guaranty deposit. The following day, Lindong appeared
before the Sangguniang Bayan to discuss the Lease Agreement. Not one of
the members of the Sanggunian questioned the legality of the agreement.[9]

The seven (7) units of heavy equipment subject of the agreement were
thus delivered to the municipality on 4 March 1996.[10] On 6 March 1996,
the Municipality of Malungon paid Norlovanian Corporation a total amount
of P2,177,090.91 representing the guaranty deposit as well as the rental for
the period of 5 March 1996 to 5 April 1996 and partial rental for the period
of 5 April 1996 to 6 May 1996.[11]

In particular, Tomanan testified that he was directed by the COA

Regional Office XI to conduct a special and comprehensive audit of
the municipality of Malungon for the period of 1 May 1995 to 31 May
1996[15] in view of a complaint filed by certain officials therein. In January
1997, Tomanan submitted his report detailing the following adverse findings
relative to the purchase of the subject fleet of heavy equipment: (a) the
lease/purchase contract was disadvantageous to the municipal government
because of the rigid terms and conditions therein required of the municipality
before the latter could acquire ownership over the pool of heavy equipment;
(b) Norlovanian Corporation had no proof of ownership of the fleet of
equipment as the audit revealed that title to the equipment was in the name
of Lindong; (c) the lease/purchase procedure violated Sections 27 and 28 of
the Rules and Regulations on Supply and Property Management in Local
Governments;[16] and (d) the lease/purchase procedure utilized by the
municipality was uneconomical and resulted to a wastage of P9,658,000.00
of government funds.[17]

Asgapo, on the other hand, testified that he was present during the 29
February 1996 meeting where Lindong appeared before the Sanggunian. The
witness asserted that the lease contract was never concurred in by the
municipal council as required by Resolution No. 21. He admitted, however,
that neither was there any resolution passed opposing, objecting to or
rejecting the lease contract. Moreover, Asgapo alleged that at the time he
first obtained a copy of the lease contract from the municipal treasurer on 6
March 1996, he did not see the Undertaking dated 28 February
1996[18] attached or annexed thereto. He was only able to get a copy of the
latter document about three (3) or four (4) days thereafter, following an
inquiry with the provincial auditor.[19]

Thereafter, on 18 April 1996, the Sangguniang Bayan unanimously

passed Resolution No. 38[12] requesting petitioner to operate the newly
acquired fleet of heavy equipment. The municipality subsequently utilized the
fleet.[13]

The defense presented Lindong as its sole witness. According to

Lindong, after negotiations between himself and petitioner Constantino,
together with some members of theSanggunian, the parties agreed to a
lease/purchase scheme in accordance with the mandate of Resolution No. 21.
They agreed that since the municipality did not have sufficient funds to buy
the fleet of heavy equipment outright at P8.9 Million, the latter would
purchase the subject equipment on installment basis but with allowance for
Norlovanian Corporation to recover some incremental cost. Thus, on the very
same day, 28 February 1996, Lindong as representative of Norlovanian
Corporation and Constantino as representative of the municipality entered
into the lease/purchase agreement. They contemporaneously executed the
Lease Agreement and Undertaking in the presence of the members of
the Sanggunian who accompanied the mayor.[20]

However,
only
five
(5) days
later,
or
on 23
April
1996, Sanggunian members Benjamin C. Asgapo, Rafael J. Suson, Sr. (Suson),
Leo G. Ingay (Ingay), Pablo V. Octavio (Octavio) and Wilfredo P. Espinosa
(Espinosa), and Vice Mayor Primitiva L. Espinosa (Vice Mayor Espinosa) filed a
formal complaint against petitioners Constantino and Lindong for violation of
R.A. No. 3019.

Lindong further testified that he attended the municipal council meeting

on 29 February 1996 to provide the members thereof with a copy of the lease
contract and to explain the transaction. Moreover, he explained that
notwithstanding the fact that the main agreement was captioned only as a
Lease Agreement, the same being a standard pre-printed form of his
corporation, the intent of the parties was to enter into a lease/purchase

agreement. Hence, he clarified that the Undertaking he executed bound him

to convey ownership over the fleet of heavy equipment to the municipality
upon the full payment thereof.[21]

Finally, Lindong averred that more than two (2) months after he
delivered the fleet of equipment to the municipality, he received a Certificate
of Concurrence dated 9 May 1996 issued by Nemesio Liray, Chairman of the
Committee of Finance of the Sangguniang Bayan, certifying that the Lease
Agreement was concurred in by the members of the Committee on 29
February 1996. Likewise, he received a Certification dated 17 May 1996 from
the
Pre-Qualification,
Bids
and
Awards
Committee
of
the Municipality of Malungon, that the members thereof approved,
concurred in and signed the contract of lease between the municipality and
Norlovanian Corporation.[22]

Finding that the prosecution had proven beyond reasonable doubt the
guilt of Constantino and Lindong of the offense as charged, the
Sandiganbayan rendered the assailed decision sentencing them both, thus:

WHEREFORE, judgment is hereby rendered finding accused FELIPE K.

CONSTANTINO and NORBERTO N. LINDONG GUILTY beyond reasonable doubt
of the crime of violation of Section 3 (e) of R.A. No. 3019, otherwise known as
The Anti-Graft and Corrupt Practices Act, and said accused are hereby
sentenced, as follows:

(a) to suffer an indeterminate sentence of imprisonment for a period of six (6)

years and one (1) month as minimum to twelve (12) years and one (1) month
as maximum;

(b) to suffer perpetual disqualification from public office;

(c) to jointly and severally indemnify the Municipality of Malungon, Province

of Sarangani the sum of Two Million One Hundred Seventy-Seven Thousand
[sic] and 91/1000 [sic] Pesos (P2,177,090.91), representing the amount
actually paid to Norlovanian Corporation, with interest at the legal rate
computed from March 6, 1996 until fully paid; and

(d) to pay the costs of suit.

SO ORDERED.[23]

The Sandiganbayan held that neither manifest partiality nor evident

bad faith attended the commission of the offense. However, it found that
petitioner
Constantino
caused
undue
injury
to
the Municipality of Malungon through his gross inexcusable negligence in

executing only a lease agreement over the fleet of heavy equipment. Anent
Lindong, the graft court upheld his culpability as co-conspirator of
Constantino despite its finding that the latter violated the anti-graft law
through negligence only. The Sandiganbayan ratiocinated that since the law
violated is a special law, proof that he intended to commit the particular
offense was not essential, as it otherwise would have been for a felony
punishable by the Revised Penal Code. The Sandiganbayan ruled that it was
sufficient for the prosecution to have proven, as it did, that Lindong allowed
or failed to prevent Constantino from entering into an agreement which was
clearly contrary to law. Thus, even if petitioner was found guilty of causing
undue injury to the municipality through gross inexcusable negligence, the
anti-graft court concluded that his co-conspirator could likewise be held
liable.[24]

It appears that during trial, both accused were represented by the same
counsel. However, after judgment was rendered against them, Constantino
and Lindong filed separate appeals to the Supreme Court which have taken
disparate routes. On 25 April 2006, during the pendency of his present
appeal, Constantino passed away.[25]

Lindong himself likewise filed a petition for review on certiorari,

docketed as G.R. No. 142379, to seek a reversal of the Sandiganbayan
decision finding him guilty as Constantinos co-conspirator. On 10 July 2000,
this Court denied Lindongs petition for failure to state the material date of
receipt of the assailed decision of the Sandiganbayan. His subsequent
attempts for reconsideration proved futile. On 25 July 2001, the Court issued
the Entry of Judgment in the case.

Thereafter, the Sandiganbayan (First Division) issued three (3) orders

relative to the execution of judgment against Lindong, all of which are
assailed by the latter, in his petition for certiorari in G.R. No. 154482, for
having been issued with grave abuse of discretion. The Sandiganbayan issued
on 16 May 2002 the first challenged order which directed petitioner Lindong
to appear before it in person for the execution of judgment. On 6 June 2002,
the respondent court issued a resolution, the second assailed order herein,
denying Lindongs urgent motion to defer execution of judgment. The third
assailed order, a resolution issued on 3 July 2002, directed the issuance of a
bench warrant against petitioner Lindong and the confiscation of his cash
bond for provisional liberty pending appeal, and required him to surrender his
person to the court and explain why judgment should not be rendered against
the cash bond.

With the demise of Constantino during the pendency of his appeal, the
same should normally be regarded as moot and academic following the norm
that the death of the accused marks the extinction of his criminal
liability.[26] However, the present two petitions are so intertwined that the
absolution of Constantino is ultimately determinative of the absolution of
Lindong. Indeed, the exoneration of Constantino will necessarily signify the
injustice of carrying out the penalty imposed on Lindong. Thus, the Court in
this instance has to ascertain the merits of Constantinos appeal to prevent a
developing miscarriage of justice against Lindong.

The "moot and academic" principle is not a magical

formula that
can automatically dissuade the courts in resolving
a case. Courts will
decide cases, otherwise moot and academic, if: First, there is a grave
violation of the Constitution;[27] Second,
the exceptional character of the
situation and the paramount
public interest is involved;[28] Third, when
constitutional issue raised requires formulation of controlling principles to
guide the bench, the bar, and the public;[29] and Fourth, the case is capable of

repetition yet evading review.[30] In the instant case, the exceptional

character of the appeals of Constantino and Lindong in relation to each other,
as well as the higher interest of justice, requires that the Court determine the
merits of the petition and not dismiss the same outright on the ground of
mootness.

The Ruling of the Court

In order to be liable for violating the law, the following elements must
concur: (1) the accused is a public officer or a private person charged in
conspiracy with the former; (2) he or she causes undue injury to any party,
whether the government or a private party; (3) the said public officer
commits the prohibited acts during the performance of his or her official
duties or in relation to his or her public positions; (4) such undue injury is
caused by giving unwarranted benefits, advantage or preference to such
parties; and (5) the public officer has acted with manifest partiality, evident
bad faith or gross inexcusable negligence.[32]

G.R. No. 140656

Petitioner Constantino impugned his conviction and asserted that the

Sandiganbayan erred in convicting him based on its finding that he violated
Resolution No. 21 by entering into a Lease Agreement with the Norlovanian
Corporation and for his failure to sign the accompanying Undertaking.
Likewise, he argued that the evidence adduced by the prosecution was
insufficient to overcome the constitutional presumption of innocence in his
favor. Finally, Constantino contended that it was error for the Sandiganbayan
to disregard the findings of the Supreme Court en banc in the earlier case
of Constantino v. Hon. Ombudsman Desierto.[31]

Constantinos petition would have been granted and he would have

been absolved of criminal liability had he been still alive today. This is why it
is so.

There are two (2) modes of committing the offense, thus: (1) the public
officer caused any undue injury to any party, including the government; or (2)
the public officer gave any private party unwarranted benefits, advantage or
preference in the discharge of his functions.[33] An accused may be charged
under either mode[34] or under both should both modes concur.[35]

Additionally, Section 3(e) poses the standard of manifest partiality,

evident bad faith or gross inexcusable negligence before liability can be had
under the provision. Manifest partiality is characterized by a clear, notorious
or plain inclination or predilection to favor one side rather than the
other.[36] Evident bad faith connotes a manifest deliberate intent on the part
of the accused to do
wrong or cause damage.[37] Gross inexcusable
negligence is defined as negligence characterized by the want of even slight
care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally with a conscious indifference to
consequences insofar as other persons may
be affected.[38] Mere bad
faith or partiality and negligence per se are not enough for one to be held
liable under the law since the act of bad faith or partiality must in the first
place be evident or manifest, respectively, while the negligent deed should
both be gross and inexcusable.[39]

Section 3(e) of R.A. No. 3019 provides:

SEC. 3. Corrupt practices of public officers. In addition to acts

or omissions of public officers already penalized by existing law, the following
shall constitute corrupt practices of any public officer and are hereby declared
to be unlawful:

As discussed previously, the Sandiganbayan held that manifest

partiality could not be rightfully imputed to Constantino.[40] The prosecution
did not present proof that he was actuated with malice or fraud sufficient to
meet the requirement of proof beyond reasonable doubt.[41] However, the
respondent court found that Constantinos act of entering into a purportedly
pure lease agreement instead of a lease/purchase agreement was a flagrant
violation of Resolution No. 21. In view of the rigid terms of the subject
contract to which Constantino assented, coupled by his failure to secure the
concurrence of the Sangguniang Bayan before entering into the agreement,
the Sandiganbayan found that his conduct constituted gross inexcusable
negligence.[42] Likewise, the anti-graft court ruled that Constantinos acts
resulted in undue injury to the Municipality of Malungon.[43] Notably, in the
course of trial, the prosecution admitted that it had no proof that
unwarranted benefits and advantage had been given to Norlovanian
Corporation.[44]

xxxx

(e) Causing any undue injury to any party, including the

Government, or giving any private party any unwarranted benefits,
advantage, or preference in the discharge of his official, administrative or
judicial functions through manifest partiality, evident bad faith or gross
inexcusable negligence. This provision shall apply to officers and employees of
offices or government corporations charged with the grant of licenses or
permits or other concessions.

Undoubtedly, the standard of culpability imposed by Section 3 of R.A.

No. 3019 is quite high which, in this case, was not hurdled by the evidence
presented against Constantino. Verily, the prosecution failed to satisfy the
requisite proof to demonstrate Constantinos guilt beyond reasonable doubt.
While Constantino should have exercised more prudence when he transacted
with Norlovanian Corporation, he could not however be held liable for gross
inexcusable negligence as contemplated in R.A. No. 3019. Indeed, in the
earlier case of Constantino v. Desierto,[45] the Court had already made an
express finding that petitioner Constantino did not violate the mandate of
Resolution No. 21 but instead merely carried out its directive.

That case was a special civil action for certiorari filed by Constantino to
seek the invalidation of the resolution of the Ombudsman finding him guilty
of grave misconduct prejudicial to the best interest of the service and/or
gross neglect of duty, and on that account, dismissing him from service. The
controversy arose from the same transaction entered into between
Constantino and Norlovanian Corporation and involved the same subject
matter as in the case at bar. The administrative complaint was initiated
through a letter-complaint and joint affidavit signed by Vice Mayor Espinosa
and to it was appended a certification signed by the Vice Mayor and
Councilors Suson, Ingay, Asgapo, Espinosa and Octavio.

In exonerating Constantino from the administrative charges, the Court

found that the evidence against him was inadequate to warrant his dismissal
from service on the grounds of grave misconduct, conduct prejudicial to the
best interest of the service and gross neglect of duty. More particularly, we
made the following pronouncements:

The explicit terms of Resolution No. 21, Series of 1996 clearly

authorized Mayor Constantino to lease/purchase one (1) fleet of heavy
equipment composed of seven (7) generally described units, through a
negotiated contract. That resolution, as observed at the outset, contained
no parameters as of rate of rental, period of lease, purchase price. Pursuant
thereto, Mayor Constantino, representing theMunicipality of Malungon, and
Norberto Lindong, representing the Norlovanian Corporation, executed two
written instruments of the same date and occasion, viz.:

One an agreement(on a standard printed form)

dated Febr[ua]ry 28, 1996 for the lease by the corporation to
the municipality of heavy equipment of the number and
description
required by Resolution no. 21, and

Two an undertaking for the subsequent conveyance and

transfer of ownership of the equipment to the municipality
at the end
of the term of the lease.

That the Members of the Sangguniang Bayan knew of this

lease/purchase is evident from Resolution No. 38, Series of 1996
unanimously enacted by them shortly after delivery of the equipment. In that
resolution they (1) declared that the Municipal Government ** has just
acquired its fleet of heavy equipment leased/purchased from the Norlovanian
Corporation, and (2) requested Mayor Constantino to operate the newly
acquired heavy equipment ** leased/purchase from the Norlovanian
Corporation. The Resolution is consistent with the allegations of Mayor
Constantino which in any event are not denied by the Councilors or ViceMayor Espinosa that:

1) the equipment was delivered to the Municipality by

Norlovanian Corporation on February 28, 1996 and duly inspected by
Councilors Guilley, Ruez, Nallos and Liray, as well as the Municipal Engineer
and the Municipal Treasurer;

2) prior to the delivery of the units, the Vice Mayor and other
Members of the Sanguniang Bayan had opportunity to read the Lease
Agreement as well as the Undertaking but then raised no objections
thereto;

3) neither did they raise any objections (a) at the session of the
Municipal Council on February 29, 1996, when Norberto Lindong explained
the terms of the negotiated contract of lease/purchase, or (b) at the time
that the units were delivered and inspected by designated minicipal officials.

Now, it is germane to advert to the deplorable inaccuracies in

the Joint Affidavit of private respondents (P.L. Espinosa, Suson, Sr., Ingay, W.
P. Espinosa, Octavio, Asgapo) submitted as part of their complaint in the
Ombudsmans Office. The affidavit contains a clearly distorted version of
Resolution No. 21 of February 22, 1996. In that document of the affiants
described Resolution No. 21 as authorizing Mayor Constantino to purchase
and acquire ** heavy equipments (sic) to be paid within five (5) years at the
yearly amortization of P2.2 million **. This is a misleading reading of
Resolution No. 21. As the most cursory perusal of that resolution at once
discloses, what the Mayor was thereby empowered to do was to enter into a
negotiated contract in the Municipalitys behalf with interested parties, in
line with the expressed wish of the Municipality to lease/purchase one (1)
fleet of heavy equipment ** not simply to purchase and acquire said
equipment (as complainant Councilors aver). Neither does Resolution No. 21
state (contrary to complainants description of it) that the price shall be paid
within five (5) years at the yearly amortization of P2.2 million **; indeed, as
already above stressed, the resolution is completely silent as regards any
terms and conditions of the negotiated contract that the Mayor was
assigned to execute in the towns behalf. Such obvious distortions cannot but
erode the complainant councilors credibility andbona fides.

It is also relevant to draw attention to the flagrantly inaccurate

statements and inferences about the Mayors negotiated contract
regarding the heavy equipment, contained in Resolution No. 47 approved
only by four (4) Members of the Municipal Council at its session of June 6,
1996 (the four (4) being Councilors Octavio, Espinosa, Asgapo and Ingay).
That Resolution No. 47, it will be recalled, stopped all rental
payment/expenditures relative to the pool of heavy equipment of the
Norlovanian Company. The stoppage was based on prior resolutions of the
Council allegedly setting down the terms under which the heavy
equipment should be acquired, and which terms were supposedly violated by
the Mayor. but unaccountably and again indicative of bad faith, if not
malice, on the part of private respondents Resolution No. 47 made
absolutely no reference to two (2) resolution which on their face justify the
Mayors contract with Norlovanian Corporation, to wit: (1) Resolution No. 21
which, having been enacted after the cited resolutions, must be deemed to
have superseded them, and which, to repeat, motivated and constitutes the
justification for the lease-purchase agreement entered into by the Mayor and
Norlovanian Corporation, and (2) Resolution No. 38 in which the Councilors
not only expressly aknowledged that the municipal government ** (had) just
acquired its fleet of heavy equipment leased/purchased from the Norlovanian
Corporation, but alsorequested ** (the) Mayor ** to operate the newly
acquired heavy equipment of the municipality leased/purchased from the
Norlovanian Corporation.

In light of the forego[i]ng facts, which appear to the Court to

be quite apparent on the record, it is difficult to perceive how the Office of
the Ombudsman could have arrived at a conclusion of any wrongdoing by
the Mayor in relation to the transaction in question. It is difficult to see how

the transaction between the Mayor and Norlovanian Corporation

entered into pursuant to Resolution No. 21 and tacitly accepted and
approved by the town Council through its Resolution No. 38 could be
deemed an infringement of the same Resolution No. 21. In truth, an
examination of the pertinent writings (the resolution, the two (2)
instruments constituting the negotiated contract, and the certificate of
delivery) unavoidably confirms their integrity and congruity. It is in fine,
difficult to see how those pertinent written instrument, could establish
a prima facie case to warrant the preventive suspension of Mayor
Constantino. A person with the most elementary grasp of the English
language would, from merely scanning those material documents, at once
realize that the Mayor had done nothing but carry out the expressed wishes
of the Sangguniang Bayan.

xxxx

The investigator also opined that Resolution No. 21 should be

interpreted in light of other official documents, executed a year earlier. He
[Graft Prosecutor Buena] does not explain why he did not adopt the more
obvious construction of Resolution No. 21 indicated by the elementary
doctrine that it is within the power and prerogative of the town council to
repeal its prior acts, either expressly, or by the passage of essentially
inconsistent resolutions. When the town council passed Resolution No. 21
without any mention whatever of those prior official documents respecting
the acquisition to heavy equipment, the evident intention was to supersede
them and to have such acquisition governed solely by Resolution No. 21.
This conclusion is strongly supported by the fact that the Sanggunian
expressly admitted in the Second Whereas Clause of its Resolution No.
21 that there had been a failure of bidders to submit bids despite of two
biddings ... public announcement [sic] the two biddings being obviously
related to said earlier official acts of the town council. The conclusion is
further bolstered by the fact that the Council (with full awareness of said
negotiated contract,) and of the delivery of equipment thereunder, had
requested the Mayor to put the equipment into operation for the town
projects. The Court is thus satisfied that it was in fact the Councils
intention, which it expressed in clear language, to confer on the Mayor
ample discretion to execute a negotiated contract with any interested
party, without regard to any official acts of the Council prior to Resolution
No. 21.

It is also difficult to see why the patent inaccuracies in the

affidavit-complaint and Resolution No. 47 were ignored as difficult to
understand how the execution of two writings to embody one contract of
lease/purchase could be regarded as fatally defective, and even indicative
of a criminal conspiracy, or why said two writings should be interpreted in
such a way as to magnify their seeming inconsistencies. The fundamental
and familiar legal principle which the Office of the Ombudsman
ignored is that it is perfectly legitimate for a bilateral contract to be
embodied in two or more separate writings, and that in such an event the
writings should be read and interpreted together in such a way as to
eliminate seeming inconsistencies and render the parties intention
effectual.

The statement in the appealed Resolution as to the absence

of prior consent of the Council to the negotiated contract executed by
Mayor Constantino and Norlovanian Corporation flies in the teeth of the
evidence; there is unrebutted proof that the heavy equipment delivered to the
Municipality pursuant to the contract, was inspected by designated
councilors and municipal officers; that shortly thereafter, the negotiated
contract composed of two documents was explained and discussed at
the session of the town Council of February 29, 1996; and that afterwards the

Council requested Mayor Constantino to put the equipment into operation.

(Emphasis supplied)[46]

Although
the
instant
case
involves
a
criminal
charge
whereas Constantino involved an administrative charge, still the findings in
the latter case are binding herein because the same set of facts are the
subject of both cases. What is decisive is that the issues already litigated in a
final and executory judgment preclude by the principle of bar by prior
judgment, an aspect of the doctrine of res judicata, and even under the
doctrine of law of the case, the re-litigation of the same issue in another
action.[47] It is well established that when a right or fact has been judicially
tried and determined by a court of competent jurisdiction, so long as it
remains unreversed, it should be conclusive upon the parties and those in
privity with them.[48] The dictum therein laid down became the law of the case
and what was once irrevocably established as the controlling legal rule or
decision continues to be binding between the same parties as long as the
facts on which the decision was predicated continue to be the facts of the
case before the court. Hence, the binding effect and enforceability of that
dictum can no longer be resurrected anew since such issue had already been
resolved and finally laid to rest, if not by the principle of res judicata, at least
by conclusiveness of judgment.[49]

It may be true that the basis of administrative liability differs from criminal
liability as the purpose of administrative proceedings on the one hand is
mainly to protect the public service, based on the time-honored principle that
a public office is a public trust. On the other hand, the purpose of the
criminal prosecution is the punishment of crime.[50] However, the dismissal by
the Court of the administrative case against Constantino based on the same
subject matter and after examining the same crucial evidence operates to
dismiss the criminal case because of the precise finding that the act from
which liability is anchored does not exist.

It is likewise clear from the decision of the Court in Constantino that the level
of proof required in administrative cases which is substantial evidence was
not mustered therein. The same evidence is again before the Court in
connection with the appeal in the criminal case. Ineluctably, the same
evidence cannot with greater reason satisfy the higher standard in criminal
cases such as the present case which is evidence beyond reasonable doubt.

The elementary principle is that it is perfectly legitimate for a bilateral

contract to be embodied in two or more separate writings, and that in such
an event the writings should be read and interpreted together in such a way
as to eliminate seeming inconsistencies and render the intention of the
parties effectual.[51] In construing a written contract, the reason behind and
the circumstances surrounding its execution are of paramount importance to
place the interpreter in the situation occupied by the parties concerned at the
time the writing was executed.[52]Construction of the terms of a contract,
which would amount to impairment or loss of right, is not
favored. Conservation and preservation, not waiver, abandonment or
forfeiture of a right, is the rule.[53] In case of doubts in contracts, the same
should be settled in favor of the greatest reciprocity of interests.[54]

G.R. No. 154482

Lindong ascribes grave abuse of discretion on the part of respondent

court in issuing the challenged orders. He argues that the Sandiganbayan
erred in not holding in abeyance the execution of judgment against him in
light of the pending petition for review by his co-accused before this Court of
the same decision for which he was convicted. Should the decision be set
aside by the Supreme Court, petitioner Lindong contends, he will be benefited
to the extent that there can no longer be any judgment to legally execute
against both himself and Constantino.

The Court in its original decision affirmed the former First Ladys
conviction for violation of Section 3(g) of R[.]A[.] [No.] 3019 but acquitted her
co-accused, Dans, Jr., of the said offense. As stated earlier, upon the former
First Ladys motion for reconsideration, the Court reversed her conviction in
its Resolution in Marcos.

The virtual acquittal of Constantino inevitably puts a welcome end to

the tribulations of Lindong. Thus, we grant the petition.

One of the essential elements for violating Section 3(e) of R.A. No. 3019
is that the respondent is a public officer discharging administrative, judicial or
official functions, or that he or she is a private individual in conspiracy with
such public officer. In the instant case, the essential acquittal of Constantino,
as presaged in G.R. No. 140656 and presented in the disquisition, renders an
absence in the critical requisite of a public officer with whom Lindong, the
private individual, allegedly conspired to commit the crime charged.

Hence, we now have before us an incongruous situation where

execution of judgment has been entered against a private person accused
with conspiring with a public officer for violation of the anti-graft law, but at
the same time said public officer would unequivocably be entitled to
exoneration had he not died in the meantime. Yet, it is utterly illogical to
absolve Constantino who entered into the contract on behalf of the
government and send the private person to prison.

The case of Marcos v. Sandiganbayan (1st Division)[55] is instructive.

Here, the Court granted the motion for reconsideration filed by former First
Lady Imelda Marcos and acquitted her of the charge of violating Section 3(g)
of R.A. No. 3019. Her acquittal was based on the finding that she signed the
subject lease agreement not as a public officer, but as a private person. Thus,
the Court found that the first element of the offense, i.e., that the accused is a
public officer, was lacking. However, the acquittal of the former First Lady
was taken in conjunction with the acquittal of the public officer with whom
she was accused.[56]

The case of Go v. The Fifth Division, Sandiganbayan, et al.

elucidates the matter as illustrated in Marcos, to wit:

[57]

further

x x x [T]he acquittal of the former First Lady should be taken in the context
of the Courts Decision dated January 29, 1198, in Dans, Jr. v. People, which
the former First Lady sought to reconsider and, finding merit in her motion,
gave rise to the Courts Resolution in Marcos. In Dans, the Information filed
against the former First Lady and Jose P. Dans, Jr., then Minister of
Transportation and Communications, for violation of Section 3(g) of R[.]A[.]
[No.] 3019, alleged that they were both public officers and, conspiring with
each other, entered into the subject lease agreement covering the LRTA
property with the PGHFI, a private entity, under terms and conditions
manifestly and grossly disadvantageous to the government.

It
can
be
gleaned
from
the
entire
context
of Marcos and Dans that the reversal of the former First Ladys conviction
was based on the fact that it was later held that she signed the subject lease
agreement as a private person, not a public officer. However, this acquittal
should also be taken in conjunction with the fact that the public officer with
whom she had supposedly conspired, her co-accused Dans, had earlier been
acquitted. In other words, the element that the accused is a public officer,
was totally wanting in the former First Ladys case because Dans, the public
officer with whom she had allegedly conspired in committing Section 3(g) of
R[.]A[.] [No.] 3019, had already been acquitted. Obviously, the former First
Lady could not be convicted, on her own as a private person, of the same
offense. (Emphasis supplied)

It is therefore apparent that in light of the prevailing milieu in the

instant case, we cannot sustain the execution of judgment against Lindong.
The reversal of the decision of the Sandiganbayan in Criminal Case No. 23433
makes it legally absurd to execute any such judgment against him.

Moreover, Rule 122, Section 11(a) of the Revised Rules of Criminal

Procedure operates in his favor. The Rule provides:

SEC. 11. Effect of appeal by any of several accused.

(a) An appeal taken by one or more of several accused shall not affect those
who did not appeal, except insofar as the judgment of the appellate court is
favorable and applicable to the latter.

Although the rule states that a favorable judgment shall benefit those
who did not appeal, we have held that a literal interpretation of the phrase
did not appeal will not give justice to the purpose of the provision. It
should be read in its entirety and should not be myopically construed so as to
defeat its reason, i.e., to benefit an accused who did not join in the appeal of
his co-accused in case where the appellate judgment is favorable.[58]

In fact, the Court has at various times applied the foregoing provision
without regard to the filing or non-filing of an appeal by a co-accused, so long
as the judgment was favorable to him. In such cases, the co-accused already

withdrew his appeal,[59] failed to file an appellants brief,[60] or filed a notice of

appeal with the trial court but eventually withdrew the same.[61]Even more, in
these cases, all the accused appealed from the judgment of conviction but for
one reason or another, their conviction had already become final and
executory. Nevertheless, the Court still applied to them the favorable
judgment in favor of their co-accused.[62] Therefore, we cannot find a reason
to treat Lindong differently, especially so in this case where the public officer
accused of violating the anti-graft law has been acquitted, and the appeal by
Lindong was dismissed on a technicality.

WHEREFORE, the petition in G.R. No. 140656, although meritorious, is

DENIED
on
the
ground
of
mootness. The petition in G.R.
No. 154482 is GRANTED. The challenged orders of the

Sandiganbayan in Criminal Case No. 23433 are NULLIFIED and SET ASIDE. The
Sandiganbayan is permanently enjoined from executing said orders.

SO ORDERED.

G.R. No. 131255 May 20, 1998

HON. EDUARDO NONATO JOSON, in his capacity as the Governor of the
Province
of
Nueva
Ecija, petitioner,
vs.
EXECUTIVE SECRETARY RUBEN D. TORRES, the DEPARTMENT OF THE
INTERIOR & LOCAL GOVERNMENTS, represented by SECRETARY ROBERT Z.
BARBERS and UNDERSECRETARY MANUEL R. SANCHEZ, MR. OSCAR C.
TINIO, in his capacity as Provincial Vice-Governor of Nueva Ecija, and MR.
LORETO P. PANGILINAN, MR. CRISPULO S. ESGUERRA, MS. SOLITA C.
SANTOS, MR. VICENTE C. PALILIO, and MR. NAPOLEON G. INTERIOR, in their
capacity as Provincial Board Members of Nueva Ecija, respondents.

police security detail for the Sangguniang Panlalawigan of Nueva

Ecija. Should the evidence warrant after investigation, to order his
removal from office.
2. To conduct an emergency audit of the provincial treasury of
Nueva Ecija by the auditors from the Commission on Audit Central
Office with adequate police security assistance. Should the
evidence so warrant, to file necessary charges against responsible
and accountable officers.
3. To advise the Philippine National Bank to review the capability
of the province of Nueva Ecija to secure more loans and the
feasibility of the same in the light of the present financial
condition of the province. Or if said loan will be contrary to sound
banking practice, recommend its disapproval. 1
The letter-complaint was submitted with the joint affidavit of Elnora
Escombien and Jacqueline Jane Perez, two (2) employees of the Sangguniang
Panlalawigan who witnessed the incident. The letter was endorsed by
Congressmen Eleuterio Violago and Pacifico Fajardo of the Second and Third
Districts of Nueva Ecija, former Congressman Victorio Lorenzo of the Fourth
District, and Mayor Placido Calma, President of the Mayors' League of said
province. 2
The President acted on the complaint by writing on its margin the following:
17 Sep 96

PUNO, J.:
To: SILG info Exec. Sec. and Sec. of Justice:
The case at bar involves the validity of the suspension from office of
petitioner Eduardo Nonato Joson as Governor of the province of Nueva Ecija.
Private respondent Oscar C. Tinio is the Vice-Governor of said province while
private respondents Loreto P. Pangilinan, Crispulo S. Esguerra, Solita C.
Santos, Vicente C. Palilio and Napoleon Interior are members of the
Sangguniang Panlalawigan.
On September 17, 1996, private respondents filed with the Office of the
President a letter-complaint dated September 13, 1997 charging petitioner
with grave misconduct and abuse of authority. Private respondents alleged
that in the morning of September 12, 1996, they were at the session hall of
the provincial capitol for a scheduled session of the Sangguniang
Panlalawigan when petitioner belligerently barged into the Hall; petitioner
angrily kicked the door and chairs in the Hall and uttered threatening words
at them; close behind petitioner were several men with long and short
firearms who encircled the area. Private respondents claim that this incident
was an offshoot of their resistance to a pending legislative measure
supported by petitioner that the province of Nueva Ecija obtain a loan of
P150 million from the Philippine National Bank; that petitioner's acts were
intended to harass them into approving this loan; that fortunately, no session
of the Sangguniang Panlalawigan was held that day for lack of quorum and
the proposed legislative measure was not considered; that private
respondents opposed the loan because the province of Nueva Ecija had an
unliquidated obligation of more than P70 million incurred without prior
authorization from the Sangguniang Panlalawigan; that the provincial budget
officer and treasurer had earlier disclosed that the province could not afford
to contract another obligation; that petitioner's act of barging in and
intimidating private respondents was a serious insult to the integrity and
independence of the Sangguniang Panlalawigan; and that the presence of his
private army posed grave danger to private respondents' lives and safety.
Private respondents prayed for the suspension or removal of petitioner; for
an emergency audit of the provincial treasury of Nueva Ecija; and for the
review of the proposed loan in light of the financial condition of the province,
to wit:
In this regard, we respectfully request for the following assistance
from your good office:
1. To immediately suspend Governor N. [sic] Joson considering
the actual dangers that we are facing now, and provide adequate

1. Noted. There appears no justification for the use of force,

intimidation or armed followers in the situation of 12 Sep at the
Session Hall. 2. Take appropriate preemptive and investigative
actions. 3 BREAK NOT the PEACE.
FIDEL V.
RAMOS
(Signed). 3
President Ramos noted that the situation of "12 Sep at the Session Hall," i.e.,
the refusal of the members of the Sangguniang Panlalawigan to approve the
proposed loan, did not appear to justify "the use of force, intimidation or
armed followers." He thus instructed the then Secretary of the Interior and
Local Governments (SILG) Robert Barbers to "[t]ake appropriate preemptive
and investigative actions," but to "[b]reak not the peace."
The letter-complaint together with the President's marginal notes were sent
to Secretary Robert Z. Barbers on September 20, 1996. Acting upon the
instructions of the President, Secretary Barbers notified petitioner of the
case against him 4 and attached to the notice a copy of the complaint and its
annexes. In the same notice, Secretary Barbers directed petitioner "to submit
[his] verified/sworn answer thereto, not a motion to dismiss, together with
such documentary evidence that [he] has in support thereof, within fifteen
(15) days from receipt. 5
Immediately thereafter, Secretary Barbers proceeded to Nueva Ecija and
summoned petitioner and private respondents to a conference to settle the
controversy. The parties entered into an agreement whereby petitioner
promised to maintain peace and order in the province while private
respondents promised to refrain from filing cases that would adversely affect
their peaceful co-existence. 6
The peace agreement was not respected by the parties and the private
respondents reiterated their letter-complaint. Petitioner was again ordered
to file his answer to the letter-complaint within fifteen days from receipt.
Petitioner received a copy of this order on November 13, 1996. On the same
day, petitioner requested for an extension of thirty (30) days to submit his

answer because he was "trying to secure the services of legal counsel

experienced in administrative law practice. 7 The Department of the Interior
and Local Government (DILG), acting through Director Almario de los Santos,
Officer-In-Charge of the Legal Service, granted the motion, with the thirtyday extension to be reckoned, however, from November 13, 1996, i.e., the
day petitioner received the order to answer. 8
In a letter dated December 9, 1996, petitioner moved for another extension
of thirty (30) days to file his answer. He stated that he had already sent
letters to various law firms in Metro Manila but that he had not yet
contracted their services; that the advent of the Christmas season kept him
busy with "numerous and inevitable official engagements." 9 The DILG
granted the request for extension "for the last time up to January 13 only." 10
On January 7, 1997, petitioner requested for another extension of thirty (30)
days to file his answer. According to him, the Christmas season kept him very
busy and preoccupied with his numerous official engagements; that the law
firms he invited to handle his case have favorably replied but that he needed
time to confer with them personally; and that during this period, he, with the
help of his friends, was exploring the possibility of an amicable settlement of
the case. 11 The DILG granted petitioner's request "for the last time" but gave
him an extension of only ten (10) days from January 13, 1997 to January 23,
1997. The DILG also informed him that his "failure to submit answer will be
considered a waiver and that the plaintiff [shall] be allowed to present his
evidence ex parte." 12
Petitioner moved for reconsideration of the order. He reiterated his prayer
for an extension of thirty (30) days on the following grounds: (a) that he was
still in the process of choosing competent and experienced counsel; (b) that
some law firms refused to accept his case because it was perceived to be
politically motivated; and (c) the multifarious activities, appointments and
official functions of his office hindered his efforts to secure counsel of
choice. 13
Three months later, on April 22, 1997, Undersecretary Manuel Sanchez, then
Acting Secretary of the DILG, issued an order declaring petitioner in default
and to have waived his right to present evidence. Private respondents were
ordered to present their evidence ex-parte. The order reads as follows:
ORDER
It appearing that respondent failed to submit his answer to the
complaint despite the grant to him of three (3) extensions, such
unreasonable failure is deemed a waiver of his right to present
evidence in his behalf pursuant to Section 4, Rule 4 of
Administrative Order No. 23 dated December 17, 1992, as
amended.
Respondent is hereby declared in default, meanwhile,
complainants are directed to present their evidence ex-parte.
However, considering the prohibition on the conduct of
administrative investigation due to the forthcoming barangay
elections, complainants will be notified on the date after the
barangay election for them to present their evidence.
SO ORDERED. 14
Two days later, on April 24, 1997, the law firm of Padilla, Jimenez, Kintanar &
Asuncion, representing petitioner, filed with the DILG an "Entry of
Appearance with Motion for Time to File Answer Ad Cautelam."
Petitioner received a copy of the order of default on May 2, 1997. Through
counsel, he moved for reconsideration. On May 19, 1997, Undersecretary
Sanchez reconsidered the order of default in the interest of justice. He noted
the appearance of petitioner's counsel and gave petitioner "for the last time"
fifteen (15) days from receipt to file his answer. 15

On June 23, 1997, Undersecretary Sanchez issued an order stating that

petitioner's counsel, whose office is in Manila, should have received a copy of
the May 19, 1997 order ten days after mailing on May 27, 1997. Since
petitioner still failed to file his answer, he was deemed to have waived his
right to present evidence in his behalf. Undersecretary Sanchez reinstated
the order of default and directed private respondents to present their
evidence ex-parte on July 15, 1997. 16
The following day, June 24, 1997, petitioner, through counsel, filed a "Motion
to Dismiss." Petitioner alleged that the letter-complaint was not verified on
the day it was filed with the Office of the President; and that the DILG had no
jurisdiction over the case and no authority to require him, to answer the
complaint.
On July 4, 1997, petitioner filed an "Urgent Ex-Parte Motion for
Reconsideration" of the order of June 23, 1997 reinstating the order of
default. Petitioner also prayed that the hearing on the merits of the case be
held in abeyance until after the "Motion to Dismiss" shall have been
resolved.
On July 11, 1997, on recommendation of Secretary Barbers, Executive
Secretary Ruben Torres issued an order, by authority of the President,
placing petitioner under preventive suspension for sixty (60) days pending
investigation of the charges against him. 17
Secretary Barbers directed the Philippine National Police to assist in the
implementation of the order of preventive suspension. In petitioner's stead,
Secretary Barbers designated Vice-Governor Oscar Tinio as Acting Governor
until such time as petitioner's temporary legal incapacity shall have ceased to
exist. 18
Forthwith, petitioner filed a petition for certiorari and prohibition with the
Court of Appeals challenging the order of preventive suspension and the
order of default. 19
Meanwhile, the proceedings before the DILG continued. On August 20, 1997,
Undersecretary Sanchez issued an order denying petitioner's "Motion to
Dismiss" and " Urgent Ex-Parte Motion for Reconsideration." In the same
order, he required the parties to submit their position papers within an
inextendible period of ten days from receipt after which the case shall be
deemed submitted for resolution, to wit:
WHEREFORE, for lack of merit, both motions are denied.
However, for this office to have a better appreciation of the issues
raised in the instant case, the parties, through their respective
counsels are hereby directed to submit their position papers
within a period of ten (10) days from receipt hereof, which period
is inextendible, after which the case is deemed submitted for
resolution. 20
On August 27, 1997, petitioner filed with the DILG a "Motion to Lift Order of
Preventive Suspension." On September 10, 1997, petitioner followed this
with a "Motion to Lift Default Order and Admit Answer Ad
Cautelam." 21 Attached to the motion was the "Answer Ad Cautelam". 22 and
sworn statements of his witnesses. On the other hand, complainants (private
respondents herein) manifested that they were submitting the case for
decision based on the records, the complaint and affidavits of their
witnesses. 23
In his Answer Ad Cautelam, petitioner alleged that in the morning of
September 12, 1996, while he was at his district office in the town of Munoz,
he received a phone call from Sangguniang Panlalawigan member Jose del
Mundo. Del Mundo, who belonged to petitioner's political party, informed
him that Vice-Governor Tinio was enraged at the members of the
Sangguniang Panlalawigan who were in petitioner's party because they
refused to place on the agenda the ratification of the proposed P150 million
loan of the province. Petitioner repaired to the provincial capitol to advise his
party-mates on their problem and at the same time attend to his official
functions. Upon arrival, he went to the Session Hall and asked the members

present where Vice-Governor Tinio was. However, without waiting for their
reply, he left the Hall and proceeded to his office.
Petitioner claimed that there was nothing in his conduct that threatened the
members of the Sangguniang Panlalawigan or caused alarm to the
employees. He said that like Vice-Governor Tinio, he was always
accompanied by his official security escorts whenever he reported for work.
He also alleged that the joint affidavit of Elnora Escombien and Jacqueline
Jane Perez was false. Escombien was purportedly not inside the session hall
during the incident but was at her desk at the office and could not in any way
have seen petitioner in the hall. To attest to the truth of his allegations,
petitioner submitted three (3) joint affidavits two (2) affidavits executed
by six (6) and ten (10) employees, respectively, of the provincial government,
and a third by four members of the Sangguniang Panlalawigan. 24

On January 19, 1998, private respondents submitted a Manifestation

informing this Court that the suspension of petitioner was implemented on
January 9, 1998; that on the same day, private respondent Oscar Tinio was
installed as Acting Governor of the province; and that in view of these
events, the temporary restraining order had lost its purpose and effectivity
and was fait accompli. 32 We noted this Manifestation.
In his petition, petitioner alleges that:
I THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
RULES OF PROCEDURE AND EVIDENCE SHOULD NOT BE STRICTLY
APPLIED IN THE ADMINISTRATIVE DISCIPLINARY AND CLEARLY
PUNITIVE PROCEEDINGS IN THE CASE AGAINST PETITIONER
GOVERNOR EDNO JOSON;

On September 11, 1997, petitioner filed an "Urgent Motion for

Reconsideration" of the order of August 20, 1997 denying his motion to
dismiss. The "Urgent Motion for Reconsideration" was rejected by
Undersecretary Sanchez on October 8, 1997. Undesecretary Sanchez,
however, granted the "Motion to Lift Default Order and to Admit Answer Ad
Cautelam" and admitted the "Answer Ad Cautelam" as petitioner's position
paper pursuant to the order of August 20, 1997. 25

II THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE

ALTER-EGO PRINCIPLE BECAUSE, CONTRARY TO LAW, IT WAS THE
SECRETARY OF THE DILG WHO WAS EXERCISING THE POWERS OF
THE PRESIDENT WHICH ARE CLEARLY VESTED BY LAW ONLY UPON
HIM OR THE EXECUTIVE SECRETARY.
III THE COURT OF APPEALS ERRED IN RULING THAT THE
PETITIONER WAS PROPERLY DECLARED IN DEFAULT WHEN HE
FILED A MOTION TO DISMISS INSTEAD OF AN ANSWER, AS
DIRECTED BY THE DILG, BECAUSE A MOTION TO DISMISS BASED
ON JURISDICTIONAL GROUNDS IS NOT A PROHIBITIVE [sic]
PLEADING IN ADMINISTRATIVE DISCIPLINARY CASES.

On October 15, 1997, petitioner filed a "Motion to Conduct Formal

Investigation." Petitioner prayed that a formal investigation of his case be
conducted pursuant to the provisions of the Local Government Code of 1991
and Rule 7 of Administrative Order No. 23; and that this be held at the
province of Nueva Ecija. 26 On October 29, 1997, petitioner submitted a
"Manifestation and Motion" before the DILG reiterating his right to a formal
investigation.

IV THE COURT OF APPEALS ERRED IN RULING THAT THE

IMPOSITION OF PREVENTIVE SUSPENSION AGAINST THE
PETITIONER WAS PROPER BECAUSE THERE WAS NO JOINDER OF
ISSUES YET UPON ITS IMPOSITION AND THERE WAS NO EVIDENCE
OF GUILT AGAINST PETITIONER. 33

In the meantime, on October 24, 1997, the Court of Appeals dismissed

petitioner's petition. 27
Hence this recourse.
The proceedings before the DILG continued however. In an order dated
November 11, 1997, the DILG denied petitioner's "Motion to Conduct Formal
Investigation" declaring that the submission of position papers substantially
complies with the requirements of procedural due process in administrative
proceedings. 28

In his "Motion for Leave to File Herein Incorporated Urgent Motion for the
Issuance of a Temporary Restraining Order and/or a Writ of Preliminary
Injunction," petitioner also claims that:
I THE RESOLUTION OF JANUARY 8, 1998 AND THE MEMORANDA
ISSUED PURSUANT THERETO (i.e., ANNEXES "C," "D," "E," "F," AND
"G" HEREOF) WERE ISSUED WITH UNDUE HASTE, IN VIOLATION
OF THE PERTINENT PROVISIONS OF THE 1991 LOCAL
GOVERNMENT CODE AND ADMINISTRATIVE ORDER NO. 23, AND
IN COMPLETE DISREGARD OF PETITIONER'S CONSTITUTIONAL
RIGHT TO DUE PROCESS.

A few days after filing the petition before this Court, petitioner filed a
"Motion for Leave to File Herein Incorporated Urgent Motion for the
Issuance of a Temporary Restraining Order and/or a Writ of Preliminary
Injunction." Petitioner alleged that subsequent to the institution of this
petition, the Secretary of the Interior and Local Governments rendered a
resolution on the case finding him guilty of the offenses charged. 29 His
finding was based on the position papers and affidavits of witnesses
submitted by the parties. The DILG Secretary found the affidavits of
complainants' witnesses to be "more natural, reasonable and probable" than
those of herein petitioner Joson's. 30
On January 8, 1998, the Executive Secretary, by authority of the President,
adopted the findings and recommendation of the DILG Secretary. He
imposed on petitioner the penalty of suspension from office for six (6)
months without pay, to wit:
WHEREFORE, as recommended by the Secretary of the Interior
and Local Government, respondent Nueva Ecija Governor
Eduardo Nonato Joson is hereby found guilty of the offenses
charged and is meted the penalty of suspension from office for a
period of six (6) months without pay. 31
On January 14, 1998, we issued a temporary restraining order enjoining the
implementation of the order of the Executive Secretary.

II THE IMPLEMENTATION OF THE INVALID RESOLUTION OF

JANUARY 8, 1998 (ANNEX "C" HEREOF) BY THE PUBLIC
RESPONDENTS ENTITLES PETITIONER TO THE IMMEDIATE
ISSUANCE OF THE TEMPORARY RESTRAINING ORDER/WRIT OF
PRELIMINARY INJUNCTION HEREIN PRAYED FOR. 34
We find merit in the petition.
Administrative disciplinary proceedings against elective local officials are
governed by the Local Government Code of 1991, the Rules and Regulations
Implementing the Local Government Code of 1991, and Administrative Order
No. 23 entitled "Prescribing the Rules and Procedures on the Investigation of
Administrative Disciplinary Cases Against Elective Local Officials of Provinces,
Highly Urbanized Cities, Independent Component Cities, and Cities and
Municipalities in Metropolitan Manila." 35 In all matters not provided in A.O.
No. 23, the Rules of Court and the Administrative Code of 1987 apply in a
suppletory character. 36
I

Section 60 of Chapter 4, Title II, Book I of the Local Government Code

enumerates the grounds for which an elective local official may be
disciplined, suspended or removed from office. Section 60 reads:
Sec. 60. Grounds for Disciplinary Actions. An elective local
official may be disciplined, suspended, or removed from office on
any of the following grounds:
(a) Disloyalty to the Republic of the Philippines;

was not supported by the joint affidavit of the two witnesses named therein;
that private respondents later realized these defects and surreptitiously
inserted the verification and sworn statement while the complaint was still
pending with the Office of the President. 38 To prove his allegations,
petitioner submitted: (a) the sworn statement of private respondent Solita C.
Santos attesting to the alleged fact that after the letter-complaint was filed,
Vice-Governor Tinio made her and the other members of the Sangguniang
Panlalawigan sign an additional page which he had later notarized; and (b)
the fact that the verification of the letter-complaint and the joint affidavit of
the witnesses do not indicate the document, page or book number of the
notarial register of the notary public before whom they were made. 39

(b) Culpable violation of the Constitution;

(c) Dishonesty, oppression, misconduct in office, gross negligence,
or dereliction of duty;
(d) Commission of any offense involving moral turpitude or an
offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive working
days, except in the case of members of the sangguniang
panlalawigan, sangguniang panlunsod, sangguniang bayan, and
sangguniang barangay;
(g) Application for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another country; and
(h) Such other grounds as may be provided in this Code and other
laws.
An elective local official may be removed from office on the
grounds enumerated above by order of the proper court.
When an elective local official commits an act that falls under the grounds for
disciplinary action, the administrative complaint against him must be verified
and filed with any of the following:
Sec. 61. Form and Filing of Administrative Complaints. A
verified complaint against any erring local elective official shall be
prepared as follows:
(a) A complaint against any elective official of a province, a highly
urbanized city, an independent component city or component city
shall be filed before the Office of the President.
(b) A complaint against any elective official of a municipality shall
be filed before the sangguniang panlalawigan whose decision may
be appealed to the Office of the President; and
(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. 37
An administrative complaint against an erring elective official must be
verified and filed with the proper government office. A complaint against an
elective provincial or city official must be filed with the Office of the
President. A complaint against an elective municipal official must be filed
with the Sangguniang Panlalawigan while that of a barangay official must be
filed before the Sangguniang Panlungsod or Sangguniang Bayan.
In the instant case, petitioner Joson is an elective official of the province of
Nueva Ecija. The letter-complaint against him was therefore properly filed
with the Office of the President. According to petitioner, however, the lettercomplaint failed to conform with the formal requirements set by the Code.
He alleges that the complaint was not verified by private respondents and

We find no merit in the contention of the petitioner. The absence of the

document, page or book number of the notarial register of the subscribing
officer is insufficient to prove petitioner's claim. The lack of these entries
may constitute proof of neglect on the part of the subscribing officer in
complying with the requirements for notarization and proper verification.
They may give grounds for the revocation of his notarial commission. 40 But
they do not indubitably prove that the verification was inserted or
intercalated after the letter-complaint was filed with the Office of the
President.
Nor is the fact of intercalation sufficiently established by the affidavit of
Solita C. Santos. Private respondent Santos was one of the signatories to the
letter-complaint. In her affidavit, she prayed that she be dropped as one of
the complainants since she had just joined the political party of petitioner
Joson. She decided to reveal the intercalation because she was disillusioned
with the "dirty tactics" of Vice-Governor Tinio to grab power from petitioner
Joson. 41 Private respondent Santos cannot in anyway be considered an
unbiased witness. Her motive and change of heart render her affidavit
suspect.
Assuming, nonetheless, that the letter-complaint was unverified when
submitted to the Office of the President, the defect was not fatal. The
requirement of verification was deemed waived by the President himself
when he acted on the complaint.
Verification is a formal, not jurisdictional requisite. 42 Verification is mainly
intended to secure an assurance that the allegations therein made are done
in good faith or are true and correct and not mere speculation. 43 The lack of
verification is a mere formal defect. 44 The court may order the correction of
the pleading, if not verified, or act on the unverified pleading if the attending
circumstances are such that a strict compliance with the rule may be
dispensed with in order that the ends of justice may be served. 45
II
In his second assigned error, petitioner questions the jurisdiction and
authority of the DILG Secretary over the case. He contends that under the
law, it is the Office of the President that has jurisdiction over the lettercomplaint and that the Court of Appeals erred in applying the alter-ego
principle because the power to discipline elective local officials lies with the
President, not with the DILG Secretary.
Jurisdiction over administrative disciplinary actions against elective local
officials is lodged in two authorities: the Disciplining Authority and the
Investigating Authority. This is explicit from A.O. No. 23, to wit:
Sec. 2. Disciplining Authority. All administrative complaints, duly
verified, against elective local officials mentioned in the preceding
Section shall be acted upon by the President. The President, who
may act through the Executive Secretary, shall hereinafter be
referred to as the Disciplining Authority.
Sec. 3. Investigating Authority. The Secretary of the Interior and
Local Government is hereby designated as the Investigating
Authority. He may constitute an Investigating Committee in the
Department of the Interior and Local Government for the
purpose.

The Disciplining Authority may, however, in the interest of the

service, constitute a Special Investigating Committee in lieu of the
Secretary of the Interior and Local Government. 46
Pursuant to these provisions, the Disciplining Authority is the President of
the Philippines, whether acting by himself or through the Executive
Secretary. The Secretary of the Interior and Local Government is the
Investigating Authority, who may act by himself or constitute an Investigating
Committee. The Secretary of the DILG, however, is not the exclusive
Investigating Authority. In lieu of the DILG Secretary, the Disciplinary
Authority may designate a Special Investigating Committee.
The power of the President over administrative disciplinary cases against
elective local officials is derived from his power of general supervision over
local governments. Section 4, Article X of the 1987 Constitution provides:
Sec. 4. The President of the Philippines shall exercise general
supervision over local governments. Provinces with respect to
component cities and municipalities, and cities and municipalities
with respect to component barangays shall ensure that the acts of
their component units are within the scope of their prescribed
powers and functions. 47
The power of supervision means "overseeing or the authority of an officer to
see that the subordinate officers perform their duties." 48 If the subordinate
officers fail or neglect to fulfill their duties, the official may take such action
or step as prescribed by law to make them perform their duties. 49 The
President's power of general supervision means no more than the power of
ensuring that laws are faithfully executed, or that subordinate officers act
within the law. 50 Supervision is not incompatible with discipline. 51 And the
power to discipline and ensure that the laws be faithfully executed must be
construed to authorize the President to order an investigation of the act or
conduct of local officials when in his opinion the good of the public service so
requires. 52 Thus:
Independently of any statutory provision authorizing the
President to conduct an investigation of the nature involved in
this proceeding, and in view of the nature and character of the
executive authority with which the President of the Philippines is
invested, the constitutional grant to him of power to exercise
general supervision over all local governments and to take care
that the laws be faithfully executed must be construed to
authorize him to order an investigation of the act or conduct of
the petitioner herein. Supervision is not a meaningless thing. It is
an active power. It is certainly not withou t limitation, but it at
least implies authority to inquire into facts and conditions in order
to render the power real and effective. If supervision is to be
conscientious and rational, and not automatic and brutal, it must
be founded upon a knowledge of actual facts and conditions
disclosed after careful study and investigation. 53
The power to discipline evidently includes the power to investigate. As the
Disciplining Authority, the President has the power derived from the
Constitution itself to investigate complaints against local government
officials. A.O. No. 23, however, delegates the power to investigate to the
DILG or a Special Investigating Committee, as may be constituted by the
Disciplining Authority. This is not undue delegation, contrary to petitioner
Joson's claim. The President remains the Disciplining Authority. What is
delegated is the power to investigate, not the power to discipline. 54
Moreover, the power of the DILG to investigate administrative complaints is
based on the alter-ego principle or the doctrine of qualified political agency.
Thus:
Under this doctrine, which recognizes the establishment of a
single executive, all executive and administrative organizations
are adjuncts of the Executive Department, the heads of the
various executive departments are assistants and agents of the
Chief Executive, and, except in cases where the Chief Executive is
required by the Constitution or law to act in person or the

exigencies of the situation demand that he act personally, the

multifarious executive and administrative functions of the Chief
Executive are performed by and through the executive
departments, and the acts of the Secretaries of such departments,
performed and promulgated in the regular course of business,
are, unless disapproved or reprobated by the Chief Executive
presumptively the acts of the Chief Executive. 55
This doctrine is corollary to the control power of the President. 56 The power
of control is provided in the Constitution, thus:
Sec. 17. The President shall have control of all the executive
departments, bureaus, and offices. He shall ensure that the laws
be faithfully executed. 57
Control is said to be the very heart of the power of the presidency. 58 As head
of the Executive Department, the President, however, may delegate some of
his powers to the Cabinet members except when he is required by the
Constitution to act in person or the exigencies of the situation demand that
he acts personally. 59 The members of Cabinet may act for and in behalf of
the President in certain matters because the President cannot be expected to
exercise his control (and supervisory) powers personally all the time. Each
head of a department is, and must be, the President's alter ego in the
matters of that department where the President is required by law to
exercise authority. 60
The procedure how the Disciplining and Investigating Authorities should
exercise their powers is distinctly set forth in the Local Government Code and
A.O. No. 23. Section 62 of the Code provides:
Sec. 62. Notice of Hearing. (a) Within seven (7) days after the
administrative complaint is filed, the Office of the President or the
sanggunian concerned, as the case may be, shall require the
respondent to submit his verified answer within fifteen (15) days
from receipt thereof, and commence investigation of the case
within ten (10) days after receipt of such answer of the
respondent.
xxx xxx xxx
Sections 1 and 3, Rule 5 61 of A.O. No. 23 provide:
Sec. 1. Commencement. Within forty-eight (48) hours from
receipt of the answer, the Disciplining Authority shall refer the
complaint and answer, together with their attachments and other
relevant papers, to the Investigating Authority who shall
commence the investigation of the case within ten (10) days from
receipt of the same.
xxx xxx xxx
Sec. 3. Evaluation. Within twenty (20) days from receipt of the
complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings.
When an administrative complaint is therefore filed, the Disciplining
Authority shall issue an order requiring the respondent to submit his verified
answer within fifteen (15) days from notice. Upon filing of the answer, the
Disciplining Authority shall refer the case to the Investigating Authority for
investigation.
In the case at bar, petitioner claims that the DILG Secretary usurped the
power of the President when he required petitioner to answer the complaint.
Undisputably, the letter-complaint was filed with the Office of the President
but it was the DILG Secretary who ordered petitioner to answer.

