BERSAMIN CASES 2012

G.R. No. 153569 January 24, 2012

LOLITA S. CONCEPCION, Petitioner,

vs.
MINEX IMPORT CORPORATION/MINERAMA CORPORATION, KENNETH MEYERS,
SYLVIA P. MARIANO, and VINA MARIANO, Respondents.

DECISION

BERSAMIN, J.:

The employer may validly dismiss for loss of trust and confidence an employee who
commits an act of fraud prejudicial to the interest of the employer. Neither a criminal
prosecution nor a conviction beyond reasonable doubt for the crime is a requisite for the
validity of the dismissal. Nonetheless, the dismissal for a just or lawful cause must still
be made upon compliance with the requirements of due process under the Labor Code;
otherwise, the employer is liable to pay nominal damages as indemnity to the dismissed
employee.

Antecedents

Respondent Minex Import-Export Corporation (Minex) engaged in the retail of semi-

precious stones, selling them in kiosks or stalls installed in various shopping centers
within Metro Manila. It employed the petitioner initially as a salesgirl, 1 rotating her
assignment among nearly all its outlets. It made her a supervisor in July 1997, but did
not grant her any salary increase. On October 23, 1997, respondent Vina Mariano, an
Assistant Manager of Minex, assigned the petitioner to the SM Harrison Plaza kiosk with
the instruction to hold the keys of the kiosk. Working under her supervision there were
salesgirls Cristina Calung and Lida Baquilar.

On November 9, 1997, a Sunday, the petitioner and her salesgirls had sales of crystal
items totaling P39,194.50. At the close of business that day, they conducted a cash-
count of their sales proceeds, including those from the preceding Friday and Saturday,
and determined their total for the three days to be P50,912.00. The petitioner wrapped
the amount in a plastic bag and deposited it in the drawer of the locked wooden cabinet
of the kiosk.

At about 9:30 am of November 10, 1997, the petitioner phoned Vina Mariano to report
that the P50,912.00 was missing, explaining how she and her salesgirls had placed the
wrapped amount at the bottom of the cabinet the night before, and how she had found
upon reporting to work that morning that the contents of the cabinet were in disarray
and the money already missing.

Later, while the petitioner was giving a detailed statement on the theft to the security
investigator of Harrison Plaza, Vina and Sylvia Mariano, her superiors, arrived with a
policeman who immediately placed the petitioner under arrest and brought her to
Precinct 9 of the Malate Police Station. There, the police investigated her. She was
detained for a day, from 11:30 am of November 10, 1997 until 11:30 am of November
11, 1997, being released only because the inquest prosecutor instructed so.

On November 12, 1997, the petitioner complained against the respondents for illegal
dismissal in the Department of Labor and Employment.

On November 14, 1997, Minex, through Vina, filed a complaint for qualified theft against
the petitioner in the Office of the City Prosecutor in Manila.

To the charge of qualified theft, the petitioner insisted on her innocence, reiterating that
on November 9, 1997 she, together with Calung and Baquilar, had first counted the
cash before placing it in a plastic bag that she deposited inside the drawer of the
cabinet with the knowledge of Calung and Baquilar. She explained that on that night
Baquilar had left for home ahead, leaving her and Calung to close the kiosk at around
8:00 pm; that at exactly 8:01 pm she proceeded to SM Department Store in Harrison
Plaza to wait for her friends whom she had previously walked with to the LRT station;
that she noticed upon arriving at the kiosk the next morning that the cabinet that they
had positioned to block the entrance of the kiosk had been slightly moved; and that she
then discovered upon opening the cabinet that its contents, including the cash, were
already missing.

Calung executed a sinumpaang salaysay, however, averring that she had left the
petitioner alone in the kiosk in the night of November 9, 1997 because the latter had still
to change her clothes; and that that was the first time that the petitioner had ever asked
to be left behind, for they had previously left the kiosk together.

Vina declared that the petitioner did not call the office of Minex for the pick-up of
the P39,194.50 cash sales on Sunday, November 9, 1997, in violation of the standard
operating procedure (SOP) requiring cash proceeds exceeding P10,000.00 to be
reported for pick-up if the amount could not be deposited in the bank.

After the preliminary investigation, the Assistant Prosecutor rendered a resolution dated
February 4, 1998 finding probable cause for qualified theft and recommending the filing
of an information against the petitioner.2 Thus, she was charged with qualified theft in
the Regional Trial Court (RTC) in Manila, docketed as Criminal Case No. 98-165426.

The petitioner appealed by petition for review to the Department of Justice (DOJ), but
the DOJ Secretary denied her petition for review on July 4, 2001. 3

As to the petitioners complaint for illegal dismissal, Labor Arbiter Jose G. de Vera
rendered his decision dated December 15, 1998, viz:4

WHEREFORE, all the foregoing considered, judgment is hereby rendered in favor of the
complainant and against the respondents declaring the dismissal of the latter from work
illegal and ordering her reinstatement to her former work position with full backwages
counted from November 10, 1997 until her actual reinstatement without loss of seniority
or other employees rights and benefits.

Respondents are likewise ordered to pay complainant her monetary claims above as
well as moral damages of P50,000.00 and exemplary damages of P20,000.00.

Lastly, respondents are liable to pay ten percent (10%) of the total award as and by way
of payment of attorneys fees.

SO ORDERED.

On appeal by the respondents, the National Labor Relations Commission (NLRC)

reversed the decision of the Labor Arbiter on December 28, 2000, declaring that the
petitioner had not been dismissed, but had abandoned her job after being found to have
stolen the proceeds of the sales; and holding that even if she had been dismissed, her
dismissal would be justifiable for loss of trust and confidence in the light of the finding of
probable cause by the DOJ and the City Prosecutor and the filing of the information for
qualified theft against her.5

The NLRC deleted the awards of backwages, service incentive leave pay, holiday pay
and 13th month pay, moral and exemplary damages and attorneys fees, opining that
the petitioner would be entitled to an award of damages only when the dismissal was
shown to be effected in bad faith or fraud or was an act oppressive to labor, or was
done in a manner contrary to good morals, good customs, or public policy.6

After the NLRC denied her motion for reconsideration on March 16, 2001, the petitioner
challenged the reversal by the NLRC in the Court of Appeals (CA) on certiorari, claiming
that the NLRC thereby committed grave abuse of discretion amounting to excess of
jurisdiction for finding that there had been lawful cause to dismiss her; and insisting that
the NLRC relied on mere suspicions and surmises, disregarding not only her
explanations that, if considered, would have warranted a judgment in her favor but even
the findings and disquisitions of the Labor Arbiter, which were in full accord with
pertinent case law.

On December 20, 2001,7 however, the CA sustained the NLRC mainly because of the
DOJ Secretarys finding of probable cause for qualified theft, holding:

With the finding of probable cause not only by the Investigating Prosecutor but by the
Secretary of Justice no less, it cannot be validly claimed, as the Petitioner does, in her
Petition at bench, that there is no lawful cause for her dismissal. The felony of qualified
theft involves moral turpitude.

"Respondent cannot use social justice to shield wrongdoing. He occupied a position of

trust and confidence. Petitioner relied on him to protect the properties of the company.
Respondent betrayed this trust when he ordered the subject lamp posts to be delivered
to the Adelfa Homeowners Association. The offense he committed involves moral
turpitude. Indeed, a City Prosecutor found probable cause to file an information for
qualified theft against him." (United South Dockhandlers, Inc., versus NLRC, et al., 267
SCRA 401, at page 407, supra)

Admittedly, there is no direct evidence that the Petitioner took the money from the
drawer in the cabinet in the Kiosk. But direct evidence that the Petitioner took the
money is not required for the Petitioner to be lawfully dismissed for the loss of the
money of the Private Respondent corporation. If circumstantial evidence is sufficient on
which to anchor a judgment of conviction in criminal cases under Section 4, Rule 133 of
the Revised Rules of Evidence, there is no cogent reason why circumstantial evidence
is not sufficient on which to anchor a factual basis for the dismissal of the Petitioner for
loss of confidence.

