*** CIRILO R. VALLES, Petitioner, v.

COMMISSION ON ELECTIONS and ROSALIND YBASCO

LOPEZ, Respondents.
DECISION
PURISIMA, J.:
This is a petition for certiorari under Rule 65, pursuant to Section 2, Rule 64 of the 1997 Rules of Civil Procedure,
assailing Resolutions dated July 17, 1998 and January 15, 1999, respectively, of the Commission on Elections in SPA No.
98-336, dismissing the petition for disqualification filed by the herein petitioner, Cirilo R. Valles, against private respondent
Rosalind Ybasco Lopez, in the May 1998 elections for governor of Davao Oriental.chanrob1es virtua1 1aw 1ibrary
Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to the spouses,
Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an Australian. In 1949, at
the age of fifteen, she left Australia and came to settle in the Philippines.
On June 27, 1952, she was married to Leopoldo Lopez, a Filipino citizen, at the Malate Catholic Church in Manila. Since
then, she has continuously participated in the electoral process not only as a voter but as a candidate, as well. She served
as Provincial Board Member of the Sangguniang Panlalawigan of Davao Oriental. In 1992, she ran for and was elected
governor of Davao Oriental. Her election was contested by her opponent, Gil Taojo, Jr., in a petition for quo warranto,
docketed as EPC No. 92-54, alleging as ground therefor her alleged Australian citizenship. However, finding no sufficient
proof that respondent had renounced her Philippine citizenship, the Commission on Elections en banc dismissed the
petition, ratiocinating thus:jgc:chanrobles.com.ph
"A cursory reading of the records of this case vis-a-vis the impugned resolution shows that respondent was able to
produce documentary proofs of the Filipino citizenship of her late father . . . and consequently, prove her own citizenship
and filiation by virtue of the Principle of Jus Sanguinis, the perorations of the petitioner to the contrary
notwithstanding.chanrob1es virtua1 1aw 1ibrary
On the other hand, except for the three (3) alleged important documents . . . no other evidence substantial in nature
surfaced to confirm the allegations of petitioner that respondent is an Australian citizen and not a Filipino. Express
renunciation of citizenship as a mode of losing citizenship under Commonwealth Act No. 63 is an equivocal and deliberate
act with full awareness of its significance and consequence. The evidence adduced by petitioner are inadequate, nay
meager, to prove that respondent contemplated renunciation of her Filipino citizenship." 1
In the 1995 local elections, respondent Rosalind Ybasco Lopez ran for re-election as governor of Davao Oriental. Her
opponent, Francisco Rabat, filed a petition for disqualification, docketed as SPA No. 95-066 before the COMELEC, First
Division, contesting her Filipino citizenship but the said petition was likewise dismissed by the COMELEC, reiterating
substantially its decision in EPC 92-54.
The citizenship of private respondent was once again raised as an issue when she ran for re-election as governor of
Davao Oriental in the May 11, 1998 elections. Her candidacy was questioned by the herein petitioner, Cirilo Valles, in SPA
No. 98-336.chanrobles.com : red
On July 17, 1998, the COMELECs First Division came out with a Resolution dismissing the petition, and disposing as
follows:jgc:chanrobles.com.ph
"Assuming arguendo that res judicata does not apply and We are to dispose the instant case on the merits trying it de
novo, the above table definitely shows that petitioner herein has presented no new evidence to disturb the Resolution of
this Commission in SPA No. 95-066. The present petition merely restates the same matters and incidents already passed
upon by this Commission not just in 1995 Resolution but likewise in the Resolution of EPC No. 92-54. Not having put forth
any new evidence and matter substantial in nature, persuasive in character or sufficiently provocative to compel reversal
of such Resolutions, the dismissal of the present petition follows as a matter of course.chanrob1es virtua1 1aw 1ibrary
x

"WHEREFORE, premises considered and there being no new matters and issues tendered, We find no convincing reason
or impressive explanation to disturb and reverse the Resolutions promulgated by this Commission in EPC 92-54 and SPA.
95-066. This Commission RESOLVES as it hereby RESOLVES to DISMISS the present petition.

SO ORDERED." 2
Petitioner interposed a motion for reconsideration of the aforesaid Resolution but to no avail. The same was denied by the
COMELEC in its en banc Resolution of January 15, 1999.
Undaunted, petitioner found his way to this Court via the present petition; questioning the citizenship of private respondent
Rosalind Ybasco Lopez.
The Commission on Elections ruled that private respondent Rosalind Ybasco Lopez is a Filipino citizen and therefore,
qualified to run for a public office because (1) her father, Telesforo Ybasco, is a Filipino citizen, and by virtue of the
principle of jus sanguinis she was a Filipino citizen under the 1987 Philippine Constitution; (2) she was married to a
Filipino, thereby making her also a Filipino citizen ipso jure under Section 4 of Commonwealth Act 473; (3) and that, she
renounced her Australian citizenship on January 15, 1992 before the Department of Immigration and Ethnic Affairs of
Australia and her Australian passport was accordingly cancelled as certified to by the Australian Embassy in Manila; and
(4) furthermore, there are the COMELEC Resolutions in EPC No. 92-54 and SPA Case No. 95-066, declaring her a
Filipino citizen duly qualified to run for the elective position of Davao Oriental governor.chanrob1es virtua1 1aw 1ibrary
Petitioner, on the other hand, maintains that the private respondent is an Australian citizen, placing reliance on the
admitted facts that:chanrob1es virtual 1aw library
a) In 1988, private respondent registered herself with the Bureau of Immigration as an Australian national and was issued
Alien Certificate of Registration No. 404695 dated September 19, 1988;chanrob1es virtua1 1aw 1ibrary
b) On even date, she applied for the issuance of an Immigrant Certificate of Residence (ICR); and
c) She was issued Australian Passport No. H700888 on March 3, 1988.
Petitioner theorizes that under the aforestated facts and circumstances, the private respondent had renounced her Filipino
citizenship. He contends that in her application for alien certificate of registration and immigrant certificate of residence,
private respondent expressly declared under oath that she was a citizen or subject of Australia; and said declaration
forfeited her Philippine citizenship, and operated to disqualify her to run for elective office.
As regards the COMELECs finding that private respondent had renounced her Australian citizenship on January 15, 1992
before the Department of Immigration and Ethnic Affairs of Australia and had her Australian passport cancelled on
February 11, 1992, as certified to by the Australian Embassy here in Manila, petitioner argues that the said acts did not
automatically restore the status of private respondent as a Filipino citizen. According to petitioner, for the private
respondent to reacquire Philippine citizenship she must comply with the mandatory requirements for repatriation under
Republic Act 8171; and the election of private respondent to public office did not mean the restoration of her Filipino
citizenship since the private respondent was not legally repatriated. Coupled with her alleged renunciation of Australian
citizenship, private respondent has effectively become a stateless person and as such, is disqualified to run for a public
office in the Philippines; petitioner concluded.
Petitioner theorizes further that the Commission on Elections erred in applying the principle of res judicata to the case
under consideration; citing the ruling in Moy Ya Lim Yao v. Commissioner of Immigration, 3 that:jgc:chanrobles.com.ph
". . . Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever the
corresponding court or administrative authority decides therein as to such citizenship is generally not considered as res
adjudicata, hence it has to be threshed out again and again as the occasion may demand. . . ."cralaw virtua1aw library
The petition is unmeritorious.
The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a child follows the nationality or
citizenship of the parents regardless of the place of his/her birth, as opposed to the doctrine of jus soli which determines
nationality or citizenship on the basis of place of birth.chanrob1es virtua1 1aw 1ibrary
Private respondent Rosalind Ybasco Lopez was born on May 16, 1934 in Napier Terrace, Broome, Western Australia, to
the spouses, Telesforo Ybasco, a Filipino citizen and native of Daet, Camarines Norte, and Theresa Marquez, an
Australian. Historically, this was a year before the 1935 Constitution took into effect and at that time, what served as the
Constitution of the Philippines were the principal organic acts by which the United States governed the country. These
were the Philippine Bill of July 1, 1902 and the Philippine Autonomy Act of August 29, 1916, also known as the Jones Law.

Among others, these laws defined who were deemed to be citizens of the Philippine islands. The Philippine Bill of 1902
defined Philippine citizens as:chanrob1es virtual 1aw library
SEC. 4. . . . all inhabitants of the Philippine Islands continuing to reside therein who were Spanish subjects on the
eleventh day of April, eighteen hundred and ninety-nine, and then resided in the Philippine Islands, and their children born
subsequent thereto. shall be deemed and held to be citizens of the Philippine Islands and as such entitled to the
protection of the United States, except such as shall have elected to preserve their allegiance to the Crown of Spain in
accordance with the provisions of the treaty of peace between the United States and Spain signed at Paris December
tenth, eighteen hundred and ninety-eight. (Emphasis ours)cralawred
The Jones Law, on the other hand, provides:chanrob1es virtual 1aw library
SEC. 2. That all inhabitants of the Philippine Islands who were Spanish subjects on the eleventh day of April. eighteen
hundred and ninety-nine. and then resided in said Islands. and their children born subsequent thereto. shall be deemed
and held to be citizens of the Philippine Islands, except such as shall have elected to preserve their allegiance to the
Crown of Spain in accordance with the provisions of the treaty of peace between the United States and Spain, signed at
Paris December tenth, eighteen hundred and ninety-eight, and except such others as have since become citizens of some
other country: Provided, That the Philippine Legislature, herein provided for, is hereby authorized to provide by law for the
acquisition of Philippine citizenship by those natives of the Philippine Islands who cannot come within the foregoing
provisions, the natives of the insular possessions of the United States, and such other persons residing in the Philippine
Islands who are citizens of the United States, or who could become citizens of the United States under the laws of the
United States if residing therein. (Emphasis ours)
Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on April 11, 1899 and resided
therein including their children are deemed to be Philippine citizens. Private respondents father, Telesforo Ybasco, was
born on January 5, 1879 in Daet, Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the
Registry of Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was deemed to be a
Philippine citizen. By virtue of the same laws, which were the laws in force at the time of her birth, Telesforos daughter,
herein private respondent Rosalind Ybasco Lopez, is likewise a citizen of the Philippines.chanrob1es virtua1 1aw 1ibrary
The signing into law of the 1935 Philippine Constitution has established the principle of jus sanguinis as basis for the
acquisition of Philippine citizenship, to wit:chanrob1es virtual 1aw library
(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution.
(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution had been elected
to public office in the Philippine Islands.
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine
citizenship.
(5) Those who are naturalized in accordance with law.chanrob1es virtua1 1aw 1ibrary
So also, the principle of jus sanguinis, which confers citizenship by virtue of blood relationship, was subsequently retained
under the 1973 4 and 1987 5 Constitutions. Thus, the herein private respondent, Rosalind Ybasco Lopez, is a Filipino
citizen, having been born to a Filipino father. The fact of her being born in Australia is not tantamount to her losing her
Philippine citizenship. If Australia follows the principle of jus soli, then at most, private respondent can also claim
Australian citizenship resulting to her possession of dual citizenship.
Petitioner also contends that even on the assumption that the private respondent is a Filipino citizen, she has nonetheless
renounced her Philippine citizenship. To buttress this contention, petitioner cited private respondents application for an
Alien Certificate of Registration (ACR) and Immigrant Certificate of Residence (ICR), on September 19, 1988, and the
issuance to her of an Australian passport on March 3, 1988.
Under Commonwealth Act No. 63, a Filipino citizen may lose his citizenship:chanrob1es virtual 1aw library
(1) By naturalization in a foreign country;
(2) By express renunciation of citizenship;

(3) By subscribing to an oath of allegiance to support the constitution or laws of a foreign county upon attaining twentyone years of age or more;
(4) By accepting commission in the military, naval or air service of a foreign country;
(5) By cancellation of the certificate of naturalization;chanrob1es virtua1 1aw 1ibrary
(6) By having been declared by competent authority, a deserter of the Philippine Armed forces in time of war, unless
subsequently, a plenary pardon or amnesty has been granted; and
(7) In case of a woman, upon her manage, to a foreigner if, by virtue of the laws in force in her husbands country, she
acquires his nationality.
In order that citizenship may be lost by renunciation, such renunciation must be express. Petitioners contention that the
application of private respondent for an alien certificate of registration, and her Australian passport, is bereft of merit. This
issue was put to rest in the case of Aznar v. COMELEC 6 and in the more recent case of Mercado v. Manzano and
COMELEC. 7
In the case of Aznar, the Court ruled that the mere fact that respondent Osmena was a holder of a certificate stating that
he is an American did not mean that he is no longer a Filipino, and that an application for an alien certificate of registration
was not tantamount to renunciation of his Philippine citizenship.
And, in Mercado v. Manzano and COMELEC, it was held that the fact that respondent Manzano was registered as an
American citizen in the Bureau of Immigration and Deportation and was holding an American passport on April 22, 1997,
only a year before he filed a certificate of candidacy for vice-mayor of Makati, were just assertions of his American
nationality before the termination of his American citizenship.cralaw : red
Thus, the mere fact that private respondent Rosalind Ybasco Lopez was a holder of an Australian passport and had an
alien certificate of registration are not acts constituting an effective renunciation of citizenship and do not militate against
her claim of Filipino citizenship. For renunciation to effectively result in the loss of citizenship, the same must be express.
8 As held by this court in the aforecited case of Aznar, an application for an alien certificate of registration does not
amount to an express renunciation or repudiation of ones citizenship. The application of the herein private respondent for
an alien certificate of registration, and her holding of an Australian passport, as in the case of Mercado v. Manzano, were
mere acts of assertion of her Australian citizenship before she effectively renounced the same. Thus, at the most, private
respondent had dual citizenship she was an Australian and a Filipino, as well.chanrob1es virtua1 1aw 1ibrary
Moreover, under Commonwealth Act 63, the fact that a child of Filipino parents was born in another country has not been
included as a ground for losing ones Philippine citizenship. Since private respondent did not lose or renounce her
Philippine citizenship, petitioners claim that respondent must go through the process of repatriation does not hold water.
Petitioner also maintains that even on the assumption that the private respondent had dual citizenship, still, she is
disqualified to run for governor of Davao Oriental; citing Section 40 of Republic Act 7160 otherwise known as the Local
Government Code of 1991, which states:jgc:chanrobles.com.ph
"SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local
position:chanrob1es virtual 1aw library
x

(d) Those with dual citizenship;

Again, petitioners contention is untenable.

In the aforecited case of Mercado v. Manzano, the Court clarified "dual citizenship" as used in the Local Government
Code and reconciled the same with Article IV, Section 5 of the 1987 Constitution on dual allegiance. 9 Recognizing
situations in which a Filipino citizen may, without performing any act, and as an involuntary consequence of the conflicting
laws of different countries, be also a citizen of another state, the Court explained that dual citizenship as a disqualification
must refer to citizens with dual allegiance. The Court succinctly pronounced:chanrob1es virtua1 1aw 1ibrary

". . . the phrase dual citizenship in R.A. No. 7160, ... 40 (d) and in R.A. No. 7854, . . . 20 must be understood as referring
to dual allegiance. Consequently, persons with mere dual citizenship do not fall under this disqualification."cralaw
virtua1aw library
Thus, the fact that the private respondent had dual citizenship did not automatically disqualify her from running for a public
office. Furthermore, it was ruled that for candidates with dual citizenship, it is enough that they elect Philippine citizenship
upon the filing of their certificate of candidacy, to terminate their status as persons with dual citizenship. 10 The filing of a
certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any disqualification as a dual citizen.
11 This is so because in the certificate of candidacy, one declares that he/she is a Filipino citizen and that he/she will
support and defend the Constitution of the Philippines and will maintain true faith and allegiance thereto. Such declaration,
which is under oath, operates as an effective renunciation of foreign citizenship. Therefore, when the herein private
respondent filed her certificate of candidacy in 1992, such fact alone terminated her Australian citizenship.cralaw : red
Then, too, it is significant to note that on January 15, 1992, private respondent executed a Declaration of Renunciation of
Australian Citizenship, duly registered in the Department of Immigration and Ethnic Affairs of Australia on May 12, 1992.
And, as a result, on February 11, 1992, the Australian passport of private respondent was cancelled, as certified to by
Second Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the COMELEC, the
aforesaid acts were enough to settle the issue of the alleged dual citizenship of Rosalind Ybasco Lopez. Since her
renunciation was effective, petitioners claim that private respondent must go through the whole process of repatriation
holds no water.
Petitioner maintains further that when citizenship is raised as an issue in judicial or administrative proceedings, the
resolution or decision thereon is generally not considered res judicata in any subsequent proceeding challenging the
same; citing the case of Moy Ya Lim Yao v. Commissioner of Immigration. 12 He insists that the same issue of citizenship
may be threshed out anew.
Petitioner is correct insofar as the general rule is concerned, i.e. the principle of res judicata generally does not apply in
cases hinging on the issue of citizenship. However, in the case of Burca v. Republic, 13 an exception to this general rule
was recognized. The Court ruled in that case that in order that the doctrine of res judicata may be applied in cases of
citizenship, the following must be present:chanrob1es virtual 1aw library
1) a persons citizenship be raised as a material issue in a controversy where said person is a party;
2) the Solicitor General or his authorized representative took active part in the resolution thereof; and
3) the finding on citizenship is affirmed by this Court.chanrob1es virtua1 1aw 1ibrary
Although the general rule was set forth in the case of Moy Ya Lim Yao, the case did not foreclose the weight of prior
rulings on citizenship. It elucidated that reliance may somehow be placed on these antecedent official findings, though not
really binding, to make the effort easier or simpler. 14 Indeed, there appears sufficient basis to rely on the prior rulings of
the Commission on Elections in SPA.-No. 95-066 and EPC 92-54 which resolved the issue of citizenship in favor of the
herein private Respondent. The evidence adduced by petitioner is substantially the same evidence presented in these two
prior cases. Petitioner failed to show any new evidence or supervening event to warrant a reversal of such prior
resolutions. However, the procedural issue notwithstanding, considered on the merits, the petition cannot prosper.
WHEREFORE, the petition is hereby DISMISSED and the COMELEC Resolutions, dated July 17, 1998 and January 15,
1999, respectively, in SPA No. 98-336 AFFIRMED.chanrob1es virtua1 1aw 1ibrary
Private respondent Rosalind Ybasco Lopez is hereby adjudged qualified to run for governor of Davao Oriental. No
pronouncement as to costs.
SO ORDERED.

*** G.R. No. 151914

July 31, 2002

TEODULO M. COQUILLA, petitioner,

vs.
THE HON. COMMISSION ON ELECTIONS and MR. NEIL M. ALVAREZ, respondents.

MENDOZA, J.:

This is a petition for certiorari to set aside the resolution,1 dated July 19, 2001, of the Second Division of the Commission
on Elections (COMELEC), ordering the cancellation of the certificate of candidacy of petitioner Teodulo M. Coquilla for the
position of mayor of Oras, Eastern Samar in the May 14, 2001 elections and the order, dated January 30, 2002, of the
COMELEC en banc denying petitioners motion for reconsideration.

The facts are as follows:

Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern Samar. He grew up and resided
there until 1965, when he joined the United States Navy. He was subsequently naturalized as a U.S. citizen.2 From 1970
to 1973, petitioner thrice visited the Philippines while on leave from the U.S. Navy.3 Otherwise, even after his retirement
from the U.S. Navy in 1985, he remained in the United States.

On October 15, 1998, petitioner came to the Philippines and took out a residence certificate, although he continued
making several trips to the United States, the last of which took place on July 6, 2000 and lasted until August 5, 2000.4
Subsequently, petitioner applied for repatriation under R.A. No. 81715 to the Special Committee on Naturalization. His
application was approved on November 7, 2000, and, on November 10, 2000, he took his oath as a citizen of the
Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on November 10, 2000 and Bureau of
Immigration Identification Certificate No. 115123 on November 13, 2000.

On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras, Eastern Samar. His application was
approved by the Election Registration Board on January 12, 2001.6 On February 27, 2001, he filed his certificate of
candidacy stating therein that he had been a resident of Oras, Eastern Samar for "two (2) years."7

On March 5, 2001, respondent Neil M. Alvarez, who was the incumbent mayor of Oras and who was running for
reelection, sought the cancellation of petitioners certificate of candidacy on the ground that the latter had made a material
misrepresentation in his certificate of candidacy by stating that he had been a resident of Oras for two years when in truth
he had resided therein for only about six months since November 10, 2000, when he took his oath as a citizen of the
Philippines.

The COMELEC was unable to render judgment on the case before the elections on May 14, 2001. Meanwhile, petitioner
was voted for and received the highest number of votes (6,131) against private respondents 5,752 votes, or a margin of

379 votes. On May 17, 2001, petitioner was proclaimed mayor of Oras by the Municipal Board of Canvassers.8 He
subsequently took his oath of office.

On July 19, 2001, the Second Division of the COMELEC granted private respondents petition and ordered the
cancellation of petitioners certificate of candidacy on the basis of the following findings:

Respondents frequent or regular trips to the Philippines and stay in Oras, Eastern Samar after his retirement from the
U.S. Navy in 1985 cannot be considered as a waiver of his status as a permanent resident or immigrant . . . of the U.S.A.
prior to November 10, 2000 as would qualify him to acquire the status of residency for purposes of compliance with the
one-year residency requirement of Section 39(a) of the Local Government Code of 1991 in relation to Sections 65 and 68
of the Omnibus Election Code. The one (1) year residency requirement contemplates of the actual residence of a Filipino
citizen in the constituency where he seeks to be elected.

All things considered, the number of years he claimed to have resided or stayed in Oras, Eastern Samar since 1985 as an
American citizen and permanent resident of the U.S.A. before November 10, 2000 when he reacquired his Philippine
citizenship by [repatriation] cannot be added to his actual residence thereat after November 10, 2000 until May 14, 2001
to cure his deficiency in days, months, and year to allow or render him eligible to run for an elective office in the
Philippines. Under such circumstances, by whatever formula of computation used, respondent is short of the one-year
residence requirement before the May 14, 2001 elections.9

Petitioner filed a motion for reconsideration, but his motion was denied by the COMELEC en banc on January 30, 2002.
Hence this petition.

I.

Two questions must first be resolved before considering the merits of this case: (a) whether the 30-day period for
appealing the resolution of the COMELEC was suspended by the filing of a motion for reconsideration by petitioner and
(b) whether the COMELEC retained jurisdiction to decide this case notwithstanding the proclamation of petitioner.

A.
With respect to the first question, private respondent contends that the petition in this case should be dismissed
because it was filed late; that the COMELEC en banc had denied petitioners motion for reconsideration for being pro
forma; and that, pursuant to Rule 19, 4 of the COMELEC Rules of Procedure, the said motion did not suspend the
running of the 30-day period for filing this petition. He points out that petitioner received a copy of the resolution, dated
July 19, 2001, of the COMELECs Second Division on July 28, 2001, so that he had only until August 27, 2001 within
which to file this petition. Since the petition in this case was filed on February 11, 2002, the same should be considered as
having been filed late and should be dismissed.

Private respondents contention has no merit.

Rule 19 of the COMELEC Rules of Procedure provides in pertinent parts:

Sec. 2. Period for Filing Motions for Reconsideration. A motion to reconsider a decision, resolution, order, or ruling of a
Division shall be filed within five days from the promulgation thereof. Such motion, if not pro-forma, suspends the
execution for implementation of the decision, resolution, order, or ruling.

Sec. 4. Effect of Motion for Reconsideration on Period to Appeal. A motion to reconsider a decision, resolution, order, or
ruling, when not pro-forma, suspends the running of the period to elevate the matter to the Supreme Court.

The five-day period for filing a motion for reconsideration under Rule 19, 2 should be counted from the receipt of the
decision, resolution, order, or ruling of the COMELEC Division.10 In this case, petitioner received a copy of the resolution
of July 19, 2001 of the COMELECs Second Division on July 28, 2001. Five days later, on August 2, 2001, he filed his
motion for reconsideration. On February 6, 2002, he received a copy of the order, dated January 30, 2002, of the
COMELEC en banc denying his motion for reconsideration. Five days later, on February 11, 2002, he filed this petition for
certiorari. There is no question, therefore, that petitioners motion for reconsideration of the resolution of the COMELEC
Second Division, as well as his petition for certiorari to set aside of the order of the COMELEC en banc, was filed within
the period provided for in Rule 19, 2 of the COMELEC Rules of Procedure and in Art. IX(A), 7 of the Constitution.

It is contended, however, that petitioners motion for reconsideration before the COMELEC en banc did not suspend the
running of the period for filing this petition because the motion was pro forma and, consequently, this petition should have
been filed on or before August 27, 2001. It was actually filed, however, only on February 11, 2002. Private respondent
cites the finding of the COMELEC en banc that

An incisive examination of the allegations in the Motion for Reconsideration shows that the same [are] a mere rehash of
his averments contained in his Verified Answer and Memorandum. Neither did respondent raise new matters that would
sufficiently warrant a reversal of the assailed resolution of the Second Division. This makes the said Motion pro forma.11

We do not think this contention is correct. The motion for reconsideration was not pro forma and its filing did suspend the
period for filing the petition for certiorari in this case. The mere reiteration in a motion for reconsideration of the issues
raised by the parties and passed upon by the court does not make a motion pro forma; otherwise, the movants remedy
would not be a reconsideration of the decision but a new trial or some other remedy.12 But, as we have held in another
case:13

Among the ends to which a motion for reconsideration is addressed, one is precisely to convince the court that its ruling is
erroneous and improper, contrary to the law or the evidence; and in doing so, the movant has to dwell of necessity upon
the issues passed upon by the court. If a motion for reconsideration may not discuss these issues, the consequence
would be that after a decision is rendered, the losing party would be confined to filing only motions for reopening and new
trial.

Indeed, in the cases where a motion for reconsideration was held to be pro forma, the motion was so held because (1) it
was a second motion for reconsideration,14 or (2) it did not comply with the rule that the motion must specify the findings
and conclusions alleged to be contrary to law or not supported by the evidence,15 or (3) it failed to substantiate the
alleged errors,15 or (4) it merely alleged that the decision in question was contrary to law,17 or (5) the adverse party was
not given notice thereof.18 The 16-page motion for reconsideration filed by petitioner in the COMELEC en banc suffers

from none of the foregoing defects, and it was error for the COMELEC en banc to rule that petitioners motion for
reconsideration was pro forma because the allegations raised therein are a mere "rehash" of his earlier pleadings or did
not raise "new matters." Hence, the filing of the motion suspended the running of the 30-day period to file the petition in
this case, which, as earlier shown, was done within the reglementary period provided by law.

B. As stated before, the COMELEC failed to resolve private respondents petition for cancellation of petitioners certificate
of candidacy before the elections on May 14, 2001. In the meantime, the votes were canvassed and petitioner was
proclaimed elected with a margin of 379 votes over private respondent. Did the COMELEC thereby lose authority to act
on the petition filed by private respondent?

R.A. No. 6646 provides:

SECTION 6. Effect 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. (Emphasis added)

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove
provided shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of
Batas Pambansa Blg. 881.

The rule then is that candidates who are disqualified by final judgment before the election shall not be voted for and the
votes cast for them shall not be counted. But those against whom no final judgment of disqualification had been rendered
may be voted for and proclaimed, unless, on motion of the complainant, the COMELEC suspends their proclamation
because the grounds for their disqualification or cancellation of their certificates of candidacy are strong. Meanwhile, the
proceedings for disqualification of candidates or for the cancellation or denial of certificates of candidacy, which have been
begun before the elections, should continue even after such elections and proclamation of the winners. In Abella v.
COMELEC19 and Salcedo II v. COMELEC,20 the candidates whose certificates of candidacy were the subject of petitions
for cancellation were voted for and, having received the highest number of votes, were duly proclaimed winners. This
Court, in the first case, affirmed and, in the second, reversed the decisions of the COMELEC rendered after the
proclamation of candidates, not on the ground that the latter had been divested of jurisdiction upon the candidates
proclamation but on the merits.

II.

On the merits, the question is whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year before
the elections held on May 14, 2001 as he represented in his certificate of candidacy. We find that he had not.

First, 39(a) of the Local Government Code (R.A No. 7160) provides:

Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province or, in the case of a member of the sangguniang panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write Filipino or any other local language or dialect. (Emphasis
added)

The term "residence" is to be understood not in its common acceptation as referring to "dwelling" or "habitation,"21 but
rather to "domicile" or legal residence,22 that is, "the place where a party actually or constructively has his permanent
home, where he, no matter where he may be found at any given time, eventually intends to return and remain (animus
manendi)."23 A domicile of origin is acquired by every person at birth. It is usually the place where the childs parents
reside and continues until the same is abandoned by acquisition of new domicile (domicile of choice).24

In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen after enlisting in the U.S. Navy in
1965. From then on and until November 10, 2000, when he reacquired Philippine citizenship, petitioner was an alien
without any right to reside in the Philippines save as our immigration laws may have allowed him to stay as a visitor or as
a resident alien.

Indeed, residence in the United States is a requirement for naturalization as a U.S. citizen. Title 8, 1427(a) of the United
States Code provides:

Requirements of naturalization. Residence

(a) No person, except as otherwise provided in this subchapter, shall be naturalized unless such applicant, (1)
immediately preceding the date of filing his application for naturalization has resided continuously, after being lawfully
admitted for permanent residence, within the United States for at least five years and during the five years immediately
preceding the date of filing his petition has been physically present therein for periods totaling at least half of that time,
and who has resided within the State or within the district of the Service in the United States in which the applicant filed
the application for at least three months, (2) has resided continuously within the United States from the date of the
application up to the time of admission to citizenship, and (3) during all the period referred to in this subsection has been
and still is a person of good moral character, attached to the principles of the Constitution of the United States, and well
disposed to the good order and happiness of the United States. (Emphasis added)

In Caasi v. Court of Appeals,25 this Court ruled that immigration to the United States by virtue of a "greencard," which
entitles one to reside permanently in that country, constitutes abandonment of domicile in the Philippines. With more
reason then does naturalization in a foreign country result in an abandonment of domicile in the Philippines.

Nor can petitioner contend that he was "compelled to adopt American citizenship" only by reason of his service in the U.S.
armed forces.26 It is noteworthy that petitioner was repatriated not under R.A. No. 2630, which applies to the repatriation
of those who lost their Philippine citizenship by accepting commission in the Armed Forces of the United States, but under
R.A. No. 8171, which, as earlier mentioned, provides for the repatriation of, among others, natural-born Filipinos who lost
their citizenship on account of political or economic necessity. In any event, the fact is that, by having been naturalized

abroad, he lost his Philippine citizenship and with it his residence in the Philippines. Until his reacquisition of Philippine
citizenship on November 10, 2000, petitioner did not reacquire his legal residence in this country.

Second, it is not true, as petitioner contends, that he reestablished residence in this country in 1998 when he came back
to prepare for the mayoralty elections of Oras by securing a Community Tax Certificate in that year and by "constantly
declaring" to his townmates of his intention to seek repatriation and run for mayor in the May 14, 2001 elections.27 The
status of being an alien and a non-resident can be waived either separately, when one acquires the status of a resident
alien before acquiring Philippine citizenship, or at the same time when one acquires Philippine citizenship. As an alien, an
individual may obtain an immigrant visa under 1328 of the Philippine Immigration Act of 1948 and an Immigrant
Certificate of Residence (ICR)29 and thus waive his status as a non-resident. On the other hand, he may acquire
Philippine citizenship by naturalization under C.A. No. 473, as amended, or, if he is a former Philippine national, he may
reacquire Philippine citizenship by repatriation or by an act of Congress,30 in which case he waives not only his status as
an alien but also his status as a non-resident alien.

In the case at bar, the only evidence of petitioners status when he entered the country on October 15, 1998, December
20, 1998, October 16, 1999, and June 23, 2000 is the statement "Philippine Immigration [] Balikbayan" in his 1998-2008
U.S. passport. As for his entry on August 5, 2000, the stamp bore the added inscription "good for one year stay."31 Under
2 of R.A. No. 6768 (An Act Instituting a Balikbayan Program), the term balikbayan includes a former Filipino citizen who
had been naturalized in a foreign country and comes or returns to the Philippines and, if so, he is entitled, among others,
to a "visa-free entry to the Philippines for a period of one (1) year" (3(c)). It would appear then that when petitioner
entered the country on the dates in question, he did so as a visa-free balikbayan visitor whose stay as such was valid for
one year only. Hence, petitioner can only be held to have waived his status as an alien and as a non-resident only on
November 10, 2000 upon taking his oath as a citizen of the Philippines under R.A. No. 8171.32 He lacked the requisite
residency to qualify him for the mayorship of Oras, Eastern, Samar.

Petitioner invokes the ruling in Frivaldo v. Commission on Elections33 in support of his contention that the residency
requirement in 39(a) of the Local Government Code includes the residency of one who is not a citizen of the Philippines.
Residency, however, was not an issue in that case and this Court did not make any ruling on the issue now at bar. The
question in Frivaldo was whether petitioner, who took his oath of repatriation on the same day that his term as governor of
Sorsogon began on June 30, 1995, complied with the citizenship requirement under 39(a). It was held that he had,
because citizenship may be possessed even on the day the candidate assumes office. But in the case of residency, as
already noted, 39(a) of the Local Government Code requires that the candidate must have been a resident of the
municipality "for at least one (1) year immediately preceding the day of the election."

Nor can petitioner invoke this Courts ruling in Bengzon III v. House of Representatives Electoral Tribunal.34 What the
Court held in that case was that, upon repatriation, a former natural-born Filipino is deemed to have recovered his original
status as a natural-born citizen.

Third, petitioner nonetheless says that his registration as a voter of Butnga, Oras, Eastern Samar in January 2001 is
conclusive of his residency as a candidate because 117 of the Omnibus Election Code requires that a voter must have
resided in the Philippines for at least one year and in the city or municipality wherein he proposes to vote for at least six
months immediately preceding the election. As held in Nuval v. Guray,35 however, registration as a voter does not bar the
filing of a subsequent case questioning a candidates lack of residency.

Petitioners invocation of the liberal interpretation of election laws cannot avail him any. As held in Aquino v. Commission
on Elections:36

A democratic government is necessarily a government of laws. In a republican government those laws are themselves
ordained by the people. Through their representatives, they dictate the qualifications necessary for service in government
positions. And as petitioner clearly lacks one of the essential qualifications for running for membership in the House of
Representatives, not even the will of a majority or plurality of the voters of the Second District of Makati City would
substitute for a requirement mandated by the fundamental law itself.

Fourth, petitioner was not denied due process because the COMELEC failed to act on his motion to be allowed to present
evidence. Under 5(d), in relation to 7, of R.A. No. 6646 (Electoral Reforms Law of 1987), proceedings for denial or
cancellation of a certificate of candidacy are summary in nature. The holding of a formal hearing is thus not de rigeur. In
any event, petitioner cannot claim denial of the right to be heard since he filed a Verified Answer, a Memorandum and a
Manifestation, all dated March 19, 2001, before the COMELEC in which he submitted documents relied by him in this
petition, which, contrary to petitioners claim, are complete and intact in the records.

III.

The statement in petitioners certificate of candidacy that he had been a resident of Oras, Eastern Samar for "two years"
at the time he filed such certificate is not true. The question is whether the COMELEC was justified in ordering the
cancellation of his certificate of candidacy for this reason. We hold that it was. Petitioner made a false representation of a
material fact in his certificate of candidacy, thus rendering such certificate liable to cancellation. The Omnibus Election
Code provides:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation imposed
by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election.

Indeed, it has been held that a candidates statement in her certificate of candidacy for the position of governor of Leyte
that she was a resident of Kananga, Leyte when this was not so37 or that the candidate was a "natural-born" Filipino
when in fact he had become an Australian citizen38 constitutes a ground for the cancellation of a certificate of candidacy.
On the other hand, we held in Salcedo II v. COMELEC39 that a candidate who used her husbands family name even

though their marriage was void was not guilty of misrepresentation concerning a material fact. In the case at bar, what is
involved is a false statement concerning a candidates qualification for an office for which he filed the certificate of
candidacy. This is a misrepresentation of a material fact justifying the cancellation of petitioners certificate of candidacy.
The cancellation of petitioners certificate of candidacy in this case is thus fully justified.

WHEREFORE, the petition is DISMISSED and the resolution of the Second Division of the Commission on Elections,
dated July 19, 2001, and the order, dated January 30, 2002 of the Commission on Elections en banc are AFFIRMED.

SO ORDERED.

*** G.R. No. 179413

November 28, 2008

PRISCILA R. JUSTIMBASTE, petitioner,

vs.
COMMISSION ON ELECTIONS and RUSTICO B. BALDERIAN, respondents.

DECISION

CARPIO MORALES, J.:

On challenge via Certiorari and Prohibition is the Commission on Elections (COMELEC) en banc Resolution of August 21,
20071 affirming the May 28, 20072 Resolution of its Second Division dismissing the petition for disqualification filed by
Priscila R. Justimbaste (petitioner) against Rustico B. Balderian (private respondent).

Gathered from the records of the case are the following antecedent facts:

On April 3, 2007, petitioner filed with the Office of the Leyte Provincial Election Supervisor a petition to disqualify private
respondent as a candidate for mayor of Tabontabon, Leyte during the May 14, 2007 elections. In the main, petitioner
alleged:

2.3. That the Respondent committed falsification and misinterpretation in his application for candidacy for mayor as
follows;

a. That while Respondent stated in the application [that] his name is Rustico Besa Balderian, his real name is CHU TECK
SIAO as shown in the Certificate of Birth issued by the National Statistic Office, copy of which is hereto attached as
"Annex B". (sic)

b. That the Respondent had been using as his middle name BESA, while his brother Bienvenido is using the middle name
SIAO, as shown by "Annexes C and D", a copy of which [is] hereto attached, thereby confusing the public as to his
identity.

c. That the Respondent is reportedly a U.S. citizen or Permanent resident of the United States and has not reportedly
relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy
for mayor. (Emphasis and underscoring supplied)3

Private respondent denied petitioners allegations, he asserting that he is a Filipino citizen.

In her Position Paper filed before the COMELEC, petitioner attached a record of private respondents travels from 1998 to
2006, as certified by the Bureau of Immigration;4 a photocopy of private respondents Philippine Passport5 issued on
November 6, 2002 by the Philippine Consulate in Los Angeles which shows his nationality as a Filipino; a Certification
from the National Statistics Office dated April 4, 2007 for one Rustico S. Balderian6 and another for one Rustico B.
Balderian;7 a Certification from the Office of the Civil Registrar of Tabontabon dated March 30, 2007 as to the fact of birth
of one Chu Teck Siao to Peter Siao and Zosima Balderian;8 and a Certification from the Office of the Clerk of Court of the
Regional Trial Court, Tacloban City that the records of the Petition for Change of Name of private respondent "is (sic) not
available in the records of this office."9

In the meantime, private respondent won and was proclaimed as mayor of Tabontabon.