Strictly applying the rules, the Office of the President did not comply with the
provisions of A.O. No. 23. The Office should have first required petitioner to
file his answer. Thereafter, the complaint and the answer should have been
referred to the Investigating Authority for further proceedings. Be that as it
may, this procedural lapse is not fatal. The filing of the answer is necessary
merely to enable the President to make a preliminary assessment of the
case. 62 The President found the complaint sufficient in form and substance
to warrant its further investigation. The judgment of the President on the
matter is entitled to respect in the absence of grave abuse of discretion.

xxx xxx xxx

In sum, preventive suspension may be imposed by the Disciplining Authority
at any time (a) after the issues are joined; (b) when the evidence of guilt is
strong; and (c) given the gravity of the offense, there is great probability that
the respondent, who continues to hold office, could influence the witnesses
or pose a threat to the safety and integrity of the records and other
evidence.
Executive Secretary Torres, on behalf of the President, imposed preventive
suspension on petitioner Joson after finding that:

III
In his third assigned error, petitioner also claims that the DILG erred in
declaring him in default for filing a motion to dismiss. He alleges that a
motion to dismiss is not a pleading prohibited by the law or the rules and
therefore the DILG Secretary should have considered it and given him time to
file his answer.
It is true that a motion to dismiss is not a pleading prohibited under the Local
Government Code of 1991 nor in A.O. No. 23. Petitioner, however, was
instructed not to file a motion to dismiss in the order to file answer. Thrice,
he requested for extension of time to file his answer citing as reasons the
search for competent counsel and the demands of his official duties. And,
thrice, his requests were granted. Even the order of default was reconsidered
and petitioners was given additional time to file answer. After al the requests
and seven months later, he filed a motion to dismiss!

xxx xxx xxx

DILG Secretary Robert Z. Barbers, in a memorandum for the
President, dated 23 June 1997, recommends that respondent be
placed under preventive suspension considering that all the
requisites to justify the same are present. He stated therein that:
"Preventive suspension may be imposed at
any time after the issues are joined, that is,
after respondent has answered the
complaint, when the evidence of guilt is
strong and, given the gravity of the offense,
there is a great possibility that the
continuance in office of the respondent
could influence the witnesses or pose a
threat to the safety and integrity of the
records and other evidence (Sec. 3, Rule 6
of Administrative Order No. 23).

Petitioner should know that the formal investigation of the case is required
by law to be finished within one hundred twenty (120) days from the time of
formal notice to the respondent. The extensions petitioners requested
consumed fifty-five (55) days of this period. 63 Petitioner, in fact, filed his
answer nine (9) months after the first notice. Indeed, this was more than
sufficient time for petitioner to comply with the order to file answer.

The failure of respondent to file his answer

despite several opportunities given him is
construed as a waiver of his right to present
evidence in his behalf (Sec. 4, Rule 4 of
Administrative Order No. 23). The requisite
of joinder of issues is squarely met with
respondent's waiver of right to submit his
answer. The act of respondent in allegedly
barging violently into the session hall of the
Sangguniang Panlalawigan in the company
of armed men constitutes grave
misconduct.
The
allegations
of
complainants are bolstered by the jointaffidavit of two (2) employees of the
Sangguniang Panlalawigan. Respondent
who is the chief executive of the province is
in a position to influence the witnesses.
Further,
the
history
of
violent
confrontational politics in the province
dictates that extreme precautionary
measures be taken."

The speedy disposition of administrative complaints is required by public

service. The efficiency of officials under investigation is impaired when a case
hangs over their heads. Officials deserve to be cleared expeditiously if they
are innocent, also expeditiously if guilty, so that the business of government
will not be prejudiced. 64
IV
In view of petitioner's inexcusable failure to file answer, the DILG did not err
in recommending to the Disciplining Authority his preventive suspension
during the investigation. Preventive suspension is authorized under Section
63 of the Local Government Code, viz:
Sec. 63. Preventive Suspension. (a) Preventive suspension may
be imposed:
(1) By the President, if the respondent is an elective official of a
province, a highly urbanized or an independent component city;
xxx xxx xxx
(b) Preventive suspension may be imposed at any time after the
issues are joined, when the evidence of guilt is strong, and given
the gravity of the offense, there is great probability that the
continuance in office of the respondent could influence the
witnesses or pose a threat to the safety and integrity of the
records and other evidence;Provided, That, any single preventive
suspension of local elective officials shall not extend beyond sixty
(60) days:Provided, further, That in the event that several
administrative cases are filed against an elective official, he
cannot be preventively suspended for more than ninety (90) days
within a single year on the same ground or grounds existing and
known at the time of the first suspension.

Upon scrutiny of the records and the facts and circumstances

attendant to this case, we concur with the findings of the
Secretary of the Interior and Local Government and find merit in
the aforesaid recommendation.
WHEREFORE, and as recommended by the Department of the
Interior and Local Government, respondent EDUARDO N. JOSON,
Governor of Nueva Ecija, is hereby placed under PREVENTIVE
SUSPENSION FOR A PERIOD OF SIXTY (60) DAYS, effective 11 July
1997, pending investigation of the charges filed against him.
SO ORDERED. 65
Executive Secretary Torres found that all the requisites for the imposition of
preventive suspension had been complied with. Petitioner's failure to file his
answer despite several opportunities given him was construed as a waiver of

his right to file answer and present evidence; and as a result of this waiver,
the issues were deemed to have been joined. The Executive Secretary also
found that the evidence of petitioner Joson's guilt was strong and that his
continuance in office during the pendency of the case could influence the
witnesses and pose a threat to the safety and integrity of the evidence
against him.
V
We now come to the validity of the January 8, 1998 Resolution of the
Executive Secretary finding petitioner guilty as charged and imposing on him
the penalty of suspension from office for six (6) months from office without
pay.
Petitioner claims that the suspension was made without formal investigation
pursuant to the provisions of Rule 7 of A.O. No. 23. Petitioner filed a "Motion
To Conduct Formal Investigation" three months before the issuance of the
order of suspension and this motion was denied by the DILG for the following
reasons:
On November 19, 1997, complainants, through counsel, filed a
Manifestation calling our attention to the Decision dated October
24, 1997 of the Court of Appeals, Fifth Division in CA-G.R. SP No.
44694, entitled "Eduardo Nonato Joson versus Executive
Secretary Ruben D. Torres, et. al." In the aforestated decision, the
Court of Appeals resolved to sustain the authority of this
Department to investigate this administrative case and has
likewise validated the order of default as well as the order of
preventive suspension of the respondent.
We offer no objection and concur with the assertion of
respondent that he has the right for the conduct of formal
investigation. However, before there shall be a formal
investigation, joinder of issues must already be present or
respondent's answer has already been filed. In the case at bar, the
admission of respondent's answer after having been declared in
default was conditioned on the fact of submission of position
papers by the parties, after which, the case shall be deemed
submitted for resolution. Respondent, instead of submitting his
position paper filed his subject motion while complainants
manifested to forego the submission of position paper and submit
the case for resolution on the basis of the pleadings on hand.
Settled is the rule that in administrative proceedings, technical
rules of procedure and evidence are not strictly applied
(Concerned Officials of the Metropolitan Waterworks and
Sewerage System v. Vasquez, 240 SCRA 502). The essence of due
process is to be found in the reasonable opportunity to be heard
and to submit evidence one may have in support of one's defense
(Tajonera v. Lamaroza, 110 SCRA 438). To be heard does not only
mean verbal arguments in court; one may be heard also through
pleadings. Where opportunity to be heard, either through oral
arguments or pleadings, is accorded, there is no denial of
procedural due process (Juanita Y. Say, et. al; vs. IAC, G.R. No.
73451). Thus, when respondent failed to submit his position
paper as directed and insisted for the conduct of formal
investigation, he was not denied of his right of procedural
process.
WHEREFORE, the Motion for the Conduct of Formal Investigation,
for lack of merit, is DENIED.

Sec. 3 Evaluation. Within twenty (20) days from receipt of the

complaint and answer, the Investigating Authority shall determine
whether there is a prima facie case to warrant the institution of
formal administrative proceedings.
Sec. 4. Dismissal motu proprio. If the Investigating Authority
determines that there is no prima facie case to warrant the
institution of formal administrative proceedings, it shall, within
the same period prescribed under the preceding Section, submit
its recommendation to the Disciplining Authority for the motu
proprio dismissal of the case, together with the recommended
decision, resolution, and order.
Sec. 5. Preliminary conference. If the Investigating Authority
determines that there is prima facie case to warrant the
institution of formal administrative proceedings, it shall, within
the same period prescribed under the preceding Section, summon
the parties to a preliminary conference to consider the following:
a) whether the parties desire a formal
investigation or are willing to submit the
case for resolution on the basis of the
evidence on record; and
b) If the parties desire a formal
investigation, to consider the simplification
of issues, the possibility of obtaining
stipulation or admission of facts and of
documents, specifically affidavits and
depositions, to avoid unnecessary proof,
the limitation of number of witnesses, and
such other matters as may be aid the
prompt disposition of the case.
The Investigating Authority shall encourage the parties and their
counsels to enter, at any stage of the proceedings, into amicable
settlement, compromise and arbitration, the terms and conditions
of which shall be subject to the approval of the Disciplining
Authority.
After the preliminary conference, the Investigating Authority shall
issue an order reciting the matters taken up thereon, including
the facts stipulated and the evidences marked, if any. Such order
shall limit the issues for hearing to those not disposed of by
agreement or admission of the parties, and shall schedule the
formal investigation within ten (10) days from its issuance, unless
a later date is mutually agreed in writing by the parties
concerned. 67
The records show that on August 27, 1997, petitioner submitted his
Answer Ad Cautelam where he disputed the truth of the allegations that he
barged into the session hall of the capitol and committed physical violence to
harass the private respondents who were opposed to any move for the
province to contract a P150 million loan from PNB. In his Order of October 8,
1997, Undersecretary Sanchez admitted petitioner's Answer Ad
Cautelam but treated it as a position paper. On October 15, 1997, petitioner
filed a Motion to Conduct Formal Investigation. Petitioner reiterated this
motion on October 29, 1997. Petitioner's motion was denied on November
11, 1997. Secretary Barbers found petitioner guilty as charged on the basis of
the parties' position papers. On January 8, 1998, Executive Secretary Torres
adopted Secretary Barbers' findings and recommendations and imposed on
petitioner the penalty of six (6) months suspension without pay.

SO ORDERED. 66
The denial of petitioner's Motion to Conduct Formal Investigation is
erroneous. Petitioner's right to a formal investigation is spelled out in the
following provisions of A.O. No. 23, viz:

The rejection of petitioner's right to a formal investigation denied him

procedural due process. Section 5 of A.O. No. 23 provides that at the
preliminary conference, the Investigating Authority shall summon the parties
to consider whether they desire a formal investigation. This provision does
not give the Investigating Authority the discretion to determine whether a
formal investigation would be conducted. The records show that petitioner

filed a motion for formal investigation. As respondent, he is accorded several

rights under the law, to wit:
Sec. 65. Rights of Respondent. The respondent shall be
accorded full opportunity to appear and defend himself in person
or by counsel, to confront and cross-examine the witnesses
against him, and to require the attendance of witnesses and the
production of documentary evidence in his favor through
compulsory process of subpoena orsubpoena duces tecum.
An erring elective local official has rights akin to the constitutional rights of
an accused. 68 These rights are essentially part of procedural due
process. 69 The local elective official has the (1) the right to appear and
defend himself in person or by counsel; (2) the right to confront and crossexamine the witnesses against him; and (3) the right to compulsory
attendance of witness and the production of documentary evidence. These
rights are reiterated in the Rules Implementing the Local Government
Code 70 and in A.O. No. 23. 71 Well to note, petitioner, formally claimed his
right to a formal investigation after his Answer Ad Cautelam has been
admitted by Undersecretary Sanchez.
Petitioner's right to a formal investigation was not satisfied when the
complaint against him was decided on the basis of position papers. There is
nothing in the Local Government Code and its Implementing Rules and
Regulations nor in A.O. No. 23 that provide that administrative cases against
elective local officials can be decided on the basis of position papers. A.O.
No. 23 states that the Investigating Authority may require the parties to
submit their respective memoranda but this is only after formal investigation
and hearing. 72 A.O. No. 23 does not authorize the Investigating Authority to
dispense with a hearing especially in cases involving allegations of fact which
are not only in contrast but contradictory to each other. These contradictions
are best settled by allowing the examination and cross-examination of
witnesses. Position papers are often-times prepared with the assistance of
lawyers and their artful preparation can make the discovery of truth difficult.
The jurisprudence cited by the DILG in its order denying petitioner's motion
for a formal investigation applies to appointive officials and employees.
Administrative disciplinary proceedings against elective government officials
are not exactly similar to those against appointive officials. In fact, the
provisions that apply to elective local officials are separate and distinct from
appointive government officers and employees. This can be gleaned from the
Local Government Code itself.
In the Local Government Code, the entire Title II of Book I of the Code is
devoted to elective officials. It provides for their qualifications and
election, 73 vacancies and succession, 74 local legislation, 75 disciplinary
actions, 76 and recall. 77 Appointive officers and employees are covered in Title
III of Book I of the Code entitled "Human Resources and Development." All
matters pertinent to human resources and development in local government
units are regulated by "the civil service law and such rules and regulations
and other issuances promulgated thereto, unless otherwise provided in the
Code." 78 The "investigation and adjudication of administrative complaints
against appointive local officials and employees as well as their suspension
and removal" are "in accordance with the civil service law and rules and
other pertinent laws," the results of which "shall be reported to the Civil
Service Commission." 79
It is the Administrative Code of 1987, specifically Book V on the Civil Service,
that primarily governs appointive officials and employees. Their
qualifications are set forth in the Omnibus Rules Implementing Book V of the
said Code. The grounds for administrative disciplinary action in Book V are
much more in number and are specific than those enumerated in the Local
Government Code against elective local officials. 80 The disciplining authority
in such actions is the Civil Service Commission. 81 although the Secretaries
and heads of agencies and instrumentalities, provinces, cities and
municipalities are also given the power to investigate and decide disciplinary
actions against officers and employees under their jurisdiction. 82When a
complaint is filed and the respondent answers, he must "indicate whether or
not he elects a formal investigation if his answer is not considered
satisfactory." 83 If the officer or employee elects a formal investigation, the
direct evidence for the complainant and the respondent "consist[s] of the
sworn statement and documents submitted in support of the complaint and

answer, as the case may be, without prejudice to the presentation of

additional evidence deemed necessary . . ., upon which the crossexamination by respondent and the complainant, respectively, is
based." 84 The investigation is conducted without adhering to the technical
rules applicable in judicial proceedings." 85 Moreover, the appointive official
or employee may be removed or dismissed summarily if (1) the charge is
serious and the evidence of guilt is strong; (2) when the respondent is a
recidivist; and (3) when the respondent is notoriously undesirable. 86
The provisions for administrative disciplinary actions against elective local
officials are markedly different from appointive officials. 87 The rules on the
removal and suspension of elective local officials are more stringent. The
procedure of requiring position papers in lieu of a hearing in administrative
cases is expressly allowed with respect to appointive officials but not to
those elected. An elective official, elected by popular vote, is directly
responsible to the community that elected him. The official has a definite
term of office fixed by law which is relatively of short duration. Suspension
and removal from office definitely affects and shortens this term of office.
When an elective official is suspended or removed, the people are deprived
of the services of the man they had elected. Implicit in the right of suffrage is
that the people are entitled to the services of the elective official of their
choice. 88 Suspension and removal are thus imposed only after the elective
official is accorded his rights and the evidence against him strongly dictates
their imposition.
IN VIEW WHEREOF, the Resolution of January 8, 1998 of the public
respondent Executive Secretary is declared null and void and is set aside. No
Cost.
SO ORDERED.
MAYOR ALVIN B. GARCIA, petitioner, vs. HON. ARTURO C. MOJICA, in his
capacity as Deputy Ombudsman for the Visayas, VIRGINIA
PALANCA-SANTIAGO, in his capacity as Director, Office of the
Ombudsman (Visayas), ALAN FRANCISCO S. GARCIANO, in his
capacity as Graft Investigation Officer I, Office of the
Ombudsman
(Visayas),
and
JESUS
RODRIGO
T.
TAGAAN, respondents.
DECISION
QUISUMBING, J.:
The present controversy involves the preventive suspension order
issued on June 25, 1999, by the Office of the Ombudsman (Visayas) in OMBVIS-ADM-99-0452, against petitioner Cebu City Mayor Alvin B. Garcia and
eight other city officials. Under the said order, petitioner was placed under
preventive suspension without pay for the maximum period of six months
and told to cease and desist from holding office immediately.
The factual antecedents are as follows:
On May 7, 1998, petitioner, in his capacity as Cebu City mayor, signed
a contract with F.E. Zuellig for the supply of asphalt to the city. The contract
covers the period 1998-2001, which period was to commence on September
1998 when the first delivery should have been made by F.E. Zuellig.
Sometime in March 1999, news reports came out regarding the
alleged anomalous purchase of asphalt by Cebu City, through the contract
signed by petitioner. This prompted the Office of the Ombudsman (Visayas)
to conduct an inquiry into the matter.[1]
Respondent Jesus Rodrigo T. Tagaan, special prosecution officer of the
Office of the Ombudsman, was assigned to conduct the inquiry, docketed as
INQ-VIS-99-0132. After his investigation, he recommended that the said
inquiry be upgraded to criminal and administrative cases against petitioner
and the other city officials involved. Respondent Arturo C. Mojica, Deputy
Ombudsman for the Visayas, approved this recommendation.
In a memorandum dated June 22, 1999, respondent Allan Francisco S.
Garciano, the graft investigating officer to whom the case was raffled for
investigation, recommended the preventive suspension of petitioner and the

others. Two days later, or on June 24, 1999, the affidavit-complaint against
petitioner was filed. The following day, on June 25, 1999, the Office of the
Ombudsman issued the questioned preventive suspension order. On June
29, 1999, petitioner filed a motion for reconsideration of said order, which
motion was denied in an order dated July 5, 1999.
Petitioner is now before this Court assailing the validity of the said
order. He pleads for immediate relief through the present petition
for certiorari and prohibition with a prayer for temporary restraining order
and/or writ of preliminary injunction. Petitioner contends that:
I
THE RESPONDENTS ACTED WITH GRAVE ABUSE OF DISCRETION,
AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN
ASSUMING JURISDICTION OVER OMB-VIS-ADM-99-0452 AND
ISSUING THE PREVENTIVE SUSPENSION ORDER, THE OFFICE OF
THE OMBUDSMAN BEING WITHOUT JURISDICTION OVER THE
ADMINISTRATIVE CASE, CONSIDERING THAT THE ALLEGED ACT
CONSTITUTING THE CHARGE AGAINST PETITIONER HEREIN WAS
COMMITTED DURING HIS PREVIOUS TERM, AND PETITIONER
HAVING BEEN REELECTED TO THE SAME POSITION.
II
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN
HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE
PREVENTIVE SUSPENSION FOR SIX MONTHS WAS WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF
JURISDICTION, AND IN GROSS VIOLATION OF THE PROVISIONS OF
SECTION 63 OF THE LOCAL GOVERNMENT CODE WHICH
MANDATES THAT THE PREVENTIVE SUSPENSION OF LOCAL
ELECTIVE OFFICIALS BE ORDERED ONLY AFTER THE ISSUES HAVE
BEEN JOINED, AND ONLY FOR A PERIOD NOT IN EXCESS OF SIXTY
(60) DAYS.
III
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN
HAS JURISDICTION OVER OMB-VIS-ADM-99-0452, THE
PREVENTIVE SUSPENSION WAS ISSUED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
AND IN GROSS VIOLATION OF SECTION 26(2) OF THE
OMBUDSMAN LAW.
IV
ASSUMING, ARGUENDO, THAT THE OFFICE OF THE OMBUDSMAN
HAS JURISDICTION, THE RESPONDENTS COMMITTED GRAVE
ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS OF
JURISDICTION IN CONCLUDING THAT THE EVIDENCE AGAINST
PETITIONER WAS STRONG, THE LITTLE EVIDENCE ON RECORD
CONSISTING SOLELY OF A HEARSAY AFFIDAVIT, AND
INADMISSIBLE NEWSPAPER REPORTS.
On July 19, 1999, we directed the parties to maintain the status
quo until further orders from this Court. It appears that on the same day,
petitioner issued a memorandum informing employees and officials of the
Office of the City Mayor that he was assuming the post of mayor effective
immediately. On July 23, 1999, respondents filed a motion seeking
clarification of our status quo order. Respondents claimed that the status
quo referred to in the order should be that where petitioner is already
suspended and vice mayor Renato Osmea is the acting city mayor.
Petitioner, in reply, argued that the status quo refers to the last
actual peaceable uncontested status which preceded the pending
controversy.[2] Thus, the status quo could not be that where petitioner is
preventively suspended since the suspension did not precede the present
controversy; it is the controversy.
We agree with petitioner in this regard. As explained by Justice
Florenz D. Regalado, an authority on remedial law:
There have been instances when the Supreme Court has issued a status
quo order which, as the very term connotes, is merely intended to maintain
the last, actual, peaceable and uncontested state of things which preceded

the controversy. This was resorted to when the projected proceedings in the
case made the conservation of the status quo desirable or essential, but the
affected party neither sought such relief or the allegations in his pleading did
not sufficiently make out a case for a temporary restraining
order. The status quo order was thus issued motu proprio on equitable
considerations. Also, unlike a temporary restraining order or a preliminary
injunction, a status quo order is more in the nature of a cease and desist
order, since it neither directs the doing or undoing of acts as in the case of
prohibitory or mandatory injunctive relief. The further distinction is provided
by the present amendment in the sense that, unlike the amended rule on
restraining orders, a status quo order does not require the posting of a
bond.[3]
On July 28, 1999, we heard the parties oral arguments on the
following issues:
1. What is the effect of the reelection of petitioner on the investigation of
acts done before his reelection? Did the Ombudsman for the Visayas gravely
abuse his discretion in conducting the investigation of petitioner and
ordering his preventive suspension?
2. Assuming that the Ombudsman properly took cognizance of the case,
what law should apply to the investigation being conducted by him, the Local
Government Code (R.A. 7160) or the Ombudsman Law (R.A. 6770)? Was the
procedure in the law properly observed?
3. Assuming further that the Ombudsman has jurisdiction, is the preventive
suspension of petitioner based on strong evidence as required by law?
We will now address these issues together, for the proper resolution
on the merits of the present controversy.
Petitioner contends that, per our ruling in Aguinaldo v. Santos,[4] his
reelection has rendered the administrative case filed against him moot and
academic. This is because reelection operates as a condonation by the
electorate of the misconduct committed by an elective official during his
previous term. Petitioner further cites the ruling of this Court in Pascual v.
Hon. Provincial Board of Nueva Ecija,[5] that
. . . When the people have elected a man to office, it must be assumed that
they did this with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been guilty of
any. It is not for the court, by reason of such faults or misconduct to
practically overrule the will of the people.
Respondents, on the other hand, contend that while the contract in
question was signed during the previous term of petitioner, it was to
commence or be effective only on September 1998 or during his current
term. It is the respondents submission that petitioner went beyond the
protective confines[6] of jurisprudence when he agreed to extend his act to
his current term of office.[7] Aguinaldo cannot apply, according to
respondents, because what is involved in this case is a misconduct
committed during a previous term but to be effective during the current
term.
Respondents maintain that,
...petitioner performed two acts with respect to the contract: he provided
for a suspensive period making the supply contract commence or be
effective during his succeeding or current term and during his current term
of office he acceded to the suspensive period making the contract effective
during his current term by causing the implementation of the contract.[8]
Hence, petitioner cannot take refuge in the fact of his reelection,
according to respondents.
Further, respondents point out that the contract in question was
signed just four days before the date of the 1998 election and so it could not
be presumed that when the people of Cebu City voted petitioner to office,
they did so with full knowledge of petitioners character.

On this point, petitioner responds that knowledge of an officials

previous acts is presumed and the court need not inquire whether, in
reelecting him, the electorate was actually aware of his prior misdeeds.
Petitioner cites our ruling in Salalima v. Guingona,[9] wherein we
absolved Albay governor Romeo R. Salalima of his administrative liability as
regards a retainer agreement he signed in favor of a law firm during his
previous term, although disbursements of public funds to cover payments
under the agreement were still being done during his subsequent
term. Petitioner
argues
that,
following Salalima,
the
doctrine
in Aguinaldo applies even where the effects of the act complained of are still
evident during the subsequent term of the reelected official. The
implementation of the contract is a mere incident of its execution. Besides,
according to petitioner, the sole act for which he has been administratively
charged is the signing of the contract with F.E. Zuellig. The charge, in his
view, excludes the contracts execution or implementation, or any act
subsequent to the perfection of the contract.
In Salalima, we recall that the Solicitor General maintained
that Aguinaldo did not apply to that case because the administrative case
against Governor Rodolfo Aguinaldo of Cagayan was already pending when
he filed his certificate of candidacy for his reelection bid. Nevertheless,
in Salalima, the Court applied the Aguinaldo doctrine, even if the
administrative case against Governor Salalima was filed after his reelection.
Worth stressing, to resolve the present controversy, we must recall
that the authority of the Ombudsman to conduct administrative
investigations is mandated by no less than the Constitution. Under Article XI,
Section 13[1], the Ombudsman has the power to:
investigate on its own, or on complaint by any person, any act or omission
of any public official, employee, office or agency, when such act or omission
appears to be illegal, unjust, improper, or inefficient.
R.A. 6770, the Ombudsman Law, further grants the Office of the
Ombudsman the statutory power to conduct administrative
investigations. Thus, Section 19 of said law provides:
SEC. 19. Administrative Complaints. The Ombudsman shall act on all
complaints relating, but not limited to acts or omissions which:
(1) Are contrary to law or regulation;
(2) Are unreasonable, unfair, oppressive or discriminatory;
(3) Are inconsistent with the general course of an agencys functions, though
in accordance with law;
(4) Proceed from a mistake of law or an arbitrary ascertainment of facts;
(5) Are in the exercise of discretionary powers but for an improper purpose;
or
(6) Are otherwise irregular, immoral or devoid of justification.
Section 21 of R.A. 6770 names the officials subject to the
Ombudsmans disciplinary authority:
SEC. 21. Officials Subject To Disciplinary Authority; Exceptions. The Office
of the Ombudsman shall have disciplinary authority over all elective and
appointive officials of the Government and its subdivisions, instrumentalities
and agencies, including Members of the Cabinet, local government,
government-owned or controlled corporations and their subsidiaries, except
over officials who may be removed only by impeachment or over Members
of Congress, and the Judiciary.(Emphasis supplied.)
Petitioner is an elective local official accused of grave misconduct and
dishonesty.[10] That the Office of the Ombudsman may conduct an
administrative investigation into the acts complained of, appears clear from
the foregoing provisions of R.A. 6770.
However, the question of whether or not the Ombudsman may
conduct an investigation over a particular act or omission, is different from
the question of whether or not petitioner, after investigation, may be held
administratively liable. This distinction ought here to be kept in mind, even
as we must also take note that the power to investigate is distinct from the
power to suspend preventively an erring public officer.

Likewise worthy of note, the power of the Office of the Ombudsman

to preventively suspend an official subject to its administrative investigation
is provided by specific provision of law. Under Section 24 of R.A. 6770
SEC. 24. Preventive Suspension. The Ombudsman or his Deputy may
preventively suspend any officer or employee under his authority pending an
investigation, if in his judgment the evidence of guilt is strong, and (a) the
charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (b) the charges
would warrant removal from the service; or (c) the respondents continued
stay in office may prejudice the case filed against him.
The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six months, without pay, except
when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in
which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Underscoring supplied.)
We have previously interpreted the phrase under his authority to
mean that the Ombudsman can preventively suspend all officials under
investigation by his office, regardless of the branch of government in which
they are employed,[11] excepting of course those removable by impeachment,
members of Congress and the Judiciary.
The power to preventively suspend is available not only to the
Ombudsman but also to the Deputy Ombudsman. This is the clear import of
Section 24 of R.A. 6770 abovecited.
There can be no question in this case as to the power and authority of
respondent Deputy Ombudsman to issue an order of preventive suspension
against an official like the petitioner, to prevent that official from using his
office to intimidate or influence witnesses[12] or to tamper with records that
might be vital to the prosecution of the case against him.[13] In our view, the
present controversy simply boils down to this pivotal question: Given the
purpose of preventive suspension and the circumstances of this case, did
respondent Deputy Ombudsman commit a grave abuse of discretion when
he set the period of preventive suspension at six months?
Preventive suspension under Sec. 24, R.A. 6770, to repeat, may be
imposed when, among other factors, the evidence of guilt is strong. The
period for which an official may be preventively suspended must not exceed
six months. In this case, petitioner was preventively suspended and ordered
to cease and desist from holding office for the entire period of six months,
which is the maximum provided by law.
SEC. 24. Preventive Suspension.
xxx
The preventive suspension shall continue until the case is terminated by the
Office of the Ombudsman but not more than six months, without pay, except
when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in
which case the period of such delay shall not be counted in computing the
period of suspension herein provided. (Underscoring supplied.)
The determination of whether or not the evidence of guilt is strong as
to warrant preventive suspension rests with the Ombudsman.[14] The
discretion as regards the period of such suspension also necessarily belongs
to the Ombudsman, except that he cannot extend the period of suspension
beyond that provided by law.[15] But, in our view, both the strength of the
evidence to warrant said suspension and the propriety of the length or
period of suspension imposed on petitioner are properly raised in this
petition for certiorari and prohibition. These equitable remedies under Rule
65 of the Rules of Court precisely exist to provide prompt relief where an
officer exercising judicial or quasi-judicial functions has acted...with grave
abuse of discretion amounting to lack or excess of jurisdiction, and there is
no appeal, or any plain, speedy, and adequate remedy in the ordinary course
of law. (See Rule 65, Sec. 1).

It is pertinent to note here that the inquiry that preceded the filing of
an administrative case against petitioner was prompted by newspaper
reports regarding the allegedly anomalous contract entered into by
petitioner, on behalf of Cebu City, with F.E. Zuellig.[16] In the memorandum to
respondent Mojica,[17] respondent Garciano recommended that petitioner be
preventively suspended, based on an initial investigation purportedly
showing: (1) the contract for supply of asphalt to Cebu City was designed to
favor F.E. Zuellig, (2) the amount quoted in the contract was too expensive
compared to the amount for which asphalt may be bought from local
suppliers such as Shell and Petron, particularly considering that the amount
was fixed in dollars and was payable in pesos, thus exposing the city
government to the risks attendant to a fluctuating exchange rate, and (3) the
interest of the city under the contract is not protected by adequate
security. These findings were based on the contract itself and on letters from
Bitumex and Credit Lyonnais. There were also letters from Shell and Petron
that were replies to the Office of the Ombudsmans (Visayas) inquiry on
whether or not they could supply Cebu City with asphalt and on what terms.
Given these findings, we cannot say now that there is no evidence
sufficiently strong to justify the imposition of preventive suspension against
petitioner. But considering its purpose and the circumstances in the case
brought before us, it does appear to us that the imposition of the maximum
period of six months is unwarranted.
On behalf of respondents, the Solicitor General stated during his oral
argument at the hearing that the documents mentioned in respondents
comment (such as purchase orders, purchase requests, and disbursement
vouchers),
documents
that
show
petitioners
guilt,
were
obtained after petitioner had been suspended. Even if an afterthought, he
claimed they strengthen the evidence of respondents against petitioner. If
the purpose of the preventive suspension was to enable the investigating
authority to gather documents without intervention from petitioner, then,
from respondents submission, we can only conclude that this purpose was
already achieved, during the nearly month-long suspension of petitioner
from June 25 to July 19, 1999. Granting that now the evidence against
petitioner is already strong, even without conceding that initially it was weak,
it is clear to us that the maximum six-month period is excessive and definitely
longer than necessary for the Ombudsman to make its legitimate case
against petitioner. We must conclude that the period during which
petitioner was already preventively suspended, has been sufficient for the
lawful purpose of preventing petitioner from hiding and destroying needed
documents, or harassing and preventing witnesses who wish to appear
against him.
We reach the foregoing conclusion, however, without necessarily
subscribing to petitioners claim that the Local Government Code, which he
averred should apply to this case of an elective local official, has been
violated. True, under said Code, preventive suspension may only be imposed
after the issues are joined, and only for a maximum period of sixty
days. Here, petitioner was suspended without having had the chance to
refute first the charges against him, and for the maximum period of six
months provided by the Ombudsman Law. But as respondents argue,
administrative complaints commenced under the Ombudsman Law are
distinct from those initiated under the Local Government
Code. Respondents point out that the shorter period of suspension under
the Local Government Code is intended to limit the period of suspension that
may be imposed by a mayor, a governor, or the President, who may be
motivated by partisan political considerations. In contrast the Ombudsman,
who can impose a longer period of preventive suspension, is not likely to be
similarly motivated because it is a constitutional body. The distinction is
valid but not decisive, in our view, of whether there has been grave abuse of
discretion in a specific case of preventive suspension.
Respondents base their argument on the deliberations of the Senate
on Senate Bill No. 155, which became the Local Government Code. Senator
Aquilino Pimentel, Jr., commenting on the preservation in the proposed Code
of the power of the Office of the President to suspend local officials, said:
Senator Pimentel. Now, as far as we are concerned, the Senate Committee
is ready to adopt a more stringent rule regarding the power of removal and
suspension by the Office of the President over local government officials, Mr.
President. We would only wish to point out that in a subsequent section, we
have provided for the power of suspension of local government officials to
be limited only to 60 days and not more than 90 days in any one year,

regardless of the number of administrative charges that may be filed against

a local government official. We, in fact, had in mind the case of Mayor
Ganzon of Iloilo where the Secretary of Local Government sort of serialized
the filing of charges against him so that he can be continuously suspended
when one case is filed right after the other, Mr. President.[18]
Respondents may be correct in pointing out the reason for the shorter
period of preventive suspension imposable under the Local Government
Code. Political color could taint the exercise of the power to suspend local
officials by the mayor, governor, or Presidents office. In contrast the
Ombudsman, considering the constitutional origin of his Office, always ought
to be insulated from the vagaries of politics, as respondents would have us
believe.
In Hagad v. Gozo-Dadole,[19] on the matter of whether or not the
Ombudsman has been stripped of his power to investigate local elective
officials by virtue of the Local Government Code, we said:
Indeed, there is nothing in the Local Government Code to indicate that it
has repealed, whether expressly or impliedly, the pertinent provisions of the
Ombudsman Act. The two statutes on the specific matter in question are not
so inconsistent, let alone irreconcilable, as to compel us to only uphold one
and strike down the other.[20]
It was also argued in Hagad, that the six-month preventive suspension
under the Ombudsman Law is much too repugnant to the 60-day period
that may be imposed under the Local Government Code. But per J. Vitug,
the two provisions govern differently. [21]
However, petitioner now contends that Hagad did not settle the
question of whether a local elective official may be preventively suspended
even before the issues could be joined. Indeed it did not, but we have held
in other cases that there could be preventive suspension even before the
charges against the official are heard, or before the official is given an
opportunity to prove his innocence.[22] Preventive suspension is merely a
preliminary step in an administrative investigation and is not in any way the
final determination of the guilt of the official concerned.
Petitioner also avers that the suspension order against him was issued
in violation of Section 26(2) of the Ombudsman Law, which provides:
SEC. 26. Inquiries. xxx
(2) The Office of the Ombudsman shall receive complaints from any source in
whatever form concerning an official act or omission. It shall act on the
complaint immediately and if it finds the same entirely baseless, it shall
dismiss the same and inform the complainant of such dismissal citing the
reasons therefor. If it finds a reasonable ground to investigate further, it
shall first furnish the respondent public officer or employee with a summary
of the complaint and require him to submit a written answer within seventytwo hours from receipt thereof
Petitioner argues that before an inquiry may be converted into a fullblown administrative investigation, the official concerned must be given 72
hours to answer the charges against him. In his case, petitioner says the
inquiry was converted into an administrative investigation without him being
given the required number of hours to answer.
Indeed, it does not appear that petitioner was given the requisite 72
hours to submit a written answer to the complaint against him. This,
however, does not make invalid the preventive suspension order issued
against him. As we have earlier stated, a preventive suspension order may
be issued even before the charges against the official concerned is heard.
Moreover, respondents state that petitioner was given 10 days to
submit his counter-affidavit to the complaint filed by respondent
Tagaan. We find this 10-day period is in keeping with Section 5(a) of the
Rules of Procedure of the Office of the Ombudsman,[23] which provides:
Sec. 5. Administrative adjudication; How conducted.

(a) If the complaint is not dismissed for any of the causes enumerated in
Section 20 of Republic Act No. 6770, the respondent shall be furnished with
copy of the affidavits and other evidences submitted by the complainant, and
shall be ordered to file his counter-affidavits and other evidences in support
of his defense, within ten (10) days from receipt thereof, together with proof
of service of the same on the complainant who may file reply affidavits
within ten (10) days from receipt of the counter-affidavits of the
respondent.
We now come to the concluding inquiry. Granting that the Office of
the Ombudsman may investigate, for purposes provided for by law, the acts
of petitioner committed prior to his present term of office; and that it may
preventively suspend him for a reasonable period, can that office hold
him administratively liable for said acts?
In a number of cases, we have repeatedly held that a reelected local
official may not be held administratively accountable for misconduct
committed during his prior term of office.[24] The rationale for this holding is
that when the electorate put him back into office, it is presumed that it did
so with full knowledge of his life and character, including his past
misconduct. If, armed with such knowledge, it still reelects him, then such
reelection is considered a condonation of his past misdeeds.
However, in the present case, respondents point out that the contract
entered into by petitioner with F.E. Zuellig was signed just four days before
the date of the elections. It was not made an issue during the election, and
so the electorate could not be said to have voted for petitioner with
knowledge of this particular aspect of his life and character.
For his part, petitioner contends that the only conclusive determining
factor[25] as regards the peoples thinking on the matter is an election. On
this point, we agree with petitioner. That the people voted for an official
with knowledge of his character is presumed, precisely to eliminate the need
to determine, in factual terms, the extent of this knowledge. Such an
undertaking will obviously be impossible. Our rulings on the matter do not
distinguish the precise timing or period when the misconduct was
committed, reckoned from the date of the officials reelection, except that it
must be prior to said date.

contract, including stipulations now alleged to be prejudicial to the city

government. Thus, any culpability petitioner may have in signing the
contract already became extant on the day the contract was signed. It hardly
matters that the deliveries under the contract are supposed to have been
made months later.
While petitioner can no longer be held administratively liable for
signing the contract with F. E. Zuellig, however, this should not prejudice the
filing of any case other than administrative against petitioner. Our ruling in
this case, may not be taken to mean the total exoneration of petitioner for
whatever wrongdoing, if any, might have been committed in signing the
subject contract. The ruling now is limited to the question of whether or not
he may be heldadministratively liable therefor, and it is our considered view
that he may not.
WHEREFORE, the petition is hereby DENIED insofar as it seeks to
declare that respondents committed grave abuse of discretion in conducting
an inquiry on complaints against petitioner, and ordering their investigation
pursuant to respondents mandate under the Constitution and the
Ombudsman Law. But the petition is hereby GRANTED insofar as it seeks to
declare that respondents committed grave abuse of discretion concerning
the period of preventive suspension imposed on petitioner, which is the
maximum of six months, it appearing that 24 days the number of days from
the date petitioner was suspended on June 25, 1999, to the date of
our status quo order on July 19, 1999 were sufficient for the
purpose. Accordingly, petitioners preventive suspension, embodied in the
order of respondent Deputy Ombudsman, dated June 25, 1999, should now
be, as it is hereby, LIFTED immediately.
SO ORDERED.

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

FERDINAND N. TALABONG,

G.R. No. 184836

Petitioners,
PUNO, C J.,

As held in Salalima,

CARPIO,
The rule adopted in Pascual, qualified in Aguinaldo insofar as criminal cases
are concerned, is still a good law. Such a rule is not only founded on the
theory that an officials reelection expresses the sovereign will of the
electorate to forgive or condone any act or omission constituting a ground
for administrative discipline which was committed during his previous
term. We may add that sound policy dictates it. To rule otherwise would
open the floodgates to exacerbating endless partisan contests between the
reelected official and his political enemies, who may not stop to hound the
former during his new term with administrative cases for acts alleged to have
been committed during his previous term. His second term may thus be
devoted to defending himself in the said cases to the detriment of public
service... (Emphasis added.)[26]

CORONA,
CARPIO
MORALES,
-

versus VELASCO, JR.,

NACHURA,
LEONARDODE CASTRO,

The above ruling in Salalima applies to this case. Petitioner cannot

anymore be held administratively liable for an act done during his previous
term, that is, his signing of the contract with F.E. Zuellig.

BRION,

The assailed retainer agreement in Salalima was executed sometime

in 1990. Governor Salalima was reelected in 1992 and payments for the
retainer continued to be made during his succeeding term. This situation is
no different from the one in the present case, wherein deliveries of the
asphalt under the contract with F.E. Zuellig and the payments therefor were
supposed to have commenced on September 1998, during petitioners
second term.
However, respondents argue that the contract, although signed on
May 7, 1998, during petitioners prior term, is to be made effective only
during his present term.
We fail to see any difference to justify a valid distinction in the
result. The agreement between petitioner (representing Cebu City) and F.E.
Zuellig was perfected on the date the contract was signed, during petitioners
prior term. At that moment, petitioner already acceded to the terms of the

PERALTA,
BERSAMIN,
DEL CASTILLO,
COMMISSION ON ELECTIONS AND WILFREDO F.
ASILO,
Respondents.

ABAD, and
VILLARAMA,
JR., JJ.

Promulgated
:

December
23, 2009

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

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

In the 2007 election, Asilo filed his certificate of candidacy for the same
position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and
Ferdinand N. Talabong (the petitioners) sought to deny due course to Asilos
certificate of candidacy or to cancel it on the ground that he had been
elected and had served for three terms; his candidacy for a fourth term
therefore violated the three-term limit rule under Section 8, Article X of the
Constitution and Section 43(b) of RA 7160.

x ------------------------------------------------------------------------------------------------------ x

DECISION

BRION, J.:

Is the preventive suspension of an elected public official an interruption of

his term of office for purposes of the three-term limit rule under Section 8,
Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA
7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive

suspension is an effective interruption because it renders the suspended
public official unable to provide complete service for the full term; thus, such
term should not be counted for the purpose of the three-term limit rule.

The COMELECs Second Division ruled against the petitioners and in Asilos
favour in its Resolution of November 28, 2007. It reasoned out that the
three-term limit rule did not apply, as Asilo failed to render complete service
for the 2004-2007 term because of the suspension the Sandiganbayan had
ordered.

The COMELEC en banc refused to reconsider the Second Divisions ruling in

its October 7, 2008 Resolution; hence, the PRESENT PETITION raising the
following ISSUES:

1.
Whether preventive suspension of an elected local official is an
interruption of the three-term limit rule; and

2. Whether preventive suspension is considered

renunciation as contemplated in Section 43(b) of RA 7160

involuntary

Thus presented, the case raises the direct issue of whether Asilos preventive
suspension constituted an interruption that allowed him to run for a 4th term.

THE COURTS RULING

We find the petition meritorious.

The present petition[1] seeks to annul and set aside this COMELEC ruling for
having been issued with grave abuse of discretion amounting to lack or
excess of jurisdiction.

THE ANTECEDENTS

General Considerations

The present case is not the first before this Court on the three-term limit
provision of the Constitution, but is the first on the effect of preventive
suspension on the continuity of an elective officials term. To be sure,
preventive suspension, as an interruption in the term of an elective public
official, has been mentioned as an example in Borja v. Commission on

Elections.[2] Doctrinally, however, Borja is not a controlling ruling; it did not

deal with preventive suspension, but with the application of the three-term
rule on the term that an elective official acquired by succession.

a.

The Three-term Limit Rule:

A later case, Gaminde v. Commission on Audit,[4] reiterated that *T+he term

means the time during which the officer may claim to hold office as of right,
and fixes the interval after which the several incumbents shall succeed one
another.

The limitation under this first branch of the provision is expressed in

the negative no such official shall serve for more than three consecutive
terms. This formulation no more than three consecutive terms is a clear
command suggesting the existence of an inflexible rule. While it gives no
exact indication of what to serve. . . three consecutive terms exactly
connotes, the meaning is clear reference is to the term, not to the
service that a public official may render. In other words, the limitation refers
to the term.

The Constitutional Provision Analyzed

Section 8, Article X of the Constitution states:

Section
8. The
term of
office
of
elective
local
officials,
except barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full
term for which he was elected.

Section 43 (b) of RA 7160 practically repeats the constitutional provision, and

any difference in wording does not assume any significance in this case.

As worded, the constitutional provision fixes the term of a local elective

office and limits an elective officials stay in office to no more than three
consecutive terms. This is the first branch of the rule embodied in Section 8,
Article X.

Significantly, this provision refers to a term as a period of time

three years during which an official has title to office and can
serve. Appari v. Court of Appeals,[3] a Resolution promulgated on November
28, 2007, succinctly discusses what a term connotes, as follows:

The second branch relates to the provisions express initiative to prevent any
circumvention of the limitation through voluntary severance of ties with the
public office; it expressly states that voluntary renunciation of office shall
not be considered as an interruption in the continuity of his service for the
full term for which he was elected. This declaration complements
the term limitation mandated by the first branch.

A notable feature of the second branch is that it does not textually state that
voluntary renunciation is the only actual interruption of service that does not
affect continuity of service for a full term for purposes of the three-term
limit rule. It is a pure declaratory statement of what does not serve as an
interruption of service for a full term, but the phrase voluntary
renunciation, by itself, is not without significance in determining
constitutional intent.

The word renunciation carries the dictionary meaning of abandonment. To

renounce is to give up, abandon, decline, or resign.[5] It is an act that
emanates from its author, as contrasted to an act that operates from the
outside. Read with the definition of a term in mind, renunciation, as
mentioned under the second branch of the constitutional provision, cannot
but mean an act that results in cutting short the term, i.e., the loss of title to
office. The descriptive word voluntary linked together with renunciation
signifies an act of surrender based on the surenderees own freely exercised
will; in other words, a loss of title to office by conscious choice. In the
context of the three-term limit rule, such loss of title is not considered an
interruption because it is presumed to be purposely sought to avoid the
application of the term limitation.

The following exchanges in the deliberations of the Constitutional

Commission on the term voluntary renunciation shed further light on the
extent of the term voluntary renunciation:
The word term in a legal sense means a fixed and definite period of time
which the law describes that an officer may hold an office. According to
Mechem, the term of office is the period during which an office may be
held. Upon expiration of the officers term, unless he is authorized by law to
holdover, his rights, duties and authority as a public officer must ipso
facto cease. In the law of public officers, the most and natural frequent
method by which a public officer ceases to be such is by the expiration of the
terms for which he was elected or appointed. [Emphasis supplied].

MR. MAAMBONG. Could I address the clarificatory question to the

Committee? This term voluntary renunciation does not appear in Section 3
[of Article VI]; it also appears in Section 6 [of Article VI].

MR DAVIDE. Yes.

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

Constitution. Could the Committee please enlighten us exactly what
voluntary renunciation mean? Is this akin to abandonment?

MR. DAVIDE. Abandonment is voluntary. In other words, he cannot

circumvent the restriction by merely resigning at any given time on the
second term.

The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office and at
the same time respect the peoples choice and grant their elected official full
service of a term is evident in this provision. Voluntary renunciation of a
term does not cancel the renounced term in the computation of the three
term limit; conversely, involuntary severance from officefor any length of
time short of the full term provided by law amounts to an interruption of
continuity of service. The petitioner vacated his post a few months before the
next mayoral elections, not by voluntary renunciation but in compliance with
the legal process of writ of execution issued by the COMELEC to that
effect. Such involuntary severance from office is an interruption of continuity
of service and thus, the petitioner did not fully serve the 1995-1998 mayoral
term. [Emphasis supplied]

MR. MAAMBONG. Is the Committee saying that the term voluntary

renunciation is more general than abandonment and resignation?
Our intended meaning under this ruling is clear: it is severance from office, or
to be exact, loss of title, that renders the three-term limit rule inapplicable.
MR. DAVIDE. It is more general, more embracing.[6]

From this exchange and Commissioner Davides expansive interpretation of

the term voluntary renunciation, the framers intent apparently was to
close all gaps that an elective official may seize to defeat the three-term limit
rule, in the way that voluntary renunciation has been rendered unavailable
as a mode of defeating the three-term limit rule. Harking back to the text of
the constitutional provision, we note further that Commissioner Davides
view is consistent with the negative formulation of the first branch of the
provision and the inflexible interpretation that it suggests.

This examination of the wording of the constitutional provision and of

the circumstances surrounding its formulation impresses upon us the clear
intent to make term limitation a high priority constitutional objective whose
terms must be strictly construed and which cannot be defeated by, nor
sacrificed for, values of less than equal constitutional worth. We view
preventive suspension vis--vis term limitation with this firm mindset.

b.

Relevant Jurisprudence on the

Ong v. Alegre[8] and Rivera v. COMELEC,[9] like Lonzanida, also involved the
issue of whether there had been a completed term for purposes of the threeterm limit disqualification. These cases, however, presented an interesting
twist, as their final judgments in the electoral contest came after the term of
the contested office had expired so that the elective officials in these cases
were never effectively unseated.

Despite the ruling that Ong was never entitled to the office (and thus was
never validly elected), the Court concluded that there was nevertheless an
election and service for a full term in contemplation of the three-term rule
based on the following premises: (1) the final decision that the third-termer
lost the election was without practical and legal use and value, having been
promulgated after the term of the contested office had expired; and (2) the
official assumed and continuously exercised the functions of the office from
the start to the end of the term. The Court noted in Ong the absurdity and
the deleterious effect of a contrary view that the official (referring to the
winner in the election protest) would, under the three-term rule, be
considered to have served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served the term pursuant to a
proclamation made in due course after an election. This factual variation led
the Court to rule differently from Lonzanida.

Three-term Limit Rule

Other than the above-cited materials, jurisprudence best gives us a lead into
the concepts within the provisions contemplation, particularly on the
interruption in the continuity of service for the full term that it speaks of.

Lonzanida v. Commission on Elections[7] presented the question of whether

the disqualification on the basis of the three-term limit applies if the election
of the public official (to be strictly accurate, the proclamation as winner of
the public official) for his supposedly third term had been declared invalid
in a final and executory judgment. We ruled that the two requisites for the
application of the disqualification (viz., 1. that the official concerned has
been elected for three consecutive terms in the same local government post;
and 2. that he has fully served three consecutive terms) were not present. In
so ruling, we said:

In the same vein, the Court in Rivera rejected the theory that the official who
finally lost the election contest was merely a caretaker of the office or a
mere de facto officer. The Court obeserved that Section 8, Article X of the
Constitution is violated and its purpose defeated when an official
fully served in the same position for three consecutive terms. Whether as
caretaker or de facto officer, he exercised the powers and enjoyed the
perquisites of the office that enabled him to stay on indefinitely.

Ong and Rivera are important rulings for purposes of the three-term
limitation because of what they directly imply. Although the election
requisite was not actually present, the Court still gave full effect to the threeterm limitation because of the constitutional intent to strictly limit elective
officials to service for three terms. By so ruling, the Court signalled how
zealously it guards the three-term limit rule. Effectively, these cases teach us
to strictly interpret the term limitation rule in favor of limitation rather than
its exception.

Adormeo v. Commission on Elections[10] dealt with the effect of recall on the

three-term limit disqualification. The case presented the question of
whether the disqualification applies if the official lost in the regular election
for the supposed third term, but was elected in a recall election covering that
term. The Court upheld the COMELECs ruling that the official was not
elected for three (3) consecutive terms. The Court reasoned out that for
nearly two years, the official was a private citizen; hence, the continuity of his
mayorship was disrupted by his defeat in the election for the third term.

Socrates v. Commission on Elections[11] also tackled recall vis--vis the threeterm limit disqualification. Edward Hagedorn served three full terms as
mayor. As he was disqualified to run for a fourth term, he did not participate
in the election that immediately followed his third term. In this election, the
petitioner Victorino Dennis M. Socrates was elected mayor. Less than 1
years after Mayor Socrates assumed the functions of the office, recall
proceedings were initiated against him, leading to the call for a recall
election. Hagedorn filed his certificate of candidacy for mayor in the recall
election, but Socrates sought his disqualification on the ground that he
(Hagedorn) had fully served three terms prior to the recall election and was
therefore disqualified to run because of the three-term limit rule. We
decided in Hagedorns favor, ruling that:

After three consecutive terms, an elective local official cannot

seek immediate reelection for a fourth term. The prohibited election refers
to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no
longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after
three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective
local officials, the question asked was whether there would be no further
election after three terms, or whether there would be no immediate
reelection after three terms.
x x x x

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

fourth term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third consecutive term. A
recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.

Neither does the Constitution prohibit one barred from seeking immediate
reelection to run in any other subsequent election involving the same term
of office. What the Constitution prohibits is a consecutivefourth term.[12]

Latasa v. Commission on Elections[13] presented the novel question of

whether a municipal mayor who had fully served for three consecutive terms
could run as city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the municipality was
converted into a city; the cityhood charter provided that the elective officials
of the municipality shall, in a holdover capacity, continue to exercise their
powers and functions until elections were held for the new city officials. The
Court ruled that the conversion of the municipality into a city did not convert
the office of the municipal mayor into a local government post different from
the office of the city mayor the territorial jurisdiction of the city was the
same as that of the municipality; the inhabitants were the same group of
voters who elected the municipal mayor for 3 consecutive terms; and they
were the same inhabitants over whom the municipal mayor held power and
authority as their chief executive for nine years. The Court said:

This Court reiterates that the framers of the Constitution specifically

included an exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a
municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive
terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not abhorred by it.[14]

Latasa instructively
highlights,
after
a
review
of Lonzanida,
Adormeo and Socrates, that no three-term limit violation results if a rest
period or break in the service between terms or tenure in a given elective
post intervened. In Lonzanida, the petitioner was a private citizen with no
title to any elective office for a few months before the next mayoral
elections. Similarly, in Adormeo and Socrates, the private respondents lived
as private citizens for two years and fifteen months, respectively. Thus, these
cases establish that the law contemplates a complete break from office
during which the local elective official steps down and ceases to exercise
power or authority over the inhabitants of the territorial jurisdiction of a
particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission

on Elections,[15] where the highest-ranking municipal councilor succeeded to
the position of vice-mayor by operation of law. The question posed when he
subsequently ran for councilor was whether his assumption as vice-mayor
was an interruption of his term as councilor that would place him outside the
operation of the three-term limit rule. We ruled that an interruption had
intervened so that he could again run as councilor. This result seemingly
deviates from the results in the cases heretofore discussed since the elective
official continued to hold public office and did not become a private citizen
during the interim. The common thread that identifiesMontebon with the
rest, however, is that the elective official vacated the office of councilor and
assumed the higher post of vice-mayor by operation of law. Thus, for a time
he ceased to be councilor an interruption that effectively placed him
outside the ambit of the three-term limit rule.

c.

Conclusion Based on Law

and Jurisprudence
a. Nature of Preventive Suspension

From all the above, we conclude that the interruption of a term exempting
an elective official from the three-term limit rule is one that involves no less
than the involuntary loss of title to office. The elective official must have
involuntarily left his office for a length of time, however short, for an
effective interruption to occur. This has to be the case if the thrust of Section
8, Article X and its strict intent are to be faithfully served, i.e., to limit an
elective officials continuous stay in office to no more than three consecutive
terms, using voluntary renunciation as an example and standard of what
does not constitute an interruption.

Thus, based on this standard, loss of office by operation of law, being

involuntary, is an effective interruption of service within a term, as we held
in Montebon. On the other hand, temporary inability or disqualification to
exercise the functions of an elective post, even if involuntary, should not be
considered an effective interruption of a term because it does not involve the
loss of title to office or at least an effective break from holding office; the
office holder, while retaining title, is simply barred from exercising the
functions of his office for a reason provided by law.

An interruption occurs when the term is broken because the office holder
lost the right to hold on to his office, and cannot be equated with the failure
to render service. The latter occurs during an office holders term when he
retains title to the office but cannot exercise his functions for reasons
established by law. Of course, the term failure to serve cannot be used
once the right to office is lost; without the right to hold office or to serve,
then no service can be rendered so that none is really lost.

To put it differently although at the risk of repetition, Section 8, Article

X both by structure and substance fixes an elective officials term of office
and limits his stay in office to three consecutive terms as an inflexible rule
that is stressed, no less, by citing voluntary renunciation as an example of a
circumvention. The provision should be read in the context ofinterruption of
term, not in the context of interrupting the full continuity of the exercise of
the powers of the elective position. The voluntary renunciation it speaks of
refers only to the elective officials voluntary relinquishment of office and
loss of title to this office. It does not speak of the temporary cessation of
the exercise of power or authority that may occur for various reasons, with
preventive suspension being only one of them. To quote Latasa v.
Comelec:[16]

Indeed, [T]he law contemplates a rest period during which the local elective
official steps down from office and ceases to exercise power or authority over
the inhabitants of the territorial jurisdiction of a particular local government
unit. [Emphasis supplied].

Preventive Suspension and

the Three-Term Limit Rule

Preventive suspension whether under the Local Government

Code,[17] the Anti-Graft and Corrupt Practices Act,[18] or the Ombudsman
Act[19] is an interim remedial measure to address the situation of an official
who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or
liability.

Preventive suspension is imposed under the Local Government Code when

the evidence of guilt is strong and given the gravity of the offense, there is a
possibility that the continuance in office of the respondent could influence
the witnesses or pose a threat to the safety and integrity of the records and
other evidence. Under the Anti-Graft and Corrupt Practices Act, it is
imposed after a valid information (that requires a finding of probable cause)
has been filed in court, while under the Ombudsman Act, it is imposed when,
in the judgment of the Ombudsman, the evidence of guilt is strong; and (a)
the charge involves dishonesty, oppression or grave misconduct or neglect in
the performance of duty; or (b) the charges would warrant removal from the
service; or (c) the respondents continued stay in office may prejudice the
case filed against him.

Notably in all cases of preventive suspension, the suspended official is barred

from performing the functions of his office and does not receive salary in the
meanwhile, but does not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of guilt or liability.

Preventive suspension is a remedial measure that operates under

closely-controlled conditions and gives a premium to the protection of the
service rather than to the interests of the individual office holder. Even then,
protection of the service goes only as far as a temporary prohibition on
the exercise of the functions of the officials office; the official is reinstated to
the exercise of his position as soon as the preventive suspension is
lifted. Thus, while a temporary incapacity in the exercise of power results, no
position is vacated when a public official is preventively suspended. This was
what exactly happened to Asilo.

That the imposition of preventive suspension can be abused is a reality that

is true in the exercise of all powers and prerogative under the Constitution
and the laws. The imposition of preventive suspension, however, is not an
unlimited power; there are limitations built into the laws[20] themselves that
the courts can enforce when these limitations are transgressed, particularly
when grave abuse of discretion is present. In light of this well-defined
parameters in the imposition of preventive suspension, we should not view
preventive suspension from the extreme situation that it can totally
deprive an elective office holder of the prerogative to serve and is thus an
effective interruption of an election officials term.