IN THE LIGHT OF ALL THE FOREGOING, the Petition at bench is denied due course
and is hereby DISMISSED.

SO ORDERED.

On May 13, 2002, the CA denied the petitioners motion for reconsideration. 8

Issues

In her appeal, the petitioner submits that:

THE COURT OF APPEALS ERRED IN FINDING THAT THERE WAS NO ILLEGAL

DISMISSAL IN THE CASE AT BAR, PARTICULARLY IN FINDING THAT:
 1. THERE WAS JUST CAUSE FOR HER DISMISSAL, AND

2. RESPONDENT NEED NOT AFFORD THE PETITIONER DUE PROCESS TO

PETITIONER.

Ruling

The petition lacks merit.

The decisive issue for resolution is whether or not the petitioner was terminated for a
just and valid cause.

To dismiss an employee, the law requires the existence of a just and valid cause. Article
282 of the Labor Code enumerates the just causes for termination by the employer: (a)
serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or the latters representative in connection with the employees work; (b) gross
and habitual neglect by the employee of his duties; (c) fraud or willful breach by the
employee of the trust reposed in him by his employer or his duly authorized
representative; (d) commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the foregoing.

The NLRC held that the termination of the petitioner was due to loss of trust and
confidence. Sustaining the NLRC, the CA stated:

With the finding of probable cause not only by the investigating prosecutor but by the
Secretary of Justice no less, it cannot be validly claimed, as the Petitioner does, in her
Petition at bench, that there is no lawful cause for her dismissal xxx.

xxx

Admittedly, there is no direct evidence that the Petitioner took the money from the
drawer in the cabinet in the Kiosk. But direct evidence that the Petitioner took the
money is not required for the Petitioner to be lawfully dismissed for the loss of the
money of the Private Respondent corporation. If circumstantial evidence is sufficient on
which to anchor a judgment of conviction in criminal cases under Section 4, Rule 133 of
the Revised Rules of Evidence, there is no cogent reason why circumstantial evidence
is not sufficient on which to anchor a factual basis for the dismissal of the Petitioner for
loss of confidence.9
The petitioner still argues, however, that there was no evidence at all upon which Minex
could validly dismiss her considering that she had not yet been found guilty beyond
reasonable doubt of the crime of qualified theft.

The petitioners argument is not novel. It has been raised and rejected many times
before on the basis that neither conviction beyond reasonable doubt for a crime against
the employer nor acquittal after criminal prosecution was indispensable. Nor was a
formal charge in court for the acts prejudicial to the interest of the employer a pre-
requisite for a valid dismissal.

In its1941 ruling in National Labor Union, Inc. v. Standard Vacuum Oil Company,10 the
Court expressly stated thus:

xxx The conviction of an employee in a criminal case is not indispensable to warrant his
dismissal by his employer. If there is sufficient evidence to show that the employee has
been guilty of a breach of trust, or that his employer has ample reason to distrust him, it
cannot justly deny to the employer the authority to dismiss such employee. All that is
incumbent upon the Court of Industrial Relations (now National Labor Relations
Commission) to determine is whether the proposed dismissal is for just cause xxx. It is
not necessary for said court to find that an employee has been guilty of a crime beyond
reasonable doubt in order to authorize his dismissal. (Emphasis supplied)

In Philippine Long Distance Telephone Co.(BLTB Co.) vs. NLRC, 11 the Court held that
the acquittal of the employee from the criminal prosecution for a crime committed
against the interest of the employer did not automatically eliminate loss of confidence as
a basis for administrative action against the employee; and that in cases where the acts
of misconduct amounted to a crime, a dismissal might still be properly ordered
notwithstanding that the employee was not criminally prosecuted or was acquitted after
a criminal prosecution.

In Batangas Laguna Tayabas Bus Co. v. NLRC, 12 the Court explained further, as
follows:

Fraud or willful breach of trust reposed upon an employee by his employer is a

recognized cause for termination of employment and it is not necessary that the
employer should await the employees final conviction in the criminal case involving
such fraud or breach of trust before it can terminate the employees services. In
fact, even the dropping of the charges or an acquittal of the employee therefrom does
not preclude the dismissal of an employee for acts inimical to the interests of the
employer.
To our mind, the criminal charges initiated by the company against private respondents
and the finding after preliminary investigation of their prima facie guilt of the offense
charged constitute substantial evidence sufficient to warrant a finding by the Labor
Tribunal of the existence of a just cause for their termination based on loss of trust and
confidence. The Labor Tribunal need not have gone further as to require private
respondents conviction of the crime charged, or inferred innocence on their part from
their release from detention, which was mainly due to their posting of bail. (Emphasis
supplied)

Indeed, the employer is not expected to be as strict and rigorous as a judge in a criminal
trial in weighing all the probabilities of guilt before terminating the employee. Unlike a
criminal case, which necessitates a moral certainty of guilt due to the loss of the
personal liberty of the accused being the issue, a case concerning an employee
suspected of wrongdoing leads only to his termination as a consequence. The quantum
of proof required for convicting an accused is thus higher proof of guilt beyond
reasonable doubt than the quantum prescribed for dismissing an employee
substantial evidence. In so stating, we are not diminishing the value of employment, but
only noting that the loss of employment occasions a consequence lesser than the loss
of personal liberty, and may thus call for a lower degree of proof.

It is also unfair to require an employer to first be morally certain of the guilt of the
employee by awaiting a conviction before terminating him when there is already
sufficient showing of the wrongdoing. Requiring that certainty may prove too late for the
employer, whose loss may potentially be beyond repair. Here, no less than the DOJ
Secretary found probable cause for qualified theft against the petitioner. That finding
was enough to justify her termination for loss of confidence. To repeat, her responsibility
as the supervisor tasked to oversee the affairs of the kiosk, including seeing to the
secure handling of the sales proceeds, could not be ignored or downplayed. The
employers loss of trust and confidence in her was directly rooted in the manner of how
she, as the supervisor, had negligently handled the large amount of sales by simply
leaving the amount inside the cabinet drawer of the kiosk despite being aware of the
great risk of theft. At the very least, she could have resorted to the SOP of first seeking
guidance from the main office on how to secure the amount if she could not deposit in
the bank due to that day being a Sunday.

Yet, even as we now say that the respondents had a just or valid cause for terminating
the petitioner, it becomes unavoidable to ask whether or not they complied with the
requirements of due process prior to the termination as embodied in Section 2 ( d) of
Rule I of the Implementing Rules of Book VI of the Labor Code, viz:

Section 2. Security of tenure. xxx

xxx

(d) In all cases of termination of employment, the following standards of due process
shall be substantially observed:

For termination of employment based on just causes as defined in Article 282 of the
Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for
termination, and giving said employee reasonable opportunity within which to
explain his side.