By Resolution of May 28, 2007, the Second Division of the COMELEC denied the petition for disqualification, disposing as
follows:

WHEREFORE, premises considered the instant petition for disqualification is denied and the respondent Rustico B.
Balderian is considered a Filipino, having elected to be and is thus qualified to run as Mayor of the Municipality of
Tabontabon, Leyte. (Emphasis and underscoring supplied)

As reflected early on, petitioners Motion for Reconsideration of the COMELEC Second Division Resolution was denied by
the banc, hence, the present petition.

The issue in the main is whether private respondent committed material misrepresentation and falsification in his
certificate of candidacy.

Section 74 of the Omnibus Election Code (OEC) provides that the contents of the certificate of candidacy must be true to
the best of the candidates knowledge, thus:

SEC. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the Batasang
Pambansa, the province, including its component cities, highly urbanized city or district or sector which he seeks to
represent; the political party to which he belongs; civil status; his date of birth; residence; his post office address for all
election purposes; his profession or occupation; that he will support and defend the Constitution of the Philippines and will
maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and decrees promulgated by the duly
constituted authorities; that he is not a permanent resident or immigrant to a foreign country; that the obligation assumed

by his oath is assumed voluntarily, without mental reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge. (Emphasis and underscoring supplied)

If the certificate contains a material representation which is false, Section 78 provides the procedure to challenge the
same, thus:

SEC. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by any person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing not later than fifteen days before the election. (Emphasis and underscoring supplied)

Material misrepresentation as a ground to deny due course or cancel a certificate of candidacy refers to the falsity of a
statement required to be entered therein, as enumerated in above-quoted Section 74 of the Omnibus Election Code.
Concurrent with materiality is a deliberate intention to deceive the electorate as to ones qualifications. Thus Salcedo II v.
Commission on Elections10 reiterates:

As stated in law, in order to justify the cancellation of the certificate of candidacy under Section 78, it is essential that the
false representation mentioned therein pertained to a material matter for the sanction imposed by this provision would
affect the substantive rights of a candidate the right to run for the elective post for which he filed the certificate of
candidacy.11

xxxx

Therefore, it may be concluded that the material misrepresentation contemplated by Section 78 of the Code refers to the
qualifications for elective office. This conclusion is strengthened by the fact that the consequences imposed upon a
candidate guilty of having made a false representation in his certificate of candidacy are grave to prevent the candidate
from running or, if elected, from serving, or to prosecute him for violation of election laws. It could not have been the
intention of the law to deprive a person of such a basic and substantive political right to be voted for a public office upon
just any innocuous mistake.12

xxxx

Aside from the requirement of materiality, a false representation under Section 78 must consist of a "deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a candidate ineligible." In other words, it must be made
with an intention to deceive the electorate as to ones qualifications for public office. x x x13 (Emphasis and underscoring
supplied)

The pertinent provision of Republic Act No. 7160 or the Local Government Code (LGC) governing qualifications for
elective municipal officials14 reads:

SEC. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province or in the case of a member of the sangguniang panlalawigan, sangguniang
panlungsod or sangguniang bayan, the district where he intends to be elected; a resident therein for at least one (1) year
immediately preceding the day of the election; and able to read and write Filipino or any local language or dialect.

(b) Candidates for the position of governor, vice-governor or member of the sangguniang panlalawigan or mayor, vice
mayor or member of the sangguniang panlungsod of highly urbanized cities must be at least twenty three (23) years of
age on election day."

x x x x (Emphasis in the original; underscoring supplied)

Petitioner asserts that private respondent committed material misrepresentation when he stated in his certificate of
candidacy that he is a Filipino citizen and that his name is Rustico Besa Balderian, instead of Chu Teck Siao. Further,
petitioner asserts that the immigration records of private respondent who frequently went to the United States from 1998
up to 2006 reflected the acronyms "BB" and "RP" which petitioner takes to STAND FOR "Balikbayan" and "Re-entry
Permit," thus showing that private respondent either harbors dual citizenship or is a permanent resident of a foreign
country in contravention of Section 40 of the LGC:

Sec. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted of final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or non-political cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and

(g) The insane or feeble-minded. (Emphasis in the original and supplied)

Upon the other hand, private respondent insists on his Filipino citizenship.

Republic Act 676815 provides that a balikbayan is

1. A Filipino citizen who has been continuously out of the Philippines for a period of at least one year;

2. A Filipino overseas worker; or

3. A former Filipino citizen and his or her family, who had been naturalized in a foreign country and comes or returns to the
Philippines.

Re-entry permits are, under the Philippine Immigration Act, issued to lawful resident aliens who depart temporarily from
the Philippines. 16

The record of the case yields no concrete proof to show that private respondent, who holds a Philippine passport, falls
under the third category of a balikbayan (former Filipino citizen).

As noted by public respondent:

[T]he Commission (Second Division) dismissed the instant petition since the same was based on mere conjectures and
surmises. Petitioner never presented clear and convincing evidence that respondent is indeed an American citizen and a
permanent resident of the United States of America. (Emphasis and underscoring supplied)

As in petitioners petition before the COMELEC, as alleged above, she, in her present Petition, is uncertain of private
respondents citizenship or resident status, viz:

c. That the Respondent is reportedly a US citizen or Permanent resident of the United States and has not reportedly
relinquished his allegiance or residence to that foreign country, thus disqualified from filing his application for Candidacy
for mayor. (Emphasis, italics, and underscoring supplied)17

Private respondents notarized photocopy of his Philippine Passport18 issued in 2002, the genuineness and authenticity of
which is not disputed by petitioner, shows that he is a Filipino.

Petitioner insists, however, that private respondent is a Chinese national, following the nationality of his father, Peter Siao.
There are, however, conflicting documentary records bearing on the citizenship of private respondents father. Thus, in the
Certificate of Live Birth of private respondent on file at the Local Civil Registrar of Tabontabon,19 the father is registered
as a Filipino. But in the Certificate of Live Birth of private respondents older brother Bienvenido Balderian,20 the father is
registered as a Chinese.

In private respondents Certificate of Live Birth, the entry on the date, as well as the place of marriage of private
respondents parents, reads "no data available." In his brothers Certificate of Live Birth, the entry on the same desired
information is left blank. In light of these, absent any proof that private respondents parents Peter Siao and Zosima
Balderian21 contracted marriage, private respondent is presumed to be illegitimate, hence, he follows the citizenship of
his mother who is a Filipino.22 As will be reflected shortly, private respondent was, in a certified true copy of a decision
dated August 26, 1976 rendered by then Juvenile and Domestic Relations Court (JDRC) of Leyte and Southern Leyte,
therein noted, as gathered by the said court from the evidence presented, to be an illegitimate child.

Petitioner goes on to bring attention to private respondents filing of a petition for change of name from Chu Teck Siao to
Rustico B. Balderian, which petition, petitioner alleges, is not reflected in the records of the National Statistics Office as
shown by two Certifications from the said agency.

Responding, private respondent confirms that he indeed filed a verified petition for change of name in 1976, docketed as
SP Proc. JP-0121, with the then JDRC of Leyte and Southern Leyte which rendered a decision in his favor in the same
year. He adds that his previous counsel, Atty. Rufino Reyes, sought in 1986 to secure a certified true copy of the decision
but no court records thereof could be found, hence, Branch 7 of the Regional Trial Court (RTC) of Palo, Leyte,
"reconstituted the records" from the file copies of his counsel by Order of November 7, 1986.23

The Court notes that by Order of November 21, 1986, Branch 7 of the Palo RTC, after conducting a hearing, directed the
issuance of a certified true copy of the judgment24 rendered by the JDRC on August 26, 1976. The Order states:

"When this case came on [sic] hearing this morning, Assistant Provincial Fiscal Teresita S. Lopez of Leyte who was then
Clerk of Court of the JDRC of Leyte confirmed the genuineness of the file copy of the aforesaid judgment of Judge Zoila
M. Redoa of the JDRC of Leyte in SP Proc. JP-0121.

WHEREFORE, it is ordered that the clerk of this court issue a certified true copy of the aforesaid judgment in SP Proc. JP0121 dated August 26, 1986 (sic) the dispositive parts of which reads

"Premises considered, the court hereby allows the petitioner (sic) for Change of Name. The petitioner henceforth shall
carry the name of Rustico Balderian as prayed for."

Let a copy of this decision be furnished the Civil Registrar of McArthur, Leyte, for him to make of record this judgment in
his Civil Registry." (Emphasis and underscoring supplied)25

In the certified true copy of the judgment of the JDRC, the following were noted:

At the hearing petitioner presented the following exhibits: "B" the order of the court setting the case for hearing and
ordering its publication; ordering also that a copy be served upon the Office of the Sol. Gen. which was acknowledged
having been received by said office on Nov. 11, 1975 as per return Registry Receipt of the court attached to page 7 of the
record; "C" the Affidavit of Publication of the Asst. Publisher of the "The Reporter" the newspaper of general circulation
which the order was published, "D" the issue of "The Reporter" dated November 12, 1975 and "D-1" the page carried
the order; "E" issue of same newspaper dated November 19, 1975 and "E-1" the column carrying the order; "F" the
issue of said newspaper dated November 26, 1975, and the "F-1", the column carrying the order; "G" the certification of
the Local Civil Registrar; G-1, the place of birth of petitioner; G-2, his date of birth,; G-3, the name of petitioners father
Peter Siao; G-4, and his mothers name Zosima Balderian and G-5, the entry that petitioner is an illegitimate child; which
certification was issued on May 5, 1975 by said public official; "H" petitioners Baptismal Certificate; "H-1" his date of
birth; "H-2" his place of birth; "H-3" that his parents are Peter Siao and Zosima Balderian. Exhibit "I" petitioners
diploma from the Manila Central University where he earned his degree of Optometry on April 6, 1975 and the name of
Rustico Balderian; "J" petitioners official rating issued by the Commissioner of Professional Regulation Commission
under the Board of Optometry issued January 13, 1976 under the name of Rustico B. Balderian; "K" petitioners
registration License No. 3374 with the Professional Regulation Commission for the practice of Optometry; "L"
petitioners Registration Card with the Manila Central University being enrolled in Pre-Medicine Course as of June 1976;
Exhibit "M" his registration card in the University of the East when he cross-enrolled in the College of Law for the second
year 1976-1977; Exhibit "N" Student Pilots License No. 758109 issued by the CAA to fly fixed wings; Exhibit "O" his
Student Pilots License No. 75SH224 issued by Civil Aeronautics Administration allowing him to fly a helicopter.

To the above school records which he earned under the name of Rustico Balderian, the name under which he was
baptized and hereon known to all since he can remember, he never used the alien name of Chua Teck Siao by which he
was registered. He has not been charged with any offense either criminally, civilly or administratively.

His intention in filing the petition is to avoid undergoing the same difficulty and ordeal when he takes the BAR examination
and the Board examination in Medicine as he did when he took the Board Examination in Optometry. After the latter Board
allowed him to take the examination upon the submission of an affidavit of two disinterested persons attesting to the fact
that Chu Teck Siao and Rustico Balderian is one and the same person, he was advised to petition for Change of Name to
avoid confusion.26 (Emphasis and underscoring supplied)

That the records of the Tabontabon Civil Registry still show, by petitioners allegation, that private respondents name is
Chu Teck Siao does not necessarily mean that there was no such petition for change of name and that the certified true
copy of judgment thereon is spurious, especially given that, as highlighted in the above-quoted dispositive portion of the
JDRC decision, it was the Civil Registrar of McArthur, not Tabontabon, which was ordered to be copy-furnished the
decision and "to make of record [its] judgment in his Civil Registry."

AT ALL EVENTS, the use of a name other than that stated in the certificate of birth is not a material misrepresentation,27
as "material misrepresentation" under the earlier-quoted Section 78 of the Omnibus Election Code refers to "qualifications
for elective office." It need not be emphasized that there is no showing that there was an intent to deceive the electorate
as to private respondents identity, nor that by using his Filipino name the voting public was thereby deceived.

Petitioners compilation of online articles/data on private respondent puts on view his profile as Rustico B. Balderian.
Petitioner in fact has not claimed that the electorate did not know who they were voting for when they cast their ballots in
favor of private respondent or that they were deceived into voting for someone else other than him. Given that private

respondent and his family are members of the Colegio de Sta. Lourdes of Leyte Foundation, Inc. which operates a
nursing school in Tabontabon, it may safely be assumed that the electorate had been fully acquainted with him.

Petitioner finally assails the failure of public respondent to conduct hearings on her petition, citing Dayo v. Commission on
Elections28 which held that "an election protest may not be disposed of by summary judgment."29

Section 5 vis--vis Section 7 of Republic Act 664630 provides that the procedure in cases involving nuisance candidates
shall apply to petitions for cancellation of certificate of candidacy.

SECTION 5. Procedure in Cases of Nuisance Candidates.

(a) A Verified petition to declare a duly registered candidate as a nuisance candidate under Section 69 of Batas
Pambansa Blg. 881 shall be filed personally or through duly authorized representative with the Commission by any
registered candidate for the same office within five (5) days from the last day for the filing of certificates of candidacy.
Filing by mail not be allowed.

(b) Within three (3) days from the filing of the petition, the Commission shall issue summons to the respondent candidate
together with a copy of the petition and its enclosures, if any.

(c) The respondent shall be given three (3) days from receipt of the summons within which to file his verified answer (not a
motion to dismiss) to the petition, serving copy thereof upon the petitioner. Grounds for a motion to dismiss may be raised
as a affirmative defenses.

(d) The Commission may designate any of its officials who are lawyers to hear the case and receive evidence. The
proceeding shall be summary in nature. In lieu of oral testimonies, the parties may be required to submit position papers
together with affidavits or counter-affidavits and other documentary evidence. The hearing officer shall immediately submit
to the Commission his findings, reports, and recommendations within five (5) days from the completion of such
submission of evidence. The Commission shall render its decision within five (5) days from receipt thereof.

(e) The decision, order, or ruling of the Commission shall, after five (5) days from receipt of a copy thereof by the parties,
be final and executory unless stayed by the Supreme Court.

(f) The Commission shall within twenty-four hours, through the fastest available means, disseminate its decision or the
decision of the Supreme Court to the city or municipal election registrars, boards of election inspectors and the general
public in the political subdivision concerned. (Underscoring supplied)

SECTION 7. Petition to Deny Due Course To or Cancel a Certificate of Candidacy. The procedure hereinabove provided
shall apply to petitions to deny due course to or cancel a certificate of candidacy as provided in Section 78 of Batas
Pambansa Blg. 881. (Emphasis in the original, underscoring supplied)

Petitioner is reminded that a petition for disqualification based on material misrepresentation in the certificate of candidacy
is different from an election protest. The purpose of an election protest is to ascertain whether the candidate proclaimed
elected by the board of canvassers is really the lawful choice of the electorate.31

In fine, petitioner has not shown that public respondent, in issuing the assailed Resolution, committed grave abuse of
discretion amounting to lack or excess of jurisdiction.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

[*** G.R. NO. 157526. April 28, 2004]

EMILIANA TORAL KARE, Petitioner, v. COMMISSION ON ELECTIONS, R espondent.

[G.R. NO. 157527. April 28, 2004]

SALVADOR K. MOLL, Petitioner, v. COMMISSION ON ELECTIONS, Respondent.

DECISION

PANGANIBAN, J.:

When a mayoral candidate who gathered the highest number of votes is disqualified after the election is held, a
permanent vacancy is created, and the vice mayor succeeds to the position.

The Case

Before us are two Petitions for Certiorari under Rules 64 and 65 of the Rules of Court, seeking the nullification of the
March 19, 2003 En Banc Resolution issued by the Commission on Elections (Comelec) in SPA No. 01-272. The Comelec
resolved therein to disqualify Salvador K. Moll from the mayoralty of Malinao, Albay, and to proclaim Avelino Ceriola as the
mayor-elect of the said municipality. The decretal portion of the Resolution reads:chanroblesvirtua1awlibrary

WHEREFORE, premises considered, the petition is hereby GRANTED. It is affirmed that private respondent Salvador K.
Moll is DISQUALIFIED from holding the office of the Mayor of Malinao, Albay. His proclamation as the winning candidate
for such office is declared VOID AB INITIO. Consequently, the Provincial Election Supervisor of Albay is directed to
immediately convene the municipal board of canvassers of Malinao, Albay and PROCLAIM petitioner Avelino Ceriola as
the Mayor-Elect of the municipality.1 cralawred

In GR No. 157526, Petitioner Emiliana Toral Kare seeks the nullification of the March 19, 2003 Resolution insofar as it
authorized the proclamation of Ceriola as the mayor-elect of Malinao. In GR No. 157527, Petitioner Moll prays for the
annulment of the entire Resolution.

The Facts

Petitioner Moll and Private Respondent Ceriola were candidates for mayor of the Municipality of Malinao, Albay, during the
elections of May 14, 2001.

Moll obtained the highest number of votes cast for the position while Ceriola came in second, with a total of nine hundred
eighty-seven (987) votes separating the two. Kare was elected vice mayor in the same election.

On May 18, 2001, Ceriola filed a Petition to Confirm the Disqualification and/or Ineligibility of Dindo K. Moll to Run for Any
Elective Position. The Petition alleged that the latter had been sentenced by final judgment to suffer the penalty of six (6)
months of arresto mayor to one (1) year and nine (9) months of prision correccional, for the crime of usurpation of
authority or official functions under Article 177 of the Revised Penal Code.

In its May 28, 2001 Resolution,2 the Comelec First Division dismissed the Petition.Ceriola filed his Motion for
Reconsideration with the Comelec en banc which, on August 31, 2001, set aside the said Resolution. It thereafter directed
the clerk of the Comelec to remand the Petition to the provincial election supervisor of Albay for hearing and reception of
evidence.

Ruling of the Comelec En Banc

On March 19, 2003, after the provincial election supervisor of Albay submitted the report and recommendation, the
Comelec en banc issued the questioned Resolution affirming Molls disqualification and proclaiming Ceriola as the mayorelect of the municipality.

As earlier adverted to, the Comelec ruled that Moll had indeed been disqualified from being a mayoral candidate in the
May 14, 2001 local election, and that his subsequent proclamation as mayor was void ab initio. Consequently, he was
disqualified from holding that office.

The Comelec further ruled that the trial courts final judgment of conviction of Moll disqualified him from filing his certificate
of candidacy and continued to disqualify him from holding office.Accordingly, the votes cast in his favor were stray or
invalid votes, and Ceriola -- the candidate who had obtained the second highest number of votes -- was adjudged the
winner. Thus, the Comelec ordered the Municipal Board of Canvassers to proclaim him as the mayor-elect of the
municipality.

Before Ceriolas actual proclamation, Kare filed a Petition before this Court with a prayer for a Status Quo Order, which
was granted on April 1, 2003.3 In this Order, the Comelec, the provincial election supervisor of Albay, and the municipal
canvassers of Malinao (Albay) were required to observe the status quo prevailing before the filing of the Petition.

The other Petition was filed by Moll.4

The Issues

After going through the Memoranda submitted by the parties, the Court has determined that the following are the two
issues that have to be resolved:chanroblesvirtua1awlibrary

1.Should Moll be disqualified from running and/or holding the position of mayor?chanroblesvirtualawlibrary

2.) If the first issue is answered in the affirmative, who should become the mayor -- Ceriola, the second placer in the
mayoral election? Or Kare, the elected vice mayor?

The Courts Ruling

The Petition in GR No. 157526 is partly meritorious, but the Petition in GR No. 157527 has no merit.

First Issue:

Disqualification

Moll argues that he cannot be disqualified from running for mayor, since his judgement of conviction5 -- the basis of his
disqualification -- has allegedly not yet attained finality. He contends that while the said judgment promulgated on May 11,
1999 was not appealed by filing the Notice of Appeal in the ordinary course of the proceedings, he still filed a Motion for
Reconsideration dated May 28, 1999 within the reglementary period.6 Thus, according to him, the filing of such Motion
stayed the finality of his conviction.

We disagree. Section 7 of Rule 120 of the 2000 Rules of Criminal Procedure reads thus:chanroblesvirtua1awlibrary

Sec. 7. Modification of judgment. -- A judgment of conviction may, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment in a criminal
case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or
totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.
(Italics supplied)cralawlibrary

In turn, Section 6 of Rule 122 provides:chanroblesvirtua1awlibrary

Sec. 6. When appeal to be taken. - An appeal must be taken within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. This period for perfecting an appeal shall be interrupted from the time a
motion for new trial or reconsideration is filed until notice of the order overruling the motion shall have been served upon
the accused or his counsel at which time the balance of the period begins to run. (Italics supplied)cralawlibrary

It is clear that the period for appeal is interrupted by the filing of either a motion for reconsideration or a motion for a new
trial. Moll makes it appear that his filing of a motion for reconsideration should have stayed the running of the period for

filing an appeal. What he did file, however, was a Motion to Quash the Information; and when it was denied, he filed a
Motion for Reconsideration of the denial.

The Rules of Court mandates that an appeal should be filed within fifteen (15) days from promulgation of the judgment or
from notice of the final order appealed from. It necessarily follows that this period is interrupted only by the filing of a
motion for reconsideration of the judgment or of the final order being appealed.

Neither Molls Motion to Quash Information nor his Motion for Reconsideration was directed at the judgment of conviction.
Rather, they both attacked a matter extraneous to the judgment. Hence, they cannot affect the period of appeal granted by
the Rules of Court in relation to the conviction.

Moll himself admitted that no regular appeal was filed because he was still questioning the propriety of the denial of his
Motion to Quash the Information and the propriety of the conduct of the promulgation of his sentence despite his absence
x x x.7 Aside from not interrupting his judgment of conviction, the motion to quash was even belatedly filed. Such a motion
may be filed by the accused at any time before entering a plea8 and certainly not on the day of the promulgation, as Moll
did.

As to his contention that the promulgation of judgment was not valid because it was done in his absence, we agree with
the Office of the Solicitor General, which argues as follows:chanroblesvirtua1awlibrary

It was not contested that Moll received a notice of the promulgation, in fact his counsel was present on the day of the
promulgation - to file a motion to quash. Hence, because of Molls unexplained absence, the promulgation of the judgment
could be validly made by recording the judgment in the criminal docket and serving him a copy thereof to his last known
address or thru his counsel (Section 6, Rule 120, Rules of Court). 9 cralawred

Indubitably, since no appeal of the conviction was seasonably filed by Moll, the judgment against him has become final.10
Thus, the Comelec en banc correctly ruled that he was disqualified from running for mayor, under Section 40(a) of the
Local Government Code (RA No. 7160), which provides:chanroblesvirtua1awlibrary

Section 40. Disqualifications. The following persons are disqualified from running for any elective local
position:chanroblesvirtua1awlibrary

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;

x x xx x xx x x.

Moll was sentenced to suffer the penalty of six (6) months of arresto mayor to one (1) year and nine (9) months of prision
correccional, a penalty that clearly disqualified him from running for any elective local position.

Second Issue:

The Lawful Mayor

In allowing Ceriola -- the second placer in the mayoralty race -- to be proclaimed mayor-elect after the disqualification of
Moll, the Comelec applied Section 211(24) of the Omnibus Election Code (OEC), which
provides:chanroblesvirtua1awlibrary

Sec. 211. Rules for the appreciation of ballots. In the reading and appreciation of ballots, every ballot shall be presumed to
be valid unless there is clear and good reason to justify its rejection. The board of election inspectors shall observe the
following rules, bearing in mind that the object of the election is to obtain the expression of the voters will:

x x xx x xx x x

24. Any vote cast in favor of a candidate who has been disqualified by final judgment shall be considered as stray and
shall not be counted but it shall not invalidate the ballot.

The poll body interpreted the phrase disqualified by final judgment to mean disqualification by a final judgment of
conviction, which was the ground upon which Moll was disqualified.It ruled:chanroblesvirtua1awlibrary

In this case, the disqualification is based specifically on the final judgment of conviction by a court against private
respondent. This final judgment disqualified private respondent from filing his certificate of candidacy in the first instance,
and continues to disqualify private respondent from holding office. Accordingly, the votes cast in his favor were stray or
invalid votes and the general rule in the Sunga Case does not apply. Consequently, Petitioner, having obtained the highest
number of valid votes, is entitled to be proclaimed the winning mayoralty candidate.11 cralawred

Further, it said:chanroblesvirtua1awlibrary

x x x As such, this instance constitutes an exception to the general rule enunciated in the Sunga Case. In the language of
the said case, the foregoing provision of law is a statute which clearly asserts a legislative policy contrary to the rule that
the candidate with the second highest number of votes cannot be declared the winner, given that the votes for the
disqualified candidate, though of highest number, are deemed stray and invalid. Consequently, the so-called second
placer shall be declared the winner because he or she in fact obtained the highest number of valid votes.12 cralawred

Such arguments do not persuade.

In every election, the choice of the people is the paramount consideration, and their expressed will must at all times be
given effect.13 When the majority speaks by giving a candidate the highest number of votes in the election for an office,
no one else can be declared elected in place of the former.14 In a long line of cases, this Court has definitively ruled that
the Comelec cannot proclaim as winner the candidate who obtained the second highest number of votes, should the
winning candidate be declared ineligible or disqualified.15 cralawred

The Comelec, however, asserts that this case falls under the exception declared by the Court in Sunga v. Comelec,16
from which we quote:chanroblesvirtua1awlibrary

x x x The votes cast for a disqualified person may not be valid to install the winner into office or maintain him there.But in
the absence of a statute which clearly asserts a contrary political and legislative policy on the matter, if the votes were
cast in the sincere belief that the candidate was qualified, they should not be treated as stray, void or meaningless.17
cralawred

According to the Comelec, Section 211(24) of the OEC is a clear legislative policy that is contrary to the rule that the
second placer cannot be declared winner.

We disagree.

The provision that served as the basis of Comelecs Decision to declare the second placer as winner in the mayoral race
should be read in relation with other provisions of the OEC. Section 72 thereof, as amended by RA 6646, provides as
follows:chanroblesvirtua1awlibrary

Sec. 72.Effects of disqualification cases and priority. The Commission and the courts shall give priority to cases of
disqualification by reason of violation of this Act to the end that a final decision shall be rendered not later than seven days
before the election in which the disqualification is sought.

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. Nevertheless, 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, his violation of the
provisions of the preceding sections shall not prevent his proclamation and assumption to office." (Italics
supplied)cralawlibrary

When read together, these provisions are understood to mean that any vote cast in favor of a candidate, whose
disqualification has already been declared final regardless of the ground therefor, shall be considered stray. The Comelec
misconstrued this provision by limiting it only to disqualification by conviction in a final judgment.

Obviously, the disqualification of a candidate is not only by conviction in a final judgment; the law lists other grounds for
disqualification.18 It escapes us why the Comelec insists that Section 211(24) of the OEC is strictly for those convicted by
a final judgment.Such an interpretation is clearly inconsistent with the other provisions of the election code.

More important, it is clear that it was only on March 19, 2003, that the Comelec en banc issued Resolution No. SPA No.
01-272. The Resolution adopted the recommendation of the provincial election supervisor of Albay to disqualify Moll from
running as a mayoral candidate in Malinao, Albay. Thus, on May 14, 2001, when the electorate voted for him as mayor,
they were under the belief that he was qualified. There is no presumption that they agreed to the subsequent invalidation
of their votes as stray votes, in case of his disqualification.

A subsequent finding by the Comelec en banc that Moll was ineligible cannot retroact to the date of the election and
thereby invalidate the votes cast for him.19 cralawred

Moreover, Moll was not notoriously known to the public as an ineligible candidate. As discussed above, the Resolution
declaring him as such was rendered long after the election. Thus, on the part of those who voted for him, their votes are
presumed to have been cast with a sincere belief that he was a qualified candidate, and without any intention to misapply
their franchise. Thus, their votes cannot be treated as stray, void, or meaningless.20 cralawred

The Comelecs interpretation of a section in the OEC cannot supplant an accepted doctrine laid down by this Court. In
Aquino v. Comelec,21 we said:chanroblesvirtua1awlibrary

x x x To simplistically assume that the second placer would have received the other votes would be to substitute our
judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was
repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates
because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not
prepared to extrapolate the results under such circumstances.22 cralawred

To allow the defeated and repudiated candidate to take over the mayoralty despite his rejection by the electorate is to
disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and
the right of the people to elect officials of their choice.23 cralawred

Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally
repudiated candidate as the voters choice. Moreover, there are instances in which the votes received by the second
placer may not be considered numerically insignificant. In such situations, if the equation changes because of the
disqualification of an ineligible candidate, voters preferences would nonetheless be so volatile and unpredictable that the
results for qualified candidates would not be self-evident.24 The absence of the apparent though ineligible winner among
the choices could lead to a shifting of votes to candidates other than the second placer.25 Where an ineligible candidate
has garnered either a majority or a plurality of the votes, by no mathematical formulation can the runnerup in the election
be construed to have obtained the majority or the plurality of votes cast.26 cralawred

We reiterate that this Court has no authority under any law to impose upon and compel the people of Malinao, Albay, to
accept Ceriola as their mayor.27 The law on succession under Section 44 of Republic Act 7160, otherwise known as the
Local Government Code, would then apply. This provision relevantly states:chanroblesvirtua1awlibrary

SECTION 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 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 xx x xx x x.

For purposes of this Chapter, a permanent vacancy arises when an elective local official fills a higher vacant office,
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.

The language of the law is clear, explicit and unequivocal. Thus, it admits no room for interpretation, but merely for
application.28 Accordingly, when Moll was adjudged to be disqualified, a permanent vacancy was created for failure of the
elected mayor to qualify for the office.29 In such eventuality, the duly elected vice mayor shall succeed as provided by
law.30 cralawred

For violating the law and the clear jurisprudence on this matter, the Comelec committed grave abuse of discretion.31
cralawred

WHEREFORE, the Petition in GR No 157526 is PARTLY GRANTED ,and the assailed Resolution MODIFIED.Petitioner
Salvador K. Moll is DECLAREDineligible for the position of municipal mayor of Malinao, Albay. In view of the vacancy
created in that office, Petitioner Emiliana Toral Kare, the duly elected vice mayor, shall succeed as mayor, following the
rule on succession.The status quo order of this Court dated April 1, 2003, is made permanent. Petitioner Kare shall
continue discharging the duties and powers of the mayor of Malinao, Albay. The Petition in GR 157527 is DISMISSEDfor
lack of merit.

No pronouncement as to costs.

SO ORDERED.

*** G.R. No. 203974

April 22, 2014

AURELIO M. UMALI, Petitioner,

vs.
COMMISSION ON ELECTIONS, JULIUS CESAR V. VERGARA, and THE CITY GOVERNMENT OF CABANATUAN,
Respondents.

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

G.R. No. 204371

J.V. BAUTISTA, Petitioner,

vs.
COMMISSION ON ELECTIONS, Respondent.

DECISION

VELASCO, JR., J.:

Before the Court is the consolidated case for Petition for Certiorari and Prohibition with prayer for injunctive relief, docket
as G.R. No. 203974, assailing Minute Resolution No. 12-07971 and Minute Resolution No. 12-09252 dated September 11,
2012 and October 16, 2012, respectively, both promulgated by public respondent Commission on Elections (COMELEC),
and Petition for Mandamus, docketed G.R. No. 204371, seeking to compel public respondent to implement the same.

The Facts

On July 11, 2011, the Sangguniang Panglungsod of Cabanatuan City passed Resolution No. 183-2011, requesting the
President to declare the conversion of Cabanatuan City from a component city of the province of Nueva Ecija into a highly
urbanized city (HUC). Acceding to the request, the President issued Presidential Proclamation No. 418, Series of 2012,
proclaiming the City of Cabanatuan as an HUC subject to "ratification in a plebiscite by the qualified voters therein, as
provided for in Section 453 of the Local Government Code of 1991."

Respondent COMELEC, acting on the proclamation, issued the assailed Minute Resolution No. 12-0797 which reads:

WHEREFORE, the Commission RESOLVED, as it hereby RESOLVES, that for purposes of the plebiscite for the
conversion of Cabanatuan City from component city to highly-urbanized city, only those registered residents of
Cabanatuan City should participate in the said plebiscite.

The COMELEC based this resolution on Sec. 453 of the Local Government Code of 1991 (LGC), citing conversion cases
involving Puerto Princesa City in Palawan, Tacloban City in Southern Leyte, and Lapu-Lapu City in Cebu, where only the
residents of the city proposed to be converted were allowed to vote in the corresponding plebiscite.

In due time, petitioner Aurelio M. Umali, Governor of Nueva Ecija, filed a Verified Motion for Reconsideration, maintaining
that the proposed conversion in question will necessarily and directly affect the mother province of Nueva Ecija. His main
argument is that Section 453 of the LGC should be interpreted in conjunction with Sec. 10, Art. X of the Constitution. He
argues that while the conversion in question does not involve the creation of a new or the dissolution of an existing city,
the spirit of the Constitutional provision calls for the people of the local government unit (LGU) directly affected to vote in a
plebiscite whenever there is a material change in their rights and responsibilities. The phrase "qualified voters therein"
used in Sec. 453 of the LGC should then be interpreted to refer to the qualified voters of the units directly affected by the
conversion and not just those in the component city proposed to be upgraded. Petitioner Umali justified his position by
enumerating the various adverse effects of the Cabanatuan Citys conversion and how it will cause material change not
only in the political and economic rights of the city and its residents but also of the province as a whole.

To the Verified Motion for Reconsideration, private respondent Julius Cesar Vergara, city mayor of Cabanatuan,
interposed an opposition on the ground that Sec. 10, Art. X does not apply to conversions, which is the meat of the matter.
He likewise argues that a specific provision of the LGC, Sec. 453, as couched, allows only the qualified voters of
Cabanatuan City to vote in the plebiscite. Lastly, private respondent pointed out that when Santiago City was converted in
1994 from a municipality to an independent component city pursuant to Republic Act No. (RA) 7720, the plebiscite held
was limited to the registered voters of the then municipality of Santiago.

Following a hearing conducted on October 4, 2012,3 the COMELEC En Banc on October 16, 2012, in E.M No. 12-045
(PLEB), by a vote of 5-24 ruled in favor of respondent Vergara through the assailed Minute Resolution 12-0925. The
dispositive portion reads:

The Commission, taking into consideration the arguments of counsels including the Reply-memorandum of Oppositor,
after due deliberation, RESOLVED, as it hereby RESOLVES, as follows:

1) To DENY the Motion for Reconsideration of oppositor Governor Aurelio M. Umali; and

2) To SCHEDULE the conduct of Plebiscite for the conversion of Cabanatuan City from component city into highlyurbanized city with registered residents only of Cabanatuan City to participate in said plebiscite.

Let the Deputy Executive Director for Operations implement this resolution.

SO ORDERED.

Hence, the Petition for Certiorari with prayer for injunctive relief, docketed as G.R. No. 203974, on substantially the same
arguments earlier taken by petitioner Umali before the poll body. On the other hand, public respondent COMELEC,
through the Office of the Solicitor General, maintained in its Comment that Cabanatuan City is merely being converted
from a component city into an HUC and that the political unit directly affected by the conversion will only be the city itself.
It argues that in this instance, no political unit will be created, merged with another, or will be removed from another LGU,
and that no boundaries will be altered. The conversion would merely reinforce the powers and prerogatives already being
exercised by the city, with the political units probable elevation to that of an HUC as demanded by its compliance with the
criteria established under the LGC. Thus, the participation of the voters of the entire province in the plebiscite will not be
necessary.

Private respondent will later manifest that it is adopting the Comment of the COMELEC.

Meanwhile, on October 25, 2012, respondent COMELEC promulgated Resolution No. 9543, which adopted a calendar of
activities and periods of prohibited acts in connection with the conversion of Cabanatuan City into an HUC. The
Resolution set the conduct of the plebiscite on December 1, 2012. Thereafter, a certain Dr. Rodolfo B. Punzalan filed a
Petition for Declaratory Relief which was raffled to the Regional Trial Court (RTC), Branch 40 in Palayan City. In the said
case, Punzalan prayed that Minute Resolution No. 12-0797 be declared unconstitutional, that the trial court decree that all
qualified voters of the province of Nueva Ecija be included in the plebiscite, and that a Temporary Restraining Order
(TRO) be issued enjoining public respondent from implementing the questioned resolution. On October 19, 2012, the RTC
granted the prayer for a TRO.

On November 6, 2012, public respondent through Minute Resolution No. 12-0989 suspended the preparations for the
event in view of the TRO issued by the RTC. On November 27, 2012, the plebiscite was once again rescheduled to give
way to the May 13, 2013 national, local and ARMM regional elections as per Resolution No. 9563.

After this development, petitioner J.V. Bautista, on December 3, 2012, filed a case before this Court for Mandamus,
docketed as G.R. No. 204371, praying that public respondent be ordered to schedule the plebiscite either on December
15 or 22, 2012. Petitioner Bautista argued that since the TRO issued by the RTC has already expired, the duty of the
public respondent to hold the plebiscite has become mandatory and ministerial. Petitioner Bautista also alleged that the
delay in holding the plebiscite is inexcusable given the requirement that it should be held within a period of 120 days form
the date of the Presidents declaration.

In its Comment to the Bautista petition, public respondent justified its position by arguing that mandamus will not issue to
enforce a right which is in substantial dispute. With all the legal conflicts surrounding the case, it cannot be said that there
is a clear showing of petitioner Bautistas entitlement to the relief sought. Respondent COMELEC likewise relied on Sec. 5
of the Omnibus Election Code to justify the postponements, citing incidents of violence that ensued in the locality during
the plebiscite period.

After the conclusion of the 2013 elections, public respondent issued Resolution No. 1353 scheduling the plebiscite to
January 25, 2014. However, a TRO was issued by this Court on January 15, 2014 in G.R. No. 203974 to suspend the
conduct of the plebiscite for Cabanatuan Citys conversion. Given the intertwining factual milieu of the two petitions before
the Court, both cases were consolidated on March 18, 2014.

The Issue

The bone of contention in the present controversy boils down to whether the qualified registered voters of the entire
province of Nueva Ecija or only those in Cabanatuan City can participate in the plebiscite called for the conversion of
Cabanatuan City from a component city into an HUC.

Resolving the Petition for Certiorari either way will necessarily render the Petition for Mandamus moot and academic for
ultimately, the public respondent will be ordered to hold the plebiscite. The only variation will be as regards its participants.

The Courts Ruling

The Petition for Certiorari is meritorious.

Sec. 453 of the LGC should be interpreted in accordance with Sec. 10, Art. X of the Constitution

Petitioner Umali asseverates that Sec. 10, Art. X of the Constitution should be the basis for determining the qualified
voters who will participate in the plebiscite to resolve the issue. Sec. 10, Art. X reads:

Section 10, Article X. No province, city, municipality, or barangay may be created, divided, merged, abolished, or its
boundary substantially altered, except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected. (emphasis supplied)

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

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

Section 453. Duty to Declare Highly Urbanized Status. It shall be the duty of the President to declare a city as highly
urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding
Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein. (emphasis
supplied)

Respondents take the phrase "registered voters therein" in Sec. 453 as referring only to the registered voters in the city
being converted, excluding in the process the voters in the remaining towns and cities of Nueva Ecija.