Term limitation and preventive suspension are two vastly different aspects of
an elective officials service in office and they do not overlap. As already
mentioned above, preventive suspension involves protection of the service
and of the people being served, and prevents the office holder from
temporarily exercising the power of his office. Term limitation, on the other
hand, is triggered after an elective official has served his three terms in office
without any break. Its companion concept interruption of a term on the
other hand, requires loss of title to office. If preventive suspension and term
limitation or interruption have any commonality at all, this common point
may be with respect to the discontinuity of service that may occur in
both. But even on this point, they merely run parallel to each other and
never intersect; preventive suspension, by its nature, is a temporary
incapacity to render service during an unbroken term; in the context of term
limitation, interruption of service occurs after there has been a break in the
term.

Voluntary Renunciation

Preventive suspension, because it is imposed by operation of law, does not

involve a voluntary act on the part of the suspended official, except in the
indirect sense that he may have voluntarily committed the act that became
the basis of the charge against him. From this perspective, preventive
suspension does not have the element of voluntariness that voluntary
renunciation embodies. Neither does it contain the element of renunciation
or loss of title to office as it merely involves the temporary incapacity to
perform the service that an elective office demands. Thus viewed, preventive
suspension is by its very nature the exact opposite of voluntary
renunciation; it is involuntary and temporary, and involves only the actual
delivery of service, not the title to the office. The easy conclusion therefore
is that they are, by nature, different and non-comparable.

b. Preventive Suspension and

the Intent of the Three-Term
Limit Rule

Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that allows
an elective officials stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising the
functions and prerogatives of the office within the suspension period. The
best indicator of the suspended officials continuity in office is the absence of
a permanent replacement and the lack of the authority to appoint one since
no vacancy exists.

To allow a preventively suspended elective official to run for a fourth and

prohibited term is to close our eyes to this reality and to allow a
constitutional violation through sophistry by equating the temporary inability
to discharge the functions of office with the interruption of term that the
constitutional provision contemplates. To be sure, many reasons exist,
voluntary or involuntary some of them personal and some of them by
operation of law that may temporarily prevent an elective office holder
from exercising the functions of his office in the way that preventive
suspension does. A serious extended illness, inability through force majeure,
or the enforcement of a suspension as a penalty, to cite some involuntary
examples, may prevent an office holder from exercising the functions of his
office for a time without forfeiting title to office. Preventive suspension is no
different because it disrupts actual delivery of service for a time within a
term. Adopting such interruption of actual service as the standard to
determine effective interruption of term under the three-term rule raises at
least the possibility of confusion in implementing this rule, given the many
modes and occasions when actual service may be interrupted in the course
of serving a term of office. The standard may reduce the enforcement of the
three-term limit rule to a case-to-case and possibly see-sawing
determination of what an effective interruption is.

c.

Preventive Suspension and

But beyond the obvious comparison of their respective natures is the more
important consideration of how they affect the three-term limit rule.

Voluntary renunciation, while involving loss of office and the total incapacity
to render service, is disallowed by the Constitution as an effective
interruption of a term. It is therefore not allowed as a mode of
circumventing the three-term limit rule.

Preventive suspension, by its nature, does not involve an effective

interruption of a term and should therefore not be a reason to avoid the
three-term limitation. It can pose as a threat, however, if we shall disregard
its nature and consider it an effective interruption of a term. Let it be noted
that a preventive suspension is easier to undertake than voluntary
renunciation, as it does not require relinquishment or loss of office even for
the briefest time. It merely requires an easily fabricated administrative
charge that can be dismissed soon after a preventive suspension has been
imposed. In this sense, recognizing preventive suspension as an effective
interruption of a term can serve as a circumvention more potent than the
voluntary renunciation that the Constitution expressly disallows as an
interruption.

Conclusion

To recapitulate, Asilos 2004-2007 term was not interrupted by the

Sandiganbayan-imposed preventive suspension in 2005, as preventive
suspension does not interrupt an elective officials term. Thus, the COMELEC
refused to apply the legal command of Section 8, Article X of the Constitution
when it granted due course to Asilos certificate of candidacy for a prohibited
fourth term. By so refusing, the COMELEC effectively committed grave abuse
of discretion amounting to lack or excess of jurisdiction; its action was a
refusal to perform a positive duty required by no less than the Constitution
and was one undertaken outside the contemplation of law.[21]

WHEREFORE, premises considered, we GRANT the petition and

accordingly NULLIFY the assailed COMELEC rulings. The private respondent
Wilfredo F. Asilo is declaredDISQUALIFIED to run, and perforce to serve, as
Councilor of Lucena City for a prohibited fourth term. Costs against private
respondent Asilo.

SO ORDERED.

THE SANGGUNIANG BARANGAY OF

BARANGAY DON MARIANO MARCOS,
MUNICIPALITY
OF
BAYOMBONG
PROVINCE
OF
NUEVA
VISCAYA
represented by BARANGAY KAGAWAD
JOSE CENEN SANTOS, MARIO BACUD,
WALTER
FRANCISCO,
ROSITA
SEBASTIAN, LAURETA CABAUATAN,
CECILIA
ALINDAYU
and
MELY
SIMANGAN,
Petitioners,

G.R. No. 170626

Present:

YNARES-SANTIAGO, J.,
Chairperson,

- versus -

AUSTRIA-MARTINEZ,
CHICO-NAZARIO,

PUNONG
SEVERINO MARTINEZ,

BARANGAY

Respondent.

This is a Petition for Review on Certiorari under Rule 45 of the Rules of

Court, assailing the Orders dated 20 October 2005[1] and 30 November
2005[2] of the Regional Trial Court (trial court), Branch 27,
of Bayombong, Nueva Vizcaya, in Special Civil Action No. 6727. In its assailed
Orders,
the
trial
court
ruled
that
the Sangguniang Bayan of Bayombong, NeuvaVizcaya (Sangguniang Bayan),
exceeded
its
jurisdiction
when
it
imposed
upon
respondent Severino Martinez the administrative penalty of removal from
office.

Petitioner Sangguniang Barangay is the legislative body of Barangay Don

Mariano Marcos, Bayombong, Nueva Vizcaya, a local government unit
created, organized and existing as such under pertinent laws of the Republic
of
the Philippines.
Respondent Martinez is
the
incumbent Punong Barangay of the said local government unit.[3]

On 5 November 2004, Martinez was administratively charged with

Dishonesty and Graft and Corruption by petitioner through the filing of a
verified complaint before the SangguniangBayan as the disciplining authority
over elective barangay officials pursuant to Section 61[4] of Rep. Act No.
7160, otherwise known as the Local Government Code. Petitioner filed with
the Sangguniang Bayan an
Amended
Administrative
Complaint
against Martinez on 6 December 2004 for Dishonesty, Misconduct in Office
and Violation of the Anti-Graft and Corrupt Practices Act.[5] Petitioner alleged
that Martinez committed the following acts:

NACHURA, and
REYES, JJ.
1. Failure to submit and fully remit to the Barangay Treasurer the income of
their solid waste management project since 2001 particularly the sale of
fertilizer derived from composting.

Promulgated:
2. Failure to submit/remit to the barangay treasurer the sale of recyclable
materials taken from garbage collection.

March 3, 2008

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.

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.
DECISION

CHICO-NAZARIO, J.:

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.[6]

On 10 November 2005, petitioner filed a Motion for Reconsideration[13] of

the trial courts Order dated 10 October 2005. The trial court denied the said
motion in another Order dated 30 November 2005.[14]

Hence, the present petition was filed.

Upon his failure to file an Answer to the Amended Administrative Complaint
dated 6 December 2004, Martinez was declared by the Sangguniang Bayan as
in default. Pending the administrative proceedings, Martinez was placed
under preventive suspension for 60 days or until 8 August 2005.[7]

Although Martinezs term as Punong Baranggay 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 will nevertheless settle
a legal question that is capable of repetition yet evading review.[15]

On 28 July 2005, the Sangguniang Bayan rendered its Decision which

imposed upon Martinez the penalty of removal from office.[8]

The Decision dated 28 July 2005 was conveyed to the Municipal Mayor
of Bayombong, Nueva Ecija, Severino Bagasao, for its implementation. On 3
August 2005, Municial MayorBagasao issued a Memorandum, wherein he
stated that the Sanggunaing Bayan is not empowered to order Martinezs
removal from service. However, the Decision remains valid until reversed
and must be executed by him. For the meantime, he ordered the indefinite
suspension of Martinez since the period of appeal had not yet
lapsed.[9] The dispositive portion of the said Memorandum states that:[10]

The FOREGOING considered come AUGUST 8, 2005, respondent SEVERINO D.

MARTINEZ is hereby directed NOT to ASSUME and DISCHARGE the functions
of the Office of the Punong Barangayof Barangay Don Mariano
Marcos, Bayombong, Nueva Vizcaya and for complainant JOSE CENEN
SANTOS to CONTINUE assuming and discharging the functions of the said
office in ACTING CAPACITY pursuant to the provisions of Sections 67 and 68
of Republic Act No. 7160.

The pivotal issue in this case is whether or not the Sangguniang Bayan may
remove Martinez, an elective local official, from office. The pertinent legal
provisions and cases decided by this Court firmly establish that
the Sanggunaing 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:

Section 60. Grounds for Disciplinary Actions.An elective local official may
be disciplined, suspended, or removed from office on any of the following
grounds:

x x x x.

An elective local official may be removed from office on the grounds

enumerated above by order of the proper court. (Emphasis provided.)
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. This case was
docketed as Special Civil Action No. 6727, which was initially heard by Branch
28, but later raffled to Branch 27 of the trial court.[11]

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
theSangguniang Bayan removing Martinez from service is void. As a
consequence, Mayor Bagasao cannot prevent Martinez from assuming his
office on the basis of a void order. 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.[12]

During the deliberations of the Senate on the Local Government Code,[16] the
legislative intent to confine to the courts, i.e., regional trial courts,
the Sandiganbayan and the appellate courts, jurisdiction over cases involving
the removal of elective local officials was evident:

Senator Pimentel. This has been reserved, Mr. President, including the issue
of whether or not the Department Secretary or the Office of the President
can suspend or remove an elective official.

Senator Saguisag. For as long as that is open for some later disposition, may I
just add the following thought: It seems to me that instead of identifying
only the proper regional trial court or theSandiganbayan, and since we
know that in the case of a regional trial court, particularly, a case may be
appealed or may be the subject of an injunction, in the framing of this later
on, I would like to suggest that we consider replacing the phrase PROPER

REGIONAL TRIAL COURT OR THE SANDIGANBAYAN simply by

COURTS. Kasi po, maaaring sabihin nila na mali iyong regional trial court
o ang Sandiganbayan.

courts are merely tasked with issuing the order of removal, after
the SangguniangPanlungsod or Sangguniang Bayan finds that a penalty of
removal is warranted.[18]

Senator Pimentel. OR THE PROPER COURT.

The aforementioned position put forward by the petitioner would run

counter to the rationale for making the removal of elective officials an
exclusive judicial prerogative. In Pablicov. Villapando,[19] the court declared
that:

Senator Saguisag. OR THE PROPER COURT.

Senator Pimentel. Thank you. We are willing to accept that now, Mr.
President.

Senator Saguisag. It is to be incorporated in the phraseology that we will

craft to capture the other ideas that have been elevated. (Emphasis
provided.)

In Salalima v. Guingona, Jr.,[17] 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:

Article 125. Grounds for Disciplinary Actions. x x x.

x x x x.

(b) 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. Thus, it is clear that under the law, the Sangguniang Bayan is
not vested with the power to remove Martinez.

Petitioner
contends
that
administrative
cases
involving
elective barangay officials may be filed with, heard and decided by
the Sangguniang Panlungsod or Sangguniang Bayanconcerned, which can,
thereafter, impose a penalty of removal from office. It further claims that the

It is beyond cavil, therefore, that the power to remove erring elective local
officials from service is lodged exclusively with the courts. Hence, Article 124
(sic 125)[20] (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. 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. Their
will must not be put to naught by the caprice or partisanship of the
disciplining authority. 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. (Emphasis
supplied.)

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. 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. Thus, the
petitioners interpretation would defeat the clear intent of the law.

Moreover, such an arrangement clearly demotes the courts to nothing

more than an implementing arm of the Sangguniang Panlungsod,
or Sangguniang Bayan. This would be an unmistakable breach of the
doctrine on separation of powers, thus placing the courts under the orders of
the legislative bodies of local governments. The courts would be stripped of
their power of review, and their discretion in imposing the extreme penalty
of removal from office is thus 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.

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. 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.

As the law stands, 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
theSangguniang Panlungsod or Sangguniang Bayan. However,
the Sangguniang Panlungsod 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 SangguniangPanlungsod or Sangguniang Bayan may impose on the erring
elective barangay official is suspension; 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.

Petitioner alleged that an interpretation which gives the judiciary the power
to remove local elective officials violates the doctrine of separation of
powers. This allegation runs contrary to the 1987 Constitution itself, as well
as jurisprudence.

The 1987 Constitution is explicit in defining the scope of judicial power. It

establishes the authority of the courts to determine in an appropriate action
the validity of acts of the political departments. It speaks of judicial
prerogative in terms of duty.[21] Paragraph 2, Section 1, Article VIII of the
1987 Constitution, 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. (Emphasis provided.)

The doctrine of separation of powers is not absolute in its application; rather,

it should be applied in accordance with the principle of checks and
balances. The removal from office of elective officials must not be tainted
with partisan politics and used to defeat the will of the voting
public. Congress itself saw it fit to vest that power in a more impartial
tribunal, the court. Furthermore, the local government units are not
deprived of the right to discipline local elective officials; rather, they are
prevented from imposing the extreme penalty of dismissal.

Petitioner questions the Decision dated 20 October 2005 of the trial court for
allowing the petition filed before it as an exception to the doctrine of
exhaustion
of
administrative
remedies. If,
indeed,
the Sangguniang Bayan had no power to remove Martinez from office,

then Martinez should

have
sought
recourse
from
the Sangguniang Panlalawigan. This Court upholds the ruling of the trial
court.

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. 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.[22]

The doctrine of exhaustion of administrative remedies, which is based on

sound public policy and practical consideration, is not inflexible. There are
instances when it may be dispensed with and judicial action may be validly
resorted to immediately. Among these exceptions are: 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.[23]

As a general rule, no recourse to courts can be had until all administrative

remedies have been exhausted. However, this 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, it is apparent that 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.[24] Thus, his direct recourse to regular courts of
justice was justified.

In addition, this Court in Castro v. Gloria[25] declared that where the case
involves only legal questions, the litigant need not exhaust all administrative
remedies before such judicial relief can be sought. The reason behind
providing an exception to the rule on exhaustion of administrative remedies
is that issues of law cannot be resolved with finality by the administrative
officer. 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.[26]

In the present case, Martinez raised before the trial court the sole issue of
whether the Sangguniang Bayan has jurisdiction over a case involving the

removal of a local elective official from office.[27] In Martinezs petition

before the trial court, only a legal question was raised, one that will
ultimately be resolved by the courts. Hence, appeal to the administrative
officer concerned would only be circuitous and, therefore, should no longer
be required before judicial relief can be sought.

His motion for reconsideration having been denied, petitioner resorted to

the present petition, imputing grave abuse of discretion on the part of the
COMELEC for disqualifying him from running and assuming the office of
Barangay Chairman.
We dismiss the petition.

IN VIEW OF THE FOREGOING, the instant Petition is DENIED and the assailed
Decision of the Bayombong RTC in Special Civil Action No. 6727 is AFFIRMED.

SO ORDERED.
[G.R. NO. 182701 : July 23, 2008]
EUSEBIO EUGENIO K. LOPEZ, Petitioner, v. COMMISSION ON ELECTIONS and
TESSIE P. VILLANUEVA, Respondents.
RESOLUTION
REYES, R.T., J.:
A Filipino-American or any dual citizen cannot run for any elective public
position in the Philippines unless he or she personally swears to a
renunciation of all foreign citizenship at the time of filing the certificate of
candidacy.
This is a petition for certiorari under Rule 65, in relation to Rule 64 of the
Rules on Civil Procedure assailing the (1) Resolution 1 and (2) Omnibus
Order2 of the Commission on Elections (COMELEC), Second Division,
disqualifying petitioner from running as Barangay Chairman.
Petitioner Eusebio Eugenio K. Lopez was a candidate for the position of
Chairman of Barangay Bagacay, San Dionisio, Iloilo City in the synchronized
Barangay and Sangguniang Kabataan Elections held on October 29, 2007.
On October 25, 2007, respondent Tessie P. Villanueva filed a petition3 before
the Provincial Election Supervisor of the Province of Iloilo, praying for the
disqualification of petitioner on the ground that he is an American citizen,
hence, ineligible from running for any public office. In his Answer,4 petitioner
argued that he is a dual citizen, a Filipino and at the same time an American,
by virtue of Republic Act (R.A.) No. 9225, otherwise known as the Citizenship
Retention and Re-acquisition Act of 2003.5He returned to the Philippines and
resided in Barangay Bagacay. Thus, he said, he possessed all the
qualifications to run for Barangay Chairman.
After the votes for Barangay Chairman were canvassed, petitioner emerged
as the winner.6
On February 6, 2008, COMELEC issued the assailed Resolution granting the
petition for disqualification, disposing as follows:
WHEREFORE, premises considered, the instant Petition for Disqualification is
GRANTED and respondent Eusebio Eugenio K. Lopez is DISQUALIFIED from
running as Barangay Chairman of Barangay Bagacay, San Dionisio, Iloilo.
SO ORDERED.7
In ruling against petitioner, the COMELEC found that he was not able to
regain his Filipino citizenship in the manner provided by law. According to
the poll body, to be able to qualify as a candidate in the elections, petitioner
should have made a personal and sworn renunciation of any and all foreign
citizenship. This, petitioner failed to do.

Relying on Valles v. Commission on Elections,8 petitioner argues that his filing

of a certificate of candidacy operated as an effective renunciation of foreign
citizenship.
We note, however, that the operative facts that led to this Court's ruling in
Valles are substantially different from the present case. In Valles, the
candidate, Rosalind Ybasco Lopez, was a dual citizen by accident of birth on
foreign soil.9 Lopez was born of Filipino parents in Australia, a country which
follows the principle of jus soli.rl As a result, she acquired Australian
citizenship by operation of Australian law, but she was also considered a
Filipino citizen under Philippine law. She did not perform any act to swear
allegiance to a country other than the Philippines.
In contrast, petitioner was born a Filipino but he deliberately sought
American citizenship and renounced his Filipino citizenship. He later on
became
a
dual
citizen
by
re-acquiring
Filipino
citizenship.rbl r l l lbrr
More importantly, the Court's 2000 ruling in Valles has been superseded by
the enactment of R.A. No. 922510 in 2003. R.A. No. 9225 expressly provides
for the conditions before those who re-acquired Filipino citizenship may run
for a public office in the Philippines. Section 5 of the said law states:
Section 5. Civil and Political Rights and Liabilities. - Those who retain or reacquire Philippine citizenship under this Act shall enjoy full civil and political
rights and be subject to all attendant liabilities and responsibilities under
existing laws of the Philippines and the following conditions:
x x x
(2) Those seeking elective public office in the Philippines shall meet the
qualification for holding such public office as required by the Constitution
and existing laws and, at the time of the filing of the certificate of candidacy,
make a personal and sworn renunciation of any and all foreign citizenship
before any public officer authorized to administer an oath. (Emphasis added)
Petitioner re-acquired his Filipino citizenship under the cited law. This new
law explicitly provides that should one seek elective public office, he should
first "make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath."
Petitioner failed to comply with this requirement. We quote with approval
the COMELEC observation on this point:
While respondent was able to regain his Filipino Citizenship by virtue of the
Dual Citizenship Law when he took his oath of allegiance before the Vice
Consul of the Philippine Consulate General's Office in Los Angeles, California,
the same is not enough to allow him to run for a public office. The abovequoted provision of law mandates that a candidate with dual citizenship
must make a personal and sworn renunciation of any and all foreign
citizenship before any public officer authorized to administer an oath. There
is no evidence presented that will show that respondent complied with the
provision of R.A. No. 9225. Absent such proof we cannot allow respondent to
run for Barangay Chairman of Barangay Bagacay.
For the renunciation to be valid, it must be contained in an affidavit duly
executed before an officer of law who is authorized to administer an oath.
The affiant must state in clear and unequivocal terms that he is renouncing
all foreign citizenship for it to be effective. In the instant case, respondent
Lopez's failure to renounce his American citizenship as proven by the
absence of an affidavit that will prove the contrary leads this Commission to

believe that he failed to comply with the positive mandate of law. For failure
of respondent to prove that he abandoned his allegiance to the United
States, this Commission holds him disqualified from running for an elective
position in the Philippines.11 (Emphasis added)
While it is true that petitioner won the elections, took his oath and began to
discharge the functions of Barangay Chairman, his victory can not cure the
defect of his candidacy. Garnering the most number of votes does not
validate the election of a disqualified candidate because the application of
the constitutional and statutory provisions on disqualification is not a matter
of popularity.12
In sum, the COMELEC committed no grave abuse of discretion in disqualifying
petitioner as candidate for Chairman in the Barangay elections of 2007.
WHEREFORE, the petition is DISMISSED.
G.R. No. L-11959

October 31, 1959

ARTURO
B.
PASCUAL, petitioner-appellant,
vs.
HON. PROVINCIAL BOARD OF NUEVA ECIJA, respondent-appellee.
Amado G. Salazar, Felicisimo S. Ocampo, Arturo S. Tomas, Feliciano Bautista
and
Severo
Ongsiapco
for
appellant.
Mariano D. Capuyoc for appellee.
GUTIERREZ DAVID, J.:
We are asked in this appeal to revoke an order of the Court of First Instance
of Nueva Ecija denying appellant's petition for a writ of prohibition with
preliminary injunction.
Petitioner-appellant Arturo B. Pascual had been elected mayor of San Jose,
Nueva Ecija, in November 1951 and reelected in 1955. In October 6, 1956,
the Acting Provincial Governor of that province filed with the Provincial
Board three administrative charges against the said appellant. Charge III was
for "Maladministrative, Abuse of Authority, and Usurpation of Judicial
Functions," committed as follows:
Specification I That on or about the 18th and 20th day of
December, 1954, in the municipality of San Jose, Nueva Ecija, the
above-named respondent, being municipal mayor of San Jose,
Nueva Ecija, and while the justice of the peace of the said
municipality was present therein, did there and then willfully,
feloniously, criminally, without legal authority, and with grave
abuse of authority, assumed and usurped the judicial powers of
the said justice of the peace by accepting the criminal complaint
filed in Criminal Case No. 3556, of the said court, conducting the
preliminary investigation thereof, fixing the bail bond of
P6,000.00, and issuing the corresponding warrant of arrest; and
after the accused in the said criminal case had been arrested,
while the justice of the peace was in his office in San Jose, Nueva
Ecija, the herein respondent, in defiance of the express refusal by
the justice of the peace to reduce the bail bond of the accused in
Criminal Case No. 1556, acted on the motion to reduce bail and
did reduce the bail bond to P3,000.00.
After the presentation of evidence regarding the first two charges,
petitioner-appellant filed with the respondent-appellee, the Provincial Board,
a motion to dismiss the third charge above referred to, on the main ground
that the wrongful acts therein alleged had been committed during his
previous term of office and could not constitute a ground for disciplining him
during his second term. Upon opposition filed by a special counsel for the
respondent-appellee, the motion to dismiss was denied by resolution of the
Board.

After the denial of the motion for reconsideration of that resolution, the
appellant filed with this Court a petition for a writ of prohibition with
preliminary injunction (G. R. No. L-11730), to enjoin the Provincial Board of
Nueva Ecija from taking cognizance of the third charge, but the petition was
denied by minute resolution of December 21, 1956 "without prejudice to
action, if any, in the Court of First Instance." Accordingly, the petitionerappellant filed with the Court of First Instance of Nueva Ecija a petition for
prohibition with preliminary injunction seeking to inhibit the said Provincial
Board from proceeding with the hearing of Charge No. III, for lack of
jurisdiction.
Instead of filing an answer, the respondent-appellee moved for the dismissal
of the case on the ground that it states no cause of action because the
petitioner-appellant had not complied with the cardinal principle of
exhaustion of administrative remedies before he could appeal to the courts,
and because the Provincial Board had jurisdiction over Charge No. III. After
responsive pleadings had been filed by both parties, the court below issued
an order dismissing the petition "for being premature," for the reason that
the petitioner had not first appealed to the Executive Secretary. From that
order, the case was brought before us on appeal. Upon urgent petition, a
writ of preliminary injunction was issued restraining the respondent-appellee
from investigating petitioner-appellant on the charge above-mentioned.
In his brief, petitioner-appellant claims that the court below erred: (1) in not
holding that the alleged usurpation of judicial functions in December 1954 is
not a legal ground for disciplining the appellant during his second term of
office after a reelection, and in not holding that the respondent patently has
no authority or jurisdiction to take cognizance of Charge No. 3; (2) in holding
that the petition for prohibition is premature and that the appellant must
first exhaust all administrative remedies available to him under the Revised
Administrative Code; and (3) in dismissing the petition for prohibition.
The first question posed is whether or not it was legally proper for petitionerappellant to have come to court without first bringing his case to the
Executive Secretary for review. True it is that, in this jurisdiction, the settled
rule is that where the law has delineated the procedure by which
administrative appeal or remedy could be effected, the same should be
followed before recourse to judicial action can be initiated (Ang Tuan
Kai vs. Import Control Commission, 91 Phil., 143; Coloso vs. Board, 92 Phil.,
938; Miguel vs. Reyes, 93 Phil., 542, and several other cases), but we believe
that this rule is not without exceptions, as in a case like the present, where
the only question to be settled in the prohibition proceedings is a purely legal
one whether or not a municipal mayor may be subjected to an
administrative investigation of a charge based on misconduct allegedly
committed by him during his prior term.
The rule is inapplicable where administrative remedy is provided.
Likewise, the rule will be relaxed where there is grave doubt as to
availability of the administrative remedy; where the question in
dispute is purely a legal one, and nothing of an administrative
nature is to be or can be done; where although there are steps to
be taken, they are, under the admitted facts, merely matters of
from, and the administrative process, as a process of judgment, is
really over; or where the administrative remedy is not exclusive
but merely cumulative or concurrent to a judicial remedy. A
litigant need not proceed with optional administrative process
before seeking juducial relief. (73 C. J. S. p. 354) (Emphasis
supplied) .
On the above authority, we are inclined to agree with the petitionerappellant that his bringing the case to court is not a violation of, but merely
an exception to, the cardinal rule above referred to.
In a case (Mondano vs. Silvosa * 51 Off Gaz., [6], p. 2884), this court granted a
writ of prohibition against the provincial board of Capiz, notwithstanding the
fact that the petitioner therein did into appeal to the Executive Secretary, the
only question therein involved being whether or not the charged filed against
the municipal mayor of Calibo, Capiz, constituted any one of the grounds for
suspension or removal provided for in sec. 2188 of the Revised
Administrative Code.

We now come to the main issue of the controversy the legality of

disciplining an elective municipal official for a wrongful act committed by him
during his immediately preceding term of office.
In the absence of any precedent in this jurisdiction, we have resorted to
American authorities. We found that cases on the matter are conflicting due
in part, probably, to differences in statutes and constitutional provisions, and
also, in part, to a divergence of views with respect to the question of
whether the subsequent election or appointment condones the prior
misconduct. The weight of authorities, however, seems to incline to the rule
denying the right to remove one from office because of misconduct during a
prior term, to which we fully subscribe.
Offenses committed, or acts done, during previous term are
generally held not to furnish cause for removal and this is
especially true where the constitution provides that the penalty in
proceedings for removal shall not extend beyond the removal
from office, and disqualification from holding office for the term
for which the officer was elected or appointed. (67 C.J.S. p. 248,
citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40
S.W. 2d. 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d.
237; Board of Com'rs of Kingfisher County vs. Shutler, 281 P. 222;
State vs. Blake, 280 P. 388; In re Fudula, 147 A. 67; State vs. Ward,
43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of the officer's
previous misconduct to the extent of cutting off the right to remove him
therefor. (43 Am. Jur. p. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So.
559, 50 L.R.A. (NS) 553. As held in Conant vs. Brogan (1887) 6 N.Y.S.R. 332,
cited in 17 A.I.R. 281, 63 So. 559, 50 LRA (NS) 553
The Court should never remove a public officer for acts done prior
to his present term of office. To do otherwise would be to deprive
the people of their right to elect their officers. When the people
have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he had been
guilty of any. It is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.
In view of the foregoing, the order appealed from is hereby revoked; the writ
of prohibition prayed for is hereby granted and the preliminary injunction
heretofore issued made permanent. Without special pronouncement as to
costs.

as the Local Government Code, was repealed by the effectivity of the 1987
Constitution.
The pertinent facts are as follows: Petitioner was the duly elected Governor
of the province of Cagayan, having been elected to said position during the
local elections held on January 17, 1988, to serve a term of four (4) years
therefrom. He took his oath sometimes around March 1988.
Shortly after December 1989 coup d'etat was crushed, respondent Secretary
of Local Government sent a telegram and a letter, both dated December 4,
1989, to petitioner requiring him to show cause why should not be
suspended or remove from office for disloyalty to the Republic, within fortyeight (48) hours from receipt thereof.
On December 7, 1989, a sworn complaint for disloyalty to the Republic and
culpable violation of the Constitution was filed by Veronico Agatep, Manuel
Mamba and Orlino Agatep, respectively the mayors of the municipalities of
Gattaran, Tuao and Lasam, all in Cagayan, against petitioner for acts the
latter committed during the coup. Petitioner was required to file a verified
answer to the complaint.
On January 5, 1990, the Department of Local Government received a letter
from petitioner dated December 29, 1989 in reply to respondent Secretary's
December 4, 1989 letter requiring him to explain why should not be
suspended or removed from office for disloyalty. In his letter, petitioner
denied being privy to the planning of the coup or actively participating in its
execution, though he admitted that he was sympathetic to the cause of the
rebel soldiers. 1
Respondent Secretary considered petitioner's reply letter as his answer to
the complaint of Mayor Veronico Agatep and others. 2 On the basis thereof,
respondent Secretary suspended petitioner from office for sixty (60) days
from notice, pending the outcome of the formal investigation into the
charges against him.
During the hearing conducted on the charges against petitioner,
complainants presented testimonial and documentary evidence to prove the
charges. Petitioner neither presented evidence nor even cross-examined the
complainant's witnesses, choosing instead to move that respondent
Secretary inhibit himself from deciding the case, which motion was denied.
Thereafter, respondent Secretary rendered the questioned decision finding
petitioner guilty as charged and ordering his removal from office. Installed as
Governor of Cagayan in the process was respondent Melvin Vargas, who was
then the Vice-Governor of Cagayan.

G.R. No. 94115 August 21, 1992

RODOLFO
E.
AGUINALDO, petitioner,
vs.
HON. LUIS SANTOS, as Secretary of the Department of Local Government,
and MELVIN VARGAS, as Acting Governor of Cagayan, respondents.
Victor I. Padilla for petitioner.

Petitioner relies on three grounds for the allowance of the petition, namely:
(1) that the power of respondent Secretary to suspend or remove local
government official under Section 60, Chapter IV of B.P. Blg. 337 was
repealed by the 1987 Constitution; (2) that since respondent Secretary no
longer has power to suspend or remove petitioner, the former could not
appoint respondent Melvin Vargas as Governor of Cagayan; and (3) the
alleged act of disloyalty committed by petitioner should be proved by proof
beyond reasonable doubt, and not be a mere preponderance of evidence,
because it is an act punishable as rebellion under the Revised Penal Code.

Doroteo B. Laguna and Manuel T. Molina for private respondent.

NOCON, J.:
In this petition for certiorari and prohibition with preliminary mandatory
injunction and/or restraining order, petitioner Rodolfo E. Aguinaldo assails
the decision of respondent Secretary of Local Government dated March
19,1990 in Adm. Case No. P-10437-89 dismissing him as Governor of Cagayan
on the ground that the power of the Secretary of Local Government to
dismiss local government official under Section 14, Article I, Chapter 3 and
Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337, otherwise known

While this case was pending before this Court, petitioner filed his certificate
of candidacy for the position of Governor of Cagayan for the May 11, 1992
elections. Three separate petitions for his disqualification were then filed
against him, all based on the ground that he had been removed from office
by virtue of the March 19, 1990 resolution of respondent Secretary. The
commission on Elections granted the petitions by way of a resolution dated
May 9, 1992. On the same day, acting upon a "Motion to Clarify" filed by
petitioner, the Commission ruled that inasmuch as the resolutions of the
Commission becomes final and executory only after five (5) days from
promulgation, petitioner may still be voted upon as a candidate for governor
pending the final outcome of the disqualification cases with his Court.

Consequently, on May 13, 1992, petitioner filed a petition for certiorari with
this Court, G.R. Nos. 105128-30, entitledRodolfo E. Aguinaldo v. Commission
on Elections, et al., seeking to nullify the resolution of the Commission
ordering his disqualification. The Court, in a resolution dated May 14, 1992,
issued a temporary restraining order against the Commission to cease and
desist from enforcing its May 9, 1992 resolution pending the outcome of the
disqualification case, thereby allowing the canvassing of the votes and
returns in Cagayan to proceed. However, the Commission was ordered not to
proclaim a winner until this Court has decided the case.
On June 9, 1992, a resolution was issued in the aforementioned case granting
petition and annulling the May 9, 1992 resolution of the Commission on the
ground that the decision of respondent Secretary has not yet attained finality
and is still pending review with this Court. As petitioner won by a landslide
margin in the elections, the resolution paved the way for his eventual
proclamation as Governor of Cagayan.
Under the environmental circumstances of the case, We find the petition
meritorious.
Petitioner's re-election to the position of Governor of Cagayan has rendered
the administration case pending before Us moot and academic. It appears
that after the canvassing of votes, petitioner garnered the most number of
votes among the candidates for governor of Cagayan province. As held by
this Court in Aguinaldo v. Comelec et al., supra,:
. . . [T]he certified true xerox copy of the "CERTITICATE
OF VOTES OF CANDIDATES", attached to the "VERY
URGENT MOTION FOR THE MODIFICATION OF THE
RESOLUTION DATED MAY 14, 1992["] filed by
petitioner shows that he received 170,382 votes while
the other candidates for the same position received
the following total number of votes: (1) Patricio T.
Antonio 54,412, (2) Paquito F. Castillo 2,198; and
(3) Florencio L. Vargas 48,129.
xxx xxx xxx
Considering the fact narrated,
the expiration of petitioner's
term of office during which the
acts charged were allegedly
committed, and his subsequent
reelection, the petitioner must
be dismissed for the reason that
the issue has become academic.
In Pascual v. Provincial Board of
Nueva Ecija, L-11959, October
31, 1959, this Court has ruled:
The
weight of
authority,
however,
seems to
incline to
the ruled
denying
the right
to remove
from office
because of
misconduc
t during a
prior term
to which
we
fully
subscribe.

Offenses committed, or acts done, during a previous

term are generally held not to furnish cause for
removal and this is especially true were the
Constitution provides that the penalty in proceeding
for removal shall not extend beyond the removal from
office, and disqualification from holding office for a
term for which the officer was elected or appointed. (6
C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011;
Montgomery v. Newell, 40 S.W. 23rd 418; People ex rel
Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs
Kingfisher County v. Shutler, 281 P. 222; State v. Blake,
280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43
S.W. 217)
The underlying theory is that
each term is separate from other
terms, and that the reelection to
office operates as a condonation
of the officer's misconduct to the
extent of cutting off the right to
remove him therefor. (43 Am.
Jur. p. 45, citing Atty. Gen. v.
Kasty, 184 Ala. 121, 63 Sec. 599,
50 L.R.A. [NS] 553). As held in
Comant v. Bregan [ 1887] 6
N.Y.S.R. 332, cited in 17 A.L.R. 63
Sec. 559, 50 [NE] 553.
The Court should ever remove a public officer for acts
done prior to his present term of office. To do
otherwise would be to deprive the people of their right
to elect their officers. When a people have elected a
man to office, it must be assumed that they did this
with knowledge of his life and character, and that they
disregarded or forgave his fault or misconduct, if he
had been guilty of any. It is not for the court, by reason
of such fault or misconduct, to practically overrule the
will of the people. (Lizares v. Hechanova, et al., 17
SCRA 58, 59-60 [1966]) (See also Oliveros v. Villaluz, 57
SCRA 163 [1974]) 3
Clear then, the rule is that a public official can not be removed for
administrative misconduct committed during a prior term, since his reelection to office operates as a condonation of the officer's previous
misconduct to the extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal cases pending
against petitioner for acts he may have committed during the failed coup.
The other grounds raised by petitioner deserve scant consideration.
Petitioner contends that the power of respondent Secretary to suspend or
remove local government officials as alter ego of the President, and as
embodied in B.P. Blg. 337 has been repealed by the 1987 Constitution and
which is now vested in the courts.
We do not agree. The power of respondent Secretary to remove local
government officials is anchored on both the Constitution and a statutory
grant from the legislative branch. The constitutional basis is provided by
Articles VII (17) and X (4) of the 1987 Constitution which vest in the President
the power of control over all executive departments, bureaus and offices and
the power of general supervision over local governments, and by the
doctrine that the acts of the department head are presumptively the acts of
the President unless expressly rejected by him. 4 The statutory grant found in
B.P. Blg. 337 itself has constitutional roots, having been enacted by the then
Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2
of which specifically provided as follows
Sec. 2. The National Assembly shall enact a local
government code which may not thereafter be
amended except by a majority vote of all its Members,
defining a more responsive and accountable local
government structure with an effective system of

recall, allocating among the different local government

units their powers, responsibilities, and resources, and
providing for the qualifications, election and
removal, term, salaries, power, functions, and duties of
local government officials, and all other matters
relating to the organization and operation of the local
units. However, any change in the existing form of
local government shall not take effect until ratified by
a majority of the votes cast in the plebiscite called for
the purpose. 5
A similar provision is found in Section 3, Article X of the 1987 Constitution,
which reads:
Sec. 3. The Congress shall enact a local government
code which shall provided for a more responsive and
accountable local government structure instituted
through a system of decentralization with effective
mechanisms of recall, initiative, and referendum,
allocate among the different local government units
their powers, responsibilities, and resources, and
provide
for
the qualifications, election, appointment, and
removal, term and salaries, powers and functions and
duties of local officials, and all other matters relating
to the organization and operation of the local units. 6
Inasmuch as the power and authority of the legislature to enact a local
government code, which provides for the manner of removal of local
government officials, is found in the 1973 Constitution as well as in the 1987
Constitution, then it can not be said that BP Blg. 337 was repealed by the
effective of the present Constitution.
Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the
occasion to state that B.P. Blg. 337 remained in force despite the effectivity
of the present Constitution, until such time as the proposed Local
Government Code of 1991 is approved.
The power of respondent Secretary of the Department of Local Government
to remove local elective government officials is found in Secs. 60 and 61 of
B.P. Blg. 337. 8
As to petitioner's argument of the want of authority of respondent Secretary
to appoint respondent Melvin Vargas as Governor of Cagayan, We need but
point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ

In case a permanent vacancy arises when a governor . .

. refuses to assume office, fails to quality, dies or
isremoved from office, voluntarily resigns, or is
otherwise permanently incapacitated to discharge the
functions of his office, the vice-governor . . . shall
assume the office for the unexpired term of the
former. 9
Equally without merit is petitioner's claim that before he could be suspended
or removed from office, proof beyond reasonable doubt is required
inasmuch as he is charged with a penal offense of disloyalty to the Republic
which is defined and penalized under Article 137 of the Revised Penal Code.
Petitioner is not being prosecuted criminally under the provisions of the
Revised Penal Code, but administratively with the end in view of removing
petitioner as the duly elected Governor of Cagayan Province for acts of
disloyalty to the Republic where the quantum of proof required is only
substantial evidence. 10
WHEREFORE, petitioner is hereby GRANTED and the decision of public
respondent Secretary of Local Government dated March 19, 1990 in Adm.
Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby
REVERSED.

SO ORDERED.
ROMEO R. SALALIMA, DANILO S. AZAA, JUAN VICTORIA, LORENZO REYEG,
ARTURO OSIA, CLENIO CABREDO, VICENTE GO, SR., RAMON
FERNANDEZ, JR., MASIKAP FONTANILLA, WILBOR RONTAS and
NEMESIO BACLAO, petitioners,
vs. HON.
TEOFISTO T.
GUINGONA, JR., in his capacity as the Executive Secretary,
VICTOR R. SUMULONG, RENATO C. CORONA and ANGEL V.
SALDIVAR, in their capacity as Members of the Ad Hoc
Committee, MAYOR NAOMI C. CORRAL, KGD. FRANCISCO
ALARTE, MAYOR ANTONIO DEMETRIOU; and DOMINADOR LIM,
JESUS JAMES CALISIN, EVELYN SILVERIO, SILVERIO COPE, TOBIAS
BETITO, MANUEL LANUZA, JAMES ENRICO SALAZAR, RODOLFO
ANTE, JUAN RIVERA, MARCIAL TUANQUI, DR. SALVADOR
SAMBITAN, ATTY. EUTIQUIO NEPOMUCENO, in their capacity as
ACTING GOVERNOR, ACTING VICE-GOVERNOR, and ACTING
MEMBERS OF THE SANGGUNIANG PANLALAWIGAN OF ALBAY,
respectively, respondents.
DECISION
DAVIDE, JR., J.:
Petitioners seek to annul and set aside Administrative Order No. 153,
signed on 7 October 1994 by the President and by public respondent
Executive Secretary Teofisto T. Guingona, Jr., approving the findings of fact
and recommendations of the Ad Hoc Committee and holding the petitioners
administratively liable for the following acts or omissions: (a) wanton
disregard of law amounting to abuse of authority in O.P. Case No. 5470; (b)
grave abuse of authority under Section 60(e) of the Local Government Code
of 1991 (R.A. No. 7160) in O.P. Case No. 5469; (c) oppression and abuse of
authority under Section 60(c) and (e) of R.A. No. 7160 in O.P. Case No. 5471;
and (d) abuse of authority and negligence in O.P. Case No. 5450. The said
order meted out on each of the petitioners penalties of suspension of
different durations, to be served successively but not to go beyond their
respective unexpired terms in accordance with Section 66(b) of R.A. No.
7160.
Prefacing the petition with a claim that the challenged administrative
order is an oppressive and capricious exercise of executive power, the
petitioners submit that:
I.
THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T.
GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN SUSPENDING THE PETITIONERS FOR
PERIODS RANGING FROM TWELVE MONTHS TO TWENTY MONTHS IN
VIOLATION OF THE CONSTITUTIONAL MANDATES ON LOCAL AUTONOMY
AND SECURITY OF TENURE AND APPOINTING UNQUALIFIED PERSONS TO
NON-VACANT POSITIONS AS THEIR SUCCESSORS IN OFFICE.
II.
THE PUBLIC RESPONDENT HONORABLE EXECUTIVE SECRETARY TEOFISTO T.
GUINGONA, JR. ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN HOLDING THE PETITIONERS GUILTY OF
ABUSE OF AUTHORITY FOR FAILURE TO SHARE WITH THE MUNICIPALITY OF
TIWI THE AMOUNT OF P40,724,47 1.74 PAID BY NAPOCOR TO THE PROVINCE
OF ALBAY, PURSUANT TO THE MEMORANDUM OF AGREEMENT DATED JULY
29, 1992.
III.
THE PUBLIC RESPONDENT TEOFISTO T. GUINGONA, JR. ACTED WITH ABUSE
OF DISCRETION IN SUSPENDING THE PETITIONERS BASED UPON THE
PROVISIONS OF THE LOCAL GOVERNMENT CODE:
A. WHAT WERE NOT COMPLAINED OF;

B. UPON ACTS COMMITTED PRIOR TO ITS EFFECTIVITY; AND

C. WHERE THE ADMINISTRATIVE CASES WHEN FILED WERE
ALREADY COVERED BY PRESCRIPTION.
IV.
THE PUBLIC RESPONDENT EXCEEDED ITS JURISDICTION WHEN IT
PREMATURELY DECIDED THESE CASES ON THE BASIS OF THE SAO REPORT
NO. 93-11 WHICH IS PENDING APPEAL TO THE COMMISSION ON AUDIT
SITTING EN BANC.
We resolved to give due course to this petition and to decide it on the
basis of the pleadings thus far submitted, after due consideration of the
satisfactory explanation of the petitioners that his case has not been mooted
by the expiration of their term of office on 30 June 1995 and the comment of
the Office of the Solicitor General that this case be resolved on the merits. In
seeking a resolution of this case on the merits, Office of the Solicitor General
invites the attention of the Court to the following:
(a) While the periods of suspension have been served by
petitioners and that some of them have even been elected
to other government positions, there is the primary issue of
whether the suspensions were valid and grounded on
sufficient cause.
(b) If the suspensions are found to be valid, petitioners are not
entitled to reimbursement of salaries during their
suspension periods.
(c) If upheld, Administrative Order No. 15 would be used as a
strong ground in filing cases against petitioners for
violations of the Anti-Graft and Corrupt Practices Act.

and Albay Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg,

Arturo Osia, Clenio Cabredo, Vicente Go, [S]r., Jesus Marcellana, Ramon
Fernandez, Jr., Masikap-Fontanilla, and Wilbor Rontas.
Docketed as O.P. Case No. 5470, the complaint charges the
respondents for malversation and consistent & habitual violation of pars. (c)
and (d) of Section 60 of Republic Act (RA) No. 7160, otherwise known as the
Local Government Code.
The antecedent facts are as follows:
On 4 June 1990, the Supreme Court in the case entitled National
Power Corporation (NPC) v. The Province of Albay, et al., G.R. No. 87479
rendered judgment (Exhs. D to D-14) declaring, inter alia,NPC liable for
unpaid real estate taxes on its properties in Albay covering the period 11
June 1984 to 10 March 1987.
Citing the fact that its tax exemption privileges had been revoked, the
Supreme Court held that NPCs real properties, consisting mainly of
geothermal plants in Tiwi and substation facilities in Daraga, are subject to
real estate tax in accordance with Presidential Decree (PD) No. 464, as
amended, otherwise known as the Real Property Tax Decree.
Earlier, said properties were sold at an auction sale conducted by the
Province of Albay (the Province) to satisfy NPCs tax liabilities. Being the
sole bidder at the auction, the Province acquired ownership over said
properties.
On 29 July 1992, the NPC through then President Pablo Malixi and the
Province represented by respondent Salalima, entered into a Memorandum
of Agreement (MOA) *Exhs. 7 to 7-A] whereby the former agreed to settle
its tax liabilities, then estimated at P214,845,104.76.
Under the MOA, the parties agreed that:

(d) Corollary [sic] to these issues is the issue of the interpretation

and application of the [R]eal Property Tax Code and the
Local Government Code under the circumstances of this
case.

- the actual amount collectible from NPC will have to be

recomputed/revalidated;

(e) The resolution of these issues would finally put to rest

whether respondents acted with grave abuse of discretion
amounting to lack of jurisdiction for having suspended
petitioners on the basis of their findings in the four (4)
administrative cases filed against the petitioners.

- the balance of the recomputed/revalidated amount (less the

aforesaid initial payment), shall be paid in twenty-four (24)
equal monthly installments to commence in September
1992; and

The factual antecedents are not complicated.

Sometime in 1993, several administrative complaints against the
petitioners, who were elective officials of the Province of Albay, were filed
with the Office of the President and later docketed as O.P. Cases Nos. 5450,
5469, 5470, and 5471. Acting thereon, the President issued Administrative
Order No. 94 creating an Ad Hoc Committee to investigate the charges and to
thereafter submit its findings and recommendations.
The Ad Hoc Committee was composed of Undersecretary Victor R.
Sumulong of the Department of the Interior and Local Government (DILG),
Assistant Executive Secretary Renato C. Corona, and Presidential Assistant
Angel V. Saldivar.
On 26 August 1994, after conducting hearings, the Ad Hoc Committee
submitted its report to the Office of the President.
On 7 October 1994, the President promulgated Administrative Order
No. 153 quoting with approval the following pertinent findings and
recommendations of the Committee; thus:

- NPC shall make an initial payment of P17,763,000.00 upon

signing of the agreement;

- ownership over the auctioned properties shall revert to NPC

upon satisfaction of the tax liabilities.
On 3 August 1992, Mayor Corral formally requested the Province
through respondent Salalima, to remit the rightful tax shares of Tiwi and
certain barangays of Tiwi where NPCs properties are located (concerned
barangays) relative to the payments made by NPC (Exh. B).
On the same day, 3 August 1992, the Tiwi Sangguniang Bayan passed
Resolution No. 12-92 (Exhs. G to G-1) requesting the Albay Sangguniang
Panlalawigan to hold a joint session with the former together with Mayor
Corral and the Sangguniang Pambarangays of the concerned barangays, for
the purpose of discussing the distribution or application of the NPC
payments.
On 10 August 1992, respondent Salalima replied that the request
cannot be granted as the initial payment amounting to P17,763,000.00 was
only an earnest money and that the total amount to be collected from NPC
was still being validated (Exh. I).

The finding of the Ad-Hoc Committee in O.P. Case Nos. 5470, 5469,
5471 and 5450 are as follows:

Not satisfied with respondent Salalimas response, Mayor Corral

complained to NPC about the Provinces failure to remit Tiwis and the
concerned barangays shares in the payments made by NPC (Exh. 50-C).

I. O.P. Case No. 5470

On 14 August 1992, President Malixi informed respondent Salalima

that the representatives of both NPC and the Province have reconciled their
accounts and determined that the amount due from NPC was down to
P207,375,774.52 (Exh. 20).

This refers to the administrative complaint filed by Tiwi Mayor Naomi

Corral against Albay Governor Romeo Salalima, Vice- Governor Danilo Azaa,

Due to the brewing misunderstanding between Tiwi and the

concerned barangays on the one hand, and the Province on the other, and so
as not to be caught in the middle of the controversy, NPC requested a

clarification from the Office of the President as to the scope and extent of
the shares of local government units in real estate tax collections (Exh. 6 to 6A).

I
O
C
h
i
e
f

Meantime, the Albay Sangguniang Panlalawigan passed Resolution No.

178-92 dated 8 October 1992 (Exh. R) and Resolution No. 204-92 dated 5
November 1992 (Exh. S) appropriating P9,778,932.57 and P17,663,43 1.58 or
a total of P27,442,364.15 from the general fund to satisfy prior years
obligations and to implement certain projects of the Province. These
resolutions were approved by respondent Salalima on 22 October 1992 and 6
November 1992, respectively.

P
r
e
s
i
d
e
n
t
i
a
l

On 3 December 1992, the Office of the President through Chief

Presidential Legal Counsel Antonio Carpio opined that the MOA entered into
by NPC and the Province merely recognized and established NPCs tax
liability. He further clarified that the sharing scheme and those entitled to
the payments to be made by NPC under the MOA should be that provided
under the law, and since Tiwi is entitled to share in said tax liabilities, NPC
may remit such share directly to Tiwi. The pertinent portion of Chief
Presidential Legal Counsel Carpios letter dated 3 December 1992 (Exhs. H to
H-1) addressed to President Malixi reads:
xxx

xxx

L
e
g
a
l

xxx

The Memorandum of Agreement entered into by the Province of Albay and

NPC merely enunciates the tax liability of NPC. The Memorandum of
Agreement does not provide for the manner of payment of NPCs liability.
Thus, the manner of payment as provided for by law shall govern. In any
event, the Memorandum of Agreement cannot amend the law allowing the
payment of said taxes to the Municipality of Tiwi.

C
o
u
n
s
e
l

The decision in the case of NPC v. Province of Albay (186 SCRA 198), likewise,
only established the liability of NPC for real property taxes but does not
specifically provide that said back taxes be paid exclusively to Albay province.
Therefore, it is our opinion that the NPC may pay directly to the municipality
of Tiwi the real property taxes accruing to the same.
Please be guided accordingly.
Ve
ry
tr
ul
y
yo
ur
s,

Because of this opinion, President Malixi, through a letter dated 9

December 1992 (Exhs. Ito I-1), informed Mayor Corral and respondent
Salalima that starting with the January 1993 installment, NPC will directly pay
Tiwi its share in the payments under the MOA. He also invited the parties to
a clarificatory meeting on 17 December 1992 at his Quezon City office to
discuss the matter in detail.
Only Mayor Corral attended the 17 December 1992 meeting with
President Malixi as respondent Salalima was indisposed. President Malixi
then provided Mayor Corral with schedules (Exhs. J to J-2) of the payments
already made by NPC under the MOA and the computation and the
distribution of shares.
As of 9 December 1992, payments made by NPC to the Province
reached P40,724,471.74, broken down as follows:
Payment Dates

(
S
g
d
.
)
A
N
T
O
N
I
O
T
.
C
A
R
P

July 29, 1992

Sept. 3, 1992
Oct. 5, 1992
Nov. 5, 1992
Dec. 9, 1992
Total

Amount
P17,763,000.00
4,660,255.80
6,820,480.12
5,740,367.96
5,740,367.66

P40,724,471.74

On 19 December 1992, in an apparent reaction to NPCs decision to

directly remit to Tiwi its share in the payments made and still to be made
pursuant to the MOA, the Albay Sangguniang Panlalawigan passed Ordinance
No. 09-92 (Exhs. K to K-1), which, among others:
- authorized the Provincial Treasurer upon the direction of the
Provincial Governor to sell the real properties (acquired by
the Province at the auction sale) at a public auction, and to
cause the immediate transfer thereof to the winning
bidder; and

- declared as forfeited in favor of the Province, all the

payments already made by NPC under the MOA.
Realizing from the actuations of the respondents that Tiwis share in
the P40,724,47 1.74 payments already made by NPC will not be forthcoming,
Mayor Corral filed the present complaint with the Office of the President on
25 January 1993.
In determining whether the respondents are guilty of the charges
against them, the threshold issue of whether the payments to be made by
NPC under the MOA should accrue solely and exclusively in favor of the
Province, must first be resolved.
Sections 38, 39, 41, 86 and 87 of P.D. No. 464, as amended, prescribe
the authority of local government units to levy real property tax as well as
the sharing scheme among local government units including the national
government with respect thereto. Said provisions; read:
SEC. 38. Incidence of Real Property Tax. - There shall be levied, assessed, and
collected in all provinces, cities and municipalities an annual ad valorem tax
or real property, such as land, buildings, machinery and other improvements
affixed or attached to real property not hereinafter specifically exempted.
SEC. 39. Rates of Levy. - The provincial, city or municipal board or council
shall fix a uniform rate of real property tax applicable to their respective
localities as follows:
(1)

In the case of a province, the tax shall be fixed by

ordinance of the provincial board at the rate of not less
than one-fourth of one percent but not more than one-half
of one percent of the assessed value of real property;

(2)

In the case of a city, the tax shall be fixed by

ordinance of the municipal board or city council at the rate
of not less than one-half of one percent but not more than
two percent of the assessed value of real property; and

(3)

In the case of a municipality, the tax shall be fixed by

ordinance of the municipal council subject to the approval
of the provincial board at the rate of not less than onefourth of one percent but not more than one-half of one
percent of the assessed value of real property.

SEC. 41. An additional one percent tax on real property for the Special
Education Fund. - There is hereby imposed an annual tax of one percent on
real property to accrue to the Special Education Fund created under Republic
Act No. 5447, which shall be in addition to the basic real property tax which
local governments are authorized to levy, assess and collect under this Code;
Provided, That real property granted exemption under Section 40 of this
code shall also be exempt from the imposition accruing to the Special
Education Fund. (as amended by P.D. No. 1913)
SEC. 86. Distribution of proceeds. - (a) The proceeds of the real property tax,
except as otherwise provided in this Code, shall accrue to the province, city
or municipality where the property subject to the tax is situated and shall be
applied by the respective local government unit for its own use and benefit.
(b) Barrio shares on real property tax collections. -The annual shares of the
barrios in real property tax collections shall be as follows:
(1) Five percent of the real property tax collections of the
province and another five percent of the collections of
the municipality shall accrue in the barrio where the
property subject to the tax is situated.
(2) In the case of the city, ten percent of the collections of the
tax shall likewise accrue to the barrio where the
property is situated.
xxx

xxx

xxx

SEC. 87. Application of proceeds. - (a) The proceeds of the real property tax
pertaining to the city and to the municipality shall accrue entirely to their
respective general funds. In the case of the province, one-fourth thereof shall
accrue to its road and bridge fund and remaining three-fourths of its general
fund.
(b) The entire proceeds of the additional one percent real property tax
levied for the Special Education Fund created under RA. No. 5447 collected in
the province or city on real property situated in their respective territorial
jurisdictions shall be distributed as follows:
(1) Collections in the provinces: Fifty-five percent shall accrue to
the municipality where the property subject to the tax is
situated; twenty-five percent shall accrue to the province;
and twenty percent shall be remitted to the Treasurer of
the Philippines. (as amended by PD. No. 1969)
xxx

xxx

xxx

(c) The proceeds of all delinquent taxes and penalties, as well as the
income realized from the use, lease or other disposition of real property
acquired by the province or city at a public auction in accordance with the
provisions of this Code, and the proceeds of the sale of the delinquent real
property or of the redemption thereof, shall accrue to the province, city or
municipality in the same manner and proportion as if the tax or taxes had
been paid in regular course.
xxx

xxx

x x x (Italics supplied)

The foregoing provisions clearly show that local government units may
levy and collect real property tax ranging from a low of one-fourth of one
percent (0.25%) to a high of two percent (2.0%) of the assessed value of real
property depending on the local government unit levying the same. It is
likewise clear that a province, a municipality and a city may each separately
levy said tax on real property located within their respective jurisdictions but
not exceeding the rates prescribed under Sec. 39 of P.D. No. 464.
And apart from said basic tax, the law authorizes the collection of an
additional tax equivalent to one percent (1.0%) of the assessed value of the
real property to accrue to the Special Education Fund (SEF).
In accordance with the authority conferred upon them by P.D. No.
464, the following tax resolutions or ordinances were passed:
By the Province
Resolution No. 30, series of 1978, of the Provincial Board of Albay,
enacting Provincial Tax Ordinance No.4 whose Section 1, provides:
There shall be levied, assessed and collected an annual ad valorem tax on
real properties including improvements thereon equivalent to one-half of
one percent of the assessed value of real property.
By the Municipality of Tiwi
Ordinance No. 25. series of 1974, of the Sangguniang Bayan of Tiwi, Albay,
whose Section 2 provides:
That the tax rate of real property shall be one-half of one percent of the
assessed value of real property.
By the Municipality of Daraga
Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga,
Albay, whose Section 3 provides:
Rates of Levy - The tax herein levied is hereby fixed at one-half of one
percent (1/2 of 1%) of the assessed value of real property. (see Exhs. 50G; Italics supplied)

Applying said rates of levy, the real property taxes collectible from the
NPC are:
1. A basic tax of 1%, levied by the Province (0. 5%) and Tiwi
(0.5%) on the one hand; and the Province (0.5%) and
Daraga (0.5%) on the other; and
2. The additional 1% tax pertaining to the SEF.
or a total of 2.0% on the assessed value of NPCs real properties.
On the other hand, sharing on said taxes, shall be as follows:

Total
2.