(ii) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to the
charge, present his evidence, or rebut the evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon
due consideration of all the circumstances, grounds have been established to
justify his termination. (emphasis supplied)

xxx

We answer the query in the negative in the light of the circumstances of the petitioners
termination set forth in her affidavit, to wit:

xxx

14. While I was giving my statement to the security officer of the Mall, respondents Vina
and Sylvia Mariano came with a policeman and they brought me to Precinct 9, Malate
Police Station. Cristina Calung also arrived and together with the sister of Vina and
Sylvia, they operated the booth as if nothing happened;

15. I was detained at the police station from 11:15 a.m., November 10, up to 11:30 a.m.,
November 11, 1997;

16. After my release from the police precinct, I contacted by phone our office and I was
able to talk to respondent Sylvia Mariano. I told her that since I was innocent of the
charges they filed against me, I will report back to work. She shouted at me on the
phone and told me she no longer wanted to see my face. I therefore decided to file a
complaint for illegal dismissal against respondents with the NLRC, hence this present
suit; (emphasis supplied) 13
xxx

The petitioner plainly demonstrated how quickly and summarily her dismissal was
carried out without first requiring her to explain anything in her defense as demanded
under Section 2 (d) of Rule I of the Implementing Rules of Book VI of the Labor Code.
Instead, the respondents forthwith had her arrested and investigated by the police
authorities for qualified theft. This, we think, was a denial of her right to due process of
law, consisting in the opportunity to be heard and to defend herself. 14 In fact, their
decision to dismiss her was already final even before the police authority commenced
an investigation of the theft, the finality being confirmed by no less than Sylvia Mariano
herself telling the petitioner during their phone conversation following the latters release
from police custody on November 11, 1997 that she (Sylvia) "no longer wanted to see"
her.

The fact that the petitioner was the only person suspected of being responsible for the
theft aggravated the denial of due process. When the respondents confronted her in the
morning of November 10, 1997 for the first time after the theft, they brought along a
police officer to arrest and hale her to the police precinct to make her answer for the
theft. They evidently already concluded that she was the culprit despite a thorough
investigation of the theft still to be made. This, despite their obligation under Section 2
(d) of Rule I of the Implementing Rules of Book VI of the Labor Code, firstly, to give her
a "reasonable opportunity within which to explain (her) side;" secondly, to set a "hearing
or conference during which the employee concerned, with the assistance of counsel if
(she) so desires is given opportunity to respond to the charge, present (her) evidence,
or rebut the evidence presented against (her);" and lastly, to serve her a "written notice
of termination xxx indicating that upon due consideration of all the circumstances,
grounds have been established to justify (her) termination." They wittingly shunted aside
the tenets that mere accusation did not take the place of proof of wrongdoing, and that a
suspicion or belief, no matter how sincere, did not substitute for factual findings carefully
established through an orderly procedure.15

The fair and reasonable opportunity required to be given to the employee before
dismissal encompassed not only the giving to the employee of notice of the cause and
the ability of the employee to explain, but also the chance to defend against the
accusation. This was our thrust in Philippine Pizza, Inc. v. Bungabong,16 where we held
that the employee was not afforded due process despite the dismissal being upon a just
cause, considering that he was not given a fair and reasonable opportunity to confront
his accusers and to defend himself against the charge of theft notwithstanding his
having submitted his explanation denying that he had stolen beer from the company
dispenser. The termination letter was issued a day before the employee could go to the
HRD Office for the investigation, which made it clear to him that the decision to
terminate was already final even before he could submit his side and refute the charges
against him. Nothing that he could say or do at that point would have changed the
decision to dismiss him. Such omission to give the employee the benefit of a hearing
and investigation before his termination constituted an infringement of his constitutional
right to due process by the employer.

The respondents would further excuse their failure to afford due process by averring
that "even before the respondents could issue the petitioner any formal written
memorandum requiring her to explain the loss of the P50,912.00 sales proceeds xxx
she went post haste to the NLRC and filed a case for illegal dismissal" in order to "beat
the gun on respondents."17 However, we cannot excuse the non-compliance with the
requirement of due process on that basis, considering that her resort to the NLRC came
after she had been told on November 11, 1997 by Sylvia that she (Sylvia) "no longer
wanted to see" her. The definitive termination closed the door to any explanation she
would tender. Being afforded no alternative, she understandably resorted to the
complaint for illegal dismissal.

In view of the foregoing, we impose on the respondents the obligation to pay to the
petitioner an indemnity in the form of nominal damages of P30,000.00, conformably
with Agabon v. NLRC,18 where the Court said:

Where the dismissal is for a just cause, as in the instant case, the lack of statutory due
process should not nullify the dismissal, or render it illegal, or ineffectual. However, the
employer should indemnify the employee for the violation of his statutory rights, as ruled
in Reta v. National Labor Relations Commission. The indemnity to be imposed should
be stiffer to discourage the abhorrent practice of "dismiss now, pay later," which we
sought to deter in the Serrano ruling. The sanction should be in the nature of
indemnification or penalty and should depend on the facts of each case, taking into
special consideration the gravity of the due process violation of the employer.

Under the Civil Code, nominal damages is adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be vindicated or
recognized, and not for the purpose of indemnifying the plaintiff for any loss suffered by
him.1avvphi1

As enunciated by this Court in Viernes v. National Labor Relations Commissions, an

employer is liable to pay indemnity in the form of nominal damages to an employee who
has been dismissed if, in effecting such dismissal, the employer fails to comply with the
requirements of due process. The Court, after considering the circumstances therein,
fixed the indemnity at P2,590.50, which was equivalent to the employees one month
salary. This indemnity is intended not to penalize the employer but to vindicate or
recognize the employees right to statutory due process which was violated by the
employer.

The violation of the petitioners right to statutory due process by the private respondent
warrants the payment of indemnity in the form of nominal damages. The amount of such
damages is addressed to the sound discretion of the court, taking into account the
relevant circumstances. Considering the prevailing circumstances in the case at bar, we
deem it proper to fix it at P30,000.00. We believe this form of damages would serve to
deter employers from future violations of the statutory due process rights of employees.
At the very least, it provides a vindication or recognition of this fundamental right
granted to the latter under the Labor Code and its Implementing Rules. (emphasis is in
the original text)

WHEREFORE, the Court AFFIRMS the decision promulgated on December 20, 2001
by the Court of Appeals, but ORDERS the respondents to pay to the petitioner an
indemnity in the form of nominal damages of P30,000.00 for non-compliance with the
requirements of due process.

No pronouncement as to costs of suit.

SO ORDERED.
G.R. No. 194139 January 24, 2012

DOUGLAS R. CAGAS, Petitioner,

vs.
THE COMMISSION ON ELECTIONS, AND CLAUDE P. BAUTISTA, Respondents.

DECISION

BERSAMIN, J.:

A party aggrieved by an interlocutory order issued by a Division of the Commission on

Elections (COMELEC) in an election protest may not directly assail the order in this
Court through a special civil action for certiorari. The remedy is to seek the review of the
interlocutory order during the appeal of the decision of the Division in due course.

For resolution is the petition for certiorari brought under Rule 64 of the Rules of Court,
assailing the order dated August 13, 2010 (denying the affirmative defenses raised by
the petitioner),1 and the order dated October 7, 2010 (denying his motion for
reconsideration),2 both issued by the COMELEC First Division in EPC No. 2010-42, an
election protest entitled Claude P. Bautista, protestant v. Douglas R. Cagas, protestee.3

Antecedents

The petitioner and respondent Claude P. Bautista (Bautista) contested the position of
Governor of the Province of Davao del Sur in the May 10, 2010 automated national and
local elections. The fast transmission of the results led to the completion by May 14,
2010 of the canvassing of votes cast for Governor of Davao del Sur, and the petitioner
was proclaimed the winner (with 163,440 votes), with Bautista garnering 159,527
votes.4

Alleging fraud, anomalies, irregularities, vote-buying and violations of election laws,

rules and resolutions, Bautista filed an electoral protest on May 24, 2010 (EPC No.
2010-42).5 The protest was raffled to the COMELEC First Division.