Before proceeding to unravel the seeming conflict between the two provisions, it is but proper that we ascertain first the
relationship between Sec. 10, Art. X of the Constitution and Sec. 453 of the LGC.

First of all, we have to restate the general principle that legislative power cannot be delegated. Nonetheless, the general
rule barring delegation is subject to certain exceptions allowed in the Constitution, namely:

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

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

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

True enough, Congress delegated such power to the Sangguniang Panlalawigan or Sangguniang Panlungsod to create
barangays pursuant to Sec. 6 of the LGC, which provides:

Section 6. Authority to Create Local Government Units. - A local government unit may be created, divided, merged,
abolished, or its boundaries substantially altered either by law enacted by Congress in the case of a province, city,
municipality, or any other political subdivision, or by ordinance passed by the sangguniang panlalawigan or sangguniang
panlungsod concerned in the case of a barangay located within its territorial jurisdiction, subject to such limitations and
requirements prescribed in this Code." (emphasis supplied)

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

Section 10. Plebiscite Requirement. No creation, division, merger, abolition, or substantial alteration of boundaries of
local government units shall take effect unless approved by a majority of the votes cast in a plebiscite called for the
purpose in the political unit or units directly affected." (emphasis supplied)

With the twin criteria of standard and plebiscite satisfied, the delegation to LGUs of the power to create, divide, merge,
abolish or substantially alter boundaries has become a recognized exception to the doctrine of non-delegation of
legislative powers.

Likewise, legislative power was delegated to the President under Sec. 453 of the LGC quoted earlier, which states:

Section 453. Duty to Declare Highly Urbanized Status. It shall be the duty of the President to declare a city as highly
urbanized within thirty (30) days after it shall have met the minimum requirements prescribed in the immediately preceding
Section, upon proper application therefor and ratification in a plebiscite by the qualified voters therein.

In this case, the provision merely authorized the President to make a determination on whether or not the requirements
under Sec. 45210 of the LGC are complied with. The provision makes it ministerial for the President, upon proper
application, to declare a component city as highly urbanized once the minimum requirements, which are based on
certifiable and measurable indices under Sec. 452, are satisfied. The mandatory language "shall" used in the provision
leaves the President with no room for discretion.

In so doing, Sec. 453, in effect, automatically calls for the conduct of a plebiscite for purposes of conversions once the
requirements are met. No further legislation is necessary before the city proposed to be converted becomes eligible to
become an HUC through ratification, as the basis for the delegation of the legislative authority is the very LGC.

In view of the foregoing considerations, the Court concludes that the source of the delegation of power to the LGUs under
Sec. 6 of the LGC and to the President under Sec. 453 of the same code is none other than Sec. 10, Art. X of the
Constitution.

Respondents, however, posit that Sec. 453 of the LGC is actually outside the ambit of Sec. 10, Art. X of the Constitution,
considering that the conversion of a component city to an HUC is not "creation, division, merge, abolition or substantial
alternation of boundaries" encompassed by the said constitutional provision.

This proposition is bereft of merit.

First, the Courts pronouncement in Miranda vs. Aguirre11 is apropos and may be applied by analogy. While Miranda
involves the downgrading, instead of upgrading, as here, of an independent component city into a component city, its
application to the case at bar is nonetheless material in ascertaining the proper treatment of conversions. In that seminal
case, the Court held that the downgrading of an independent component city into a component city comes within the
purview of Sec. 10, Art. X of the Constitution.

In Miranda, the rationale behind the afore-quoted constitutional provision and its application to cases of conversion were
discussed thusly:

A close analysis of the said constitutional provision will reveal that the creation, division, merger, abolition or substantial
alteration of boundaries of local government units involve a common denominator - - - material change in the political and
economic rights of the local government units directly affected as well as the people therein. It is precisely for this reason
that the Constitution requires the approval of the people "in the political units directly affected." It is not difficult to
appreciate the rationale of this constitutional requirement. The 1987 Constitution, more than any of our previous
Constitutions, gave more reality to the sovereignty of our people for it was borne out of the people power in the 1986
EDSA revolution. Its Section 10, Article X addressed the undesirable practice in the past whereby local government units
were created, abolished, merged or divided on the basis of the vagaries of politics and not of the welfare of the people.
Thus, the consent of the people of the local government unit directly affected was required to serve as a checking
mechanism to any exercise of legislative power creating, dividing, abolishing, merging or altering the boundaries of local
government units. It is one instance where the people in their sovereign capacity decide on a matter that affects them - - direct democracy of the people as opposed to democracy thru peoples representatives. This plebiscite requirement is
also in accord with the philosophy of the Constitution granting more autonomy to local government units.12

It was determined in the case that the changes that will result from the conversion are too substantial that there is a
necessity for the plurality of those that will be affected to approve it. Similar to the enumerated acts in the constitutional
provision, conversions were found to result in material changes in the economic and political rights of the people and
LGUs affected. Given the far-reaching ramifications of converting the status of a city, we held that the plebiscite
requirement under the constitutional provision should equally apply to conversions as well. Thus, RA 852813 was
declared unconstitutional in Miranda on the ground that the law downgraded Santiago City in Isabela without submitting it
for ratification in a plebiscite, in contravention of Sec. 10, Art. X of the Constitution.

Second, while conversion to an HUC is not explicitly provided in Sec. 10, Art. X of the Constitution we nevertheless
observe that the conversion of a component city into an HUC is substantial alteration of boundaries.

As the phrase implies, "substantial alteration of boundaries" involves and necessarily entails a change in the geographical
configuration of a local government unit or units. However, the phrase "boundaries" should not be limited to the mere
physical one, referring to the metes and bounds of the LGU, but also to its political boundaries. It also connotes a
modification of the demarcation lines between political subdivisions, where the LGUs exercise of corporate power ends
and that of the other begins. And as a qualifier, the alteration must be "substantial" for it to be within the ambit of the
constitutional provision.

Pertinent is Art. 12(c) of the LGCs Implementing Rules and Regulations, which reads:

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

xxxx

(c) Effect of Conversion The conversion of a component city into a highly-urbanized city shall make it independent of the
province where it is geographically located. (emphasis added)

Verily, the upward conversion of a component city, in this case Cabanatuan City, into an HUC will come at a steep price. It
can be gleaned from the above-cited rule that the province will inevitably suffer a corresponding decrease in territory
brought about by Cabanatuan Citys gain of independence. With the citys newfound autonomy, it will be free from the
oversight powers of the province, which, in effect, reduces the territorial jurisdiction of the latter. What once formed part of
Nueva Ecija will no longer be subject to supervision by the province. In more concrete terms, Nueva Ecija stands to lose
282.75 sq. km. of its territorial jurisdiction with Cabanatuan Citys severance from its mother province. This is equivalent to
carving out almost 5% of Nueva Ecijas 5,751.3 sq. km. area. This sufficiently satisfies the requirement that the alteration
be "substantial."

Needless to stress, the alteration of boundaries would necessarily follow Cabanatuan Citys conversion in the same way
that creations, divisions, mergers, and abolitions generally cannot take place without entailing the alteration. The
enumerated acts, after all, are not mutually exclusive, and more often than not, a combination of these acts attends the
reconfiguration of LGUs.

In light of the foregoing disquisitions, the Court rules that conversion to an HUC is substantial alternation of boundaries
governed by Sec. 10, Art. X and resultantly, said provision applies, governs and prevails over Sec. 453 of the LGC.

Moreover, the rules of statutory construction dictate that a particular provision should be interpreted with the other relevant
provisions in the law The Court finds that it is actually Sec. 10 of the LGC which is undeniably the applicable provision on
the conduct of plebiscites. The title of the provision itself, "Plebiscite Requirement", makes this obvious. It requires a
majority of the votes cast in a plebiscite called for the purpose in the political unit or units directly affected. On the other
hand, Sec. 453 of the LGC, entitled "Duty to Declare Highly Urbanized Status", is only on the duty to declare a city as
highly urbanized. It mandates the Office of the President to make the declaration after the city has met the requirements
under Sec. 452, and upon proper application and ratification in a plebiscite. The conduct of a plebiscite is then a
requirement before a declaration can be made. Thus, the Court finds that Sec. 10 of the LGC prevails over Sec. 453 of the
LGC on the plebiscite requirement.

We now take the bull by the horns and resolve the issue whether Sec. 453 of the LGC trenches on Sec. 10, Art. X of the
Constitution.

Hornbook doctrine is that neither the legislative, the executive, nor the judiciary has the power to act beyond the
Constitutions mandate. The Constitution is supreme; any exercise of power beyond what is circumscribed by the
Constitution is ultra vires and a nullity. As elucidated by former Chief Justice Enrique Fernando in Fernandez v. Cuerva:14

Where the assailed legislative or executive act is found by the judiciary to be contrary to the Constitution, it is null and
void. As the new Civil Code puts it: "When the courts declare a law to be inconsistent with the Constitution, the former
shall be void and the latter shall govern." Administrative or executive acts, orders and regulations shall be valid only when
they are not contrary to the laws or the Constitution. The above provision of the civil Code reflects the orthodox view that
an unconstitutional act, whether legislative or executive, is not a law, confers no rights, imposes no duties, and affords no
protection. x x x

Applying this orthodox view, a law should be construed in harmony with and not in violation of the Constitution.15 In a long
line of cases, the cardinal principle of construction established is that a statute should be interpreted to assure its being in
consonance with, rather than repugnant to, any constitutional command or prescription.16 If there is doubt or uncertainty

as to the meaning of the legislative, if the words or provisions are obscure or if the enactment is fairly susceptible of two or
more constitution, that interpretation which will avoid the effect of unconstitutionality will be adopted, even though it may
be necessary, for this purpose, to disregard the more usual or apparent import of the language used.17

Pursuant to established jurisprudence, the phrase "by the qualified voters therein" in Sec. 453 should be construed in a
manner that will avoid conflict with the Constitution. If one takes the plain meaning of the phrase in relation to the
declaration by the President that a city is an HUC, then, Sec. 453 of the LGC will clash with the explicit provision under
Sec. 10, Art. X that the voters in the "political units directly affected" shall participate in the plebiscite. Such construction
should be avoided in view of the supremacy of the Constitution. Thus, the Court treats the phrase "by the qualified voters
therein" in Sec. 453 to mean the qualified voters not only in the city proposed to be converted to an HUC but also the
voters of the political units directly affected by such conversion in order to harmonize Sec. 453 with Sec. 10, Art. X of the
Constitution.

The Court finds that respondents are mistaken in construing Sec. 453 in a vacuum. Their interpretation of Sec. 453 of the
LGC runs afoul of Sec. 10, Art. X of the Constitution which explicitly requires that all residents in the "political units directly
affected" should be made to vote.

Respondents make much of the plebiscites conducted in connection with the conversion of Puerto Princesa City, Tacloban
City and Lapu-Lapu City where the ratification was made by the registered voters in said cities alone. It is clear, however,
that the issue of who are entitled to vote in said plebiscites was not properly raised or brought up in an actual controversy.
The issue on who will vote in a plebiscite involving a conversion into an HUC is a novel issue, and this is the first time that
the Court is asked to resolve the question. As such, the past plebiscites in the aforementioned cities have no materiality or
relevance to the instant petition. Suffice it to say that conversion of said cities prior to this judicial declaration will not be
affected or prejudiced in any manner following the operative fact doctrinethat the actual existence of a statute prior to
such a determination is an operative fact and may have consequences which cannot always be erased by a new judicial
declaration.18

The entire province of Nueva Ecija will be directly

affected by Cabanatuan Citys conversion

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

a. "Political units directly affected" defined

In identifying the LGU or LGUs that should be allowed to take part in the plebiscite, what should primarily be determined is
whether or not the unit or units that desire to participate will be "directly affected" by the change. To interpret the phrase,
Tan v. COMELEC19 and Padilla v. COMELEC20 are worth revisiting.

We have ruled in Tan, involving the division of Negros Occidental for the creation of the new province of Negros del Norte,
that the LGUs whose boundaries are to be altered and whose economy would be affected are entitled to participate in the
plebiscite. As held:

It can be plainly seen that the aforecited constitutional provision makes it imperative that there be first obtained "the
approval of a majority of votes in the plebiscite in the unit or units affected" whenever a province is created, divided or
merged and there is substantial alteration of the boundaries. It is thus inescapable to conclude that the boundaries of the
existing province of Negros Occidental would necessarily be substantially altered by the division of its existing boundaries
in order that there can be created the proposed new province of Negros del Norte. Plain and simple logic will demonstrate
than that two political units would be affected.

The first would be the parent province of Negros Occidental because its boundaries would be substantially altered. The
other affected entity would be composed of those in the area subtracted from the mother province to constitute the
proposed province of Negros del Norte.21

xxxx

To form the new province of Negros del Norte no less than three cities and eight municipalities will be subtracted from the
parent province of Negros Occidental. This will result in the removal of approximately 2,768.4 square kilometers from the
land area of an existing province whose boundaries will be consequently substantially altered. It becomes easy to realize
that the consequent effects of the division of the parent province necessarily will affect all the people living in the separate
areas of Negros Occidental and the proposed province of Negros del Norte. The economy of the parent province as well
as that of the new province will be inevitably affected, either for the better or for the worse. Whatever be the case, either or
both of these political groups will be affected and they are, therefore, the unit or units referred to in Section 3 of Article XI
of the Constitution which must be included in the plebiscite contemplated therein.22 (emphasis added)

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

SEC. 3. No province, city, municipality or barrio may be created, divided, merged abolished, or its boundary substantially
altered, except in accordance with the criteria established in the local government code, and subject to the approval by a
majority of the votes in a plebiscite in the unit or units affected. (emphasis added)

Despite the change in phraseology compared to what is now Sec. 10, Art. X, we affirmed our ruling in Tan in the latter
case of Padilla. As held, the removal of the phrase "unit or" only served to sustain the earlier finding that what is
contemplated by the phase "political units directly affected" is the plurality of political units which would participate in the
plebiscite. As reflected in the journal of the Constitutional Commission:23

Mr. Maambong: While we have already approved the deletion of "unit or," I would like to inform the Committee that under
the formulation in the present Local Government Code, the words used are actually "political unit or units." However, I do
not know the implication of the use of these words. Maybe there will be no substantial difference, but I just want to inform
the Committee about this.

Mr. Nolledo: Can we not adhere to the original "unit or units"? Will there be no objection on the part of the two Gentlemen
from the floor?

Mr. Davide: I would object. I precisely asked for the deletion of the words "unit or" because in the plebiscite to be
conducted, it must involve all the units affected. If it is the creation of a barangay plebiscite because it is affected. It would
mean a loss of a territory. (emphasis added)

The same sentiment was shared by the Senate during its deliberations on Senate Bill No. 155the predecessor of the
LGCthus:

Senator Guingona. Can we make that clearer by example? Let us assume that a province has municipalities and there is
a merger of two municipalities. Would this therefore mean that the plebiscite will be conducted within the two merged
municipalities and not in the eight other municipalities?

Senator Pimentel. The whole province, Mr. President, will be affected, and that is the reason we probably have to involve
the entire province.

Senator Guingona. So the plebiscite will not be held only in the two municipalities which are being merged, but the entire
province will now have to undergo.

Senator Pimentel. I suppose that was the ruling in the Negros del Norte case.

Senator Guingona. Supposing it refers to barangays, will the entire municipality have to vote? There are two barangays
being merged, say, out of 100 barangays. Would the entire municipality have to participate in the plebiscite?

Senator Pimentel. Yes, Mr. President, because the municipality is affected directly by the merger of two of its barangay.

Senator Guingona. And, if, out of 100 barangay, 51 are being merged, abolished, whatever, would the rest of the
municipality not participate in the plebiscite?

Senator Pimentel. Do all the 51 barangay that the Gentleman mentioned, Mr. President, belong to one municipality?

Senator Guingona. Yes.

Senator Pimentel. Then it will only involve the municipality where the 51 barangays belong.

Senator Guingona. Yes. So, the entire municipality will now have to undergo a plebiscite.

Senator Pimentel. That is correct, Mr. President.

Senator Guingona. In the earlier example, if it is only a merger of two municipalities, let us say, in a province with 10
municipalities the entire province will the other municipalities although not affected also have to participate in the
plebiscite?

Senator Pimentel. Yes. The reason is that the municipalities are within the territorial boundaries of the province itself, it will
have to be altered as a result of the two municipalities that the Gentleman mentioned.24

In the more recent case of Miranda, the interpretation in Tan and Padilla was modified to include not only changes in
economic but also political rights in the criteria for determining whether or not an LGU shall be considered "directly
affected." Nevertheless, the requirement that the plebiscite be participated in by the plurality of political units directly
affected remained.

b. Impact on Economic Rights

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

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

Section 285. Allocation to Local Government Units. - The share of local government units in the internal revenue allotment
shall be collected in the following manner:

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

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

(c) Municipalities - Thirty-four percent (34%); and

(d) Barangays - Twenty percent (20%)

Provided, however, That the share of each province, city, and municipality shall be determined on the basis of the
following formula:

(a) Population - Fifty percent (50%);

(b) Land Area - Twenty-five percent (25%); and

(c) Equal sharing - Twenty-five percent (25%)

In our earlier disquisitions, we have explained that the conversion into an HUC carries the accessory of substantial
alteration of boundaries and that the province of Nueva Ecija will, without a doubt, suffer a reduction in territory because of
the severance of Cabanatuan City. The residents of the city will cease to be political constituencies of the province,
effectively reducing the latters population. Taking this decrease in territory and population in connection with the above
formula, it is conceded that Nueva Ecija will indeed suffer a reduction in IRA given the decrease of its multipliers values.
As assessed by the Regional Director of the Department of Budget and Management (DBM) for Region III:25

Basis for IRA

Computation

Province of

Nueva Ecija

Cabanatuan

City

Province of

Nueva Ecija Net

of Cabanatuan
City
No. of Population
CY 2007 Census

1,843,853

259,267

259,267

5,751.33

282.75 5,468.58

Land Area
(sq. km.)

IRA Share of

Nueva Ecija

Actual IRA

Share Estimated IRA

share excluding
Cabanatuan
City

Reduction

Based on
Population

P800,772,618.45

P688,174,751.66

P112,597,866.79

Based on Land
Area

P263,470,472.62

Total

P125,550,744.85

P250,517,594.56

P 12,952,878.06

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

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

SECTION 151. Scope of Taxing Powers. Except as otherwise provided in this Code, the city, may levy the taxes, fees,
and charges which the province or municipality may impose: Provided, however, That the taxes, fees and charges levied
and collected by highly urbanized and independent component cities shall accrue to them and distributed in accordance
with the provisions of this Code. (emphasis added)

Once converted, the taxes imposed by the HUC will accrue to itself. Prior to this, the province enjoys the prerogative to
impose and collect taxes such as those on sand, gravel and other quarry resources,26 professional taxes,27 and
amusement taxes28 over the component city. While, it may be argued that this is not a derogation of the provinces taxing
power because it is in no way deprived of its right to collect the mentioned taxes from the rest of its territory, the
conversion will still reduce the provinces taxing jurisdiction, and corollary to this, it will experience a corresponding
decrease in shares in local tax collections. This reduction in both taxing jurisdiction and shares poses a material and
substantial change to the provinces economic rights, warranting its participation in the plebiscite.

To further exemplify the impact of these changes, a perusal of Secs. 452(a) and 461(a) of the LGC is in order, viz:

Section 452. Highly Urbanized Cities.

(a) Cities with a minimum population of two hundred thousand (200,000) inhabitants as certified by the National Statistics
Office, and within the latest annual income of at least Fifty Million Pesos (P50,000,000.00) based on 1991 constant prices,
as certified by the city treasurer, shall be classified as highly urbanized cities.

Section 461. Requisites for Creation.

(a) A province may be created if it has an average annual income, as certified by the Department of Finance, of not less
than Twenty million pesos (P20,000,000.00) based on 1991 constant prices and either of the following requisites:

(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by the Lands Management
Bureau; or

(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified by the National Statistics
Office:

Provided, That, the creation thereof shall not reduce the land area, population, and income of the original unit or units at
the time of said creation to less than the minimum requirements prescribed herein.

A component citys conversion into an HUC and its resultant autonomy from the province is a threat to the latters
economic viability. Noteworthy is that the income criterion for a component city to be converted into an HUC is higher than
the income requirement for the creation of a province. The ensuing reduction in income upon separation would clearly
leave a crippling effect on the provinces operations as there would be less funding to finance infrastructure projects and
to defray overhead costs. Moreover, the quality of services being offered by the province may suffer because of looming
austerity measures. These are but a few of the social costs of the decline in the provinces economic performance, which
Nueva Ecija is bound to experience once its most progressive city of Cabanatuan attains independence.

c. Impact on Political Rights

Aside from the alteration of economic rights, the political rights of Nueva Ecija and those of its residents will also be
affected by Cabanatuans conversion into an HUC. Notably, the administrative supervision of the province over the city will
effectively be revoked upon conversion. Secs. 4 and 12, Art. X of the Constitution read:

Sec. 4. The President of the Philippines shall exercise general supervision over local governments. Provinces with respect
to component cities and municipalities, and cities and municipalities with respect to component barangays shall ensure
that the acts of their component units are within the scope of their prescribed powers and functions.

Sec 12. Cities that are highly urbanized, as determined by law, and component cities whose charters prohibit their voters
from voting for provincial elective officials, shall be independent of the province. The voters of component cities within a
province, whose charters contain no such prohibition, shall not be deprived of their right to vote for elective provincial
officials.

Duties, privileges and obligations appertaining to HUCs will attach to Cabanatuan City if it is converted into an HUC. This
includes the right to be outside the general supervision of the province and be under the direct supervision of the
President. An HUC is not subject to provincial oversight because the complex and varied problems in an HUC due to a
bigger population and greater economic activity require greater autonomy.29 The provincial government stands to lose the
power to ensure that the local government officials of Cabanatuan City act within the scope of its prescribed powers and
functions,30 to review executive orders issued by the city mayor, and to approve resolutions and ordinances enacted by
the city council.31 The province will also be divested of jurisdiction over disciplinary cases concerning the elected city
officials of the new HUC, and the appeal process for administrative case decisions against barangay officials of the city
will also be modified accordingly.32 Likewise, the registered voters of the city will no longer be entitled to vote for and be
voted upon as provincial officials.33

In cutting the umbilical cord between Cabanatuan City and the province of Nueva Ecija, the city will be separated from the
territorial jurisdiction of the province, as earlier explained. The provincial government will no longer be responsible for
delivering basic services for the city residents benefit. Ordinances and resolutions passed by the provincial council will no
longer cover the city. Projects queued by the provincial government to be executed in the city will also be suspended if not
scrapped to prevent the LGU from performing functions outside the bounds of its territorial jurisdiction, and from
expending its limited resources for ventures that do not cater to its constituents.1wphi1

In view of these changes in the economic and political rights of the province of Nueva Ecija and its residents, the entire
province certainly stands to be directly affected by the conversion of Cabanatuan City into an HUC. Following the
doctrines in Tan and Padilla, all the qualified registered voters of Nueva Ecija should then be allowed to participate in the
plebiscite called for that purpose.

Respondents apprehension that requiring the entire province to participate in the plebiscite will set a dangerous
precedent leading to the failure of cities to convert is unfounded. Their fear that provinces will always be expected to
oppose the conversion in order to retain the citys dependence is speculative at best. In any event, any vote of disapproval
cast by those directly affected by the conversion is a valid exercise of their right to suffrage, and our democratic processes
are designed to uphold the decision of the majority, regardless of the motive behind the vote. It is unfathomable how the
province can be deprived of the opportunity to exercise the right of suffrage in a matter that is potentially deleterious to its
economic viability and could diminish the rights of its constituents. To limit the plebiscite to only the voters of the areas to
be partitioned and seceded from the province is as absurd and illogical as allowing only the secessionists to vote for the
secession that they demanded against the wishes of the majority and to nullify the basic principle of majority rule.34

WHEREFORE, premises considered, the Petition for Certiorari, docketed as G.R. No. 203974, is hereby GRANTED.
COMELEC Minute Resolution No. 12-0797 dated September 11, 2012 and Minute Resolution No. 12-0925 dated October
16, 2012 are hereby declared NULL and VOID. Public respondent COMELEC is hereby enjoined from implementing the
said Resolutions. Additionally, COMELEC is hereby ordered to conduct a plebiscite for the purpose of converting
Cabanatuan City into a Highly Urbanized City to be participated in by the qualified registered voters of Nueva Ecij a within
120 days from the finality of this Decision. The Petition for Mandamus, docketed as G.R. No. 204371, is hereby
DISMISSED.

SO ORDERED.

*** G.R. No. 192280

January 25, 2011

SERGIO G. AMORA, JR., Petitioner,

vs.
COMMISSION ON ELECTIONS and ARNIELO S. OLANDRIA, Respondents.

DECISION

NACHURA, J.:

Before us is a petition for certiorari under Rule 64, in relation to Rule 65, of the Rules of Court, seeking to annul and set
aside the Resolutions dated April 29, 20101 and May 17, 2010,2 respectively, of the Commission on Elections
(COMELEC) in SPA No. 10-046 (DC).

First, the undisputed facts.

On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of Candidacy (COC) for Mayor of
Candijay, Bohol. At that time, Amora was the incumbent Mayor of Candijay and had been twice elected to the post, in the
years 2004 and 2007.

To oppose Amora, the Nationalist Peoples Coalition (NPC) fielded Trygve L. Olaivar (Olaivar) for the mayoralty post.
Respondent Arnielo S. Olandria (Olandria) was one of the candidates for councilor of the NPC in the same municipality.

On March 5, 2010, Olandria filed before the COMELEC a Petition for Disqualification against Amora. Olandria alleged that
Amoras COC was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and the 2004
Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora merely presented his Community Tax
Certificate (CTC) to the notary public, Atty. Oriculo Granada (Atty. Granada), instead of presenting competent evidence of
his identity. Consequently, Amoras COC had no force and effect and should be considered as not filed.

Amora traversed Olandrias allegations in his Answer cum Position Paper.3 He countered that:

1. The Petition for Disqualification is actually a Petition to Deny Due Course or cancel a certificate of candidacy.
Effectively, the petition of Olandria is filed out of time;

2. Olandrias claim does not constitute a proper ground for the cancellation of the COC;

3. The COC is valid and effective because he (Amora) is personally known to the notary public, Atty. Granada, before
whom he took his oath in filing the document;

4. Atty. Granada is, in fact, a close acquaintance since they have been members of the League of Muncipal Mayors, Bohol
Chapter, for several years; and

5. Ultimately, he (Amora) sufficiently complied with the requirement that the COC be under oath.

As previously adverted to, the Second Division of the COMELEC granted the petition and disqualified Amora from running
for Mayor of Candijay, Bohol.

Posthaste, Amora filed a Motion for Reconsideration4 before the COMELEC en banc. Amora reiterated his previous
arguments and emphasized the asseverations of the notary public, Atty. Granada, in the latters affidavit,5 to wit:

1. The COMELECs (Second Divisions) ruling is contrary to the objectives and basic principles of election laws which
uphold the primacy of the popular will;

2. Atty. Granada states that while he normally requires the affiant to show competent evidence of identity, in Amoras case,
however, he accepted Amoras CTC since he personally knows him;

3. Apart from the fact that Amora and Atty. Granada were both members of the League of Municipal Mayors, Bohol
Chapter, the two consider each other as distant relatives because Amoras mother is a Granada;

4. It is a matter of judicial notice that practically everybody knows the Mayor, most especially lawyers and notaries public,
who keep themselves abreast of developments in local politics and have frequent dealings with the local government; and

5. In all, the COC filed by Amora does not lack the required formality of an oath, and thus, there is no reason to nullify his
COC.

Meanwhile, on May 10, 2010, national and local elections were held. Amora obtained 8,688 votes, equivalent to 58.94% of
the total votes cast, compared to Olaivars 6,053 votes, equivalent to only 41.06% thereof. Subsequently, the Muncipal
Board of Canvassers of Candijay, Bohol, proclaimed Amora as the winner for the position of Municipal Mayor of Candijay,
Bohol.6

A week thereafter, or on May 17, 2010, in another turn of events, the COMELEC en banc denied Amoras motion for
reconsideration and affirmed the resolution of the COMELEC (Second Division). Notably, three (3) of the seven (7)
commissioners dissented from the majority ruling. Commissioner Gregorio Larrazabal (Commissioner Larrazabal) wrote a
dissenting opinion, which was concurred in by then Chairman Jose A.R. Melo and Commissioner Rene V. Sarmiento.

In denying Amoras motion for reconsideration and upholding Olandrias petition for disqualification of Amora, the
COMELEC ratiocinated, thus:

[Amora] himself admitted in his Motion that the Second Division was correct in pointing out that the CTC is no longer a
competent evidence of identity for purposes of notarization.

The COC therefore is rendered invalid when [petitioner] only presented his CTC to the notary public. His defense that he
is personally known to the notary cannot be given recognition because the best proof [of] his contention could have been
the COC itself. However, careful examination of the jurat portion of the COC reveals no assertion by the notary public that
he personally knew the affiant, [petitioner] herein. Belated production of an Affidavit by the Notary Public cannot be given
weight because such evidence could and should have been produced at the earliest possible opportunity.

The rules are absolute. Section 73 of the Election Code states:

"Section 73. Certificate of Candidacy. No person shall be eligible for any elective public office unless he files a sworn
certificate of candidacy within the period fixed herein."

Under the 2004 Rules on Notarial Practice of 2004 (Rules), the requirements of notarization of an oath are:

"Section 2. Affirmation or Oath. The term Affirmation or Oath refers to an act in which an individual on a single
occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document."

The required form of identification is prescribed in [S]ection 12 of the same Rules, to wit:

"Section 12. Competent Evidence of Identity. The phrase competent evidence of identity refers to the identification of
an individual based on:

(a) at least one current identification document issued by an official agency bearing the photograph and signature of the
individual. x x x."

It is apparent that a CTC, which bears no photograph, is no longer a valid form of identification for purposes of
Notarization of Legal Documents. No less than the Supreme Court itself, when it revoked the Notarial Commission of a
member of the Bar in Baylon v. Almo, reiterated this when it said:

"As a matter of fact, recognizing the established unreliability of a community tax certificate in proving the identity of a
person who wishes to have his document notarized, we did not include it in the list of competent evidence of identity that
notaries public should use in ascertaining the identity of persons appearing before them to have their documents
notarized."

Seeking other remedies, [Amora] maintained that Section 78 of the Election Code governs the Petition. Said section
provides that:

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any material
representation contained therein as required under Section 74 hereof is false. The petition may be filed at any time not
later than twenty-five days from the time of the filing of the certificate of candidacy and shall be decided, after due notice
and hearing, not later than fifteen days before the election."

[Amora] however failed to note that the Petition relies upon an entirely different ground. The Petition has clearly stated that
it was invoking Section 73 of the Election Code, which prescribes the mandatory requirement of filing a sworn certificate of
candidacy. As properly pointed out by [Olandria], he filed a Petition to Disqualify for Possessing Some Grounds for
Disqualification, which, is governed by COMELEC Resolution No. 8696, to wit:

"B. PETITION TO DISQUALIFY A CANDIDATE PURSUANT TO SECTION 68 OF THE OMNIBUS ELECTION CODE AND
PETITION TO DISQUALIFY FOR LACK OF QUALIFICATIONS OR POSSESSING SOME GROUNDS FOR
DISQUALIFICATION

1. A verified petition to disqualify a candidate pursuant to Section 68 of the OEC and the verified petition to disqualify a
candidate for lack of qualifications or possessing some grounds for disqualification may be filed on any day after the last
day for filing of certificates of candidacy but not later than the date of proclamation;

xxxx

3. The petition to disqualify a candidate for lack of qualification or possessing some grounds for disqualification, shall be
filed in ten (10) legible copies, personally or through a duly authorized representative, by any person of voting age, or duly
registered political party, organization or coalition of political parties on the ground that the candidate does not possess all
the qualifications as provided for by the Constitution or by existing law or who possesses some grounds for
disqualification as provided for by the Constitution or by existing law."

xxxx

Finally, we do not agree with [Amora] when he stated that the Second Divisions Resolution "practically supplanted
congress by adding another ground for disqualification, not provided in the omnibus election code or the local government
code. The constitution is very clear that it is congress that shall prescribe the qualifications (and disqualifications) of
candidates for local government positions." These grounds for disqualification were laid down in both laws mentioned by
[Amora] and COMELEC Resolution 8696.7

Hence, this petition for certiorari imputing grave abuse of discretion to the COMELEC. On June 15, 2010, we issued a
Status Quo Ante Order and directed respondents to comment on the petition. As directed, Olandria and the COMELEC
filed their respective Comments8 which uniformly opposed the petition. Thereafter, Amora filed his Reply.9

Amora insists that the Petition for Disqualification filed by Olandria is actually a Petition to Deny Due Course since the
purported ground for disqualification simply refers to the defective notarization of the COC. Amora is adamant that Section
73 of the OEC pertains to the substantive qualifications of a candidate or the lack thereof as grounds for disqualification,
specifically, the qualifications and disqualifications of elective local officials under the Local Government Code (LGC) and
the OEC. Thus, Olandrias petition was filed way beyond the reglementary period of twenty-five (25) days from the date of
the filing of the disputed COC.

Moreover, Amora maintains that his COC is properly notarized and not defective, and the presentation of his CTC to the
notary public to whom he was personally known sufficiently complied with the requirement that the COC be under oath.
Amora further alleges that: (1) Olaivar, his opponent in the mayoralty post, and likewise a member of the NPC, is
purportedly a fraternity brother and close associate of Nicodemo T. Ferrer (Commissioner Ferrer), one of the
commissioners of the COMELEC who disqualified him; and (2) Olaivar served as Consultant for the COMELEC, assigned
to the Office of Commissioner Ferrer.

Olandria and the COMELEC reiterated the arguments contained in the COMELEC en banc resolution of May 17, 2010.

Amoras petition is meritorious.

We find that the COMELEC ruling smacks of grave abuse of discretion, a capricious and whimsical exercise of judgment
equivalent to lack of jurisdiction. Certiorari lies where a court or any tribunal, board, or officer exercising judicial or quasijudicial functions has acted without or in excess of jurisdiction or with grave abuse of discretion.10

In this case, it was grave abuse of discretion to uphold Olandrias claim that an improperly sworn COC is equivalent to
possession of a ground for disqualification. Not by any stretch of the imagination can we infer this as an additional ground
for disqualification from the specific wording of the OEC in Section 68, which reads:

SEC. 68. Disqualifications. Any candidate who, in an action or protest in which he is party is declared by final decision of
a competent court guilty of, or found by the Commission of having: (a) given money or other material consideration to
influence, induce or corrupt the voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed by this Code; (d) solicited,
received or made any contribution prohibited under Sections 89, 95, 96, 97 and 104; or (e) violated any of Sections 80,
83, 85, 86, and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate,
or if he has been elected, from holding the office. Any person who is a permanent resident of or an immigrant to a foreign
country shall not be qualified to run for any elective office under this Code, unless said person has waived his status as a
permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the
elections laws.

and of Section 40 of the LGC, which provides:

SEC. 40. Disqualifications. The following persons are disqualified from running for any elective local position:

(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1)
year or more of imprisonment, within two (2) years after serving sentence;

(b) Those removed from office as a result of an administrative case;

(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;

(d) Those with dual citizenship;

(e) Fugitives from justice in criminal or nonpolitical cases here or abroad;

(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to avail of
the same right after the effectivity of this Code; and

(g) The insane or feeble-minded.

It is quite obvious that the Olandria petition is not based on any of the grounds for disqualification as enumerated in the
foregoing statutory provisions. Nowhere therein does it specify that a defective notarization is a ground for the

disqualification of a candidate. Yet, the COMELEC would uphold that petition upon the outlandish claim that it is a petition
to disqualify a candidate "for lack of qualifications or possessing some grounds for disqualification."

The proper characterization of a petition as one for disqualification under the pertinent provisions of laws cannot be made
dependent on the designation, correctly or incorrectly, of a petitioner. The absurd interpretation of Olandria, respondent
herein, is not controlling; the COMELEC should have dismissed his petition outright.

A petition for disqualification relates to the declaration of a candidate as ineligible or lacking in quality or accomplishment
fit for the position of mayor. The distinction between a petition for disqualification and the formal requirement in Section 73
of the OEC that a COC be under oath is not simply a question of semantics as the statutes list the grounds for the
disqualification of a candidate.

Recently, we have had occasion to distinguish the various petitions for disqualification and clarify the grounds therefor as
provided in the OEC and the LGC. We declared, thus:

To emphasize, a petition for disqualification on the one hand, can be premised on Section 12 or 68 of the OEC, or Section
40 of the LGC. On the other hand, a petition to deny due course to or cancel a CoC can only be grounded on a statement
of a material representation in the said certificate that is false. The petitions also have different effects. While a person
who is disqualified under Section 68 is merely prohibited to continue as a candidate, the person whose certificate is
cancelled or denied due course under Section 78 is not treated as a candidate at all, as if he/she never filed a CoC. Thus,
in Miranda v. Abaya, this Court made the distinction that a candidate who is disqualified under Section 68 can validly be
substituted under Section 77 of the OEC because he/she remains a candidate until disqualified; but a person whose CoC
has been denied due course or cancelled under Section 78 cannot be substituted because he/she is never considered a
candidate.11

Apart from the qualifications provided for in the Constitution, the power to prescribe additional qualifications for elective
office and grounds for disqualification therefrom, consistent with the constitutional provisions, is vested in Congress.12
However, laws prescribing qualifications for and disqualifications from office are liberally construed in favor of eligibility
since the privilege of holding an office is a valuable one.13 We cannot overemphasize the principle that where a candidate
has received popular mandate, all possible doubts should be resolved in favor of the candidates eligibility, for to rule
otherwise is to defeat the will of the people.14

In stark contrast to the foregoing, the COMELEC allowed and confirmed the disqualification of Amora although the latter
won, and was forthwith proclaimed, as Mayor of Candijay, Bohol.

Another red flag for the COMELEC to dismiss Olandrias petition is the fact that Amora claims to personally know the
notary public, Atty. Granada, before whom his COC was sworn. In this regard, the dissenting opinion of Commissioner
Larrazabal aptly disposes of the core issue:

With all due respect to the well-written Ponencia, I respectfully voice my dissent. The primary issue herein is whether it is
proper to disqualify a candidate who, in executing his Certificate of Candidacy (COC), merely presented to the Notary
Public his Community Tax Certificate.

The majority opinion strictly construed the 2004 Rules on Notarial Practice (the "2004 Notarial Rules") when it provided
that valid and competent evidence of identification must be presented to render Sergio G. Amora, Jr.s [petitioners] COC
valid. The very wording of the 2004 Notarial Rules supports my view that the instant motion for reconsideration ought to
be granted, to wit:

Section 2. Affirmation or Oath . The term "Affirmation" or "Oath" refers to an act in which an individual on a single
occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

As quoted supra, competent evidence of identity is not required in cases where the affiant is personally known to the
Notary Public, which is the case herein. The records reveal that [petitioner] submitted to this Commission a sworn affidavit
executed by Notary Public Oriculo A. Granada (Granada), who notarized [petitioners] COC, affirming in his affidavit that
he personally knows [petitioner].