47.5%
47.5%
5.0%

Also relevant to the discussion are the following provisions of the

Local Government Code of 1991:
Sec. 307. Remittance of Government Monies to the Local Treasury. - Officers
of Local government authorized to receive and collect monies arising from
taxes, revenues, or receipts of any kind shall remit the full amount received
and collected to the treasury of such local government unit which shall be
credited to the particular account or accounts to which the monies in
question properly belong.

100.0%

On the additional tax pertaining to the SEF:

Province
Municipality
National Government
Total

25.0%
55.0%
20.0
100.0%

In real terms, the P40,724,471.74 in payments earlier made by NPC

should be shared by the Province, Tiwi and Daraga, the concerned barangays;
and the national government, as follows:
Province
Govt.

Municipalities

Barangay

Natl.

Basic Tax
P9,672,062.04

9,672,062.04

1,018,111.79

none

SEF
4,072,447.18
.76

10,181,117.93

none

6,108,670

19,853,179.97

1,018,111.79

6,108,670.

Total
P13,744,509.22
76

This was the import and essence of Chief Presidential Legal Counsel
Carpios opinion when he stated that the sharing scheme provided by law
cannot be amended by a mere agreement between the taxpayer, in this case
NPC, and the collecting authority, in this instance the Province of Albay.
Likewise, it is axiomatic that while contracting parties may establish
stipulations, clauses, terms and conditions as they may deem convenient,
they may not do so if these are contrary to law, morals, good customs,
public order or public policy (Art. 1306, New Civil Code).

1. On the basic tax:

Province
Municipality
Barangay

It is immaterial that the Province was the highest bidder and

eventually became the owner of the properties sold at the auction
sale. What is essential is that the proceeds of the re-sale of said properties
acquired by the Province, be distributed in the same manner and proportion
among the rightful beneficiaries thereof as provided by law.

This shows that the Province is entitled only to P 13,744,509.21 of the

P40,724,47 1.74 aggregate payments by NPC. On the other hand, the
balance of P26,979,962.52 represents the collective shares of Tiwi, Daraga,
the concerned barangays and the national government.
The Province maintains, however, that considering that it acquired
ownership over the properties of NPC subject matter of the auction, all the
payments to be made by NPC under the MOA should accrue exclusively to
the Province.
This is untenable. The law clearly provides that the proceeds of all
the delinquent taxes and penalties as well as the income realized from the x x
x disposition of real property acquired by the provinceor city at a public
auction x x x, and the sale of delinquent property or the redemption
thereof shall accrue to the province, city or municipality in the same manner
and proportion as if the tax or taxes have been paid in the regular
course (Sec. 87(c) supra).

SEC. 308. Local Funds. - Every local government unit shall maintain a General
Fund which shall be used to account for such monies and resources as may
be received by and disbursed from the local treasury. The General Fund shall
consist of monies and resources of the local government which are available
for the payment of expenditures, obligations or purposes not specifically
declared by law as accruing and chargeable to, or payable from any other
fund.
SEC. 309. Special Funds. - There shall be maintained in every provincial, city,
or municipal treasury the following special funds:
(a) Special Education Fund (SEF) shall consist of the respective
shares of provinces, cities, municipalities and barangays
in the proceeds of the additional tax on real property to
be appropriated for purposes prescribed in Section 272
of this Code; and
(b) Trust Funds shall consist of private and public monies
which have officially come into the possession of the
local government or of a local government official as
trustee, agent or administrator, or which have been
received as a guaranty for the fulfillment of some
obligation. A trust fund shall only be used for the specific
purpose for which it was created or for which it came
into the possession of the local government unit. (Italics
supplied)
These provisions are restatements of Sec. 3(4) and (5) of P.D. No. 1445
and both Sec. 43, Book V and Sec. 2(4) of Book V(B) of Executive Order No.
292, otherwise known as the Administrative Code of 1987.
It is unmistakable from the foregoing provisions that the shares of
Tiwi, Daraga, the concerned barangays and the national government in the
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Provinces general fund. Moreover, the Province cannot utilize
said amounts for its own benefit or account (see also Sec. 86, PD. No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective
shares of Tiwi and Daraga, the concerned barangays and the national
government, cannot be appropriated nor disbursed by the Province for the
payment of its own expenditures or contractual obligations.

However, in total disregard of the law, the Province treated the

P40,724,47 1.74 NPC payments as surplus adjustment (Account 7-92-4 19)
and lodged the same in its general fund. No trust liability accounts were
created in favor of the rightful beneficiaries thereof as required by law.
Report No. 93-11 (Exh. N), prepared and made by the Special Audit
Office (SAO) of the Commission on Audit (COA) further support our findings,
thus xxx

xxx

The audit findings, which are discussed in detail in the attached report, are
summarized below:
1. The remittances of the NPC of the P40,724,471 .74 from July
to December 1992 representing partial payments of real
tax delinquencies from June 22, 1984 to March 10,
1989, were not shared with the Municipalities of Tiwi,
Daraga, and the concerned barangays and the National
Government in violation of P.D. 464. The Memorandum of
Agreement entered into between the Province of Albay
and Napocor cannot amend the provisions of P.D. No. 464
which specifies the sharing scheme of the real property tax
among the province, city or municipality where the
property subject to tax is situated and the National
Government.
xxx

xxx

2. The collection of P40,724,471.74 was fully treated as surplus

adjustment (Account 7-92-4 19) being prior years income,
without creating a trust liability for the municipality and
barangays concerned and national government, As of
December 31, 1992, the balance of the account was only
P25,668,653. 12 thus, stressing that P15,255,818.62 was
spent. x x x Under the General Fund, cash available was
only P4,92 1,353.44 leaving practically no cash to answer
for the shares of the Municipalities of Tiwi and Daraga and
their baran gays where the properties are located. (pp. 4
and 16; (Italics supplied)
xxx

xxx

xxx

As pointed out earlier, the Province was entitled only to

P13,744,509.21 of the P40,724,471.74 in payments made by NPC. Thus, it
may only appropriate and disburse P13,744,509.21. Any disbursements
exceeding this amount would therefore be illegal.
This Committee particularly notes the factual finding of COA that as of
31 December 1992, the actual cash balance of the Provinces general fund
was only P4,92 1,353.44. This means that of the P40,724,471.74 actually paid
by the NPC and lodged in the Provinces general fund, P35,803,118.30 was
disbursed or spent by the Province. This exceeds the P13,744,509.21 share
of the Province by P22,058,609.09.
The foregoing may be illustrated as follows:
NPC Payments received by
the Province
Less Actual Cash Balance
(general fund)
as of 12-31-92 -

Less Share of the Province

13,744,509.21

Amount Illegally Disbursed

by the Province

P22,058,609.09

xxx

Part II. Findings and Observations

xxx

1
1
8
.
3
0

We have already shown that Ordinance No. 09-92 (Exhs. K to K-1)

declaring as forfeited in favor of the Province the entire amount of
P40,724,471.74 paid by NPC to be patently illegal as it unlawfully deprives
Tiwi and Daraga, the barangays concerned, and the national government of
their rightful shares in said payments. Being illegal, said ordinance may not
be used or relied upon by the respondents to justify the disbursements of
funds in excess of their share.
Neither may Resolution Nos. 178-92 and 204-92 be used to justify the
disbursements considering that the appropriations made thereunder
totalling P27,442,364.51 are to be funded by the P40,724,471.74 surplus
adjustment that includes the trust funds not belonging to the Province.
Even assuming that Resolution No. 178-92 authorizing the expenditure of
P9,778,932.57 were to be taken from the Provinces share amounting to
P13,744,509.21, the rest of the disbursements still have no legal basis.
Clearly, this is violative of the fundamental rule that (n)o money shall be
paid out of the local treasury except in pursuance of an appropriation
ordinance or law (par. *a+, Sec. 305, Republic Act No. 7160).
Respondents raise the common defense that the findings contained in
SAO Report No. 93-11 are not yet final as they have filed an appeal
therefrom.
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J)
raised by the respondents to COA merely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, at the
very least, as corroborative evidence.
Respondents contention that COAs factual findings, contained in SAO
Report No. 93-11 cannot be considered in this investigation is untenable. For
no administrative or criminal investigation can proceed, if a respondent is
allowed to argue that a particular COA finding is still the subject of an appeal
and move that the resolution of such administrative or criminal case be held
in abeyance. This will inevitably cause unnecessary delays in the
investigation of administrative and criminal cases since an appeal from a COA
finding may be brought all the way up to the Supreme Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their
own conclusions of law based on a given set of facts.
Finally, sufficient evidence has been adduced in this case apart from
the factual findings contained in SAO Report 93-11 to enable this Committee
to evaluate the merits of the instant complaint.

P40,724,471.74

4,921,353.44
P
3
5
,
8
0
3
,

We also reject respondent Azaas defense that since he did not

participate in the deliberation and passage of Resolution No. 09-92, merely
signing the same as presiding officer of the Sangguniang Panlalawigan, and
only certifying that the same had been passed, he did not incur any
administrative liability.
The fact remains that as presiding officer of the Sangguniang
Panlalawigan and being the second highest official of the Province,
respondent Azaa is jointly responsible with other provincial officials in the
administration of fiscal and financial transactions of the Province. As

presiding officer of the Sangguniang Panlalawigan, respondent Azaa has a

duty to see to it that resolutions or ordinances passed are within the bounds
of the law. He cannot merely preside over the sessions of the Sangguniang
Panlalawigan unmindful of the legality and propriety of resolutions or
ordinances being proposed or deliberated upon by his colleagues.
This collective responsibility is provided under Secs. 304 and 305 of
Republic Act. No. 7160, thus
SEC. 304. Scope. - This Title shall govern the conduct and management of
financial affairs, transactions and operations of provinces, cities,
municipalities, and barangays.
SEC. 305. Fundamental Principles. - The financial affairs, transactions, and
operations of local government units shall be governed by the following
fundamental principles:
xxx

xxx

xxx

(1) Fiscal responsibility shall be shared by all those exercising

authority over the financial affairs, transactions, and
operations of local government units; and
xxx

xxx

xxx

(Italics supplied.)

It cannot be denied that the Sangguniang Panlalawigan has control

over the Provinces purse as it may approve or not resolutions or
ordinances generating revenue or imposing taxes as well as appropriating
and authorizing the disbursement of funds to meet operational requirements
or for the prosecution of projects.
Being entrusted with such responsibility, the provincial governor, vicegovernor and the members of the Sangguniang Panlalawigan, must always be
guided by the so-called fundamental principles enunciated under the Local
Government Code, i.e., No money shall be paid out of the local treasury
except in pursuance of an appropriations ordinance or law; local revenue is
generated only from sources authorized by law or ordinance and collection
thereof shall at all times be acknowledged properly; all monies officially
received by a local government officer in any capacity or on any occasion
shall be accounted for as local funds, unless otherwise provided by law; and
trust funds in the local treasury shall not be paid out except in fulfillment of
the purposes for which the trust was created or the funds received (Sec.
305, R.A. 7160).
All the respondents could not claim ignorance of the law especially
with respect to the provisions of P.D. No. 464 that lay down the sharing
scheme among local government units concerned and the national
government, for both the basic real property tax and additional tax
pertaining to the Special Education Fund. Nor can they claim that the
Province could validly forfeit the P40,724,471.74 paid by NPC considering
that the Province is only entitled to a portion thereof and that the balance
was merely being held in trust for the other beneficiaries.
As a public officer, respondent Azaa (and the other respondents as
well) has a duty to protect the interests not only of the Province but also of
the municipalities of Tiwi and Daraga and even the national
government. When the passage of an illegal or unlawful ordinance by the
Sangguniang Panlalawigan is imminent, the presiding officer has a duty to act
accordingly, but actively opposing the same by temporarily relinquishing his
chair and participating in the deliberations. If his colleagues insist on its
passage, he should make known his opposition thereto by placing the same
on record. No evidence of any sort was shown in this regard by respondent
Azaa.
Clearly, all the respondents have, whether by act or omission, denied
the other beneficiaries of their rightful shares in the tax delinquency
payments made by the NPC and caused the illegal forfeiture, appropriation
and disbursement of funds not belonging to the Province, through the
passage and approval of Ordinance No. 09-92 and Resolution Nos. 178-92
and 204-92.
The foregoing factual setting shows a wanton disregard of law on the
part of the respondents tantamount to abuse of authority. Moreover, the
illegal disbursements made can qualify as technical malversation.

This Committee, thus, finds all the respondents guilty of abuse of

authority, and accordingly, recommends the imposition of the following
penalties of suspension without pay:
a.

Respondent Salalima five (5) months; and

b.

All the other

respondents

four (4) months each.

II. OP Case No. 5469

This refers to the administrative complaint filed against Albay

Governor Romeo Salalima, Vice-Governor Danilo Azafla, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Jesus Marcellana,
Arturo Osia, Clenio Cabredo, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., and Nemesio Baclao relative to the retainer contract for legal
services entered into between the Province of Albay, on the one hand, and
Atty. Jesus R. Cornago and the Cortes & Reyna Law Firm, on the other, and
the disbursement of public fund in payment thereof. The complaint was
docketed as OP Case No. 5469.
The antecedent facts are as follows.
Because of the refusal by the National Power Corporation (NPC) to
pay real property taxes assessed by the Province of Albay (the Province)
covering the period from 11 June 1984 up to 10 March 1987 amounting to P2
14,845,184.76, the Province sold at public auction the properties of NPC
consisting of geothermal power plants, buildings, machinery and other
improvements located at Tiwi and Daraga, Albay. The Province was the sole
and winning bidder at the auction sale.
As NPC failed to redeem its properties sold at the auction, the
Province petitioned the Regional Trial Court in Tabaco, Albay to issue a writ
of possession over the same.
Sometime in 1989, NPC filed a petition with the Supreme Court, which
was docketed as G.R. No. 87479, questioning the validity of the auction sale
conducted by the Province. NPC claims, inter alia,that its properties are not
subject to real property tax.
On 17 May 1989, the Province, through Atty. Romulo Ricafort, the
legal officer of the Province, filed its comment on the NPC petition with the
Supreme Court.
On 2 June 1989, the Albay Sangguniang Panlalawigan adopted
Resolution No. 129-89 (Exhs. B to B-I) authorizing respondent Governor to
engage the services of a Manila-based law firm to handle the case against
NPC.
On 25 August 1989, Atty. Jesus R. Cornago entered his appearance
with the Supreme Court as collaborating counsel for the Province in G.R. No.
87479. The entry of appearance of Atty. Cornago bore the conformity of
respondent Governor.
On 14 November 1989, Atty. Antonio Jose F. Cortes of the Cortes &
Reyna Law Firm sent respondent Governor a letter (Exhs. D to D-1) informing
him that Atty. Jesus R. Cornago, as collaborating counsel for the Province, has
filed a memorandum with the Supreme Court, suggesting that a retainer
agreement be signed between the Province, on the one hand, and Atty.
Cornago and Cortes & Reyna Law Firm, on the other hand, and setting forth
the conditions of the retainer agreement, thus:
As collaborating counsels for the respondents in the aforementioned case,
our law firm and that of Atty. Jesus R. Cornago request that you pay us an
Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the
aforementioned case is pending in the Supreme Court. Thereafter, we will
charge you a contingent fee equivalent to eighteen percent (18%) of the
value of the property subject matter of the case which is P214 Million,
payable to us in the event that we obtain a favorable judgment for you from
the Supreme Court in the case. Xerox expenses for copies of motions,
memorandum and other matters to be filed with the Supreme Court in the

case, together with xerox copies of documentary evidence, as well as mailing

expenses, will be for your account also.
On 8 January 1990, the Albay Sangguniang Panlalawigan passed
Resolution No. 01-90 (Exhs. C to C- 1) authorizing respondent Governor to
sign and confirm the retainer contract with the Cortes & Reyna Law Firm.
Respondent Salalima signed the retainer agreement.
On 4 June 1990, the Supreme Court issued a decision dismissing the
NPC petition and upholding the validity of the auction sale conducted by the
Province to answer for NPCs tax liabilities.
Subsequently, the following payments amounting to P7,380,410.31
(Exhs. E to N-l) were made by the Province to Atty. Antonio Jose Cortes and
Atty. Jesus R. Cornago:
Particulars
Disbursement
Voucher (DV)
No. 4, Jan.
8, 1990
Check No.
931019

Claimant/Payee

Amount

Cortes & Reyna

DV
No.
1889
Cortes
P1,421,040.00
Aug. 13, 1992.
Check No.
236063-S

Atty.

P50,508.75

Antonio

Jose

DV No. 1890
Aug. 13, 1992
Check No.
236064-S

Atty. Jesus R. Cornago

P1,786,300.00

DV No. 2151
Sept. 28,
1992, Check
No. 238174-S

Atty. Antonio Jose Cortes

DV No. 2226
Oct. 8,. 1992
Check No.
239528-S

Atty. Antonio Jose Cortes

DV No. 2227
Oct. 8, 1992
Check No.
239529-S

Atty. Jesus R. Cornago

P341,024.00

DV No. 2474
Nov. 6, 1992
Check No.
250933

Atty. Jesus R. Cornago

P287,018.40

P838,85 1.44

P886,662.40

Check No.
253164
TOTAL

____________
P7,380,410.31

Disbursement Voucher Nos. 2474 and 2475 were approved by

respondent Azaa. The rest were approved by respondent Governor.
In a letter dated 31 May 1993 (Exh. O) and certificate of settlement
and balances dated 17 May 1993 (Exh. P), the Provincial Auditor of Albay
informed respondent Governor that payments made by the Province as
attorneys fees amounting to P7,380,410.31 have been disallowed by the
Commission on Audit (COA, with the following notation:
The disbursement vouchers detailed hereunder represent payments for
attorneys fees of Cortes & Reyna Law Office for legal services rendered re:
G.R. No. 87479 NAPOCOR, Petitioner vs. The Province of Albay, et al.,
Respondent, Supreme Court, en banc. Total payments of P7,380,410.31 are
disallowed for lack of the requisite prior written conformity and
acquiescence of the Solicitor General x x x as well as the written concurrence
of the commission on Audit as provided for and required under COA Circular
No. 86-255 dated April 2, 1986, re: Inhibition against employment by
government: agencies and instrumentalities x x x of private lawyers to handle
their legal cases, viz.
The complaint alleges that by entering into the retainer agreement
with private lawyers and paying P7, 380, 410.31 to the said private lawyers,
respondents violated several provisions of law which warrants the imposition
of administrative penalties against them. It is to be noted that respondents
Victoria, Reyeg, Cabredo, Marcellana and Osia were not yet members of the
Sangguniang Panlalawigan when Resolution No. 129 was passed. However,
the complaint alleges that these respondents were named in the complaint
because they approved the supplemental budget/appropriation ordinances
providing for the payment of the attorneys fees.
The sole issue in this case is whether or not respondents have incurred
administrative liability in entering into the retainer agreement with Atty.
Cornago and the Cortes & Reyna Law Firm and in making payments pursuant
to said agreement for purposes of the case filed by NPC with the Supreme
Court against the Province.
We find merit in the complaint and hold that under the circumstances
surrounding the transaction in question the respondents abused their
authority.
Sec. 481 of the Local Government Code (R.A. No. 7160) requires the
appointment of a legal officer for the province whose functions include the
following:

DV No. 2475
Atty. Antonio Jose Cortes
Dec. 9, 1992
Check No.
253163

P746,247.83

DV No. 2751
Atty. Antonio Jose Cortes
Dec. 9, 1992
Check No.
253163

P747,247.84

DV No. 2752
Atty. Jesus R. Cornago
Dec. 9, 1992

Represent the local government unit in all civil actions and special
proceedings wherein the local government unit or any official thereof, in his
official capacity is a party; Provided, That, in actions or proceeding where a
component city or municipality is a party adverse to the provincial
government or to another component city or municipality, a special legal
officer may be employed to represent the adverse party.
The Supreme Court has ruled in Municipality of Bocaue, et al. v.
Manotok, 93 Phil. 173 (1953), that local governments [sic] units cannot be
represented by private lawyers and it is solely the Provincial Fiscal who can
rightfully represent them, thus:
Under the law, the Provincial Fiscal of Bulacan, and his assistants are charged
with the duty to represent the province and any municipality thereof in all
civil actions xxx

P287,018.40

It would seem clear that the Provincial Fiscal is the only counsel who can
rightfully represent the plaintiffs and therefore, Attys. Alvir and Macapagal
[the private lawyers hired by the Province of Bulacan] have no standing in
the case. The appeal herein interposed in behalf of the plaintiffs cannot
therefore be maintained.

This ruling applies squarely to the case at hand because Sec. 481 of the
Local Government Code is based on Sec. 1681 of the Revised Administrative
Code which was the subject of interpretation in the abovecited case
of Municipality of Bocaue, et al. v. Manotok.

b
y
:

In hiring private lawyers to represent the Province of Albay,

respondents exceeded their authority and violated the abovequoted section
of the Local Government Code and the doctrine laid down by the Supreme
Court.
Moreover, the entire transaction was attended by irregularities. First,
the disbursements to the lawyers amounting to P7,380,410.31 were
disallowed by the Provincial Auditor on the ground that these were made
without the prior written conformity of the Solicitor General and the written
concurrence of the Commission on Audit (COA) as required by COA Circular
No. 86-25 5 dated 2 April 1986.
The respondents attempted to dispute this finding by presenting the
Solicitor Generals conformity dated 15 July 1993. This conformity was,
however obtained after the disbursements were already made in 1990 and
1992. What is required by COA Circular No. 86-255 is a prior written
conformity and acquiescence of the Solicitor General.
Another irregularity in the transaction concerns the lawyers.
Resolution No. 0 1-90 authorized the respondent Governor to sign and
confirm a retainer contract for legal services with the Cortes & Reyna Law
Firm at 202 E. Rodriguez Sr. Blvd., Quezon City. The retainer contract signed
by respondent Governor was, however, not only with the Cortes & Reyna
Law Firm but also with Atty. Jesus R. Cornago of Jamecca Building, 280 Tomas
Morato Avenue, Quezon City. That Atty. Jesus R. Cornago and the Cortes &
Reyna Law Firm are two separate entities is evident from the retained
contract itself:
As collaborating counsels for the respondents in the aforementioned
case, our law firm and that of Atty. Jesus R. Cornago request that you pay us
an Acceptance Fee of FIFTY THOUSAND (P50,000.00) PESOS, while the
aforementioned case is pending in the Supreme Court. Thereafter, we will
charge you a contingent fee equivalent to eighteen percent (18%) of the
value of the property subject matter of the case which is P214 million,
payable to us in the event we obtain a favorable judgment for you from the
Supreme Court in the case. Xerox expenses for copies of motions,
memorandum and other matters to be filed with the Supreme Court in the
case, together with xerox copies of documentary evidence, as well as mailing
expenses, will be for your account also.

(Sgd.)
ANTONIO JOSE
F. CORTES
With my conformity:
(Sgd.) GOV. ROMEO R. SALALIMA
Province of Albay
(Italics supplied.)
In entering into a retainer agreement not only with the Cortes &
Reyna Law Firm but also with Atty. Jose R. Cornago, respondent Governor
exceeded his authority under Resolution No. 01-90.
Complicating further the web of deception surrounding the
transaction is the fact that it was only Atty. Cornago who appeared as
collaborating counsel of record of the Province in the Supreme Court case
(G.R. No. 87479). We quote the entry of appearance of Any. Cornago in full in
said case:
APPEARANCE
COMES NOW, the undersigned counsel, and to this Honorable Supreme
Court, respectfully enters his appearance as counsel for the respondents in
the above-entitled case, in collaboration with Atty. Romulo L. Ricafort,
counsel of record for the respondents. This appearance bears the conformity
of the respondent Gov. Romeo R. Salalima, as shown by his signature
appearing at the space indicated below. In this connection, it is respectfully
requested that, henceforth, the undersigned counsel be furnished with a
copy of all notices, orders, resolutions and other matters that may be issued
in this case at its office address indicated below.
Quezon City, for Manila, August 24, 1989.
(Sgd.)
JESUS R. CORNAGO

xxx

xxx

xxx

ounsel for Respondents

Very
yours,

truly

2
80 Tomas Morato Avenue
Q
uezon City

CORTES
&
REYNA
LAW
FIRM

P
TR No. 561005-89 Mandaluyong
I
BP No. 279351-89 Pasig, MM
With my conformity:

- and Atty.
JESUS R.
CORNA
GO
Jarnecc
a
Building
280
Tomas
Morato
Avenue

(Sgd.) ROMEO R. SALALIMA

Respondent
Office of the Governor of Albay
Legaspi City
Even the Solicitor General, in his letter to respondent Governor dated
15 July 1993, noted that the Province is represented in the Supreme Court by
Attys. Ricafort Cornago and Glenn Manahan but not by the Cortes & Reyna
Law Firm, thus:
Incidentally, a check with our office records of the case G.R. No. 87479
reveals that the Province of Albay and its officials named respondents
therein were represented in the Supreme Court by Atty. Romulo Ricafort the
Provinces Legal Officer II, and Attys. Jesus R. Cornago and Glenn Manahan of

JAMECCA Building, 280 Tomas Morato Avenue, Quezon City; no appearance

was entered therein by the Cortes & Reyna Law Firm. (Italics supplied)

GOVERNOR SALALIMA:

Furthermore, the memorandum with the Supreme Court filed for the
Province was signed by Atty. Cornago and not by the Cortes & Reyna Law
Firm. Consequently, the Cortes & Reyna Law Firm was not counsel of record
of the Province in G.R. No. 87479. And yet, six of the ten checks paid by the
Province and amounting to more than P3.6 million were issued in favor of
the Cortes & Reyna Law Firm through Atty. Antonio Jose Cortes. In other
words, respondents disbursed money to the Cortes & Reyna Law Firm
although the latter did not appear as counsel for the Province in the Supreme
Court in G.R. No. 87479.

(TSN, 12 July 1992, pp. 27-29.)

Finally, the attorneys fees agreed upon by respondent Salalima and

confirmed by the other respondents are not only unreasonable but also
unconscionable. The contingent fee of 18% of the P2l4 million claim of the
Province against NPC amounts to P38.5 million. The word unconscionable,
as applied to attorneys fee, means nothing more than that the fee
contracted for, standing alone and unexplained would be sufficient to show
that an unfair advantage had been taken of the client, or that a legal fraud
had been taken of the client, or that a legal fraud had been perpetrated on
him. (Moran,Comments on the Rules of Court, Vol. 6, p. 236.)
The Province has a legal officer, Atty. Ricafort, who had already filed a
comment on NPCs petition against the Province. The comment filed by Atty.
Ricafort already covers the basic issues raised in the petition. When Atty.
Cornago filed an appearance and subsequently a memorandum for the
Province, the petition was already been given due course by the Supreme
Court and the only pleading to be filed by the parties before the Court would
issue its decision was a memorandum. Surely, one memorandum could not
be worth P38.5 million.
Furthermore, the professional character and social standing of Atty.
Cornago are not such as would merit a P38.5 million fee for the legal services
rendered for the Province. During the hearing, respondent Governor
admitted that he had hired Atty. Cornago because they were schoolmates at
San Beda College, thus:
SECRETARY CORONA:
May I ask a question Governor, what was your basis for choosing this
particular Law office? Why not ACCRA, why not Sycip Salazar, why not Carpio
Villaraza, why this particular Law office? Frankly, I never heard of this law
office. Who recommended it?
GOVERNOR SALALIMA:
Atty. Cornago was then a graduate of San Beda and I am a
graduate of San Beda.
SECRETARY CORONA:
Were you classmates?
GOVERNOR SALALIMA:
No.
SECRETARY CORONA:

Yes.

It is evident that respondent Governor hired Atty. Cornago not on the

basis of his competency and standing in the legal community but purely for
personal reasons. Likewise, the standing of the Cortes & Reyna Law Firm is
not such as would merit P38.5 million for one memorandum, which, in this
case, it had not even filed because it was not the counsel of record. Hence,
considering the labor and time involved, the skill and experience called for in
the performance of the services and the professional character and social
standing of the lawyers, the attorneys fee of P38.5 million is
unconscionable. By allowing such scandalously exorbitant attorneys fees
which is patently disadvantageous to the government, respondents betrayed
a personal bias to the lawyers involved and committed abuse of authority.
Parenthetically, the retainer contract containing such exorbitant
attorneys fees may also be violative of the following: (a) COA Circular
No. 85-55-A (8 September 1985) prohibiting irregular, unnecessary, excessive
or extravagant expenditures or uses of funds; and (b) Sec. 3 (e) and (g) of R.A.
No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act.
Finally, the Committee again applies in this case, as was applied in OP
Case No. 5470, the rule of joint responsibility as enunciated under Sec.
305(1) of the Local Government Code.
In view of the foregoing, the Committee holds that respondents
committed abuse of authority under Sec. 60(e) of the Local Government
Code for the following:
1. Hiring private lawyers, in violation of Sec. 481 of the Local
Government Code, to handle the case of the Province of
Albay before the Supreme Court in G.R. No. 87479;
2. Disbursing public money in violation of COA rules and
regulations;
3. Paying the Cortes & Reyna Law Firm public money although
it was only Atty. Cornago who was the counsel of record of
the Province of Albay in the Supreme Court case;
4. Authorizing an unconscionable and grossly disadvantageous
attorneys fees of P38.5 million; and
5. Additionally, as to respondent Governor, entering into a
retainer agreement not only with the Cortes & Reyna Law
Firm but also with Atty. Cornago, thus exceeding his
authority under Resolution No. 0 1-90 passed by the
Sangguniang Panlalawigan.
After taking all the attendant circumstances into consideration, the
Committee recommends that the following penalties of suspensions without
pay be meted out:
a.

Respondents Salalima
and Azaa

b.

All the other

respondents

six (6) months

each; and
four (4) months
each.

How many years apart were you?

GOVERNOR SALALIMA:
Two (2) years.

III. OP Case No. 5471

SECRETARY CORONA:
So, you knew each other from the law school?
GOVERNOR SALALIMA:
Yes.
SECRETARY CORONA:
Were you members of the same fraternity in San Beda?

This refers to the administrative complaint filed by the Tiwi Mayor

Naomi Corral against Albay Governor Romeo Salalima, Albay Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg, Arturo Osia, Jesus
Marcellana, Nemesio Baclao, Ramon Fernandez, Jr., Masikap Fontanilla,
Vicente Go, Sr., Wilbor Rontas and Clenio Cabredo, and Tiwi Vice-Mayor
Rodolfo Benibe for abuse of authority and oppression under Sec. 60 (c) and
(e) of R.A. No. 7160.
The antecedent facts are as follows:

On 20 October 1992, Mayor Corral and seven (7) Kagawads of the Tiwi
Sangguniang Bayan charged herein respondent Governor Salalima and ViceGovernor Azana for abuse of authority, misconduct in office and oppression.
This administrative complaint, initially docketed as OP Case No. 4982 (DILG
Adm. Case No. P-8- 93), arose from the refusal of said respondents to remit
Tiwis share in the P40,724,47 1.74 tax delinquency payments made by NPC.
This case was subsequently substituted by OP Case No. 54790 filed on 25
January 1993 which now included as respondents Albay Sangguniang
Panlalawigan Members Victoria, Reyeg, Osia, Cabredo, Go, Marcellana,
Fernandez, Fontanilla, and Rontas.
Subsequently, Mayor Corral became the subject of several administrative
and criminal complaints filed by certain individuals with the following offices:
a.

Achilles Berces v. Mayor Naomi Corral

(1)

Albay Sangguniang Pan lalawigan, Adm.

(2)

Albay Sangguniang Panlalawigan, Adm.

(3)
Case No. 1930163
(4)
No. 0930682
(5)
3008

Office of the Ombudsman, OMB Adm.

Case No. 02-92

Case No. 05-92

b.

Office of the Ombudsman, OMB Case

Office of the Ombudsman, OMB-092-

Muriel Cortezano v. Mayor Naomi Corral

(6)

Albay Sangguniang Panlalawigan, Adm.

(7)

Office of the Ombudsman, OMB-0-92-

Case No. 10-93

3000
c.

Amelia Catorce v. Mayor Naomi Corral

(8)
93

d.

Albay Sangguniang Panlalawigan, Adm. Case No. 09-

Aida Marfil v. Mayor Naomi Corral

(9)
Albay Sangguniang Panlalawigan, Adm. Case
No. 07-93
(10)
Office of the Ombudsman, 0MB Case No. 5-930110

e.

Rodolfo Belbis v. Mayor Naomi Corral

(11)
Albay Sangguniang Panlalawigan, Adm. Case
No. 06-93
(12)
Office of the Ombudsman, 0MB Case No. 0-930098

f.

Kin. Juan Victoria, et al. v. Mayor Naomi Corral

(13)
Office of the Prosecutor, I.S. No. 93-046 (for Libel).
Legaspi City

g.

Governor Romeo Salalima, et al. v. Mayor Naomi Corral

(14)
(15)

Office of the Prosecutor, I.S. No. 93-044

(for Libel and Perjury), Legaspi City
Office of the Prbsecutor, I.S. No. 93-045
(for Libel and Perjury), Legaspi City

or a total of fifteen (15) cases.

On 7 January 1993, the respondent-members of the Sangguniang

Panlalawigan passed Omnibus Resolution No. 2 recommending that Mayor
Corral be placed under preventive suspension for sixty (60) days pending the
resolution of Adm. Case No. 05-92 (Exh. 18).
On 11 January 1993, respondent Salalima approved said resolution
and, on the same date, officially directed herein respondent Tiwi Vice-Mayor
Benibe to assume the office and discharge the functions of Tiwi Mayor (Exh.
18).
On 21 January 1993, Department of the Interior and Local
Government (DILG) Secretary Rafael Alunan III directed the lifting of the 11
January 1993 suspension order issued by respondent Salalima. In his letter to
Mayor Corral (Exh. C), he stated, thus:
Considering that the preventive suspension imposed upon you by Governor
Romeo R. Salalima of that province, was issued after the latters refusal to
accept your answer, therefore, the issuance of subject order of preventive
suspension is premature, the issues having not been joined.
In view thereof, the Order of Preventive Suspension dated 11 January 1993,
issued by Governor Salalima, is hereby lifted.
On 26 January 1993, the Office of the President (OP), acting in OP Case
No. 4982, after finding that the evidence of guilt is strong, and given the
gravity of the offense and the great probability that the continuance in office
of respondent Governor Romeo R. Salalima could influence the witnesses or
pose a threat to the safety and integrity of the records and other
evidence, placed respondent Salalima under preventive suspension for sixty
(60) days (Exhs. D to D-2).
Respondent Salalima subsequently sought the reversal of the OP
Order dated 26 January 1993 but the same was dismissed by the Supreme
Court on 26 May 1993 in the case entitled Salalima v. the Hon. Executive
Secretary, G.R. No. 108585 (Exh. E).
On 2 February 1993, Mayor Corral filed a motion to inhibit the
respondents from hearing the six cases filed against her with the
Sangguniang Panlalawigan (Adm. Case Nos. 02-92, 05-92,06-93,07-93,09-93
and 10-93) asserting her constitutional right to due process of law. This
motion was however denied with the respondent-members of the
Sangguniang Panlalawigan assuming jurisdiction over the cases.
After conducting marathon hearings, respondent-members of the
Sangguniang Panlalawigan rendered judgments against Mayor Corral and
imposing, among others, the following penalties of suspension:
1. In Adm. Case No. 02-92 - suspension for two (2) months (see
Decision dated 1 July 1993, [Exhs. F to F-2]);
2. In Adm. Case No. 05-92 - suspension for three (3) months
(see Resolution dated 5 July 1993, [Exhs. 0 to G-2]);
3. In Adm. Case No. 06-93 and 07-93 - suspension for one (1)
month (see Resolution dated 8 July 1993, (Exhs. H to H-3]);
and
4. In Adm. Case No. 10-93 - suspension for the period of
unexpired term (see Resolution dated 9 July 1993, (Exhs. I
to 1-2]).
On 22 July 1993, respondent Salalima issued a directive addressed to
the Provincial Treasurer, Provincial Auditor, PNP Provincial Director,
Provincial Assessor, Provincial Accountant, Provincial Budget Officer,
Provincial DILG Officer, the Sangguniang Panlalawigan and Provincial
Prosecutor enjoining them to assist in the implementation of the decisions
suspending
Mayor Corral by decreeing directives to your subordinate officials in
Tiwi, Albay to strictly adheres thereto.
Subsequently, Mayor Corral interposed appeals from the decisions of
respondent-members of the Sangguniang Panlalawigan suspending her from
office to the OP (docketed as OP Case Nos. 5337 and 5345) with a prayer that
the implementation of said decisions be stayed.

On 28 July 1993, the OP ordered the suspension/stay of execution of

the decisions in Adm. Case Nos. 02-92 and 05-92 (Exhs. J to J-2).

it is recommended that each of them be meted the penalty of four (4)

months suspension without pay.

Similarly, on 3 August 1993, the OP ordered the suspension/stay of

execution of the decisions in Adm. Case Nos. 06-93, 07-93 and 10-93 (Exhs. K
to K-i).

IV. OP Case No. 5450

Also, with respect to Adm. Case Nos. 6-93 and 7- 93, the Civil Service
Commission (CSC) issued Resolution Nos. 93- 005 (dated 5 January 1993) and
92- 817 (dated 4 March 1993), which provided the bases and justifications
for the acts of Mayor Corral complained of in these two (2) cases. The
Supreme Court subsequently affirmed said CSC resolutions (Exhs. L to L-2).
In the multiple charges for libel and perjury against Mayor Corral,
arising from her complaint in OP Case No. 5470, filed with the Regional Trial
Court of Legaspi City, the Supreme Court ordered the lower court to cease
and desist from proceeding with the case in a resolution dated 16 September
1993 (Exhs. Q to Q-2).
In determining whether respondents are guilty of the charges levelled
against them, the following issue has to be resolved, i.e., whether the
conduct of the proceedings in the administrative cases filed and the series of
suspension orders imposed by the respondent- members of the Sangguniang
Panlalawigan on Mayor Corral constitute oppression and abuse of authority?
Oppression has been defined as an act of cruelty, severity, unlawful
exaction, domination or excessive use of authority. (Ochate v. Ty Deling, L13298, March 30, 1959, 105 Phil. 384, 390.)
Abuse means to make excessive or improper use of a thing, or to employ
it in a manner contrary to the natural or legal rules for its use. To make an
extravagant or excessive use, as to abuse ones authority (Blacks Law
Dictionary
<5th
Ed.>,
II).
It
includes
misuse
(City
of
Baltimore t. Cornellsville & S.P. Ry, Co., 6 Phils. 190, 191, 3 Pitt 20, 23).
Moreover, Section 63(d) of R.A. No. 7 160 expressly states that, *a+ny
abuse of the exercise of the powers of preventive suspension shall be
penalized as abuse of authority.
Now, does the above narration of facts show commission by
respondents of the administrative offenses complained of?
A review of the proceedings reveal that the same were marked by
haste and arbitrariness. This was evident from the start when Mayor Corral
was preventively suspended (in Adm. Case No. 05-92) even before she could
file her answer. In the other cases, respondent-members of Sangguniang
Panlalawigan ruled that Mayor Corral had waived her right to adduce
evidence in her defense.
Consequently, respondents did not also fully evaluate the evidences
presented to support the charges made. As such, all the decisions of
respondents suspending Mayor Corral were ordered lifted suspended by the
DILG and OP. Thus, even the cases filed with the Office of the Ombudsman,
which were based on the same incidents complained of in the said
administrative cases, were subsequently dismissed.
Respondents should have inhibited themselves from assuming
jurisdiction over said cases (Adm. Case Nos. 02-92, 05-92, 06-93, 07-93, 0993, and 10-93) as timely moved by Mayor Corral considering that they were
the respondents in various administrative complaints she earlier filed with
the OP and with the DILG starting with OP Case No. 4892. However, despite
the violation of due process resulting from their collective acts, respondents,
in their determination and eagerness to suspend and harass Mayor Corral,
proceeded to hear and decide said cases.

This refers to the administrative charges filed by Tabaco Mayor

Antonio Demetriou against Governor Romeo Salalima for violation of Section 60, pars. (c) and (d) of the Local Government Code, Section 3, par. (g)
of Republic Act No. 3019, and the provisions of PD No. 1594, as amended.
This case was filed with the Office of the President (OP) on 18 October
1993 and docketed as OP Case No. 5450.
The facts as found by this Committee are as follows:
On 27 September 1989 the Tabaco Public Market was destroyed by
fire (Exh. A, par. 1).
On 26 September 1990, the OP advised Mayor Demetriou and
respondent Salalima that the P12.0 Million in Budgetary Assistance to Local
Government Units (BALGU) funds earlier remitted by the national
government to the Province, should be used for the rehabilitation of the
Tabaco Public Market, and that the project should be implemented by the
Provincial Governor in consultation with the Mayor of Tabaco (Exh. 37).
On 8 May 1991, a public bidding was conducted by the Albay
Provincial Government for the repair and rehabilitation of the Tabaco Public
Market (Exh. A, par. 1).
On 29 May 1991, the Province represented by respondent Salalima
and RYU Construction entered into a contract for P6,783,737.59 for said
repair and rehabilitation (Exh. H). Among others, the contract stipulated that
the contracted work should be completed in 150 days.
The contractor started the project on 1 July 1991 and completed the
same on 2 June 1992 (Exh. 41).
On 6 March 1992, the Province represented by respondent Salalima
entered into another contract (Exh. 1) for P4,304,474.00 with RYU
Construction for additional repair and rehabilitation works for the Tabaco
Public Market. The terms and conditions of this contract are the same as
those stipulated in the 29 May 1991 contract except for the construction
period which is only for 90 days.
Construction of the second project commenced on 27 March 1992 and
was completed on 2 June 1992 (Exh. 42).
In his complaint, Mayor Demetriou alleged that despite the delay in
the completion of work under the first contract, liquidated damages were
not imposed on, nor collected from, RYU Construction by the Province.
Moreover, he claims that the second contract with RYU Construction was
entered into in violation of P.D. No. 1594 as RYU incurred delay with respect
to the first contract.
We find merit in the complaint:
Pars. 1 and 2 of item CI 8, par. 1 of item CI 11, and par. 10.4.2 of item
lB of the implementing Rules and Regulations (IRR) of PD No. 1594, as
amended, read:
CI 8 - LIQUIDATED DAMAGES
1. Where the contractor refuses or fails to satisfactorily
complete the work within the specified contract time,
plus any time extension duly granted and is hereby in
default under the contract, the contractor shall pay the
Government for liquidated damages, and not by way of
penalty, an amount to be determined in accordance with
the following formula for each calendar day of delay, until
the work is completed and accepted or taken over by the
Government:

The OP has no jurisdiction over administrative complaints filed against

elective municipal officials. Under Sec. 6 1(b) of R.A. No. 7160, *a+ complaint
against any elective official of a municipality shall be filed before the
Sangguniang Panlalawigan whose decision may be appealed to the Office of
the President.
WHEREFORE, thecharges against Vice Mayor Benibe are dismissed.
However, all the other respondents herein are found guilty of oppression and
abuse of authority under Section 60(c) and (e) of R.A. No. 7160. Accordingly,

xxx

xxx

xxx

2. To be entitled to such liquidated damages, the Government

does not have to prove that it has incurred actual
damages. Such amount shall be deducted from an) money
due or which may become due the contractor under the
contract and/or collect such liquidated damages from the
retention money or other securities posted by the
contractor whichever is convenient to the Government.
CI 1 - Extension of Contract time
1. Should the amount of additional work of any kind or other
special circumstances of any kind whatsoever occur such as
to fairly entitle the contractor to an extension of contract
time, the Government shall determine the amount of such
extension; provided that the Government is not bound to
take into account any claim for an extension of time unless
the contractor has prior to the expiration of the contract
time and within thirty (30) calendar days after such work
has been commenced or after the circumstances leading to
such claim have arisen, delivered to the Government
notices in order that it could have investigated them at that
time. Failure to provide such notice shall constitute a
waiver by the contractor of any claim. Upon receipt of full
and detailed particulars, the Government shall examine the
facts and extent of the delay and shall extend the contract
time for completing the contract work when, in the
Governments opinion, the finding of facts justify an
extension.
xxx

xxx

xxx

Final

June 2, 1992

202

100.00

In view of the delays in project completion the Team requested from the
Provincial Engineer any copy of the order suspending and resuming the work
(suspension and resume order) since the same was not attached to the
claims of the contractor or paid vouchers. Unfortunately, the Provincial
Engineer could not provide said document as the Engineering Office had not
issued any. In effect, there was no basis for the extension of contract time
and the contractor should have been considered as behind schedule in the
performance of the contract. Despite its deficiency, no liquidated damages
was ever imposed against the contractor. (pp. 25-26) [Italics supplied]
Respondent Salalima failed to submit any evidence concerning any order
issued by the Provincial Government extending RYU Constructions contract.
The law requires that requests for contract extension as well as the orders
granting the same must be made and given prior to the expiration of the
contract. The rationale for this requirement is obviously to prevent a
contractor from justifying any delay after the contract expires.
Before signing the 6 March 1992 contract, which was entered into on a
negotiated basis and not through bidding, respondent Salalima should have
inquired whether or not RYU Construction incurred negative slippage. Had he
done so, the matter of imposing and collecting liquidated damages would
have been given appropriate attention. This is aggravated by the fact that
respondent knew that RYU Construction was the contractor for the original
rehabilitation and repair work for the Tabaco Public market being the
signatory to the first contract.

IB 10.4.2 - By Negotiated Contract

1. Negotiated contract may be entered into only where any of
the following conditions exists and the implementing
office/agency/corporation is not capable of undertaking
the project by administration:
xxx

xxx

Clearly, therefore, there was a failure on the part of the Province to impose
and collect liquidated damages from the erring contractor, RYU Construction.
Going to the second charge, we find that respondent Salalima unmistakably
violated the provisions of P.D. No. 1594, as amended.

xxx

c. Where the subject project is adjacent or contiguous to an

ongoing project and it could be economically prosecuted by
the same contractor, in which case, direct negotiation may
be undertaken with the said contractor at the same unit
prices adjusted to price levels prevailing at the time of
negotiation using parametric formulae herein prescribed
without the 5% deduction and contract conditions, less
mobilization cost, provided that he has no negative
slippage and has demonstrated a satisfactory
performance. (Italics supplied)
A reading of items CI 8 and CI 11 above shows that the collection of
liquidated damages is mandatory in cases of delay unless there are valid
orders of extension of contract work given by the Government.
Under the 29 May 1991 contract, the repair works should have been
completed on 26 December 1991 since the project was started on 1 July. But
then the project was finished only on 2 June 1992.
This is confirmed by the COA through SAO Report No. 93-11 (Exh. N),

Fundamental is the rule that government contracts especially infrastructure

contracts are awarded only through bidding. As explicitly ordained by Sec. 4
of P.D. No. 1594, construction projects shall generally be undertaken by
contract after competitive bidding. By its very nature and characteristic, a
competitive public bidding aims to protect the public interest by giving the
public the best possible advantages through open competition. At the same
time, bidding seeks to prevent or curtail favoritism, fraud and corruption in
the award of the contract which otherwise might prevail were the
government official concerned is vested with the full or absolute authority to
select the prospective contractor (Fernandez, Treatise on Government
Contracts Under Philippine Law, 1991 Ed. citing Caltex Phil. Inc. v. Delgado
Bros., 96 Phil. 368; San Diego v. Municipality of Naujan, 107 Phil. 118; and
Matute v. Hernandez, 66 Phil. 68).
This is precisely the reason why negotiated contracts can be resorted to only
in a few instances such as that provided under par. 1 (c) of item IB 10.4.2 of
the IRR of PD No. 1594, supra. However, said proviso requires that the
contractor had not incurred negative slippage and has demonstrated a
satisfactory performance.

thus xxx

xxx

xxx

xx x The project was completed only on June 2, 1992 or a delay of 132

working days, as shown in the following tabulation
Billing

As of

Days Lapsed %Accomplishment

First

Dec. 2, 1991

130

26.48

Second

Jan. 8, 1992

187

53.19

Third

Feb. 10, 1992

100

75.23

And since RYU Construction incurred negative slippage with respect to the
repair works under the 29 May 1991 contract as found by COA, it was
anomalous for the Province through respondent Salalima to enter into a
negotiated contract with said contractor for additional repair and
rehabilitation works for the Tabaco Public market. Failing to comply with the
requirements of law, the 6 March 1992 contract is clearly irregular, if not
illegal.
Finally, said contract may also be violative of the following: (a)
COA
Circular No. 85-55-A. (dated 8 September 1985) prohibiting irregular
expenditures or uses of funds; and (b) Sec. 3(e) and (g) of R.A. No. 3019,
otherwise known as the Anti-Graft and Corrupt Practices Act.

Premises considered, this Committee finds the respondent guilty of abuse of

authority and gross negligence. Accordingly, it is recommended that the
penalty of suspension without pay be meted out on respondent Salalima for
five (5)months. (pp. 2-35)

I. Did the Office of the President act with grave abuse of

discretion amounting to lack or excess of jurisdiction in
suspending the petitioners for periods ranging from twelve
to twenty months?
II. Did the Office of the President commit grave abuse of
discretion in deciding O.P. Cases Nos. 5450, 5469, and 5470
despite the pendency of the petitioners appeal to the
COA en bane from Special Audit Office (SAO) Report No.
93-11 and the Certificate of Settlement and Balances (CSB)?

The President then concluded and disposed as follows:

After a careful review of the cases, 1 agree with and adopt the findings and
recommendations of the Ad Hoc Committee, supported as they are by the
evidence on record.

III. Did the Office of the President commit grave abuse of

discretion in holding the petitioners guilty of abuse of
authority in denying the Municipality of Tiwi of its rightful
share in the P40,724,471.74 which the Province of Albay
had received from the NPC under the Memorandum of
Agreement?

WHEREFORE, the following penalties are meted out on each of the

respondents, to wit:
In OP Case No. 5470 -

IV.
a. Governor Romeo Salalima - suspension without pay for
five (5) months:
b. Vice-Governor
Danilo
Azaa,
Albay
Sangguniang
Panlalawigan Members Juan Victoria, Lorenzo Reyeg,
Arturo Osia, Clenio Cabredo, Vicente Go, Sr., Jesus
Marcellana, Ramon Fernandez, Jr., Masikap Fontanilla, and
Wilbor Rontas - suspension without pay for four (4)
months.

V. Did the Office of the President commit grave abuse of

discretion in holding the petitioners in O.P. Case No. 5469
guilty of grave abuse of authority under Section 60(e) of
the Local Government Code of 1991 although they were
charged under Section 3(g) of R.A. No. 3019, as amended,
and Section 60(d) of the Local Government Code of 1991,
thereby depriving them of due process of law?

In OP Case No. 5469 a. Governor Romeo Salalima and Vice-Governor Danilo Azaa suspension without pay for six (6) months; and
b. Albay Sangguniang Members Juan Victoria, Lorenzo Reyeg,
Jesus Marcellana, Arturo Osia, Clenio Cabredo, Ramon
Fernandez, Jr., Masikap Fontilla, Vicente Go, Sr., and
Nemesio Baclao - suspension without pay for four (4)
months;
In OP Case No. 5471 a. Governor Romeo Salalima and Albay Sangguniang Members
Juan Victoria, Lorenzo Reyeg, Jesus Marcellana, Arturo
Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr.,
Masikap Fontilla, Vicente Go, Sr., and Nemesio Baclao
suspension without pay for four (4) months;
In OP Case No. 5450 a. Governor Romeo Salalima - suspension without pay for five
(5) months.

Did the Office of the President commit grave abuse of

discretion in suspending in O.P. Cases Nos. 5469
and 5450 petitioner Salalima, who was reelected on 11
May 1992, for an alleged administrative offense committed
during his first term; and in suspending in O.P. Case No.
5469 the other petitioners, some of whom were elected
and others reelected on 11 May 1992, for an alleged
administrative offense committed in 1989?

We shall take up these issues in the order they are presented.

I
Anent the first issue, the petitioners contend that the challenged
administrative order deprived them of their respective offices without
procedural and substantive due process. Their suspensions ranging from
twelve months to twenty months or for the entire duration of their
unexpired term, which was then only seven months, constituted permanent
disenfranchisement or removal from office in clear violation of Section 60 of
R.A. No. 7160 which mandates that an elective local official may be removed
from office by order of the court.
The Comment of the Solicitor General is silent on this issue. However,
respondents Mayor Corral and newly appointed provincial officials maintain
that the suspension imposed upon the petitioners in each of the four cases
was within the limits provided for in Section 66(b) of R.A. No. 7160 and that
the aggregate thereof ranging from twelve months to twenty months, but
not to exceed the unexpired portion of the petitioners term of office, did not
change its nature as to amount to removal.
Section 66(b) of R.A. No. 7160 expressly provides:

The suspension imposed on respondents shall be served successively but

shall not exceed their respective unexpired terms, in accordance with the
limitation imposed under Section 66(b) of the Local Government Code.
It must at once be pointed out that insofar as O.P. Case No. 5471 is
concerned, nothing of its substantive aspect is challenged in this petition.
The petitioners mentioned it only in their claim of prematurity of
Administrative Order No. 153 in view of their appeal from Special Audit
Office (SAO) Report No. 93-11 to the COA en banc. O.P. Case No. 5471 is the
administrative complaint filed by Tiwi Mayor Corral against the petitioners
for abuse of authority and oppression in connection with their conduct in the
several administrative cases filed by certain individuals against Mayor Corral.
It has no logical nexus to the appeal. The decision then in O.P. Case No. 5471
stands unchallenged in this petition.
As to O.P. Cases Nos. 5450, 5469, and 5470, the issues presented by
the petitioners may be reformulated in this wise:

SEC. 66. Form and Notice of Decision. - x x x

(b) The penalty of suspension shall not exceed the unexpired
term of the respondent or a period of six (6) months for
every administrative offense, nor shall said penalty be a
bar to the candidacy of the respondent so suspended as
long as he meets the qualifications for the office.
This provision sets the limits to the penalty of suspension, viz., it should not
exceed six months or the unexpired portion of the term of office of the
respondent for every administrative offense.[1] An administrative offense
means every act or conduct or omission which amounts to, or constitutes,
any of the grounds for disciplinary action. The offenses for which suspension
may be imposed are enumerated in Section 60 of the Code, which reads:

SEC. 60. Grounds for Disciplinary Action. - An elective local official may be
disciplined, suspended, or removed from office on any of the following
grounds:
(a) Disloyalty to the Republic of the Philippines;
(b) Culpable violation of the Constitution;
(c) Dishonesty, oppression, misconduct in office, gross
negligence, or dereliction of duty;
(d) Commission of any offense involving moral turpitude
or an offense punishable by at least prision mayor;
(e) Abuse of authority;
(f) Unauthorized absence for fifteen (15) consecutive
working days, except in the case of members of the
sangguniang panialawigan, sangguniang panlungsod,
sangguniang bayan, and sangguniang barangay;
(g) Acquisition for, or acquisition of, foreign citizenship or
residence or the status of an immigrant of another
country; and
(h) Such other grounds as may be provided in this Code
and other laws.
An elective local official may be removed from office on the grounds
enumerated above by order of the proper court.
Assuming then that the findings and conclusions of the Office of the
President in each of the subject four administrative cases arc correct, it
committed no grave abuse of discretion in imposing the penalty of
suspension, although the aggregate thereof exceeded six months and the
unexpired portion of the petitioners term of office. The fact remains that
the suspension imposed for each administrative offense did not exceed six
months and there was an express provision that the successive service of the
suspension should not exceed the unexpired portion of the term of office of
the petitioners. Their term of office expired at noon of 30 June 1995.[2] And
this Court is not prepared to rule that the suspension amounted to the
petitioners removal from office.[3]
II
Petitioners contend that the decisions in OP. Cases Nos. 5450, 5470,
and 5471 are predicated on SAO Report No. 93-11 of the COA Audit Team,
while that in O.P. Case No. 5469 is based on the CSB issued by the Provincial
Auditor of Albay. Since the Report and the CSB are on appeal with, and
pending resolution by, the Commission on Audit En Banc, they are not yet
final, conclusive, and executory as admitted by the team leader of the COA
Audit Team that submitted the SAO Report and by the Provincial Auditor
who issued the CSB. The petitioners also point out that the COA Chairman
had already reversed the recommendation in the SAO Report No. 93- 11 that
the Provincial Government of Albay should share with the Municipality of
Tiwi the P40,724,471.74 representing payments of the NPC as of December
1992. They then submit that Administrative Order No. 153 suspending all the
petitioners is premature in view of the pendency of the appeal to the COA en
banc from SAO Report No. 93-11 and the CSB.
This issue of prematurity was raised before the Ad Hoc Committee. In
rejecting it, the Committee explained as follows:
It is important to stress that the exceptions (Exhs. 50-B, 50-I, & 50-J)
raised by the respondents to COA nierely involve questions of law, i.e., as to
whether the Province alone should be entitled to the payments made by NPC
under the MOA, and whether the shares of Tiwi and Daraga, the concerned
barangays, and the national government, should be held in trust for said
beneficiaries.
Considering that the factual findings under SAO Report 93-11 are not
disputed, this Committee has treated said factual findings as final or, at the
very least, as corroborative evidence.
Respondents contention that COAs factual findings, as contained in
SAO Report No. 93-11 cannot be considered in this investigation is
untenable. For no administrative and criminal investigation can proceed, if a

respondent is allowed to argue that a particular COA finding is still the

subject of an appeal and move that the resolution of such administrative or
criminal case be held in abeyance. This will inevitably cause unnecessary
delays in the investigation of administrative and criminal cases since an
appeal from a COA finding may be brought all the way up to the Supreme
Court.
Besides, the matters raised by the respondents on appeal involve only
conclusions/interpretation of law. Surely, investigative bodies, such as COA,
the Ombudsman and even this Committee, are empowered to make their
own conclusions of law based on a given set of facts.
Finally, sufficient evidence has been adduced in this case apart from
the factual findings contained in SAO Report No. 93-11 to enable this
Committee to evaluate the merits of the instant complaint.
The alleged appeal from the CSB is unclear from the records, and in
light of the foregoing statement of the Ad Hoc Committee it is obvious that
such appeal was not raised.
We agree with the Ad Hoc Committee that the pendency of the appeal
was no obstacle to the investigation and resolution of the administrative
cases.
It may be further stressed that a special audit has a different purpose
in line with the constitutional power, authority, and duty of the COA under
Section 2, Subdivision D, Article IX of the Constitution to examine, audit, and
settle all accounts pertaining to the revenue and receipts of, and
expenditures or uses of funds and property, owned or held in trust by, or
pertaining to, the Government, or any of its subdivisions, agencies, or
instrumentalities, including government-owned or controlled corporations
with original charters and its exclusive authority .. . to define the scope of
its audit and examination, establish the techniques and methods required
therefor, and promulgate accounting and auditing rules and regulations,
including those for the prevention and disallowance of irregular,
unnecessary, excessive, extravagant, or unconscionable expenditures, or
uses of government funds and properties.[4]
III
As to the third issue, the petitioners aver that the P40,724,471.74
received by the Province of Albay from the NPC represents part of the price
paid for properties owned by the province in a corporate capacity and
repurchased by the former owner. It constitutes payment of a debt and not
of a tax, which debt arose from and was a consequence of, the
Memorandum of Agreement dated July 29, 1992. They further contend that
the Memorandum of Agreement (MOA) partakes of a deed of sale. And
nowhere in the Real Property Tax Code (P.D. No. 464)[5] is there any provision
requiring provinces to share with the municipalities the proceeds of a private
sale. What are required to be shared are only the collections of real property
taxes and Special Education Fund (SEF); proceeds of delinquent taxes and
penalties, or of the sale of delinquent real property, or of the redemption
thereof; and income realized from the use, lease, or disposition of real
property seized by the province.
It must be recalled that in August 1992, Governor Sal alima and NPC
President, Pablo Malixi, were already agreed that the basic tax due from the
NPC was P207,375,774 72.[6] But later, Malixi informed the former that upon
recomputation of the real property tax payable to the Province of Albay at
the minimum of one-fourth of one percent pursuant to Section 39(1) of the
Real Property Tax Code, the NPC came up with an adjusted figure of
P 129,609,859.20.[7] Governor Salalima then explained that one percent was
applied in the computation for the reconciled figure of P207,375,774.72
because the one-half percent imposed by the respective ordinances of the
municipalities where the delinquent properties are located was added to the
one-half percent imposed by the tax ordinance of the Province. His reply
reads as follows:
September 9, 1992
Hon. Pablo V. Malixi
President, National Power
Corporation
Diliman, Quezon City

Dear President Malixi:

there is no bidder or if the highest bid is for an amount not sufficient to pay
the taxes, penalties, and costs of sale.[9]

As suggested in your letter of August 31, 1992, we are very pleased to furnish
you herewith the certified true copies of the local tax ordinances which
served as our basis in imposing the rate of 1% of the reconciled figure of
P207,375,774.72, to wit:

Since in this case, there was no bidder, the provincial treasurer could
buy, as he did, the delinquent properties in the name of the province for the
amount of taxes, penalties due thereon, and the costs of sale, which included
the amounts of taxes due the municipalities concerned. It is therefore wrong
for the petitioners to say that the subject NPC properties are exclusively
owned by the Province. The Municipalities of Tiwi and Daraga may be
considered co-owners thereof to the extent of their respective shares in the
real property taxes and the penalties thereon.