In his answer submitted on June 22, 2010, 6 the petitioner averred as his special
affirmative defenses that Bautista did not make the requisite cash deposit on time; and
that Bautista did not render a detailed specification of the acts or omissions complained
of.

On August 13, 2010, the COMELEC First Division issued the first assailed order
denying the special affirmative defenses of the petitioner, 7 viz:
After careful examination of the records of the case, this Commission (First Division)
makes the following observation:

1. Protestant paid the cash deposit amounting to one hundred thousand pesos
(P100,000.00) on June 3, 2010 as evidenced by O.R. No. 1118105; and

2. Paragraph nos. 9 to 28 of the initiatory petition filed by the Protestant set forth the
specific details of the acts and omissions complained of against the Protestee.

It is therefore concluded that the payment by the Protestant on June 3, 2010 is a

substantial compliance with the requirement of COMELEC Resolution No. 8804, taking
into consideration Section 9(e), Rule 6 of said Resolution. Furthermore, the Protestant
has likewise essentially complied with Section 7(g), Rule 6 of the above-mentioned
Resolution.

In view of the foregoing, this Commission (First Division) RESOLVES to DENY the
Protestees special affirmative defenses.

SO ORDERED.8

The petitioner moved to reconsider on the ground that the order did not discuss whether
the protest specified the alleged irregularities in the conduct of the elections, in violation
of Section 2, paragraph 2,9 Rule 19 of COMELEC Resolution No. 8804, 10 requiring all
decisions to clearly and distinctly express the facts and the law on which they were
based; and that it also contravened Section 7(g), 11 Rule 6 of COMELEC Resolution No.
8804 requiring a detailed specification of the acts or omissions complained of. He
prayed that the matter be certified to the COMELEC en banc pursuant to Section
1,12 Section 5,13 and Section 6,14 all of Rule 20 of COMELEC Resolution No. 8804.

The petitioner insisted that COMELEC Resolution No. 8804 had introduced the
requirement for the "detailed specification" to prevent "shotgun fishing expeditions by
losing candidates;"15 that such requirement contrasted with Rule 6, Section 1 of the
1993 COMELEC Rules of Procedure,16 under which the protest needed only to contain
a "concise statement of the ultimate facts" constituting the cause or causes of action;
that Bautistas protest did not meet the new requirement under COMELEC Resolution
No. 8804; and that in Pea v. House of Representatives Electoral Tribunal, 17 the Court
upheld the dismissal of a protest by the House of Representatives Electoral Tribunal
(HRET) for not specifically alleging the electoral anomalies and irregularities in the May
8, 1995 elections.
In his opposition,18 Bautista countered that the assailed orders, being merely
interlocutory, could not be elevated to the COMELEC en banc pursuant to the ruling
in Panlilio v. COMELEC;19 that the rules of the COMELEC required the initiatory petition
to specify the acts or omissions constituting the electoral frauds, anomalies and election
irregularities, and to contain the ultimate facts upon which the cause of action was
based; and that Pea v. House of Representatives Electoral Tribunal did not apply
because, firstly, Pea had totally different factual antecedents than this case, and,
secondly, the omission of material facts from Peas protest prevented the protestee
(Alfredo E. Abueg, Jr.) from being apprised of the issues that he must meet and made it
eventually impossible for the HRET to determine which ballot boxes had to be collected.

On October 7, 2010, the COMELEC First Division issued its second assailed
order,20 denying the petitioners motion for reconsideration for failing to show that the
first order was contrary to law, to wit:

The Protestees August 28, 2010 "Motion for Reconsideration with Prayer to Certify the
Case to the Commission En Banc" relative to the Order issued by the Commission (First
Division) dated August 13, 2010 is hereby DENIED for failure to show that the assailed
order is contrary to law

Without going into the merits of the protest, the allegations in the protestants petition
have substantially complied with the requirements of COMELEC Resolution No. 8804
that will warrant the opening of the ballot boxes in order to resolve not only the issues
raised in the protest but also those set forth in the Protestees answer. When substantial
compliance with the rules is satisfied, allowing the protest to proceed is the best way of
removing any doubt or uncertainty as to the true will of the electorate. All other issues
laid down in the parties pleadings, including those in the Protestees special and
affirmative defenses and those expressed in the preliminary conference brief, will best
be threshed out in the final resolution of the instant case.

The prayer to elevate the instant Motion for Reconsideration to the Commission En
Banc is DENIED considering that the 13 August 2010 Order is merely interlocutory and
it does not dispose of the instant case with finality, in accordance with Section 5(c), Rule
3 of the COMELEC Rules of Procedure.

SO ORDERED.

Not satisfied, the petitioner commenced this special civil action directly in this Court.

Issue
The petitioner submits that:

THE RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN REFUSING TO DISMISS
THE PROTEST FOR INSUFFICIENCY IN FORM AND CONTENT.

The petitioner argues that Section 9, 21 Rule 6 of COMELEC Resolution No. 8804
obliged the COMELEC First Division to summarily dismiss the protest for being
insufficient in form and content; and that the insufficiency in substance arose from the
failure of the protest to: (a) specifically state how the various irregularities and
anomalies had affected the results of the elections; (b) indicate in which of the protested
precincts were "pre-shaded bogus-ballots" used; (c) identify the precincts where the
PCOS machines had failed to accurately account for the votes in favor of Bautista; and
(d) allege with particularity how many additional votes Bautista stood to receive for each
of the grounds he protested. He concludes that the COMELEC First Division gravely
abused its discretion in allowing the protest of Bautista despite its insufficiency.

Moreover, the petitioner urges that the protest be considered as a mere fishing
expedition to be outrightly dismissed in light of the elections being held under an
automated system. In support of his urging, he cites Roque, Jr. v. Commission on
Elections,22 where the Court took judicial notice of the accuracy and reliability of the
PCOS machines and CCS computers, such that allegations of massive errors in the
automated counting and canvassing had become insufficient as basis for the
COMELEC to entertain or to give due course to defective election protests. 23 He
submits that a protest like Bautistas cast doubt on the automated elections.

On the other hand, the Office of the Solicitor General (OSG) and Bautista both posit that
the COMELEC had the power and prerogative to determine the sufficiency of the
allegations of an election protest; and that certiorari did not lie because the COMELEC
First Division acted within its discretion. Additionally, the OSG maintains that the
assailed orders, being interlocutory, are not the proper subjects of a petition
for certiorari.

As we see it, the decisive issue is whether the Court can take cognizance of the petition
for certiorari.

Ruling

We dismiss the petition for lack of merit.

The governing provision is Section 7, Article IX of the 1987 Constitution, which provides:
Section 7. Each Commission shall decide by a majority vote of all its Members any case
or matter brought before it within sixty days from the date of its submission for decision
or resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the rules of the
Commission or by the Commission itself. Unless otherwise provided by this Constitution
or by law, any decision, order, or ruling of each Commission may be brought to the
Supreme Court on certiorari by the aggrieved party within thirty days from receipt of a
copy thereof.