[Respondent], on the other hand, presented no evidence to counter Granadas declarations. Hence, Granada[s] affidavit,
which narrates in detail his personal relation with [petitioner], should be deemed sufficient.

The purpose of election laws is to give effect to, rather than frustrate, the will of the voters.1wphi1 The people of
Candijay, Bohol has already exercised their right to suffrage on May 10, 2010 where [petitioner] was one of the candidates
for municipal mayor. To disqualify [petitioner] at this late stage simply due to an overly strict reading of the 2004 Notarial
Rules will effectively deprive the people who voted for him their rights to vote.

The Supreme Courts declaration in Petronila S. Rulloda v. COMELEC et al. must not be taken lightly:

Technicalities and procedural niceties in election cases should not be made to stand in the way of the true will of the
electorate. Laws governing election contests must be liberally construed to the end that the will of the people in the choice
of public officials may not be defeated by mere technical objections.

Election contests involve public interest, and technicalities and procedural barriers must yield if they constitute an obstacle
to the determination of the true will of the electorate in the choice of their elective officials. The Court frowns upon any

interpretation of the law that would hinder in any way not only the free and intelligent casting of the votes in an election but
also the correct ascertainment of the results.15

Our ruling herein does not do away with the formal requirement that a COC be sworn. In fact, we emphasize that the filing
of a COC is mandatory and must comply with the requirements set forth by law.16

Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath refers:

Sec. 2. Affirmation or Oath. The term "Affirmation" or "Oath" refers to an act in which an individual on a single occasion:

(a) appears in person before the notary public;

(b) is personally known to the notary public or identified by the notary public through competent evidence of identity as
defined by these Rules; and

(c) avows under penalty of law to the whole truth of the contents of the instrument or document.

In this case, however, contrary to the declarations of the COMELEC, Amora complied with the requirement of a sworn
COC. He readily explained that he and Atty. Granada personally knew each other; they were not just colleagues at the
League of Municipal Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the alleged defect in
the oath was not proven by Olandria since the presentation of a CTC turned out to be sufficient in this instance. On the
whole, the COMELEC should not have brushed aside the affidavit of Atty. Granada and remained inflexible in the face of
Amoras victory and proclamation as Mayor of Candijay, Bohol.

WHEREFORE, the petition is GRANTED. The Resolutions of the Commission on Elections in SPA No. 10-046 (DC) dated
April 29, 2010 and May 17, 2010, respectively, are ANULLED and SET ASIDE.

SO ORDERED.

*** G.R. No. 164185

July 23, 2008

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO, Respondents.
DECISION
QUISUMBING, J.:
This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails
the May 20, 2004 Decision1 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private
respondent Alejandro A. Villapandos Demurrer to Evidence2 and acquitting him of the crime of unlawful appointment
under Article 2443 of the Revised Penal Code.
The facts culled from the records are as follows:
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape
(now deceased), a relative of Villapandos wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando
won while Tiape lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the
Municipality of San Vicente, Palawan.4 A Contract of Consultancy5 dated February 8, 1999was executed between
the Municipality of San Vicente, Palawan and Tiape whereby the former employed the services of Tiape as
Municipal Administrative and Development Planning Consultant in the Office of the Municipal Mayor for a period of
six months from January 1, 1999 to June 30, 1999 for a monthly salary of P26,953.80.
On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of
Article 244 of the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon. 6 The complaint was
resolved against Villapando and Tiape and the following Information7 dated March 19, 2002 charging the two with
violation of Article 244 of the Revised Penal Code was filed with the Sandiganbayan:
xxxx
That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public
officer, being then the Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to
and taking advantage of his official functions, conspiring and confederating with accused Orlando M. Tiape, did then
and there wilfully, unlawfully and feloniously appoint ORLANDO M. TIAPE as a Municipal Administrator of San
Vicente, Palawan, accused Alejandro A. Villapando knowing fully well that Orlando Tiape lacks the qualification as
he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan del Norte during the May 1998 elections,
hence is ineligible for appointment to a public office within one year (1) from the date of the elections, to the damage
and prejudice of the government and of public interest.
CONTRARY TO LAW.8
The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was
dismissed after the prosecution proved his death which occurred on July 26, 2000. 9

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The
Sandiganbayan, Fourth Division denied his motion but gave him five days within which to inform the court in writing
whether he will nonetheless submit his Demurrer to Evidence for resolution without leave of court. 10Villapando then
filed a Manifestation of Intent to File Demurrer to Evidence,11 and was given 15 days from receipt to file his Demurrer
to Evidence. He filed his Demurrer to Evidence12 on October 28, 2003.
In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapandos Demurrer to Evidence
meritorious, as follows:
The Court found the "Demurrer to Evidence" impressed with merit.
Article 244 of the Revised Penal Code provides:
Article 244. Unlawful appointments.Any public officer who shall knowingly nominate or appoint to any public office
any person lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding
1,000 pesos. (underscoring supplied)
A dissection of the above-cited provision [yields] the following elements, to wit:
1. the offender was a public officer;
2. accused nominated or appointed a person to a public office;
3. such person did not have the legal qualifications [therefor;] and,
4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made
the nomination or appointment.
Afore-cited elements are hereunder discussed.
1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime
was committed.
2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.
3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the
time of [his] designation as Municipal Administrator, was lacking in legal qualification. Stated differently, does
"legal qualification" contemplate the one (1) year prohibition on appointment as provided for in Sec. 6, Art.
IX-B of the Constitution and Sec. 94 (b) of the Local Government Code, mandating that a candidate who lost
in any election shall not, within one year after such election, be appointed to any office in the Government?
The Court answers in the negative.
In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a law providing for
the qualifications of a person to be nominated or appointed" therein. To illuminate further, Justice Rodolfo Palattao
succinctly discussed in his book that the qualification of a public officer to hold a particular position in the
government is provided for by law, which may refer to educational attainment, civil service eligibility or experience:
As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public
office. The person nominated or appointed is not qualified and his lack of qualification is known to the party making
the nomination or appointment. The qualification of a public officer to hold a particular position in the government is

provided by law. The purpose of the law is to ensure that the person appointed is competent to perform the duties of
the office, thereby promoting efficiency in rendering public service.
The qualification to hold public office may refer to educational attainment, civil service eligibility or experience. For
instance, for one to be appointed as judge, he must be a lawyer. So if the Judicial and Bar Council nominates a
person for appointment as judge knowing him to be not a member of the Philippine Bar, such act constitutes a
violation of the law under consideration.
In this case, Orlando Tiape was allegedly appointed to the position of Municipal Administrator. As such, the law that
provides for the legal qualification for the position of municipal administrator is Section 480, Article X of the Local
Government Code, to wit:
"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 the municipal administrator.
xxx

xxx

x x x"

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapandos appointee,
Orlando Tiape, lacked any of the qualifications imposed by law on the position of Municipal Administrator.
Prosecutions argument rested on the assertion that since Tiape lost in the May 11, 1998 election, he necessarily
lacked the required legal qualifications.
It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person
who possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a
public position by reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may
not be temporarily disqualified for appointment, but could not be appointed as he lacked any or all of the required
legal qualifications imposed by law.
4. Anent the last element, this Court deems it unnecessary to discuss the same.
WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is
hereby GRANTED. Mayor Villapando is hereby ACQUITTED of the crime charged.
SO ORDERED.13
Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the
People of the Philippines.
Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed
to do so and in a Resolution14 dated June 7, 2006, this Court informed him that he is deemed to have waived the
filing of his comment and the case shall be resolved on the basis of the pleadings submitted by the petitioner.
Petitioner raises the following issues:
I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE "LEGAL
DISQUALIFICATION" IN ARTICLE 244 OF THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE
YEAR PROHIBITION IMPOSED ON LOSING CANDIDATES AS ENUNCIATED IN THE CONSTITUTION
AND THE LOCAL GOVERNMENT CODE.
II.
WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OF OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY
GRANTING, THE DEMURRER TO EVIDENCE.15
Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion
amounting to lack or excess of jurisdiction.
Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or
excess of jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not complement the
provision on the one-year prohibition found in the 1987 Constitution and the Local Government Code, particularly
Section 6, Article IX of the 1987 Constitution which states no candidate who has lost in any election shall, within one
year after such election, be appointed to any office in the government or any government-owned or controlled
corporation or in any of their subsidiaries. Section 94(b) of the Local Government Code of 1991, for its part, states
that except for losing candidates in barangay elections, no candidate who lost in any election shall, within one year
after such election, be appointed to any office in the government or any government-owned or controlled corporation
or in any of their subsidiaries. Petitioner argues that the court erred when it ruled that temporary prohibition is not
synonymous with the absence of lack of legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may
well be that one who possesses the required legal qualification for a position may be temporarily disqualified for
appointment to a public position by reason of the one-year prohibition imposed on losing candidates. However, there
is no violation of Article 244 of the Revised Penal Code should a person suffering from temporary disqualification be
appointed so long as the appointee possesses all the qualifications stated in the law.
There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of
the Revised Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987
Constitution and Section 94(b) of the Local Government Code of 1991 prohibits losing candidates within one year
after such election to be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Article 244 of the Revised Penal Code states:
Art. 244. Unlawful appointments. Any public officer who shall knowingly nominate or appoint to any public office
any person lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not
exceeding 1,000 pesos.
Section 94 of the Local Government Code provides:
SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No
elective or appointive local official shall be eligible for appointment or designation in any capacity to any public office
or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official
shall hold any other office or employment in the government or any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or their subsidiaries.
(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1)
year after such election, be appointed to any office in the government or any government-owned or controlled
corporations or in any of their subsidiaries.
Section 6, Article IX-B of the 1987 Constitution states:
Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any
office in the Government or any Government-owned or controlled corporations or in any of their subsidiaries.
Villapandos contention and the Sandiganbayan, Fourth Divisions interpretation of the term legal disqualification
lack cogency. Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot
be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6,
Article IX of the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
Although this Court held in the case of People v. Sandiganbayan16 that once a court grants the demurrer to
evidence, such order amounts to an acquittal and any further prosecution of the accused would violate the
constitutional proscription on double jeopardy, this Court held in the same case that such ruling on the matter shall
not be disturbed in the absence of a grave abuse of discretion.
1avvphi1

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of
judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to
an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of
law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.17
In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with
grave abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code
defies legal cogency. Legal disqualification cannot be read as excluding temporary disqualification in order to
exempt therefrom the legal prohibitions under the 1987 Constitution and the Local Government Code of 1991. We
reiterate the legal maxim ubi lex non distinguit nec nos distinguere debemus. Basic is the rule in statutory
construction that where the law does not distinguish, the courts should not distinguish. There should be no
distinction in the application of a law where none is indicated.
Further, the Sandiganbayan, Fourth Division denied Villapandos Motion for Leave to File Demurrer to Evidence yet
accommodated Villapando by giving him five days within which to inform it in writing whether he will submit his
demurrer to evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal
contemplation and, thus, cannot be the source of an acquittal.18
The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of
statutory construction resulting in its decision granting Villapandos Demurrer to Evidence and acquitting the latter,
we can do no less but declare its decision null and void.
WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division,
in Criminal Case No. 27465, granting private respondent Alejandro A. Villapandos Demurrer to Evidence and
acquitting him of the crime of unlawful appointment under Article 244 of the Revised Penal Code is hereby

declared NULL and VOID. Let the records of this case be remanded to the Sandiganbayan, Fourth Division, for
further proceedings.
SO ORDERED.

*** BENJAMIN U. BORJA, JR., Petitioner, v. COMMISSION ON ELECTIONS, PATEROS MUNICIPAL BOARD OF
CANVASSERS and JOSE T. CAPCO, JR., Respondents.

SYLLABUS

1.
POLITICAL LAW; ELECTION LAW; OMNIBUS ELECTION CODE; FAILURE OF ELECTION; GROUNDS CITED
IN CASE AT BAR ARE NOT PROPER IN A PETITION TO DECLARE A FAILURE OF ELECTION. 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, not 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." To destroy the
presumption, Borja must convincingly show that his opponents victory was procured through extra-legal 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.

2.
ID.; ID.; ID.; ID.; INSTANCES WHEN A FAILURE OF ELECTION MAY BE DECLARED; NOT PRESENT IN CASE
AT BAR. Section 6 of the Omnibus Election Code is reiterated in 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.

3.
ID.; ID.; ID.; ID.; CASE AT BAR; A CASE OF. 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.

*** G.R. No. 120140 August 21, 1996

BENJAMIN U. BORJA, JR., petitioner,
vs.
COMMISSION ON ELECTIONS, PATEROS MUNICIPAL BOARD OF CANVASSERS and JOSE T. CAPCO,
JR.,respondents.

ROMERO, J.:p
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 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 "force 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 Borja's 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 Commission en banc."
After a careful scrutiny of petitioner's 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
opponent's victory was procured through extra-legal 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, Borja's 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:
Sec. 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. (Emphasis supplied)
The COMELEC in turn exercises appellate jurisdiction over the trial court's 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 Borja's 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 COMELEC's
actuation was favorable to him.

Certainly, the COMELEC cannot be said to have committed abuse of discretion, let alone grave abuse thereof, in
dismissing Borja's 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.
SO ORDERED.

*** G.R. No. 135150

July 28, 1999

ROMEO LONZANIDA, petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.

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. 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.1wphi1.nt

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:

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.

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 P1,720 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 he 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 Lonzanida's 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 heard 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
commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's
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 1 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 or "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 not 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 petitioner's proclamation.

The petition has merit.

Sec. 8, Art. X of the Constitution 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 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.

Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:

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 Lonzanida's 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 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 local 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 official's 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:

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?

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?

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, 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.

xxx

xxx

xxx

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 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 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. 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
people's choice and grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the 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.

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 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 court's 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 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 petitioner's 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 petitioner's 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.

Sec. 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. The implication 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 foresee. A candidate guilty of election offenses
would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification 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

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 respondent's 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 . . . 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.1wphi1.nt

SO ORDERED.

*** G.R. No. 135150 July 28, 1999

ROMEO LONZANIDA, petitioner,

vs.
THE HONORABLE COMMISSION ON ELECTION and EUFEMIO MULI, respondents.

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. 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.
1wphi1.nt

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:
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.
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 P1,720 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 he 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 Lonzanida's 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 heard 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
commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the petitioner's
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 1 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 factomayor for the 1995-1998 term is
inconsequential in the application of the three term limit because the prohibition speaks or "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 not 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 petitioner's proclamation.
The petition has merit.
Sec. 8, Art. X of the Constitution 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 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.
Sec. 43 of the Local Government Code (R.A. No. 7160) restates the same rule:
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 Lonzanida's 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 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 local 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 official's 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:
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?
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?
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, 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.
xxx xxx xxx
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 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 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. 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. 6Petitioner 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
people's choice and grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the 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.
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 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 court's 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 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 petitioner's 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 petitioner's 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.
Sec. 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. The implication 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 foresee. A candidate guilty of
election offenses would be undeservedly rewarded, instead of punished, by the dismissal of the
disqualification 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
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 respondent's 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 . . . 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.
1wphi1.nt

SO ORDERED.

*** G.R. No. 195229

October 9, 2012

EFREN RACEL ARA TEA, Petitioner,

vs.
COMMISSiON ON ELECTIONS and ESTELA D. ANTlPOLO, Respondents.
DECISION
CARPIO, J.:
The Case
This is a special civil action for certiorari1 seeking to review and nullify the Resolution2 dated 2 February 2011 and
the Order3 dated 12 January 2011 of the Commission on Elections (COMELEC) En Banc in Dra. Sigrid S. Rodolfo v.
Romeo D. Lonzanida, docketed as SPA No. 09-158 (DC). The petition asserts that the COMELEC issued the
Resolution and Order with grave abuse of discretion amounting to lack or excess of jurisdiction.
The Facts
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo) were candidates for Mayor of San Antonio,
Zambales in the May 2010 National and Local Elections. Lonzanida filed his certificate of candidacy on 1 December
2009.4 On 8 December 2009, Dra. Sigrid S. Rodolfo (Rodolfo) filed a petition under Section 78 of the Omnibus
Election Code to disqualify Lonzanida and to deny due course or to cancel Lonzanidas certificate of candidacy on
the ground that Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for four (4)
consecutive terms immediately prior to the term for the May 2010 elections. Rodolfo asserted that Lonzanida made
a false material representation in his certificate of candidacy when Lonzanida certified under oath that he was
eligible for the office he sought election. Section 8, Article X of the 1987 Constitution 5 and Section 43(b) of the Local
Government Code6 both prohibit a local elective official from being elected and serving for more than three
consecutive terms for the same position.

The COMELEC Second Division rendered a Resolution7 on 18 February 2010 cancelling Lonzanidas certificate of
candidacy. Pertinent portions of the 18 February 2010 Resolution read:
Respondent Lonzanida never denied having held the office of mayor of San Antonio, Zambales for more than nine
consecutive years. Instead he raised arguments to forestall or dismiss the petition on the grounds other than the
main issue itself. We find such arguments as wanting. Respondent Lonzanida, for holding the office of mayor for
more than three consecutive terms, went against the three-term limit rule; therefore, he could not be allowed to run
anew in the 2010 elections. It is time to infuse new blood in the political arena of San Antonio.
WHEREFORE, premises considered, the instant petition is hereby GRANTED. The Certificate of Candidacy of
Respondent Romeo D. Lonzanida for the position of mayor in the municipality of San Antonio, Zambales is hereby
CANCELLED. His name is hereby ordered STRICKEN OFF the list of Official Candidates for the position of Mayor
of San Antonio, Zambales in May 10, 2010 elections.
SO ORDERED.8
Lonzanidas motion for reconsideration before the COMELEC En Banc remained pending during the May 2010
elections. Lonzanida and Efren Racel Aratea (Aratea) garnered the highest number of votes and were respectively
proclaimed Mayor and Vice-Mayor.
Aratea took his oath of office as Acting Mayor before Regional Trial Court (RTC) Judge Raymond C. Viray of Branch
75, Olongapo City on 5 July 2010.9 On the same date, Aratea wrote the Department of Interior and Local
Government (DILG) and requested for an opinion on whether, as Vice-Mayor, he was legally required to assume the
Office of the Mayor in view of Lonzanidas disqualification. DILG Legal Opinion No. 117, S. 2010 10 stated that
Lonzanida was disqualified to hold office by reason of his criminal conviction. As a consequence of Lonzanidas
disqualification, the Office of the Mayor was deemed permanently vacant. Thus, Aratea should assume the Office of
the Mayor in an acting capacity without prejudice to the COMELECs resolution of Lonzanidas motion for
reconsideration. In another letter dated 6 August 2010, Aratea requested the DILG to allow him to take the oath of
office as Mayor of San Antonio, Zambales. In his response dated 24 August 2010, then Secretary Jesse M. Robredo
allowed Aratea to take an oath of office as "the permanent Municipal Mayor of San Antonio, Zambales without
prejudice however to the outcome of the cases pending before the [COMELEC]." 11
On 11 August 2010, the COMELEC En Banc issued a Resolution12 disqualifying Lonzanida from running for Mayor in
the May 2010 elections. The COMELEC En Bancs resolution was based on two grounds: first, Lonzanida had been
elected and had served as Mayor for more than three consecutive terms without interruption; and second,
Lonzanida had been convicted by final judgment of ten (10) counts of falsification under the Revised Penal Code.
Lonzanida was sentenced for each count of falsification to imprisonment of four (4) years and one (1) day of prisin
correccional as minimum, to eight (8) years and one (1) day of prisin mayor as maximum. The judgment of
conviction became final on 23 October 2009 in the Decision of this Court in Lonzanida v. People,13 before Lonzanida
filed his certificate of candidacy on 1 December 2009. Pertinent portions of the 11 August 2010 Resolution read:
Prescinding from the foregoing premises, Lonzanida, for having served as Mayor of San Antonio, Zambales for
more than three (3) consecutive terms and for having been convicted by a final judgment of a crime punishable by
more than one (1) year of imprisonment, is clearly disqualified to run for the same position in the May 2010
Elections.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is hereby DENIED.
SO ORDERED.14

On 25 August 2010, Antipolo filed a Motion for Leave to Intervene and to Admit Attached Petition-inIntervention.15 She claimed her right to be proclaimed as Mayor of San Antonio, Zambales because Lonzanida
ceased to be a candidate when the COMELEC Second Division, through its 18 February 2010 Resolution, ordered
the cancellation of his certificate of candidacy and the striking out of his name from the list of official candidates for
the position of Mayor of San Antonio, Zambales in the May 2010 elections.
In his Comment filed on 26 January 2011, Aratea asserted that Antipolo, as the candidate who received the second
highest number of votes, could not be proclaimed as the winning candidate. Since Lonzanidas disqualification was
not yet final during election day, the votes cast in his favor could not be declared stray. Lonzanidas subsequent
disqualification resulted in a permanent vacancy in the Office of Mayor, and Aratea, as the duly-elected Vice-Mayor,
was mandated by Section 4416 of the Local Government Code to succeed as Mayor.
The COMELECs Rulings
The COMELEC En Banc issued an Order dated 12 January 2011, stating:
Acting on the "Motion for Leave to Intervene and to Admit Attached Petition-in-Intervention" filed by Estela D.
Antipolo (Antipolo) and pursuant to the power of this Commission to suspend its Rules or any portion thereof in the
interest of justice, this Commission hereby RESOLVES to:
1. GRANT the aforesaid Motion;
2. ADMIT the Petition-in-Intervention filed by Antipolo;
3. REQUIRE the Respondent, ROMEO DUMLAO LONZANIDA, as well as EFREN RACEL ARATEA, proclaimed
Vice-Mayor of San Antonio, Zambales, to file their respective Comments on the Petition-in- Intervention within a
non-extendible period of five (5) days from receipt thereof;
4. SET the above-mentioned Petition-in-Intervention for hearing on January 26, 2011 at 10:00 a.m. COMELEC
Session Hall, 8th Floor, Palacio del Gobernador, Intramuros, Manila.
WHEREFORE, furnish copies hereof the parties for their information and compliance.
SO ORDERED.17
In its Resolution dated 2 February 2011, the COMELEC En Banc no longer considered Lonzanidas qualification as
an issue: "It is beyond cavil that Lonzanida is not eligible to hold and discharge the functions of the Office of the
Mayor of San Antonio, Zambales. The sole issue to be resolved at this juncture is how to fill the vacancy resulting
from Lonzanidas disqualification."18 The Resolution further stated:
We cannot sustain the submission of Oppositor Aratea that Intervenor Antipolo could never be proclaimed as the
duly elected Mayor of Antipolo [sic] for being a second placer in the elections. The teachings in the cases of Codilla
vs. De Venecia and Nazareno and Domino vs. COMELEC, et al., while they remain sound jurisprudence find no
application in the case at bar. What sets this case apart from the cited jurisprudence is that the notoriety of
Lonzanidas disqualification and ineligibility to hold public office is established both in fact and in law on election day
itself. Hence, Lonzanidas name, as already ordered by the Commission on February 18, 2010 should have been
stricken off from the list of official candidates for Mayor of San Antonio, Zambales.
WHEREFORE, in view of the foregoing, the Commission hereby:
1. Declares NULL and VOID the proclamation of respondent ROMEO D. LONZANIDA;

2. GRANTS the Petition for Intervention of Estela D. Antipolo;

3. Orders the immediate CONSTITUTION of a Special Municipal Board of Canvassers to PROCLAIM Intervenor
Estela D. Antipolo as the duly elected Mayor of San Antonio, Zambales;
4. Orders Vice-Mayor Efren Racel Aratea to cease and desist from discharging the functions of the Office of the
Mayor, and to cause a peaceful turn-over of the said office to Antipolo upon her proclamation; and
5. Orders the Office of the Executive Director as well as the Regional Election Director of Region III to cause the
implementation of this Resolution and disseminate it to the Department of Interior and Local Government.
SO ORDERED.19
Aratea filed the present petition on 9 February 2011.
The Issues
The manner of filling up the permanent vacancy in the Office of the Mayor of San Antonio, Zambales is dependent
upon the determination of Lonzanidas removal. Whether Lonzanida was disqualified under Section 68 of the
Omnibus Election Code, or made a false material representation under Section 78 of the same Code that resulted
in his certificate of candidacy being void ab initio, is determinative of whether Aratea or Antipolo is the rightful
occupant to the Office of the Mayor of San Antonio, Zambales.
The dissenting opinions reverse the COMELECs 2 February 2011 Resolution and 12 January 2011 Order. They
hold that Aratea, the duly elected Vice-Mayor of San Antonio, Zambales, should be declared Mayor pursuant to the
Local Government Codes rule on succession.
The dissenting opinions make three grave errors: first, they ignore prevailing jurisprudence that a false
representation in the certificate of candidacy as to eligibility in the number of terms elected and served is a material
fact that is a ground for a petition to cancel a certificate of candidacy under Section 78; second, they ignore that a
false representation as to eligibility to run for public office due to the fact that the candidate suffers from
perpetual special disqualification is a material fact that is a ground for a petition to cancel a certificate of candidacy
under Section 78; and third, they resort to a strained statutory construction to conclude that the violation of the
three-term limit rule cannot be a ground for cancellation of a certificate of candidacy under Section 78, even when it
is clear and plain that violation of the three-term limit rule is an ineligibility affecting the qualification of a candidate to
elective office.
The dissenting opinions tread on dangerous ground when they assert that a candidates eligibility to the office he
seeks election must be strictly construed to refer only to the details, i.e., age, citizenship, or residency, among
others, which the law requires him to state in his COC, and which he must swear under oath to possess. The
dissenting opinions choose to view a false certification of a candidates eligibility on the three-term limit rule not as a
ground for false material representation under Section 78 but as a ground for disqualification under Section 68 of
the same Code. This is clearly contrary to well-established jurisprudence.
The Courts Ruling
We hold that Antipolo, the alleged "second placer," should be proclaimed Mayor because Lonzanidas certificate of
candidacy was void ab initio. In short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray
votes. Thus, Antipolo, the only qualified candidate, actually garnered the highest number of votes for the position of
Mayor.

Qualifications and Disqualifications

Section 65 of the Omnibus Election Code points to the Local Government Code for the qualifications of elective
local officials. Paragraphs (a) and (c) of Section 39 and Section 40 of the Local Government Code provide in
pertinent part:
Sec. 39. Qualifications. (a) An elective local official must be a citizen of the Philippines; a registered voter in the
barangay, municipality, city or province x x x; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local language or dialect.
xxxx
(c) Candidates for the position of mayor or vice-mayor of independent component cities, component cities, or
municipalities must be at least twenty-one (21) years of age on election day.
xxxx
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable
by one (1) year or more of imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(f) Permanent residents in a foreign country or those who have acquired the right to reside abroad and continue to
avail of the same right after the effectivity of this Code; and
(g) The insane or feeble-minded. (Emphasis supplied)
Section 12 of the Omnibus Election Code provides:
Sec. 12. Disqualification. Any person who has been declared by competent authority insane or incompetent, or
has been sentenced by final judgment for subversion, insurrection, rebellion or for any offense for which he
was sentenced to a penalty of more than eighteen months or for a crime involving moral turpitude, shall be
disqualified to be a candidate and to hold any office, unless he has been given plenary pardon or granted amnesty.
The disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by
competent authority that said insanity or incompetence had been removed or after the expiration of a period of five
years from his service of sentence, unless within the same period he again becomes disqualified. (Emphasis
supplied)
The grounds for disqualification for a petition under Section 68 of the Omnibus Election Code are specifically
enumerated:

Sec. 68. Disqualifications. Any candidate who, in an action or protest in which he is a party is declared by final
decision by a competent court guilty of, or found by the Commission of having (a) given money or other material
consideration to influence, induce or corrupt the voters or public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in his election campaign an amount in
excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under
Sections 89, 95, 96, 97 and 104; (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and
cc, subparagraph 6, shall be disqualified from continuing as a candidate, or if he has been elected, from holding
the office. Any person who is a permanent resident of or an immigrant to a foreign country shall not be qualified to
run for any elective office under this Code, unless said person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence requirement provided for in the election laws.
(Emphasis supplied)
A petition for disqualification under Section 68 clearly refers to "the commission of prohibited acts and possession of
a permanent resident status in a foreign country."20 All the offenses mentioned in Section 68 refer to election
offenses under the Omnibus Election Code, not to violations of other penal laws. There is absolutely nothing
in the language of Section 68 that would justify including violation of the three-term limit rule, or conviction by final
judgment of the crime of falsification under the Revised Penal Code, as one of the grounds or offenses covered
under Section 68. In Codilla, Sr. v. de Venecia,21 this Court ruled:
[T]he jurisdiction of the COMELEC to disqualify candidates is limited to those enumerated in Section 68 of the
Omnibus Election Code. All other election offenses are beyond the ambit of COMELEC jurisdiction. They are
criminal and not administrative in nature. x x x
Clearly, the violation by Lonzanida of the three-term limit rule, or his conviction by final judgment of the crime of
falsification under the Revised Penal Code, does not constitute a ground for a petition under Section 68.
False Material Representation
Section 78 of the Omnibus Election Code states that a certificate of candidacy may be denied or cancelled when
there is false material representation of the contents of the certificate of candidacy:
Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. A verified petition seeking to deny due
course or to cancel a certificate of candidacy may be filed by the person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof is false. The petition may be
filed at any time not later than twenty-five days from the time of the filing of the certificate of candidacy and shall be
decided, after due notice and hearing, not later than fifteen days before the election. (Emphasis supplied)
Section 74 of the Omnibus Election Code details the contents of the certificate of candidacy:
Sec. 74. Contents of certificate of candidacy. The certificate of candidacy shall state that the person filing it is
announcing his candidacy for the office stated therein and that he is eligible for said office; if for Member of the
Batasang Pambansa, the province, including its component cities, highly urbanized city or district or sector which he
seeks to represent; the political party to which he belongs; civil status; his date of birth; residence; his post office
address for all election purposes; his profession or occupation; that he will support and defend the Constitution of
the Philippines and will maintain true faith and allegiance thereto; that he will obey the laws, legal orders, and
decrees promulgated by the duly constituted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed voluntarily, without mental reservation or
purpose of evasion; and that the facts stated in the certificate of candidacy are true to the best of his knowledge.
x x x x (Emphasis supplied)

A candidate for mayor in the 2010 local elections was thus required to provide 12 items of information in the
certificate of candidacy:22 name; nickname or stage name; gender; age; place of birth; political party that nominated
the candidate; civil status; residence/address; profession or occupation; post office address for election purposes;
locality of which the candidate is a registered voter; and period of residence in the Philippines before 10 May 2010.
The candidate also certifies four statements: a statement that the candidate is a natural born or naturalized Filipino
citizen; a statement that the candidate is not a permanent resident of, or immigrant to, a foreign country; a
statement that the candidate is eligible for the office he seeks election; and a statement of the candidates
allegiance to the Constitution of the Republic of the Philippines.23 The certificate of candidacy should also be under
oath, and filed within the period prescribed by law.
The conviction of Lonzanida by final judgment, with the penalty of prisin mayor, disqualifies him perpetually from
holding any public office, or from being elected to any public office. This perpetual disqualification took
effect upon the finality of the judgment of conviction, before Lonzanida filed his certificate of candidacy.
The pertinent provisions of the Revised Penal Code are as follows:
Art. 27. Reclusion perpetua. x x x
Prisin mayor and temporary disqualification. The duration of the penalties of prisin mayor and temporary
disqualification shall be from six years and one day to twelve years, except when the penalty of
disqualification is imposed as an accessory penalty, in which case, it shall be that of the principal penalty.
xxxx
Art. 30. Effects of the penalties of perpetual or temporary absolute disqualification. The penalties of perpetual or
temporary absolute disqualification for public office shall produce the following effects:
1. The deprivation of the public offices and employments which the offender may have held, even if
conferred by popular election.
2. The deprivation of the right to vote in any election for any popular elective office or to be elected to such
office.
3. The disqualification for the offices or public employments and for the exercise of any of the rights
mentioned.
In case of temporary disqualification, such disqualification as is comprised in paragraphs 2 and 3 of this article shall
last during the term of the sentence.
4. The loss of all rights to retirement pay or other pension for any office formerly held.
Art. 31. Effects of the penalties of perpetual or temporary special disqualification. The penalties of perpetual or
temporary special disqualification for public office, profession or calling shall produce the following effects:
1. The deprivation of the office, employment, profession or calling affected.
2. The disqualification for holding similar offices or employments either perpetually or during the term of the
sentence, according to the extent of such disqualification.
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of
suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall
deprive the offender perpetually or during the term of the sentence, according to the nature of said penalty, of

the right to vote in any popular election for any public office or to be elected to such office. Moreover, the
offender shall not be permitted to hold any public office during the period of his disqualification.
Art. 42. Prisin mayor Its accessory penalties. The penalty of prision mayor shall carry with it that
of temporary absolute disqualification and that of perpetual special disqualification from the right of suffrage
which the offender shall suffer although pardoned as to the principal penalty, unless the same shall have been
expressly remitted in the pardon. (Emphasis supplied)
The penalty of prisin mayor automatically carries with it, by operation of law,24 the accessory penalties of temporary
absolute disqualification and perpetual special disqualification. Under Article 30 of the Revised Penal Code,
temporary absolute disqualification produces the effect of "deprivation of the right to vote in any election for any
popular elective office or to be elected to such office. The duration of temporary absolute disqualification is the
same as that of the principal penalty of prisin mayor. On the other hand, under Article 32 of the Revised Penal
Code, perpetual special disqualification means that "the offender shall not be permitted to hold any public
office during the period of his disqualification, which is perpetually. Both temporary absolute disqualification
and perpetual special disqualification constitute ineligibilities to hold elective public office. A person suffering from
these ineligibilities is ineligible to run for elective public office, and commits a false material representation
if he states in his certificate of candidacy that he is eligible to so run.
In Lacuna v. Abes (Lacuna),25 the Court, speaking through Justice J.B.L. Reyes, explained the import of the
accessory penalty of perpetual special disqualification:
On the first defense of respondent-appellee Abes, it must be remembered that appellees conviction of a crime
penalized with prision mayor which carried the accessory penalties of temporary absolute disqualification and
perpetual special disqualification from the right of suffrage (Article 42, Revised Penal Code); and Section 99 of the
Revised Election Code disqualifies a person from voting if he had been sentenced by final judgment to suffer one
year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies the convict for public office and for the right
to vote, such disqualification to last only during the term of the sentence (Article 27, paragraph 3, & Article 30,
Revised Penal Code) that, in the case of Abes, would have expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty of perpetual special disqualification for the
exercise of the right of suffrage. This accessory penalty deprives the convict of the right to vote or to be elected to or
hold public office perpetually, as distinguished from temporary special disqualification, which lasts during the term of
the sentence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqualification for the exercise of the right of
suffrage. The perpetual or temporary special disqualification for the exercise of the right of suffrage shall deprive
the offender perpetually or during the term of the sentence, according to the nature of said penalty, of the right to
vote in any popular election for any public office or to be elected to such office. Moreover, the offender shall not be
permitted to hold any public office during the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence" should be applied distributively to their
respective antecedents; thus, the word "perpetually" refers to the perpetual kind of special disqualification, while the
phrase "during the term of the sentence" refers to the temporary special disqualification. The duration between the
perpetual and the temporary (both special) are necessarily different because the provision, instead of merging their
durations into one period, states that such duration is "according to the nature of said penalty" which means
according to whether the penalty is the perpetual or the temporary special disqualification. (Emphasis supplied)

Clearly, Lacuna instructs that the accessory penalty of perpetual special disqualification "deprives the convict of
the right to vote or to be elected to or hold public office perpetually.
The accessory penalty of perpetual special disqualification takes effect immediately once the judgment of
conviction becomes final. The effectivity of this accessory penalty does not depend on the duration of the principal
penalty, or on whether the convict serves his jail sentence or not. The last sentence of Article 32 states that "the
offender shall not be permitted to hold any public office during the period of his [perpetual special] disqualification."
Once the judgment of conviction becomes final, it is immediately executory. Any public office that the convict may be
holding at the time of his conviction becomes vacant upon finality of the judgment, and the convict becomes
ineligible to run for any elective public office perpetually. In the case of Lonzanida, he became ineligible
perpetually to hold, or to run for, any elective public office from the time the judgment of conviction against
him became final. The judgment of conviction was promulgated on 20 July 2009 and became final on 23
October 2009, before Lonzanida filed his certificate of candidacy on 1 December 2009 . 26
Perpetual special disqualification is a ground for a petition under Section 78 of the Omnibus Election Code
because this accessory penalty is an ineligibility, which means that the convict is not eligible to run for public office,
contrary to the statement that Section 74 requires him to state under oath in his certificate of candidacy. As this
Court held in Fermin v. Commission on Elections,27 the false material representation may refer to "qualifications or
eligibility. One who suffers from perpetual special disqualification is ineligible to run for public office. If a person
suffering from perpetual special disqualification files a certificate of candidacy stating under oath that "he is eligible
to run for (public) office," as expressly required under Section 74, then he clearly makes a false material
representation that is a ground for a petition under Section 78. As this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellation of the CoC is not based on the lack of
qualifications but on a finding that the candidate made a material representation that is false, which may relate to
the qualifications required of the public office he/she is running for. It is noted that the candidate states in
his/her CoC that he/she is eligible for the office he/she seeks. Section 78 of the OEC, therefore, is to be read
in relation to the constitutional and statutory provisions on qualifications or eligibility for public office. If the
candidate subsequently states a material representation in the CoC that is false, the COMELEC, following
the law, is empowered to deny due course to or cancel such certificate. Indeed, the Court has already likened
a proceeding under Section 78 to a quo warranto proceeding under Section 253 of the OEC since they both deal
with the eligibility or qualification of a candidate, with the distinction mainly in the fact that a "Section 78" petition is
filed before proclamation, while a petition for quo warranto is filed after proclamation of the winning
candidate.28 (Emphasis supplied)
Latasa, Rivera and Ong:
The Three-Term Limit Rule as a Ground for Ineligibility
Section 74 requires the candidate to certify that he is eligible for the public office he seeks election. Thus, Section
74 states that "the certificate of candidacy shall state that the person filing x x x is eligible for said office.
The three-term limit rule, enacted to prevent the establishment of political dynasties and to enhance the electorates
freedom of choice,29 is found both in the Constitution30 and the law.31 After being elected and serving for three
consecutive terms, an elective local official cannot seek immediate reelection for the same office in the next regular
election32 because he is ineligible. One who has an ineligibility to run for elective public office is not "eligible for [the]
office." As used in Section 74, the word "eligible"33 means having the right to run for elective public office, that is,
having all the qualifications and none of the ineligibilities to run for the public office.
In Latasa v. Commission on Elections,34 petitioner Arsenio Latasa was elected mayor of the Municipality of Digos,
Davao del Sur in 1992, 1995, and 1998. The Municipality of Digos was converted into the City of Digos during
Latasas third term. Latasa filed his certificate of candidacy for city mayor for the 2001 elections. Romeo Sunga,