(a) Resolution No. 30, series of 1974 of the Provincial Board of Albay,
enacting Provincial Tax Ordinance No.4, whose Section I, provides:
There shall be levied, assessed and collected as annual ad valorem tax on
real properties including improvements thereon equivalent to one half of
one percent of the assessed value of real property.
(b) Ordinance No. 25, series of 1974, of the Sangguniang Bayan of Tiwi,
Albay, whose Section 2 provides:
That the tax rate of real property shall be one-half of one percent of the
assessed value of real property.
(c) Ordinance No. 27, series of 1980, of the Sangguniang Bayan of Daraga.
Albay, whose Section 3 provides:
Rates of Levy - The tax herein levied is hereby fixed at one-half of one
percent (1/2 of 1%) of the assessed value of the real property.
These tax ordinances were in pursuance to Sec. 39 (1)(3) of P.D. 464,
the applicable law during the period 1984 to 1987. By adding the one half
percent imposed in the tax Ordinance of Tiwi to the one ha If percent also
imposed in the Provincial Tax Ordinance, we have a total of one percent
which we used as the rate of levy in computing the basic tax due on the real
properties in Tiwi.

It must further be noted that it is the provincial treasurer who has

charge of the delinquent real property acquired by the province.[10] He is the
one whom the delinquent taxpayer or any person holding a lien or claim to
the property deal with in case the latter wishes to redeem the
property.[11] He is also the one authorized to effect the resale at public
auction of the delinquent property.[12] Thus, the municipalities concerned
had to depend on him for the effective collection of real property taxes
payable to them. Accordingly, when the Province entered into the
Memorandum of Agreement with the NPC, it was also acting in behalf of the
municipalities concerned. And whatever benefits that might spring from that
agreement should also be shared with the latter.
The MOA, contrary to the position of the petitioners, is not an
ordinary contract of sale. Hereinbelow is the pertinent portion of that
agreement:
WHEREAS, the Supreme Court ruled in the NATIONAL POWER
CORPORATION VS. THE PROVINCE OF ALBAY, et al., G.R. No. 87479 that
NAPOCOR is liable to pay Realty Tax for its properties in the municipalities of
Tiwi and Daraga, Albay for the period June 11, 1984 to March 10, 1987;
WHEREAS, NAPOCOR is willing to settle its realty tax liability in favor of the
PROVINCE OF ALBAY;

On the real properties in Daraga, we also added the one half percent
imposed by the Daraga Tax Ordinance to the one-half percent of the
Provincial Tax Ordinance.

WHEREAS, there is a need to further validate/reconcile the computation of

the realty tax in the total amount of P2 14,845, 184.76;

The additional tax of one percent for the Special Educational Fund
(SEF) was imposed pursuant to Section 41 of P.D. 464, which provides as
follows:

NOW, THEREFORE, in view of the foregoing premises and for and in

consideration of the mutual covenant and stipulations hereinafter provided,
the parties hereto have agreed as follows:

There is hereby imposed annual tax of one percent on real property to

accrue to the Special Educational Fund created under Republic Act No. 5447,
which shall be in addition to the basic real property tax which local
governments are authorized to levy, assess and collect under this Code; x x x
We hope that the foregoing clarification will settle whatever doubt
there is on why we applied 1% for basic tax and another 1% for SEP in
arriving at P207,375,774.72.[8] (Italics supplied).

1. NAPOCOR will
P17,783,000.00
acknowledged.

make an initial payment of

receipt of which is hereby

2. The balance of the validated/reconciled amount of

the real estate taxes will be paid in 24 equal monthly
installments, payable within the first five (5) working
days of the month. The first monthly installment will
commence in September 1992.

The petitioners even emphasized in the instant petition that

Governor Salalima specifically included the amounts due to the
Municipalities of Tiwi and Daraga in asking Napocor to settle its obligations.
In other words, the original claim of P214,845,184.76 or the reconciled figure
of P207,375,774.72 representing real property taxes from 11 June 1984 to 10
March 1987 already covered the real property taxes payable to the
municipalities concerned.

3. Should NAPOCOR default in any monthly installment,

the balance will immediately become due and
demandable.

Hence, when the Province sold at public auction the delinquent

properties consisting of buildings, machines, and similar improvements, it
was acting not only in its own behalf but also in behalf of the municipalities
concerned. And rightly so, because under Section 60 of P.D. No. 477, the
Province, thru the Provincial Treasurer, is duty bound to collect taxes
throughout the province, including the national, provincial, and municipal
taxes and other revenues authorized by law. Moreover, under Section 73 of
the Real Property Tax Code, the provincial or city treasurer is the one
authorized to advertise the sale at public auction of the entire delinquent
real property, except real property mentioned in Subsection (a) of Section
40, to satisfy all the taxes and penalties due and costs of sale. He is also
authorized to buy the delinquent real property in the name of the province if

5. In consideration of settlement of NAPOCOR s tax

liability, the PROVINCE OF ALBAY hereby waives its
claim of ownership over NAPOCOR properties subject
in G.R. No. 87479 upon full payment of the balance due
to the PROVINCE OF ALBAY.[13] (Italics supplied).

4. NAPOCOR will pay such other taxes and charges, such as

the franchise tax as provided for in the Local
Government Code of 1991.

The tenor of the abovequoted agreement shows that the intention of

the parties was for the redemption of the subject properties in that the
Province would waive ownership over the properties in consideration of
settlement of Napocors tax liability.

Under Section 78 of the Real Property Tax Code, the delinquent real
property sold at public auction may be redeemed by paying the total amount
of taxes and penalties due up to the date of redemption, costs of sale, and
the interest at 20% of the purchase price.
The petitioners are estopped from claiming that the amounts received
by the Province from the NPC constitute payments of a debt under the MOA
or of contract price in a private sale. They constitute redemption price or
payments of NPCs tax liabilities. This is evident from the MOA as well as the
entry in the receipt issued by the Province, thru the Provincial Treasurer,
which reads:
Date: July 29, 1992
Received from National Power Corp.
Manila
In the amount of Seventeen Million Seven Hundred Sixty-Three Thousand
Pesos Philippine Currency P17,763,000.00.
In payment of the following:

Also worth noting is Provincial Ordinance No. 09-92 adopted by the

petitioners which provides: That the installments paid by said corporation
for the months of September to December 1992,representing partial
payments of the principal tax due are declared forfeited in favor of the
Provincial Government of Albay.
Moreover, in Resolution No. 197-92, the petitioners referred as tax
benefits the shares of certain municipalities and barangays from the amount
paid by the NPC under the MOA. The resolution reads in part as follows:
WHEREAS, by virtue of the Memorandum Agreement, signed by the
petitioner, Province of Albay and respondent-oppositor, National Power
Corporation (NPC), the latter have agreed and paid an initial payment to the
Province of Albay;
WHEREAS, the sharing based on the Local Government Code of 1991, the
municipalities of Malinao and Ligao are entitled to their shares of P1,435.00
and P4,4 16.82 respectively and the barangays Bay in Lingao (sic) to P319.00
and Tagoytoy in Malinao to P98 1.00;

For Partial Payment =

P17,763,000.00
of Realty Tax Delinquency of Case No. 87479, NPC
vs. Province of Albay
Total

WHEREAS, these tax benefits due them are not enough to pursue a
worthwhile project in said municipalities and barangays considering the
present economic situation.[15] (Italics supplied)

P17,763,000.00
(
S
g
d
.
)
A
b
u
n
d
i
o
M
.
N
u

e
z
P
r
o
v
i
n
c
i
a
l
T
r
e
a
s
u
r
e
r
[

As pointed out by the respondents, if the MOA was merely for the
repurchase by NPC of its properties from Albay, what could have been
executed was a simple deed of absolute sale in favor of NPC at an agreed
price not necessarily P214 million which was the total amount of the realty
tax in arrears Additionally, there would have been no need for the parties to
further validate/reconcile the tax computation of the realty tax in the total
amount of P214,845,184 76
Clearly, the P40,724,471 74 paid by the NPC to the Province pursuant
to the MOA was part of the redemption price or of the realty taxes in arrears.
It is conceded that under Section 78 of the Real Property Tax Code,
redemption of delinquency property must be made within one year from the
date of registration of sale of the property The auction sale of the NPC
properties was held on 30 March 1989 and declared valid by this Court in its
4 June 1990 decision. It was only on 29 July 1992 that the NPC offered to
repurchase its former properties by paying its tax liabilities. When the
Province accepted the offer, it virtually waived the one-year redemption
period. And having thus allowed the NPC to redeem the subject properties
and having received part of the redemption price, the Province should have
shared with the municipalities concerned those amounts paid by the NPC in
the same manner and proportion as if the taxes had been paid in regular
course conformably with Section 87(c) of the Real Property Tax Code, which
provides:
(c) the proceeds of all delinquent taxes and penalties, as well as
the income realized from the use, lease or other
disposition of real property acquired by the province or
city at a public auction in accordance with the provisions
of this Code, and the proceeds of the sale of the
delinquent real property or of the redemption thereof
shall accrue to the province, city or municipality in the
same proportion as if the tax or taxes had been paid in
regular course.
As early as 3 August 1992, respondent Mayor Corral had already made
a written demand for payment or remittance of the shares accruing to the
Municipality of Tiwi. Petitioner Governor Salalima refused saying that the
initial check of P 17,763,000.00 was merely an earnest money. Yet, on 22
October 1992, the petitioners passed the aforequoted Resolution No. 197-92
giving some local government units, where smaller portions of the
delinquent properties are situated, shares from the payments made by the
NPC under the MOA.

The petitioners cannot claim to have acted in good faith in refusing to

give the municipalities of Tiwi and Daraga their share. As pointed out by the
Office of the Solicitor General, the petitioners were aware of the local tax
ordinances passed by the respective Sanggunian Bayan of Tiwi and Daraga
relative to the realty tax to be imposed on properties located in their
respective localities. Petitioner Salalima had even quoted the said
ordinances in his letter to Mr. Pablo Malixi and attached copies thereof to
that letter. Significantly, the petitioners averred in the instant petition
that Governor Salalima specifically included the amounts due to the
municipalities of Tiwi and Daraga in asking NPC to settle its obligations.
When doubt arose as to whether the municipalities concerned are
entitled to share in the amounts paid by the NPC, the province filed on 20
November 1992 a petition for declaratory relief, which the Regional Trial
Court of Albay decided only on 12 May 1994. Yet, as of 31 December 1992,
the province had already disbursed or spent a large part of the NPC
payments. As found by COA, of the P40,724,471.74 actually paid by the NPC
and lodged in the provinces general fund, P35,803,118.30 was disbursed or
spent by the Province.
If petitioners were really in good faith, they should have held the
shares of Tiwi and Daraga in trust[16] pursuant to Section 309(b) of the Local
Government Code of 1991, which provides:
Trust funds shall consist of private and public monies which have officially
come into the possession of the local government or of a local government
official as trustee, agent or administrator ...A trust fund shall only be used for
the specific purpose for which it came into the possession of the local
government unit.
As pointed out by the Ad Hoc Committee in its report, which was
adopted by the Office of the President:
It is unmistakable from the foregoing provisions that the shares of Tiwi,
Daraga, the concerned barangays and the national government in the
payments made by NPC under the MOA, should be, as they are in fact, trust
funds. As such, the Province should have, upon receipt of said payments,
segregated and lodged in special accounts, the respective shares of Tiwi,
Daraga, the concerned barangays and the national government for eventual
remittance to said beneficiaries. Said shares cannot be lodged in, nor remain
part of, the Provinces general fund. Moreover, the Province cannot utilize
said amounts for its own benefit or account (see also Sec. 86, P.D. No. 464, as
amended).
Therefore, the balance of P26,979,962.52 representing the collective shares
of Tiwi and Daraga, the concerned barangays and the national government,
cannot be appropriated nor disbursed by the Province for the payment of its
own expenditures or contractual obligations.
However, in total disregard of the law, the Province treated the
P40,724,471.74 NPC payments as surplus adjustment (Account 7-92-419)
and lodged the same in its general fund. No trust liability accounts were
created in favor of the rightful beneficiaries thereof as required by law.
We cannot therefore fault the public respondents with grave abuse of
discretion in holding the petitioners guilty of abuse of authority for failure to
share with the municipalities of Tiwi and Daiaga the amount of
P40,724,471.74 paid by the NPC.
IV
We agree with the petitioners that Governor Salalima could no longer
be held administratively liable in O.P. Case No. 5450 in connection with the
negotiated contract entered into on 6 March 1992 with RYU Construction for
additional rehabilitation work at the Tabaco Public Market. Nor could the
petitioners be held administratively liable in O.P. Case No. 5469 for the
execution in November 1989 of the retainer contract with Atty. Jesus
Cornago and the Cortes and Reyna Law Firm. This is so because public
officials cannot be subject to disciplinary action for administrative
misconduct committed during a prior term, as held in Pascual vs. Provincial
Board of Nueva Ecija[17] and Aguinaldo vs. Santos.[18] In Pascual, this Court
ruled:

We now come to one main issue of the controversy - the legality of

disciplining an elective municipal official for a wrongful act committed by him
during his immediately preceding term of office.
In the absence of any precedent in this jurisdiction, we have resorted
to American authorities. We found that cases on the matter are conflicting
due in part, probably, to differences in statutes and constitutional provisions,
and also, in part, to a divergence of views with respect to the question of
whether the subsequent election or appointment condones the prior
misconduct. The weight of authority, however, seems to incline to the rule
denying the right to remove one from office because of misconduct during a
prior term, to which we fully subscribe.
Offenses committed, or acts done, during previous term are generally held
not to furnish cause for removal and this is especially true where the
constitution provides that the penalty in proceedings for removal shall not
extend beyond the removal from office, and disqualification from holding
office for the term for which the officer was elected or appointed. (67 C.J.S.
p. 248, citing Rice vs. State, 161 S.W. 2d. 401; Montgomery vs. Nowell, 40
S.W. 2d 418; People ex rel. Bagshaw vs. Thompson, 130 P. 2d 237; Board of
Comrs. of Kingfisher County vs. Shutler, 281 P. 222; State vs. Blake, 280 P.
388; In re Fudula, 147 A. 67; State vs. Ward, 43 S.W. 2d. 217).
The underlying theory is that each term is separate from other terms, and
that the reelection to office operates as a condonation of the officers
previous misconduct to the extent of cutting off the right to remove him
therefor (43 Am. Jur. P. 45, citing Atty. Gen. vs. Hasty, 184 Ala. 121, 63 So.
559, 50 L.R.A. (NS) 553. As held on Conant vs. Brogan (1887) 6 N.Y.S.R. 332,
cited in 17 A.I.R. 281, 63 So. 559, 50LRA (NS) 553
The Court should never remove a public officer for acts done prior to his
present term of office. To do otherwise would be to deprive the people of
their right to elect their officers. When the people have elected a man to
office, it must be assumed that they did this with knowledge of his life and
character, and that they disregard or forgave his faults or misconduct, if he
had been guilty of any. It is not for the court, by reason of such faults or
misconduct to practically overrule the will of the people.
This Court reiterated this rule in Aguinaldo and explicitly stated
therein:
Clearly then, the rule is that a public official can not be removed for
administrative misconduct committed during a prior term, since his reelection to office operates a condonation of the officers previous
misconduct to the extent of cutting off the right to remove him therefor. The
foregoing rule, however, finds no application to criminal cases pending
against petitioner for acts he may have committed during the failed coup.
However, the Office of the Solicitor General maintains
that Aguinaldo does not apply because the case against the official therein
was already pending when he filed his certificate of candidacy for his
reelection bid. It is of the view that an officials reelection renders moot and
academic an administrative complaint against him for acts done during his
previous term only if the complaint was filed before his reelection. The fine
distinction does not impress us. The rule makes no distinction. As a matter
of fact, in Pascual the administrative complaint against Pascual for acts
committed during his first term as Mayor of San Jose, Nueva Ecija, was filed
only a year after he was reelected.
The rule adopted in Pascual, qualified inAguinaldo insofar as criminal
cases are concerned, is still a good law. Such a rule is not only founded on
the theory that an officials reelection expresses the sovereign will of the
electorate to forgive or condone any act or omission constituting a ground
for administrative discipline which was committed during his previous
term. We may add that sound public policy dictates it. To rule otherwise
would open the floodgates to exacerbating endless partisan contests
between the reelected official and his political enemies, who may not stop to
hound the former during his new term with administrative cases for acts,
alleged to have been committed during his previous term. His second term
may thus be devoted to defending himself in the said cases to the detriment
of public service. This doctrine of forgiveness or condonation cannot,

however, apply to criminal acts which the reelected official may have
committed during his previous term.
We thus rule that any administrative liability which petitioner Salalima
might have incurred in the execution of the retainer contract in O.P. Case No.
5469 and the incidents related therewith and in the execution on 6 March
1992 of a contract for additional repair and rehabilitation works for the
Tabaco Public Market in O.P. Case No. 5450 are deemed extinguished by his
reelection in the 11 May 1992 synchronized elections. So are the liabilities, if
any, of petitioner members of the Sangguniang Panlalawigan ng Albay, who
signed Resolution No. 129 authorizing petitioner Salalima to enter into the
retainer contract in question and who were reelected in the 1992 elections.
This is, however, without prejudice to the institution of appropriate civil and
criminal cases as may be warranted by the attendant circumstances. As to
petitioners Victoria, Marcellana, Reyeg, Osia, and Cabredo who became
members of the Sangguniang Panlalawigan only after their election in 1992,
they could not be held administratively liable in O.P. Case No. 5469, for they
had nothing to do with the said resolution which was adopted in April 1989
yet.
Having thus held that the petitioners could no longer be
administratively liable in O.P. Case No. 5469, we find it unnecessary to delve
into, and pass upon, the fifth issue.
WHEREFORE, the instant special action for certiorari is hereby partly
GRANTED. That part of the challenged Administrative Order No. 153
imposing the penalty of suspension on petitioner Governor Romeo Salalima
in O.P. Cases Nos. 5450 and 5469 and on petitioners Vice Governor Danilo
Azaa and Sangguniang Panlalawigan Members Juan Victoria, Lorenzo Reyeg,
Arturo Osia, Wilbor Rontas, Clenio Cabredo, Ramon Fernandez, Jr., Masikap
Fontanilla, Vicente Go, Sr., and Nemesio Baclao in O.P. Case No. 5469 are
hereby ANNULLED and SET ASIDE, without prejudice to the filing of
appropriate civil or criminal actions against them if warranted by the
attendant circumstances.
No pronouncement as to costs.
SO ORDERED.
G.R. No. 179817

June 27, 2008

ANTONIO
F.
TRILLANES
IV, petitioner,
vs.
HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS PRESIDING JUDGE,
REGIONAL TRIAL COURT- BRANCH 148, MAKATI CITY; GEN. HERMOGENES
ESPERON, VICE ADM. ROGELIO I. CALUNSAG, MGEN. BENJAMIN
DOLORFINO, AND LT. COL. LUCIARDO OBEA, respondents.
DECISION
CARPIO MORALES, J.:
At the wee hours of July 27, 2003, a group of more than 300 heavily armed
soldiers led by junior officers of the Armed Forces of the Philippines (AFP)
stormed into the Oakwood Premier Apartments in Makati City and publicly
demanded the resignation of the President and key national officials.
Later in the day, President Gloria Macapagal Arroyo issued Proclamation No.
427 and General Order No. 4 declaring a state of rebellion and calling out the
Armed Forces to suppress the rebellion.1 A series of negotiations quelled the
teeming tension and eventually resolved the impasse with the surrender of
the militant soldiers that evening.
In the aftermath of this eventful episode dubbed as the "Oakwood Incident,"
petitioner Antonio F. Trillanes IV was charged, along with his comrades,
with coup detat defined under Article 134-A of the Revised Penal Code
before the Regional Trial Court (RTC) of Makati. The case was docketed as
Criminal Case No. 03-2784, "People v. Capt. Milo D. Maestrecampo, et al."

Close to four years later, petitioner, who has remained in detention,2 threw
his hat in the political arena and won a seat in the Senate with a six-year
term commencing at noon on June 30, 2007.3
Before the commencement of his term or on June 22, 2007, petitioner filed
with the RTC, Makati City, Branch 148, an "Omnibus Motion for Leave of
Court to be Allowed to Attend Senate Sessions and Related
Requests"4 (Omnibus Motion). Among his requests were:
(a) To be allowed to go to the Senate to attend all official
functions of the Senate (whether at the Senate or elsewhere)
particularly when the Senate is in session, and to attend the
regular and plenary sessions of the Senate, committee hearings,
committee meetings, consultations, investigations and hearings in
aid of legislation, caucuses, staff meetings, etc., which are
normally held at the Senate of the Philippines located at the GSIS
Financial Center, Pasay City (usually from Mondays to Thursdays
from 8:00 a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his place of
detention at the Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, with a personal desktop computer and the
appropriate communications equipment (i.e., a telephone line
and internet access) in order that he may be able to work there
when there are no sessions, meetings or hearings at the Senate or
when the Senate is not in session. The costs of setting up the said
working area and the related equipment and utility costs can be
charged against the budget/allocation of the Office of the accused
from the Senate;
(c) To be allowed to receive members of his staff at the said
working area at his place of detention at the Marine Brig, Marine
Barracks Manila, Fort Bonifacio, Taguig City, at reasonable times
of the day particularly during working days for purposes of
meetings, briefings, consultations and/or coordination, so that the
latter may be able to assists (sic) him in the performance and
discharge of his duties as a Senator of the Republic;
(d) To be allowed to give interviews and to air his comments,
reactions and/or opinions to the press or the media regarding the
important issues affecting the country and the public while at the
Senate or elsewhere in the performance of his duties as Senator
to help shape public policy and in the light of the important role
of the Senate in maintaining the system of checks and balance
between the three (3) co-equal branches of Government;
(e) With prior notice to the Honorable Court and to the accused
and his custodians, to be allowed to receive, on Tuesdays and
Fridays, reporters and other members of the media who may wish
to interview him and/or to get his comments, reactions and/or
opinion at his place of confinement at the Marine Brig, Marine
Barracks Manila, Fort Bonifacio, Taguig City, particularly when
there are no sessions, meetings or hearings at the Senate or when
the Senate is not in session; and
(f) To be allowed to attend the organizational meeting and
election of officers of the Senate and related activities scheduled
in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the Senate
of the Philippines located at the GSIS Financial Center, Pasay City.5
By Order of July 25, 2007,6 the trial court denied all the requests in the
Omnibus Motion. Petitioner moved for reconsideration in which he waived
his requests in paragraphs (b), (c) and (f) to thus trim them down to
three.7 The trial court just the same denied the motion by Order of
September 18, 2007.8
Hence, the present petition for certiorari to set aside the two Orders of the
trial court, and for prohibition and mandamus to (i) enjoin respondents from
banning the Senate staff, resource persons and guests from meeting with

him or transacting business with him in his capacity as Senator; and (ii) direct
respondents to allow him access to the Senate staff, resource persons and
guests and permit him to attend all sessions and official functions of the
Senate. Petitioner preliminarily prayed for the maintenance of the status quo
ante of having been able hitherto to convene his staff, resource persons and
guests9 at the Marine Brig.
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of
Staff, Gen. Hermogenes Esperon (Esperon); Philippine Navys Flag Officer-inCommand, Vice Admiral Rogelio Calunsag; Philippine Marines Commandant,
Major Gen. Benjamin Dolorfino; and Marine Barracks Manila Commanding
Officer, Lt. Col. Luciardo Obea (Obea).
Petitioner later manifested, in his Reply of February 26, 2008, that he has,
since November 30, 2007, been in the custody of the Philippine National
Police (PNP) Custodial Center following the foiled take-over of the Manila
Peninsula Hotel10 the day before or on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action
as against the above-named military officers-respondents. The issues raised
in relation to them had ceased to present a justiciable controversy, so that a
determination thereof would be without practical value and use. Meanwhile,
against those not made parties to the case, petitioner cannot ask for reliefs
from this Court.11 Petitioner did not, by way of substitution, implead the
police officers currently exercising custodial responsibility over him; and he
did not satisfactorily show that they have adopted or continued the assailed
actions of the former custodians.12
Petitioner reiterates the following grounds which mirror those previously
raised in his Motion for Reconsideration filed with the trial court:

GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF

THE MARINE BRIGS COMMANDING OFFICER TO ALLOW
PETITIONER TO ATTEND THE SENATE SESSIONS;
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE
PEOPLE, IN THEIR SOVEREIGN CAPACITY, ELECTED HIM TO THE
POSITION OF SENATOR OF THE REPUBLIC PROVIDES THE PROPER
LEGAL JUSTIFICATION TO ALLOW HIM TO WORK AND SERVE HIS
MANDATE AS A SENATOR;
- AND IV.
MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW
LIBERAL TREATMENT OF DETENTION PRISONERS WHO ARE HELD
WITHOUT BAIL AS IN THE CASE OF FORMER PRESIDENT JOSEPH
"ERAP" ESTRADA AND FORMER ARMM GOV. NUR MISUARI.13
The petition is bereft of merit.
In attempting to strike a distinction between his case and that of Jalosjos,
petitioner chiefly points out that former Rep. Romeo Jalosjos (Jalosjos)
was already convicted, albeit his conviction was pending appeal, when he
filed a motion similar to petitioners Omnibus Motion, whereas he
(petitioner) is a mere detention prisoner. He asserts that he continues to
enjoy civil and political rights since the presumption of innocence is still in his
favor.

I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS
CLEARLY INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE
FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS
CASE WAS ALREADY CONVICTED AT THE TIME HE FILED
HIS
MOTION.
IN
THE
INSTANT
CASE,
ACCUSED/PETITIONER HAS NOT BEEN CONVICTED
AND, THEREFORE, STILL ENJOYS THE PRESUMPTION OF
INNOCENCE;

Furthermore, petitioner justifies in his favor the presence of noble causes in

expressing legitimate grievances against the rampant and institutionalized
practice of graft and corruption in the AFP.
In sum, petitioners first ground posits that there is a world of difference
between his case and that of Jalosjos respecting the type of offense involved,
the stage of filing of the motion, and other circumstances which demonstrate
the inapplicability of Jalosjos.14

B.

A plain reading of. Jalosjos suggests otherwise, however.

THE ACCUSED IN THE JALOJOS (SIC) CASE WAS

CHARGED WITH TWO (2) COUNTS OF STATUTORY
RAPE AND SIX (6) COUNTS OF ACTS OF
LASCIVIOUSNESS,
CRIMES
INVOLVING
MORAL
TURPITUDE.
HEREIN
ACCUSED/PETITIONER
IS
CHARGED WITH THE OFFENSE OF "COUP DETAT", A
CHARGE WHICH IS COMMONLY REGARDED AS A
POLITICAL OFFENSE;

The distinctions cited by petitioner were not elemental in the

pronouncement in Jalosjos that election to Congress is not a reasonable
classification in criminal law enforcement as the functions and duties of the
office are not substantial distinctions which lift one from the class of
prisoners interrupted in their freedom and restricted in liberty of
movement.15

C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO
FLEE PRIOR TO BEING ARRESTED. THE ACCUSED/
PETITIONER VOLUNTARILY SURRENDERED TO THE
AUTHORITIES AND AGREED TO TAKE RESPONSIBILITY
FOR HIS ACTS AT OAKWOOD;
II.

Further, petitioner illustrates that Jalosjos was charged with crimes involving
moral turpitude, i.e., two counts of statutory rape and six counts of acts of
lasciviousness, whereas he is indicted for coup detat which is regarded as a
"political offense."

It cannot be gainsaid that a person charged with a crime is taken into custody
for purposes of the administration of justice. No less than the Constitution
provides:
All persons, except those charged with offenses punishable
by reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be released
on recognizance as may be provided by law. The right to bail shall
not be impaired even when the privilege of the writ of habeas
corpus is
suspended.
Excessive
bail
shall
not
be
required.16 (Underscoring supplied)

The Rules also state that no person charged with a capital offense,17 or an
offense punishable by reclusion perpetua or life imprisonment, shall be
admitted to bail when evidence of guilt is strong, regardless of the stage of
the criminal action.18
That the cited provisions apply equally to rape and coup detat cases, both
being punishable by reclusion perpetua,19 is beyond cavil. Within the class of
offenses covered by the stated range of imposable penalties, there is clearly
no distinction as to the political complexion of or moral turpitude involved in
the crime charged.
In the present case, it is uncontroverted that petitioners application for bail
and for release on recognizance was denied.20The determination that
the evidence of guilt is strong, whether ascertained in a hearing of an
application for bail21 or imported from a trial courts judgment of
conviction,22 justifies the detention of an accused as a valid curtailment of his
right to provisional liberty. This accentuates the proviso that the denial of the
right to bail in such cases is "regardless of the stage of the criminal action."
Such justification for confinement with its underlying rationale of public selfdefense23 applies equally to detention prisoners like petitioner or convicted
prisoners-appellants like Jalosjos.
As the Court observed in Alejano v. Cabuay,24 it is impractical to draw a line
between convicted prisoners and pre-trial detainees for the purpose of
maintaining jail security; and while pre-trial detainees do not forfeit their
constitutional rights upon confinement, the fact of their detention makes
their rights more limited than those of the public.
The Court was more emphatic in People v. Hon. Maceda:25
As a matter of law, when a person indicted for an offense is
arrested, he is deemed placed under the custody of the law. He is
placed in actual restraint of liberty in jail so that he may be bound
to answer for the commission of the offense. He must be detained
in jail during the pendency of the case against him, unless he is
authorized by the court to be released on bail or on recognizance.
Let it be stressed that all prisoners whether under preventive
detention or serving final sentence can not practice their
profession nor engage in any business or occupation, or hold
office, elective or appointive, while in detention. This is a
necessary consequence of arrest and detention.26(Underscoring
supplied)
These inherent limitations, however, must be taken into account only to the
extent that confinement restrains the power of locomotion or actual physical
movement. It bears noting that in Jalosjos, which was decided en banc one
month afterMaceda, the Court recognized that the accused could somehow
accomplish legislative results.27
The trial court thus correctly concluded that the presumption of innocence
does not carry with it the full enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with respect to the application of
the presumption of innocence during the period material to the resolution of
their respective motions. The Court in Jalosjos did not mention that the
presumption of innocence no longer operates in favor of the accused
pending the review on appeal of the judgment of conviction. The rule stands
that until a promulgation of final conviction is made, the constitutional
mandate of presumption of innocence prevails.28
In addition to the inherent restraints, the Court notes that petitioner neither
denied nor disputed his agreeing to a consensus with the prosecution that
media access to him should cease after his proclamation by the Commission
on Elections.29
Petitioner goes on to allege that unlike Jalosjos who attempted to evade trial,
he is not a flight risk since he voluntarily surrendered to the proper
authorities and such can be proven by the numerous times he was allowed to
travel outside his place of detention.

Subsequent events reveal the contrary, however. The assailed Orders

augured well when on November 29, 2007 petitioner went past security
detail for some reason and proceeded from the courtroom to a posh hotel to
issue certain statements. The account, dubbed this time as the "Manila Pen
Incident,"30 proves that petitioners argument bites the dust. The risk that he
would escape ceased to be neither remote nor nil as, in fact, the cause for
foreboding became real.
Moreover, circumstances indicating probability of flight find relevance as a
factor in ascertaining the reasonable amount of bail and in canceling a
discretionary grant of bail.31 In cases involving non-bailable offenses, what is
controlling is the determination of whether the evidence of guilt is strong.
Once it is established that it is so, bail shall be denied as it is neither a matter
of right nor of discretion.32
Petitioner cannot find solace in Montano v. Ocampo33 to buttress his plea for
leeway because unlike petitioner, the therein petitioner, then Senator
Justiniano Montano, who was charged with multiple murder and multiple
frustrated murder,34 was able to rebut the strong evidence for the
prosecution. Notatu dignum is this Courts pronouncement therein that "if
denial of bail is authorized in capital cases, it is only on the theory that the
proof being strong, the defendant would flee, if he has the opportunity,
rather than face the verdict of the jury."35 At the time Montano was indicted,
when only capital offenses were non-bailable where evidence of guilt is
strong,36 the Court noted the obvious reason that "one who faces
a probable death sentence has a particularly strong temptation to
flee."37 Petitioners petition for bail having earlier been denied, he cannot
rely on Montano to reiterate his requests which are akin to bailing him out.
Second, petitioner posits that, contrary to the trial courts findings, Esperon
did not overrule Obeas recommendation to allow him to attend Senate
sessions. Petitioner cites the Comment38 of Obea that he interposed no
objection to such request but recommended that he be transported by the
Senate Sergeant-at-Arms with adequate Senate security. And petitioner
faults the trial court for deeming that Esperon, despite professing nonobstruction to the performance of petitioners duties, flatly rejected all his
requests, when what Esperon only disallowed was the setting up of a political
office inside a military installation owing to AFPs apolitical nature.39
The effective management of the detention facility has been recognized as a
valid objective that may justify the imposition of conditions and restrictions
of pre-trial detention.40 The officer with custodial responsibility over a
detainee may undertake such reasonable measures as may be necessary to
secure the safety and prevent the escape of the detainee.41Nevertheless,
while the comments of the detention officers provide guidance on security
concerns, they are not binding on the trial court in the same manner that
pleadings are not impositions upon a court.
Third, petitioner posits that his election provides the legal justification to
allow him to serve his mandate, after the people, in their sovereign capacity,
elected him as Senator. He argues that denying his Omnibus Motion is
tantamount to removing him from office, depriving the people of proper
representation, denying the peoples will, repudiating the peoples choice,
and overruling the mandate of the people.
Petitioners contention hinges on the doctrine in administrative law that "a
public official can not be removed foradministrative misconduct committed
during a prior term, since his re-election to office operates as a condonation
of the officers previous misconduct to the extent of cutting off the right to
remove him therefor."42
The assertion is unavailing. The case against petitioner is not administrative
in nature. And there is no "prior term" to speak of. In a plethora of
cases,43 the Court categorically held that the doctrine of condonation does
not apply to criminal cases. Election, or more precisely, re-election to office,
does not obliterate a criminal charge. Petitioners electoral victory only
signifies pertinently that when the voters elected him to the Senate, "they
did so with full awareness of the limitations on his freedom of action [and] x
x x with the knowledge that he could achieve only such legislative results
which he could accomplish within the confines of prison."44

In once more debunking the disenfranchisement argument,45 it is opportune

to wipe out the lingering misimpression that the call of duty conferred by the
voice of the people is louder than the litany of lawful restraints articulated in
the Constitution and echoed by jurisprudence. The apparent discord may be
harmonized by the overarching tenet that the mandate of the people yields
to the Constitution which the people themselves ordained to govern all
under the rule of law.
The performance of legitimate and even essential duties by public
officers has never been an excuse to free a person validly in
prison. The duties imposed by the "mandate of the people" are
multifarious. The accused-appellant asserts that the duty to
legislate ranks highest in the hierarchy of government. The
accused-appellant is only one of 250 members of the House of
Representatives, not to mention the 24 members of the Senate,
charged with the duties of legislation. Congress continues to
function well in the physical absence of one or a few of its
members. x x x Never has the call of a particular duty lifted a
prisoner into a different classification from those others who are
validly restrained by law.46 (Underscoring supplied)
Lastly, petitioner pleads for the same liberal treatment accorded certain
detention prisoners who have also been charged with non-bailable offenses,
like former President Joseph Estrada and former Governor Nur Misuari who
were allowed to attend "social functions." Finding no rhyme and reason in
the denial of the more serious request to perform the duties of a Senator,
petitioner harps on an alleged violation of the equal protection clause.
In arguing against maintaining double standards in the treatment of
detention prisoners, petitioner expressly admits that he intentionally did not
seek preferential treatment in the form of being placed under Senate
custody or house arrest,47 yet he at the same time, gripes about the granting
of house arrest to others.
Emergency or compelling temporary leaves from imprisonment are allowed
to all prisoners, at the discretion of the authorities or upon court
orders.48 That this discretion was gravely abused, petitioner failed to
establish. In fact, the trial court previously allowed petitioner to register as a
voter in December 2006, file his certificate of candidacy in February 2007,
cast his vote on May 14, 2007, be proclaimed as senator-elect, and take his
oath of office49 on June 29, 2007. In a seeming attempt to bind or twist the
hands of the trial court lest it be accused of taking a complete turnaround,50 petitioner largely banks on these prior grants to him and insists on
unending concessions and blanket authorizations.
Petitioners position fails. On the generality and permanence of his requests
alone, petitioners case fails to compare with the species of allowable
leaves. Jaloslos succinctly expounds:
x x x Allowing accused-appellant to attend congressional sessions
and committee meetings for five (5) days or more in a week will
virtually make him a free man with all the privileges appurtenant
to his position. Such an aberrant situation not only elevates
accused-appellants status to that of a special class, it also would
be a mockery of the purposes of the correction system.51
WHEREFORE, the petition is DISMISSED.
CIVIL

SERVICE
COMMISSION, petitioner,
DACOYCOY, respondent.

vs. PEDRO

O.

DECISION
PARDO, J.:
The case before us is an appeal via certiorari interposed by the Civil
Service Commission from a decision of the Court of Appeals ruling that
respondent Pedro O. Dacoycoy was not guilty of nepotism and declaring null
and void the Civil Service Commissions resolution dismissing him from the

service as Vocational School Administrator, Balicuatro College of Arts and

Trade, Allen, Northern Samar.
The facts may be succinctly related as follows:
On November 29, 1995, George P. Suan, a Citizens Crime Watch VicePresident, Allen Chapter, Northern Samar, filed with the Civil Service
Commission, Quezon City, a complaint against Pedro O. Dacoycoy, for
habitual drunkenness, misconduct and nepotism.[1]
After the fact-finding investigation, the Civil Service Regional Office
No. 8, Tacloban City, found a prima facie case against respondent, and, on
March 5, 1996, issued the corresponding formal charge against
him.[2] Accordingly, the Civil Service Commission conducted a formal
investigation, and, on January 28, 1997, the Civil Service Commission
promulgated its resolution finding no substantial evidence to support the
charge of habitual drunkenness and misconduct. However, the Civil Service
Commission found respondent Pedro O. Dacoycoy guilty of nepotism on two
counts as a result of the appointment of his two sons, Rito and Ped
Dacoycoy, as driver and utility worker, respectively, and their assignment
under his immediate supervision and control as the Vocational School
Administrator Balicuatro College of Arts and Trades, and imposed on him the
penalty of dismissal from the service.[3]
On February 25, 1997, respondent Dacoycoy filed a motion for
reconsideration;[4] however, on May 20, 1997, the Civil Service Commission
denied the motion.[5]
On July 18, 1997, respondent Dacoycoy filed with the Court of Appeals
a special civil action for certiorari with preliminary injunction[6] to set aside
the Civil Service Commissions resolutions.
On July 29, 1998, the Court of Appeals promulgated its decision
reversing and setting aside the decision of the Civil Service Commission,
ruling that respondent did not appoint or recommend his two sons Rito and
Ped, and, hence, was not guilty of nepotism. The Court further held that it is
the person who recommends or appoints who should be sanctioned, as it is
he who performs the prohibited act.[7]
Hence, this appeal.
On November 17, 1998, we required respondent to comment on the
petition within ten (10) days from notice.[8] On December 11, 1998,
respondent filed his comment
We give due course to the petition.
The basic issue raised is the scope of the ban on nepotism.
We agree with the Civil Service Commission that respondent Pedro O.
Dacoycoy was guilty of nepotism and correctly meted out the penalty of
dismissal from the service.
The law defines nepotism[9] as follows:
Sec. 59. Nepotism. (1) All appointments to the national, provincial, city
and municipal governments or in any branch or instrumentality thereof,
including government owned or controlled corporations, made in favor of a
relative of the appointing or recommending authority, or of the chief of the
bureau or office, or of the persons exercising immediate supervision over
him, are hereby prohibited.
As used in this Section, the word relative and members of the family
referred to are those related within the third degree either of consanguinity
or of affinity.
(2) The following are exempted from the operations of the rules on
nepotism: (a) persons employed in a confidential capacity, (b) teachers,
(c) physicians, and (d) members of the Armed Forces of the Philippines:
Provided, however, That in each particular instance full report of such
appointment shall be made to the Commission.
Under the definition of nepotism, one is guilty of nepotism if an
appointment is issued in favor of a relative within the third civil degree of
consanguinity or affinity of any of the following:

a) appointing authority;
b) recommending authority;
c) chief of the bureau or office, and
d) person exercising
appointee.

immediate

supervision

over

the

Clearly, there are four situations covered. In the last two mentioned
situations, it is immaterial who the appointing or recommending authority
is. To constitute a violation of the law, it suffices that an appointment is
extended or issued in favor of a relative within the third civil degree of
consanguinity or affinity of the chief of the bureau or office, or the person
exercising immediate supervision over the appointee.
Respondent Dacoycoy is the Vocational School Administrator,
Balicuatro College of Arts and Trades, Allen, Northern Samar. It is true that
he did not appoint or recommend his two sons to the positions of driver and
utility worker in the Balicuatro College of Arts and Trades. In fact, it was Mr.
Jaime Daclag, Head of the Vocational Department of the BCAT, who
recommended the appointment of Rito. Mr. Daclag's authority to
recommend the appointment of first level positions such as watchmen,
security guards, drivers, utility workers, and casuals and emergency laborers
for short durations of three to six months was recommended by respondent
Dacoycoy and approved by DECS Regional Director Eladio C. Dioko, with the
provision that such positions shall be under Mr. Daclags immediate
supervision. On July 1, 1992, Atty. Victorino B. Tirol II, Director III, DECS
Regional Office VIII, Palo, Leyte, appointed Rito Dacoycoy driver of the
school. On January 3, 1993, Mr. Daclag also appointed Ped Dacoycoy casual
utility worker. However, it was respondent Dacoycoy who certified that
funds are available for the proposed appointment of Rito Dacoycoy and
even rated his performance as very satisfactory. On the other hand, his
son Ped stated in his position description form that his father was his next
higher supervisor. The circumvention of the ban on nepotism is quite
obvious. Unquestionably, Mr. Daclag was a subordinate of respondent Pedro
O. Dacoycoy, who was the school administrator. He authorized Mr. Daclag to
recommend the appointment of first level employees under his immediate
supervision. Then Mr. Daclag recommended the appointment of
respondents two sons and placed them under respondents immediate
supervision serving as driver and utility worker of the school. Both positions
are career positions.
To our mind, the unseen but obvious hand of respondent Dacoycoy
was behind the appointing or recommending authority in the appointment of
his two sons. Clearly, he is guilty of nepotism.
At this point, we have necessarily to resolve the question of the party
adversely affected who may take an appeal from an adverse decision of the
appellate court in an administrative civil service disciplinary case. There is no
question that respondent Dacoycoy may appeal to the Court of Appeals from
the decision of the Civil Service Commission adverse to him.[10] He was the
respondent official meted out the penalty of dismissal from the service. On
appeal to the Court of Appeals, the court required the petitioner therein,
here respondent Dacoycoy, to implead the Civil Service Commission as public
respondent[11] as the government agency tasked with the duty to enforce the
constitutional and statutory provisions on the civil service.[12]
Subsequently, the Court of Appeals reversed the decision of the Civil
Service Commission and held respondent not guilty of nepotism. Who now
may appeal the decision of the Court of Appeals to the Supreme
Court? Certainly not the respondent, who was declared not guilty of the
charge. Nor the complainant George P. Suan, who was merely a witness for
the government.[13] Consequently, the Civil Service Commission has become
the party adversely affected by such ruling, which seriously prejudices the
civil service system. Hence, as an aggrieved party, it may appeal the decision
of the Court of Appeals to the Supreme Court.[14] By this ruling, we now
expressly abandon and overrule extant jurisprudence that the phrase party
adversely affected by the decision refers to the government employee
against whom the administrative case is filed for the purpose of disciplinary
action which may take the form of suspension, demotion in rank or salary,
transfer, removal or dismissal from office[15] and not included are cases
where the penalty imposed is suspension for not more then thirty (30) days
or fine in an amount not exceeding thirty days salary[16] or when the
respondent is exonerated of the charges, there is no occasion for

appeal.[17] In other words, we overrule prior decisions holding that the Civil
Service Law does not contemplate a review of decisions exonerating officers
or employees from administrative charges enunciated in Paredes v. Civil
Service Commission;[18] Mendez v. Civil Service Commission;[19] Magpale v.
Civil Service Commission;[20] Navarro v. Civil Service Commission and Export
Processing Zone Authority[21] and more recently Del Castillo v. Civil Service
Commission[22]
The Court of Appeals reliance on Debulgado vs. Civil Service
Commission,[23] to support its ruling is misplaced. The issues in Debulgado
are whether a promotional appointment is covered by the prohibition
against nepotism or the prohibition applies only to original appointments to
the civil service, and whether the Commission had gravely abused its
discretion in recalling and disapproving the promotional appointment given
to petitioner after the Commission had earlier approved that
appointment. Debulgado never even impliedly limited the coverage of the
ban on nepotism to only the appointing or recommending authority for
appointing a relative. Precisely, in Debulgado, the Court emphasized that
Section 59 means exactly what it says in plain and ordinary language: x x x
The public policy embodied in Section 59 is clearly fundamental in
importance, and the Court had neither authority nor inclination to dilute that
important public policy by introducing a qualification here or a distinction
there.[24]
Nepotism is one pernicious evil impeding the civil service and the
efficiency of its personnel. In Debulgado, we stressed that *T+the basic
purpose or objective of the prohibition against nepotism also strongly
indicates that the prohibition was intended to be a comprehensive
one.[25] The Court was unwilling to restrict and limit the scope of the
prohibition which is textually very broad and comprehensive.[26] If not within
the exceptions, it is a form of corruption that must be nipped in the bud or
bated whenever or wherever it raises its ugly head. As we said in an earlier
case what we need now is not only to punish the wrongdoers or reward the
outstanding civil servants, but also to plug the hidden gaps and potholes of
corruption as well as to insist on strict compliance with existing legal
procedures in order to abate any occasion for graft or circumvention of the
law.[27]
WHEREFORE, the Court hereby GRANTS the petition and REVERSES
the decision of the Court of Appeals in CA-G.R. SP No. 44711.
ACCORDINGLY, the Court REVIVES and AFFIRMS the resolutions of the
Civil Service Commission dated January 28, 1998 and September 30, 1998,
dismissing respondent Pedro O. Dacoycoy from the service.
No costs.
SO ORDERED.
ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA,
Petitioners,

G.R. No.

Present:

- versus -

OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON VILLASANTA,

ELMER DIZON,SALVADOR ADUL, and AGNES FABIAN,
Respondents,

PUNO, C
CARPIO,
CORONA
CARPIO M
VELASCO
NACHUR
LEONARD
BRION,
PERALTA
BERSAM
DEL CAST
ABAD,
VILLARA
PEREZ, a
MENDOZ

Promulg

April 23,
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

DECISION
CARPIO MORALES, J.:
The mayor thus ordered on January 8, 2002 Municipal Engineer
Jose Aquino (Aquino) to proceed with the construction of the projects based
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa
on the program of work and bill of materials he (Aquino) prepared with a
(Glenda) challenge the October 11, 2007 Decision and the December 13,
2007 Resolution of the Court of Appeals[1] in CA-G.R. SP No. 96889 affirming

total cost estimate of P222,000.

the Office of the Ombudsmans decision finding them guilty of Simple

Upon advice of Municipal Planning and Development Officer
Neglect of Duty.
Hernan Jason (Jason), the mayor included the projects in the list of local
government projects scheduled for bidding onJanuary 25, 2002 which,
Salumbides and Glenda were appointed in July 2001 as Municipal
together with the January 31, 2002 public bidding, failed.
Legal Officer/Administrator and Municipal Budget Officer, respectively, of
Tagkawayan, Quezon.
The mayor was to admit later his expectation or assumption of
risk on reimbursement:
Towards the end of 2001, Mayor Vicente Salumbides III (the
mayor) saw the urgent need to construct a two-classroom building with
fence (the projects) for the Tagkawayan Municipal High School[2] (TMHS)
since the public school in the poblacion area would no longer admit high
school freshmen starting school year 2002-2003. On how to solve the
classroom shortage, the mayor consulted Salumbides who suggested that the
construction of the two-classroom building be charged to the account of the
Maintenance and Other Operating Expenses/ Repair and Maintenance of
Facilities (MOOE/RMF) and implemented by administration, as had been
done in a previous classroom building project of the former mayor.

x x x It was my thinking that even if a bidder

emerges and gets these 2 projects which were at the
time on-going (although it was also my thinking then
that no bidder would possibly bid for these 2 projects as
these were cost-estimated very low-P150,000 for the 2room school building P72,000 for the fencing) he
(bidder) would be reasonable enough to reimburse
what I had so far spen[t] for the project. I said I
because up to the time of the failed 2 biddings I have
shouldered the vale of the laborers and I
requisitioned some materials on credit on my own
personal account, and not a single centavo was at the
time disbursed by our municipal treasury until all
requirements for negotiated purchase of the materials
for the project had been accomplished. As a matter of
fact, payments for the expenses on these 2 projects
have been made only starting19 March 2002. x x
x[4] (underscoring supplied)

Upon consultation, Glenda advised Salumbides in December 2001,

The construction of the projects commenced without any
that there were no more available funds that could be taken from the
approved appropriation and ahead of the public bidding. Salumbides was of
MOOE/RMF, but the savings of the municipal government were adequate to
the opinion that the projects were regular and legal, based on an earlier
fund

the

projects. She

added,

however,

that

the

approval

by
project that was implemented in the same manner, using the same source

the Sangguniang Bayan of a proposed supplemental budget must be

of fund and for the same reason of urgency which was allowed because the
secured.
building was considered merely temporary as the TMHS is set to be
transferred to an 8-hectare lot which the municipal government is presently
The members of the Sangguniang Bayan having already gone on
negotiating to buy.[5]
recess for the Christmas holidays, Glenda and Salumbides advised the mayor
Meanwhile, Aquino suggested to the Sangguniang Bayan the
to source the funds from theP1,000,000 MOOE/RMF allocation in the
approved Municipal Annual Budget for 2002.[3]

adoption of model guidelines in the implementation of infrastructure

projects to be executed by administration, while Councilor Coleta Sandro

(Coleta) sponsored a Resolution to ratify the projects and to authorize the

petitioners guilty of Simple Neglect of Duty, for which they were meted the

mayor to enter into a negotiated procurement. Both actions did not merit

penalty of suspension from office for a maximum period of six months with a

the approval of the Sangguniang Bayan.

stern warning against a similar repetition. It also approved on November 2,

2006 the March 27, 2006 Order[7] denying the motion for reconsideration.

On May 13, 2002, herein respondents Ricardo Agon, Ramon

Villasanta, Elmer Dizon, Salvador Adul and Agnes Fabian, all members of
the Sangguniang Bayan of Tagkawayan, filed with the Office of the

Their recourse to the appellate court having failed, petitioners

come before this Court via Rule 45 of the Rules of Court.

Ombudsman a complaint[6] against Salumbides and Glenda (hereafter

petitioners), the mayor, Coleta, Jason and Aquino.

For non-compliance with the rule on certification against forum

shopping, the petition merits outright dismissal. The verification portion of

The administrative aspect of the case, docketed as Case No. OMB-

the petition does not carry a certification against forum shopping.[8]

L-A-02-0276-E, charged petitioners et al. with Dishonesty, Grave Misconduct,

Gross Neglect of Duty, Conduct Prejudicial to the Best Interest of the Service,

The Court has distinguished the effects of non-compliance with the

and violation of the Commission on Audit (COA) Rules and the Local

requirement of verification and that of certification against forum

Government Code.

shopping. A defective

verification shall

be

treated

as

an

unsigned

pleading and thus produces no legal effect, subject to the discretion of the
By Order of June 14, 2002, the Office of the Ombudsman, denied the

court to allow the deficiency to be remedied, while the failure to certify

prayer to place petitioners et al. under preventive suspension pending

against forum shopping shall be cause for dismissal without prejudice, unless

investigation. By Order dated February 1, 2005, approved on April 11, 2005,

otherwise provided, and is not curable by amendment of the initiatory

it denied the motion for reconsideration but dropped the mayor and Coleta,

pleading.[9]

both elective officials, as respondents in the administrative case, the 2004

Petitioners disregard of the rules was not the first. Their motion

elections having mooted the case. The parties were thereupon directed to

for extension of time to file petition was previously denied by Resolution

submit their respective verified position papers to which petitioners, Jason

of January 15, 2008[10] for non-compliance with the required showing of

and Aquino complied by submitting a consolidated position paper on May 19,

competent proof of identity in the Affidavit of Service. The Court, by

2005.

Resolution

of March

4,

2008,[11] later

granted

their

motion

for

Meanwhile, in response to the subpoena duces tecum issued by the

reconsideration with motion to admit appeal (Motion with Appeal) that was

Office of the Ombudsman on February 18, 2005 requiring the regional officer

filed on February 18, 2008 or the last day of filing within the extended

of the COA to submit the post-audit report on the projects, Celerino Alviar,

period.

COA State Auditor II claimed by Affidavit of May 23, 2005 that the required

Moreover, in their Manifestation/Motion[12] filed a day later, petitioners

documents were among those razed by fire on April 14, 2004 that hit the
prayed only for the admission of nine additional copies of the Motion with
Office of the Municipal Accountant where they were temporarily stored due
Appeal due to honest inadvertence in earlier filing an insufficient number
to lack of space at the Provincial Auditors Office.
of copies. Petitioners were less than candid when they surreptitiously
submitted a Motion with Appeal which is different from the first set they had
On October 17, 2005, the Office of the Ombudsman approved the
submitted. The second set of Appeal includes specific Assignment of
September 9, 2005 Memorandum absolving Jason and Aquino, and finding

Errors[13] and

forum

al.,[24] Olivarez v. Judge Villaluz,[25] and Aguinaldo v. Santos[26] echoed the

shopping[14] embedded in the Verification. The two different Verifications

qualified rule that reelection of a public official does not bar prosecution for

were notarized by the same notary public and bear the same date and

crimes committed by him prior thereto.

already

contains

certification

against

document number.[15] The rectified verification with certification, however,

was filed beyond the reglementary period.

Consistently, the Court has reiterated the doctrine in a string of

recent jurisprudence including two cases involving a Senator and a Member

Its lapses aside, the petition just the same merits denial.
of the House of Representatives.[27]
Petitioners urge this Court to expand the settled doctrine of
condonation[16] to cover coterminous appointive officials who were

Salalima

v.

Guingona,

Jr.[28] and Mayor

Garcia

v.

Hon.

administratively charged along with the reelected official/appointing

Mojica[29] reinforced the doctrine. The condonation rule was applied even if

authority with infractions allegedly committed during their preceding term.

the administrative complaint was not filed before the reelection of the public
official, and even if the alleged misconduct occurred four days before the

The Court rejects petitioners thesis.

elections, respectively. Salalima did not distinguish as to the date of filing of

the administrative complaint, as long as the alleged misconduct was

More than 60 years ago, the Court in Pascual v. Hon. Provincial Board of

committed during the prior term, the precise timing or period of

Nueva Ecija[17] issued the landmark ruling that prohibits the disciplining of an

which Garcia did not further distinguish, as long as the wrongdoing that gave

elective official for a wrongful act committed during his immediately

rise to the public officials culpability was committed prior to the date of

preceding term of office. The Court explained that *t+he underlying theory

reelection.

is that each term is separate from other terms, and that thereelection to
office operates as a condonation of the officers previous misconduct to the

Petitioners theory is not novel.

extent of cutting off the right to remove him therefor.[18]

A parallel question was involved in Civil Service Commission v.
The Court should never remove a public officer
for acts done prior to his present term of office. To do
otherwise would be to deprive the people of their right
to elect their officers. When the people elect[e]d a man
to office, it must be assumed that they did this with
knowledge of his life and character, and that they
disregarded or forgave his faults or misconduct, if he
had been guilty of any. It is not for the court, by reason
of such faults or misconduct[,] to practically overrule
the will of the people.[19] (underscoring supplied)

Lizares v. Hechanova, et al.[20] replicated the doctrine. The Court

dismissed the petition in that case for being moot, the therein petitioner
having been duly reelected, is no longer amenable to administrative
sanctions.[21]

Ingco v. Sanchez, et al.[22] clarified that the condonation doctrine

does not apply to a criminal case.[23] Luciano v. The Provincial Governor, et

Sojor[30] where the Court found no basis to broaden the scope of the doctrine
of condonation:

Lastly, We do not agree with respondents

contention that his appointment to the position of
president of NORSU, despite the pending administrative
cases against him, served as a condonation by the BOR
of the alleged acts imputed to him. The doctrine this
Court laid
down
in Salalima
v.
Guingona,
Jr. and Aguinaldo v. Santos are inapplicable to the
present circumstances. Respondents in the mentioned
cases are elective officials, unlike respondent here who
is an appointed official. Indeed, election expresses the
sovereign will of the people. Under the principle of vox
populi est suprema lex, the re-election of a public
official may, indeed, supersede a pending
administrative case. The same cannot be said of a reappointment to a non-career position. There is no
sovereign will of the people to speak of when the BOR
re-appointed respondent Sojor to the post of university
president.[31] (emphasis and underscoring supplied)

Contrary to petitioners asseveration, the non-application of the

will of the people expressed through the ballot. In other words, there is

condonation doctrine to appointive officials does not violate the right to

neither subversion of the sovereign will nor disenfranchisement of the

equal protection of the law.

electorate to speak of, in the case of reappointed coterminous employees.