This provision, although it confers on the Court the power to review any decision, order
or ruling of the COMELEC, limits such power to a final decision or resolution of the
COMELEC en banc, and does not extend to an interlocutory order issued by a Division
of the COMELEC. Otherwise stated, the Court has no power to review on certiorari an
interlocutory order or even a final resolution issued by a Division of the COMELEC. The
following cogent observations made in Ambil v. Commission on Elections24 are
enlightening, viz:

To begin with, the power of the Supreme Court to review decisions of the Comelec is
prescribed in the Constitution, as follows:

"Section 7. Each commission shall decide by a majority vote of all its members any case
or matter brought before it within sixty days from the date of its submission for decision
or resolution. A case or matter is deemed submitted for decision or resolution upon the
filing of the last pleading, brief, or memorandum required by the rules of the commission
or by the commission itself. Unless otherwise provided by this constitution or by law,
any decision, order, or ruling of each commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from receipt of a copy
thereof." [emphasis supplied]

"We have interpreted this provision to mean final orders, rulings and decisions of the
COMELEC rendered in the exercise of its adjudicatory or quasi-judicial powers." This
decision must be a final decision or resolution of the Comelec en banc, not of a division,
certainly not an interlocutory order of a division. The Supreme Court has no power to
review via certiorari, an interlocutory order or even a final resolution of a Division of the
Commission on Elections.

The mode by which a decision, order or ruling of the Comelec en banc may be elevated
to the Supreme Court is by the special civil action of certiorari under Rule 65 of the 1964
Revised Rules of Court, now expressly provided in Rule 64, 1997 Rules of Civil
Procedure, as amended.
Rule 65, Section 1, 1997 Rules of Civil Procedure, as amended, requires that there be
no appeal, or any plain, speedy and adequate remedy in the ordinary course of law. A
motion for reconsideration is a plain and adequate remedy provided by law. Failure to
abide by this procedural requirement constitutes a ground for dismissal of the petition.

In like manner, a decision, order or resolution of a division of the Comelec must be

reviewed by the Comelec en banc via a motion for reconsideration before the final en
banc decision may be brought to the Supreme Court on certiorari. The pre-requisite
filing of a motion for reconsideration is mandatory.xxx25

There is no question, therefore, that the Court has no jurisdiction to take cognizance of
the petition for certiorari assailing the denial by the COMELEC First Division of the
special affirmative defenses of the petitioner. The proper remedy is for the petitioner to
wait for the COMELEC First Division to first decide the protest on its merits, and if the
result should aggrieve him, to appeal the denial of his special affirmative defenses to
the COMELEC en banc along with the other errors committed by the Division upon the
merits.

It is true that there may be an exception to the general rule, as the Court conceded
in Kho v. Commission on Elections. 26 In that case, the protestant assailed the order of
the COMELEC First Division admitting an answer with counter-protest belatedly filed in
an election protest by filing a petition for certiorari directly in this Court on the ground
that the order constituted grave abuse of discretion on the part of the COMELEC First
Division. The Court granted the petition and nullified the assailed order for being issued
without jurisdiction, and explained the exception thuswise:

As to the issue of whether or not the case should be referred to the COMELEC en banc,
this Court finds the respondent COMELEC First Division correct when it held in its order
dated February 28, 1996 that no final decision, resolution or order has yet been made
which will necessitate the elevation of the case and its records to the Commission en
banc. No less than the Constitution requires that election cases must be heard and
decided first in division and any motion for reconsideration of decisions shall be decided
by the Commission en banc. Apparently, the orders dated July 26, 1995, November 15,
1995 and February 28, 1996 and the other orders relating to the admission of the
answer with counter-protest are issuances of a Commission in division and are all
interlocutory orders because they merely rule upon an incidental issue regarding the
admission of Espinosa's answer with counter-protest and do not terminate or finally
dispose of the case as they leave something to be done before it is finally decided on
the merits. In such a situation, the rule is clear that the authority to resolve incidental
matters of a case pending in a division, like the questioned interlocutory orders, falls on
the division itself, and not on the Commission en banc. Section 5 (c), Rule 3 of the
COMELEC Rules of Procedure explicitly provides for this,

Sec. 5. Quorum; Votes Required xxx

xxx

(c) Any motion to reconsider a decision, resolution, order or ruling of a Division shall be
resolved by the Commission en banc except motions on interlocutory orders of the
division which shall be resolved by the division which issued the order. (emphasis
provided)

Furthermore, a look at Section 2, Rule 3 of the COMELEC Rules of Procedure confirms

that the subject case does not fall on any of the instances over which the
Commission en banc can take cognizance of. It reads as follows:

Section 2. The Commission en banc. The Commission shall sit en banc in cases
hereinafter specifically provided, or in pre-proclamation cases upon a vote of a majority
of the members of a Commission, or in all other cases where a division is not authorized
to act, or where, upon a unanimous vote of all the members of a Division, an
interlocutory matter or issue relative to an action or proceeding before it is decided to be
referred to the Commission en banc.

In the instant case, it does not appear that the subject controversy is one of the cases
specifically provided under the COMELEC Rules of Procedure in which the Commission
may sit en banc. Neither is it shown that the present controversy a case where a
division is not authorized to act nor a situation wherein the members of the First Division
unanimously voted to refer the subject case to the Commission en banc. Clearly, the
Commission en banc, under the circumstances shown above, can not be the proper
forum which the matter concerning the assailed interlocutory orders can be referred to.

In a situation such as this where the Commission in division committed grave abuse of
discretion or acted without or in excess of jurisdiction in issuing interlocutory orders
relative to an action pending before it and the controversy did not fall under any of the
instances mentioned in Section 2, Rule 3 of the COMELEC Rules of Procedure, the
remedy of the aggrieved party is not to refer the controversy to the Commission en
banc as this is not permissible under its present rules but to elevate it to this Court via a
petition for certiorari under Rule 65 of the Rules of Court. (Bold emphasis supplied)

Under the exception, therefore, the Court may take cognizance of a petition
for certiorari under Rule 64 to review an interlocutory order issued by a Division of the
COMELEC on the ground of the issuance being made without jurisdiction or in excess
of jurisdiction or with grave abuse of discretion amounting to lack or excess of
jurisdiction when it does not appear to be specifically provided under the
COMELEC Rules of Procedure that the matter is one that the COMELEC en banc may
sit and consider, or a Division is not authorized to act, or the members of the Division
unanimously vote to refer to the COMELEC en banc. Of necessity, the aggrieved party
can directly resort to the Court because the COMELEC en banc is not the proper forum
in which the matter concerning the assailed interlocutory order can be reviewed.

However, the Kho v. Commission on Elections exception has no application herein,

because the COMELEC First Division had the competence to determine the lack of
detailed specifications of the acts or omissions complained of as required by Rule 6,
Section 7 of COMELEC Resolution No. 8804, and whether such lack called for the
outright dismissal of the protest. For sure, the 1987 Constitution vested in the
COMELEC broad powers involving not only the enforcement and administration of all
laws and regulations relative to the conduct of elections but also the resolution and
determination of election controversies. 27 The breadth of such powers encompasses the
authority to determine the sufficiency of allegations contained in every election protest
and to decide based on such allegations whether to admit the protest and proceed with
the hearing or to outrightly dismiss the protest in accordance with Section 9, Rule 6 of
COMELEC Resolution No. 8804.

The Court has upheld the COMELECs determination of the sufficiency of allegations
contained in election protests, conformably with its imperative duty to ascertain in an
election protest, by all means within its command, who was the candidate elected by the
electorate.28 Indeed, in Panlilio v. Commission on Elections,29 we brushed aside the
contention that the election protest was insufficient in form and substance and was a
sham for having allegations couched in general terms, stating:

In Miguel v. COMELEC, the Court belittled the petitioners argument that the protestant
had no cause of action, as the allegations of fraud and irregularities, which were
couched in general terms, were not sufficient to order the opening of ballot boxes and
counting of ballots. The Court states the rules in election protests cognizable by the
COMELEC and courts of general jurisdiction, as follows:

The rule in this jurisdiction is clear and jurisprudence is even clearer. In a string of
categorical pronouncements, we have consistently ruled that when there is an allegation
in an election protest that would require the perusal, examination or counting of ballots
as evidence, it is the ministerial duty of the trial court to order the opening of the ballot
boxes and the examination and counting of ballots deposited therein.
In a kindred case, Homer Saquilayan v. COMELEC, the Court considered the
allegations in an election protest, similar to those in this case, as sufficient in form and
substance.