Latasas opponent, filed before the COMELEC a "petition to deny due course, cancel certificate of candidacy and/or
disqualification" under Section 78 on the ground that Latasa falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City. Latasa argued that he did not make any false representation. In his
certificate of candidacy, Latasa inserted a footnote after the phrase "I am eligible" and indicated " *Having served
three (3) term[s] as municipal mayor and now running for the first time as city mayor." The COMELEC First Division
cancelled Latasas certificate of candidacy for violation of the three-term limit rule but not for false material
representation. This Court affirmed the COMELEC En Bancs denial of Latasas motion for reconsideration.
We cancelled Marino Morales certificate of candidacy in Rivera III v. Commission on Elections (Rivera).35 We held
that Morales exceeded the maximum three-term limit, having been elected and served as Mayor of Mabalacat for
four consecutive terms (1995 to 1998, 1998 to 2001, 2001 to 2004, and 2004 to 2007). We declared him ineligible
as a candidate for the same position for the 2007 to 2010 term. Although we did not explicitly rule that Morales
violation of the three-term limit rule constituted false material representation, we nonetheless granted the petition to
cancel Morales certificate of candidacy under Section 78. We also affirmed the cancellation of Francis Ongs
certificate of candidacy in Ong v. Alegre,36 where the "petition to disqualify, deny due course and cancel" Ongs
certificate of candidacy under Section 78 was predicated on the violation of the three-term limit rule.
Loong, Fermin and Munder:
When Possession of a Disqualifying Condition
is Not a Ground for a Petition for Disqualification
It is obvious from a reading of the laws and jurisprudence that there is an overlap in the grounds for eligibility and
ineligibility vis--vis qualifications and disqualifications. For example, a candidate may represent that he is a resident
of a particular Philippine locality37 when he is actually a permanent resident of another country.38 In cases of such
overlap, the petitioner should not be constrained in his choice of remedy when the Omnibus Election Code explicitly
makes available multiple remedies.39 Section 78 allows the filing of a petition to deny due course or to cancel a
certificate of candidacy before the election, while Section 253 allows the filing of a petition for quo warranto after the
election. Despite the overlap of the grounds, one should not confuse a petition for disqualification using grounds
enumerated in Section 68 with a petition to deny due course or to cancel a certificate of candidacy under Section
78.
The distinction between a petition under Section 68 and a petition under Section 78 was discussed in Loong v.
Commission on Elections40 with respect to the applicable prescriptive period. Respondent Nur Hussein Ututalum
filed a petition under Section 78 to disqualify petitioner Benjamin Loong for the office of Regional Vice-Governor of
the Autonomous Government of Muslim Mindanao for false representation as to his age. The petition was filed 16
days after the election, and clearly beyond the prescribed 25 day period from the last day of filing certificates of
candidacy. This Court ruled that Ututalums petition was one based on false representation under Section 78, and
not for disqualification under Section 68. Hence, the 25-day prescriptive period provided in Section 78 should be
strictly applied. We recognized the possible gap in the law:
It is true that the discovery of false representation as to material facts required to be stated in a certificate of
candidacy, under Section 74 of the Code, may be made only after the lapse of the 25-day period prescribed by
Section 78 of the Code, through no fault of the person who discovers such misrepresentations and who would want
the disqualification of the candidate committing the misrepresentations. It would seem, therefore, that there could
indeed be a gap between the time of the discovery of the misrepresentation, (when the discovery is made after the
25-day period under Sec. 78 of the Code has lapsed) and the time when the proclamation of the results of the
election is made. During this so-called "gap" the would-be petitioner (who would seek the disqualification of the
candidate) is left with nothing to do except to wait for the proclamation of the results, so that he could avail of a
remedy against the misrepresenting candidate, that is, by filing a petition for quo warranto against him. Respondent

Commission sees this "gap" in what it calls a procedural gap which, according to it, is unnecessary and should be
remedied.
At the same time, it can not be denied that it is the purpose and intent of the legislative branch of the government to
fix a definite time within which petitions of protests related to eligibility of candidates for elective offices must be filed,
as seen in Sections 78 and 253 of the Code. Respondent Commission may have seen the need to remedy this socalled procedural gap", but it is not for it to prescribe what the law does not provide, its function not being
legislative. The question of whether the time to file these petitions or protests is too short or ineffective is one for the
Legislature to decide and remedy.41
In Fermin v. Commission on Elections,42 the issue of a candidates possession of the required one-year residency
requirement was raised in a petition for disqualification under Section 68 instead of a petition to deny due course or
to cancel a certificate of candidacy under Section 78. Despite the question of the one-year residency being a proper
ground under Section 78, Dilangalen, the petitioner before the COMELEC in Fermin, relied on Section 5(C)(1) and
5(C)(3)(a)(4) of COMELEC Resolution No. 780043 and filed the petition under Section 68. In Fermin, we ruled that "a
COMELEC rule or resolution cannot supplant or vary legislative enactments that distinguish the grounds for
disqualification from those of ineligibility, and the appropriate proceedings to raise the said grounds." 44 A petition
for disqualification can only be premised on a ground specified in Section 12 or 68 of the Omnibus Election Code or
Section 40 of the Local Government Code. Thus, a petition questioning a candidates possession of the required
one-year residency requirement, as distinguished from permanent residency or immigrant status in a foreign
country, should be filed under Section 78, and a petition under Section 68 is the wrong remedy.
In Munder v. Commission on Elections,45 petitioner Alfais Munder filed a certificate of candidacy for Mayor of
Bubong, Lanao del Sur on 26 November 2009. Respondent Atty. Tago Sarip filed a petition for Munders
disqualification on 13 April 2010. Sarip claimed that Munder misrepresented that he was a registered voter of
Bubong, Lanao del Sur, and that he was eligible to register as a voter in 2003 even though he was not yet 18 years
of age at the time of the voters registration. Moreover, Munders certificate of candidacy was not accomplished in
full as he failed to indicate his precinct and did not affix his thumb-mark. The COMELEC Second Division dismissed
Sarips petition and declared that his grounds are not grounds for disqualification under Section 68 but for denial or
cancellation of Munders certificate of candidacy under Section 78. Sarips petition was filed out of time as he had
only 25 days after the filing of Munders certificate of candidacy, or until 21 December 2009, within which to file his
petition.
The COMELEC En Banc, however, disqualified Munder. In reversing the COMELEC Second Division, the
COMELEC En Banc did not rule on the propriety of Sarips remedy but focused on the question of whether Munder
was a registered voter of Bubong, Lanao del Sur. This Court reinstated the COMELEC Second Divisions resolution.
This Court ruled that the ground raised in the petition, lack of registration as voter in the locality where he was
running as a candidate, is inappropriate for a petition for disqualification. We further declared that with our ruling
in Fermin, we had already rejected the claim that lack of substantive qualifications of a candidate is a ground for a
petition for disqualification under Section 68. The only substantive qualification the absence of which is a ground for
a petition under Section 68 is the candidates permanent residency or immigrant status in a foreign country.
The dissenting opinions place the violation of the three-term limit rule as a disqualification under Section 68 as the
violation allegedly is "a status, circumstance or condition which bars him from running for public office despite the
possession of all the qualifications under Section 39 of the [Local Government Code]." In so holding the dissenting
opinions write in the law what is not found in the law. Section 68 is explicit as to the proper grounds for
disqualification under said Section. The grounds for filing a petition for disqualification under Section 68 are
specifically enumerated in said Section. However, contrary to the specific enumeration in Section 68 and contrary to
prevailing jurisprudence, the dissenting opinions add to the enumerated grounds the violation of the three-term limit
rule and falsification under the Revised Penal Code, which are obviously not found in the enumeration in Section 68.

The dissenting opinions equate Lonzanidas possession of a disqualifying condition (violation of the three-term limit
rule) with the grounds for disqualification under Section 68. Section 68 is explicit as to the proper grounds for
disqualification: the commission of specific prohibited acts under the Omnibus Election Code and possession of a
permanent residency or immigrant status in a foreign country. Any other false representation regarding a material
fact should be filed under Section 78, specifically under the candidates certification of his eligibility. In rejecting a
violation of the three-term limit as a condition for eligibility, the dissenting opinions resort to judicial legislation,
ignoring the verba legis doctrine and well-established jurisprudence on this very issue.
In a certificate of candidacy, the candidate is asked to certify under oath his eligibility, and thus qualification, to the
office he seeks election. Even though the certificate of candidacy does not specifically ask the candidate for the
number of terms elected and served in an elective position, such fact is material in determining a candidates
eligibility, and thus qualification for the office. Election to and service of the same local elective position for three
consecutive terms renders a candidate ineligible from running for the same position in the succeeding elections.
Lonzanida misrepresented his eligibility because he knew full well that he had been elected, and had served, as
mayor of San Antonio, Zambales for more than three consecutive terms yet he still certified that he was eligible to
run for mayor for the next succeeding term. Thus, Lonzanidas representation that he was eligible for the office that
he sought election constitutes false material representation as to his qualification or eligibility for the office.
Legal Duty of COMELEC
to Enforce Perpetual Special Disqualification
Even without a petition under Section 78 of the Omnibus Election Code, the COMELEC is under a legal duty to
cancel the certificate of candidacy of anyone suffering from perpetual special disqualification to run for public office
by virtue of a final judgment of conviction. The final judgment of conviction is judicial notice to the COMELEC of the
disqualification of the convict from running for public office. The law itself bars the convict from running for public
office, and the disqualification is part of the final judgment of conviction. The final judgment of the court is addressed
not only to the Executive branch, but also to other government agencies tasked to implement the final judgment
under the law.
Whether or not the COMELEC is expressly mentioned in the judgment to implement the disqualification, it is
assumed that the portion of the final judgment on disqualification to run for elective public office is addressed to the
COMELEC because under the Constitution the COMELEC is duty bound to "enforce and administer all laws and
regulations relative to the conduct of an election."46 The disqualification of a convict to run for elective public office
under the Revised Penal Code, as affirmed by final judgment of a competent court, is part of the enforcement and
administration of "all the laws" relating to the conduct of elections.
Effect of a Void Certificate of Candidacy
A cancelled certificate of candidacy void ab initio cannot give rise to a valid candidacy, and much less to valid
votes.47 We quote from the COMELECs 2 February 2011 Resolution with approval:
As early as February 18, 2010, the Commission speaking through the Second Division had already ordered the
cancellation of Lonzanidas certificate of candidacy, and had stricken off his name in the list of official candidates for
the mayoralty post of San Antonio, Zambales. Thereafter, the Commission En Banc in its resolution dated August
11, 2010 unanimously affirmed the resolution disqualifying Lonzanida. Our findings were likewise sustained by the
Supreme Court no less. The disqualification of Lonzanida is not simply anchored on one ground. On the contrary, it
was emphasized in our En Banc resolution that Lonzanidas disqualification is two-pronged: first, he violated the
constitutional fiat on the three-term limit; and second, as early as December 1, 2009, he is known to have been
convicted by final judgment for ten (10) counts of Falsification under Article 171 of the Revised Penal Code. In other
words, on election day, respondent Lonzanidas disqualification is notoriously known in fact and in law. Ergo, since
respondent Lonzanida was never a candidate for the position of Mayor [of] San Antonio, Zambales, the votes cast

for him should be considered stray votes. Consequently, Intervenor Antipolo, who remains as the sole qualified
candidate for the mayoralty post and obtained the highest number of votes, should now be proclaimed as the duly
elected Mayor of San Antonio, Zambales.48 (Boldfacing and underscoring in the original; italicization supplied)
Lonzanida's certificate of candidacy was cancelled because he was ineligible or not qualified to run for
Mayor. Whether his certificate of candidacy is cancelled before or after the elections is immaterial because the
cancellation on such ground means he was never a candidate from the very beginning, his certificate of candidacy
being void ab initio. There was only one qualified candidate for Mayor in the May 201 0 elections - Anti polo, who
therefore received the highest number of votes.
1wphi1

WHEREFORE, the petition is DISMISSED. The Resolution dated 2 February 2011 and the Order dated 12 January
2011 of the COMELEC En Bane in SPA No. 09-158 (DC) are AFFIRMED. The COMELEC En Bane is DIRECTED to
constitute a Special Municipal Board of Canvassers to proclaim Estela D. Antipolo as the duly elected Mayor of San
Antonio, Zambales. Petitioner Efren Racel Aratea is ORDERED to cease and desist from discharging the functions
of the Office of the Mayor of San Antonio, Zambales.
SO ORDERED.

*** G.R. No. 180444

April 8, 2008

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

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

DECISION

YNARES-SANTIAGO, J.:

This petition1 for certiorari assails the June 2, 2007 Resolution2 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 19982001, 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.

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:

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
2004-2007 term.

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

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 highest-ranking 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.

*** G.R. No. 182088

January 30, 2009

ROBERTO L. DIZON, Petitioner,

vs

COMMISSION ON ELECTIONS and MARINO P. MORALES, Respondents.

DECISION

CARPIO, J.:

The Case

This is a petition for certiorari and prohibition, with prayer for the issuance of a temporary restraining order and writ of
preliminary injunction under Rule 65 of the 1997 Rules of Civil Procedure. The present petition seeks the reversal of the
Resolution dated 27 July 2007 of the Commission on Elections (COMELEC) Second Division which dismissed the petition
to disqualify and/or to cancel Marino P. Morales (Morales) certificate of candidacy, as well as the Resolution dated 14
February 2008 of the COMELEC En Banc which denied Roberto L. Dizons (Dizon) motion for reconsideration.

The Facts

The COMELEC Second Division stated the facts as follows:

Roberto L. Dizon, hereinafter referred to as petitioner, is a resident and taxpayer of the Municipality of Mabalacat,
Pampanga. Marino P. Morales, hereinafter referred to as respondent, is the incumbent Mayor of the Municipality of
Mabalacat, Pampanga.

Petitioner alleges respondent was proclaimed as the municipal mayor of Mabalacat, Pampanga during the 1995, 1998,
2001 and 2004 elections and has fully served the same. Respondent filed his Certificate of Candidacy on March 28, 2007
again for the same position and same municipality.

Petitioner argues that respondent is no longer eligible and qualified to run for the same position for the May 14, 2007
elections under Section 43 of the Local Government Code of 1991. Under the said provision, no local elective official is
allowed to serve for more than three (3) consecutive terms for the same position.

Respondent, on the other hand, asserts that he is still eligible and qualified to run as Mayor of the Municipality of
Mabalacat, Pampanga because he was not elected for the said position in the 1998 elections. He avers that the
Commission en banc in SPA Case No. A-04-058, entitled Atty. Venancio Q. Rivera III and Normandick P. De Guzman vs.
Mayor Marino P. Morales, affirmed the decision of the Regional Trial Court of Angeles City declaring Anthony D. Dee as
the duly elected Mayor of Mabalacat, Pampanga in the 1998 elections.

Respondent alleges that his term should be reckoned from 2001 or when he was proclaimed as Mayor of Mabalacat,
Pampanga. Respondent further asserts that his election in 2004 is only for his second term. Hence, the three term rule
provided under the Local Government Code is not applicable to him.

Respondent further argues that the grounds stated in the instant petition are not covered under Section 78 of the Omnibus
Election Code. Respondent further contend [sic] that even if it is covered under the aforementioned provision, the instant
petition failed to allege any material misrepresentation in the respondents Certificate of Candidacy.1

The Ruling of the COMELEC Second Division

In its Resolution dated 27 July 2007, the COMELEC Second Division took judicial notice of this Courts ruling in the
consolidated cases of Atty. Venancio Q. Rivera III v. COMELEC and Marino "Boking" Morales in G.R. No. 167591 and
Anthony Dee v. COMELEC and Marino "Boking" Morales in G.R. No. 170577 (Rivera case) promulgated on 9 May 2007.
The pertinent portions of the COMELEC Second Divisions ruling read as follows:

Respondent was elected as mayor of Mabalacat from July 1, 1995 to June 30, 1998. There was no interruption of his
second term from 1998 to 2001. He was able to exercise the powers and enjoy the position of a mayor as "caretaker of
the office" or a "de facto officer" until June 30, 2001 notwithstanding the Decision of the RTC in an electoral protest case.
He was again elected as mayor from July 1, 2001 to June 30, 2003 [sic].

It is worthy to emphasize that the Supreme Court ruled that respondent has violated the three-term limit under Section 43
of the Local Government Code. Respondent was considered not a candidate in the 2004 Synchronized National and
Local Elections. Hence, his failure to qualify for the 2004 elections is a gap and allows him to run again for the same
position in the May 14, 2007 National and Local Elections.

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES to DENY the instant Petition
to Cancel the Certificate of Candidacy and/or Petition for the Disqualification of Marino P. Morales for lack of merit.2

Dizon filed a motion for reconsideration before the COMELEC En Banc.

The Ruling of the COMELEC En Banc

The COMELEC En Banc affirmed the resolution of the COMELEC Second Division.

The pertinent portions of the COMELEC En Bancs Resolution read as follows:

Respondents certificate of candidacy for the May 2004 Synchronized National and Local Elections was cancelled
pursuant to the above-mentioned Supreme Court decision which was promulgated on May 9, 2007. As a result,
respondent was not only disqualified but was also not considered a candidate in the May 2004 elections.

Another factor which is worth mentioning is the fact that respondent has relinquished the disputed position on May 16,
2007. The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat on May 17, 2007 until the
term ended on June 30, 2007. For failure to serve for the full term, such involuntary interruption in his term of office should
be considered a gap which renders the three-term limit inapplicable.

The three-term limit does not apply whenever there is an involuntary break. The Constitution does not require that the
interruption or hiatus to be a full term of three years. What the law requires is for an interruption, break or a rest period
from a candidates term of office "for any length of time." The Supreme Court in the case of Latasa v. Comelec ruled:

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.

In sum, the three-term limit is not applicable in the instant case for lack of the two conditions: 1) respondent was not the
duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he was not even
considered a candidate thereat; and 2) respondent has failed to serve the entire duration of the term of office because he
has already relinquished the disputed office on May 16, 2007 which is more than a month prior to the end of his supposed
term.

xxx

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the instant Motion
for Reconsideration for LACK OF MERIT. The Resolution of the Commission Second Division is hereby AFFIRMED.

SO ORDERED.3

The Issues

Dizon submits that the factual findings made in the Rivera case should still be applied in the present case because
Morales had, except for one month and 14 days, served the full term of 2004-2007. Morales assumption of the mayoralty
position on 1 July 2007 makes the 2007-2010 term Morales fifth term in office. Dizon raises the following grounds before
this Court:

1. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF ITS JURISDICTION
WHEN IT RULED THAT RESPONDENT MORALES DID NOT VIOLATE THE THREE-YEAR TERM LIMIT WHEN HE
RAN AND WON AS MAYOR OF MABALACAT, PAMPANGA DURING THE MAY 14, 2007 ELECTION.

2. THE COMELEC GRAVELY ABUSED ITS DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
WHEN IT RULED THAT DUE TO THIS HONORABLE COURTS RULING IN THE AFORESAID CONSOLIDATED
CASES, RESPONDENT MORALES FOURTH TERM IS CONSIDERED A GAP IN THE LATTERS SERVICE WHEN HE
FILED HIS CERTIFICATE OF CANDIDACY FOR THE 2007 ELECTIONS.

3. THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THAT THE FOURTH TERM OF MORALES
WAS INTERRUPTED WHEN HE "RELINQUISHED" HIS POSITION FOR ONE MONTH AND 14 DAYS PRIOR TO THE
MAY 14, 2007 ELECTION.4

The Ruling of the Court

The petition has no merit.

The present case covers a situation wherein we have previously ruled that Morales had been elected to the same office
and had served three consecutive terms, and wherein we disqualified and removed Morales during his fourth term. Dizon
claims that Morales is currently serving his fifth term as mayor. Is the 2007-2010 term really Morales fifth term?

The Effect of our Ruling in the Rivera Case

In our decision promulgated on 9 May 2007, this Court unseated Morales during his fourth term. We cancelled his
Certificate of Candidacy dated 30 December 2003. This cancellation disqualified Morales from being a candidate in the
May 2004 elections. The votes cast for Morales were considered stray votes. The dispositive portion in the Rivera case
reads:

WHEREFORE, the petition in G.R. No. 167591 is GRANTED. Respondent Morales Certificate of Candidacy dated
December 30, 2003 is cancelled. In view of the vacancy in the Office of the Mayor of Mabalacat, Pampanga, the vicemayor elect of the said municipality in the May 10, 2004 Synchronized National and Local Elections is hereby declared
mayor and shall serve as such for the remaining duration of the term July 1, 2004 to June 30, 2007. The petition in G.R.
No. 170577 is DISMISSED for being moot.

This Decision is immediately executory.

SO ORDERED.5

Article X, Section 8 of the 1987 Constitution reads:

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 the Local Government Code restated Article X, Section 8 of the 1987 Constitution as follows:

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.

For purposes of determining the resulting disqualification brought about by the three-term limit, 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.6 There should be a concurrence of two conditions for the application of the
disqualification: (1) that the official concerned has been elected for three consecutive terms in the same local government
post and (2) that he has fully served three consecutive terms.7lavvphil.net

In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four consecutive terms: 1 July 1995 to
30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 30 June 2007. We
disqualified Morales from his candidacy in the May 2004 elections because of the three-term limit. Although the trial court
previously ruled that Morales proclamation for the 1998-2001 term was void, there was no interruption of the continuity of
Morales service with respect to the 1998-2001 term because the trial courts ruling was promulgated only on 4 July 2001,
or after the expiry of the 1998-2001 term.

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.8 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.

2007-2010: Morales Fifth Term?

Dizon claims that the 2007-2010 term is Morales fifth term in office. Dizon asserts that even after receipt of our decision
on 10 May 2007, Morales "waited for the election to be held on 14 May 2007 to ensure his victory for a fifth term."9

We concede that Morales occupied the position of mayor of Mabalacat for the following periods: 1 July 1995 to 30 June
1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30 June 2004, and 1 July 2004 to 16 May 2007. However, because of
his disqualification, Morales was not the duly elected mayor for the 2004-2007 term. Neither did Morales hold the position
of mayor of Mabalacat for the full term. Morales cannot be deemed to have served the full term of 2004-2007 because he
was ordered to vacate his post before the expiration of the term. Morales occupancy of the position of mayor of

Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of computing the three-term limit.
Indeed, the period from 17 May 2007 to 30 June 2007 served as a gap for purposes of the three-term limit rule. Thus, the
present 1 July 2007 to 30 June 2010 term is effectively Morales first term for purposes of the three-term limit rule.

Dizon alleges that Morales "was able to serve his fourth term as mayor through lengthy litigations. x x x In other words, he
was violating the rule on three-term limit with impunity by the sheer length of litigation and profit from it even more by
raising the technicalities arising therefrom."10 To this, we quote our ruling in Lonzanida v. COMELEC:

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.11

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution of the Commission on Elections En Banc dated 14
February 2008 as well as the Resolution of the Commission on Elections Second Division dated 27 July 2007.

SO ORDERED.

*** G.R. No. 184082

March 17, 2009

NICASIO BOLOS, JR., Petitioner,

vs.
THE COMMISSION ON ELECTIONS and REY ANGELES CINCONIEGUE, Respondents.

DECISION

PERALTA, J.:

This is a petition for certiorari, under Rule 65 of the Rules of Court, alleging that the Commission on Elections
(COMELEC) committed grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the Resolutions
promulgated on March 4, 2008 and August 7, 2008 holding that petitioner Nicasio Bolos, Jr. is disqualified as a candidate
for the position of Punong Barangay of Barangay Biking, Dauis, Bohol in the October 29,

2007 Barangay and Sangguniang Kabataan Elections on the ground that he has served the three-term limit provided in
the Constitution and Republic Act (R.A.) No. 7160, otherwise known as the Local Government Code of 1991.

The facts are as follows:

For three consecutive terms, petitioner was elected to the position of Punong Barangay of Barangay Biking, Dauis, Bohol
in the Barangay Elections held in 1994, 1997 and 2002.

In May 2004, while sitting as the incumbent Punong Barangay of Barangay Biking, petitioner ran for Municipal Councilor
of Dauis, Bohol and won. He assumed office as Municipal Councilor on July 1, 2004, leaving his post as Punong
Barangay. He served the full term of the Sangguniang Bayan position, which was until June 30, 2007.

Thereafter, petitioner filed his Certificate of Candidacy for Punong Barangay of Barangay Biking, Dauis, Bohol in the
October 29, 2007 Barangay and Sangguniang Kabataan Elections.

Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate for the same office, filed before
the COMELEC a petition for the disqualification of petitioner as candidate on the ground that he had already served the
three-term limit. Hence, petitioner is no longer allowed to run for the same position in accordance with Section 8, Article X
of the Constitution and Section 43 (b) of R.A. No. 7160.

Cinconiegue contended that petitioners relinquishment of the position of Punong Barangay in July 2004 was voluntary on
his part, as it could be presumed that it was his personal decision to run as municipal councilor in the May 14, 2004

National and Local Elections. He added that petitioner knew that if he won and assumed the position, there would be a
voluntary renunciation of his post as Punong Barangay.

In his Answer, petitioner admitted that he was elected as Punong Barangay of Barangay Biking, Dauis, Bohol in the last
three consecutive elections of 1994, 1997 and 2002. However, he countered that in the May 14, 2004 National and Local
Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason of his assumption of office as Sangguniang
Bayan member, his remaining term of office as Punong Barangay, which would have ended in 2007, was left unserved.
He argued that his election and assumption of office as Sangguniang Bayan member was by operation of law; hence, it
must be considered as an involuntary interruption in the continuity of his last term of service.

Pursuant to Section 10 of COMELEC Resolution No. 8297 dated September 6, 2007, the petition was heard by the
Provincial Election Supervisor of Bohol. Upon completion of the proceedings, the evidence, records of the case, and the
Hearing Officers action on the matter were endorsed to and received by the Commission on November 21, 2007.

The issue before the COMELEC was whether or not petitioners election, assumption and discharge of the functions of the
Office of Sangguniang Bayan member can be considered as voluntary renunciation of his office as Punong Barangay of
Barangay Biking, Dauis, Bohol which will render unbroken the continuity of his service as Punong Barangay for the full
term of office, that is, from 2004 to 2007. If it is considered a voluntary renunciation, petitioner will be deemed to have
served three consecutive terms and shall be disqualified to run for the same position in the October 29, 2007 elections.
But if it is considered as an involuntary

renunciation, petitioners service is deemed to have been interrupted; hence, he is not barred from running for another
term.

In a Resolution1 dated March 4, 2008, the First Division of the COMELEC ruled that petitioners relinquishment of the
office of Punong Barangay of Biking, Dauis, Bohol, as a consequence of his assumption of office as Sangguniang Bayan
member of Dauis, Bohol, on July 1, 2004, was a voluntary renunciation of the Office of Punong Barangay. The dispositive
portion of the Resolution reads:

WHEREFORE, in view of the foregoing, the Commission (First Division) GRANTS the petition. Respondent NICASIO
BOLOS, JR., having already served as Punong Barangay of Barangay Biking, Dauis, Bohol for three consecutive terms is
hereby DISQUALIFIED from being a candidate for the same office in the October 29, 2007 Barangay and SK Elections.
Considering that respondent had already been proclaimed, said proclamation is hereby ANNULLED. Succession to said
office shall be governed by the provisions of Section 44 of the Local Government Code.2

Petitioners motion for reconsideration was denied by the COMELEC en banc in a Resolution3 dated August 7, 2008.

Hence, this petition for certiorari raising this lone issue:

WHETHER OR NOT THE HONORABLE COMMISSION ON ELECTIONS ACTED WITHOUT OR IN EXCESS OF ITS
JURISDICTION AMOUNTING TO LACK OF JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION IN

DISQUALIFYING [PETITIONER] AS A CANDIDATE FOR PUNONG BARANGAY IN THE OCTOBER 29, 2007
BARANGAY AND SANGGUNIANG KABATAAN ELECTIONS AND, SUBSEQUENTLY, ANNULLING HIS
PROCLAMATION.4

The main issue is whether or not there was voluntary renunciation of the Office of Punong Barangay by petitioner when he
assumed office as Municipal Councilor so that he is deemed to have fully served his third term as Punong Barangay,
warranting his disqualification from running for the same position in the October 29, 2007 Barangay and Sangguniang
Kabataan Elections.

Petitioner contends that he is qualified to run for the position of Punong Barangay in the October 29, 2007 Barangay and
Sangguniang Kabataan Elections since he did not serve continuously three consecutive terms. He admits that in the
1994, 1997 and 2002 Barangay elections, he was elected as Punong Barangay for three consecutive terms. Nonetheless,
while serving his third term as Punong Barangay, he ran as Municipal Councilor of Dauis, Bohol, and won. On July 1,
2004, he assumed office and, consequently, left his post as Punong Barangay by operation of law. He averred that he
served the full term as member of the Sangguniang Bayan until June 30, 2007. On October 29, 2007, he filed his
Certificate of Candidacy for Punong Barangay and won. Hence, the COMELEC gravely abused its discretion in
disqualifying him as a candidate for Punong Barangay since he did not complete his third term by operation of law.

The argument does not persuade.

The three-term limit for elective local officials is contained in Section 8, Article X of the Constitution, which provides:

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

David v. Commission on Elections5 elucidates that the Constitution did not expressly prohibit Congress from fixing any
term of office for barangay officials, thereby leaving to the lawmakers full discretion to fix such term in accordance with the
exigencies of public service. The discussions in the Constitutional Commission showed that the term of office of barangay
officials would be "[a]s may be determined by law," and more precisely, "[a]s provided for in the Local Government
Code."6 Section 43(b) of the Local Government Code provides that barangay officials are covered by the three-term limit,
while Section 43(c)7 thereof states that the term of office of barangay officials shall be five (5) years. The cited provisions
read, thus:

Sec. 43. Term of Office. 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 concerned was elected.

(c) The term of barangay officials and members of the sangguniang kabataan shall be for five (5) years, which shall begin
after the regular election of barangay officials on the second Monday of May 1997: Provided, That the sangguniang
kabataan members who were elected in the May 1996 elections shall serve until the next regular election of barangay
officials.

Socrates v. Commission on Elections8 held that the rule on the three-term limit, embodied in the Constitution and the
Local Government Code, has two parts:

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

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third consecutive term. 9

In Lonzanida v. Commission on Elections,10 the Court stated that the second part of the rule on the three-term limit shows
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. The 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 government post; and (2) that he has fully served
three consecutive terms.11

In this case, it is undisputed that petitioner was elected as Punong Barangay for three consecutive terms, satisfying the
first condition for disqualification.

What is to be determined is whether petitioner is deemed to have voluntarily renounced his position as Punong Barangay
during his third term when he ran for and won as Sangguniang Bayan member and assumed said office.

The Court agrees with the COMELEC that there was voluntary renunciation by petitioner of his position as Punong
Barangay.

The COMELEC correctly held:

It is our finding that Nicasio Bolos, Jr.s relinquishment of the office of Punong Barangay of Biking, Dauis, Bohol, as a
consequence of his assumption to office as Sangguniang Bayan member of Dauis, Bohol, on July 1, 2004, is a voluntary
renunciation.

As conceded even by him, respondent (petitioner herein) had already completed two consecutive terms of office when he
ran for a third term in the Barangay Elections of 2002. When he filed his certificate of candidacy for the Office of
Sangguniang Bayan of Dauis, Bohol, in the May 10, 2004 [elections], he was not deemed resigned. Nonetheless, all the
acts attending his pursuit of his election as municipal councilor point out to an intent and readiness to give up his post as
Punong Barangay once elected to the higher elective office, for it was very unlikely that respondent had filed his
Certificate of Candidacy for the Sangguniang Bayan post, campaigned and exhorted the municipal electorate to vote for
him as such and then after being elected and proclaimed, return to his former position. He knew that his election as
municipal councilor would entail abandonment of the position he held, and he intended to forego of it. Abandonment, like
resignation, is voluntary.12

Indeed, petitioner was serving his third term as Punong Barangay when he ran for Sangguniang Bayan member and,
upon winning, assumed the position of Sangguniang Bayan member, thus, voluntarily relinquishing his office as Punong
Barangay which the Court deems as a voluntary renunciation of said office.

Petitioner erroneously argues that when he assumed the position of Sangguniang Bayan member, he left his post as
Punong Barangay by

operation of law; hence, he did not fully serve his third term as Punong Barangay.

The term "operation of law" is defined by the Philippine Legal Encyclopedia13 as "a term describing the fact that rights
may be acquired or lost by the effect of a legal rule without any act of the person affected." Black's Law Dictionary also
defines it as a term that "expresses the manner in which rights, and sometimes liabilities, devolve upon a person by the
mere application to the particular transaction of the established rules of law, without the act or cooperation of the party
himself."14

An interruption in the service of a term of office, by operation of law, is exemplified in Montebon v. Commission on
Elections.15 The respondent therein, Sesinando F. Potencioso, Jr., was elected and served three consecutive terms as
Municipal Councilor of Tuburan, Cebu in 1998-2001, 2001-2004, and 2004-2007. However, during his second term, he
succeeded as Vice-Mayor of Tuburan due to the retirement of the Vice-Mayor pursuant to Section 44 of R.A. No. 7160.16
Potenciosos assumption of office as Vice-Mayor was considered an involuntary severance from his office as Municipal
Councilor, resulting in an interruption in his second term of service.17 The Court held that it could not be deemed to have
been by reason of voluntary renunciation because it was by operation of law.18 Hence, Potencioso was qualified to run as
candidate for municipal councilor of the Municipality of Tuburan, Cebu in the May 14, 2007 Synchronized National and
Local Elections.

Further, in Borja, Jr. v. Commission on Elections,19 respondent therein, Jose T. Capco, Jr., was elected as Vice-Mayor of
Pateros on January 18, 1988 for a term ending on June 30, 1992. On September 2, 1989, Capco became Mayor, by
operation of law, upon the death of the incumbent, Cesar Borja. Thereafter, Capco was elected and served as Mayor for
two more terms, from 1992 to 1998. On March 27, 1998, Capco filed a Certificate of Candidacy for Mayor of Pateros in
the May 11, 1998 election. Capcos disqualification was sought on the ground that he would have already served as
Mayor for three consecutive terms by June 30, 1998; hence, he would be ineligible to serve for another term. The Court
declared that 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 the same elective position.20 The Court held that Capco was qualified to run again as mayor in the next election
because he was not elected to the office of mayor in the first term but simply found himself thrust into it by operation of
law.21 Neither had he served the full term because he only continued the service, interrupted by the death, of the

deceased mayor.22 The vice-mayors assumption of the mayorship in the event of the vacancy is more a matter of chance
than of design.23 Hence, his service in that office should not be counted in the application of any term limit.24

In this case, petitioner did not fill in or succeed to a vacancy by operation of law. He instead relinquished his office as
Punong Barangay during his third term when he won and assumed office as Sangguniang Bayan member of Dauis,
Bohol, which is deemed a voluntary renunciation of the Office of Punong Barangay.

In fine, the COMELEC did not commit grave abuse of discretion amounting to lack or excess of jurisdiction in issuing the
Resolutions dated March 4, 2008 and August 7, 2008, disqualifying petitioner from being a candidate for Punong
Barangay in the October 29, 2007 Barangay and Sangguniang Kabataan Elections.

WHEREFORE, the petition is DISMISSED. The COMELEC Resolutions dated March 4, 2008 and August 7, 2008 are
hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

***
G.R. No. 147927

February 4, 2002

RAYMUNDO M. ADORMEO, petitioner,

vs.
COMMISSION ON ELECTIONS and RAMON Y. TALAGA, JR., respondents.

DECISION

QUISUMBING, J.:

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.

Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 19951998. 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 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 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.

On May 19, 2001, after canvassing, private respondent was proclaimed as the duly elected Mayor of Lucena City.

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 Constitution4 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.1wphi1 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.

Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611 (1999), we said,

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.

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.

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.1wphi1 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.

*** G.R. No. 154829

December 10, 2003

ARSENIO A. LATASA, petitioner,

vs.
COMMISSION ON ELECTIONS, and ROMEO SUNGA, respondents

DECISION

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. 01-059 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 Disqualification1 against
petitioner Latasa. Respondent Sunga alleged therein that petitioner falsely represented in his certificate of candidacy that
he is eligible to run as mayor of Digos City since petitioner had already been elected and served for three consecutive
terms as mayor from 1992 to 2001.

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.

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 Motion7 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 Mamba-Perez v. COMELEC8 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 the Constitution is an exception to this rule, in that it limits the range of choice of the people.

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

An 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,

(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 income.15

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 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 Municipality of 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:

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 the Municipality 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 Digos is the same as that of the municipality. Consequently, the inhabitants of the
municipality are the same as those in the city. These inhabitants are the same group of voters who elected petitioner
Latasa to be their municipal mayor for three consecutive terms. These are also the same inhabitants over whom he held
power and authority as their chief executive for nine years.

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 vice-mayor 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.1wphi1

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 in Labo 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. 184836

December 23, 2009

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

vs.
COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.
DECISION
BRION, J.:
Is the preventive suspension of an elected public official an interruption of his term of office for purposes of the
three-term limit rule under Section 8, Article X of the Constitution and Section 43(b) of Republic Act No. 7160 (RA
7160, or the Local Government Code)?