In the recent case of Quinto v. Commission on Elections,[32] the Court

It is the will of the populace, not the whim of one person who happens

applied the four-fold test in an equal protection challenge[33] against the

to be the appointing authority, that could extinguish an administrative

resign-to-run provision, wherein it discussed the material and substantive

liability. Since petitioners hold appointive positions, they cannot claim the

distinctions between elective and appointive officials that could well apply to

mandate of the electorate. The people cannot be charged with the

the doctrine of condonation:

presumption of full knowledge of the life and character of each and every
probable appointee of the elective official ahead of the latters actual

The equal protection of the law clause is against

undue favor and individual or class privilege, as well as
hostile discrimination or the oppression of inequality. It
is not intended to prohibit legislation which is limited
either in the object to which it is directed or by territory
within which it is to operate. It does not demand
absolute equality among residents; it merely requires
that all persons shall be treated alike, under like
circumstances and conditions both as to privileges
conferred and liabilities enforced. The equal protection
clause is not infringed by legislation which applies only
to those persons falling within a specified class, if it
applies alike to all persons within such class, and
reasonable grounds exist for making a distinction
between those who fall within such class and those who
do not.
Substantial distinctions clearly exist between
elective officials and appointive officials. The former
occupy their office by virtue of the mandate of the
electorate. They are elected to an office for a definite
term and may be removed therefrom only upon
stringent conditions. On the other hand, appointive
officials hold their office by virtue of their designation
thereto by an appointing authority. Some appointive
officials hold their office in a permanent capacity and
are entitled to security of tenure while others serve at
the pleasure of the appointing authority.

reelection.

Moreover, the unwarranted expansion of the Pascual doctrine would

set a dangerous precedent as it would, as respondents posit, provide civil
servants, particularly local government employees, with blanket immunity
from administrative liability that would spawn and breed abuse in the
bureaucracy.

Asserting want of conspiracy, petitioners implore this Court to sift

through the evidence and re-assess the factual findings. This the Court
cannot do, for being improper and immaterial.

Under Rule 45 of the Rules of Court, only questions of law may be

raised, since the Court is not a trier of facts.[34] As a rule, the Court is not to

xxxx
An election is the embodiment of the popular
will, perhaps the purest expression of the sovereign
power of the people. It involves the choice or selection
of candidates to public office by popular
vote. Considering that elected officials are put in office
by their constituents for a definite term, x x x complete
deference is accorded to the will of the electorate that
they be served by such officials until the end of the term
for which they were elected. In contrast, there is no
such expectation insofar as appointed officials are
concerned. (emphasis and underscoring supplied)

review evidence on record and assess the probative weight thereof. In the
present case, the appellate court affirmed the factual findings of the Office of
the Ombudsman, which rendered the factual questions beyond the province
of the Court.

Moreover, as correctly observed by respondents, the lack of conspiracy

cannot be appreciated in favor of petitioners who were found guilty of
simple neglect of duty, for if they conspired to act negligently, their infraction

The electorates condonation of the previous administrative infractions

of the reelected official cannot be extended to that of the reappointed
coterminous employees, the underlying basis of the rule being to uphold the

becomes intentional.[35] There can hardly be conspiracy to commit

negligence.[36]

Simple neglect of duty is defined as the failure to give proper attention

to a task expected from an employee resulting from either carelessness or

In Office of the Ombudsman v. Tongson,[42] the Court reminded the

indifference.[37] In the present case, petitioners fell short of the reasonable

therein respondents, who were guilty of simple neglect of duty, that

diligence required of them, for failing to exercise due care and prudence in

government funds must be disbursed only upon compliance with the

ascertaining the legal requirements and fiscal soundness of the projects

requirements provided by law and pertinent rules.

before stamping their imprimatur and giving their advice to their superior.
Simple neglect of duty is classified as a less grave offense punishable by
The appellate court correctly ruled that as municipal legal officer,

suspension without pay for one month and one day to six months. Finding

petitioner Salumbides failed to uphold the law and provide a sound legal

no alleged or established circumstance to warrant the imposition of the

assistance and support to the mayor in carrying out the delivery of basic

maximum penalty of six months, the Court finds the imposition of suspension

services and provisions of adequate facilities when he advised [the mayor] to

without pay for three months justified.

proceed with the construction of the subject projects without prior

competitive bidding.[38] As pointed out by the Office of the Solicitor

When a public officer takes an oath of office, he or she binds himself or

General, to absolve Salumbides is tantamount to allowing with impunity the

herself to faithfully perform the duties of the office and use reasonable skill

giving of erroneous or illegal advice, when by law he is precisely tasked to

and diligence, and to act primarily for the benefit of the public. Thus, in the

advise the mayor on matters related to upholding the rule of

discharge of duties, a public officer is to use that prudence, caution, and

law.[39] Indeed, a legal officer who renders a legal opinion on a course of

attention which careful persons use in the management of their affairs.[43]

action without any legal basis becomes no different from a lay person who
may approve the same because it appears justified.

Public service requires integrity and discipline. For this reason, public
servants must exhibit at all times the highest sense of honesty and

As regards petitioner Glenda, the appellate court held that the

dedication to duty. By the very nature of their duties and responsibilities,

improper use of government funds upon the direction of the mayor and prior

public officers and employees must faithfully adhere to hold sacred and

advice by the municipal legal officer did not relieve her of liability for willingly

render inviolate the constitutional principle that a public office is a public

cooperating rather than registering her written objection[40] as municipal

trust; and must at all times be accountable to the people, serve them with

budget officer.

utmost responsibility, integrity, loyalty and efficiency.[44]

Aside from the lack of competitive bidding, the appellate court,

WHEREFORE, the assailed Decision and Resolution of the Court of

pointing to the improper itemization of the expense, held that the funding

Appeals in CA-G.R. SP No. 96889 are AFFIRMED with MODIFICATION, in that

for the projects should have been taken from the capital outlays that refer

petitioners, Vicente Salumbides, Jr. and Glenda Araa, are suspended from

to the appropriations for the purchase of goods and services, the benefits of

office for three (3) months without pay.

which extend beyond the fiscal year and which add to the assets of the local

G.R. No. 185740

government unit. It added that current operating expenditures like

MOOE/RMF refer to appropriations for the purchase of goods and services
for the conduct of normal local government operations within the fiscal
year.[41]

July 23, 2013

THE PROVINCIAL GOVERNMENT OF CAMARINES NORTE, represented by

GOVERNOR
JESUS
O.
TYPOCO,
JR., Petitioner,
vs.
BEATRIZ O. GONZALES, Respondent.
CONCURRING AND DISSENTING OPINION

The questions raised in this petition are ( 1) whether the Local Government
Code (LGC) of 1991 reclassified the position of Provincial Administrator into
primarily confidential, a Non-Career service position; and (2) if in the
affirmative, whether such reclassification affects the tenure of respondent
Beatriz C. Gonzales (Gonzales) who was appointed Provincial Administrator in
a permanent capacity prior to the LGC's effectivity.
The LGC has classified the Provincial Administrator position to prirnarily
confidential, a Non-Career position.
Positions in the Civil Service are classified into Career and Non-Career
Service. Career Service is characterized by (1) entrance based on merit and
fitness to be determined as far as practicable by competitive examination, or
based on highly technical qualifications; (2) opportunity for advancement to
higher Career Service positions; and (3) security of tenure.1Positions under
this classification are also sub-classified according to appointment status
which may be either permanent or temporary. On the other hand, the NonCareer Service is characterized by ( l) entrance on bases other than those of
the usual tests of merit and fitness utilized for the career service; and (2)
tenure which is limited to a period specified by law, or which is co-terminus
with that of the appointing authority or subject to his pleasure, or which is
limited to the duration of a particular project for which purpose employment
was made.2
Prior to the LGC and by virtue of Laurel V v. Civil Service Commission,3 the
Provincial Administrator position was declared by this Court as not primarily
confidential but classified under Career Service, particularly as an open
career position which requires qualification in an appropriate examination
prior to appointment. However, upon the advent of the LGC, this
classification was altered pursuant to Section 480, Article X, Title V, Book 3
thereof which provides:
ARTICLE
THE ADMINISTRATOR

SECTION 480. Qualifications, Terms, Powers and Duties. (a) No person shall
be appointed administrator unless he is a citizen of the Philippines, a resident
of the local government unit concerned, of good moral character, a holder of
a college degree preferably in public administration, law or any other related
course from a recognized college or university, and a first grade civil service
eligible or its equivalent. He must have acquired experience in management
and administration work for at least five (5) years in the case of the provincial
or city administrator, and three (3) years in the case of municipal
administrator.
The term of administrator is co-terminous with that of his
appointing authority.
The appointment of an administrator shall be mandatory for the
provincial and city governments, and optional for the municipal
government.
(b) The administrator shall take charge of the office of the
administrator and shall:
(1) Develop plans and strategies and upon approval
thereof by the governor or mayor, as the case may be,
implement the same particularly those which have to
do with the management and administration-related
programs and projects which the governor or mayor is
empowered to implement and which the sanggunian is
empowered to provide for under this Code;
(2) In addition to the foregoing duties and functions,
the administrator shall:
(i) Assist in the coordination of the work of
all the officials of the local government unit,

under the supervision, direction, and

control of the governor or mayor, and for
this purpose, he may convene the chiefs of
offices and other officials of the local
government unit;
(ii) Establish and maintain a sound
personnel program for the local
government unit designed to promote
career development and uphold the merit
principle in the local government service;
(iii) Conduct a continuing organizational
development of the local government unit
with the end in view of instituting effective
administrative reforms;
(3) Be in the frontline of the delivery of administrative support
services, particularly those related to the situations during and in
the aftermath of man-made and natural disasters and calamities;
(4) Recommend to the sanggunian and advise the governor and
mayor, as the case may be, on all other matters relative to the
management and administration of the local government unit;
and (5) Exercise such other powers and perform such other duties
and functions as may be prescribed by law or ordinance.
The above-quoted duties and functions of a Provincial Administrator clearly
reflect the confidential nature of the position. As the one in charge of the
development and implementation of management and administrationrelated programs and projects of the provincial government, the Provincial
Administrator enjoys the Governors highest degree of trust in his ability,
integrity and loyalty. Complete trust and confidence must exist between the
two since essential management and administration programs of the
province are on the line. The need for a relationship based on trust and
confidence is vital to preserving between them the freedom of intimate
communication without embarrassment or freedom from misgivings of
betrayals of personal trust or confidential matters of the province. This was
affirmed by former Senator Aquilino Q. Pimentel, Jr. in his commentary in his
book, The Local Government Code Revisited,4 where he stated:
A good administrator can handle a large part of the day to day work of the x x
x governor. If he is competent and enjoys the full trust and confidence of the
x x x governor, he can accelerate the pace and expand the scope of the work
of any local government administration.
Also, a Provincial Administrators duties and functions can hardly be typified
as ordinary and routinary in character. He develops plans and strategies
relating to the management, administration-related programs and projects
of the provincial government and, with the approval of the Governor,
implements them. He coordinates the work of all officials under the
Governor, establishes and maintains a sound personnel program and
conducts a continuing organizational development of the provincial
government. He is in the frontline of the delivery of administrative support
services and even recommends to the Sanggunian Panlalawigan and advises
the Governor on all other matters about the management and
administration of the local government unit concerned. Clearly, a Provincial
Administrator enjoys wide latitude of discretion and authority in the
discharge of his/her duties and functions and this negates their ordinary and
routinary character.
Moreover, the Provincial Administrator submits directly to the Governor his
plans and strategies for the latters approval and also reports to him all
matters relative to the management and administration of the provincial
government. There is no intervening officer between them. Stated
otherwise, there is close proximity between the Governor and the Provincial
Administrator.

In view of the above and pursuant to the following guidelines laid down by
the Court in various cases with respect to the proper determination of
whether a position is primarily confidential, to wit: (1) that a primarily
confidential position is one which requires upon its occupant confidence that
is much more than the ordinary;5 (2) that it is the nature of the functions
attached to the position which ultimately determines whether a position is
primarily confidential6 which must not be routinary, ordinary and day to day
in character7 or mainly clerical;8 and, (3) that positions of a confidential
nature would be limited to those positions not separated from the position
of the appointing authority by an intervening public officer, or series of
public officers, in the bureaucratic hierarchy9 (proximity rule); I agree with
the ponencia that the LGC categorized the Provincial Administrator position
as primarily confidential, hence reclassified it from Career to Non-Career
Service position.

in Camarines Norte. The approval could only mean that the CSC then
classified the position of Provincial Administrator as embraced within the
Career Service since only positions under it are sub-classified as permanent.
This classification made by the CSC was later affirmed by the Court through
Laurel promulgated on October 28, 1991. Under these circumstances,
Gonzales already became entitled to enjoy one of the characteristics of a
Career Service position security of tenure.14 However, after more than
eight years of serving as a Provincial Administrator, Gonzales was dismissed
from her position under the guise that the then sitting Governor had lost his
trust and confidence on her considering that at that time the LGC was
already in effect.

Article 480 of the LGC did not affect the tenure of Gonzales

In Gabriel v. Domingo,16 therein petitioner Maximo Gabriel (Gabriel) was

originally issued a permanent appointment as Motor Vehicle Registrar I at
the Land Transportation Office. Thereafter, a reorganization took place by
virtue of EO 546.17Pursuant thereto, plantilla positions were renamed and
the position of Gabriel was changed to Transportation District Supervisor.
But after having filed a protest against appointees to a higher position to
which he applied and believed was more qualified, Gabriel was served a
casual appointment. Three days later, he was dismissed from the service. The
Court thus said:

The more crucial question now is whether the co-terminous status that
attaches to a primarily confidential position, alongside the express
declaration in Article 480 of the LGC that the term of a Provincial
Administrator is co-terminous with that of his appointing authority, affects
the tenure of Gonzales who was appointed to the said position in a
permanent status prior to the effectivity of the LGC. The answer to this
question will determine if Gonzales was validly dismissed due to lack of
confidence.
The ponencia points out that Congress has the power to create, abolish or
modify public offices and that pursuant to this power, it can change the
qualifications for and shorten the term of, existing statutory offices. It
concludes that although Gonzales was appointed in a permanent status, the
fact that Congress, through the LGC, categorized the term of a Provincial
Administrator as co-terminous it in effect converted such permanent status
into co-terminous. The ponencia thus declares that Gonzales can be validly
dismissed due to lack of confidence.
The power of Congress to create, abolish or modify public offices is not
doubted. Indeed, the "creation x x x abolition and reorganization of public
offices is primarily a legislative function. It is acknowledged that Congress
may abolish or reorganize any office it creates without impairing the officers
right to continue in the position held x x x provided that same is made in
good faith."10 However, I submit that the reclassification made by Congress
under Article 480 of the LGC cannot be made to apply to this case. Otherwise
stated, Article 480 of the LGC did not affect the tenure of Gonzales based on
the following considerations: (1) Gonzales was appointed to the said position
prior to the LGCs effectivity; (2) Gonzales had already acquired a legal right
to her permanent position, she having been issued, and having assumed, a
completed appointment. Hence, enjoys security of tenure as a permanent
appointee to the position of Provincial
Administrator; and (3) The Court had already ruled in Laurel that the position
of Provincial Administrator is under the Career Service; and finally, Executive
Order (EO) No. 50311 specifically and expressly provides that Provincial
Administrators who hold permanent appointments but whose terms were
declared by the LGC as co-terminous shall continue to enjoy their permanent
status until they vacate their positions.
Gonzales enjoys security of tenure as a permanent employee, hence, she
cannot be removed for a cause not provided by law for removing a
permanent appointee and without due process of law.
Security of tenure is a right of paramount value and this is precisely why it is
given specific recognition and guarantee by no less than the
Constitution.12 Hence, the Court will not hesitate to uphold an employees
right to security of tenure.13
Here, there can be no doubt that Gonzales deserves to be extended the
protection of the constitutionally enshrined right to security of tenure. As
may be recalled, Gonzales was appointed Provincial Administrator on April 1,
1991 in a permanent capacity or prior to the effectivity of the LGC. This
appointment was approved by the Civil Service Commission (CSC) Field Office

"A permanent employee remains a permanent employee unless he is validly

terminated."15

Under the Constitution, it is provided that the security of tenure of civil

servants shall be afforded protection. By this constitutional mandate,
government employees are protected against unjustified dismissals.
Petitioner, who started working for the government way back in 1961, was
already a holder of a permanent position at the time the reorganization
caused by Executive Order No. 546 took effect. This is evident from his
service record.
As observed by the Merit Systems Board, the casual appointment extended
to petitioner later on, which led to his sudden and unexpected termination
from the service, was made as a consequence of the protest he filed against
the appointment of the eleven appointees to the position of Transportation
District Supervisor III, and as such, it is illegal. This being the case, petitioner
remained a permanent employee in spite of the casual appointment
belatedly extended to him following the rule that a permanent employee
remains a permanent employee unless he is validly terminated. The principle
of non-dismissal except for cause applies to him.18
Similarly, in the instant case, Gonzales was originally issued a permanent
appointment. Subsequently, she was administratively charged and found
guilty of gross insubordination for which she was meted the penalty of six
months suspension. After serving her suspension, the CSC directed the
Provincial Government to reinstate her. Eventually, on October 10, 2000, the
Provincial Government informed the CSC that it will reinstate Gonzales
effective the following day, October 11, 2000, but would dismiss her for lack
of confidence the next day, October 12, 2000, on the premise that her
position had already become primarily confidential by virtue of the LGC.
Gonzales dismissal, however, as aptly found by the CA in its assailed
Decision, was without cause and effected without due process of law, hence,
illegal. This being the case, the pronouncement made in Gabriel that a
permanent employee remains a permanent employee unless he is validly
terminated finds application in this case.
Another case worth considering is Civil Service Commission v. Javier.19 The
Court therein concluded that the position of a Corporate Secretary in a
Government Owned and Controlled Corporation (GOCC) which at that time
was classified as a permanent career position, is primarily confidential in
nature. In recognizing the effect of such declaration on the tenure of
corporate secretaries appointed under a permanent status, the Court
elucidated:
The Court is aware that this decision has repercussions on the tenure of
other corporate secretaries in various GOCCs. The officers likely assumed
their positions on permanent career status, expecting protection for their

tenure and appointments, but are now re-classified as primarily confidential

appointees. Such concern is unfounded, however, since the statutes
themselves do not classify the position of corporate secretary as permanent
and career in nature. Moreover, there is no absolute guarantee that it will
not be classified as confidential when a dispute arises. As earlier stated, the
Court, by legal tradition, has the power to make a final determination as to
which positions in government are primarily confidential or otherwise. x x
x20 (Emphasis supplied)
It can thus be inferred from the above-quoted that had there been a prior
classification by statute or determination by the Court of the position of
Corporate Secretary as a permanent career position, permanent appointees
thereto could expect protection for their tenure and appointments. In the
instant case, a prior determination by the Court that the Provincial
Administrator position is a permanent career position exists by virtue of
Laurel. This was made at the time Gonzales had already assumed a
completed appointment as a Provincial Administrator under a permanent
status. Clearly, said judicial determination afforded Gonzales the protection
for her tenure and appointment. The security of tenure of a permanent
employee already attached to her, hence, she cannot be removed from office
for a cause not provided by law for removing a permanent appointee and
without due process of law.
EO 503 specifically and expressly provides for the tenure of a Provincial
Administrator who holds a permanent appointment prior to the effectivity of
the LGC.
On January 22, 1992, President Corazon C. Aquino issued EO 503. Wary that
the advent of the LGC would impinge on the security of tenure of not only
the personnel of the national government agencies and local government
units involved in the devolution brought about by the LGC, but also of such
other personnel otherwise affected, Section 2(a) of EO 503 provided certain
safeguards against termination,21 particularly paragraphs 5, 6, 8, 12,22 an
obvious indication that the executive department likewise sought to protect
and uphold the security of tenure of the personnel concerned. Section 2(a),
paragraph 8, specifically and expressly provides for the tenure of an
administrator, viz:
8. Incumbents of positions, namely administrator, legal officer and
information officer declared by the Code as co-terminous, who hold
permanent appointments, shall continue to enjoy their permanent status
until they vacate their positions. (Emphasis supplied)
It is crystal clear from the above provision that notwithstanding the express
declaration in Section 480 of the LGC that the term of an administrator is
coterminous with that of his appointing authority, deference is accorded to
the right to security of tenure of those holding the said position in a
permanent status prior to the LGCs effectivity.
The ponencia opines that EO 503 applies only to employees of the national
government whose functions are to be devolved to local government. I
disagree. EO 503 is entitled "PROVIDING FOR THE RULES AND REGULATIONS
IMPLEMENTING THE TRANSFER OF PERSONNEL AND ASSETS, LIABILITIES AND
RECORDS OF NATIONAL GOVERNMENT AGENCIES WHOSE FUNCTIONS ARE
TO BE DEVOLVED TO THE LOCAL GOVERNMENT UNITS AND FOR OTHER
RELATED PURPOSES." The phrase "AND FOR OTHER RELATED PURPOSES"
could encompass personnel not necessarily employed by national
government agencies but by local government units such as the
Administrator, the Legal Officer and the Information Officer, as enumerated
in Section 2(a), paragraph 8 thereof. The LGC declared their term to be coterminous with their appointing authority;23 thus, it is not farfetched to
conclude that they are the officers referred to in Section 2(a), paragraph 8 of
EO 503. This is even more so, considering that Section 480 of the LGC does
not provide whether the term of an incumbent Provincial Administrator
automatically becomes co-terminous with the appointing authority upon the
effectivity of the LGC. Section 2(a), paragraph 8, of EO 503 is considered to
have filled such crucial gap. The said provision enjoys the legal presumption
of validity. "Unless the law or rule is annulled in a direct proceeding, the legal
presumption of its validity stands."24 As such, there can be no other logical
conclusion than that Gonzales is entitled to continue to hold her position as
Provincial Administrator under a permanent status.

Finally, the ponencia declares that "all permanent officers and employees in
the civil service, regardless of whether they belong to the career or noncareer service category" have the right to security of tenure; as such, they
can only be removed for cause and with due process.
In the instant case, the CA correctly held that Gonzales dismissal was
without cause and effected without due process of law, hence illegal.
Records show that Gonzales was administratively charged with, and found
guilty of, insubordination. She was meted the penalty of six months
suspension which she served. Thereafter, she was dismissed from the service
based on the same set of factual circumstances for which she was charged
and eventually suspended. Notably, she was informed of her "reinstatement"
on the same day she was notified of her dismissal supposedly for lack of
confidence. Otherwise stated, by virtue of the letter dated October 10, 2000,
Gonzales was informed of her reinstatement effective October 11, 2000. But
even before she could expel a sigh of relief, the next paragraph of the same
letter already notified her of her termination effective the following day,
October 12, 2000. For better appreciation, the said letter is quoted below:
October 10, 2000 Ms. Beatriz O. Gonzales Provincial Administrator Provincial
Capitol Daet, Camarines Norte
Dear Mrs. Gonzales:
We received today your letter of even date, quoting the dispositive portion
of the CSC Resolution No. 002245, in relation to CSC Administrative Case No.
1171-91.
In compliance with the said CSC Resolution, you are considered reinstated as
Provincial Administrator effective October 11, 2000.
Be that as it may, considering that the position of Administrator whether
Provincial, Municipal or City, has been reclassified from Career position to
Non career position in line with the ruling in the case of Reyes, Carmencita
O., under Resolution No. 0001158, dated May 12, 2000, the nature of which
is highly confidential and co-terminous in nature, please be informed that
effective October 12, 2000, your services as Provincial Administrator is
terminated for LOSS OF CONFIDENCE.
As you may be aware of since we assumed as the duly elected Governor of
Camarines Norte on September 23, 1998; no new appointment has been
issued to you as Provincial Administrator.
Even in an Opinion of the CSC dated June 1, 1995, it has been opined that
appointment of a local administrator is co[-]terminous with the appointing
authority and needs to be renewed upon expiration of the term of office of
whoever appointed you, prior to our assumption as Governor.
Accordingly, you are advised not to report for work effective October 12,
2000.
Very truly yours,
(Signed)
EMMANUEL B. PIMENTEL25
In view of these, I submit that Gonzales has the right to security of tenure
and that she is entitled to continue to hold the position of Provincial
Administrator in a permanent status. Thus, her reinstatement thereto is
called for.
However, mindful of the fact that the present times and the exigencies of the
service would necessarily require Gonzales to discharge the duties and
functions of a Provincial Administrator laid down in Section 480 of the LGC
once she gets reinstated, a critical question thus arises: How can she
effectively discharge these duties and functions which as earlier discussed
necessitate the full trust and confidence of the incumbent governor when
she does not, in the first place, enjoy such trust and confidence? Under this

peculiar situation, the CSCs disquisition in its Resolution No. 061988

ordering the immediate reinstatement of Gonzales as Provincial
Administrator or to a comparable position of a permanent status, should the
former become untenable under the present situation, is appropriate. In
which case, neither the interest of service nor Gonzales security of tenure is
compromised. This is also in keeping with the Courts duty, as a dispenser of
justice, to find a solution that is both legal and realistic.26
All told, I find no error on the part of the CA in affirming the Orders of the
Civil Service Commission.
ACCORDINGLY, I vote to DENY the Petition.
MARIANO
Associate Justice

C.

DEL

CASTILLO

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa

City, petitioner, vs. THE COMMISSION ON ELECTIONS, THE
PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City,
PRA Interim Chairman Punong Bgy. MARK DAVID HAGEDORN,
PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA
Chairman and Presiding Officer Punong Bgy. EARL S. BUENVIAJE
and PRA Secretary Punong Bgy. CARLOS ABALLA, JR.respondents.

[G.R. No. 154683. November 12, 2002]

VICENTE

S. SANDOVAL, JR., petitioner, vs. THE

ELECTIONS, respondent.

COMMISSION

ON

[G.R. Nos. 155083-84. November 12, 2002]

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

SR., petitioners, vs. THE COMMISSION ON ELECTIONS, and
EDWARD S. HAGEDORN,respondents.
DECISION
CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari[1] seeking the

reversal of the resolutions issued by the Commission on Elections
(COMELEC for brevity) in relation to the recall election for mayor of Puerto
Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent

barangay officials of the Puerto Princesa convened themselves into a
Preparatory Recall Assembly (PRA for brevity) at the Gymnasium of
Barangay San Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to
initiate the recall[2] of Victorino Dennis M. Socrates (Socrates for brevity)
who assumed office as Puerto Princesas mayor on June 30, 2001. The

members of the PRA designated Mark David M. Hagedorn, president of the

Association of Barangay Captains, as interim chair of the PRA.
On the same date, the PRA passed Resolution No. 01-02 (Recall
Resolution for brevity) which declared its loss of confidence in Socrates and
called for his recall. The PRA requested the COMELEC to schedule the recall
election for mayor within 30 days from receipt of the Recall Resolution.
On July 16, 2002, Socrates filed with the COMELEC a petition,
docketed as E.M. No. 02-010 (RC), to nullify and deny due course to the
Recall Resolution.
On August 14, 2002, the COMELEC en banc[3] promulgated a resolution
dismissing for lack of merit Socrates petition. The COMELEC gave due
course to the Recall Resolution and scheduled the recall election on
September 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution
No. 5673 prescribing the calendar of activities and periods of certain
prohibited acts in connection with the recall election. The COMELEC fixed
the campaign period from August 27, 2002 to September 5, 2002 or a period
of 10 days.
On August 23, 2002, Edward M. Hagedorn (Hagedorn for brevity)
filed his certificate of candidacy for mayor in the recall election.
On August 17, 2002, Ma. Flores F. Adovo (Adovo for brevity) and
Merly E. Gilo (Gilo for brevity) filed a petition before the COMELEC,
docketed as SPA No. 02-492, to disqualify Hagedorn from running in the
recall election and to cancel his certificate of candidacy. On August 30, 2002,
a certain Bienvenido Ollave, Sr. (Ollave for brevity) filed a petition-inintervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On the
same date, a certain Genaro V. Manaay filed another petition, docketed as
SPA No. 02-539, against Hagedorn alleging substantially the same facts and
involving the same issues. The petitions were all anchored on the ground
that Hagedorn is disqualified from running for a fourth consecutive term,
having been elected and having served as mayor of the city for three (3)
consecutive full terms immediately prior to the instant recall election for the
same post. Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.
In a resolution promulgated on September 20, 2002, the COMELECs
First Division[4] dismissed for lack of merit SPA Nos. 02-492 and 02-539. The
COMELEC declared Hagedorn qualified to run in the recall election. The
COMELEC also reset the recall election from September 7, 2002 to
September 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a
resolution denying the motion for reconsideration of Adovo and Gilo. The
COMELEC affirmed the resolution declaring Hagedorn qualified to run in the
recall election.
Hence, the instant consolidated petitions.
G.R. No. 154512
Petitioner Socrates seeks to nullify the COMELEC en banc resolution
dated August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to the
Recall Resolution and scheduled the recall election on September 7, 2002.
Socrates alleges that the COMELEC gravely abused its discretion in
upholding the Recall Resolution. Socrates cites the following circumstances
as legal infirmities attending the convening of the PRA and its issuance of the
Recall Resolution: (1) not all members of the PRA were notified of the
meeting to adopt the resolution; (2) the proof of service of notice was
palpably and legally deficient; (3) the members of the PRA were themselves
seeking a new electoral mandate from their respective constituents; (4) the
adoption of the resolution was exercised with grave abuse of authority; and
(5) the PRA proceedings were conducted in a manner that violated his and
the publics constitutional right to information.
G.R. No. 154683
Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution
No. 5673 dated August 21, 2002 insofar as it fixed the recall election on
September 7, 2002, giving the candidates only a ten-day campaign
period. He prayed that the COMELEC be enjoined from holding the recall

election on September 7, 2002 and that a new date be fixed giving the
candidates at least an additional 15 days to campaign.
In a resolution dated September 3, 2002, the Court en banc enjoined
the COMELEC from implementing Resolution No. 5673 insofar as it fixed the
date of the recall election on September 7, 2002. The Court directed the
COMELEC to give the candidates an additional fifteen 15 days from
September 7, 2002 within which to campaign.

Petitioner Socrates argues that the COMELEC committed grave abuse

of discretion in upholding the Recall Resolution despite the absence of notice
to 130 PRA members and the defective service of notice to other PRA
members. The COMELEC, however, found that
On various dates, in the month of June 2002, the proponents for
the Recall of incumbent City Mayor Victorino Dennis M. Socrates
sent notices of the convening of the PRA to the members thereof
pursuant to Section 70 of the Local Government Code. Copies of the
said notice are in Volumes I and II entitled Notices to PRA. Likewise,
Proof of Service for each of the said notices were attached to the
Petition and marked as Annex G of Volumes II and III of the
Petition.

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

Resolution No. 5708 giving the candidates an additional 15 days from
September 7, 2002 within which to campaign. Thus, the COMELEC reset the
recall election to September 24, 2002.
G.R. Nos. 155083-84
Petitioners Adovo, Gilo and Ollave assail the COMELECs resolutions
dated September 20, 2002 and September 23, 2002 in SPA Nos. 02-492 and
02-539 declaring Hagedorn qualified to run for mayor in the recall
election. They likewise prayed for the issuance of a temporary restraining
order to enjoin the proclamation of the winning candidate in the recall
election.

Notices were likewise posted in conspicuous places particularly at

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

Petitioners argue that the COMELEC gravely abused its discretion in

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

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

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

COMELEC to desist from proclaiming any winning candidate in the recall
election until further orders from the Court. Petitioners were required to
post a P20,000 bond.

xxx
The City Election Officer of Puerto Princesa City in her Certification
dated 10 July 2002 certified that upon a thorough and careful
verification of the signatures appearing in PRA Resolution 01-02, x x
x the majority of all members of the PRA concerned approved said
resolution. She likewise certified that not a single
member/signatory of the PRA complained or objected as to the
veracity and authenticity of their signatures.

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

attached petition for intervention seeking the same reliefs as those sought by
Adovo, Gilo and Ollave.
In the meantime, Hagedorn garnered the highest number of votes in
the recall election with 20,238 votes. Rival candidates Socrates and Sandoval
obtained 17,220 votes and 13,241 votes, respectively.

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando,

in his Indorsement dated 10 July 2002, stated, upon proper review,
all documents submitted are found in order.

Hagedorn filed motions to lift the order restraining the COMELEC from
proclaiming the winning candidate and to allow him to assume office to give
effect to the will of the electorate.

The Acting Director IV, Region IV, in his study dated 30 July 2002
submitted the following recommendations:

On October 1, 2002, the Court granted Socrates motion for leave to

file a petition for intervention.

The Issues

The issues for resolution of the Court are:

1. In G.R. No. 154512, whether the COMELEC committed grave
abuse of discretion in giving due course to the Recall
Resolution and scheduling the recall election for mayor of
Puerto Princesa.
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run
for mayor in the recall election of Puerto Princesa on
September 24, 2002.
In G.R. No. 154683, the issue of whether the COMELEC committed
grave abuse of discretion in fixing a campaign period of only 10 days has
become moot. Our Resolution of September 3, 2002 and COMELEC
Resolution No. 5708 granted an additional 15 days for the campaign period
as prayed for by petitioner.

First Issue: Validity of the Recall Resolution.

This Office, after evaluating the documents filed, finds the instant Petition
sufficient in form and substance. That the PRA was validly constituted and
that the majority of all members thereof approved Resolution No. 01-02
calling for the recall of Mayor Victorino Dennis M. Socrates.
x x x .
This Court is bound by the findings of fact of the COMELEC on matters
within the competence and expertise of the COMELEC, unless the findings
are patently erroneous. In Malonzo v. COMELEC,[5]which also dealt with
alleged defective service of notice to PRA members, we ruled that
Needless to state, the issue of propriety of the notices sent to the
PRA members is factual in nature, and the determination of the
same is therefore a function of the COMELEC. In the absence of
patent error, or serious inconsistencies in the findings, the Court
should not disturb the same. The factual findings of the COMELEC,
based on its own assessments and duly supported by gathered
evidence, are conclusive upon the court, more so, in the absence of
a substantiated attack on the validity of the same.
In the instant case, we do not find any valid reason to hold that the
COMELECs findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt
the Recall Resolution on July 2, 2002 because a majority of PRA members

were seeking a new electoral mandate in the barangay elections scheduled

on July 15, 2002. This argument deserves scant consideration considering
that when the PRA members adopted the Recall Resolution their terms of
office had not yet expired. They were all de jure sangguniang barangay
members with no legal disqualification to participate in the recall assembly
under Section 70 of the Local Government Code.

further election after three terms, or whether there would be no immediate

reelection after three terms. This is clear from the following deliberations
of the Constitutional Commission:

Socrates bewails that the manner private respondents conducted the

PRA proceedings violated his constitutional right to information on matters
of public concern. Socrates, however, admits receiving notice of the PRA
meeting and of even sending his representative and counsel who were
present during the entire PRA proceedings. Proponents of the recall election
submitted to the COMELEC the Recall Resolution, minutes of the PRA
proceedings, the journal of the PRA assembly, attendance sheets, notices
sent to PRA members, and authenticated master list of barangay officials in
Puerto Princesa. Socrates had the right to examine and copy all these public
records in the official custody of the COMELEC. Socrates, however, does not
claim that the COMELEC denied him this right. There is no legal basis in
Socrates claim that respondents violated his constitutional right to
information on matters of public concern.

MR. ROMULO:[6] We are now ready to discuss the two issues, as

indicated on the blackboard, and these are Alternative No. I where
there is no further election after a total of three terms and
Alternative No. 2 where there is no immediate reelection after three
successive terms.[7]

Thus, we rule that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in scheduling
the recall election on September 24, 2002.

Second Issue: Hagedorns qualification to run for mayor

in the recall election of September 24, 2002.

The three-term limit rule for elective local officials is found in Section
8, Article X of the Constitution, which states:
Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be three
years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.
This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160,
otherwise known as the Local Government Code, which provides:
Section 43. Term of Office. (a) x x x
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of
the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which
the elective official was elected.
These constitutional and statutory provisions have two parts. The first
part provides that an elective local official cannot serve for more than three
consecutive terms. The clear intent is that onlyconsecutive terms count in
determining the three-term limit rule. The second part states that voluntary
renunciation of office for any length of time does not interrupt the continuity
of service. The clear intent is that involuntary severance from office for any
length of time interrupts continuity of service and prevents the service
before and after the interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot
seek immediate reelection for a fourth term. The prohibited election refers
to the next regular election for the same office following the end of the third
consecutive term. Any subsequent election, like a recall election, is no
longer covered by the prohibition for two reasons. First, a subsequent
election like a recall election is no longer an immediate reelection after three
consecutive terms. Second, the intervening period constitutes an involuntary
interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of
elective local officials, the question asked was whether there would be no

THE PRESIDENT:

The Acting Floor Leader is recognized.

The Journal of the Constitutional Commission reports the following

manifestation on the term of elective local officials:
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulo manifested that the Body
would proceed to the consideration of two issues on the term of
Representatives and local officials, namely: 1) Alternative No. 1 (no
further reelection after a total of three terms), and 2) Alternative No.
2 (no immediate reelection after three successive terms).[8]
The framers of the Constitution used the same no immediate reelection
question in voting for the term limits of Senators[9] and Representatives of
the House.[10]
Clearly, what the Constitution prohibits is an immediate reelection for
a fourth term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third consecutive term. A
recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate reelection to run in any other subsequent election involving the
same term of office. What the Constitution prohibits is aconsecutive fourth
term. The debates in the Constitutional Commission evidently show that the
prohibited election referred to by the framers of the Constitution is
the immediate reelection after the third term, not any other subsequent
election.
If the prohibition on elective local officials is applied to any election
within the three-year full term following the three-term limit, then Senators
should also be prohibited from running in any election within the six-year full
term following their two-term limit. The constitutional provision on the term
limit of Senators is worded exactly like the term limit of elective local
officials, thus:
No Senator shall serve for more than two consecutive
terms. Voluntary renunciation of the office for any length of time
shall not be considered as an interruption in the continuity of his
service for the full term for which he was elected.[11]
In the debates on the term limit of Senators, the following exchange in
the Constitutional Convention is instructive:
GASCON:[12]
I would like to ask a question with regard to the
issue after the second term. We will allow the Senator to rest for a
period of time before he can run again?
DAVIDE:[13]

That is correct.

GASCON:
And the question that we left behind before - if the
Gentleman will remember - was: How long will that period of rest
be? Will it be one election which is three years or one term which is
six years?

DAVIDE:
If the Gentleman will remember, Commissioner
Rodrigo expressed the view that during the election following the
expiration of the first 12 years, whether such election will be on the
third or on the sixth year thereafter, this particular member of the
Senate can run. So, it is not really a period of hibernation for six
years. That was the Committees stand.
GASCON:
So, effectively, the period of rest would be three
years at the least.[14] (Emphasis supplied)
The framers of the Constitution thus clarified that a Senator can run after
only three years[15] following his completion of two terms. The framers
expressly acknowledged that the prohibited election refers only to
the immediate reelection, and not to any subsequent election, during the
six-year period following the two term limit. The framers of the Constitution
did not intend the period of rest of an elective official who has reached his
term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate reelection
that the Constitution barred Hagedorn from seeking referred to the regular
elections in 2001. Hagedorn did not seek reelection in the 2001 elections.
Hagedorn was elected for three consecutive terms in the 1992, 1995
and 1998 elections and served in full his three consecutive terms as mayor of
Puerto Princesa. Under the Constitution and the Local Government Code,
Hagedorn could no longer run for mayor in the 2001 elections. The
Constitution and the Local Government Code disqualified Hagedorn, who had
reached the maximum three-term limit, from running for a fourth
consecutive term as mayor. Thus, Hagedorn did not run for mayor in the
2001 elections.[16] Socrates ran and won as mayor of Puerto Princesa in the
2001 elections. After Hagedorn ceased to be mayor on June 30, 2001, he
became a private citizen until the recall election of September 24, 2002 when
he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002,
the mayor of Puerto Princesa was Socrates. During the same period,
Hagedorn was simply a private citizen. This period is clearly an interruption
in the continuity of Hagedorns service as mayor, not because of his
voluntary renunciation, but because of a legal prohibition. Hagedorns three
consecutive terms ended on June 30, 2001. Hagedorns new recall term from
September 24, 2002 to June 30, 2004 is not a seamless continuation of his
previous three consecutive terms as mayor. One cannot stitch together
Hagedorns previous three-terms with his new recall term to make the recall
term a fourth consecutive term because factually it is not. An involuntary
interruption occurred from June 30, 2001 to September 24, 2002 which
broke the continuity or consecutive character of Hagedorns service as
mayor.
In Lonzanida v. Comelec,[17] the Court had occasion to explain
interruption of continuity of service in this manner:
x x x The second sentence of the constitutional provision under
scrutiny states, Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of
service for the full term for which he was elected. The clear intent
of the framers of the constitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the
same time respect the peoples choice and grant their elected official
full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the
computation of the three-term limit; conversely, involuntary
severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.
x x x. (Emphasis supplied)
In Hagedorns case, the nearly 15-month period he was out of office,
although short of a full term of three years, constituted an interruption in the
continuity of his service as mayor. The Constitution does not require the
interruption or hiatus to be a full term of three years. The clear intent is that
interruption for any length of time, as long as the cause is involuntary, is
sufficient to break an elective local officials continuity of service.

In the recent case of Adormeo v. Comelec and Talaga,[18] a unanimous

Court reiterated the rule that an interruption consisting of a portion of a
term of office breaks the continuity of service of an elective local
official. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full
terms as mayor of Lucena City. In his third bid for election as mayor in 1998,
Talaga lost to Bernard G. Tagarao. However, in the recall election of May 12,
2000, Talaga won and served the unexpired term of Tagarao from May 12,
2000 to June 30, 2001. When Talaga ran again for mayor in the 2001
elections, Raymundo Adormeo, the other candidate for mayor, petitioned for
Talagas disqualification on the ground that Talaga had already served three
consecutive terms as mayor.
Thus, the issue in Adormeo was whether Talagas recall term was a
continuation of his previous two terms so that he was deemed to have
already served three consecutive terms as mayor. The Court ruled that
Talaga was qualified to run in the 2001 elections, stating that the period from
June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the
continuity of his service as mayor. Talagas recall term as mayor was not
consecutive to his previous two terms because of this interruption, there
having been a break of almost two years during which time Tagarao was the
mayor.
We held in Adormeo that the period an elective local official is out of
office interrupts the continuity of his service and prevents his recall term
from being stitched together as a seamless continuation of his previous two
consecutive terms. In the instant case, we likewise hold that the nearly 15
months Hagedorn was out of office interrupted his continuity of service and
prevents his recall term from being stitched together as a seamless
continuation of his previous three consecutive terms. The only difference
between Adormeo and the instant case is the time of the
interruption. In Adormeo, the interruption occurred after the first two
consecutive terms. In the instant case, the interruption happened after the
first three consecutive terms. In both cases, the respondents were seeking
election for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he
assumed office after winning the recall election. Talagas recall term did not
retroact to include the tenure in office of his predecessor. If Talagas recall
term was made to so retroact, then he would have been disqualified to run in
the 2001 elections because he would already have served three consecutive
terms prior to the 2001 elections. One who wins and serves a recall term
does not serve the full term of his predecessor but only the unexpired
term. The period of time prior to the recall term, when another elective
official holds office, constitutes an interruption in continuity of
service. Clearly, Adormeo established the rule that the winner in the recall
election cannot be charged or credited with the full term of three years for
purposes of counting the consecutiveness of an elective officials terms in
office.
In the same manner, Hagedorns recall term does not retroact to
include the tenure in office of Socrates. Hagedorn can only be disqualified to
run in the September 24, 2002 recall election if the recall term is made to
retroact to June 30, 2001, for only then can the recall term constitute a
fourth consecutive term. But to consider Hagedorns recall term as a full
term of three years, retroacting to June 30, 2001, despite the fact that he
won his recall term only last September 24, 2002, is to ignore reality. This
Court cannot declare as consecutive or successive terms of office which
historically and factually are not.
Worse, to make Hagedorns recall term retroact to June 30, 2001
creates a legal fiction that unduly curtails the freedom of the people to
choose their leaders through popular elections. The concept of term limits is
in derogation of the sovereign will of the people to elect the leaders of their
own choosing. Term limits must be construed strictly to give the fullest
possible effect to the sovereign will of the people. As this Court aptly stated
in Borja, Jr. v. Comelec:
Thus, a consideration of the historical background of Art. X, 8 of
the Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom
of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal
put forth by Commissioner Edmundo F. Garcia that after serving
three consecutive terms or nine years there should be no further

reelection for local and legislative officials. Instead, they adopted

the alternative proposal of Commissioner Christian Monsod that
such officials be simply barred from running for the same position
in the succeeding election following the expiration of the third
consecutive term. Monsod warned against prescreening candidates
*from+ whom the people will choose as a result of the proposed
absolute disqualification, considering that the draft constitution
contained provisions recognizing people's power.[19] (Emphasis
supplied)
A necessary consequence of the interruption of continuity of service is
the start of a new term following the interruption. An official elected in
recall election serves the unexpired term of the recalled official. This
unexpired term is in itself one term for purposes of counting the three-term
limit. This is clear from the following discussion in the Constitutional
Commission:
SUAREZ:[20] For example, a special election is called for a Senator,
and the Senator newly elected would have to serve the unexpired
portion of the term. Would that mean that serving the unexpired
portion of the term is already considered one term? So, half a term,
which is actually the correct statement, plus one term would
disqualify the Senator concerned from running? Is that the meaning
of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of term, and if there is a special
election, he will serve only for the unexpired portion of that
particular term plus one more term for the Senator and two more
terms for the Members of the Lower House.[21]
Although the discussion referred to special elections for Senators and
Representatives of the House, the same principle applies to a recall election
of local officials. Otherwise, an elective local official who serves a recall term
can serve for more than nine consecutive years comprising of the recall term
plus the regular three full terms. A local official who serves a recall term
should know that the recall term is in itself one term although less than three
years. This is the inherent limitation he takes by running and winning in the
recall election.
In summary, we hold that Hagedorn is qualified to run in the
September 24, 2002 recall election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following
his three consecutive terms as mayor which ended on June
30, 2001;
2. Hagedorns continuity of service as mayor was involuntarily
interrupted from June 30, 2001 to September 24, 2002
during which time he was a private citizen;
3. Hagedorns recall term from September 24, 2002 to June 30,
2004 cannot be made to retroact to June 30, 2001 to make
a fourth consecutive term because factually the recall term
is not a fourth consecutive term; and
4. Term limits should be construed strictly to give the fullest
possible effect to the right of the electorate to choose their
leaders.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 15508384 are DISMISSED. The temporary restraining order issued by this Court on
September 24, 2002 enjoining the proclamation of the winning candidate for
mayor of Puerto Princesa in the recall election of September 24, 2002 is
lifted. No costs.
SO ORDERED.
G.R. No. L-30057 January 31, 1984
BRUNO
O.
APARRI, petitioner,
vs.
THE COURT OF APPEALS and LAND AUTHORITY, the latter in substitution

for REMEDIOS O. FORTICH, as Chairman, ANGELINO M. BANZON, RAFAEL B.

HILAO, VALERIANO PLANTILLA and SEVERO YAP, as members of the Board
of Directors of the defunct National Resettlement and Rehabilitation
Administration (NARRA),respondents.
Enrique D. Tayag for petitioner.
Magno B. Pablo and Cipriano A. Tan for respondent Land Authority.

MAKASIAR, J.:
This petition for certiorari seeks to review the decision of the then Court of
Appeals (now Intermediate Appellate Court under BP 129) dated September
24, 1968, affirming the decision of the then Court of First Instance (now
Regional Trial Court), the dispositive portion of which is as follows:
WHEREFORE, the judgment of the lower court insofar
as it decrees the dismissal of the present petition for
mandamus
is
hereby
affirmed,
without
pronouncement as to costs (p. 50, rec.).
The facts of the case are as follows:
On January 15, 1960, private respondents (as members of the Board of
Directors of the defunct National Resettlement and Rehabilitation
Administration created under Republic Act No. 1160, approved June 18, 1954
NARRA) approved the following resolution:
RESOLUTION NO. 13 (Series of 1960)
RESOLVED, as it is hereby resolved, to appoint Mr.
Bruno 0. Aparri, as General Manager of the National
Resettlement and Rehabilitation Administration
(NARRA) with all the rights, prerogatives and
compensation appurtenant thereto to take effect on
January 16, 1960);
RESOLVED FURTHER, as it is hereby resolved, to inform
the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).
Pursuant thereto, private respondent Remedies O. Fortich, in her capacity as
Chairman of the NARRA Board, appointed petitioner Bruno O. Aparri as
reflected in the following letter:

approval of the Agricultural Land Reform Code

9 (Republic Act No. 3844) and
thereby dismissing the instant petition without
6 pronouncement as to costs"
(p. 5, rec.).
0
Mr. Bruno O. Aparri c/o NARRA, Manila
SIR:
You are hereby appointed as GENERAL MANAGER in
the National Resettlement and Rehabilitation
Administration (NARRA) with compensation at the rate
of TWELVE THOUSAND (P12,000.00) PESOS per annum
the appointment to take effect January 16,1960 . . . .
REINSTATEMENT ... (p. 2, rec.).
The power of the Board of Directors of the NARRA to appoint the general
manager is provided for in paragraph (2),Section 8, Republic Act No. 1160
(approved June 18, 1954), to wit:
Sec. 8. Powers and Duties of the Board of Directors.
The Board of Directors shall have the following powers
and duties: ...
2) To appoint and fix the term of office of General
Manager ..., subject to the recommendation of the
Office of Economic Coordination and the approval of
the President of the Philippines, .... The Board, by a
majority vote of all members, may, for cause, upon
recommendation of the Office of Economic
Coordination and with the approval of the President of
the Philippines, suspend and/or remove the General
Manager and/or the Assistant General Manager (p. 46,
rec., emphasis supplied).
On March 15, 1962, the same Board of Directors approved the following
resolution:
RESOLUTION NO. 24 (Series of 1962)
WHEREAS, the Chairman of the Board has transmitted
to the Board of Directors the desire of the Office of the
President Malacanang, Manila, to fix the term of
office of the incumbent General Manager up to the
close of office hours on March 31, 1962, in accordance
with the provision of Section 8, sub-section 2 of R.A.
No. 1160;
NOW, THEREFORE, BE IT RESOLVED, as it is hereby
resolved, that the Board of Directors hereby fix, as it is
hereby fixed, the term of office of the incumbent
General Manager of the National Resettlement and
Rehabilitation Administration (NARRA) to March 31,
1962 (pp. 6-7, rec., emphasis supplied).
Petitioner filed a petition for mandamus with preliminary injunction with the
then Court of First Instance of Manila on March 29, 1962. The petition
prayed to annul the resolution of the NARRA Board dated March 15, 1962, to
command the Board to allow petitioner to continue in office as General
Manager until he vacates said office in accordance with law and to sentence
the private respondents jointly and severally to pay the petitioner actual
damages in the sum of P95,000.00, plus costs.
On August 8, 1963, when the case was still pending decision in the lower
court, Republic Act No. 3844, otherwise known as the Agricultural Land
Reform Code, took effect. The said law abolished the NARRA (Sec. 73, R.A.
3844) and transferred its functions and powers to the Land Authority. On
October 21, 1963, the then Court of First Instance of Manila rendered
judgment, finding "that this case has become academic by reason of the

On appeal to the then Court of Appeals, the appellate tribunal speaking

through then Mr. Justice Antonio C. Lucero, affirmed the decision of the
lower court. in dismissing the petition for mandamus. Pertinent provisions of
the decision are as follows:
xxx xxx xxx
In the light of the foregoing facts, it is evident that
Bruno O. Aparri accepted the position of General
Manager without fixed term and his appointment is, in
essence, terminable at the pleasure of the appointing
power which, in this case, is the Board of Directors.
Where, as in the case at bar, the appointing officer,
that is, the Board of Directors, had fixed the term of
office of the incumbent Manager to end on March 31,
1962, the replacement of Bruno O. Aparri is not
removal but by reason of the term of his office which is
one of the recognized modes of terminating official
relations. Considering that the term of office of the
General Manager of the NARRA is not fixed by law nor
has it been fixed by the Board of Directors at the time
of his appointment although it had the power to do so,
it is obvious that the term of office of herein petitioner
Bruno O. Aparri expired on March 31, 1962 and his
right to hold the said office was thereby extinguished.
In other words, Bruno O. Aparri cessation from office
invokes no removal but merely the expiration of the
term of office which was within the power of the Board
of Directors to fix. Hence, Bruno O. Aparri continues
only for so long as the term of his office has not ended
(Alba vs. Hon. Jose N. Evangelists, 100 Phil. 683)
[Decision of the Court of Appeals, pp. 48-49, rec.,
emphasis supplied].
The motion for reconsideration by petitioner in the then Court of Appeals
was denied on January 10, 1969.
On January 20, 1969, the petitioner filed a petition for certiorari to review
the decision of the then Court of Appeals dated September 24, 1968 (pp. 141, rec.). The same was initially denied for lack of merit in a resolution dated
January 27, 1969 (p. 55, rec.); but on motion for reconsideration filed on
February 11, 1969, the petition was given due course (p. 66, rec.).
The only legal issue sought to be reviewed is whether or not Board
Resolution No. 24 (series of 1962) was a removal or dismissal of petitioner
without cause.
WE affirm. WE hold that the term of office of the petitioner expired on
March 31, 1962.
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 exercise by him for the benefit
of the public ([Mechem Public Offices and Officers,] Sec. 1). The right to hold
a public office under our political system is therefore not a natural right. It
exists, when it exists at all only because and by virtue of some law expressly
or impliedly creating and conferring it (Mechem Ibid., Sec. 64). There is no
such thing as a vested interest or an estate in an office, or even an absolute
right to hold office. Excepting constitutional offices which provide for special
immunity as regards salary and tenure, no one can be said to have any
vested right in an office or its salary (42 Am. Jur. 881).

The National Resettlement and Rehabilitation Administration (NARRA) was

created under Republic Act No. 1160 (approved June 18,1954), which
provides that:
Sec.
2.
NATIONAL
RESETTLEMENT
AND
REHABILITATION ADMINISTRATION ... there is
hereby created a corporation to be known as National
Resettlement and Rehabilitation Administration
hereafter referred to as "NARRA" to perform under the
supervision and control of the President of the
Philippines, through the Office of Economic
Coordinator all the duties and functions of the Bureau
of Lands as provided for in Commonwealth Act
numbered Six Hundred and Ninety-one, as amended,
and such other duties as are hereinafter specified in
this Act. It shall be headed by a General Manager and
an Assistant Manager who shall be appointed as
hereinafter provided (emphasis supplied).
Paragraph 2, Section 8 of Republic Act 1160 expressly gives to the Board of
Directors of the NARRA the power "to appoint and fix the term of office of
the general manager ... subject to the recommendation of Economic
Coordination and the approval of the President of the Philippines" (emphasis
supplied).
By "appointment" is meant the act of designation by the executive officer,
board or body, to whom that power has been delegated, of the individual
who is to exercise the functions of a given office (Mechem op. cit., Sec. 102).
When the power of appointment is absolute, and the appointee has been
determined upon, no further consent or approval is necessary, and the
formal evidence of the appointment, the commission, may issue at once.
Where, however, the assent or confirmationof some other officer or body is
required, the Commission can issue or the appointment is complete only
when such assent or condition is obtained (People vs. Bissell, 49 Cal. 407). To
constitute an "appointment" to office, there must be some open,
unequivocal act of appointment on the part of the appointing authority
empowered to make it, and it may be said that an appointment to office is
made and is complete when the last act required of the appointing authority
has been performed (Molnar vs. City of Aurora, 348 N.E. 2d 262, 38 III App.
3d 580). In either case, the appointment becomes complete when the last
act required of the appointing power is performed (State vs. Barbour, 53
Conn. 76, 55 Am. Rep. 65).
The petitioner was appointed as general manager pursuant to Resolution No.
13 (series of 1960 approved on January 15, 1960) of the Board of
Directors. A careful perusal of the resolution points out the fact that the
appointment is by itself incomplete because of the lack of approval of the
President of the Philippines to such appointment. Thus, We note that
Resolution No. 13 states:
xxx xxx xxx
... RESOLVED FURTHER, as it is hereby resolved, to
inform the President of the Philippines of the above
appointment of Mr. Aparri (p. 2, rec.).

petitioner up to the close of office hours on March 31, 1962. The questioned
resolution corrected whatever requisite lacking in the earlier Resolution No.
13 of the respondent Board. Resolution No. 24, approved by the respondent
Board and pursuant to "the desire of the President" legally fixed the term of
office of petitioner as mandated by paragraph 2, Section 8 of Republic Act
1160.
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 (Sueppel vs. City
Council of Iowa City, 136 N.W. 2D 523, quoting 67 CJS OFFICERS, secs. 42,
54[1]). According to Mochem, the term of office is the period during which
an office may be held. Upon the expiration of the officer's term, unless he is
authorized by law to hold over, his rights, duties and authority as a pubic
officer must ipso facto cease (Mechem, op. cit., Secs. 396-397). In the law on
Public Officers, the most natural and frequent method by which a public
officer ceases to be such is by the expiration of the term for which he was
elected or appointed. The question of when this event has occurred depends
upon a number of considerations, the most prominent of which, perhaps, are
whether he was originally elected or appointed for a definite term or for a
term dependent upon some act or event ... (Mechem op. cit., Sec. 384).
It is necessary in each case to interpret the word "term" with the purview of
statutes so as to effectuate the statutory scheme pertaining to the office
under examination (Barber vs. Blue, 417 P.2D 401, 51 Cal. Rptr. 865, 65 C.2d
N5). In the case at bar, the term of office is not fixed by law. However, the
power to fix the term is vested in the Board of Directorssubject to the
recommendation of the Office of Economic Coordination and the approval of
the President of the Philippines. Resolution No. 24 (series of 1962) speaks of
no removal but an expiration of the term of office of the petitioner. The
statute is undeniably clear. It is the rule in statutory construction that if the
words and phrase of a statute are not obscure or ambiguous, its meaning
and the intention of the legislature must be determined from the language
employed, and, where there is no ambiguity in the words, there is no room
for construction (Black on Interpretation of Laws, Sec. 51). The courts may
not speculate as to the probable intent of the legislature apart from the
words (Hondoras vs. Soto, 8 Am. St., Rep. 744). The reason for the rule is that
the legislature must be presumed to know the meaning of words, to have
used words advisedly and to have expressed its intent by the use of such
words as are found in the statute (50 Am. Jur. p. 212).
Removal entails the ouster of an incumbent before the expiration of his term
(Manalang vs. Quitoriano, 50 O.G. 2515). The petitioner in this case was not
removed before the expiration of his term. Rather, his right to hold the office
ceased by the expiration on March 31, 1962 of his term to hold such office.
WHEREFORE, THE DECISION APPEALED FROM IS HEREBY AFFIRMED.
WITHOUT COSTS.
SO ORDERED.
RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS
and RAMON Y. TALAGA, JR., respondents.
DECISION
QUISUMBING, J.:

Presumably, the Board of Directors of the NARRA expected that such

appointment be given approval by the then President. Lacking such approval
by the President as required by the law (par. 2, Sec. 8 of R.A. 1160), the
appointment of petitioner was not complete. The petitioner can, at best, be
classified as a de facto officer because he assumed office "under color of a
known appointment or election, void because the officer was not eligible or
because there was a want of power in the electing body, or by reasons of
some defect or irregularity in its exercise, such ineligibility, want of power, or
defect being unknown to the public" (State vs. Carroll, 38 Conn. 449, 9Am.
Rep. 409).
However, such appointment was made complete upon approval of
Resolution No. 24 (series of 1962-approved March 15, 1962) wherein the
President submitted to the Board his "desire" to fix the term of office of the

Before us is a petition for certiorari, with a prayer for a writ of

preliminary injunction and/or temporary restraining order, to nullify and set
aside the resolution dated May 9, 2001 of public respondent Commission on
Elections in Comelec SPA No. 01-055, which granted the motion for
reconsideration and declared private respondent Ramon Y. Talaga, Jr.,
qualified to run for Mayor in Lucena City for the May 14, 2001
election. Petitioner prays that votes cast in private respondents favor
should not be counted; and should it happen that private respondent had
been already proclaimed the winner, his proclamation should be declared
null and void.
The uncontroverted facts are as follows:

Petitioner and private respondent were the only candidates who filed
their certificates of candidacy for mayor of Lucena City in the May 14,
2001 elections. Private respondent was then the incumbent mayor.

serve the three (3) consecutive terms, and his loss in the May 11, 1998
elections is considered an interruption in the continuity of his service as
Mayor of Lucena City.