Again, in Dayo v. COMELEC, the Court declared that allegations of fraud and
irregularities are sufficient grounds for opening the ballot boxes and examining the
questioned ballots. The pronouncement is in accordance with Section 255 of the
Omnibus Election Code, which reads:

Judicial counting of votes in election contest. Where allegations in a protest or

counter-protest so warrant, or whenever in the opinion of the court in the interests of
justice so require, it shall immediately order the book of voters, ballot boxes and their
keys, ballots and other documents used in the election be brought before it and that the
ballots be examined and the votes recounted.lawphi1

In this case, the COMELEC Second Division found that the allegations in the protest
and counter-protest warranted the opening of the contested ballot boxes and the
examination of their contents to settle at once the conflicting claims of petitioner and
private respondent.

The petitioner adds that with the Court having noted the reliability and accuracy of the
PCOS machines and consolidation/canvassing system (CCS) computers in Roque, Jr.
v. Commission on Elections,30 Bautistas election protest assailing the system and
procedure of counting and canvassing of votes cast in an automated system of
elections should be immediately dismissed.

We are not persuaded.

Roque, Jr. v. Commission on Elections does not preclude the filing of an election protest
to challenge the outcome of an election undertaken in an automated system of
elections. Instead, the Court only ruled there that the system and procedure
implemented by the COMELEC in evaluating the PCOS machines and CCS computers
met the minimum system requirements prescribed in Section 7 of Republic Act No.
8436.31 The Court did not guarantee the efficiency and integrity of the automated system
of elections, as can be gleaned from the following pronouncement thereat:

The Court, however, will not indulge in the presumption that nothing would go wrong,
that a successful automation election unmarred by fraud, violence, and like irregularities
would be the order of the moment on May 10, 2010. Neither will it guarantee, as it
cannot guarantee, the effectiveness of the voting machines and the integrity of the
counting and consolidation software embedded in them. That task belongs at the first
instance to Comelec, as part of its mandate to ensure clean and peaceful elections.
This independent constitutional commission, it is true, possesses extraordinary powers
and enjoys a considerable latitude in the discharge of its functions. The road, however,
towards successful 2010 automation elections would certainly be rough and bumpy. The
Comelec is laboring under very tight timelines. It would accordingly need the help of all
advocates of orderly and honest elections, of all men and women of goodwill, to
smoothen the way and assist Comelec personnel address the fears expressed about
the integrity of the system. Like anyone else, the Court would like and wish automated
elections to succeed, credibly.32

In view of the foregoing, we have no need to discuss at length the other submissions of
the petitioner.

ACCORDINGLY, the petition for certiorari is DISMISSED for lack of merit.

SO ORDERED.

A.M. OCA IPI No. 11-184-CA-J January 31, 2012

RE: VERIFIED COMPLAINT OF ENGR. OSCAR L. ONGJOCO, CHAIRMAN OF THE

BOARD/CEO OF FH-GYMN MULTI-PURPOSE AND TRANSPORT SERVICE
COOPERATIVE, AGAINST HON. JUAN Q. ENRIQUEZ, JR., HON. RAMON M. BATO,
JR. AND HON. FLORITO S. MACALINO, ASSOCIATE JUSTICES, COURT OF
APPEALS

RESOLUTION

BERSAMIN, J.:

Judicial officers do not have to suffer the brunt of unsuccessful or dissatisfied litigants
baseless and false imputations of their violating the Constitution in resolving their cases
and of harboring bias and partiality towards the adverse parties. The litigant who
baselessly accuses them of such violations is not immune from appropriate sanctions if
he thereby affronts the administration of justice and manifests a disrespect towards the
judicial office.

Antecedents

On June 7, 2011, the Court received a letter from Engr. Oscar L. Ongjoco, claiming
himself to be the Chairman of the Board and Chief Executive Officer (CEO) of the FH-
GYMN Multi-Purpose and Transport Service Cooperative (FH-GYMN). 1 The letter
included a complaint-affidavit,2 whereby Ongjoco charged the CAs Sixth Division
composed of Associate Justice Juan Q. Enriquez, Jr. (as Chairman), Associate Justice
Ramon M. Bato, Jr., and Associate Justice Florito S. Macalino as Members for
rendering an arbitrary and baseless decision in CA-G.R. SP No. 102289 entitled FH-
GYMN Multi-Purpose and Transport Service Cooperative v. Allan Ray A. Baluyut, et al. 3

The genesis of CA-G.R. SP No. 102289 started on July 26, 2004 when FH-GYMN
requested the amendment of Kautusang Bayan Blg. 37-02-97 of the City of San Jose
del Monte, Bulacan through the Committee on Transportation and Communications
(Committee) of the Sangguniang Panlungsod (Sanggunian) in order to include the
authorization of FH-GYMNs Chairman to issue motorized tricycle operators permit
(MTOP) to its members.4During the ensuing scheduled public hearings, City Councilors
Allan Ray A. Baluyut and Nolly Concepcion, together with ABC President Bartolome B.
Aguirre and one Noel Mendoza (an employee of the Sanggunian), were alleged to have
uttered statements exhibiting their bias against FH-GYMN, giving FH-GYMN reason to
believe that the Committee members were favoring the existing franchisees Francisco
Homes Tricycle

Operators and Drivers Association (FRAHTODA) and Barangay Mulawin Tricycle

Operators and Drivers Association (BMTODA).5 Indeed, later on, the Sanggunian, acting
upon the recommendation of the Committee, denied the request of FH-GYMN. 6
On July 15, 2005, FH-GYMN brought a complaint in the Office of the Deputy
Ombudsman for Luzon charging Baluyut, Concepcion, Aguirre, Mendoza with violations
of Article 124(2)(d) of the Cooperative Code, Section 3(e) and (f) of the Republic Act No.
3019 (Anti-Graft and Corrupt Practices Act), and Section 5(a) of Republic Act No. 6713
(Code of Conduct for Public Officials and Employees). The complaint also charged
Eduardo de Guzman (FRAHTODA President) and Wilson de Guzman (BMTODA
President). Eventually, the complaint of FH-GYMN was dismissed for insufficiency of
evidence as to the public officials, and for lack of merit and lack of jurisdiction as to the
private respondents. FH-GYMN sought reconsideration, but its motion to that effect was
denied.7

FH-GYMN timely filed a petition for review in the CA.

In the meanwhile, FH-GYMN filed in the Office of the President a complaint accusing
Overall Deputy Ombudsman Orlando C. Casimiro, Deputy Ombudsman Emilio A.
Gonzales III, and Graft Investigator and Prosecution Officer Robert C. Renido with a
violation of Section 3(i) of Republic Act No. 3019 arising from the dismissal of its
complaint.8

On January 31, 2011, the CAs Sixth Division denied the petition for review.9

FH-GYMN, through Ongjoco, moved for the reconsideration of the denial of the petition
for review, with prayer for inhibition,10 but the CAs Sixth Division denied the motion.

Thereafter, Ongjoco initiated this administrative case against the aforenamed member
of the CAs Sixth Division.