The respondent Commission on Elections (COMELEC) ruled that preventive suspension is an effective interruption
because it renders the suspended public official unable to provide complete service for the full term; thus, such term
should not be counted for the purpose of the three-term limit rule.
The present petition1 seeks to annul and set aside this COMELEC ruling for having been issued with grave abuse of
discretion amounting to lack or excess of jurisdiction.
THE ANTECEDENTS
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 2004-2007 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.
The COMELECs Second Division ruled against the petitioners and in Asilos favour in its Resolution of November
28, 2007. It reasoned out that the three-term limit rule did not apply, as Asilo failed to render complete service for the
2004-2007 term because of the suspension the Sandiganbayan had ordered.
The COMELEC en banc refused to reconsider the Second Divisions ruling in its October 7, 2008 Resolution; hence,
the PRESENT PETITION raising the following ISSUES:
1. Whether preventive suspension of an elected local official is an interruption of the three-term limit rule;
and
2. Whether preventive suspension is considered involuntary renunciation as contemplated in Section 43(b)
of RA 7160
Thus presented, the case raises the direct issue of whether Asilos preventive suspension constituted an interruption
that allowed him to run for a 4th term.
THE COURTS RULING
We find the petition meritorious.
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:

The Constitutional Provision Analyzed

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

A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he term means the time during which the officer
may claim to hold office as of right, and fixes the interval after which the several incumbents shall succeed one
another."
The "limitation" under this first branch of the provision is expressed in the negative "no such official shall serve for
more than three consecutive terms." This formulation no more than three consecutive terms is a clear command
suggesting the existence of an inflexible rule. While it gives no exact indication of what to "serve. . . three
consecutive terms" exactly connotes, the meaning is clear reference is to the term, not to the service that a public
official may render. In other words, the limitation refers to the term.
1awphi1

The second branch relates to the provisions express initiative to prevent any circumvention of the limitation through
voluntary severance of ties with the public office; it expressly states that voluntary renunciation of office "shall not be
considered as an interruption in the continuity of his service for the full term for which he was elected." This
declaration complements the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual
interruption of service that does not affect "continuity of service for a full term" for purposes of the three-term limit
rule. It is a pure declaratory statement of what does not serve as an interruption of service for a full term, but the
phrase "voluntary renunciation," by itself, is not without significance in determining constitutional intent.
The word "renunciation" carries the dictionary meaning of abandonment. To renounce is to give up, abandon,
decline, or resign.5 It is an act that emanates from its author, as contrasted to an act that operates from the outside.
Read with the definition of a "term" in mind, renunciation, as mentioned under the second branch of the
constitutional provision, cannot but mean an act that results in cutting short the term, i.e., the loss of title to office.
The descriptive word "voluntary" linked together with "renunciation" signifies an act of surrender based on the

surenderees own freely exercised will; in other words, a loss of title to office by conscious choice. In the context of
the three-term limit rule, such loss of title is not considered an interruption because it is presumed to be purposely
sought to avoid the application of the term limitation.
The following exchanges in the deliberations of the Constitutional Commission on the term "voluntary renunciation"
shed further light on the extent of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Committee? This term "voluntary renunciation"
does not appear in Section 3 [of Article VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution. Could the Committee please enlighten us
exactly what "voluntary renunciation" mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circumvent the restriction by merely resigning at
any given time on the second term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary renunciation" is more general than
abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davides expansive interpretation of the term "voluntary renunciation," the
framers intent apparently was to close all gaps that an elective official may seize to defeat the three-term limit rule,
in the way that voluntary renunciation has been rendered unavailable as a mode of defeating the three-term limit
rule. Harking back to the text of the constitutional provision, we note further that Commissioner Davides view is
consistent with the negative formulation of the first branch of the provision and the inflexible interpretation that it
suggests.
This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation
impresses upon us the clear intent to make term limitation a high priority constitutional objective whose terms must
be strictly construed and which cannot be defeated by, nor sacrificed for, values of less than equal constitutional
worth. We view preventive suspension vis--vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead into the concepts within the provisions
contemplation, particularly on the "interruption in the continuity of service for the full term" that it speaks of.
Lonzanida v. Commission on Elections7 presented the question of whether the disqualification on the basis of the
three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner of the
public official) for his supposedly third term had been declared invalid in a final and executory judgment. We ruled
that the two requisites for the application of the disqualification (viz., 1. that the official concerned has been elected
for three consecutive terms in the same local government post; and 2. that he has fully served three consecutive
terms) were not present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary
renunciation of office and at the same time respect the peoples choice and grant their elected official full service of

a term is evident in this provision. Voluntary renunciation of a term does not cancel the renounced term in the
computation of the three term limit; conversely, involuntary severance from office for any length of time short of the
full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his post a few
months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of
writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
Our intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders
the three-term limit rule inapplicable.
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved the issue of whether there had been a
completed term for purposes of the three-term limit disqualification. These cases, however, presented an interesting
twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that
the elective officials in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded
that there was nevertheless an election and service for a full term in contemplation of the three-term rule based on
the following premises: (1) the final decision that the third-termer lost the election was without practical and legal use
and value, having been promulgated after the term of the contested office had expired; and (2) the official assumed
and continuously exercised the functions of the office from the start to the end of the term. The Court noted in Ong
the absurdity and the deleterious effect of a contrary view that the official (referring to the winner in the election
protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless
electoral protest ruling, when another actually served the term pursuant to a proclamation made in due course after
an election. This factual variation led the Court to rule differently from Lonzanida.
In the same vein, the Court in Rivera rejected the theory that the official who finally lost the election contest was
merely a "caretaker of the office" or a mere "de facto officer." The Court obeserved that Section 8, Article X of the
Constitution is violated and its purpose defeated when an official fully served in the same position for three
consecutive terms. Whether as "caretaker" or "de facto" officer, he exercised the powers and enjoyed the
perquisites of the office that enabled him "to stay on indefinitely."
Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply.
Although the election requisite was not actually present, the Court still gave full effect to the three-term limitation
because of the constitutional intent to strictly limit elective officials to service for three terms. By so ruling, the Court
signalled how zealously it guards the three-term limit rule. Effectively, these cases teach us to strictly interpret the
term limitation rule in favor of limitation rather than its exception.
Adormeo v. Commission on Elections10 dealt with the effect of recall on the three-term limit disqualification. The case
presented the question of whether the disqualification applies if the official lost in the regular election for the
supposed third term, but was elected in a recall election covering that term. The Court upheld the COMELECs
ruling that the official was not elected for three (3) consecutive terms. The Court reasoned out that for nearly two
years, the official was a private citizen; hence, the continuity of his mayorship was disrupted by his defeat in the
election for the third term.
Socrates v. Commission on Elections11 also tackled recall vis--vis the three-term limit disqualification. Edward
Hagedorn served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate in
the election that immediately followed his third term. In this election, the petitioner Victorino Dennis M. Socrates was
elected mayor. Less than 1 years after Mayor Socrates assumed the functions of the office, recall proceedings
were initiated against him, leading to the call for a recall election. Hagedorn filed his certificate of candidacy for
mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully

served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit
rule. We decided in Hagedorns favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The
prohibited election refers to the next regular election for the same office following the end of the third consecutive
term. Any subsequent election, like a recall election, is no longer covered by the prohibition for two reasons. First, a
subsequent election like a recall election is no longer an immediate reelection after three consecutive terms.
Second, the intervening period constitutes an involuntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elective local officials, the question asked was
whether there would be no further election after three terms, or whether there would be "no immediate reelection"
after three terms.
xxxx
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive
terms. The Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the
reelection is not immediately after the end of the third consecutive term. A recall election mid-way in the term
following the third consecutive term is a subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent
election involving the same term of office. What the Constitution prohibits is a consecutive fourth term. 12
Latasa v. Commission on Elections13 presented the novel question of whether a municipal mayor who had fully
served for three consecutive terms could run as city mayor in light of the intervening conversion of the municipality
into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the
elective officials of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until
elections were held for the new city officials. The Court ruled that the conversion of the municipality into a city did
not convert the office of the municipal mayor into a local government post different from the office of the city mayor
the territorial jurisdiction of the city was the same as that of the municipality; the inhabitants were the same group of
voters who elected the municipal mayor for 3 consecutive terms; and they were the same inhabitants over whom the
municipal mayor held power and authority as their chief executive for nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception to the peoples freedom
to choose those who will govern them in order to avoid the evil of a single person accumulating excessive power
over a particular territorial jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to
vie for the position of city mayor after having served for three consecutive terms as a municipal mayor would
obviously defeat the very intent of the framers when they wrote this exception. Should he be allowed another three
consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding office as chief executive
over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very
scenario sought to be avoided by the Constitution, if not abhorred by it. 14
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation
results if a rest period or break in the service between terms or tenure in a given elective post intervened.
In Lonzanida, the petitioner was a private citizen with no title to any elective office for a few months before the next
mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as private citizens for two
years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break
from office during which the local elective official steps down and ceases to exercise power or authority over the
inhabitants of the territorial jurisdiction of a particular local government unit.

Seemingly differing from these results is the case of Montebon v. Commission on Elections, 15 where the highestranking 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 identifies Montebon with the rest, however, is that the elective official
vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he
ceased to be councilor an interruption that effectively placed him outside the ambit of the three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exempting an elective official from the three-term
limit rule is one that involves no less than the involuntary loss of title to office. The elective official must have
involuntarily left his office for a length of time, however short, for an effective interruption to occur. This has to be the
case if the thrust of Section 8, Article X and its strict intent are to be faithfully served, i.e., to limit an elective officials
continuous stay in office to no more than three consecutive terms, using "voluntary renunciation" as an example and
standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of
service within a term, as we held in Montebon. On the other hand, temporary inability or disqualification to exercise
the functions of an elective post, even if involuntary, should not be considered an effective interruption of a term
because it does not involve the loss of title to office or at least an effective break from holding office; the office
holder, while retaining title, is simply barred from exercising the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and
cannot be equated with the failure to render service. The latter occurs during an office holders term when he retains
title to the office but cannot exercise his functions for reasons established by law. Of course, the term "failure to
serve" cannot be used once the right to office is lost; without the right to hold office or to serve, then no service can
be rendered so that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X both by structure and substance fixes an
elective officials term of office and limits his stay in office to three consecutive terms as an inflexible rule that is
stressed, no less, by citing voluntary renunciation as an example of a circumvention. The provision should be read
in the context of interruption of term, not in the context of interrupting the full continuity of the exercise of the powers
of the elective position. The "voluntary renunciation" it speaks of refers only to the elective officials voluntary
relinquishment of office and loss of title to this office. It does not speak of the temporary "cessation of the exercise of
power or authority" that may occur for various reasons, with preventive suspension being only one of them. To
quote Latasa v. Comelec:16
Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and
ceases to exercise power or authority over the inhabitants of the territorial jurisdiction of a particular local
government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension whether under the Local Government Code, 17 the Anti-Graft and Corrupt Practices Act,18 or
the Ombudsman Act19 is an interim remedial measure to address the situation of an official who have been

charged administratively or criminally, where the evidence preliminarily indicates the likelihood of or potential for
eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code "when the evidence of guilt is strong and
given the gravity of the offense, there is a possibility that the continuance in office of the respondent could influence
the witnesses or pose a threat to the safety and integrity of the records and other evidence." Under the Anti-Graft
and Corrupt Practices Act, it is imposed after a valid information (that requires a finding of probable cause) has been
filed in court, while under the Ombudsman Act, it is imposed when, in the judgment of the Ombudsman, the
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression or grave misconduct or neglect in the
performance of duty; or (b) the charges would warrant removal from the service; or (c) the respondents continued
stay in office may prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is barred from performing the functions of his
office and does not receive salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a
consequence that only results upon an eventual finding of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-controlled conditions and gives a
premium to the protection of the service rather than to the interests of the individual office holder. Even then,
protection of the service goes only as far as a temporary prohibition on the exercise of the functions of the officials
office; the official is reinstated to the exercise of his position as soon as the preventive suspension is lifted. Thus,
while a temporary incapacity in the exercise of power results, no position is vacated when a public official is
preventively suspended. This was what exactly happened to Asilo.
That the imposition of preventive suspension can be abused is a reality that is true in the exercise of all powers and
prerogative under the Constitution and the laws. The imposition of preventive suspension, however, is not an
unlimited power; there are limitations built into the 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.
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 seesawing determination of what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does not involve a voluntary act on the part of the
suspended official, except in the indirect sense that he may have voluntarily committed the act that became the
basis of the charge against him. From this perspective, preventive suspension does not have the element of
voluntariness that voluntary renunciation embodies. Neither does it contain the element of renunciation or loss of
title to office as it merely involves the temporary incapacity to perform the service that an elective office demands.
Thus viewed, preventive suspension is by its very nature the exact opposite of voluntary renunciation; it is
involuntary and temporary, and involves only the actual delivery of service, not the title to the office. The easy
conclusion therefore is that they are, by nature, different and non-comparable.
But beyond the obvious comparison of their respective natures is the more important consideration of how they
affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the
Constitution as an effective interruption of a term. It is therefore not allowed as a mode of circumventing the threeterm limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be
a reason to avoid the three-term limitation. It can pose as a threat, however, if we shall disregard its nature and
consider it an effective interruption of a term. Let it be noted that a preventive suspension is easier to undertake than
voluntary renunciation, as it does not require relinquishment or loss of office even for the briefest time. It merely
requires an easily fabricated administrative charge that can be dismissed soon after a preventive suspension has
been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an
interruption.
Conclusion
To recapitulate, Asilos 2004-2007 term was not interrupted by the Sandiganbayan-imposed preventive suspension
in 2005, as preventive suspension does not interrupt an elective officials term. Thus, the COMELEC refused to
apply the legal command of Section 8, Article X of the Constitution when it granted due course to Asilos certificate
of candidacy for a prohibited fourth term. By so refusing, the COMELEC effectively committed grave abuse of
discretion amounting to lack or excess of jurisdiction; its action was a refusal to perform a positive duty required by
no less than the Constitution and was one undertaken outside the contemplation of law.21

WHEREFORE, premises considered, we GRANT the petition and accordingly NULLIFY the assailed COMELEC
rulings. The private respondent Wilfredo F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as
Councilor of Lucena City for a prohibited fourth term. Costs against private respondent Asilo.
SO ORDERED.

G.R. No. 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.

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 RTCBr. 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

By Decision8 of August 9, 2010 in Election Case No. 55, the RTC declared Abundo ineligible to serve as municipal mayor,
disposing as follows:

WHEREFORE, Decision is, hereby, rendered GRANTING the petition and declaring Abelardo Abundo, Sr. ineligible to
serve as municipal mayor of Viga, 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, 2001-2004, 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.

The Ruling of the COMELEC

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:

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 three-term 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

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 three-term 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:

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

2. On June 25, 2012, Vega filed a Motion for Execution15 with the RTC-Br. 43 in Virac, Catanduanes.

3. On June 27, 2012, the COMELEC, acting on Vegas counsels motion16 filed a day earlier, issued an Order17 directing
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.

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.

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, ViceMayor 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 vice-mayor 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

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:

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:

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.

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 non-candidate as the winner in a recall election, removal of the official by operation of law, and other
analogous causes.

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."

(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 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.

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.

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 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 1995-1998. 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 19982001 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 1998-2001 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;

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;

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 his consequent
proclamation as duly elected mayor. Accordingly, the first requisite for the application of the disqualification rule based on
the three-term limit that the official has been elected is satisfied.

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 three-year periods, resulting in the disruption of the continuity of Abundos mayoralty.

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 2004-2007 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 candidateor 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 candidateprotestant 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 Vice-Mayor and First Councilor, respectively,
upon receipt of this Decision.

The TRO issued by the Court on July 3, 2012 is hereby LIFTED.

This Decision is immediately executory.

SO ORDERED.

*** G.R. No. 207851

July 8, 2014

ANGEL G. NAVAL, Petitioner,

vs.
COMMISSION ON ELECTIONS and NELSON B. JULIA, Respondents.
DECISION
REYES, J.:
A politician thinks of the next election
a statesman of the next generation.
- James Freeman Clarke, American preacher and author
The Case
A provincial board member cannot be elected and serve for more than three consecutive terms. But then, the Court
is now called upon to resolve the following questions. First.What are the consequences to the provincial board
members eligibility to run for the same elective position if the legislative district, which brought him orher to office to
serve the first two consecutive terms, be reapportioned in such a way that 8 out of its 10 town constituencies are
carved out and renamed as another district? Second. Is the provincial board members election to the same position
for the third and fourth time, but now in representation ofthe renamed district, a violation of the three-term limit rule?
Before the Court is a Petition for Certiorariwith an Urgent Prayer for the Issuance of a Temporary Restraining Order
and a Writ of Preliminary Injunction filed under Rule 64 of the Rules of Court to assail the following resolutions of
the public respondent Commission on Elections (COMELEC):
1

(a) Resolution (first assailed resolution) issued by the Second Division on March 5, 2013, in SPA No. 13-166 (DC),
granting the petition filed by Nelson B. Julia (Julia), seeking to cancel the Certificate of Candidacy (COC) as
Member of the Sangguniang Panlalawiganof Camarines Sur (Sanggunian) of Angel G. Naval (Naval), who is
allegedly violating the three-term limit imposed upon elective local officials as provided for in Article X, Section 8 of
the 1987 Constitution, and Section 43(b) of the Local Government Code (LGC); and
2

(b) En BancResolution (second assailed resolution) issued on June 5, 2013, denying Navals Motion for
Reconsideration to the Resolution dated March 5, 2013.
6

Antecedents
From 2004 to 2007 and 2007 to 2010, Naval had been elected and had served as a member of the Sanggunian,
Second District, Province of Camarines Sur.
On October 12, 2009, the President approved Republic Act (R.A.) No. 9716, which reapportioned the legislative
districts in Camarines Sur in the following manner:
8

[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]]

District

1st

Before the Enactment of

After the Enactment of

R.A. No. 9716

R.A. No. 9716

Libmanan, Minalabac,

Del Gallego, Ragay, Lupi,

Pamplona, Pasacao, San

Sipocot, Cabusao

Fernando, Del Gallego,

Ragay, Lupi, Sipocot,
Cabusao

2nd

Naga City, Pili, Ocampo,

Libmanan, Minalabac,

Camaligan, Canaman,

Pamplona, Pasacao, San

Magarao, Bombon,

Fernando, Gainza, Milaor

Calabanga, Gainza,
9

Milaor

3rd

Caramoan, Garchitorena,

Naga City, Pili, Ocampo,

Goa, Lagonoy, Presentacion,

Camaligan, Canaman,

4th

Sangay, San Jose, Tigaon,

Magarao, Bombon,

Tinambac, Siruma

Calabanga

Iriga City, Baao, Balatan,

Caramoan, Garchitorena,

Bato, Buhi, Bula, Nabua

Goa, Lagonoy,
Presentacion, Sangay, San
Jose, Tigaon, Tinambac,
Siruma

5th

Iriga City, Baao, Balatan, Bato,

Buhi, Bula, Nabua

Notably, 8 out of 10 towns were taken from the old Second District to form the present Third District. The present
Second District is composed of the two remaining towns, Gainza and Milaor, merged with five towns from the old
First District.
In the 2010 elections, Naval once again won as among the members of the Sanggunian, Third District. He served
until 2013.
In the 2013 elections, Naval ran anewand was re-elected as Member of the Sanggunian, Third District.
Julia was likewise a SanggunianMember candidate from the Third District in the 2013 elections. On October 29,
2012, he invoked Section 78 of the Omnibus Election Code (OEC) and filed beforethe COMELEC a Verified
Petition to Deny Due Course or to Cancel the Certificate of Candidacy of Naval. Julia posited that Naval had fully
served the entire Province of Camarines Sur for three consecutive terms as a member of the Sanggunian,
irrespective of the district he had been elected from. The three-term limit rules application is more with reference to
the same local elective post, and not necessarily in connection with an identical territorial jurisdiction. Allowing Naval
to run as a Sanggunianmember for the fourth time is violative of the inflexible three-term limit rule enshrined in the
Constitution and the LGC, which must be strictly construed.
10

11

12

The Resolution of the COMELEC Second Division

In the first assailed resolution issued on March 5, 2013, the COMELEC Second Division cancelled Navals COC on
grounds stated below:
[W]hen a candidate for public office swears in his COC that he is eligible for the elective posts he seeks, while, in
reality, he knowingly lacks the necessary requirements for eligibility, he commits a false material misrepresentation
cognizable under Section 78 of the [OEC].
xxxx
The Supreme Court[,] in the case of Lonzanida v. [COMELEC][,] detailed the important components of[Article X,
Section 8 of the Constitution]:

This 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.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 servedthree consecutive terms in an elective local office[;] he
must also have been electedto the same position for the same number of times before the disqualification can apply.
xxx
x x x The first requisite does not only describe a candidate who has been elected for public office for three
consecutive terms. The candidate must have been elected in the samelocal government post. This connotes that
the candidate must have been inthe same elective position serving the same constituency who elected him to office
for three consecutive terms.
xxxx
The three-term limit rule was designed by the framers of the Constitution to prevent the monopoly of power centered
only on a chosen few. 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 framers also considered the necessityof the enhancement of the freedom of choice of the electorate by
broadening the selection of would-be elective public officers. By rendering ineligible for public office those who have
been elected and served for three consecutive terms in the same public elective post, the prohibition seeks to infuse
new blood in the political arena.
xxxx
x x x [T]he new Third District where [Naval] was elected and has served is composed of the same municipalities
comprising the previous Second District, absent the towns Gainza and [Milaor]. The territorial jurisdiction [Naval]
seeks to serve for the term 2013-2016 is the same as the territorial jurisdiction he previously served. The electorate
who voted for him in 2004, 2007 and 2010 isthe same electorate who shall vote for him come May 13, 2013
Elections. They are the same group of voters who elected him into office for three consecutive terms.
The resolution of this Commission in the case of Bandillo, et al[.] v. Hernandez (SPA No. 10-078) cannot be applied
inthe case at bar. Hernandez who then hailed from Libmanan belonged to the First District of Camarines Sur. With
RepublicAct 9716, Libmanan, Minalabac, Pamplona, Pasacao and San Fernando, all originally belonging to the First
District, were merged with Gainza and Milaor to form the Second District. With the addition of the municipalities of
Gainza and Milaor, it cannot be said that the previous First District became the Second District only by name. The
voters of Gainza and Milaoradded to the electorate of the new Second District formed a different electorate, different
from the one which voted for Hernandez in the 2001, 2004 and 2007 elections. In the case at bar, the municipalities
comprising the new Third District are the same municipalities that consisted of the previous Second [District], absent
Milaor and Gainza.
13

The Supreme Court, in Latasav. [COMELEC], 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[.]
x x x x (Citations omitted)
14

The Resolution of the COMELEC En Banc

In the second assailed resolution issued on June 5, 2013, the COMELEC en bancdenied Navals Motion for
Reconsideration to the above. The COMELEC pointed out thatabsent the verification required under Section 3, Rule
19 of the COMELEC Rules of Procedure, Navals motion was instantly dismissible. Nonetheless, the COMELEC
proceeded to discuss the demerits of Navals motion, viz:

The conditions for the application of the three-term limit rule are present in the instant case as the records clearly
establish that [Naval] is running for the 4th time for the same government post. To put things in a proper perspective,
it is imperative to review and discuss the salient points in the case of Latasa v. [COMELEC]. The case involves the
question of whether or not a municipal mayor, having been elected and had already served for three (3) consecutive
terms, canrun as city mayor in light of the conversion of the municipality to a city. In applying the three-term limit
rule, the Court pointed out 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 Court took into account
the following circumstances: (1) That the territorial jurisdiction of [the] city was the same as that of the municipality;
(2) That the inhabitants were the same group of voters who elected the municipal mayor for three (3) consecutive
terms; and (3) That the inhabitants were the same group of voters [over] whom he held power and authority as their
chief executive for nine years.
Anchoring from the said case, it is therefore clear that the position to which [Naval] has filed his candidacy for the 13
May 2013 x x x Elections is the same position for which he had been elected and had served for the past nine (9)
years.
xxxx
x x x The following circumstances establish that the subject posts are one and the same: First, the territorial
jurisdictions of the two (2) districts are the same except for the municipalities of Gainza and Milaor which were
excluded by R.A. No. 9716; Second, the inhabitants of the 3rd District of Camarines Sur, where [Naval] is presently
running as member of the [Sanggunian], are the same voters who elected him for the past three (3) consecutive
terms; and Lastly, the inhabitants of the [3rd ] District are the same group of voters whom [Naval] had served as
member of the [Sanggunian] representing the 2nd District.
x x x The enactment of R.A. No. 9716 did not convert [Navals] post [into one] different from [w]hat he [previously
had]. As correctly ruled by the Commission (Second Division), [Naval] ha[d] already been elected and ha[d] already
served inthe same government post for three consecutive terms, x x x[.]
x x x x. (Citations omitted)
15

Unperturbed, Naval is now before the Court raising the issues of whether or not the COMELEC gravely erred and
ruled contrary to law and jurisprudence:
I. IN FINDING THAT NAVAL HAD ALREADY SERVED FOR THREE CONSECUTIVE TERMS IN THE SAME
GOVERNMENT POST;
16

II. IN IGNORING THE FACT THAT SANGGUNIAN MEMBERS ARE ELECTED BY LEGISLATIVE DISTRICTS; and
17

III. WHEN IT RULED THAT THE PROHIBITION CONTEMPLATED BY SECTION 8, ARTICLE X OF THE 1987
CONSTITUTION AND SECTION 43(B) OF THE LGC APPLIES TO NAVAL.
18

The Arguments of the Contending Parties

In support of the instant petition, Naval alleges that the First, Second and Third Legislative Districts of Camarines
Sur are not merely renamed but are composed of new sets of municipalities. With the separation of Gainza and
Milaor from the other eight towns which used to comprise the Second District, the voters from the Third Legislative
District are no longer the same ones as those who had elected him to office in the 2004 and 2007 elections.
Naval further invokes Article 94 of Administrative Order No. 270 prescribing the Implementing Rules and
Regulations of the LGC to argue that Sanggunianmembers are elected by districts. Thus, the right to choose
representatives in the Sanggunianpertains to each of the districts. Naval was elected as Sanggunian member in
2004 and 2007 by the Second District. In 2010 and 2013, it was the Third District, which brought him to office.
Essentially then, Navals election in 2013 is merely his second term as Sanggunianmember for the Third District.
19

Naval likewise cites Borja, Jr. v. COMELEC to point out that for the disqualification on the ground of the three-term
limit to apply, it is not enough that an individual has served three consecutive terms in an elective local office, but it
is also required that he or she had been elected to the same position for the same number of times.
20

21

Naval also assails as erroneous the COMELECs interpretations of the rulings in Latasa v. COMELEC and Bandillo,
et al. v. Hernandez. In Latasa, the Court applied the three-term prohibition only because notwithstanding the
conversion of the Municipality of Digos into a city, the mayor was to serve the same territorialjurisdiction and
constituents. Naval asserts that the same does not hold true in his case. Naval further avers that in Bandillo, which
finds more application in the instant petition, the COMELEC ruled that the three-term limit cannot be invoked in a
situation where the legislative districts have been altered. An extraction or an addition both yields a change inthe
composition of the voters.
22

23

Naval further emphasizes that he garnered the majority of the votes from his constituents, whose will and mandate
should be upheld. Besides, Julias counsel already withdrew his appearance, indicating no less than his clients lack
of interest in still pursuing Navals ouster from office.
24

In its Comment, the Office of the Solicitor General (OSG) seeks the denial of the instant petition. The OSG
contends that Naval had been elected and had fully served the same local elective post for three consecutive terms.
Naval thus violatedSection 78 of the OEC when he filed his COC despite knowledge of his ineligibility. Navals
reliance on Bandillo is also misplaced since in the said case, two towns were instead added to form a new district.
Apparently then, in Bandillo, there was a new set of voters. The OSG also alleges that Naval is not entitled to the
issuance of injunctive reliefs by this Court. No clear and unmistakable right pertains to Naval and it is his eligibility to
be elected as Sanggunianmember for the Third District which is the issue at hand.
25

Ruling of the Court

The Court denies the petition.
As the issues are interrelated, they shall be discussed jointly.
The case before this Court is one of first impression. While the contending parties cite Latasa, Lonzanida v.
COMELEC, Borja,Aldovino, Jr. v. COMELEC, and Bandillo, which all involve the application of the three-term limit
rule, the factual and legal circumstances in those cases are different and the doctrinal values therein do not directly
address the issues now at hand.
26

27

In Latasa, the issue arose as a result of the conversion of a municipality into a city. The then municipal mayor
attempted to evade the application upon him of the three-term limit rule by arguing that the position of a city mayor
was not the same as the one he previously held. The Court was not convinced and, thus, declared that there was no
interruption of the incumbent mayors continuity of service.
In Lonzanida, a candidate ran for the mayoralty post and won in three consecutive elections. While serving his third
term, his opponent filed an election protest. Months before the expiration of the mayors third term, he was ousted
from office. He ran again for the same post in the immediately succeeding election. A petition was thereafter filed
assailing his eligibility to run as mayor on the ground of violation of the three-term limit rule. The Court ruled that the
mayor could not beconsidered as having served a full third term. An interruption for any length of time, if due to an
involuntary cause, is enough to break the elected officials continuity of service.
In Borja, the mayor of Pateros died and was succeeded in office by the vice mayor. In the two immediately
succeeding elections, the latter vied for and won the mayoralty post. When he ran for the same position for the third
time, his disqualification was sought for alleged violation of the three-term limit rule. The Court ruled that whenhe
assumed the position of mayor by virtue of succession, his service should not be treated as one full term. For the
disqualification to apply, the candidate should have been thrice elected for and had served the same post
consecutively. In Aldovino, preventive suspension was imposed upon an elected municipal councilor. The Court
ruled that the said suspension did not interrupt the elective officials term. Although hewas barred from exercising
the functions of the position during the period of suspension, his continued stay and entitlement tothe office remain
unaffected.

In Bandillo, a case decided by the COMELEC, Gainza and Milaor were added to five of the ten towns, which used to
comprise Camarines Surs old First District, to form the new Second District. The COMELEC declined to apply the
three-term limit rule against the elected Provincial Board member on the ground that the addition of Gainza and
Milaor distinctively created a new district, with an altered territory and constituency.
In the case before this Court, the task is to determine the application of the three-term limit rule upon local elective
officials in renamed and/or reapportioned districts. In the process of doing so, it is inevitable to discuss the role of
elections and the nature of public office in a democratic and republican state like ours.
The Role of Elections in our
Democratic and Republican State,
and the Restraints Imposed Upon
Those Who Hold Public Office
The Court begins with general and undeniable principles.
The Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them.
28

Then Associate Justice Reynato S. Puno explained the character of a republican state and a public office, viz: A
republic is a representative government, a government run by and for the people. It is not a pure democracy where
the people govern themselves directly. The essence of republicanism is representation and renovation, the selection
by the citizenry of a corps of public functionaries who derive their mandate from the people and act on their behalf,
serving for a limited period only, after which they are replaced or retained, at the option of their principal. Obviously,
a republican government is a responsiblegovernment whose officials hold and discharge their position as a public
trust and shall, according to the Constitution, at all times be accountable to the people they are sworn to serve. The
purpose of a republican government it is almost needless to state, is the promotion of the common welfare
according to the will of the people themselves. (Emphasis ours and italics in the original)
29

In Tolentino v. COMELEC, Justice Puno likewise characterized the role of the electoral process in the following
wise:
30

The electoral process is one of the linchpins of a democratic and republican framework because it isthrough the act
of voting that government by consent is secured. Through the ballot, people express their will on the defining issues
of the day and they are able to choose their leaders in accordance with the fundamental principle of representative
democracy that the people should elect whom they please to govern them. Voting has an important instrumental
value in preserving the viability of constitutional democracy. It has traditionally been taken as a prime indicator of
democratic participation. (Citations omitted and italics ours)
31

The importance of elections cannottherefore be over emphasized. Thus,

True, election is the expression ofthe sovereign power of the people. In the exercise of suffrage, a free people
expects to achieve the continuity of government and the perpetuation of its benefits. However, inspite of its
importance, the privileges and rights arising from having been elected may be enlarged or restricted by law. x x
x. (Italics ours)
32

Hence, while it is settled that in elections, the first consideration of every democratic polity is to give effect to the
expressed will of the majority, there are limitations tobeing elected to a public office. Our Constitution and statutes
are explicit anent the existence of term limits, the nature of public office, and the guarantee from the State that
citizens shall have equal access to public service. Section 8, Article X of our Constitution, on term limits, is
significantly reiterated by Section 43(b) of the LGC. Moreover, the Court has time and again declared that a public
office is a public trust and not a vested property right.
33

34

35

The Deliberations of the Members

of the Constitutional Commission

on the Three-Term Limits
Application to Local Elective
Officials
Following are entries in the Journal of the Constitutional Commission regarding the exchanges of the members on
the subject of the three-term limit rule imposed on local elective officials: VOTING ON THE TERMS OF LOCAL
OFFICIALS
With respect to local officials, Mr. Nolledo, informed that the Committee on Local Governments had not decided on
the term of office for local officials and suggested that the Body decide on the matter.
xxxx
On Mr. Bacanis inquiry regarding localofficials, Mr. Davide explained that local officials would includethe governor,
vice-governor and the members of the provincial board; the city mayor, city vice-mayor and members of the city
board; and the municipal mayor, municipal vice mayor and members of the municipal council. He stated that
barangay officials would be governed by speciallaw, to which Mr. Nolledo agreed.
xxxx
MOTION TO VOTE ON THE PROPOSALS RELATIVE TO ALTERNATIVE NO. 3
In reply to Mr. Guingonas query onwhether the Committee had decided on the interpretation of "two reelections",
Mr. Davide suggested that the matter be submitted to a vote.
Thereupon, Mr. Romulo moved for a vote on whether Alternative No. 3 as proposed by Mr. Garcia, would allow a
local official three terms, after which he would not be allowed to seek any reelection; or whether, as interpreted by
Mr. Davide, it would mean that after two successive reelections or a consecutive periodof nine years, he could run
for reelection after the lapse of three years.
xxxx
RESTATEMENT OF THE PROPOSALS
Mr. Garcia reiterated that the local officials could be reelected twice, after which, they would be barred from ever
runningfor reelection.
On the other proposal, Mr. Davide, on behalf ofthe Committee, stated that local officials after two reelections would
be allowed to run for reelection after the lapse of three years.
xxxx
MANIFESTATION OF MR. ROMULO
Upon resumption of session, Mr. Romulomanifested 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).
SPONSORSHIP REMARKS OF MR. GARCIA ON ALTERNATIVE NO. 1
Mr. Garcia stated that he was advocating Alternative No. 1 on four grounds: 1) to prevent monopoly of political
power because the countrys history showed that prolonged stay in public office could lead to the creation of

entrenched preservesof political dynasties; 2) to broaden the choiceso that more people could be enlisted to the
cause of public service; 3) no one is indispensable in running the affairs of the countryand that reliance on
personalities would be avoided; and 4) the disqualification from running for reelection after three terms would create
a reserve of statesmen both in the local and national levels.
He added that the turnover in public office after nine years would ensure the introduction of new ideas and
approaches. He stressed that public office would no longer be a preserve of conservatism and tradition, and that
public service would no longer be limited to those directly holding public office, but would also include consultative
bodiesorganized by the people. INQUIRY OF MR. REGALADO
In reply to Mr. Regalados query whether the three terms need not be served consecutively, Mr. Garcia answered in
the affirmative.
SPONSORSHIP REMARKS OF MR. MONSOD ON ALTERNATIVE NO. 2
Mr. Monsod stated that while the new Constitution would recognize people power because of a new awareness, a
new kind of voter and a new kind of Filipino, at the same time, it pre-screens the candidates among whom the
people would choose by barring those who would have served for nine years from being reelected. He opined that
this would actually require an additional qualification for office to a certain number of people.
He stressed that, while the stand of the Commission is to create a reserve of statesmen, their future participation is
actually limited to some areas and only for a certain periodof time. He added thatit is not for the Commission to
decide on the future of our countrymen who may have more years ahead of them to serve the country.
xxxx
INQUIRY OF MR. OPLE
xxxx
Thereupon, speaking in support of Mr. Monsods manifestation, Mr. Ople expressed apprehension over the Bodys
exercise of some sort of omnipotent power in disqualifying those who will have served their tasks. He opined that
the Commission had already taken steps to prevent the accumulation of powers and prequisites that would permit
officials to stay on indefinitely and to transfer them to members of their families. He opined, however, that perpetual
disqualification would deprive the people of their freedom of choice.He stated that the Body had already succeeded
in striking a balance onpolicies which could ensure a redistribution of opportunities to the people both in terms of
political and economic power. He stated that Philippine politics had been unshackled from the two-party system,
which he said was the most critical support for the perpetuation of political dynasties. Considering that such
achievement is already a victory, Mr. Ople stated that the role of political parties should not be despised because the
strength of democracy depends on how strong political parties are, that a splintering thereof will mean a great loss
to the vitality and resiliency of democracy.
Mr. Ople reiterated that he was against perpetual disqualification from office.
x x x x.
MR. GARCIAS RESPONSE TOMR. OPLES STATEMENTS
Mr. Garcia stated that there are two principles involved in Alternative No. 1: 1) the recognition of the ambivalent
nature of political power, and 2) the recognition of alternative forms of public service. He stated that it is important to
remember the lessons learned from the recent past; that public service is service to the people and not an
opportunity to accumulate political power, and that a prolonged stay in public office brings about political dynasties
or vested interests. Regarding political parties, he stated that it will encourage the constant renewal of blood in party
leadership, approach, style and ideas. He opined that this is very healthy for a pluralist and multi-party democracy.
On the recognition of alternative forms of public service, Mr. Garcia stressed that public service could be limited to
public office since many good leaders who were in the streets and in jail fought against the dictatorship. He stressed

that public service would also mean belonging to consultative bodies or peoples councils which brought about new
forms of service and leadership.
REMARKS OF MR. ABUBAKAR
Mr. Abubakar stated that in any democracy the voice of the people is the voice of God.He stated that if the people
want to elect a representative to serve them continuously, the Commission should not arrogate unto itself the right to
decide what the people want. He stated that in the United States, a Senator had served for 30 years.
xxxx
REMARKS OF MS. AQUINO
Ms. Aquino stated that she differs from the views advanced by Mr. Garcia and Ms. Tan, although she stated that
they spoke of the same premises. She stated that she agrees with them that leaders need not be projected and
developed publicly in an election as leaders are better tempered and tested in the various forms of mass struggles
and organized work. She stated that if the people are to be encouraged to have their own sense of responsibility in
national leadership, what ultimately matters is the political determination of the citizenry to chart their own national
destiny. She opined that the Body should allow the people to exercise their own sense of proportion and imbibe the
salutary effects of their own strength to curtail power when it overreaches itself. She stressed that in the final
analysis,the Commission cannot legislate into the Constitution the essence of new politics as it is a chastening
experience of learning and unlearning. Adverting to Mr. Garcias statement that politics is an imperfect art, she
stated that the Commission could correct politics with all its imperfections and flaws by a constitutional provision.
She opined that perpetual disqualification cannot provide the cure. She maintained that perpetual disqualification is,
at best, a palliative which could also be counter-productive, in the sense that it could effectively foil the possibilities
of realpublic service.
REMARKS OF MR. BACANI
Mr. Bacani stated that when the Body granted the illiterates the right to vote and that proposals were made to
empower the people to engage in the legislative process,the Body presupposed the political maturity of the people.
He observed that in this instance, political maturity is denied with the constitutional bar for reelection.He opined that
the Body should stick to the premise that the people are politically mature.
REJOINDER OF MR. GARCIA
By way of rejoinder to Mr. Bacanis statements,Mr. Garcia stated that the proposal was basically premisedon the
undue advantage of the incumbent in accumulating power, money, party machine and patronage and not on lack of
trust in the people.
Mr. Garcia stated that politics isnot won by ideals alone but by solid organized work by organizations. He stated that
with three terms, an official would have served the people long enough.
xxxx
VOTING ON THE TWO ALTERNATIVES
Thereafter, the Body proceeded to vote by ballot on the two alternatives.
xxxx
RESULT OF THE VOTING
The result of the voting was as follows:
Alternative No. 1 (no further election after three successive terms) 17 votes

Alternative No. 2 (no immediate reelection after three successive terms) 26 votes
With 17 votes in favor of Alternative No. 1 and 26 in favor of Alternative No. 2, the Chair declared Alternative No. 2
approved by the Body. (Emphasis and italics ours)
36

The Constitution mandates the

strict implementation of the
three-term limit rule.
The Court notes that in the process of drafting the Constitution, the framers thereof had not discussed with specifity
the subject of the three-term limit rules application on reapportioned districts.
From the above-cited deliberations, however, the divergent stances of the members of the Constitutional
Commission on the general application of the three-term limit rule show. On one side were those who espoused the
stern view that perpetual disqualification to hold public office after three consecutive terms would ensure that new
blood would be infused into our political system. More choices for the voters would give fuller meaning to our
democratic institutions. On the other side of the fence were those who believed that the imposition of termlimits
would be tantamount to squandering the experience of seasoned public servants and a curtailment of the power of
the citizens to elect whoever they want to remain in office.
In the end, 26 members of the Commission cast their votes in favor of the proposal that no immediate re-election
after three successive terms shall be allowed. On the other hand, 17 members stood pat on their view that there
should be no further reelection after three successive terms.
Clearly, the drafters of our Constitution are in agreement about the possible attendant evils if there would be no limit
to re-election. Notwithstanding their conflicting preferences on whether the term limit would disqualify the elected
official perpetually or temporarily, they decided that only three consecutive elections tothe same position would be
allowed. Thereafter, the public official can once again vie for the same post provided there be a gap of at least one
term from his or her last election. The rule answers the need to prevent the consolidation of political power in the
hands of the few, while at the same time giving to the people the freedom to call back to public service those who
are worthy to be called statesmen.
The compromise agreed upon by the drafters of our Constitution was a result of exhaustive deliberations. The
required gap after three consecutive elections is significant. Thus, the rulecannot be taken with a grain of salt.
Nothing less than its strict application is called for.
Ratio legis est anima.