Private respondent Talaga, Jr. was elected mayor in May 1992. He

served the full term. Again, he was re-elected in 1995-1998. In the election of
1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000,
he again won and served the unexpired term of Tagarao until June 30, 2001.

On May 19, 2001, after canvassing, private respondent was

proclaimed as the duly elected Mayor of Lucena City.

On March 2, 2001, petitioner filed with the Office of the Provincial

Election Supervisor, Lucena City a Petition to Deny Due Course to or Cancel
Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on
the ground that the latter was elected and had served as city mayor for three
(3) consecutive terms as follows: (1) in the election of May 1992, where he
served the full term; (2) in the election of May 1995, where he again served
the full term; and, (3) in the recall election of May 12, 2000, where he served
only the unexpired term of Tagarao after having lost to Tagarao in the 1998
election. Petitioner contended that Talagas candidacy as Mayor constituted
a violation of 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.
On March 9, 2001, private respondent responded that he was not
elected City Mayor for three (3) consecutive terms but only for two (2)
consecutive terms. He pointed to his defeat in the 1998 election by Tagarao.
Because of his defeat the consecutiveness of his years as mayor was
interrupted, and thus his mayorship was not for three consecutive terms of
three years each. Respondent added that his service from May 12,
2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full
term, in the contemplation of the law and the Constitution. He
cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602, 611 (1999), as
authority to the effect that to apply disqualification under Section 8, Article X
of the Constitution, two (2) conditions must concur, to wit: (a) that the
official concerned has been elected for three consecutive terms in the same
local government post, and (b) that he has fully served three (3) consecutive
terms.
On April 20, 2001, the COMELEC, through the First Division, found
private respondent Ramon Y. Talaga, Jr. disqualified for the position of city
mayor on the ground that he had already served three (3) consecutive terms,
and his Certificate of Candidacy was ordered withdrawn and/or cancelled.
On April 27, 2001, private respondent filed a motion for
reconsideration reiterating that three (3) consecutive terms means
continuous service for nine (9) years and that the two (2) years service from
1998 to 2000 by Tagarao who defeated him in the election of 1998
prevented him from having three consecutive years of service. He added that
Tagaraos tenure from 1998 to 2000 could not be considered as a
continuation of his mayorship. He further alleged that the recall election was
not a regular election, but a separate special election specifically to remove
incompetent local officials.
On May 3, 2001, petitioner filed his Opposition to private respondents
Motion for Reconsideration stating therein that serving the unexpired term
of office is considered as one (1) term.[1] Petitioner further contended that
Article 8 of the Constitution speaks of term and does not mention
tenure. The fact that private respondent was not elected in the May 1998
election to start a term that began on June 30, 1998 was of no moment,
according to petitioner, and what matters is that respondent was elected to
an unexpired term in the recall election which should be considered one full
term from June 30, 1998 to June 30, 2001.
On May 9, 2001, the COMELEC en banc ruled in favor of private
respondent Ramon Y. Talaga, Jr.. It reversed the First Divisions ruling and
held that 1) respondent was not elected for three (3) consecutive terms
because he did not win in the May 11, 1998 elections; 2) that he was
installed only as mayor by reason of his victory in the recall elections; 3) that
his victory in the recall elections was not considered a term of office and is
not included in the 3-term disqualification rule, and 4) that he did not fully

Petitioner is now before this Court, raising the sole issue:

WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE
RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN
LUCENA CITY FOR THE MAY 14, 2001 ELECTIONS.[2]
Stated differently, was private respondent disqualified to run for
mayor of Lucena City in the May 14, 2001 elections?[3] This issue hinges on
whether, as provided by the Constitution, he had already served three
consecutive terms in that office.
Petitioner contends that private respondent was disqualified to run for
city mayor by reason of the three-term rule because the unexpired portion of
the term of office he served after winning a recall election, covering the
period May 12, 2000 to June 30, 2001 is considered a full term. He posits that
to interpret otherwise, private respondent would be serving four (4)
consecutive terms of 10 years, in violation of Section 8, Article X of 1987
Constitution[4] and Section 43 (b) of R.A. 7160, known as the Local
Government Code.
Section 43. Term of Office.
xxx
(b) No local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was elected.
Private respondent, in turn, maintains that his service as city mayor of
Lucena is not consecutive. He lost his bid for a second re-election in 1998
and between June 30, 1998 to May 12, 2000, during Tagaraos incumbency,
he was a private citizen, thus he had not been mayor for 3 consecutive
terms.
In its comment, the COMELEC restated its position that private
respondent was not elected for three (3) consecutive terms having lost his
third bid in the May 11, 1998 elections, said defeat is an interruption in the
continuity of service as city mayor of Lucena.
The issue before us was already addressed in Borja, Jr. vs. COMELEC,
295 SCRA 157, 169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve in the same
elective position. Consequently, 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. This point can be made clearer by considering
the following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after
that, can he run for one more term in the next election?
Yes, because he has served only two full terms successively.
xxx

To consider C as eligible for reelection would be in accord with the

understanding of the Constitutional Commission that while the people
should be protected from the evils that a monopoly of political power may
bring about, care should be taken that their freedom of choice is not unduly
curtailed.

Romeo Lonzanida, respondent. The assailed resolutions declared herein

petitioner Romeo Lonzanida disqualified to run for Mayor in the municipality
of San Antonio, Zambales in the May 1998 elections and that all votes cast in
his favor shall not be counted and if he has been proclaimed winner the said
proclamation is declared null and void.

This Court held that the two conditions for the application of the
disqualification must concur: a) 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.

Petitioner Romeo Lonzanida was duly elected and served two

consecutive terms as municipal mayor of San Antonio, Zambales prior to the
May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of
San Antonio, Zambales and was again proclaimed winner. He assumed office
and discharged the duties thereof. His proclamation in 1995 was however
contested by his then opponent Juan Alvez who filed an election protest
before the Regional Trial Court of Zambales, which in a decision dated
January 9, 1997 declared a failure of elections. The court ruled:

Accordingly, COMELECs ruling that private respondent was not

elected for three (3) consecutive terms should be upheld. For nearly two
years he was a private citizen. The continuity of his mayorship was disrupted
by his defeat in the 1998 elections.

PREMISES CONSIDERED, this court hereby renders judgment declaring the

results of the election for the office of the mayor in San Antonio, Zambales
last May 8, 1995 as null and void on the ground that there was a failure of
election.

Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611
(1999), we said,

Patently untenable is petitioners contention that COMELEC in

allowing respondent Talaga, Jr. to run in the May 1998 election violates
Article X, Section 8 of 1987 Constitution.[5] To bolster his case, respondent
adverts to the comment of Fr. Joaquin Bernas, a Constitutional Commission
member, stating that in interpreting said provision that if one is elected
representative to serve the unexpired term of another, that unexpired, no
matter how short, will be considered one term for the purpose of computing
the number of successive terms allowed.[6]
As pointed out by the COMELEC en banc, Fr. Bernas comment is
pertinent only to members of the House of Representatives. Unlike local
government officials, there is no recall election provided for members of
Congress.[7]
Neither can respondents victory in the recall election be deemed a
violation of Section 8, Article X of the Constitution as voluntary
renunciation for clearly it is not. In Lonzanida vs. COMELEC, we said:
The second sentence of the constitutional provision under scrutiny states,
Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for
which he was elected. The clear intent of the framers of the constitution to
bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and
grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced
term in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term provided
by law amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections, not by
voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance
from office is an interruption of continuity of service and thus, the petitioner
did not fully serve the 1995-1998 mayoral term.[8]
WHEREFORE, the instant petition is hereby DISMISSED. The resolution
of public respondent Commission on Elections dated May 9, 2001, in
Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner.
SO ORDERED.
ROMEO LONZANIDA, petitioner, vs. THE HONORABLE COMMISSION ON
ELECTION and EUFEMIO MULI, repondents.
DECISION
GONZAGA-REYES, J.:
This petition for certiorari under Rule 65 of the Rules of Court seeks to
set aside the resolutions issued by the COMELEC First Division dated May 21,
1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190
entitled, In the matter of the Petition to Disqualify Mayoralty Candidate
Romeo Lonzanida of San Antonio, Zambales. Eufemio Muli, petitioner, vs.

Accordingly, the office of the mayor of the Municipality of San Antonio,

Zambales is hereby declared vacant.
Both parties appealed to the COMELEC. On November 13, 1997 the
COMELEC resolved the election protest filed by Alvez and after a revision and
re-appreciation of the contested ballots declared Alvez the duly elected
mayor of San Antonio, Zambales by plurality of votes cast in his favor totaling
1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the
COMELEC issued a writ of execution ordering Lonzanida to vacate the post,
which obeyed, and Alvez assumed office for the remainder of the term.
In the May 11, 1998 elections Lonzanida again filed his certificate of
candidacy for mayor of San Antonio. On April 21, 1998 his opponent Eufemio
Muli timely filed a petition to disqualify Lonzanida from running for mayor of
San Antonio in the 1998 elections on the ground that he had served three
consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida
was proclaimed winner. On May 21, 1998 the First Division of the COMELEC
issued the questioned resolution granting the petition for disqualification
upon a finding that Lonzanida had served three consecutive terms as mayor
of San Antonio, Zambales and he is therefore disqualified to run for the same
post for the fourth time. The COMELEC found that Lonzanidas assumption
of office by virtue of his proclamation in May 1995, although he was later
unseated before the expiration of the term, should be counted as service for
one full term in computing the three term limit under the Constitution and
the Local Government Code. The finding of the COMELEC First Division was
affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.
Petitioner Lonzanida challenges the validity of the COMELEC
resolutions finding him disqualified to run for mayor of San Antonio
Zambales in the 1998 elections. He maintains that he was duly elected
mayor for only two consecutive terms and that his assumption of office in
1995 cannot be counted as service of a term for the purpose of applying the
three term limit for local government officials, because he was not the duly
elected mayor of San Antonio in the May 1995 elections as evidenced by the
COMELEC decision dated November 13, 1997 in EAC no. 6-97 entitled Juan
Alvez, Protestant-Appellee vs. Romeo Lonzanida, Protestee-Appellant,
wherein the COMELEC declared Juan Alvez as the duly elected mayor of San
Antonio, Zambales. Petitioner also argues that the COMELEC ceased to have
jurisdiction over the petition for disqualification after he was proclaimed
winner in the 1998 mayoral elections; as the proper remedy is a petition
for quo warranto with the appropriate regional trial court under Rule 36 of
the COMELEC Rules of Procedure.
Private respondent Eufemio Muli filed comment to the petition asking
this court to sustain the questioned resolutions of the COMELEC and to
uphold its jurisdiction over the petition for disqualification. The private
respondent states that the petition for disqualification was filed on April 21,
1998 or before the May 1998 mayoral elections. Under section 6, RA 6646
and Rule 25 of the COMELEC Rules of Procedure petitions for disqualification
filed with the COMELEC before the elections and/or proclamation of the
party sought to be disqualified may still be herd and decided by the
COMELEC after the election and proclamation of the said party without
distinction as to the alleged ground for disqualification, whether for acts

constituting an election offense or for ineligibility. Accordingly, it is argued

that the resolutions of the COMELEC on the merits of the petition for
disqualification were issued within the commissions jurisdiction. As regards
the merits of the case, the private respondent maintains that the petitioners
assumption of office in 1995 should be considered as service of one full term
because he discharged the duties of mayor for almost three years until
March 1, 1998 or barely a few months before the next mayoral elections.
The Solicitor-General filed comment to the petition for the respondent
COMELEC praying for the dismissal of the petition. The Solicitor-General
stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter I
of the Local Government Code which bar a local government official from
serving more than three consecutive terms in the same position speaks of
service of a term and so the rule should be examined in this light. The
public respondent contends that petitioner Lonzanida discharged the rights
and duties of mayor from 1995 to 1998 which should be counted as service
of one full term, albeit he was later unseated, because he served as mayor
for the greater part of the term. The issue of whether or not Lonzanida
served as a de jure or de facto mayor for the 1995-1998 term is
inconsequential in the application of the three term limit because the
prohibition speaks of service of a term which was intended by the framers
of the Constitution to foil any attempt to monopolize political power. It is
likewise argued by the respondent that a petition for quo warranto with the
regional trial court is proper when the petition for disqualification is filed
after the elections and so the instant petition for disqualification which was
filed before the elections may be resolved by the COMELEC thereafter
regardless of the imputed basis of disqualification.
The petitioner filed Reply to the comment. It is maintained that the
petitioner could not have served a valid term from 1995 to 1998 although he
assumed office as mayor for that period because he was no t lawfully elected
to the said office. Moreover, the petitioner was unseated before the
expiration of the term and so his service for the period cannot be considered
as one full term. As regards the issue of jurisdiction, the petitioner reiterated
in his Reply that the COMELEC ceased to have jurisdiction to hear the
election protest after the petitioners proclamation.
The petition has merit.

in the political arena by disqualifying officials from running for the same
office after a term of nine years. The mayor was compared by some
delegates to the President of the Republic as he is a powerful chief executive
of his political territory and is most likely to form a political dynasty. [1] The
drafters however, recognized and took note of the fact that some local
government officials run for office before they reach forty years of age; thus
to perpetually bar them from running for the same office after serving nine
consecutive years may deprive the people of qualified candidates to choose
from. As finally voted upon, it was agreed that an elective local government
official should be barred from running for the same post after three
consecutive terms. After a hiatus of at least one term, he may again run for
the same office.[2]
The scope of the constitutional provision barring elective officials with
the exception of barangay officials from serving more than three consecutive
terms was discussed at length in the case of Benjamin Borja, Jr., vs. COMELEC
and Jose Capco, Jr.[3] where the issue raised was whether a vice-mayor who
succeeds to the office of the mayor by operation of law upon the death of
the incumbent mayor and served the remainder of the term should be
considered to have served a term in that office for the purpose of computing
the three term limit. This court pointed out that from the discussions of the
Constitutional Convention it is evident that the delegates proceeded from
the premise that the officials assumption of office is by reason of
election. This Court stated:[4]
Two ideas emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term, derived
from the concern about the accumulation of power as a result of a prolonged
stay in office. The second is the idea of election, derived from the concern
that the right of the people to choose those whom they wish to govern them
be preserved.
It is likewise noteworthy that, in discussing term limits, the drafters of the
Constitution did so on the assumption that the officials concerned were
serving by reason of election. This is clear from the following exchange in the
Constitutional Commission concerning term limits, now embodied in Art. VI
sections 4 and 7 of the Constitution, for members of Congress:

Section 8, Art. X of the Constitution provides:

MR. GASCON. I would like to ask a question with regard to the issue
after the second term. We will allow the Senator to rest for a
period of time before he can run again?

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 officials
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.

MR. DAVIDE. That is correct.

MR. GASCON. And the question that we left behind before-if the
Gentlemen will remember-was: How long will that period of rest
be? Will it be one election which is three years or one term which
is six years?

Section 43 of the Local Government Code (R.A. No. 7160) restates the
same rule:

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo

expressed the view that during the election following the
expiration of the first 12 years, whether such election will be on
the third year or on the sixth year thereafter, his particular
member of the Senate can run. So it is not really a period of
hibernation for six years. That was the Committees stand.

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive
terms in the same position. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the continuity of
service for the full term for which the elective official concerned was
elected.
The issue before us is whether petitioner Lonzanidas assumption of
office as mayor of San Antonio Zambales from May 1995 to March 1998 may
be considered as service of one full term for the purpose of applying the
three-term limit for elective local government officials.
The records of the 1986 Constitutional Commission show that the
three-term limit which is now embodied in section 8, Art. X of the
Constitution was initially proposed to be an absolute bar to any elective local
government official from running for the same position after serving three
consecutive terms. The said disqualification was primarily intended to
forestall the accumulation of massive political power by an elective local
government official in a given locality in order to perpetuate his tenure in
office. The delegates also considered the need to broaden the choices of the
electorate of the candidates who will run for office, and to infuse new blood

xxxx

xxxx

xxxx

Second, not only historical examination but textual analysis as well supports
the ruling of the COMELEC that Art X, section 8 contemplates service by local
officials for three consecutive terms as a result of election. The first sentence
speaks of the term of office of elective local officials and bars such
officials from serving for more than three consecutive terms. The second
sentence, in explaining when an elective official may be deemed to have
served his full term of office, states that 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. The term
served must therefore be one for which the the official concerned was
elected. The purpose of the provision is to prevent a circumvention of the
limitation on the number of terms an elective official may serve.

This Court held that two conditions for the application of the disqualification
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. It stated:
To recapitulate, the term limit for elective local officials must be taken to
refer to the right to be elected as well as the right to serve in the same
elective position. Consequently, 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.
It is not disputed that the petitioner was previously elected and served
two consecutive terms as mayor of San Antonio Zambales prior to the May
1995 mayoral elections. In the May 1995 elections he again ran for mayor of
San Antonio, Zambales and was proclaimed winner. He assumed office and
discharged the rights and duties of mayor until March 1998 when he was
ordered to vacate the post by reason of the COMELEC decision dated
November 13, 1997 on the election protest against the petitioner which
declared his opponent Juan Alvez, the duly elected mayor of San
Antonio. Alvez served the remaining portion of the 1995-1998 mayoral term.
The two requisites for the application of the three term rule are
absent. First, the petitioner cannot be considered as having been duly
elected to the post in the May 1995 elections, and second, the petitioner did
not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office. After a re-appreciation and revision of the
contested ballots the COMELEC itself declared by final judgment that
petitioner Lonzanida lost in the May 1995 mayoral elections and his previous
proclamation as winner was declared null and void. 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. It has been repeatedly held by this court
that a proclamation subsequently declared void is no proclamation at
all[5] and while a proclaimed candidate may assume office on the strength of
the proclamation of the Board of Canvassers he is only a presumptive winner
who assumes office subject to the final outcome of the election
protest.[6] Petitioner Lonzanida did not serve a term as mayor of San Antonio,
Zambales from May 1995 to March 1998 because he was not duly elected to
the post; he merely assumed office as presumptive winner, which
presumption was later overturned by the COMELEC when it decided with
finality that Lonzanida lost in the May 1995 mayoral elections.
Second, the petitioner cannot be deemed to have served the May
1995 to 1998 term because he was ordered to vacate his post before the
expiration of the term. The respondents contention that the petitioner
should be deemed to have served one full term from May 1995-1998
because he served the greater portion of that term has no legal basis to
support it; it disregards the second requisite for the application of the
disqualification, i.e., that he has fully served three consecutive terms. The
second sentence of the constitutional provision under scrutiny states,
Voluntary renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for
which he was elected. The clear intent of the framers of the constitution to
bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and
grant their elected official full service of a term is evident in this
provision. Voluntary renunciation of a term does not cancel the renounced
term in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term porvided
by law amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections, not by
voluntary renunciation but in compliance with the legal process of writ of
execution issued by the COMELEC to that effect. Such involuntary severance
from office is an interruption of continuity of service and thus, the petitioner
did not fully serve the 1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he
did not hold office for the full term; hence, his assumption of office from May
1995 to March 1998 cannot be counted as a term for purposes of computing
the three term limit. The Resolution of the COMELEC finding him disqualified
on this ground to run in the May 1998 mayoral elections should therefore be
set aside.

The respondents harp on the delay in resolving the election protest

between petitioner and his then opponent Alvez which took roughly about
three years and resultantly extended the petitioners incumbency in an office
to which he was not lawfully elected. We note that such delay cannot be
imputed to the petitioner. There is no specific allegation nor proof that the
delay was due to any political maneuvering on his part to prolong his stay in
office. Moreover, protestant Alvez, was not without legal recourse to move
for the early resolution of the election protest while it was pending before
the regional trial court or to file a motion for the execution of the regional
trial courts decision declaring the position of mayor vacant and ordering the
vice-mayor to assume office while the appeal was pending with the
COMELEC. Such delay which is not here shown to have been intentionally
sought by the petitioner to prolong his stay in office cannot serve as basis to
bar his right to be elected and to serve his chosen local government post in
the succeeding mayoral election.
The petitioners contention that the COMELEC ceased to have
jurisdiction over the petition for disqualification after he was proclaimed
winner is without merit. The instant petition for disqualification was filed on
April 21, 1998 or before the May 1998 elections and was resolved on May 21,
1998 or after the petitioners proclamation. It was held in the case of
Sunga vs. COMELEC and Trinidad[7] that the proclamation nor the assumption
of office of a candidate against whom a petition for disqualification is
pending before the COMELEC does not divest the COMELEC of jurisdiction to
continue hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:
Sec. 6. Effects of disqualification Case.- any candidate who has been
declared by final judgment to be disqualified shall not be voted for, and the
votes cast for him shall not be counted. If for any reason a candidate is not
declared by final judgment before an election to be disqualified and he is
voted for and receives the winning number of votes in such election, the
court or commission shall continue with the trial and hearing of the action,
inquiry or protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the proclamation
of such candidate whenever the evidence of his guilt is strong.
This court held that the clear legislative intent is that the COMELEC
should continue the trial and hearing of the disqualification case to its
conclusion i.e., until judgment is rendered. The outright dismissal of the
petition for disqualification filed before the election but which remained
unresolved after the proclamation of the candidate sought to be disqualified
will unduly reward the said candidate and may encourage him to employ
delaying tactics to impede the resolution of the petition until after he has
been proclaimed.
The court stated:
Clearly, the legislative intent is that the COMELEC should continue the trial
and hearing of the disqualification case to its conclusion, i.e., until judgment
is rendered thereon. The word shall signified that this requirement of the
law is mandatory, operating to impose a positive duty which must be
enforced. Theimplication is that the COMELEC is left with no discretion but
to proceed with the disqualification case even after the election. Thus, in
providing for the outright dismissal of the disqualification case which remains
unresolved after the election, Silvestre vs. Duavit in effect disallows what R.
A. No. 6646 imperatively requires. This amounts to a quasi-judicial legislation
by the COMELEC which cannot be countenanced and is invalid for having
been issued beyond the scope of its authority. Interpretative rulings of
quasi-judicial bodies or administrative agencies must always be in perfect
harmony with statutes and should be for the sole purpose of carrying their
general provisions into effect. By such interpretative or administrative
rulings, of course, the scope of the law itself cannot be limited. Indeed, a
quasi-judicial body or an administrative agency for that matter cannot
amend an act of Congress. Hence, in case of a discrepancy between the basic
law and an interpretative or administrative ruling, the basic law prevails.
Besides, the deleterious effect of the Silvestre ruling is not difficult to
forsee. A candidate guilty of election offenses would be undeservedly
rewarded, instead of punished, by the dismissal of thedisqualification case
against him simply because the investigating body was unable, for any reason

caused upon it, to determine before the election if the offenses were indeed
committed by the candidate sought to be disqualified. All that the erring
aspirant would need to do is to employ delaying tactics so that the
disqualification case based on the commission of election offenses would not
be decided before the election. This scenario is productive of more fraud
which certainly is not the main intent and purpose of the law.
The fact that Trinidad was already proclaimed and had assumed the position
of mayor did not divest the COMELEC of authority and jurisdiction to
continue the hearing and eventually decide the disqualification case. In
Aguam v. COMELEC this Court held-

JOSEPH STANLEY ALEGRE and

COMMISSION ON ELECTIONS,
Respondents.
x----------------------------------------x
DECISION

GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the
Time and again this Court has given its imprimatur on the principle that
COMELEC is with authority to annul any canvass and proclamation which was
illegally made. The fact that a candidate proclaimed has assumed office, we
have said, is no bar to the exercise of such power. It of course may not be
availed of where there has been a valid proclamation. Since private
respondents petition before the COMELEC is precisely directed at the
annulment of the canvass and proclamation, we perceive that inquiry into
this issue is within the area allocated by the Constitution and law to
COMELEC xxx Really, were a victim of a proclamation to be precluded from
challenging the validity thereof after that proclamation and the assumption
of office thereunder, baneful effects may easily supervene.
It must be emphasized that the purpose of a disqualification proceeding is to
prevent the candidate from running or, if elected. From serving, or to
prosecute him for violation of the election laws. Obviously, the fact that a
candidate has been proclaimed elected does not signify that his
disqualification is deemed condoned and may no longer be the subject of a
separate investigation.
ACCORDINGLY, the petition is granted. The assailed resolutions of the
COMELEC declaring petitioner Lonzanida disqualified to run for mayor in the
1998 mayoral elections are hereby set aside.

Rules of Court to nullify and set aside certain issuances of the Commission on
Elections (COMELEC) en banc.

The first, docketed as G.R. No. 163295, is a petition for certiorari with
petitioner Francis G. Ong impugning the COMELEC en banc resolution[1] dated
May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph
Stanley Alegre's motion for reconsideration of the resolution dated March
31, 2004[2] of the COMELECs First Division.

The second, G.R. No. 163354, is for certiorari, prohibition and

mandamus, with application for injunctive relief, filed by petitioner Rommel

SO ORDERED.
FRANCIS

G.

ONG,
163295

G.R.
Petitioner,
P
resent:

Ong, brother of Francis, seeking, among other things, to stop the COMELEC
No.
from enforcing and implementing its aforesaid May 7, 2004 en
banc resolution in SPA Case No. 04-048 pending the outcome of the petition

PANGANIBAN,
C.J.
in G.R. No. 163295.
PUNO,
QUISUMBING,
YNARESPer its en banc Resolution of June 1, 2004, the Court ordered the
SANTIAGO,
SANDOVAL-GUTIERREZ,
CARPIO
AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
CALLEJO, SR.,
AZCUNA,
TINGA,
CHICO-NAZARIO, and
GARCIA, JJ.

- versus -

JOSEPH STANLEY ALEGRE and

COMMISSION ON ELECTIONS,
Respondents.
x---------------------x

Promulgated:
January 23, 2006

consolidation of these petitions.

The recourse stemmed from the following essential and

undisputed factual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis

Ong (Francis) were candidates who filed certificates of candidacy for mayor
of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was

ROMMEL G. ONG,
Petitioner,

then the incumbent mayor.

-

versus -

G.R. No. 163354

appeal filed by Ong, the case having become moot and

academic.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office

xxx

xxx

xx

a Petition to Disqualify, Deny Due Course and Cancel Certificate of

Candidacy[3] of Francis. Docketed as SPA Case No. 04-048, the petition to

On the basis of the words of the Highest Court

pronounced in the Lonzanida case and applicable in
the case at bench, Ong could not be considered as
having served as mayor from 1998 to 2001 because
he was not duly elected to the post; he merely
assumed office as a presumptive winner; which
presumption was later overturned when *the RTC+
decided with finality that [he] lost in the May 1998
elections. (Words in bracket and emphasis in the
original).

disqualify was predicated on the three-consecutive term rule, Francis having,

according to Alegre, ran in the May 1995, May 1998, and May 2001
mayoralty elections and have assumed office as mayor and discharged the
duties thereof for three (3) consecutive full terms corresponding to those
elections.

Undaunted, Alegre filed a timely motion for reconsideration,

To digress a bit, the May 1998 elections saw both Alegre and

contending, in the main, that there was a misapplication of the three-term

Francis opposing each other for the office of mayor of San Vicente,

rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs.

Camarines Norte, with the latter being subsequently proclaimed by

Comelec, infra.

COMELEC winner in that contest. Alegre subsequently filed an election

protest, docketed as Election Case No. 6850 before the Regional Trial Court
(RTC) at Daet, Camarines Norte. In it, the RTC declared Alegre as the duly
elected mayor in that 1998 mayoralty contest,[4] albeit the decision came out
only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty
term and was in fact already starting to serve the 2001-2004 term as mayorelect of the municipality of San Vicente.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a

resolution[6] reversing the March 31, 2004 resolution of the COMELECs First
Division and thereby (a) declaring Francis as disqualified to run for mayor of
San Vicente, Camarines Norte in the May 10, 2004; (b) ordering the
deletion of Francis name from the official list of candidates; and (c) directing
the concerned board of election inspectors not to count the votes cast in his
favor.

Acting on Alegres petition to disqualify and to cancel Francis certificate

of candidacy for the May 10, 2004 elections, the First Division of the
COMELEC rendered on March 31, 2004 a resolution[5] dismissing the said
petition of Alegre, rationalizing as follows:
We see the circumstances in the case now before
us analogous to those obtaining in the sample
situations addressed by the Highest Court in the Borja
case. Herein, one of the requisites for the application
of the three term rule is not present. Francis Ong might
have indeed fully served the mayoral terms of 1995 to
1998; 1998 to 2001 and 2001 to 2004. The mayoral
term however, from 1998 to 2001 cannot be
considered his because he was not duly elected
thereto. The [RTC] of Daet, Camarines Norte, Branch
41 has voided his election for the 1998 term when it
held, in its decision that Stanley Alegre was the legally
elected mayor in the 1998 mayoralty election in San
Vicente, Camarines Norte. This disposition had
become final after the [COMELEC] dismissed the

The following day, May 8, Francis received a fax machine copy of

the aforecited May 7, 2004 resolution, sending him posthaste to seek the
assistance of his political party, the Nationalist Peoples Coalition, which
immediately nominated his older brother, Rommel Ong (Rommel), as
substitute candidate. At about 5:05 p.m. of the very same day - which is past
the deadline for filing a certificate of candidacy, Rommel filed his own
certificate of candidacy for the position of mayor, as substitute candidate for
his brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre

filed a Petition to Deny Due Course to or Cancel Certificate of Rommel Ong.
2. Atty. Evillo C. Pormento, counsel for the Ong brothers,
addressed a letter[7] to Provincial Election Supervisor (PES) of Camarines
Norte Liza Z. Cario and Acting Election Officer Emily G. Basilonia in which he
appealed that, owing to the COMELECs inaction on Alegre's petition to
cancel Rommels certificate of candidacy, the name Rommel Ong be
included in the official certified list of candidates for mayor of San Vicente,
Camarines Norte. The desired listing was granted by the PES Carino.

On May 12, 2004, Francis filed before the Court a petition

for certiorari, presently docketed as G.R. No. 163295. His brother Rommels
petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No.

3. On May 10, 2004, Alegre wrote[8] to then COMELEC
Commissioner Virgilio Garcillano, Commissioner-in-Charge for Regions IV and
V, seeking clarification on the legality of the action thus taken by the PES
Cario. Responding, Commissioner Garcillano issued a Memorandum under
date May 10, 2004[9] addressed to PES Liza D. Zabala-Cario, ordering her to
implement the resolution of the COMELEC en banc in SPA No. 04-048
promulgated on May 7, 2004.[10] Said Memorandum partly stated:
The
undersigned ADOPTS the
recommendation of Atty. Alioden D. Dalaig [Director
IV, Law Department], which he quote your stand, "that
substitution is not proper if the certificate of the
substituted candidacy is denied due course. In the
Resolution of the Commission En banc, the Certificate
of candidacy of Francis Ong was denied due course,"
and elaborated further that:
"x x x there is an
existing
policy
of
the
Commission not to include the
name of a substitute candidate
in the certified list of candidates
unless the substitution is
approved by the Commission.

163295 and G.R. No. 163354 were consolidated.[13]

Meanwhile, on June 4, 2004, the COMELEC issued an order

dismissing private respondent Alegres Petition to Deny Due Course to or
Cancel Certificate of Candidacy of Rommel Ong, for being moot and
academic.[14]

The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuse of
discretion amounting to lack or excess of jurisdiction in issuing its en
banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified

In view, thereof, it is
recommended that 1) the
substitute certificate of candid
acy of Rommel Ong Gan Ong,
should be denied due course;
and 2) the election officer be
directed to delete his name from
the list of candidates."
The above position of the Commission was
in line with the pronouncement of Supreme Court in
Miranda vs. Abaya (311 SCRA 617) which states:
"There can no valid
substitution where a candidate is
excluded
not
only
by
disqualification but also by
denial and cancellation of his
certificate of candidacy."
In view thereof, you are hereby directed to
faithfully implement the said Resolution of the
Commission En Banc in SPA No. 04-048 promulgated
on May 7, 2004. (Emphasis in the original; words in
bracket added].

to run for Mayor of San Vicente, Camarines Norte in the May 10, 2004
elections and consequently ordering the deletion of his name from the
official list of candidates so that any vote cast in his favor shall be considered
stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse of

discretion when it denied due course to Rommels certificate of candidacy in
the same mayoralty election as substitute for his brother Francis.

A resolution of the issues thus formulated hinges on the question of

whether or not petitioner Franciss assumption of office as Mayor of San
Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be

4. Owing to the aforementioned Garcillano Memorandum, it

would seem that the Chairman of the Municipal Board of Canvasser of San
Vicente issued an order enjoining all concerned not to canvass the votes cast
for Rommel, prompting the latter to file a protest with that Board.[11]
5. On May 11, 2004, the Municipal Board of Canvassers
proclaimed Alegre as the winning candidate for the mayoralty post in San
Vicente, Camarines Norte.[12]

considered as full service for the purpose of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative.

Petitioner Francis, on the other hand, disagrees. He argues that, while he
indeed assumed office and discharged the duties as Mayor of San Vicente for

three consecutive terms, his proclamation as mayor-elect in the May 1998

can be no dispute about petitioner Francis Ong having been duly elected

election was contested and eventually nullified per the decision of the RTC of

mayor of that municipality in the May 1995 and again in the May 2001

Daet, Camarines Norte dated July 4, 2001. Pressing the point, petitioner

elections and serving the July 1, 1995- June 30, 1998 and the July 1, 2001-

argues, citing Lonzanida vs. Comelec[15], that a proclamation subsequently

June 30, 2004 terms in full. The herein controversy revolves around the

declared void is no proclamation at all and one assuming office on the

1998-2001 mayoral term, albeit there can also be no quibbling that Francis

strength of a protested proclamation does so as a presumptive winner and

ran for mayor of the same municipality in the May 1998 elections and

subject to the final outcome of the election protest.

actually served the 1998-2001 mayoral term by virtue of a proclamation

initially declaring him mayor-elect of the municipality of San Vicente. The

The three-term limit rule for elective local officials is found in Section 8,
question that begs to be addressed, therefore, is whether or not Franciss
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.

assumption of office as Mayor of San Vicente, Camarines Norte from July 1,

1998 to June 30, 2001, may be considered as one full term service in the
context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, service

for the full term, and should be counted as a full term served in
Section 43 (b) of the Local Government Code restates the same rule as
contemplation of the three-term limit prescribed by the constitutional and
follows:
statutory provisions, supra, barring local elective officials from being elected

Sec. 43. Term of Office.

xxx

xxx

xxx

(b) No local elective official shall serve for more

than three consecutive years in the same position.
Voluntary renunciation of the office for any length of
time shall not be considered an interruption in the
continuity of service for the full term for which the
elective official concerned was elected.

and serving for more than three consecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest

Case No. 6850,[17] that it was Francis opponent (Alegre) who won in the
1998 mayoralty race and, therefore, was the legally elected mayor of San
Vicente. However, that disposition, it must be stressed, was without practical

For the three-term limit for elective local government officials to apply,
and legal use and value, having been promulgated after the term of the
two conditions or requisites must concur, to wit: (1) that the official
contested office has expired. Petitioner Francis contention that he was only
concerned has been elected for three (3) consecutive terms in the same
a presumptive winner in the 1998 mayoralty derby as his proclamation was
local government post, and (2) that he has fully served three (3) consecutive
terms.[16]

under protest did not make him less than a duly elected mayor. His
proclamation by the Municipal Board of Canvassers of San Vicente as the

With the view we take of the case, the disqualifying requisites are
present herein, thus effectively barring petitioner Francis from running for
mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There

duly elected mayor in the 1998 mayoralty election coupled by his assumption
of office and his continuous exercise of the functions thereof from start to

finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.

The difference 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

The absurdity and the deleterious effect of a contrary view is not hard to
consequence thereof, the proclamation of Lonzanida as mayor-elect was
discern. Such contrary view would mean that Alegre would under the
nullified, followed by an order for him to vacate the office of mayor. For
three-term rule - be considered as having served a term by virtue of a
another, Lonzanida did not fully serve the 1995-1998 mayoral term, there
veritably meaningless electoral protest ruling, when another actually served
being an involuntary severance from office as a result of legal processes. In
such term pursuant to a proclamation made in due course after an
fine, there was an effective interruption of the continuity of service.
election.
On the other hand, the failure-of-election factor does not obtain
Petitioner cites, but, to our mind, cannot seek refuge from the
Courts

ruling

in, Lonzanida

vs.

Comelec,[18] citing Borja

vs.

Comelec[19]. In Lonzanida, petitioner Lonzanida was elected and served for

two consecutive terms as mayor of San Antonio, Zambales prior to the May
8, 1995 elections. He then ran again for the same position in the May 1995
elections, won and discharged his duties as Mayor. However, his opponent

in the present case. But more importantly, here, there was actually no
interruption or break in the continuity of Francis service respecting the
1998-2001 term. Unlike Lonzanida, Francis was never unseated during the
term in question; he never ceased discharging his duties and responsibilities
as mayor of San Vicente, Camarines Norte for the entire period covering the
1998-2001 term.

contested his proclamation and filed an election protest before the RTC of
The ascription, therefore, of grave abuse of discretion on the part
Zambales, which, in a decision dated January 9, 1997, ruled that there was a
of the COMELEC en banc when it disqualified Francis from running in the May
failure of elections and declared the position vacant. The COMELEC affirmed
10, 2004 elections for the mayoralty post of San Vicente and denying due
this ruling and petitioner Lonzanida acceded to the order to vacate the
course to his certificate of candidacy by force of the constitutional and
post. Lonzanida assumed the office and performed his duties up to March
statutory provisions regarding the three-term limit rule for any local elective
1998 only. Now, during the May 1998 elections, Lonzanida again ran for
official cannot be sustained. What the COMELEC en banc said in its May 7,
mayor of the same town. A petition to disqualify, under the three-term rule,
2004 assailed Resolution commends itself for concurrence:
was filed and was eventually granted. There, the Court held that Lonzanida
cannot be considered as having been duly elected to the post in the May
1995 election, and that he did not fully serve the 1995-1998 mayoralty term
by reason of involuntary relinquishment of office. As the Court pointedly
observed, Lonzanida cannot be deemed to have served the May 1995 to
1998 term because he was ordered to vacate [and in fact vacated] his
post before the expiration of the term.

As correctly pointed out by PetitionerMovant [Alegre]in applying the ruling in

the Borja and Lonzanida cases in the instant petition
will be erroneous because the factual milieu in those
cases is different from the one obtaining
here. Explicitly, the three-term limit was not made
applicable in the cases of Borja and Lonzanida because
there was an interruption in the continuity of service
of the three consecutive terms. Here, Respondent Ong
would have served continuously for three consecutive
terms, from 1995 to 2004. His full term from 1998 to
2001 could not be simply discounted on the basis that
he was not duly elected thereto on account of void
proclamation because it would have iniquitous effects
producing outright injustice and inequality as it
rewards a legally disqualified and repudiated loser with

a crown of victory. (Word in bracket added; emphasis

in the original)

Section 77 of the Code is clear and unequivocal that

only an official candidate of a registered or accredited
party may be substituted, there demonstrably cannot
be any possible substitution of a person whose
certificate of candidacy has been cancelled and denied
due course.

Given the foregoing consideration, the question of whether or not then

Commissioner Virgilio Garcillano overstepped his discretion when he issued
the May 10, 2004 Memorandum, ordering the implementation of aforesaid
May 7, 2004 COMELEC en banc resolution even before its finality[20] is now of
little moment and need not detain us any longer.

In any event, with the hard reality that the May 10, 2004 elections were
already pass, Rommel Ongs petition in G.R. No. 163354 is already moot and
academic.

Just as unmeritorious as Francis petition in G.R. No. 163295 is Rommels

petition in G.R. No. 163354 in which he (Rommel) challenges the COMELEC's
act of not including his name as a substitute candidate in the official list of

WHEREFORE, the instant petitions are DISMISSED and the assailed en

banc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04048 AFFIRMED.

candidates for the May 10, 2004 elections. As it were, existing COMELEC
policy[21] provides for the non-inclusion of the name of substitute candidates
in the certified list of candidates pending approval of the substitution.

Costs against petitioners.

SO ORDERED.

Not to be overlooked is the Courts holding in Miranda vs.

Abaya,[22] that a candidate whose certificate of candidacy has been cancelled
or not given due course cannot be substituted by another belonging to the
same political party as that of the former, thus:

DECISION

While there is no dispute as to whether or

not a nominee of a registered or accredited political
party may substitute for a candidate of the same party
who had been disqualified for any cause, this does not
include those cases where the certificate of candidacy
of the person to be substituted had been denied due
course and cancelled under Section 78 of the Code.
Expressio unius est exclusio alterius. While
the law enumerated the occasions where a candidate
may be validly substituted, there is no mention of the
case where a candidate is excluded not only by
disqualification but also by denial and cancellation of
his certificate of candidacy. Under the foregoing rule,
there can be no valid substitution for the latter case,
much in the same way that a nuisance candidate
whose certificate of candidacy is denied due course
and/or cancelled may not be substituted. If the intent
of the lawmakers were otherwise, they could have so
easily and conveniently included those persons whose
certificates of candidacy have been denied due course
and/or cancelled under the provisions of Section 78 of
the Code.
xxx

xxx

xxx

A person without a valid certificate of

candidacy cannot be considered a candidate in much
the same way as any person who has not filed any
certificate of candidacy at all can not, by any stretch of
the imagination, be a candidate at all.
xxx

xxx

ARSENIO A. LATASA, petitioner, vs. COMMISSION ON ELECTIONS, and

ROMEO SUNGA, respondents.

xxx

After having considered the importance of a

certificate of candidacy, it can be readily understood
why in Bautista [Bautista vs. Comelec, G.R. No. 133840,
November 13, 1998] we ruled that a person with a
cancelled certificate is no candidate at all. Applying
this principle to the case at bar and considering that

AZCUNA, J.:
This is a petition for certiorari under Rule 65 of the Rules of Court
which seeks to challenge the resolution issued by the First Division of the
Commission on Elections (COMELEC) dated April 27, 2001 in SPA Case No. 01059 entitled, Romeo M. Sunga, petitioner, versus Arsenio A. Latasa,
respondent, and the Resolution of the COMELEC en banc denying herein
petitioners Motion for Reconsideration. The assailed Resolution denied due
course to the certificate of candidacy of petitioner Arsenio A. Latasa,
declaring him disqualified to run for mayor of Digos City, Davao del Sur
Province in the May 14, 2001 elections, ordering that all votes cast in his
favor shall not be counted, and if he has been proclaimed winner, declaring
said proclamation null and void.
The facts are fairly simple.
Petitioner Arsenio A. Latasa, was elected mayor of
the Municipality of Digos, Davao del Sur in the elections of 1992, 1995, and
1998. During petitioners third term, the Municipality of Digos was declared
a component city, to be known as the City of Digos. A plebiscite conducted
on September 8, 2000 ratified Republic Act No. 8798 entitled, An Act
Converting the Municipality of Digos, Davao del Sur Province into a
Component City to be known as the City of Digos or the Charter of the City
of Digos. This event also marked the end of petitioners tenure as mayor of
the Municipality of Digos. However, under Section 53, Article IX of the
Charter, petitioner was mandated to serve in a hold-over capacity as mayor
of the new City of Digos. Hence, he took his oath as the city mayor.
On February 28, 2001, petitioner filed his certificate of candidacy for
city mayor for the May 14, 2001 elections. He stated therein that he is
eligible therefor, and likewise disclosed that he had already served for three
consecutive terms as mayor of the Municipality of Digos and is now running
for the first time for the position of city mayor.
On March 1, 2001, private respondent Romeo M. Sunga, also a
candidate for city mayor in the said elections, filed before the COMELEC a
Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or For
Disqualification[1] against petitioner Latasa. Respondent Sunga alleged
therein that petitioner falsely represented in his certificate of candidacy that

he is eligible to run as mayor ofDigos City since petitioner had already been
elected and served for three consecutive terms as mayor from 1992 to 2001.

the Constitution is an exception to this rule, in that it limits the range of

choice of the people.

On March 5, 2001, petitioner Latasa filed his Answer,[2] arguing that

he did not make any false representation in his certificate of candidacy since
he fully disclosed therein that he had served as mayor of
the Municipality of Digos for three consecutive terms. Moreover, he argued
that this fact does not bar him from filing a certificate of candidacy for
the May 14, 2001 elections since this will be the first time that he will be
running for the post of city mayor.

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.

Both parties submitted their position papers on March 19, 2001.[3]

On April 27, 2001, respondent COMELECs First Division issued a
Resolution, the dispositive portion of which reads, as follows:
Wherefore, premises considered, the respondents certificate of candidacy
should be cancelled for being a violation of the three (3)-term rule proscribed
by the 1987 Constitution and the Local Government Code of 1991.[4]
Petitioner filed his Motion for Reconsideration dated May 4,
2001,[5] which remained unacted upon until the day of the elections, May 14,
2001. On May 16, 2001, private respondent Sunga filed an Ex Parte Motion
for Issuance of Temporary Restraining Order Enjoining the City Board of
Canvassers From Canvassing or Tabulating Respondents Votes, and From
Proclaiming Him as the Duly Elected Mayor if He Wins the
Elections.[6] Despite this, however, petitioner Latasa was still proclaimed
winner on May 17, 2001, having garnered the most number of votes.
Consequently, private respondent Sunga filed, on May 27, 2001, a
Supplemental Motion[7] which essentially sought the annulment of
petitioners proclamation and the suspension of its effects.
On July 1, 2001, petitioner was sworn into and assumed his office as
the newly elected mayor of Digos City. It was only on August 27, 2002 that
the COMELEC en banc issued a Resolution denying petitioners Motion for
Reconsideration.
Hence, this petition.
It cannot be denied that the Court has previously held in MambaPerez v. COMELEC[8] that after an elective official has been proclaimed as
winner of the elections, the COMELEC has no jurisdiction to pass upon his
qualifications. An opposing partys remedies after proclamation would be to
file a petition for quo warranto within ten days after the proclamation.
On the other hand, certain peculiarities in the present case reveal the
fact that its very heart is something which this Court considers of paramount
interest. This Court notes from the very beginning that petitioner himself
was already entertaining some doubt as to whether or not he is indeed
eligible to run for city mayor in the May 14, 2001 elections. In his certificate
of candidacy, after the phrase I am eligible, petitioner inserted a footnote
and indicated:
*

Having served three (3) term[s] as municipal mayor and now running for the
first time as city mayor.[9]
Time and again, this Court has held that rules of procedure are only
tools designed to facilitate the attainment of justice, such that when rigid
application of the rules tend to frustrate rather than promote substantial
justice, this Court is empowered to suspend their operation. We will not
hesitate to set aside technicalities in favor of what is fair and just.[10]
The spirit embodied in a Constitutional provision must not be
attenuated by a rigid application of procedural rules.
The present case raises a novel issue with respect to an explicit
Constitutional mandate: whether or not petitioner Latasa is eligible to run as
candidate for the position of mayor of the newly-created City
of Digos immediately after he served for three consecutive terms as mayor of
the Municipality of Digos.
As a rule, in a representative democracy, the people should be
allowed freely to choose those who will govern them. Article X, Section 8 of

An examination of the historical background of the subject

Constitutional provision reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of choice
of the people as they were with preventing the monopolization of political
power. In fact, they rejected a proposal set forth by Commissioner Edmundo
Garcia that after serving three consecutive terms or nine years, there should
be no further re-election for local and legislative officials.[11] The members,
instead, adopted the alternative proposal of Commissioner Christian Monsod
that such officials be simply barred from running for the same position in the
succeeding election following the expiration of the third consecutive term:
MR. MONSOD:
Madam President, I was reflecting on this issue earlier
and I asked to speak because in this draft Constitution, we are recognizing
peoples power. We have said that now there is a new awareness, a new
kind of voter, a new kind of Filipino. And yet at the same time, we are
prescreening candidates among whom they will choose. We are saying that
this 48-member Constitutional Commission has decreed that those who have
served for a period of nine years are barred from running for the same
position.
The argument is that there may be other positions. But there are some
people who are very skilled and good at legislation, and yet are not of a
national stature to be Senators. They may be perfectly honest, perfectly
competent and with integrity. They get voted into office at the age of 25,
which is the age we provide for Congressmen. And at 34 years old we put
them into pasture.
Second, we say that we want to broaden the choices of the people. We are
talking here only of congressional or senatorial seats. We want to broaden
the peoples choice but we are making prejudgment today because we
exclude a certain number of people. We are, in effect, putting an additional
qualification for office that the officials must have not have served a total
of more than a number of years in their lifetime.
Third, we are saying that by putting people to pasture, we are creating a
reserve of statesmen, but the future participation of these statesmen is
limited. Their skills may be only in some areas, but we are saying that they
are going to be barred from running for the same position.
Madam President, the ability and capacity of a statesman depend as well on
the day-to-day honing of his skills and competence, in intellectual combat, in
concern and contact with the people, and here we are saying that he is going
to be barred from the same kind of public service.
I do not think it is in our place today to make such a very important and
momentous decision with respect to many of our countrymen in the future
who may have a lot more years ahead of them in the service of their country.
If we agree that we will make sure that these people do not set up structures
that will perpetuate them, then let us give them this rest period of three
years or whatever it is. Maybe during that time, we would even agree that
their fathers or mothers or relatives of the second degree should not
run. But let us not bar them for life after serving the public for number of
years.[12]
The framers of the Constitution, by including this exception, wanted to
establish some safeguards against the excessive accumulation of power as a
result of consecutive terms. As Commissioner Blas Ople stated during the
deliberations:

x x x I think we want to prevent future situations where, as a result of

continuous service and frequent re-elections, officials from the President
down to the municipal mayor tend to develop a proprietary interest in their
positions and to accumulate these powers and perquisites that permit them
to stay on indefinitely or to transfer these posts to members of their families
in a subsequent election. x x x [13]
An elective local official, therefore, is not barred from running again in
for same local government post, unless two conditions concur: 1.) that the
official concerned has been elected for three consecutive terms to the same
local government post, and 2.) that he has fully served three consecutive
terms.[14]
In the present case, petitioner states that a city and a municipality
have separate and distinct personalities. Thus they cannot be treated as a
single entity and must be accorded different treatment consistent with
specific provisions of the Local Government Code. He does not deny the fact
that he has already served for three consecutive terms as municipal
mayor. However, he asserts that when Digos was converted from a
municipality to a city, it attained a different juridical personality. Therefore,
when he filed his certificate of candidacy for city mayor, he cannot be
construed as vying for the same local government post.
For a municipality to be converted into a city, the Local Government
Code provides:
SECTION 450. Requisites for Creation. - (a) A municipality or a cluster of
barangays may be converted into a component city it has an average annual
income, as certified by the Department of Finance, of at least Twenty million
pesos (20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites:
(i)
a contiguous territory of at least one hundred
(100) square kilometers, as certified by the Land
Management Bureau; or,

based on verifiable indicators or viability and projected capacity to provide

services, to wit:
(a) Income. --- It must be sufficient, based on acceptable standards, to
provide for all essential government facilities and services and special
functions commensurate with the size of its population, as expected of the
local government unit concerned;
(b) Population. --- It shall be determined as the total number of
inhabitants within the territorial jurisdiction of the local government unit
concerned; and
(c) Land Area. --- It must be contiguous, unless it comprises two (2) or
more islands or is separated by a local government unit independent of the
others; properly identified by metes and bounds with technical descriptions;
and sufficient to provide for such basic services and facilities to meet the
requirements of its populace.
Compliance with the foregoing indicators shall be attested to by the
Department of Finance (DOF), the National Statistics Office (NSO), and the
Lands Management Bureau (LMB) of the Department of Environment and
Natural Resources (DENR).[17]
On the other hand, Section 2 of the Charter of the City
of Digos provides:
Section 2. The City of Digos --- The Municipality of Digos shall be converted
into a component city to be known as the City of Digos, hereinafter referred
to as the City, which shall comprise the present territory of
the Municipalityof Digos, Davao del Sur Province. The territorial jurisdiction
of the City shall be within the present metes and bounds of
the Municipality of Digos. x x x
Moreover, Section 53 of the said Charter further states:

(ii)
a population of not less than one hundred fifty
thousand (150,000) inhabitants, as certified by the
National Statistics Office.
Provided, That, the creation thereof shall not reduce the land area,
population, and income of the original unit or units at the time of said
creation to less than the minimum requirements prescribed herein.
(b)
The territorial jurisdiction of a newly-created city shall be properly
identified by metes and bounds. The requirement on land are shall not apply
where the city proposed to be created is composed of one (1) or more
island. The territory need not be contiguous if it comprises two (2) or more
islands.
(c)
The average annual income shall include the income accruing to
the general fund, exclusive of special funds, transfers, and non-recurring
[15]
income.
Substantial differences do exist between a municipality and a city. For
one, there is a material change in the political and economic rights of the
local government unit when it is converted from a municipality to a city and
undoubtedly, these changes affect the people as well.[16] It is precisely for
this reason why Section 10, Article X of the Constitution mandates that no
province, city, municipality, or barangay may be created, divided, merged,
abolished, or its boundary substantially altered, without the approval by a
majority of the votes cast in a plebiscite in the political units directly affected.
As may be gleaned from the Local Government Code, the creation or
conversion of a local government unit is done mainly to help assure its
economic viability. Such creation or conversion is based on verified
indicators:
Section 7. Creation and Conversion. --- As a general rule, the creation of a
local government unit or its conversion from one level to another shall be

Section 53. Officials of the City of Digos. --- The present elective officials of
the Municipality of Digos shall continue to exercise their powers and
functions until such a time that a new election is held and the duly-elected
officials shall have already qualified and assumed their offices. x x x.
As seen in the aforementioned provisions, this Court notes that the
delineation of the metes and bounds of the City of Digos did not change even
by an inch the land area previously covered by theMunicipality of Digos. This
Court
also
notes
that
the
elective
officials
of
the Municipality of Digos continued to exercise their powers and functions
until elections were held for the new city officials.
True, the new city acquired a new corporate existence separate and
distinct from that of the municipality. This does not mean, however, that for
the purpose of applying the subject Constitutional provision, the office of the
municipal mayor would now be construed as a different local government
post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digosis the same as that of the
municipality. Consequently, the inhabitants of the municipality are the same
as those in the city. These inhabitants are the same group of voters who
elected petitioner Latasa to be their municipal mayor for three consecutive
terms. These are also the same inhabitants over whom he held power and
authority as their chief executive for nine years.
This Court must distinguish the present case from previous cases ruled
upon this Court involving the same Constitutional provision.
In Borja, Jr. v. COMELEC,[18] the issue therein was whether a vicemayor who became the mayor by operation of law and who served the
remainder of the mayors term should be considered to have served a term
in that office for the purpose of the three-term limit under the
Constitution. Private respondent in that case was first elected as vice-mayor,
but upon the death of the incumbent mayor, he occupied the latters post for
the unexpired term. He was, thereafter, elected for two more terms. This
Court therein held that when private respondent occupied the post of the

mayor upon the incumbents death and served for the remainder of the
term, he cannot be construed as having served a full term as contemplated
under the subject constitutional provision. The term served must be one for
which *the official concerned+ was elected.
It must also be noted that in Borja, the private respondent therein,
before he assumed the position of mayor, first served as the vice-mayor of
his local government unit. The nature of the responsibilities and duties of
the vice-mayor is wholly different from that of the mayor. The vice-mayor
does not hold office as chief executive over his local government unit. In the
present case, petitioner, upon ratification of the law converting the
municipality to a city, continued to hold office as chief executive of the same
territorial jurisdiction. There were changes in the political and economic
rights of Digos as local government unit, but no substantial change occurred
as to petitioners authority as chief executive over the inhabitants of Digos.
In Lonzanida v. COMELEC,[19] petitioner was elected and served two
consecutive terms as mayor from 1988 to 1995. He then ran again for the
same position in the May 1995 elections, won and discharged his duties as
mayor. However, his opponent contested his proclamation and filed an
election protest before the Regional Trial Court, which ruled that there was a
failure of elections and declared the position of mayor vacant. The COMELEC
affirmed this ruling and petitioner acceded to the order to vacate the
post. During the May 1998 elections, petitioner therein again filed his
certificate of candidacy for mayor. A petition to disqualify him was filed on
the ground that he had already served three consecutive terms. This Court
ruled, however, that petitioner therein cannot be considered as having been
duly elected to the post in the May 1995 elections, and that said petitioner
did not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office.
In the present case, petitioner Latasa was, without a doubt, duly
elected as mayor in the May 1998 elections. Can he then be construed as
having involuntarily relinquished his office by reason of the conversion of
Digos from municipality to city? This Court believes that he did involuntarily
relinquish his office as municipal mayor since the said office has been
deemed abolished due to the conversion. However, the very instant he
vacated his office as municipal mayor, he also assumed office as city
mayor. Unlike in Lonzanida, where petitioner therein, for even just a short
period of time, stepped down from office, petitioner 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.
In Adormeo v. COMELEC,[20] this Court was confronted with the issue
of whether or not an assumption to office through a recall election should be
considered as one term in applying the three-term limit rule. Private
respondent, in that case, was elected and served for two consecutive terms
as mayor. He then ran for his third term in the May 1998 elections, but lost
to his opponent. In June 1998, his opponent faced recall proceedings and in
the recall elections of May 2000, private respondent won and served for the
unexpired term. For the May 2001 elections, private respondent filed his
certificate of candidacy for the office of mayor. This was questioned on the
ground that he had already served as mayor for three consecutive
terms. This Court held therein that private respondent cannot be construed
as having been elected and served for three consecutive terms. His loss in
the May 1998 elections was considered by this Court as an interruption in
the continuity of his service as mayor. For nearly two years, private
respondent therein lived as a private citizen. The same, however, cannot be
said of petitioner Latasa in the present case.
Finally, in Socrates v. COMELEC,[21] the principal issue was whether or
not private respondent Edward M. Hagedorn was qualified to run during the
recall elections. Therein respondent Hagedorn had already served for three
consecutive terms as mayor from 1992 until 2001 and did not run in the
immediately following regular elections. On July 2, 2002, the barangay
officials of Puerto Princesa convened themselves into a Preparatory Recall
Assembly to initiate the recall of the incumbent mayor, Victorino Dennis M.
Socrates. On August 23, 2002, respondent Hagedorn filed his certificate of
candidacy for mayor in the recall election. A petition for his disqualification
was filed on the ground that he cannot run for the said post during the recall
elections for he was disqualified from running for a fourth consecutive
term. This Court, however, ruled in favor of respondent Hagedorn, holding
that the principle behind the three-term limit rule is to prevent
consecutiveness of the service of terms, and that there was in his case a

break in such consecutiveness after the end of his third term and before the
recall election.
It is evident that in the abovementioned cases, there exists a rest
period or a break in the service of the local elective official. In Lonzanida,
petitioner therein was a private citizen a few months before the next
mayoral elections. Similarly, in Adormeo and Socrates, the private
respondents therein lived as private citizens for two years and fifteen months
respectively. Indeed, 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.
This Court reiterates that the framers of the Constitution specifically
included an exception to the peoples freedom to choose those who will
govern them in order to avoid the evil of a single person accumulating
excessive power over a particular territorial jurisdiction as a result of a
prolonged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as a
municipal mayor would obviously defeat the very intent of the framers when
they wrote this exception. Should he be allowed another three consecutive
terms as mayor of the City of Digos, petitioner would then be possibly
holding office as chief executive over the same territorial jurisdiction and
inhabitants for a total of eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not abhorred by it.
Finally, respondent Sunga claims that applying the principle in Labo v.
COMELEC,[22] he should be deemed the mayoralty candidate with the highest
number of votes. On the contrary, this Court held inLabo that the
disqualification of a winning candidate does not necessarily entitle the
candidate with the highest number of votes to proclamation as the winner of
the elections. As an obiter, the Court merely mentioned that the rule would
have been different if the electorate, fully aware in fact and in law of a
candidates disqualification so as to bring such awareness within the realm of
notoriety, would nonetheless cast their votes in favor of the ineligible
candidate. In such case, the electorate may be said to have waived the
validity and efficacy of their votes by notoriously misapplying their franchise
or throwing away their votes, in which case, the eligible candidate obtaining
the next higher number of votes may be deemed elected. The same,
however, cannot be said of the present case.
This Court has consistently ruled that the fact that a plurality or a
majority of the votes are cast for an ineligible candidate at a popular
election, or that a candidate is later declared to be disqualified to hold office,
does not entitle the candidate who garnered the second highest number of
votes to be declared elected. The same merely results in making the winning
candidates election a nullity.[23] In the present case, moreover, 13,650 votes
were cast for private respondent Sunga as against the 25,335 votes cast for
petitioner Latasa.[24] The second placer is obviously not the choice of the
people in that particular election. In any event, a permanent vacancy in the
contested office is thereby created which should be filled by succession.[25]
WHEREFORE, the petition is DISMISSED. No pronouncement as to
costs.
SO ORDERED.
G.R. No. 201716

January 8, 2013

MAYOR
ABELARDO
ABUNDO,
SR., Petitioner,
vs.
COMMISSION ON ELECTIONS and ERNESTO R. VEGA, Respondents.
DECISION
VELASCO, JR., J.:
The Case
In this Petition for Certiorari under Rule 65, petitioner Abelardo Abundo, Sr.
(Abundo) assails and seeks to nullify (1) the February 8, 2012 Resolution1 of
the Second Division, Commission on Elections (COMELEC), in EAC (AE) No. A-

25-2010 and (2) the May 10, 2012 Resolution2 of the COMELEC en banc
affirming that divisions disposition. The assailed issuances, in turn, affirmed
the Decision of the Regional Trial Court (RTC) of Virac, Catanduanes, Branch
43, dated August 9, 2010, in Election Case No. 55 declaring Abundo as
ineligible, under the three-term limit rule, to run in the 2010 elections for the
position of, and necessarily to sit as, Mayor of Viga, Catanduanes.
The antecedent facts are undisputed.
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and
2010 national and local elections, Abundo vied for the position of municipal
mayor of Viga, Catanduanes. In both the 2001 and 2007 runs, he emerged
and was proclaimed as the winning mayoralty candidate and accordingly
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 (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.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial

Court Branch 73, Virac, Catanduanes is AFFIRMED and the appeal is
DISMISSED for lack of merit.
SO ORDERED.11
Just like the RTC, the COMELECs Second Division ruled against Abundo on
the strength of Aldovino, Jr. and 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 threeterm limit rule.
In time, Abundo sought but was denied reconsideration by the COMELEC en
banc per its equally assailed Resolution of May 10, 2012. The fallo of the
COMELEC en bancs Resolution reads as follows:
WHEREFORE, premises considered, the motion for reconsideration is DENIED
for lack of merit. The Resolution of the Commission (Second Division) is
hereby AFFIRMED.
SO ORDERED.12

Then came the May 10, 2010 elections where Abundo and Torres again
opposed each other. When Abundo filed his certificate of candidacy3 for the
mayoralty seat relative to this electoral contest, Torres lost no time in
seeking the formers disqualification to run, the corresponding
petition,4 docketed as SPA Case No. 10-128 (DC), predicated on the threeconsecutive term limit rule. On June 16, 2010, the COMELEC First Division
issued a Resolution5 finding for Abundo, who in the meantime bested Torres
by 219 votes6 and was accordingly proclaimed 2010 mayor-elect of Viga,
Catanduanes.
Meanwhile, on May 21, 2010, or before the COMELEC could resolve the
adverted disqualification case Torres initiated against Abundo, herein private
respondent Ernesto R. Vega (Vega) commenced a quo warranto7 action
before the RTC-Br. 43 in Virac, Catanduanes, docketed as Election Case No.
55, to unseat Abundo on essentially the same grounds Torres raised in his
petition to disqualify.
The Ruling of the Regional Trial Court

In affirming the Resolution of its Second Division, the COMELEC en banc held
in essence the following: first, there was no involuntary interruption of
Abundos 2004-2007 term service which would be an exception to the threeterm limit rule as he is considered never to have lost title to the disputed
office after he won in his election protest; and second, what the Constitution
prohibits is for an elective official to be in office for the same position for
more than three consecutive terms and not to the service of the term.
Hence, the instant petition with prayer for the issuance of a temporary
restraining order (TRO) and/or preliminary injunction.
Intervening Events
In the meantime, following the issuance by the COMELEC of its May 10, 2012
Resolution denying Abundos motion for reconsideration, the following
events transpired:

By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared
Abundo ineligible to serve as municipal mayor, disposing as follows:

1. On June 20, 2012, the COMELEC issued an Order13 declaring its

May 10, 2012 Resolution final and executory. The following day,
June 21, 2012, the COMELEC issued an Entry of Judgment.14

WHEREFORE, Decision is, hereby, rendered GRANTING the petition and

declaring Abelardo Abundo, Sr. ineligible to serve as municipal mayor of Viga,
Catanduanes.