In the complaint, Ongjoco maintained that respondent members of the CAs Sixth
Division violated Section 14, Article VIII of the 1987 Constitution by not specifically
stating the facts and the law on which the denial of the petition for review was based;
that they summarily denied the petition for review without setting forth the basis for
denying the five issues FH-GYMNs petition for review raised; that the denial was
"unjust, unfair and partial," and heavily favored the other party; that the denial of the
petition warranted the presumption of "directly or indirectly becoming interested for
personal gain" under Section 3(i) of Republic Act No. 3019; and that the Ombudsman
officials who were probably respondent Justices schoolmates or associates persuaded,
induced or influenced said Justices to dismiss the petition for review and to manipulate
the delivery of the copy of the decision to FH-GYMN to prevent it from timely filing a
motion for reconsideration.11

Ruling
We find the administrative complaint against respondent Justices of the Court of
Appeals baseless and utterly devoid of legal and factual merit, and outrightly dismiss it.

Firstly, Ongjoco insists that the decision promulgated on January 31, 2011 by the CAs
Sixth Division had no legal foundation and did not even address the five issues
presented in the petition for review; and that the respondents as members of the CAs
Sixth Division thereby violated Section 14, Article VIII of the Constitution, which provides
as follows:

Section 14. No decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be
refused due course or denied without starting the legal basis therefor.

The insistence of Ongjoco is unfounded. The essential purpose of the constitutional

provision is to require that a judicial decision be clear on why a party has prevailed
under the law as applied to the facts as proved; the provision nowhere demands that a
point-by-point consideration and resolution of the issues raised by the parties are
necessary.12 Cogently, the Court has said in Tichangco v. Enriquez,13 to wit:

This constitutional provision deals with the disposition of petitions for review and of
motions for reconsideration. In appellate courts, the rule does not require any
comprehensive statement of facts or mention of the applicable law, but merely a
statement of the "legal basis" for denying due course.

Thus, there is sufficient compliance with the constitutional requirement when a

collegiate appellate court, after deliberation, decides to deny a motion; states that the
questions raised are factual or have already been passed upon; or cites some other
legal basis. There is no need to explain fully the courts denial, since the facts and the
law have already been laid out in the assailed Decision. (Emphasis supplied)

Its decision shows that the CAs Sixth Division complied with the requirements of the
constitutional provision,14 viz:

The petition is without merit.

Petitioner alleged that the Ombudsman erred in not finding respondents liable for
violation of the Cooperative Code of the Philippines considering that their actuations
constituted acts of direct or indirect interference or intervention with the internal affairs
of FH-GYMN and that recommendation to deny FH-GYMNs application was
tantamount to "any other act inimical or adverse to its autonomy and independence."
We disagree.

It is well settled that in administrative proceedings, the complainant has the burden of
proving, by substantial evidence, the allegations in his complaint. Section 27 of the
Ombudsman Act is unequivocal. Findings of fact by the Office of the Ombudsman, when
supported by substantial evidence, are conclusive. Conversely, when the findings of fact
by the Ombudsman are not adequately supported by substantial evidence, they shall
not be binding upon the courts (Marcelo vs. Bungubung, 552 SCRA 589).

In the present case, the Deputy Ombudsman found no substantial evidence to prove
that there was interference in the internal affairs of FH-GYMN nor was there a violation
of the law by the respondents. As aptly ruled by the Ombudsman:

"While the utterances made by respondents Baluyot, Aguirre and Mendoza in the
course of public hearings earlier mentioned indeed demonstrate exaltation of
FRAHTODA and BMTODA, to the apparent disadvantage of FH-GYMN, the same does
not imply or suggest interference in the internal affairs of the latter considering that said
remarks or comments were made precisely in the lawful exercise of the mandate of the
Sangguniang Panlungsod of the locality concerned through the Committee on
Transporation and Communication. It is worthy to emphasize that were it not for the
complainants letter-request dated July 23, 2004, the committee concerned would not
have conducted the aforementioned public hearings, thus, there would have been no
occasion for the subject unfavorable remarks to unleash. Thus, it would be irrational to
conclude that simply because the questioned utterances were unfavorable to FH-
GYMN, the same constitutes interference or intervention in the internal affairs of the
said cooperative.

In the same vein, while respondents Baluyot, Concepcion and Aguirre rendered an
adverse recommendation as against complaints letter-request earlier mentioned, the
same does not signify giving of undue favors to FRAHTODA or BMTODA, or causing of
undue injury to FH-GYMN, inasmuch as said recommendation or decision, as the
records vividly show, was arrived at by the said respondents in honest exercise of their
sound judgment based on their interpretation of the applicable ordinance governing the
operation of tricycles within their area of jurisdiction. Evidence on record no doubt failed
to sufficiently establish that, in so making the questioned recommendation, respondents
Baluyot, Concepcion and Aguirre acted with manifest partiality, evident bad faith or
gross inexcusable negligence. It is likewise worthy to note that, contrary to
complainants insinuation, the letter-request adverted to was acted upon by respondents
Baluyot, Concepcion and Aguirre within a reasonable time and, as a matter of fact,
complainant had been notified of the action taken by the former relative to his letter-
request or proposals.
Time and again, it has been held, no less than by the Supreme Court, that mere
suspicions and speculations can never be the basis of conviction in a criminal case.
Guided by the same doctrinal rule, this Office is not duty-bound to proceed with the
indictment of the public respondents as charged. Indeed well entrenched is the rule that
"(t)he purpose of a preliminary investigation is to secure the innocent against hasty,
malicious and oppressive prosecution and to protect him from an open and public
accusation of crime, from the trouble, expense and anxiety of a public trial, and also to
protect the state from useless and expensive trials (Joint Resolution, October 17, 2005,
Rollo pp. 142-143).

Moreover, petitioners failed to rebut the presumption of regularity in the performance of

the official duties of respondents by affirmative evidence of irregularity or failure to
perform a duty. The presumption prevails and becomes conclusive until it is overcome
by no less than clear and convincing evidence to the contrary. Every reasonable
intendment will be made in support of the presumption and in case of doubt as to an
officers act being lawful or unlawful, construction should be in favor of its lawfulness
(Bustillo vs. People of the Philippines, G.R. No. 160718, May 12, 2010).

There being no substantial evidence to reverse the findings of the Ombudsman, the
instant petition is denied.

WHEREFORE, premises considered the Petition for Review is DENIED for lack of
merit. The Joint Resolution dated October 17, 2005 and Joint Order dated April 25,
2006 of the Deputy Ombudsman of Luzon are AFFIRMED.

SO ORDERED.

Indeed, the definitive pronouncement of the CAs Sixth Division that "the Deputy
Ombudsman found no substantial evidence to prove that there was interference in the
internal affairs of FH-GYMN nor was there a violation of the law by the
respondents"15 met the constitutional demand for a clear and distinct statement of the
facts and the law on which the decision was based. The CAs Sixth Division did not have
to point out and discuss the flaws of FH-GYMNs petition considering that the decision
of the Deputy Ombudsman sufficiently detailed the factual and legal bases for the denial
of the petition.