37

"A foolproof yardstick in constitutional construction is the intention underlying the provision under
consideration.Thus, it has been held that the Court in construing a Constitution should bear in mind the object
sought to be accomplished by its adoption, and the evils, if any, sought to be prevented or remedied. A doubtful
provision will be examined in the light of the history of the times, and the condition and circumstances under which
the Constitution was framed. The object is to ascertain the reason which induced the framers of the Constitution to
enact the particular provision and the purpose sought to be accomplished thereby, in order to construe the whole as
to make the words consonant to that reason and calculated to effect that purpose." In Aldovino, the Court describes
the three-term limit rule as inflexible.
38

In Aldovino, a local elective official pleaded exemption from the application of the three-term limit on the ground that
there was an interruption in his service after the penalty of suspension was imposed upon him. Although not in all
four withNavals case, there are principles enunciated therein which undeniably hold true, viz:
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. x x x[.]
xxxx
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 formulationno more than three consecutive termsis a clear command
suggesting the existence of an inflexible rule. x x x.
xxxx
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. x x x.
xxxx
x x x [T]he Court signalled how zealously it guards the three-term limit rule. Effectively, these cases teach usto
strictly interpret the term limitation rule in favor of limitation rather than its exception.
xxxx
[In] Latasa v. Commission on Electionsx x x[,] [t]he 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. x x x.
xxxx
To put it differently although at the risk of repetition, Section 8, Article Xboth by structure and substancefixes 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. x x x. (Citations omitted, italics
and emphasis in the original and underscoring ours)
39

Reapportionment and its Basis

Reapportionment is "the realignment orchange in legislative districts brought about by changes in population and
mandated by the constitutional requirement of equality of representation." The aim of legislative apportionment is to
equalize population and voting power among districts. The basis for districting shall be the number of the
inhabitants of a city or a province and not the number of registered voters therein.
40

41

42

R.A. No. 9716 and the Reapportioned Districts of Camarines Sur

Sections 1 to 3 of R.A. No. 9716 provide:
Section 1. The composition of the current First (1st) and Second (2nd) Legislative Districts in the Province of
Camarines Sur is hereby reapportioned in order to create an additional legislative districtto commence in the next
national elections after the effectivity of this Act.
Section 2. In furtherance of the reapportionment mandated by this Act, the municipalities of Libmanan, Minalabac,
Pamplona, Pasacao and San Fernando of the current First (1st) Legislative District are hereby consolidated with the

municipalities of Gainza and Milaor of the current Second (2nd) Legislative District, to comprise the new legislative
district authorized under this Act.
Section 3. The result of the reapportionment described in this Act are summarized as follows:
a) First District The remaining municipalities in the current First (1st) Legislative District shall continue to be
designated as the First (1st) Legislative District, composed of the following municipalities: Del Gallego, Ragay, Lupi,
Sipicot and Cabusao;
b) Second District This new legislative districtshall be composed of the municipalities enumerated in Section 2
hereof;
c) Third District The current Second (2nd) Legislative District shall be renamedas the Third (3rd) Legislative
District, composed of the following: Naga City and the municipalities of Pili, Ocampo, Camaligan, Canaman,
Magarao, Bombon and Calabanga;
d) Fourth District The current Third (3rd) Legislative District, without any change in its composition, shall be
renamedas the Fourth (4th) Legislative District, composed of the following municipalities: Caramoan, Garchitorena,
Goa, Lagonoy, Presentacion, Sangay, San Jose, Tigaon, Tinambac and Siruma; and
e) Fifth District The current Fourth (4th) Legislative District, without any change inits composition, shall be
renamedas the Fifth (5th) Legislative District, composed of the following: Iriga City and the municipalities of Baao,
Balatan, Bato, Buhi, Bula and Nabua. (Italics and emphasis ours)
As a result of the reapportionment made by R.A. No. 9716, the old Second District of Camarines Sur, minus only the
two towns of Gainza and Milaor, is renamed as the Third District and now configured as follows:
43

[[reference - http://sc.judiciary.gov.ph/pdf/web/viewer.html?file=/jurisprudence/2014/july2014/207851.pdf]]

Before the Enactment of

After the Enactment of

RA 9716

RA 9716

3rd District

nd

Population: 439,043

District

Naga

Population: 474,899

Pili

Gainza

Ocampo

Milaor

Canaman

Naga

Camaligan

Pili

Magarao

Ocampo

Bombon

Canaman

Calabanga

Camaligan
Magarao
Bombon
Calabanga

R.A. No. 9716 created a new Second

District, but it merely renamed the
other four.
The Court notes that after the reapportionment of the districts in Camarines Sur, the current Third District, which
brought Naval to office in 2010 and 2013, has a population of 35,856 less than that of the old Second District, which
elected him in 2004 and 2007. However, the wordings of R.A. No. 9716 indicate the intent of the lawmakers to
create a single new Second District from the merger of the towns from the old First District with Gainza and Milaor.
As to the current Third District, Section 3(c) of R.A. No. 9716 used the word "rename." Although the qualifier "without
a change in its composition" was not found in Section 3(c), unlike in Sections 3(d) and (e), still, what is pervasive
isthe clear intent to create a sole new district in that of the Second, while merely renaming the rest.
The following statutory construction rules surface:
First, the general rule in construing words and phrases used in a statute is that, in the absence of legislative intent to
the contrary, they should be given their plain, ordinary and common usage meaning; the words should be read and
considered intheir natural, ordinary, commonly accepted usage, and without resorting to forced or subtle
construction. Words are presumed to have been employed by the lawmaker in their ordinary and common use and
acceptation. Second, a word of general significance ina statute is to be taken in its ordinary and comprehensive
sense, unless it is shown that the word is intended to be given a different or restricted meaning; what is generally
spoken shall be generally understood and general words shall be understood in a general sense. (Citations
omitted)
44

The Court looks to the language of the document itself in our search for its meaning.

45

In Navals case, the words of R.A.No. 9716 plainly state that the new Second Districtis to be created, but the Third
Districtis to be renamed. Verba legis non est recedendum. The terms used in a legal provision to be construed
compels acceptanceand negates the power of the courts to alter it, based on the postulate that the framers mean
what they say.
46

The verb createmeans to "make or produce something new." On the other hand, the verb renamemeans to "give a
new name to someone or something." A complete reading of R.A. No. 9716 yields no logical conclusion other than
that the lawmakers intended the old Second District to be merely renamed as the current Third District.
47

48

It likewise bears noting that the actual difference in the population of the old Second District from that of the current
Third District amounts to less than 10% of the population of the latter. This numericalfact renders the new Third
District as essentially, although not literally, the same as the old Second District. Hence, while Naval is correct in his
argument that Sanggunianmembers are elected by district, it does not alter the fact that the district which elected
him for the third and fourth time is the same one which brought him to office in 2004 and 2007.
The application upon Naval of the

three-term limit rule does not

undermine the constitutional
requirement to achieve equality of
representation among districts.
The rationale behind reapportionment is the constitutional requirement to achieve equality ofrepresentation among
the districts. It is with this mindset that the Court should consider Navals argument anent having a new set of
constituents electing him into office in 2010 and 2013.
49

Navals ineligibility to run, by reason of violation of the three-term limit rule, does not undermine the right toequal
representation of any of the districts in Camarines Sur. With or without him, the renamed Third District, which he
labels as a new set of constituents, would still be represented, albeit by another eligible person.
The presumed competence of the
COMELEC to resolve matters
falling within its jurisdiction is
upheld.
"Time and again, the Court has held that a petition for certiorariagainst actions of the COMELEC is confined only to
instances of grave abuse of discretion amounting to patent and substantial denial of due process, because the
COMELEC is presumed to be most competent in matters falling within its domain."
50

"In a special civil action for certiorari, the burden rests on the petitioner to prove not merelyreversible error, but grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of the public respondent issuing the
impugned order, decision or resolution." "Grave abuse of discretion arises when a court or tribunal violates the
Constitution, the law or existing jurisprudence."
51

52

In the case at bar, the Court finds the COMELECs disquisitions to be amply supported by the Constitution,law and
jurisprudence.
Conclusion
In sum, the Court finds no compelling reason to grant the reliefs prayed for by Naval. For the Court to declare
otherwise would be to create a dangerous precedent unintended by the drafters of our Constitution and of R.A. No.
9716. Considering that the one-term gap or rest after three consecutive elections is a result of a compromise among
the members of the Constitutional Commission, no cavalier exemptions or exceptions to its application is to be
allowed. Aldovinoaffirms this interpretation. Further, sustaining Navals arguments would practically allow him to hold
the same office for 15 years. These are the circumstances the Constitution explicitly intends to avert.
Certainly, the Court accords primacy to upholding the will of the voting public, the real sovereign, soto speak.
However, let all the candidates for public office be reminded that as citizens, we have a commitment to be bound by
our Constitution and laws. Side by side our privileges as citizens are restrictions too.
Einer Elhauge, a faculty member from Harvard Law School, wrote an article entitled "What Term Limits Do That
Ordinary Voting Cannot." In the article, Greek mythology was tapped to make a tempting analogy. The gist of the
story follows.
53

In Odyssey Book XII, the goddess Circe warned Odysseus of the Sirens who seduce all men approaching them with
their voices. Those who fell into the Sirens trap never returnedhome to their wives and children. A clever strategy
was thus hatched to secure safe passage for Odysseus and his men. The men were to plug their ears with wax to

muffle the songs of the Sirens. Odysseus, on the other hand, was to be tied to the mast of the ship so he could still
listen to the songs, which may contain clues on how they can get home. When the wind died down,Odysseus heard
beautiful voices calling out to them. The voices were incomparable to anything he had ever heard before. Even
whenOdysseus knew that the irresistible voices were coming from the Sirens, he struggled with all his strength to
free himself from the ropes, but was unable to do so. The voices became fainter as the men continued to row. When
the voices can no longer be heard, Odysseus realized how he had nearly been beguiled. They had made it through
safely and Odysseus was untied. It was their clever plan which kept them all alive.
54

The same lesson holds true in the case before this Court. The drafters of the Constitution recognized the propensity
of public officers to perpetuate themselves in power, hence, the adoption of term limits and a guarantee of every
citizen's equal access to public service. These are the restrictions statesmen should observe for they are intended
to help ensure the continued vitality of our republican institutions.
WHEREFORE, IN VIEW OF THE FOREGOING, the petition is DENIED. The Resolutions dated March 5, 2013 and
June 5, 2013 of the Commission on Elections in SPA No. 13-166 (DC) are AFFIRMED.
SO ORDERED.

G.R. No. 102948

February 2, 1994

JAIME T. PANIS, petitioner,

vs.
CIVIL SERVICE COMMISSION and BELLA V. VELOSO, respondent.

Batiquin & Batiquin Law Office for petitioner.

The Solicitor General for public respondent.

QUIASON, J.:

This is a petition for certiorari under Rule 65 of the Revised Rules of Court in relation to Section 7 of Article IX (A) of the
Constitution, to nullify Resolution No. 90-1047 dated November 22, 1990 and Resolution No. 91-1100 dated September
24, 1991, of the Civil Service Commission. The first Resolution dismissed petitioner's appeal from the decision of the
Regional Office of the Civil Service Commission, and at the same time, upheld the appointment of respondent Bella V.
Veloso to the position of Assistant Chief of Hospital for Administration of the Cebu City Medical Center (CCMC). The
second Resolution denied the motion for reconsideration of the decision.

I.

The CCMC, formerly known as the Cebu City Hospital, is operated and maintained by the local government of Cebu City.
Petitioner was employed as Administrative Officer of the Hospital, while private respondent was Administrative Officer of
the City Health Department detailed at the said hospital.

On November 9, 1987, the Mayor of Cebu City appointed private respondent to the position of Assistant Chief of Hospital
for Administration of CCMC. Petitioner, a candidate for the said position, promptly protested the appointment before the
Regional Office of the Civil Service Commission (CSC). The CSC Regional Office, however, indorsed the matter to the
Office of the City Mayor, which in turn referred it to the Office of the City Attorney.

In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor, dismissed petitioner's protest and
upheld the appointment of private respondent. This dismissal was affirmed by the CSC Regional Office and later on
appeal, by respondent CSC. Hence, the present petition.

II.

Petitioner contends that the appointment of private respondent was made in violation of law, existing civil service rules
and established jurisprudence because (1) the position of Assistant Chief of Hospital for Administration was not legally
created; (2) assuming that it was, there was no qualification standard nor valid screening procedure; and (3) the seniority
and next-in-rank rules were disregarded.

III.

The petition is not impressed with merit.

Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June 17, 1986, amended the charter of the
Cebu City Hospital for the purpose of correcting the deficiencies and improving the performance of said institution. The
hospital's name was changed to CCMC, and the departments and offices therein were reorganized. The Office of Hospital
Administrator was created and granted such powers as were deemed in line with the objectives of the Ordinance.

On March 6, 1987, the City Mayor appointed private respondent to the position of Hospital Administrator. This appointment
was, however, not acted upon by the CSC but returned to the appointing authority on October 21, 1987 for lack of the
screening requirement. On even date, the City Mayor withdrew private respondent's appointment. The title of Hospital
Administrator was later found to be a misnomer and thus was properly classified by the Joint Commission on Local
Government Personnel Administration as one of Assistant Chief of Hospital for Administration. This classification was
subsequently approved by the Department of Budget Management.

The position of Assistant Chief of Hospital for Administration is the very same position of Hospital Administrator created by
Ordinance No. 1216. The Office of Hospital Administrator was not extinguished, but the designation thereof merely
corrected to reflect the proper classification of the position under existing rules (Rollo, pp. 78-80). The Office of Assistant
Chief of Hospital for Administration therefore was created and existed in accordance with law.

As a result of the reclassification, candidates to the position, among whom were petitioner and private respondent, were
notified by the Personnel Selection Board (Board) of the screening scheduled on October 22, 1987. The notice sent
petitioner at 9:30 A.M. may have been "too close for comfort to the 10:00 schedule," but the screening was actually reset
to the following day, October 23, 1987. Petitioner however never appeared before the Board. Neither did he appear,
despite due notice, at the final selection process on November 5, 1987.

The fact that private respondent was actually screened and interviewed by the Board does not mean that her appointment
was a fait accompli. The screening was just a stage in the appointment process.

Private respondent and petitioner are college degree holders with three units in Public Administration and three years
experience in Hospital Administration or Health Administration. Indeed, both candidates possess the minimum
qualifications for the position. The determination, however, who among the qualified candidates should be preferred
belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to appoint private respondent.

The argument that petitioner should have been the one appointed because he was next in rank to the contested position
and that he had been with CCMC since 1961 as compared to private respondent, who joined the hospital in 1986 and only
on detail, cannot be upheld.

It is ironic that petitioner is personally interested in the subject position, the creation and validity of which he himself
originally questioned. Be that as it may, the "next in rank" rule specifically applies only in cases of promotion (Medenilla v.
Civil Service Commission, 194 SCRA 278 [1991]; Pineda v. Claudio, 28 SCRA 34 [1969]). The instant controversy,
however, involves a new office and a position created in the course of a valid reorganization. Under the law, a vacancy not
filled by promotion may be filled by transfer of present employees in the government service, by reinstatement, by
reemployment of those separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order (P.D. 807 Art. VIII, Sec. 19 (5); E.O. 292, Bk. V, Sec. 21 (5); Espaol v. Civil
Service Commission, 206 SCRA 715 [1992]; Medenilla v. Civil Service Commission, supra., at 289-290).

It cannot be said that private respondent was an outsider. Although directly employed by the City Health Department, she
actually worked at the CCMC prior to her appointment to the subject position. Besides, even, if she was an outsider, the
law does not prohibit the employment of persons from the private sector so long as they have the appropriate civil service
eligibility.

Assuming nonetheless that a vacancy actually occurred that can be filled up only by promotion, the concept of "next in
rank" does not impose any mandatory or peremptory requirement to appoint the person occupying the next lower position
in the occupational group of the office. What the Civil Service Law and the Administrative Code of 1987 provide is that if a
vacancy is filled up by the promotion, the person holding the position next in rank thereto "shall be considered for
promotion" (P.D. 807, Sec. 19 (3); E.O. 292, Bk. V, Sec. 20 (3); Espaol v. Civil Service Commission, supra; Barrozo v.
Civil Service Commission, 198 SCRA 487 [1991]). In other words, one who is "next in rank" to a vacancy is given
preferential consideration for promotion to the vacant position, but it does nor necessarily follow that he alone and no one
else can be appointed. There is no vested right granted the next in rank nor a ministerial duty imposed on the appointing
authority to promote the holder to the vacant position (Barrozo v. Civil Service Commission, supra; Santiago, Jr. v. Civil
Service Commission, 178 SCRA 733 [1989]).

An appointment, whether to a vacancy or to a newly created position, is essentially within the discretionary power of
whomsoever it is vested. Once a candidate possesses the minimum qualities required by law, sufficient discretion, if not
plenary, is granted to the appointing authority (Medenilla v. Civil Service Commission, supra, at 291; Central Bank v. Civil
Service Commission, 171 SCRA 744 [1989]). After all, the appointing authority is the officer primarily responsible for the
administration of the office, and is likewise in the best position to determine who among the qualified candidates can
efficiently discharge the functions of the position (Villegas v. Subido, 30 SCRA 498 [1969]); Reyes v. Abeleda, 22 SCRA
825 [1968]). Indeed, whom to appoint among those qualified is an administrative question involving considerations of
wisdom for the best interest of the service which only the appointing authority can decide (Simpao v. Civil Service
Commission, 191 SCRA 396 [1990]; Luego v. Civil Service Commission, 143 SCRA 327 [1986]).

It is markworthy that private respondent was detailed at the CCMC primarily to help in upgrading the level of performance
of the said hospital. She accomplished this mission by institutionalizing changes in the management and financial
reporting system of the hospital such that its income doubled in less than two years since her detail. Private respondent's
competence and her remarkable achievement are things the appointing authority took notice of and which served as basis
for her appointment to the contested position.

Finally, the moral character and honesty of private respondent are issues that should be threshed out in an appropriate
action before the proper forum. As it stands, private respondent is presumed innocent and her acts done in good faith,
until proven otherwise.

WHEREFORE, finding no grave abuse of discretion on the part of the public respondent, the Court resolved to DISMISS
the petition for lack of merit.

SO ORDERED.

*** LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, Petitioner, v. LEYTE ACTING GOVERNOR, LEOPOLDO E.
PETILLA in his capacity as Chief Executive of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN
and Leyte Provincial Treasurer FLORENCIO LUNA, Respondents.
Zozimo G. Alegre for Petitioner.

The Provincial Attorney for Respondents.

SYLLABUS

1. ADMINISTRATIVE LAW; VACANCY EXISTS WHERE THERE IS NO PERSON LAWFULLY AUTHORIZED TO ASSUME AND
EXERCISE AT PRESENT THE DUTIES OF THE OFFICE. The law on Public Officers is clear on the matter. There is no vacancy
whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is no
person lawfully authorized to assume and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326,
cited in Mechem. A Treatise on the Law on Public Offices and Officers, at p. 61).
chanroble svirtuallawlibrary

2. ID.; APPOINTMENT OF PETITIONER AS VICE-GOVERNOR EXTENDED BY THE SECRETARY OF LOCAL GOVERNMENT HELD
AS VALID. The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting ViceGovernor. For about two years after the governatorial elections, there had been no de jure permanent Governor for the
province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending election case
before the Commission on Elections. The two-year interregnum which would result from the respondents view of the law is
disfavored as it would cause disruptions and delays in the delivery of basic services to the people and in the proper
management of the affairs of the local government of Leyte. Definitely, it is incomprehensible that to leave the situation
without affording any remedy was ever intended by the Local Government Code. Under the circumstances of this case and
considering the silence of the Local Government Code, the Court rules that, in order to obviate the dilemma resulting from an
interregnum created by the vacancy, the President, acting through her alter ego, the Secretary of Local Government, may
remedy the situation. We declare valid the temporary appointment extended to the petitioner to act as the Vice-Governor.
The exigencies of public service demanded nothing less than the immediate appointment of an acting Vice-Governor.
3. ID.; POWER OF THE PRESIDENT TO MAKE TEMPORARY APPOINTMENTS IN CERTAIN PUBLIC OFFICES; SIMILARLY APPLIED
IN THE CASE AT BAR. It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of
1987, the President is empowered to make temporary appointments in certain public offices, in case of any vacancy that may
occur. Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any contrary
provision in the Local Government Code and in the best interest of public service, we see no cogent reason why the
procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents contend that the
provincial board is the correct appointing power. This argument has no merit. As between the President who has supervision
over local governments as provided by law and the members of the board who are junior to the vice-governor, we have no
problem ruling in favor of the President, until the law provides otherwise.
4. ID.; PUBLIC SERVICE; PRIMARY CONCERN OF THOSE IN THE GOVERNMENT; CASE AT BAR. Whether or not the absence
of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials to decide or, in proper cases, for the
judiciary to adjudicate. As shown in this case where for about two years there was only an acting Governor steering the
leadership of the province of Leyte, the urgency of filing the vacancy in the Office of the Vice-Governor to free the hands of
the acting Governor to handle provincial problems and to serve as the buffer in case something might happen to the acting
Governor becomes unquestionable. We do not have to dwell ourselves into the fact that nothing happened to acting Governor
Petilla during the two-year period. The contingency of having simultaneous vacancies in both offices cannot just be set aside.
It was best for Leyte to have a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern
of those in the government. It is a continuous duty unbridled by any political considerations. The appointment of the
petitioner, moreover, is in full accord with the intent behind the Local Government Code. There is no question that Section 49
in connection with Section 52 of the Local Government Code shows clearly the intent to provide for continuity in the
performance of the duties of the Vice-Governor.
5. ID.; LOCAL GOVERNMENT CODE; SANGGUNIANG PANLALAWIGAN MEMBER WHO OBTAINED THE HIGHEST NUMBER OF
VOTES MAY ASSUME THE OFFICE OF THE VICE-GOVERNOR IN CASE OF TEMPORARY. The Local Government Code provides
for the mode of succession in case of a permanent vacancy, viz: Section 49: "In case a permanent vacancy arises when a
Vice-Governor assumes the Office of the Governor, . . . refuses to assume office, fails to qualify, dies, is removed from office,
voluntary resigns or is otherwise permanently incapacitated to discharge the functions of his office, the sangguniang
panlalawigan . . . member who obtained the highest number of votes in the election immediately preceding, . . . shall
assume the office for the unexpired term of the Vice-Governor . . . By virtue of the surroundings circumstance of this case,
the mode of succession provided for permanent vacancies may likewise be observed in case of a temporary vacancy in the
same office. In this case, there was a need to fill the vacancy. The petitioner is himself the member of the Sangguniang
Panlalawigan who obtained the highest number of votes. The Department Secretary acted correctly in extending the
temporary appointment.
chanroble s lawlibrary : rednad

6. ID.; DE FACTO OFFICER; COMPENSATION RECEIVED BY PETITIONER AS ACTING VICE-GOVERNOR; CONSIDERED

PAYMENTS FOR ACTUAL SERVICES RENDERED. There is no denying that the petitioner assumed the Office of the ViceGovernor under color of a known appointment. As revealed by the records, the petitioner was appointed by no less than the
alter ego of the President, the Secretary of Local Government, after which he took his oath of office before Senator Alberto
Romulo in the Office of Department of Local Government Regional Director Res Salvatierra. Concededly, the appointment has
the color of validity. The respondents themselves acknowledged the validity of the petitioners appointment and dealt with

him as such. It was only when the controversial Resolution No. 505 was passed by the same persons who recognized him as
the acting Vice-Governor that the validity of the appointment of the petitioner was made an issue and the recognition
withdrawn. The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based and
basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services he actually
rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55 [1974]).

This is a motion for reconsideration of the resolution of the Court dated August 28, 1990 which initially denied the
petition for certiorari and mandamus filed by then Acting Vice-Governor of Leyte, Aurelio D. Menzon. In the August
28 resolution, the Court stated that Mr. Menzon cannot successfully assert the right to be recognized as Acting ViceGovernor and, therefore, his designation was invalid. In this motion, the primary issue is the right to emoluments
while actually discharging the duties of the office.
The facts of the case are as follows: On February 16, 1988, by virtue of the fact that no Governor had been
proclaimed in the province of Leyte, the Secretary of Local Government Luis Santos designated the Vice-Governor,
Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the Sangguniang Panlalawigan was also
designated by Secretary Luis Santos to act as the Vice-Governor for the province of Leyte.
The petitioner took his oath of office before Senator Alberto Romulo on March 29, 1988.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the Undersecretary of the
Department of Local Government, Jacinto T. Rubillar, Jr., as to the legality of the appointment of the petitioner to act
as the Vice-Governor of Leyte.
In his reply letter dated June 22, 1989, Undersecretary Jacinto T. Rubillar, Jr. stated that since B.P. 337 has no
provision relating to succession in the Office of the Vice-Governor in case of a temporary vacancy, the appointment
of the petitioner as the temporary Vice- Governor is not necessary since the Vice-Governor who is temporarily
performing the functions of the Governor, could concurrently assume the functions of both offices.
As a result of the foregoing communications between Tente U. Quintero and Jacinto T. Rubillar, Jr., the Sangguniang
Panlalawigan, in a special session held on July 7, 1989, issued Resolution No. 505 where it held invalid the
appointment of the petitioner as acting Vice-Governor of Leyte. The pertinent portion of the resolution reads:
WHEREAS, the circumstances obtaining at present in the Office of the Vice-Governor is that there is no
permanent (sic) nor a vacancy in said office. The Honorable Leopoldo E. Petilla assumed the Office of the
Vice-Governor after he took his oath of office to said position.
WHEREAS, it is the duty of the members of the Board not only to take cognizance of the aforesaid official
communication of the Undersecretary, Jacinto T. Rubillar, Jr., but also to uphold the law.
WHEREAS, on motion of the Honorable Macario R. Esmas, Jr., duly seconded by the Honorable Rogelio L.
Granados and the Honorable Renato M. Rances.
RESOLVED, as it is hereby resolved not to recognize Honorable Aurelio D. Menzon as Acting Vice-Governor
of Leyte. (Rollo, p. 27)
The petitioner, on July 10, 1989, through the acting LDP Regional Counsel, Atty. Zosimo Alegre, sought clarification
from Undersecretary Jacinto T. Rubillar, Jr. regarding the June 22, 1989 opinion.
On July 12, 1989, Undersecretary Jacinto T. Rubillar replied and explained his opinion. The pertinent portion of the
letter reads:
1wphi1

This has reference to your letter dated July 10, 1989, requesting for clarification of our letter to Provincial
Administrator Tente U. Quintero dated June 22, 1989, which states in substance, that "there is no
succession provided for in case of temporary vacancy in the office of the vice-governor and that the
designation of a temporary vice-governor is not necessary.
We hold the view that the designation extended by the Secretary of Local Government in favor of one of the
Sangguniang Panlalawigan Members of Leyte to temporarily discharge the powers and duties of the vicegovernor during the pendency of the electoral controversy in the Office of the Governor, does not contradict
the stand we have on the matter. The fact that the Sangguniang Panlalawigan member was temporarily
designated to perform the functions of the vice-governor could not be considered that the Sangguniang
member succeeds to the office of the latter, for it is basic that designation is merely an imposition of
additional duties to be performed by the designee in addition to the official functions attached to his office.
Furthermore, the necessity of designating an official to temporarily perform the functions of a particular
public office, would depend on the discretion of the appointing authority and the prevailing circumstances in
a given area and by taking into consideration the best interest of public service.
On the basis of the foregoing and considering that the law is silent in case of temporary vacancy, in the
Office of the Vice-Governor, it is our view that the peculiar situation in the Province of Leyte, where the
electoral controversy in the Office of the Governor has not yet been settled, calls for the designation of the
Sangguniang Member to act as vice-governor temporarily. (Rollo, p. 31)
In view, of the clarificatory letter of Undersecretary Rubillar, the Regional Director of the Department of Local
Government, Region 8, Resurreccion Salvatierra, on July 17, 1989, wrote a letter addressed to the Acting-Governor
of Leyte, Leopoldo E. Petilla, requesting the latter that Resolution No. 505 of the Sangguniang Panlalawigan be
modified accordingly. The letter states:
In view thereof, please correct previous actions made by your office and those of the Sangguniang
Panlalawigan which may have tended to discredit the validity of Atty. Aurelio Menzon's designation as acting
vice-governor, including the payment of his salary as Acting Vice-Governor, if he was deprived of such.
(Rollo, p. 32)
On August 3, 1989, the Regional Director wrote another letter to Acting-Governor Petilla, reiterating his earlier
request.
Despite these several letters of request, the Acting Governor and the Sangguniang Panlalawigan, refused to correct
Resolution No. 505 and correspondingly to pay the petitioner the emoluments attached to the Office of ViceGovernor.
Thus, on November 12, 1989, the petitioner filed before this Court a petition for certiorari and mandamus. The
petition sought the nullification of Resolution No. 505 and for the payment of his salary for his services as the acting
Vice-Governor of Leyte.
In the meantime, however, the issue on the governorship of Leyte was settled and Adelina Larrazabal was
proclaimed the Governor of the province of Leyte.
During the pendency of the petition, more particularly on May 16, 1990, the provincial treasurer of Leyte, Florencio
Luna allowed the payment to the petitioner of his salary as acting Vice-Governor of Leyte in the amount of
P17,710.00, for the actual services rendered by the petitioner as acting Vice-Governor.
On August 28, 1990, this Court dismissed the petition filed by Aurelio D. Menzon.

On September 6, 1990, respondent Leopoldo Petilla, by virtue of the above resolution requested Governor
Larrazabal to direct the petitioner to pay back to the province of Leyte all the emoluments and compensation which
he received while acting as the Vice-Governor of Leyte.
On September 21, 1990, the petitioner filed a motion for reconsideration of our resolution. The motion prayed that
this Court uphold the petitioner's right to receive the salary and emoluments attached to the office of the ViceGovernor while he was acting as such.
The petitioner interposes the following reason for the allowance of the motion for reconsideration:
THAT THE PETITIONER IS ENTITLED TO THE EMOLUMENTS FOR HIS SERVICES RENDERED AS
DESIGNATED ACTING VICE-GOVERNOR UNDER THE PRINCIPLES OF GOOD FAITH. SIMPLE
JUSTICE AND EQUITY.
The controversy basically revolves around two issues: 1) Whether or not there was a vacancy?; and 2) Whether or
not the Secretary of Local Government has the authority to make temporary appointments?
The respondents argue that there exists no vacancy in the Office of the Vice-Governor which requires the
appointment of the petitioner. They further allege that if indeed there was a need to appoint an acting Vice-Governor,
the power to appoint is net vested in the Secretary of Local Government. Absent any provision in the Local
Government Code on the mode of succession in case of a temporary vacancy in the Office of the Vice-Governor,
they claim that this constitutes an internal problem of the Sangguniang Panlalawigan and was thus for it solely to
resolve.
The arguments are of doubtful validity.
The law on Public Officers is clear on the matter. There is no vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume
and exercise at present the duties of the office. (see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on
the Law on Public Offices and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the office of the Vice-Governor was left
vacant when the duly elected Vice-Governor Leopoldo Petilla was appointed Acting Governor. In the eyes of the law,
the office to which he was elected was left barren of a legally qualified person to exercise the duties of the office of
the Vice-Governor.
There is no satisfactory showing that Leopoldo Petilla, notwithstanding his succession to the Office of the Governor,
continued to simultaneously exercise the duties of the Vice-Governor. The nature of the duties of a Provincial
Governor call for a full-time occupant to discharge them. More so when the vacancy is for an extended period.
Precisely, it was Petilla's automatic assumption to the acting Governorship that resulted in the vacancy in the office
of the Vice-Governor. The fact that the Secretary of Local Government was prompted to appoint the petitioner
shows the need to fill up the position during the period it was vacant. The Department Secretary had the discretion
to ascertain whether or not the Provincial Governor should devote all his time to that particular office. Moreover, it is
doubtful if the Provincial Board, unilaterally acting, may revoke an appointment made by a higher authority.
Disposing the issue of vacancy, we come to the second issue of whether or not the Secretary of Local Government
had the authority to designate the petitioner.
We hold in the affirmative.

The Local Government Code is silent on the mode of succession in the event of a temporary vacancy in the Office
of the Vice-Governor. However, the silence of the law must not be understood to convey that a remedy in law is
wanting.
The circumstances of the case reveal that there is indeed a necessity for the appointment of an acting ViceGovernor. For about two years after the governatorial elections, there had been no de jure permanent Governor for
the province of Leyte, Governor Adelina Larrazabal, at that time, had not yet been proclaimed due to a pending
election case before the Commission on Elections.
The two-year interregnum which would result from the respondents' view of the law is disfavored as it would cause
disruptions and delays in the delivery of basic services to the people and in the proper management of the affairs of
the local government of Leyte. Definitely, it is incomprehensible that to leave the situation without affording any
remedy was ever intended by the Local Government Code.
Under the circumstances of this case and considering the silence of the Local Government Code, the Court rules
that, in order to obviate the dilemma resulting from an interregnum created by the vacancy, the President, acting
through her alter ego, the Secretary of Local Government, may remedy the situation. We declare valid the
temporary appointment extended to the petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting Vice-Governor.
The records show that it was primarily for this contingency that Undersecretary Jacinto Rubillar corrected and
reconsidered his previous position and acknowledged the need for an acting Vice-Governor.
It may be noted that under Commonwealth Act No. 588 and the Revised Administrative Code of 1987, the President
is empowered to make temporary appointments in certain public offices, in case of any vacancy that may occur.
Albeit both laws deal only with the filling of vacancies in appointive positions. However, in the absence of any
contrary provision in the Local Government Code and in the best interest of public service, we see no cogent reason
why the procedure thus outlined by the two laws may not be similarly applied in the present case. The respondents
contend that the provincial board is the correct appointing power. This argument has no merit. As between the
President who has supervision over local governments as provided by law and the members of the board who are
junior to the vice-governor, we have no problem ruling in favor of the President, until the law provides otherwise.
A vacancy creates an anomalous situation and finds no approbation under the law for it deprives the constituents of
their right of representation and governance in their own local government.
In a republican form of government, the majority rules through their chosen few, and if one of them is incapacitated
or absent, etc., the management of governmental affairs to that extent, may be hampered. Necessarily, there will be
a consequent delay in the delivery of basic services to the people of Leyte if the Governor or the Vice-Governor is
missing.
Whether or not the absence of a Vice-Governor would main or prejudice the province of Leyte, is for higher officials
to decide or, in proper cases, for the judiciary to adjudicate. As shown in this case where for about two years there
was only an acting Governor steering the leadership of the province of Leyte, the urgency of filling the vacancy in
the Office of the Vice-Governor to free the hands of the acting Governor to handle provincial problems and to serve
as the buffer in case something might happen to the acting Governor becomes unquestionable. We do not have to
dwell ourselves into the fact that nothing happened to acting Governor Petilla during the two-year period. The
contingency of having simultaneous vacancies in both offices cannot just be set aside. It was best for Leyte to have
a full-time Governor and an acting Vice-Governor. Service to the public is the primary concern of those in the
government. It is a continuous duty unbridled by any political considerations.

The appointment of the petitioner, moreover, is in full accord with the intent behind the Local Government Code.
There is no question that Section 49 in connection with Section 52 of the Local Government Code shows clearly the
intent to provide for continuity in the performance of the duties of the Vice-Governor.
The Local Government Code provides for the mode of succession in case of a permanent vacancy, viz:
Section 49:
In case a permanent vacancy arises when a Vice-Governor assumes the Office of the Governor, . . . refuses
to assume office, fails to qualify, dies, is removed from office, voluntary resigns or is otherwise permanently
incapacitated to discharge the functions of his office the sangguniang panlalawigan . . . member who
obtained the highest number of votes in the election immediately preceding, . . . shall assume the office for
the unexpired term of the Vice-Governor. . . .
By virtue of the surroundings circumstance of this case, the mode of succession provided for permanent vacancies
may likewise be observed in case of a temporary vacancy in the same office. In this case, there was a need to fill
the vacancy. The petitioner is himself the member of the Sangguniang Panlalawigan who obtained the highest
number of votes. The Department Secretary acted correctly in extending the temporary appointment.
In view of the foregoing, the petitioner's right to be paid the salary attached to the Office of the Vice Governor is
indubitable. The compensation, however, to be remunerated to the petitioner, following the example in
Commonwealth Act No. 588 and the Revised Administrative Code, and pursuant to the proscription against double
compensation must only be such additional compensation as, with his existing salary, shall not exceed the salary
authorized by law for the Office of the Vice-Governor.
And finally, even granting that the President, acting through the Secretary of Local Government, possesses no
power to appoint the petitioner, at the very least, the petitioner is a de facto officer entitled to compensation.
There is no denying that the petitioner assumed the Office of the Vice-Governor under color of a known
appointment. As revealed by the records, the petitioner was appointed by no less than the alter ego of the President,
the Secretary of Local Government, after which he took his oath of office before Senator Alberto Romulo in the
Office of Department of Local Government Regional Director Res Salvatierra.
Concededly, the appointment has the color of validity. The respondents themselves acknowledged the validity of the
petitioner's appointment and dealt with him as such. It was only when the controversial Resolution No. 505 was
passed by the same persons who recognized him as the acting Vice-Governor that the validity of the appointment of
the petitioner was made an issue and the recognition withdrawn.
The petitioner, for a long period of time, exercised the duties attached to the Office of the Vice-Governor. He was
acclaimed as such by the people of Leyte. Upon the principle of public policy on which the de facto doctrine is based
and basic considerations of justice, it would be highly iniquitous to now deny him the salary due him for the services
he actually rendered as the acting Vice-Governor of the province of Leyte. (See Cantillo v. Arrieta, 61 SCRA 55
[1974])
WHEREFORE, the COURT hereby GRANTS the motion for reconsideration. The additional compensation which the
petitioner has received, in the amount exceeding the salary authorized by law for the position of Senior Board
Member, shall be considered as payment for the actual services rendered as acting Vice-Governor and may be
retained by him.
SO ORDERED.