2. On June 25, 2012, Vega filed a Motion for Execution15 with the
RTC-Br. 43 in Virac, Catanduanes.

SO ORDERED.9
In so ruling, the trial court, citing Aldovino, Jr. v. COMELEC,10 found Abundo
to have already served three consecutive mayoralty terms, to wit, 20012004, 2004-2007 and 2007-2010, and, hence, disqualified for another, i.e.,
fourth, consecutive term. Abundo, the RTC noted, had been declared winner
in the aforesaid 2004 elections consequent to his protest and occupied the
position of and actually served as Viga mayor for over a year of the remaining
term, i.e., from May 9, 2006 to June 30, 2007, to be exact. To the RTC, the
year and a month service constitutes a complete and full service of Abundos
second term as mayor.
Therefrom, Abundo appealed to the COMELEC, his recourse docketed as EAC
(AE) No. A-25-2010.

3. On June 27, 2012, the COMELEC, acting on Vegas counsels

motion16 filed a day earlier, issued an Order17directing the bailiff
of ECAD (COMELEC) to personally deliver the entire records to
said RTC.
On June 29, 2012, the COMELEC ECAD Bailiff personally delivered
the entire records of the instant case to, and were duly received
by, the clerk of court of RTC-Br. 43.
4. On June 29, 2012, or on the same day of its receipt of the case
records, the RTC-Br. 43 in Virac, Catanduanes granted Vegas
Motion for Execution through an Order18 of even date. And a Writ
of Execution19 was issued on the same day.

The Ruling of the COMELEC

5. On July 2, 2012, Sheriff Q. Tador, Jr. received the Writ of

Execution and served the same at the office of Mayor Abundo on
the same day via substituted service.

On February 8, 2012, in EAC (AE) No. A-25-2010, the COMELECs Second

Division rendered the first assailed Resolution, the dispositive portion of
which reads as follows:

6. On July 3, 2012, the Court issued a TRO20 enjoining the

enforcement of the assailed COMELEC Resolutions.

7. On July 4, 2012, Vega received the Courts July 3, 2012

Resolution21 and a copy of the TRO. On the same day, Vice-Mayor
Emeterio M. Tarin and First Councilor Cesar O. Cervantes of Viga,
Catanduanes took their oaths of office22 as mayor and vice-mayor
of Viga, Catanduanes, respectively.
8. On July 5, 2012, Vega received a copy of Abundos Seventh
(7th) Most Extremely Urgent Manifestation and Motion23 dated
June 28, 2012 praying for the issuance of a TRO and/or status quo
ante Order. On the same day, Vice-Mayor Emeterio M. Tarin and
First Councilor Cesar O. Cervanteswho had taken their oaths of
office the day beforeassumed the posts of mayor and vicemayor of Viga, Catanduanes.24
9. On July 6, 2012, Vega interposed a Motion (To Admit Attached
Manifestation)25 and Manifestation with Leave to Admit26 dated
July 5, 2012 stating that the TRO thus issued by the Court has
become functus officio owing to the execution of the RTCs
Decision in Election Case No. 55.
10. On July 10, 2012, Vega filed his Comment/Opposition with
Leave to the Petitioners Prayer for the Issuance of a Status Quo
Ante Order27 reiterating the argument that since Vice-Mayor
Emeterio M. Tarin and First Councilor Cesar O. Cervantes already
assumed the posts of Mayor and Vice-Mayor of Viga,
Catanduanes, then a Status Quo Ante Order would serve no
purpose.
11. On July 12, 2012, Abundo filed his Most Urgent Manifestation
and Motion to Convert the July 3, 2012 TRO into a Status Quo
Ante Order (In View of the Unreasonable and Inappropriate
Progression of Events).28
It is upon the foregoing backdrop of events that Abundo was dislodged from
his post as incumbent mayor of Viga, Catanduanes. To be sure, the speed
which characterized Abundos ouster despite the supervening issuance by
the Court of a TRO on July 3, 2012 is not lost on the Court. While it is not
clear whether Vice-Mayor Tarin and First Councilor Cervantes knew of or put
on notice about the TRO either before they took their oaths of office on July
4, 2012 or before assuming the posts of mayor and vice-mayor on July 5,
2012, the confluence of events following the issuance of the assailed
COMELEC en banc irresistibly tends to show that the TROissued as it were
to maintain the status quo, thus averting the premature ouster of Abundo
pending this Courts resolution of his appealappears to have been
trivialized.
On September 11, 2012, Vega filed his Comment on Abundos petition,
followed not long after by public respondent COMELECs Consolidated
Comment.29

Arguments in Motion for Reconsideration Not Mere Reiteration

The COMELEC en banc denied Abundos motion for reconsideration on the
basis that his arguments in said motion are mere reiterations of what he
already brought up in his appeal Brief before the COMELEC Second Division.
In this petition, petitioner claims otherwise.
Petitioners assertion is devoid of merit.
A comparison of Abundos arguments in the latters Brief vis--vis those in his
Motion for Reconsideration (MR) reveals that the arguments in the MR are
elucidations and amplications of the same issues raised in the brief. First, in
his Brief, Abundo raised the sole issue of lack of jurisdiction of the RTC to
consider the quo warranto case since the alleged violation of the three-term
limit has already been rejected by the COMELEC First Division in SPA Case No.
10-128 (DC), while in his MR, Abundo raised the similar ground of the
conclusiveness of the COMELECs finding on the issue of his qualification to
run for the current term. Second, in his Brief, Abundo assailed RTCs reliance
on Aldovino, Jr., while in his MR, he argued that the Courts pronouncement
in Aldovino, Jr., which dealt with preventive suspension, is not applicable to
the instant case as it involves only a partial service of the term. Abundo
argued in his Brief that his situation cannot be equated with the case of
preventive suspension as held in Aldovino, Jr., while in his MR, he argued
before that the almost two years which he did not sit as mayor during the
2004-2007 term is an interruption in the continuity of his service for the full
term.
Thus, COMELEC did not err in ruling that the issues in the MR are a rehash of
those in the Brief.
Core Issue:
Whether or not Abundo is deemed to have served three consecutive terms
The pivotal determinative issue then is whether the service of a term less
than the full three years by 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.
On this core issue, We find the petition meritorious. The consecutiveness of
what otherwise would have been Abundos three successive, continuous
mayorship was effectively broken during the 2004-2007 term when he was
initially deprived of title to, and was veritably disallowed to serve and
occupy, an office to which he, after due proceedings, was eventually
declared to have been the rightful choice of the electorate.
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:

The Issues
Abundo raises the following grounds for the allowance of the petition:
6.1 The Commission En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared the
arguments in Abundos motion for reconsideration as mere
rehash and reiterations of the claims he raised prior to the
promulgation of the Resolution.
6.2 The Commission En Banc committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it declared that
Abundo has consecutively served for three terms despite the fact
that he only served the remaining one year and one month of the
second term as a result of an election protest.30
First Issue:

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

service for the full term for which the elective official 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.31
Judging from extant jurisprudence, the three-term limit rule, as applied to
the different factual milieus, has its complicated side. We shall revisit and
analyze the various holdings and relevant pronouncements of the Court on
the matter.
As is clearly provided in Sec. 8, Art. X of the Constitution as well as in Sec.
43(b) of the LGC, voluntary renunciation of the office by the incumbent
elective local official for any length of time shall NOT, in determining service
for three consecutive terms, be considered an interruption in the continuity
of service for the full term for which the elective official concerned was
elected. In Aldovino, Jr., however, the Court stated the observation that the
law "does not textually state that voluntary renunciation is the only actual
interruption of service that does not affect continuity of service for a full
term for purposes of the three-term limit rule."32
As stressed in Socrates v. Commission on Elections,33 the principle behind the
three-term limit rule covers only consecutive terms and that what the
Constitution prohibits is a consecutive fourth term. Put a bit differently, an
elective local official cannot, following his third consecutive term, seek
immediate reelection for a fourth term,34 albeit he is allowed to seek a fresh
term for the same position after the election where he could have sought his
fourth term but prevented to do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the
official after his or her third term. An interruption usually occurs when the
official does not seek a fourth term, immediately following the third. Of
course, the basic law is unequivocal that a "voluntary renunciation of the
office for any length of time shall NOT be considered an interruption in the
continuity of service for the full term for which the elective official concerned
was elected." This qualification was made as a deterrent against an elective
local official intending to skirt the three-term limit rule by merely resigning
before his or her third term ends. This is a voluntary interruption as
distinguished from involuntary interruption which may be brought about by
certain events or causes.

effects of "assumption to office by operation of law" on the three-term limit

rule. 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.37
In Borja, Jr., Jose T. Capco, Jr. (Capco) was elected vice-mayor of Pateros on
January 18, 1988 for a term ending June 30, 1992. On September 2, 1989,
Capco became mayor, by operation of law, upon the death of the incumbent
mayor, Cesar Borja. Capco was then elected and served as mayor for terms
1992-1995 and 1995-1998. When Capco expressed his intention to run again
for the mayoralty position during the 1998 elections, Benjamin U. Borja, Jr.,
who was then also a candidate for mayor, sought Capcos disqualification for
violation of the three-term limit rule.
Finding for Capco, 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."38 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"39 when a permanent vacancy occurred in
that office.
The Court arrived at a parallel conclusion in the case of Montebon. There,
Montebon had been elected for three consecutive terms as municipal
councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007.
However, in January 2004, or during his second term, Montebon succeeded
and assumed the position of vice-mayor of Tuburan when the incumbent
vice-mayor retired. When Montebon filed his certificate of candidacy again
as municipal councilor, a petition for disqualification was filed against him
based on the three-term limit rule. The Court ruled that Montebons
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.
(2) Recall Election
With reference to the effects of recall election on the continuity of service,
Adormeo v. Commission on Elections40 (2002) and the aforementioned case
of Socrates (2002) provide guidance.

While appearing to be seemingly simple, the three-term limit rule has

engendered a host of disputes resulting from the varying interpretations
applied on local officials who were elected and served for three terms or
more, but whose terms or service was punctuated by what they view as
involuntary interruptions, thus entitling them to a, but what their opponents
perceive as a proscribed, fourth term. 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 noncandidate as the winner in a recall election, removal of the official by
operation of law, and other analogous causes.

In Adormeo, Ramon Talaga, Jr. (Talaga) was elected and served as mayor of
Lucena City during terms 1992-1995 and 1995-1998. During the 1998
elections, Talaga lost to Bernard G. Tagarao. However, before Tagaraos
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 Tagaraos
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 Talagas mayorship was disrupted by his
defeat during the 1998 elections.

This brings us to an examination of situations and jurisprudence wherein

such consecutive terms were considered or not considered as having been
"involuntarily interrupted or broken."

A similar conclusion was reached by the Court in Socrates. The petitioners in

that case assailed the COMELEC Resolution which declared Edward Hagedorn
qualified to run for mayor in a recall election. It appeared that Hagedorn had
been elected and served as mayor of Puerto Princesa City for three
consecutive terms: in 1992-1995, 1995-1998 and 1998-2001. Obviously
aware of the three-term limit principle, Hagedorn opted not to vie for the
same mayoralty position in the 2001 elections, in which Socrates ran and
eventually won. However, midway into his term, Socrates faced recall
proceedings and in the recall election held, Hagedorn run for the formers

(1) Assumption of Office by Operation of Law

In Borja, Jr. v. Commission on Elections and Jose T. Capco, Jr. 35 (1998) and
Montebon v. Commission on Elections36(2008), the Court delved on the

unexpired term as mayor. Socrates sought Hagedorns disqualification under

the three-term limit rule.
In upholding Hagedorns candidacy to run in the recall election, the Court
ruled:
x x x After Hagedorn ceased to be mayor on June 30, 2001, he became a
private citizen until the recall election of September 24, 2002 when he won
by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election on September 24, 2002, the
mayor of Puerto Princesa was Socrates. During the same period, Hagedorn
was simply a private citizen. This period is clearly an interruption in the
continuity of Hagedorns service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition.41
The Court likewise emphasized in Socrates that "an elective local official
cannot seek immediate reelection for a fourth term. The prohibited election
refers to the next regular election for the same office following the end of
the third consecutive term and, hence, any subsequent election, like recall
election, is no longer covered x x x."42
(3) Conversion of a Municipality into a City
On the other hand, the conversion of a municipality into a city does not
constitute an interruption of the incumbent officials continuity of service.
The Court said so in Latasa v. Commission on Elections43 (2003).
Latasa is cast against the ensuing backdrop: Arsenio A. Latasa was elected
and served as mayor of the Municipality of Digos, Davao del Sur for terms
1992-1995, 1995-1998, and 1998-2001. During his third term, Digos was
converted into a component city, with the corresponding cityhood law
providing the holdover of elective officials. When Latasa filed his certificate
of candidacy as mayor for the 2001 elections, the Court declared Latasa as
disqualified to run as mayor of Digos City for violation of the three-term limit
rule on the basis of the following ratiocination:
This Court believes that (Latasa) did involuntarily relinquish his office as
municipal mayor since the said office has been deemed abolished due to the
conversion. However, the very instant he vacated his office as municipal
mayor, he also assumed office as city mayor. Unlike in Lonzanida, where
petitioner therein, for even just a short period of time, stepped down from
office, petitioner 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.
(Emphasis supplied.)
(4) Period of Preventive Suspension
In 2009, in the case Aldovino Jr., the Court espoused the doctrine that the
period during which a local elected official is under preventive suspension
cannot be considered as an interruption of the continuity of his service. The
Court explained why so:
Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that allows
an elective officials stay in office beyond three terms. A preventive
suspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising the
functions and prerogatives of the office within the suspension period. The
best indicator of the suspended officials continuity in office is the absence of
a permanent replacement and the lack of the authority to appoint one since
no vacancy exists.44 (Emphasis supplied.)
(5) Election Protest

With regard to the effects of an election protest vis--vis the three-term limit
rule, jurisprudence presents a more differing picture. The Courts
pronouncements in Lonzanida v. Commission on Elections45 (1999), Ong v.
Alegre46 (2006), Rivera III v. Commission on Elections47 (2007) and Dizon v.
Commission on Elections48 (2009), all protest cases, are illuminating.
In Lonzanida, Romeo Lonzanida was elected and had served as municipal
mayor of San Antonio, Zambales in terms 1989-1992, 1992-1995 and 19951998. However, his proclamation relative to the 1995 election was protested
and was eventually declared by the RTC and then by COMELEC null and void
on the ground of failure of elections. On February 27, 1998, or about three
months before the May 1998 elections, Lonzanida vacated the mayoralty
post in light of a COMELEC order and writ of execution it issued. Lonzanidas
opponent assumed office for the remainder of the term. In the May 1998
elections, Lonzanida again filed his certificate of candidacy. His opponent,
Efren Muli, filed a petition for disqualification on the ground that Lonzanida
had already served three consecutive terms in the same post. The Court,
citing Borja Jr., reiterated the two (2) conditions which must concur for the
three-term limit to apply: "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."49
In view of Borja, Jr., the Court ruled that the foregoing requisites were absent
in the case of Lonzanida. The Court held that 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.This Court deviated from the ruling in Lonzanida in Ong v.
Alegre50 owing to a variance in the factual situations attendant.
In that case, Francis Ong (Ong) was elected and served as mayor of San
Vicente, Camarines Norte for terms 1995-1998, 1998-2001, and 2001-2004.
During the 1998 mayoralty elections, or during his supposed second term,
the COMELEC nullified Ongs proclamation on the postulate that Ong lost
during the 1998 elections. However, the COMELECs decision became final
and executory on July 4, 2001, when Ong had fully served the 1998-2001
mayoralty term and was in fact already starting to serve the 2001-2004 term
as mayor-elect of the municipality of San Vicente. In 2004, Ong filed his
certificate of candidacy for the same position as mayor, which his opponent
opposed for violation of the three-term limit rule.
Ong invoked the ruling in Lonzanida and argued that he could not be
considered as having served as mayor from 1998-2001 because he was not
duly elected to the post and merely assumed office as a "presumptive
winner." Dismissing Ongs argument, 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 Ongs
service was deemed and counted as service for a full term because Ongs
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 further reasoned:
Petitioner Francis Ongs contention that he was only a presumptive winner in
the 1998 mayoralty derby as his proclamation was under protest did not
make him less than a duly elected mayor. His proclamation as the duly
elected mayor in the 1998 mayoralty election coupled by his assumption of
office and his continuous exercise of the functions thereof from start to finish
of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard to
discern. Such contrary view would mean that Alegre would under the
three-term rule - be considered as having served a term by virtue of a
veritably meaningless electoral protest ruling, when another actually served
such term pursuant to a proclamation made in due course after an
election.51 (Emphasis supplied.)

The Court did not apply the ruling in Lonzanida and ruled that the case of
Ong was different, to wit:
The difference 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.52 (Emphasis supplied.)
Ongs slight departure from Lonzanida would later find reinforcement in the
consolidated cases of Rivera III v. Commission on Elections53 and Dee v.
Morales.54 Therein, Morales was elected mayor of Mabalacat, Pampanga for
the following consecutive terms: 1995-1998, 1998-2001 and 2001-2004. In
relation to the 2004 elections, Morales again ran as mayor of the same town,
emerged as garnering the majority votes and was proclaimed elective mayor
for term commencing July 1, 2004 to June 30, 2007. A petition for quo
warranto was later filed against Morales predicated on the ground that he is
ineligible to run for a "fourth" term, having served as mayor for three
consecutive terms. In his answer, Morales averred that his supposed 19982001 term cannot be considered against him, for, although he was
proclaimed by the Mabalacat board of canvassers as elected mayor vis--vis
the 1998 elections and discharged the duties of mayor until June 30, 2001,
his proclamation was later nullified by the RTC of Angeles City and his closest
rival, Anthony Dee, proclaimed the duly elected mayor. Pursuing his point,
Morales parlayed the idea that he only served as a mere caretaker.
The Court found Morales posture untenable and held that the case of
Morales presents a factual milieu similar with Ong, not with Lonzanida. For
ease of reference, the proclamation of Francis Ong, in Ong, was nullified, but
after he, like Morales, had served the three-year term from the start to the
end of the term. Hence, the Court concluded that Morales exceeded the
three-term limit rule, to wit:
Here, respondent Morales was elected for the term July 1, 1998 to June 30,
2001. He assumed the position. He served as mayor until June 30, 2001. He
was mayor for the entire period notwithstanding the Decision of the RTC in
the electoral protest case filed by petitioner Dee ousting him (respondent) as
mayor. To reiterate, as held in Ong v. Alegre, such circumstance does not
constitute an interruption in serving the full term.
xxxx
Respondent Morales is now serving his fourth term. He has been mayor of
Mabalacat continuously without any break since July 1, 1995. In just over a
month, by June 30, 2007, he will have been mayor of Mabalacat for twelve
(12) continuous years.55 (Emphasis supplied.)
The Court ruled in Rivera that the fact of being belatedly ousted, i.e., after
the expiry of the term, cannot constitute an interruption in Morales service
of the full term; neither can Morales, as he argued, be considered merely a
"caretaker of the office" or a mere "de facto officer" for purposes of applying
the three-term limit rule.
In a related 2009 case of Dizon v. Commission on Elections,56 the Court would
again find the same Mayor Morales as respondent in a disqualification
proceeding when he ran again as a mayoralty candidate during the 2007
elections for a term ending June 30, 2010. Having been unseated from his
post by virtue of this Courts ruling in Rivera, Morales would argue this time
around that the three-term limit rule was no longer applicable as to his 2007
mayoralty bid. This time, the Court ruled in his favor, holding that for
purposes of the 2007 elections, the three-term limit rule was no longer a
disqualifying factor as against Morales. The Court wrote:
Our ruling in the Rivera case served as Morales involuntary severance from
office with respect to the 2004-2007 term. Involuntary severance from office
for any length of time short of the full term provided by law amounts to an

interruption of continuity of service. Our decision in the Rivera case was

promulgated on 9 May 2007 and was effective immediately. The next day,
Morales notified the vice mayors office of our decision. The vice mayor
assumed the office of the mayor from 17 May 2007 up to 30 June 2007. The
assumption by the vice mayor of the office of the mayor, no matter how
short it may seem to Dizon, interrupted Morales continuity of service. Thus,
Morales did not hold office for the full term of 1 July 2004 to 30 June
2007.57 (Emphasis supplied)
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 officials service. For, he had become in
the interim, i.e., from the end of the 3rd term up to the recall
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 officials continuity of service (Latasa).
4. 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 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).
The Case of Abundo
Abundo argues that the RTC and the COMELEC erred in uniformly ruling that
he had already served three consecutive terms and is, thus, barred by the
constitutional three-term limit rule to run for the current 2010-2013 term. In
gist, Abundo arguments run thusly:

1. Aldovino, Jr. is not on all fours with the present case as the
former dealt with preventive suspension which does not interrupt
the continuity of service of a term;

his consequent proclamation as duly elected mayor. Accordingly, the first

requisite for the application of the disqualification rule based on the threeterm limit that the official has been elected is satisfied.

2. Aldovino, Jr. recognizes that the term of an elected official can

be interrupted so as to remove him from the reach of the
constitutional three-term limitation;

This thus brings us to the second requisite of whether or not Abundo had
served for "three consecutive terms," as the phrase is juridically understood,
as mayor of Viga, Catanduanes immediately before the 2010 national and
local elections. Subsumed to this issue is of course the question of whether
or not there was an effective involuntary interruption during the three threeyear periods, resulting in the disruption of the continuity of Abundos
mayoralty.

3. The COMELEC misinterpreted the meaning of "term" in

Aldovino, Jr. by its reliance on a mere portion of the Decision and
not on the unified logic in the disquisition;
4. Of appropriate governance in this case is the holding in
Lonzanida58 and Rivera III v. Commission on Elections.59
5. The COMELEC missed the point when it ruled that there was no
interruption in the service of Abundo since what he considered as
an "interruption" of his 2004-2007 term occurred before his term
started; and
6. To rule that the term of the protestee (Torres) whose
proclamation was adjudged invalid was interrupted while that of
the protestant (Abundo) who was eventually proclaimed winner
was not so interrupted is at once absurd as it is illogical.
Both respondents Vega and the COMELEC counter that the ratio decidendi of
Aldovino, Jr. finds application in the instant case. The COMELEC ruled that
Abundo did not lose title to the office as his victory in the protest case
confirmed his entitlement to said office and he was only unable to
temporarily discharge the functions of the office during the pendency of the
election protest.
We note that this present case of Abundo deals with the effects of an
election protest, for which the rulings in Lonzanida, Ong, Rivera and Dizon
appear to be more attuned than the case of Aldovino Jr., the interrupting
effects of the imposition of a preventive suspension being the very lis mota
in the Aldovino, Jr. case. But just the same, We find that Abundos case
presents a different factual backdrop.
Unlike in the abovementioned election protest cases wherein the individuals
subject of disqualification were candidates who lost in the election protest
and each declared loser during the elections, Abundo was the winner during
the election protest and was declared the rightful holder of the mayoralty
post. Unlike Mayor Lonzanida and Mayor Morales, who were both unseated
toward the end of their respective terms, Abundo was the protestant who
ousted his opponent and had assumed the remainder of the term.
Notwithstanding, We still find this Courts pronouncements in the past as
instructive, and consider several doctrines established from the 1998 case of
Borja, Jr. up to the most recent case of Aldovino Jr. in 2009, as potent aids in
arriving at this Courts conclusion.
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"60 but also to "enhance the
peoples freedom of choice."61 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."62
In the present case, the Court finds Abundos case meritorious and declares
that the two-year period during which his opponent, Torres, was serving as
mayor should be considered as an interruption, which effectively removed
Abundos case from the ambit of the three-term limit rule.
It bears to stress at this juncture that Abundo, for the 2004 election for the
term starting July 1, 2004 to June 30, 2007, was the duly elected mayor.
Otherwise how explain his victory in his election protest against Torres and

The facts of the case clearly point to an involuntary interruption during the
July 2004-June 2007 term.
There can be no quibbling that, during the term 2004-2007, and with the
enforcement of the decision of the election protest in his favor, Abundo
assumed the mayoralty post only on May 9, 2006 and served the term until
June 30, 2007 or for a period of a little over one year and one month.
Consequently, unlike Mayor Ong in Ong and Mayor Morales in Rivera, it
cannot be said that Mayor Abundo was able to serve fully the entire 20042007 term to which he was otherwise entitled.
A "term," as defined in Appari v. Court of Appeals,63 means, in a legal sense,
"a fixed and definite period of time which the law describes that an officer
may hold an office."64 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."65 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 7160,66 the term for local
elected officials is three (3) years starting from noon of June 30 of the first
year of said term.
In the present case, during the period of one year and ten months, or from
June 30, 2004 until May 8, 2006, Abundo cannot plausibly claim, even if he
wanted to, that he could hold office of the mayor as a matter of right.
Neither can he assert title to the same nor serve the functions of the said
elective office. The reason is simple: during that period, title to hold such
office and the corresponding right to assume the functions thereof still
belonged to his opponent, as proclaimed election winner. Accordingly,
Abundo actually held the office and exercised the functions as mayor only
upon his declaration, following the resolution of the protest, as duly elected
candidate in the May 2004 elections or for only a little over one year and one
month. Consequently, since the legally contemplated full term for local
elected officials is three (3) years, it cannot be said that Abundo fully served
the term 2004-2007. The reality on the ground is that Abundo actually served
less.
Needless to stress, the almost two-year period during which Abundos
opponent actually served as Mayor is and ought to be considered an
involuntary interruption of Abundos continuity of service. An involuntary
interrupted term, cannot, in the context of the disqualification rule, be
considered as one term for purposes of counting the three-term threshold.67
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.68 To interrupt is to obstruct, thwart or prevent.69 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 abandonment of a known
right. To renounce is to give up, abandon, decline or resign.70 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.
In its assailed Resolution, the COMELEC en banc, applying Aldovino,
Jr.,71 held:

It must be stressed that involuntary interruption of service which

jurisprudence deems an exception to the three-term limit rule, implies that
the service of the term has begun before it was interrupted. Here, the
respondent did not lose title to the office. As the assailed Resolution states:
In the case at bar, respondent cannot be said to have lost his title to the
office. On the contrary, he actively sought entitlement to the office when he
lodged the election protest case. And respondent-appellants victory in the
said case is a final confirmation that he was validly elected for the mayoralty
post of Viga, Catanduanes in 2004-2007. At most, respondent-appellant was
only unable to temporarily discharge the functions of the office to which he
was validly elected during the pendency of the election protest, but he never
lost title to the said office.72 (Emphasis added.)
The COMELECs Second Division, on the other hand, pronounced that the
actual length of service by the public official in a given term is immaterial by
reckoning said service for the term in the application of the three-term limit
rule, thus:
As emphasized in the case of Aldovino, "this formulationno more than
three consecutive termsis a clear command suggesting the existence of an
inflexible rule." Therefore we cannot subscribe to the argument that since
respondent Abundo served only a portion of the term, his 2004-2007 "term"
should not be considered for purposes of the application of the three term
limit rule. When the framers of the Constitution drafted and incorporated
the three term limit rule, it is clear that reference is to the term, not the
actual length of the service the public official may render. Therefore, ones
actual service of term no matter how long or how short is immaterial.73
In fine, the COMELEC ruled against Abundo on the theory that the length of
the actual service of the term is immaterial in his case as he was only
temporarily unable to discharge his functions as mayor.
The COMELECs case disposition and its heavy reliance on Aldovino, Jr. do not
commend themselves for concurrence. The Court cannot simply find its way
clear to understand the poll bodys determination that Abundo was only
temporarily unable to discharge his functions as mayor during the pendency
of the election protest.
As previously stated, the declaration of being the winner in an election
protest grants the local elected official the right to serve the unexpired
portion of the term. Verily, while he was declared winner in the protest for
the mayoralty seat for the 2004-2007 term, Abundos full term has been
substantially reduced by the actual service rendered by his opponent
(Torres). Hence, there was actual involuntary interruption in the term of
Abundo and he cannot be considered to have served the full 2004-2007
term.
This is what happened in the instant case. It cannot be overemphasized that
pending the favorable resolution of his election protest, Abundo was
relegated to being an ordinary constituent since his opponent, as
presumptive victor in the 2004 elections, was occupying the mayoralty seat.
In other words, for almost two years or from July 1, 2004the start of the
termuntil May 9, 2006 or during which his opponent actually assumed the
mayoralty office, Abundo was a private citizen warming his heels while
awaiting the outcome of his protest. Hence, even if declared later as having
the right to serve the elective position from July 1, 2004, such declaration
would not erase the fact that prior to the finality of the election protest,
Abundo did not serve in the mayors office and, in fact, had no legal right to
said position.
Aldovino Jr. cannot possibly lend support to respondents cause of action, or
to COMELECs resolution against Abundo. In Aldovino Jr., the Court succinctly
defines what temporary inability or disqualification to exercise the functions
of an elective office means, thus:
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.74
We rule that the above pronouncement on preventive suspension does not
apply to the instant case. Verily, it is erroneous to say that Abundo merely
was temporarily unable or disqualified to exercise the functions of an
elective post. For one, during the intervening period of almost two years,
reckoned from the start of the 2004-2007 term, Abundo cannot be said to
have retained title to the mayoralty office as he was at that time not the duly
proclaimed winner who would have the legal right to assume and serve such
elective office. For another, not having been declared winner yet, Abundo
cannot be said to have lost title to the office since one cannot plausibly lose a
title which, in the first place, he did not have. Thus, for all intents and
purposes, even if the belated declaration in the election protest accords him
title to the elective office from the start of the term, Abundo was not entitled
to the elective office until the election protest was finally resolved in his
favor.1wphi1
Consequently, there was a hiatus of almost two years, consisting of a break
and effective interruption of his service, until he assumed the office and
served barely over a year of the remaining term. At this juncture, We observe
the apparent similarities of Mayor Abundos case with the cases of Mayor
Talaga in Adormeo and Mayor Hagedorn in Socrates as Mayors Talaga and
Hagedorn were not proclaimed winners since they were non-candidates in
the regularelections. They were proclaimed winners during the recall
elections and clearly were not able to fully serve the terms of the deposed
incumbent officials. Similar to their cases where the Court deemed their
terms as involuntarily interrupted, Abundo also became or was a private
citizen during the period over which his opponent was serving as mayor. If in
Lonzanida, the Court ruled that there was interruption in Lonzanidas service
because of his subsequent defeat in the election protest, then with more
reason, Abundos term for 2004-2007 should be declared interrupted since
he was not proclaimed winner after the 2004 elections and was able to
assume the office and serve only for a little more than a year after winning
the protest.
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." 75 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 Abundos
opponent, Torres, who was exercising such powers by virtue of the still then
valid proclamation.
As a final note, We reiterate that Abundos case differs from other cases
involving the effects of an election protest because while Abundo was, in the
final reckoning, the winning candidate, he was the one deprived of his right
and opportunity to serve his constituents. To a certain extent, Abundo was a
victim of an imperfect election system. While admittedly the Court does not
possess the mandate to remedy such imperfections, the Constitution has
clothed it with enough authority to establish a fortress against the injustices
it may bring.
In this regard, We find that a contrary ruling would work damage and cause
grave injustice to Abundoan elected official who was belatedly declared as
the winner and assumed office for only a short period of the term. If in the
cases of Lonzanida and Dizon, this Court ruled in favor of a losing candidate
or the person who was adjudged not legally entitled to hold the contested
public office but held it anywayWe find more reason to rule in favor of a
winning candidate-protestant who, by popular vote, deserves title to the
public office but whose opportunity to hold the same was halted by an
invalid proclamation.

Also, more than the injustice that may be committed against Abundo is the
injustice that may likewise be committed against the people of Viga,
Catanduanes by depriving them of their right to choose their leaders. Like the
framers of the Constitution, We bear in mind that We "cannot arrogate unto
ourselves the right to decide what the people want"76 and hence, should, as
much as possible, "allow the people to exercise their own sense of
proportion and rely on their own strength to curtail the power when it
overreaches itself."77 For democracy draws strength from the choice the
people make which is the same choice We are likewise bound to protect.
WHEREFORE, the instant petition is PARTLY GRANTED. Accordingly, the
assailed February 8, 2012 Resolution of the Commission on Elections Second
Division and May 10, 2012 Resolution of the Commission on Elections en
banc in EAC (AE) No. A-25-2010 and the Decision of the Regional Trial Court
(RTC) of Virac, Catanduanes, Branch 43, dated August 9, 2010, in Election
Case No. 55, are hereby REVERSED and SET ASIDE.
Petitioner Abelardo Abundo, Sr. is DECLARED ELIGIBLE for the position of
Mayor of Viga, Catanduanes to which he was duly elected in the May 2010
elections and is accordingly ordered IMMEDIATELY REINSTATED to said
position. Withal, Emeterio M. Tarin and Cesar O. Cervantes are ordered to
immediately vacate the positions of Mayor and Vice-Mayor of Viga,
Catanduanes, respectively, and shall revert to their original positions of ViceMayor and First Councilor, respectively, upon receipt of this Decision.

Exigencies of service so requiring, you are hereby detailed at the Office of the
Municipal Mayor effective upon receipt of this Order and shall likewise
receive direct orders from the undersigned as to particular functions our
office
may
require
from
time
to
time.
For

your

information

and

strict

compliance.

xxxx
On the same date, Mayor Biron also issued Office Order No. 13 detailing
Catalina V. Belonio (Belonio), another municipal employee, to the office of
the Local Civil Registrar of Barotac Nuevo, Iloilo to assume the functions and
duties as Local Civil Registrar-designate effective upon receipt of the order.
Office Order No. 13 reads:ChanRoblesVirtualawlibrary
Office
Series

Order

No.
of

MS.
Administrative
Office

CATALINA

V.
Officer

of

the

Municipal

13
2010
BELONIO
III
Mayor

Exigencies of service so requiring, you are hereby detailed at the Office of the
Local Civil Registrar and assume the functions and duties as LCR-Designate
effective
upon
receipt
of
this
Order.

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

As such, you are hereby authorized to sign and issue documents relative
thereto including the claim for travel allowance and seminar expenses.

This Decision is immediately executory.

For

you

information

and

compliance.

SO ORDERED.
x x x x3
G.R. No. 199139, September 09, 2014
ELSIE S. CAUSING, Petitioner, v. COMMISSION ON ELECTIONS AND HERNAN
D. BIRON, SR.,Respondents.

On June 1, 2010, Mayor Biron issued to Causing Memorandum No. 17, Series
of 2010, and Memorandum No. 17-A, Series of 2010, respectively reading as
follows:ChanRoblesVirtualawlibrary
Memorandum No. 17

DECISION
You are hereby directed to report to the Office of the Mayor effective
immediately upon receipt of this Order and signing of MCR documents shall
likewise be done at my office where you will be provided with a table for this
particular
function.

BERSAMIN, J.:
The issue is whether the relocation of the petitioner by respondent
Municipal Mayor during the election period from her office as the Local Civil
Registrar to the Office of the Mayor just a few steps away constituted a
prohibited act under the Omnibus Election Code and the relevant Resolution
of the Commission on Elections.

For clarity purposes preparation of such documents relative to civil

registration provided for under R.A. No. 9048 and R.A. 9255 shall be done at
the office of MCR, after which, the said documents shall be forwarded to you
for
your
signature.

The Case

Additional duties and functions shall likewise be under my direct supervision.

Petitioner Elsie Causing (Causing) assails the Resolution of the Commission

on Elections En Banc (COMELEC En Banc) promulgated on September 9, 2011
dismissing her complaint-affidavit dated June 8, 2010 docketed as E.O. Case
No. 10-131 entitled Elsie S. Causing v. Hernan D. Biron, Sr.charging Municipal
Mayor Hernan D. Biron, Sr. (Mayor Biron) of Barotac Nuevo, Iloilo with
violating COMELEC Resolution No. 8737 in relation to Section 261 (g), (h), and
(x) of the Omnibus Election Code.1cralawred

Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.

Antecedents
On January 1, 1993, Causing assumed office as the Municipal Civil Registrar
of Barotac Nuevo, Iloilo. On May 28, 2010, Mayor Biron issued Memorandum
No. 12, Series of 2010,2 which reads:ChanRoblesVirtualawlibrary
Office
Series
MRS.
Municipal
LGU

Order

No.
of

ELSIE

S.
Civil
Barotac

12
2010
CAUSING
Registrar
Nuevo

For your strict compliance.4cralawred

Memorandum No. 17-A
You are hereby directed to report to the Office of the Mayor effective
immediately upon receipt of this Order. You have to take action on R.A. 9048
and sign MCR documents at my office where you will be provided with a
table
for
this
particular
function.
For clarity purposes, preparation of documents relative to civil registration
shall be done at the office of MCR, after which, the said completed
documents shall be forwarded to you for your signature.
Additional duties and functions shall likewise be under my direct supervision.
Office Order No. 12 issued on May 28, 2010 is hereby repealed accordingly.
For your strict compliance.5cralawred

In view of the foregoing issuances by Mayor Biron, Causing filed the

complaint-affidavit dated June 8, 2010 in the Office of the Regional Election
Director, Region VI, in Iloilo City, claiming that Office Order No. 12 dated May
28, 2010 issued by Mayor Biron ordering her detail to the Office of the
Municipal Mayor, being made within the election period and without prior
authority from the COMELEC, was illegal and violative of Section 1, Paragraph
A, No. 1, in connection with Section 6 (B) of COMELEC Resolution No. 8737,
Series of 2009, to wit:ChanRoblesVirtualawlibrary
x

5. The issuance of Office Order No. 12 dated May 28, 2010 by the municipal
mayor ordering my detail at the Office of the Municipal Mayor, made within
the election period and without prior written authority from the COMELEC is
illegal and violative of Section 1, Paragraph A, No 1 in connection with
Section 6 (B) of COMELEC Resolution No. 8737 (Series of 2009) otherwise
known as In the Matter of Enforcing the Prohibition against appointment or
hiring of new employees, creating or filing of new positions, giving any salary
increase or transferring or detailing any officer or employee in the civil
service and suspension of local elective officials in connection with the May
10,
2010
national
and
local
elections;
x

8. Further, said transfer of detail does not fall under any of the exceptions to
the requirement of prior authority from the COMELEC, as provided under
Section
7
of
COMELEC
Resolution
No.
8737.
x x x x6
In his counter-affidavit,7 Mayor Biron countered that the purpose of
transferring the office of Causing was to closely supervise the performance of
her functions after complaints regarding her negative behavior in dealing
with her co-employees and with the public transacting business in her office
had been received;8 that as the local chief executive, he was empowered to
take personnel actions and other management prerogatives for the good of
public service; that Causing was not being stripped of her functions as the
Municipal Civil Registrar; that she was not transferred or detailed to another
office in order to perform a different function; and that she was not demoted
to a lower position that diminished her salary and other benefits.9cralawred
On March 1, 2011, Atty. Elizabeth Doronilla, the Provincial Election
Supervisor (PES), recommended the dismissal of the complaint-affidavit for
lack of probable cause to charge Mayor Biron with the violation of Section (h)
of the Omnibus Election Code, as implemented by Resolution No. 8737.
On September 9, 2011, the COMELEC En Banc affirmed the findings and
recommendation of PES Doronilla,10 observing that Mayor Biron did not
transfer or detail Causing but only required her to physically report to the
Mayors office and to perform her functions thereat; and that he did not strip
her of her functions as the Municipal Civil Registrar, and did not deprive her
of
her
supervisory
functions
over
her
staff.11cralawred
Hence, this petition for certiorari.

disregarded a crucial piece of evidence the existence of Office Order No.

13 that had ordered the detail of Belonio as the Local Civil Registrardesignate.14cralawred
In his comment,15 Mayor Biron insists that the petition for certiorari should
be dismissed because of the petitioners failure to file a motion for
reconsideration in the COMELEC, and because of her failure to attach copies
of equally important documents pertinent to the case.16 He emphasizes that
Office Order No. 12 was issued by his office for the purpose of closely
supervising her in performing her functions after complaints about her
behavior in dealing with her co-workers and with the public transacting
business in her office had been received by his office.17 He accuses her of
willfully suppressing evidence, specifically the two office orders that clarified
that she would still be performing the functions of her office, albeit in the
Office
of
the
Mayor.18cralawred
Mayor Biron reiterates his counter-affidavit, namely: (a) that there was no
transfer or detail involved, and any movement of Causing, if at all, was a
purely physical transfer, that is, only a few steps from her office to the Office
of the Mayor, without any change in the present work, agency, position, rank
and compensation;19 and (b) that granting without admitting that the
movement constituted reassignment, the same was not covered by the
provisions of COMELEC Resolution No. 8737, which expressly limited the
prohibition
to
either
transfer
or
detail
only.20cralawred
Mayor Biron posits that Office Order No. 13 purportedly ordering the detail
of Belonio as Local Civil Registrar-designate was a mere piece of paper, which
Belonio never received.21 He points out that his actions were upheld by the
decision dated August 13, 2010 of the Regional Office of the Civil Service
Commission dismissing the appeal by Causing of the assailed office
orders.22cralawred
Finally, Mayor Biron asserts that Causing did not demonstrate that the
COMELEC En Banc committed grave abuse of discretion in affirming the
findings that there was no probable cause to hold him liable for violation of
the Omnibus
Election
Code.23cralawred
On its part, the COMELEC, through the Office of the Solicitor General
(OSG),24 defends
its
questioned
resolution,
stating
that the
words transfer and detail, having already acquired legislative and
jurisprudential meanings, should not be understood in their literal sense;
that Causing was neither transferred nor detailed; that she was not moved to
a different office with the same rank, level and salary, or to another
agency;25 and that Mayor Birons act of transferring the office space of
Causing was intra vires, and found legal support in the power of supervision
and control accorded to local chief executives under the Local Government
Code.26cralawred
Ruling
The petition has no merit.
1.
Procedural
Causing
did
not
file
a
before filing the petition for certiorari

motion

for

Issue:
reconsideration

Issues
Causing submits that Office Order 12 and Office Order 13 were gross
violations of COMELEC Resolution No. 8737, Series of 2009, that
implemented Section 261 (g), (h), and (x) of the Omnibus Election Code; that
the prohibition contained in said provisions covered any movement during
the election period, whether it was by reassignment, appointment,
promotion, or demotion, regardless of rank, level or salary of the affected
personnel; that her detail to the Office of the Mayor was a clear case of
personnel movement prohibited by law;12 and that Mayor Biron violated the
provisions because he did not secure from the COMELEC the prior authority
to transfer or detail her during the election period.13cralawred

Section 7, Article IX-A of the Constitution states that unless otherwise

provided by the Constitution or by law, any decision, order, or ruling of each
Commission may be brought to the Court on certiorariby the aggrieved party
within 30 days from receipt of a copy thereof. For this reason, the Rules of
Court (1997) contains a separate rule (Rule 64) on the review of the decisions
of the COMELEC and the Commission on Audit.27 Rule 64 is generally identical
with certiorari under Rule 65,28 except as to the period of the filing of the
petition for certiorari, that is, in the former, the period is 30 days from notice
of the judgment or final order or resolution sought to be reviewed but, in the
latter, not later than 60 days from notice of the judgment, order or
resolution
assailed.29cralawred

In addition, Causing claims that the COMELEC En Banc committed grave

abuse of discretion in affirming the findings of PES Doronilla to the effect that
there was no probable cause to hold Mayor Biron liable for violating
the Omnibus Election Code; and that the COMELEC En Banc totally

Mayor Biron indicates that Causing did not file a motion for reconsideration
before coming to the Court. Causing submits, however, that she was not
required to file the motion for reconsideration because the only recourse of
an aggrieved party from the decision of the COMELEC was the filing of the

petition for certiorari under either Rule 64 or Rule 65.30cralawred

The well-established rule is that the motion for reconsideration is an
indispensable condition before an aggrieved party can resort to the special
civil action for certiorari under Rule 65 of the Rules of Court. The filing of the
motion for reconsideration before the resort to certiorari will lie is intended
to afford to the public respondent the opportunity to correct any actual or
fancied error attributed to it by way of re-examination of the legal and
factual
aspects
of
the
case.31cralawred
The rule is not absolute, however, considering that jurisprudence has laid
down exceptions to the requirement for the filing of a petition
for certiorari without first filing a motion for reconsideration, namely: (a)
where the order is a patent nullity, as where the court a quo has no
jurisdiction; (b) where the questions raised in the certiorari proceedings have
been duly raised and passed upon by the lower court, or are the same as
those raised and passed upon in the lower court; (c) where there is an urgent
necessity for the resolution of the question, and any further delay would
prejudice the interests of the Government, or of the petitioner, or the
subject matter of the petition is perishable; (d) where, under the
circumstances, a motion for reconsideration would be useless; (e) where the
petitioner was deprived of due process, and there is extreme urgency for
relief; (f) where, in a criminal case, relief from an order of arrest is urgent,
and the granting of such relief by the trial court is improbable; (g) where the
proceedings in the lower court are a nullity for lack of due process; (h) where
the proceeding was ex parte or in which the petitioner had no opportunity to
object; and (i) where the issue raised is one purely of law or public interest is
involved.
A perusal of the circumstances of the case shows that none of the foregoing
exceptions was applicable herein. Hence, Causing should have filed the
motion for reconsideration, especially because there was nothing in the
COMELEC Rules of Procedure that precluded the filing of the motion for
reconsideration
in
election
offense
cases.32cralawred
Accordingly, the petition must be dismissed.
2.
Substantive
Mayor
Birons
acts
did
the Omnibus
Election
and the COMELEC Resolution

On

the

merits,

the

petition

Issues:
violate
Code

not

should

also

fail.

E.O. Case No. 10-131 was founded on Mayor Birons alleged violation of
COMELEC Resolution No. 8737, Series of 2009, in relation to Section 261(g),
(h) and (x) of the Omnibus Election Code, which respectively
provide:ChanRoblesVirtualawlibrary
Resolution No. 8737

Section

1. Prohibited

Acts

A. During the election period from January 10, 2010 to June 09, 2010, no
public official shall, except upon prior authority of the Commission:
1.

Make or cause any transfer or detail whatsoever of any officer or

employee in the civil service, including public school teachers.
Transfer as used in this provision shall be construed as any
personnel movement from one government agency to another or
from one department, division, geographical unit or subdivision of
a government agency to another with or without the issuance of
an appointment.

xxxx
Section
261(g),
of the Omnibus Election Code

(h)

and

(x)

Sec. 261. Prohibited Acts. - The following shall be guilty of an election

offense:ChanRoblesVirtualawlibrary
x

(g) Appointment of new employees, creation of new position, promotion, or

giving salary increases. - During the period of forty-five days before a regular
election and thirty days before a special election, (1) any head, official or
appointing officer of a government office, agency or instrumentality,
whether national or local, including government-owned or controlled
corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except upon prior
authority of the Commission. The Commission shall not grant the authority
sought unless, it is satisfied that the position to be filled is essential to the
proper functioning of the office or agency concerned, and that the position
shall not be filled in a manner that may influence the election.
As an exception to the foregoing provisions, a new employee may be
appointed in case of urgent need: Provided, however, That notice of the
appointment shall be given to the Commission within three days from the
date of the appointment. Any appointment or hiring in violation of this
provision
shall
be
null
and
void.
(2) Any government official who promotes, or gives any increase of salary or
remuneration or privilege to any government official or employee, including
those
in
government-owned
or
controlled
corporations.
(h) Transfer of officers and employees in the civil service. - Any public official
who makes or causes any transfer or detail whatever of any officer or
employee in the civil service including public school teachers, within the
election period except upon prior approval of the Commission.
x

(x) Suspension of elective provincial, city, municipal or barangay officer. - The

provisions of law to the contrary notwithstanding during the election period,
any public official who suspends, without prior approval of the Commission,
any elective provincial, city, municipal or barangay officer, unless said
suspension will be for purposes of applying the Anti-Graft and Corrupt
Practices Act in relation to the suspension and removal of elective officials; in
which case the provisions of this section shall be inapplicable.
The only personnel movements prohibited by COMELEC Resolution No. 8737
were transfer and detail.Transfer is defined in the Resolution as any
personnel movement from one government agency to another or from one
department, division, geographical unit or subdivision of a government
agency to another with or without the issuance of an appointment; while
detail as defined in theAdministrative Code of 1987 is the movement of an
employee from one agency to another without the issuance of an
appointment.33 Having acquired technical and legal meanings, transfer and
detail must be construed as such. Obviously, the movement involving
Causing did not equate to either atransfer or a detail within the
contemplation of the law if Mayor Biron only thereby physically transferred
her office area from its old location to the Office of the Mayor some little
steps away.34We cannot accept the petitioners argument, therefore, that
the phrase any transfer or detail whatsoever encompassed any and all
kinds and manner of personnel movement,35 including the mere change in
office
location.
Moreover, Causings too-literal understanding of transfer should not hold
sway because the provisions involved here were criminal in nature. Mayor
Biron was sought to be charged with an election offense punishable under
Section 264 of the Omnibus Election Code.36 It is a basic rule of statutory
construction that penal statutes are to be liberally construed in favor of the
accused. Every reasonable doubt must then be resolved in favor of the
accused.37 This means that the courts must not bring cases within the
provision of a law that are not clearly embraced by it. In short, no act can be
pronounced criminal unless it is clearly made so by statute prior to its
commission (nullum crimen, nulla poena, sine lege). So, too, no person who is
not clearly within the terms of a statute can be brought within them.
Equally material is that Mayor Birons act of transferring the office space of

Causing was rooted in his power of supervision and control over the officials
and employees serving in his local government unit, in order to ensure the
faithful discharge of their duties and functions.38 His explanation that he
transferred Causings work station from her original office to his office in
order to closely supervise her after his office received complaints against her
could not be justly ignored. Verily, she thereafter continued to perform her
tasks, and uninterruptedly received her salaries as the Municipal Civil
Registrar even after the transfer to the Office of the Mayor.
The issuance of Office Order No. 13 by Mayor Biron detailing Belonio to the
Office of the Local Civil Registrar was not proof of Mayor Birons crystal
clear intention to replace and transfer her during the election period.39 As
the COMELEC En Banc found, Belonio did not receive the order, and Causing
remained as the Municipal Civil Registrar, leaving the detailing of Belonio
uncompleted. Without the actual appointment of Belonio as the Municipal
Civil Registrar, it would be unwarranted to criminally charge Mayor Biron of
violating
Section
261
of
the Omnibus
Election
Code.
It is interesting to note that aside from the present election offense case,
Causing initiated an administrative case in the Civil Service Commission to
challenge her reassignment pursuant to the same office orders. In that
administrative case, she referred to the personnel movement not as
atransfer or detail, but as a reassignment that constituted her constructive
dismissal.40 On August 13, 2010, the CSC Regional Office No. 6 in Mandurriao,
Iloilo City ruled that although Mayor Biron used the word detail in referring
to the personnel movement effected, the personnel action that actually took
place,
albeit
a
reassignment,
was
a
valid
reassignment, viz:ChanRoblesVirtualawlibrary
In the instant case, Causing is not stripped of her functions as Municipal Civil
Registrar (MCR). She was merely required to physically report to the Mayors
Office and perform her functions as Municipal Civil Registrar therein.
Definitely, she is still the MCR, albeit doing her work physically outside of her
usual work station. She is also not deprived of her supervisory function over
the staff as she continues to review their work and signs documents they
prepared. While she may encounter difficulty in performing her duties as a
supervisor as she is not physically near her staff, that by itself, however, does
not mean that she has lost supervision over them. That difficulty,
nonetheless, is not tantamount to constructive dismissal. That Mayor Biron
prefers to ensure that Causing faithfully discharging her duties as MCR is
principally an exercise of his sound judgment and discretion. He alone has
the discretion to decide when to resort to the necessity of implementing
changes in the workplace as he occupies the ideal vantage point and is in the
best position to determine the needs of his agency and how to satisfy those
needs. Besides, contrary to the allegations of Causing, none of the elements
of
constructive
dismissal
is
present.
WHEREFORE, the instant appeal of Elsie B. Causing is DISMISSED. Office
Order No. 12. Dated May 28, 2010 and Office Orders No. 17 and 17-A dated
June 01, 2010 of Mayor Hernan D. Biron, Sr. of Barotac Nuevo, Iloilo are
AFFIRMED.41
Considering that reassignment was not prohibited by the Omnibus Election
Code, there was no probable cause to criminally charge Mayor Biron with the
violation
of
the Omnibus
Election
Code.
WHEREFORE, the Court DISMISSES the petition for certiorari ; AFFIRMS the
Resolution of the Commission on Elections promulgated on September 9,
2011 dismissing E.O. Case No. 10-131 entitled Elsie S. Causing v. Hernan D.
Biron, Sr.; and ORDERS the petitioner to pay the costs of suit.
SO ORDERED.cralawlaw library