*** G.R. No. 118883 January 16, 1998

SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES, Represented by VICE MAYOR NENITO AQUINO
and MAYOR LYDIA T. ROMANO, petitioner,
vs.
COURT OF APPEALS and AUGUSTO T. ANTONIO, respondents.

PANGANIBAN, J.:
Although a resignation is not complete without an acceptance thereof by the proper authority, an office may still be
deemed relinquished through voluntary abandonment which needs no acceptance.
Statement of the Case
Before us is a petition for review under Rule 45 of the Rules of Court seeking a reversal of the Decision 1 of the Court
of Appeals 2 promulgated on January 31, 1995 in CA-G.R. SP No. 34158, which modified the Decision dated February 18,
1994 of the Regional Trial Court 3 of Virac, Catanduanes, Branch 42, in Sp. Civil Case No. 1654.
The dispositive portion of the assailed Decision of the appellate court reads:
WHEREFORE, the judgment appealed from is hereby MODIFIED such that paragraphs 1, 2 and 4 thereof are
deleted. Paragraph 3 is AFFIRMED. No pronouncement as to costs. 4
Antecedent Facts

Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay, San Andres, Catanduanes
in March 1989. He was later elected president of the Association of Barangay Councils (ABC) 5 for the Municipality of
San Andres, Catanduanes. In that capacity and pursuant to the Local Government Code of 1983, he was appointed by the
President as member of the Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local Government (DILG) declared the
election for the president of the Federation of the Association of Barangay Councils (FABC) of the same province, in
which private respondent was a voting member, void for want of a quorum. Hence, a reorganization of the provincial
council became necessary. Conformably, the DILG secretary designated private respondent as a temporary
member of the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15, 1990.
In view of his designation, private respondent resigned as a member of the Sangguniang Bayan. He tendered his
resignation 6 dated June 14, 1990 to Mayor Lydia T. Romano of San Andres, Catanduanes, with copies furnished to the
provincial governor, the DILG and the municipal treasurer. Pursuant to Section 50 of the 1983 Local Government
Code 7(B.P. Blg. 337), Nenito F. Aquino, then vice president of the ABC, was subsequently appointed by the provincial
governor as member of the Sangguniang Bayan 8 in place of private respondent. Aquino assumed office on July 18, 1990
after taking his oath. 9
Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC president was reversed by the
Supreme Court in Taule vs. Santos. 10 In the same case, the appointment of Private Respondent Antonio as sectoral
representative to the Sangguniang Panlalawigan was declared void, because he did not possess the basic qualification
that he should be president of the federation of barangay councils. 11 This ruling of the Court became final and executory
on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang Bayan of San Andres, advising
them of his re-assumption of his "original position, duties and responsibilities as sectoral representative" 12 therein. In
response thereto, the Sanggunian issued Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to
resume office as a member of the Sangguniang Bayan. 13
On August 13, 1992, private respondent sought from the DILG a definite ruling relative to his right to resume his
office as member of the Sangguniang Bayan. 14 Director Jacob F. Montesa, department legal counsel of the DILG,
clarified Antonio's status in this wise:
Having been elected President of the ABC in accordance with the Department's Memorandum Circular No.
89-09, 15 you became an ex-officio member in the sanggunian. Such position has not been vacated inasmuch as
you did not resign nor abandon said office when you were designated as temporary representative of the
Federation to the Sangguniang Panlalawigan of Catanduanes on June 7, 1990. The Supreme Court in Triste
vs. Leyte State College Board of Trustees (192 SCRA 327), declared that: "designation implies temporariness.
Thus, to "designate" a public officer to another position may mean to vest him with additional duties while he
performs the functions of his permanent office. In some cases, a public officer may be "designated" to a position
in an acting capacity as when an undersecretary is designated to discharge the functions of the Secretary pending
the appointment of a permanent Secretary."
Furthermore, incumbent ABC presidents are mandated by the Rules and Regulations Implementing the
1991 Local Government Code to continue to act as president of the association and to serve as exofficiomembers of the sangguniang bayan, to wit:
Article 210 (d) (3), Rule XXIX of the Implementing Rules and Regulations of Rep. Act No. 7160, provides
that:

The incumbent presidents of the municipal, city and provincial chapters of the liga shall
continue to serve as ex-officio members of the sanggunian concerned until the expiration of
their term of office, unless sooner removed for cause.
(f) . . . Pending election of the presidents of the municipal, city, provincial and metropolitan
chapters of the liga, the incumbent presidents of the association of barangay councils in the
municipality, city, province and Metropolitan Manila, shall continue to act as president of the
corresponding liga chapters under this Rule.
In view of the foregoing, considering that the annulled designation is only an additional duty to your primary
function, which is the ABC President, we find no legal obstacle if you re-assume your representation in
the sanggunian bayan as ex-officio member. 16
Despite this clarification, the local legislative body issued another resolution 17 reiterating its previous stand.
In response to private respondent's request, 18 Director Montesa opined that Antonio did not relinquish or abandon his
office; and that since he was the duly elected ABC president, he could re-assume his position in the Sanggunian. 19 A copy
of said reply was sent to the members of the local legislative body.
Notwithstanding, the Sanggunian refused to acknowledge the right of private respondent to re-assume office as
sectoral representative.
On December 10, 1992, private respondent filed a petition for certiorari and mandamus with preliminary mandatory
injunction and/or restraining order before the RTC. On February 18, 1994, the trial court rendered its decision
holding that Augusto T. Antonio's resignation from the Sangguniang Bayan was ineffective and inoperative, since
there was no acceptance thereof by the proper authorities. The decretal portion of the decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered in favor of the petitioner and against
the respondents and ordering the latter:
(1) to pay the petitioner jointly and severally the amount of P10,000.00 as attorney's fees and the cost of the
suit;
(2) to allow petitioner to assume his position as sectoral representative of the Sangguniang Bayan of San
Andres, Catanduanes;
(3) to pay the petitioner jointly and severally his uncollected salaries similar to those received by the other
members of the Sangguniang Bayan of San Andres, Catanduanes as certified to by the Municipal Budget
Officer and Municipal Treasurer of the same municipality from April 8, 1992 up to the date of this judgment;
and
(4) declaring Resolution No[s]. 7 & 28 series of 1992 null and void and to have no effect. 20
Petitioners appealed this judgment to the Court of Appeals.
Appellate Court's Ruling
Respondent Court of Appeals affirmed the trial court's ruling but deleted the first, second and fourth paragraphs of
its dispositive portion. It held that private respondent's resignation was not accepted by the proper authority, who is
the President of the Philippines. While the old Local Government Code is silent as to who should accept and act on
the resignation of any member of the Sanggunian, the law vests in the President the power to appoint members of

the local legislative unit. Thus, resignations must be addressed to and accepted by him. It added that, though the
secretary of the DILG is the alter ego of the President and notice to him may be considered notice to the President,
the records are bereft of any evidence showing that the DILG secretary received and accepted the resignation letter
of Antonio.
Moreover, granting that there was complete and effective resignation, private respondent was still the president of
the ABC and, as such, he was qualified to sit in the Sangguniang Bayan in an ex officio capacity by virtue of Section
494 21 of R.A. 7160 22 and Memorandum Circular No. 92-38. 23 In view, however, of the May 1994 elections in which a new
set of barangay officials was elected, Antonio's reassumption of office as barangay representative to the Sangguniang
Bayan was no longer legally feasible.
The appellate court added that private respondent could not be considered to have abandoned his office. His
designation as member of the Sangguniang Panlalawigan was merely temporary and not incompatible with his
position as president of the ABC of San Andres, Catanduanes.
Finally, Respondent Court deleted the award of attorney's fees for being without basis, and held that Resolution
Nos. 6 and 28 of the Sangguniang Bayan of San Andres involved a valid exercise of the powers of said local body. It
thus modified the trial court's judgment by affirming paragraph 3 and deleting the other items. Unsatisfied,
petitioners brought the present recourse. 24
Issues
The petitioner, in its memorandum, 25 submits before this Court the following issues:
I. Whether or not respondent's resignation as ex-officio member of Petitioner Sangguniang Bayan ng San
Andres, Catanduanes is deemed complete so as to terminate his official relation thereto;
II. Whether or not respondent had totally abandoned his ex-officio membership in Petitioner Sangguniang
Bayan;
III. Whether or not respondent is entitled to collect salaries similar to those received by other members of
Petitioner Sangguniang Bayan from April 8, 1992 up to date of judgment in this case by the Regional Trial
Court of Virac, Catanduanes. 26
In sum, was there a complete and effective resignation? If not, was there an abandonment of office?
This Court's Ruling
The petition is meritorious. Although the terms of office of barangay captains, including private respondent, elected
in March 1989 have expired, the Court deemed it necessary to resolve this case, as the Court of Appeals had
ordered the payment of the uncollected salaries allegedly due prior to the expiration of Respondent Antonio's term.
First Issue: Validity of Resignation
The petitioner submits that the resignation of private respondent was valid and effective despite the absence of
an express acceptance by the President of the Philippines. The letter of resignation was submitted to the secretary
of the DILG, an alter ego of the President, the appointing authority. The acceptance of respondent's resignation may
be inferred from the fact that the DILG secretary himself appointed him a member of the Sangguniang
Panlalawigan of Catanduanes. 27

In Ortiz vs. COMELEC, 28 we defined resignation as the "act of giving up or the act of an officer by which he declines his
office and renounces the further right to use it. It is an expression of the incumbent in some form, express or implied, of
the intention to surrender, renounce, and relinquish the office and the acceptance by competent and lawful authority." To
constitute a complete and operative resignation from public office, there must be: (a) an intention to relinquish a part of the
term; (b) an act of relinquishment; and (c) an acceptance by the proper authority. 29 The last one is required by reason of
Article 238 of the Revised Penal Code. 30
The records are bereft of any evidence that private respondent's resignation was accepted by the proper authority.
From the time that he was elected as punong barangay up to the time he resigned as a member of Sangguniang
Bayan, the governing law was B.P. 337 or the Local Government Code of 1983. While said law was silent as to who
specifically should accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX of
its implementing rules states that the "[r]esignation of sanggunian members shall be acted upon by
the sanggunian concerned, and a copy of the action taken shall be furnished the official responsible for appointing a
replacement and the Ministry of Local Government. The position shall be deemed vacated only upon acceptance of
the resignation."
It is not disputed that private respondent's resignation letter was addressed only to the municipal mayor of San
Andres, Catanduanes. It is indicated thereon that copies were furnished the provincial governor, the municipal
treasurer and the DILG. Neither the mayor nor the officers who had been furnished copies of said letter expressly
acted on it. On hindsight, and assuming arguendo that the aforecited Sec. 6 of Rule XIX is valid and applicable, the
mayor should have referred or endorsed the latter to the Sangguniang Bayan for proper action. In any event, there
is no evidence that the resignation was accepted by any government functionary or office.
Parenthetically, Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. (1) The sangguniang bayan shall be the legislative body of the municipality and
shall be composed of the municipal mayor, who shall be the presiding officer, the vice-mayor, who shall be
the presiding officer pro tempore, eight members elected at large, and the members appointed by the
President consisting of the resident of the katipunang bayan and the president of the kabataang barangay
municipal federation. . . . (Emphasis supplied.)
Under established jurisprudence, resignations, in the absence of statutory provisions as to whom they should be
submitted, should be tendered to the appointing person or body. 31 Private respondent, therefore, should have
submitted his letter of resignation to the President or to his alter ego, the DILG secretary. Although he supposedly
furnished the latter a copy of his letter, there is no showing that it was duly received, much less, that it was acted upon.
The third requisite being absent, there was therefore no valid and complete resignation.
Second Issue: Abandonment of Office
While we agree with Respondent Court that the resignation was not valid absent any acceptance thereof by the
proper authority, we nonetheless hold that Private Respondent Antonio has effectively relinquished his membership
in the Sangguniang Bayan due to his voluntary abandonment of said post.
Abandonment of an office has been defined as the voluntary relinquishment of an office by the holder, with the
intention of terminating his possession and control thereof. 32 Indeed, abandonment of office is a species of resignation;
while resignation in general is a formal relinquishment, abandonment is a voluntary relinquishment through
nonuser. 33 Nonuser refers to a neglect to use a privilege or a right (Cyclopedic Law Dictionary, 3rd ed.) or to exercise an
easement or an office (Black's Law Dictionary, 6th ed.).
Abandonment springs from and is accompanied by deliberation and freedom of choice. 34 Its concomitant effect is that
the former holder of an office can no longer legally repossess it even by forcible reoccupancy. 35

Clear intention to abandon should be manifested by the officer concerned. Such intention may be express or
inferred from his own conduct. 36 Thus, the failure to perform the duties pertaining to the office must be with the officer's
actual or imputed intention to abandon and relinquish the office. 37 Abandonment of an office is not wholly a matter of
intention; it results from a complete abandonment of duties of such a continuance that the law will infer a
relinquishment. 38Therefore, there are two essential elements of abandonment: first, an intention to abandon and, second,
an overt or "external" act by which the intention is carried into effect. 39
Petitioner argues that the following clearly demonstrate private respondent's abandonment of his post in
the Sangguniang Bayan:
Admittedly, the designation of respondent as member of the Sangguniang Panlalawigan of Catanduanes
was worded "temporary," but his acts more than clearly established his intention to totally abandon his office,
indicating an absolute relinquishment thereof. It bears to emphasize that respondent actually tendered his
resignation and subsequently accepted an ex-officio membership in the Sangguniang Panlalawigan of
Catanduanes. He performed his duties and functions of said office for almost two (2) years, and was
completely aware of the appointment and assumption on July 18, 1990 of Nenito F. Aquino, who was then
Vice-President of the Association of Barangay Councils (ABC) of San Andres, Catanduanes, as exofficio member of petitioner Sangguniang Bayan representing the ABC.
xxx xxx xxx
Moreover, it may be well-noted that ABC Vice President Nenito Aquino assumed respondent's former
position for twenty (20) months, without him questioning the term of office of the former if indeed
respondent's designation as ex-officio member of the Sangguniang Panlalawigan was only temporary.
Likewise, for almost eight (8) months after knowledge of the decision in Taule vs. Santos, et al., Ibid.,
nullifying his designation as representative to the Sangguniang Panlalawigan, respondent opted to remain
silent, and in fact failed to seasonably act for the purpose of reassuming his former position. Evidently,
respondent had clearly abandoned his former position by voluntary relinquishment of his office through nonuser. 40 [Emphasis supplied.]
We agree with petitioner. Indeed, the following clearly manifest the intention of private respondent to abandon his
position: (1) his failure to perform his function as member of the Sangguniang Bayan, (2) his failure to collect the
corresponding remuneration for the position, (3) his failure to object to the appointment of Aquino as his
replacement in the Sangguniang Bayan, (4) his prolonged failure to initiate any act to reassume his post in
the Sangguniang Bayan after the Supreme Court had nullified his designation to the Sangguniang Panlalawigan.
On the other hand, the following overt acts demonstrate that he had effected his intention: (1) his letter of
resignation from the Sangguniang
Bayan, 41 (2) his assumption of office as member of the Sangguniang Panlalawigan, (3) his faithful discharge of his duties
and functions as member of said Sanggunian, and (4) his receipt of the remuneration for such post.
It must be stressed that when an officer is "designated" to another post, he is usually called upon to discharge duties
in addition to his regular responsibilities. Indeed, his additional responsibilities are prescribed by law to inhere, as it
were, to his original position. A Supreme Court justice, for instance, may be designated member of the House of
Representatives Electoral Tribunal. In some cases, a public officer may be "designated" to a position in an acting
capacity, as when an undersecretary is tasked to discharge the functions of a secretary for a temporary period. 42 In
all cases, however, the law does not require the public servant to resign from his original post. Rather, the law allows him
to concurrently discharge the functions of both offices.
Private respondent, however, did not simultaneously discharge the duties and obligations of both positions. Neither
did he, at that time, express an intention to resume his office as member of the Sangguniang Bayan. His overt acts,
silence, inaction and acquiescence, when Aquino succeeded him to his original position, show that Antonio had

abandoned the contested office. His immediate and natural reaction upon Aquino's appointment should have been
to object or, failing to do that, to file appropriate legal action or proceeding. But he did neither. It is significant that he
expressed his intention to resume office only on March 31, 1992, after Aquino had been deemed resigned on March
23, 1992, and months after this Court had nullified his "designation" on August 12, 1991. From his passivity, he is
deemed to have recognized the validity of Aquino's appointment and the latter's discharge of his duties as a
member of the Sangguniang Bayan.
In all, private respondent's failure to promptly assert his alleged right implies his loss of interest in the position. His
overt acts plainly show that he really meant his resignation and understood its effects. As pointed out by the eminent
American commentator, Mechem. 43
Public offices are held upon the implied condition that the officer will diligently and faithfully execute the duties
belonging to them, and while a temporary or accidental failure to perform them in a single instance or during a
short period will not operate as an abandonment, yet if the officer refuses or neglects to exercise the functions of
the office for so long a period as to reasonably warrant the presumption that he does not desire or intend to
perform the duties of the office at all, he will be held to have abandoned it, not only when his refusal to perform
was willful, but also where, while he intended to vacate the office, it was because he in good faith but mistakenly
supposed he had no right to hold it.

Lastly, private respondent, who remained ABC president, claims the legal right to be a member of the Sangguniang
Bayan by virtue of Section 146 of B.P. Blg. 337. However, his right thereto is not self-executory, for the law itself
requires another positive act an appointment by the President or the secretary of local government per E.O.
342. 44 What private respondent could have done in order to be able to reassume his post after Aquino's resignation was
to seek a reappointment from the President or the secretary of local government. By and large, private respondent cannot
claim an absolute right to the office which, by his own actuations, he is deemed to have relinquished. 45
We reiterate our ruling in Aparri vs. Court of Appeals: 46
A public office is the right, authority, and duty created and conferred by law, by which for a given period, either
fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the
sovereign functions of the government, to be exercised by him for the benefit of the public . . . The 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 . . . 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 . . .

Third Issue: Salary

Having ruled that private respondent had voluntarily abandoned his post at the Sangguniang Bayan, he cannot be
entitled to any back salaries. Basic is the "no work, no pay" 47 rule. A public officer is entitled to receive compensation
for services actually rendered for as long as he has the right to the office being claimed. 48 When the act or conduct of a
public servant constitutes a relinquishment of his office, he has no right to receive any salary incident to the office he had
abandoned. 49
WHEREFORE, the petition is GRANTED and the Assailed Decision is REVERSED and SET ASIDE. No costs.
SO ORDERED.

*** G.R. No. 134213

July 20, 1999

ROMEO J. GAMBOA, JR., petitioner,

vs.
MARCELO AGUIRRE, JR., and JUAN Y. ARANETA, respondents.

YNARES-SANTIAGO, J.:

The query herein is purely legal. May an incumbent Vice-Governor, while concurrently the Acting Governor, continue
to preside over the sessions of the Sangguniang Panlalawigan (SP)?

The facts are not in dispute.1wphi1.nt

In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre, Jr.,
and Juan Y. Araneta were elected Negros Occidental Governor, Vice-Governor and SP members, respectively.
Sometime in August of 1995, the governor designated petitioner as Acting Governor for the duration of the former's
official trip abroad until his return. When the SP held its regular session on September 6, 1995, respondents
questioned the authority of petitioner to preside therein in view of his designation as Acting Governor and asked him
to vacate the Chair. The latter, however, refused to do so. In another session, seven (7) members of the SP voted to
allow petitioner to continue presiding while four (4) others voted against with one (1) abstention. On September 22,
1995, respondents filed before the lower court a petition for declatory relief and prohibition. In the meantime, on
October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared
petitioner as "temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the
Acting Governor." 1 Aggrieved, petitioner filed a petition for review raising the issue earlier mentioned. Although this
case is dismissible for having become moot and academic considering the expiration in 1998 of the terms of office
of the local officials involved herein, the Court nonetheless proceeds to resolve this common controversy but novel
issue under the existing laws on local government.

Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local Government Code of 1991,
provide that the Vice-Governor shall be the presiding officer of the SP. 2 In addition to such function, he "become(s)"
3 the Governor and "assume(s)" 4 the higher office for the unexpired term of his predecessor, in case of "permanent
vacancy" therein. When the vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise
the powers (subject to certain limitations) and perform the duties and functions" 5 of the Governor. It may be noted
that the code provides only for modes of succession in case of permanent vacancy in the office of the Governor and
the Vice-Governor (whether single or simultaneously) as well as in case of a temporary vacancy in the office of the
Governor. But, no such contingency is provided in case of temporary vacancy in the office of the Vice-Governor, just
like the 1983 Local Government Code. 6

It is correct that when the Vice-Governor exercises the "powers and duties" of the Office of the Governor, he does
not assume the latter office. He only "acts" as the Governor but does not "become" the Governor. His assumption of
the powers, duties and functions of the provincial Chief Executive does not create a permanent vacuum or vacancy
in his position as the Vice-Governor. Necessarily, he does not relinquish nor abandon his position and title as ViceGovernor by merely becoming an Acting Governor, (not Governor) or by merely exercising the powers and duties of
the higher officer. But the problem is, while in such capacity, does he temporarily relinquish the powers, functions,
duties and responsibilities of the Vice-Governor, including the power to preside over the sessions of the SP?

Sad to say the new Local Government Code is silent on this matter, yet this query should be answered in the
positive. A Vice-Governor who is concurrently an Acting Governor is actually a quasi-Governor. This means, that for
purposes of exercising his legislative prerogatives and powers, he is deemed as a non-member of the SP for the
time being. By tradition, the offices of the provincial Governor and Vice-Governor are essentially executive in nature,
whereas plain members of the provincial board perform functions partaking of a legislative character. This is
because the authority vested by law in the provincial boards involves primarily a delegation of some legislative
powers of Congress. 7 Unlike under the old Code, where the Governor is not only the provincial Chief Executive, 8
but also the presiding officer of the local legislative body, 9 the new Code delineated the union of the executivelegislative powers in the provincial, city and municipal levels except in the Barangay. Under R.A. 7160, the Governor
was deprived of the power to preside over the SP and is no longer considered a member thereof. 10 This is clear
from the law, when it provides that "local legislative power shall be vested in the
SP," 11 which is "the legislative body of the province," and enumerates therein membership consisting of the:

1.)

Vice-Governor, as presiding officer,

2.)

regular elective SP members,

3.)

three elective sectoral representatives, and

4.)

those ex-officio members, namely:

a.)

president of the provincial chapter of the liga ng mga barangay,

b.)

president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.)

president of the provincial federation of sangguniang members of municipalities and component cities. 12

None being included in the enumeration, the Governor is deemed excluded applying the rule in legal hermeneutics
that when the law enumerates, the law necessarily excludes. On the contrary, local executive power in the province
is vested alone in the Governor. 13 Consequently, the union of legislative-executive powers in the office of the local
chief executive under the former Code has been disbanded, so that either department now comprises different and
non-intermingling official personalities with the end in view of ensuring a better delivery of public service and provide
a system of check and balance between the two.

It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-Mayor should
discharge the duties of the mayor during the latter's absence. 14 This doctrine should equally apply to the ViceGovernor since he is similarly situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what
constitutes absence, yet this term should be reasonably construed to mean "effective" absence, 15 that is, one that
renders the officer concerned powerless, for the time being, to discharge the powers and prerogatives of his office.
16 There is no vacancy whenever the office is occupied by a legally qualified incumbent. A sensu contrario, there is
a vacancy when there is no person lawfully authorized to assume and exercise at present the duties of the office. 17
By virtue of the foregoing definition, it can be said that the designation, appointment or assumption of the ViceGovernor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-Governor
during such contingency. Considering the silence of the law on the matter, the mode of succession provided for
permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event
of temporary vacancy occurring in the same office. 18 This is so because in the eyes of the law, the office to which
he was elected was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.

Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter
office, since the nature of the duties of the provincial Governor call for a full-time occupant to discharge them. 19
Such is not only consistent with but also appears to be the clear rationale of the new Code wherein the policy of
performing dual functions in both offices has already been abandoned. To repeat, the creation of a temporary
vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of the Vice-Governor
whenever the latter acts as Governor by virtue of such temporary vacancy. This event constitutes an "inability" on
the part of the regular presiding officer (Vice Governor) to preside during the SP sessions, which thus calls for the
operation of the remedy set in Article 49(b) of the Local Government Code concerning the election of a temporary
presiding officer. The continuity of the Acting Governor's (Vice Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity. Under Section 49(b), "(i)n the event of the inability of the regular

presiding officer to preside at the sanggunian session, the members present and constituting a quorum shall elect
from among themselves a temporary presiding officer." 20

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

*** G.R. No. 116763

April 19, 1996

GOVERNOR RODOLFO C. FARIAS and AL NACINO, petitioners,

vs.
MAYOR ANGELO N. BARBA, VICE MAYOR MANUEL S. HERNANDO and EDWARD PALAFOX, respondents.

MENDOZA, J.:p

The question in this case is: In case of a permanent vacancy in the Sangguniang Bayan caused by the cessation
from office of a member who does not belong to any political party, who can appoint the replacement and in
accordance with what procedure?

This case arose from the following facts:

Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos Norte. On March 24, 1994, he
resigned after going without leave to the United States.

To fill the vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended to the
Governor of the province, respondent Rodolfo C. Farias, the appointment of respondent Edward Palafox.

A similar recommendation for the appointment of Edward Palafox was made by the Sangguniang Bayan of San
Nicolas but the recommendation was made to Mayor Barba. The resolution, containing the recommendation, was
submitted to the Sangguniang Panlalawigan of Ilocos Norte purportedly in compliance with 56 of the Local
Government Code (R.A. No. 7160). 1

The Sangguniang Panlalawigan, purporting to act under this provision of the Local Government Code, disapproved
the resolution "for the reason that the authority and power to appoint Sangguniang Bayan members are lodged in
the Governor, and therefore, the Resolution should be addressed to the Provincial Governor." Accordingly, the
Sangguniang Panlalawigan recommended to the Governor the appointment of petitioner Al Nacino, vice Carlito
Domingo, as member of the Sangguniang Bayan of San Nicolas. On June 8, 1994, petitioner Governor appointed
petitioner Nacino and swore him in office that same day.

On the other hand, respondent Mayor Barba appointed respondent Edward Palafox to the same position on June 8,
1994. The next day, June 9, 1994, respondent Palafox took his oath as member of the Sangguniang Bayan.

On June 14, 1994, petitioners filed with the Regional Trial Court of Ilocos Norte a petition for quo warranto and
prohibition, entitled "Governor Rodolfo C. Farias and Al Nacino v. Mayor Angelo M. Barba, Vice Mayor Manuel S.
Hernando, Jr. and Edward D. Palafox."

On July 8, 1994 the trial court rendered its decision, upholding the appointment of respondent Palafox by
respondent Mayor Barba. It held:

Under the facts and circumstances as shown clearly in the case, there is no doubt the law that is applicable is subsection "C" of Section 45 of Republic Act No. 7160 otherwise known as the Local Government Code of 1991 which
provides:

In case the permanent vacancy is caused by a Sanggunian Member who does not belong to any political party, the
Local Chief Executive shall upon the recommendation of the Sanggunian concerned, appoint a qualified person to
fill the vacancy.

. . . Inasmuch as the permanent vacancy is in the Sanggunian Bayan of San Nicolas, Ilocos Norte, it is the
Sanggunian concerned referred to in the law which recommends the appointment to fill the vacancy. . . This being
so, the Local Chief Executive referred to in sub-section "C" of Section 45 of Republic Act No. 7160 is the Municipal
Mayor of San Nicolas, Ilocos Norte.

It cannot be denied that the Governor has the authority to appoint a qualified person to fill the vacancy in the
Sanggunian Bayan caused by resignation of a member thereof as that is vested in him or her by the Provision of
No. 2, Sec. 45 of Republic Act No. 7160. To the mind of the court that authority is not vested in him or her where the
permanent vacancy is caused by a Sanggunian Member who does not belong to any political party as that authority
is specifically vested upon the Local Chief Executive upon recommendation of the Sanggunian concerned as per
sub-section "C" of Section 45 of the same Republic Act No. 7160. Under No. 2 of Sec. 45 aforementioned the law
does not require a recommendation for the appointment of Sanggunian Bayan Member to fill a permanent vacancy
either from the Sangguniang Panlalawigan or from the Sanggunian Bayan. . . As such there can be no other person
referred to as the Local Chief Executive having the authority to appoint other than the Municipal Mayor of the
Municipality of the Sanggunian Bayan where there is permanent vacancy. This can be clearly inferred from the two
(2) provisions of the law (No. 2 and sub-section C of Sec. 45 of Rep. Act No. 7160). While No. 2 of Sec. 45
specifically vests the power to appoint in the Governor, sub-sec. C of Sec. 45, specifically vests the power to appoint
in the Local Chief Executive. The Local Chief Executive specifically mentioned in said sub-section C of Sec. 45 is
not the Governor, for there would have been no need for the law making body to have specifically stated in the law if
it had intended that the Governor is that one and the same Local Chief Executive vested with power to appoint.

Petitioners filed a motion for reconsideration, but this was denied by the trial court on August 18, 1994. Hence this
petition for review on certiorari.

Petitioners contend that the power to fill a vacancy in the Sangguniang Bayan, which is created as a result of the
cessation from office of a member who does not belong to a political party, is vested in the provincial governor upon
recommendation of the Sangguniang Panlalawigan.

The statutory provision in question is 45 of the Local Government Code of 1991 (R.A. No . 7160) which reads:

45. Permanent Vacancies in the Sanggunian. (a) Permanent vacancies in the sanggunian where automatic
successions provided above do not apply shall be filled by appointment in the following manner:

(1)
The President, through the Executive Secretary, in the case of the sangguniang panlalawigan and the
sangguniang panlungsod of highly urbanized cities and independent component cities;

(2)

The governor, in the case of the sangguniang panlungsod of component cities and the sangguniang bayan;

(3)
The city or municipal mayor, in the case of the sangguniang barangay, upon recommendation of the
sangguniang barangay concerned.

(b)
Except for the sangguniang barangay, only the nominee of the political party under which the sanggunian
member concerned had been elected and whose elevation to the position next higher in rank created the last
vacancy in the sanggunian shall be appointed in the manner hereinabove provided. The appointee shall come from
the same political party as that of the sanggunian member who caused the vacancy and shall serve the unexpired
term of the vacant office. In the appointment herein mentioned, a nomination and a certificate of membership of the
appointee from the highest official of the political party concerned are conditions sine qua non, and any appointment
without such nomination and certification shall be null and void ab initio and shall be a ground for administrative
action against the official responsible therefor.

(c)
In case the permanent vacancy is caused by a sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person
to fill the vacancy.

(d)
In case of vacancy in the representation of the youth and the barangay in the sanggunian, said vacancy
shall be filled automatically by the official next in rank of the organization concerned.

[1]
Since the vacancy in this case was created by a Sanggunian member who did not belong to any political
party, the specific provision involved is par. (c), to wit:

(c)
In case the permanent vacancy is caused by a sanggunian member who does not belong to any political
party, the local chief executive shall, upon recommendation of the sanggunian concerned, appoint a qualified person
to fill the vacancy.

But who is the "local chief executive" referred? And which is the "sanggunian concerned"? With respect to the first
("local chief executive"), petitioners look to 45(a) for the answer and say that it is the governor, with respect to
vacancies in the Sangguniang Panlungsod of component cities and Sangguniang Bayan, or the mayor with respect
to vacancies in the Sangguniang Barangay.

In support of this view, they cite, first of all, the following provision of the former Local Government Code (B.P. Blg.
337):

50. Permanent Vacancies in the Local Sanggunians. In case of permanent vacancy in the sangguniang
panlalawigan, sangguniang panlungsod, sangguniang bayan, or sangguniang barangay, the President of the
Philippines, upon recommendation of the Minister of Local Government, shall appoint a qualified person to fill the
vacancy in the sangguniang panlalawigan and the sangguniang panglungsod; the governor, in the case of
sangguniang bayan members; or the city or municipal mayor, in the case of sangguniang barangay members.
Except for the sangguniang barangay, the appointee shall come from the political party of the sanggunian member
who caused the vacancy, and shall serve the unexpired term of the vacant office.

and, second, the following provision of the present Code:

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;

(2)

By the governor, if the respondent is an elective official of a component city or municipality; or

(3)

By the mayor, if the respondent is an elective official of the barangay. . . .

Reference to these provisions is appropriate not for the reason advanced by petitioners, i.e., that the power to
appoint implies the power to remove, but because implicit in these provisions is a policy to vest in the President, the
governor and the mayor in descending order the exercise of an executive power whether to appoint in order to fill
vacancies in local councils or to suspend local officials. These provisions are in pari materia with 45.

To be sure the President of the Philippines can not be referred to as "local chief executive" in 45(c) but it is
apparent that the phrase is a misnomer and that the choice of this phrase was simply dictated by the need to avoid,
for stylistic reasons, interminably repeating the officials on whom the power to appoint is conferred. Perhaps
"authorities concerned" would have been a more accurate generic phrase to use.

For that matter, to follow private respondents' interpretation would be to run into a similar, if not greater, difficulty. For
45(a) (3) vests the power to fill vacancies in the Sangguniang Barangay in the mayor but the local chief executive
of a barangay is not the mayor. It is the punong barangay. Yet "local chief executive" cannot be applied to the
punong barangay without rendering 45(a) (3) meaningless. For then there would never be any occasion when the
mayor, under this provision, can appoint a replacement for a member of the Sangguniang Bayan who for one
reason or another ceases from office for reason other than the expiration of his term. And why should a vacancy in
the Sangguniang Panlalawigan be filled by a different authority (the governor, according to this view) simply
because the vacancy was created by a member who does not belong to a political party when, according to 45(a)
(1), a vacancy created by a member who belongs to a political party must be filled by appointment by the President
of the Philippines?

With reference to the phrase "sangguniang concerned" in 45(c), petitioners say it means, with respect to a vacancy
in the Sangguniang Bayan, the Sangguniang Panlalawigan. Their reason is that under 61 of the Code, the power
to investigate complaints against elective municipal officials is vested in the Sangguniang Panlalawigan:

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 a 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 sanggunian panlalawigan
whose decision may be appealed to the Office of the President;

(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.

This interpretation is inconsistent with the fact that in filling vacancies in the Sangguniang Barangay it is the
Sangguniang Barangay which under 45(a) (3) recommends the appointee, not the Sangguniang Panlungsod or the
Sangguniang Bayan, which would be the case if petitioners' view were to prevail.

We think that the phrase "sanggunian concerned" in 45(c) should more properly be understood as referring to the
Sanggunian in which the vacancy is created. This is in keeping with the policy implicit in 45(a) (3).

In other words, with the exception of the Sangguniang Barangay pars. (a) and (b) must be read as providing for the
filling of vacancies in the various Sanggunians when these vacancies are created as a result of the cessation from
office (other than expiration of term) of members who belong to political parties. On the other hand, 45(c) must be
understood as providing for the filling of vacancies created by members who do not belong to any political party.
Consequently, 45 must be construed to mean that

I.

Where the Permanent Vacancy is Caused by a Sanggunian Member Belonging to a Political Party

A.
Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities and independent
component cities The President, through the Executive Secretary, upon the nomination and certification of the
political party to which the member who caused the vacancy belonged, as provided in 45 (b).

B.
Sangguniang Panlungsod of component cities and Sangguniang Bayan The Governor upon the
nomination and certification of the political party to which the member who caused the vacancy belonged, as
provided in 45 (b).

III.

Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political Party

A.
Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and independent component
cites The President, through the Executive Secretary, upon recommendation of the Sangguniang Panlalawigan or
Sangguniang Panlungsod as the case may be

B.
Sangguniang Panlungsod of component cities and Sangguniang Bayan The Governor upon
recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as the case may be

III.
Where the Vacancy is Caused by a Member of the Sangguniang Barangay City or Municipal Mayor upon
recommendation of the Sangguniang Barangay

There is only one rule governing appointments to the Sangguniang Barangay. Any vacancy therein caused by the
cessation from office of a member must be made by the mayor upon the recommendation of that Sanggunian. The
reason is that members of the Sangguniang Barangay are not allowed to have party affiliations.

Indeed there is no reason for supposing that those who drafted 45 intended to make the manner of filling
vacancies in the Sanggunians, created by members who do not belong to any political party, different from the
manner of filling such vacancies when created by members who belong to political party or parties. The provision for
the first must approximate the provision for the second situation. Any difference in procedure must be limited to the
fact that in the case of vacancies caused by those who have political affiliations there is a party which can nominate
a replacement while there is none in the case of those who have no political affiliation. Accordingly, where there is
no political party to make a nomination, the Sanggunian, where the vacancy occurs, must be considered the
appropriate authority for making the recommendation, by analogy to vacancies created in the Sangguniang
Barangay whose members are by law prohibited from having any party affiliation.

[2]
Having determined that appointments in case of vacancies caused by Sanggunian members who do not
belong to any political party must be made in accordance with the "recommendation" of the Sanggunians concerned
where the vacancies occur, the next question is: Is the appointing authority limited to the appointment of those
"recommended" to him? We think an affirmative answer must be given to the question. The appointing authority is
not bound to appoint anyone recommended to him by the Sanggunian concerned. The power of appointment is a
discretionary power. On the other hand, neither is the appointing power vested with so large a discretion that he can
disregard the recommendation of the Sanggunian concerned, Since the recommendation takes the place of
nomination by political party, the recommendation must likewise be considered a condition sine qua non for the
validity of the appointment, by analogy to the provision of 45(b).

[3]
The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor respondent Edward
Palafox was appointed in the manner indicated in the preceding discussion, neither is entitled to the seat in the
Sangguniang Bayan of San Nicolas, Ilocos Norte which was vacated by member Carlito B. Domingo. For while
petitioner Al Nacino was appointed by the provincial governor, he was not recommended by the Sangguniang Bayan
of San Nicolas. On the other hand, respondent Edward Palafox was recommended by the Sangguniang Bayan but it
was the mayor and not the provincial governor who appointed him.

WHEREFORE, the decision of the Regional Trial Court of Ilocos Norte, insofar as it dismisses petitioners' action for
quo warranto and prohibition, is AFFIRMED, but for different reasons from those given by the trial court in its
decision.

SO ORDERED.