Moreover, the CAs Sixth Division expressly found that FH-GYMN had not discharged its
burden as the petitioner of proving its allegations with substantial evidence. 16 In
administrative cases involving judicial officers, the complainants always carried on their
shoulders the burden of proof to substantiate their allegations through substantial
evidence. That standard of substantial evidence is satisfied only when there is
reasonable ground to believe that the respondent is responsible for the misconduct
complained of although such evidence may not be overwhelming or even
preponderant.17

Secondly, Ongjoco ought to know, if he genuinely wanted the Court to sustain his
allegations of misconduct against respondent Justices, that his administrative complaint
must rest on the quality of the evidence; and that his basing his plain accusations on
hunches and speculations would not suffice to hold them administratively liable for
rendering the adverse decision. Nonetheless, he exhibited disrespect for respondent
Justices judicial office by still filing this administrative complaint against them despite
conceding in the administrative complaint itself his having no proof of his charges, viz:

21. The petition to review in determining probable cause in a preliminary investigation

had reached this far and may reach the Supreme Court due to corrupt practices and
culpable violation of the 1987 Constitution committed by Ombudsman officials and the
herein respondents of the Court of Appeals. A Motion for Reconsideration was
submitted with prayer for the respondents to inhibit themselves to act on it. Otherwise, it
will add to congest the court docket which this Honorable Court should intercede to look
deeper into this matter by exercising its disciplinary functions over herein
respondents.1wphi1 The arbitrary denial of the Petition for Review rendered by the
herein respondents is meant that there is no sufficient ground out of the five (5) issues
raised to engender a well-founded belief that no single offense has been committed. 18

xxx

24. Though there was no clear evidence to link Ombudsman officials, they may have
persuaded, induced or influenced the herein respondents, who are either their
schoolmates or associates, to deny the Petition for Review in their bid to establish
innocence on the related offense charged against them on 18 August 2010 before the
Office of the President docketed as OP-DC Case No. 11-C-006. Likewise, they may
have manipulated the delivery of a copy of Decision intended for the petitioner in order
for the latter to fail in submitting a motion for reconsideration purposely to make the
Decision final and executory by which the said Ombudsman officials could use such
Decision to attain impunity on complaint against them filed with the Office of the
President.19 (emphasis supplied)

It is evident to us that Ongjocos objective in filing the administrative complaint was to

take respondent Justices to task for the regular performance of their sworn duty of
upholding the rule of law. He would thereby lay the groundwork for getting back at them
for not favoring his unworthy cause. Such actuations cannot be tolerated at all, for even
a mere threat of administrative investigation and prosecution made against a judge to
influence or intimidate him in his regular performance of the judicial office always
subverts and undermines the independence of the Judiciary.20

We seize this occasion, therefore, to stress once again that disciplinary proceedings
and criminal actions brought against any judge in relation to the performance of his
official functions are neither complementary to nor suppletory of appropriate judicial
remedies, nor a substitute for such remedies. 21 Any party who may feel aggrieved
should resort to these remedies, and exhaust them, instead of resorting to disciplinary
proceedings and criminal actions. We explained why in In Re: Joaquin T. Borromeo: 22

Given the nature of the judicial function, the power vested by the Constitution in the
Supreme Court and the lower courts established by law, the question submits to only
one answer: the administrative or criminal remedies are neither alternative or
cumulative to judicial review where such review is available, and must wait on the result
thereof.

Simple reflection will make this proposition amply clear, and demonstrate that any
contrary postulation can have only intolerable legal implications. Allowing a party who
feels aggrieved by a judicial order or decision not yet final and executory to mount an
administrative, civil or criminal prosecution for unjust judgment against the issuing judge
would, at a minimum and as an indispensable first step, confer the prosecutor
(Ombudsman) with an incongruous function pertaining, not to him, but to the courts: the
determination of whether the questioned disposition is erroneous in its findings of fact or
conclusions of law, or both. If he does proceed despite that impediment, whatever
determination he makes could well set off a proliferation of administrative or criminal
litigation, a possibility hereafter more fully explored.

Such actions are impermissible and cannot prosper. It is not, as already pointed out,
within the power of public prosecutors, or the Ombudsman or his Deputies, directly or
vicariously, to review judgments or final orders or resolutions of the Courts of the land.
The power of reviewby appeal or special civil actionis not only lodged exclusively in
the Courts themselves but must be exercised in accordance with a well-defined and
long established hierarchy, and long standing processes and procedures. No other
review is allowed; otherwise litigation would be interminable, and vexatiously repetitive.

In this regard, we reiterate that a judges failure to correctly interpret the law or to
properly appreciate the evidence presented does not necessarily incur administrative
liability,23 for to hold him administratively accountable for every erroneous ruling or
decision he renders, assuming he has erred, will be nothing short of harassment and
will make his position doubly unbearable. His judicial office will then be rendered
untenable, because no one called upon to try the facts or to interpret the law in the
process of administering justice can be infallible in his judgment. 24Administrative
sanction and criminal liability should be visited on him only when the error is so gross,
deliberate and malicious, or is committed with evident bad faith, 25 or only in clear cases
of violations by him of the standards and norms of propriety and good behavior
prescribed by law and the rules of procedure, or fixed and defined by pertinent
jurisprudence.26

What the Court sees herein is Ongjocos proclivity to indiscriminately file complaints. His
proclivity reminds us now of Joaquin T. Borromeo whom this Court pronounced guilty of
indirect contempt of court he "repeatedly committed over time, despite warnings and
instructions given to him."27 The Court imposed the penalty for contempt of court "to the
end that he may ponder his serious errors and grave misconduct and learn due respect
for the Courts and their authority."28

Having determined that the administrative charge against respondent Justices had no
factual and legal bases, we cannot hesitate to shield them by immediately rejecting the
charge. We do so because unfounded administrative charges do not contribute anything
worthwhile to the orderly administration of justice; instead, they retard it.

Nor should we just let such rejected charge pass and go unchallenged. We recognize
that unfounded administrative charges against judges really degrade the judicial office,
and interfere with the due performance of their work for the Judiciary. Hence, we deem
to be warranted to now direct Ongjoco to fully explain his act of filing an utterly baseless
charge against respondent Justices.

ACCORDINGLY, the Court: (a) DISMISSES the administrative complaint against

Associate Justice Juan Q. Enriquez, Jr., Associate Justice Ramon M. Bato, Jr., and
Associate Justice Florito S. Macalino for its utter lack of merit; and (b) ORDERS Engr.
Oscar L. Ongjoco to show cause in writing within ten (10) days from notice why he
should not be punished for indirect contempt of court for degrading the judicial office of
respondent Associate Justices of the Court of Appeals, and for interfering with the due
performance of their work for the Judiciary.

SO ORDERED.
G.R. No. 176343 September 18, 2012

TRADE AND INVESTMENT DEVELOPMENT CORPORATION OF THE

PHILIPPINES, Petitioner,
vs.
MA. ROSARIO S. MANALANG-DEMIGILIO, Respondent.

DECISION

BERSAMIN, J.:

The issuance by the proper disciplining authority of an order of preventive suspension

for 90 days of a civil service officer or employee pending investigation of her
administrative case is authorized provided that a formal charge is served to her and the
charge involves dishonesty, oppression, grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that she is guilty of the charge as
to warrant her removal from the service. Proof showing that the respondent officer or
employee may unduly influence the witnesses against her or may tamper the
documentary evidence on file at her office is not a prerequisite before she may be
preventively suspended.

Antecedents

Trade and Investment Development Corporation of the Philippines (TIDCORP) is a

wholly owned government corporation whose primary purpose is to guarantee foreign
loans, in whole or in part, granted to any domestic entity, enterprise or corporation
organized or licensed to engage in business in the Philippines. 1

On May 13, 2003, the Board of Directors of TIDCORP formally charged Maria Rosario
Manalang-Demigillo (Demigillo), then a Senior Vice-President in TIDCORP, with grave
misconduct, conduct prejudicial to the best interest of the service, insubordination, and
gross discourtesy in the course of official duties. The relevant portions of the formal
charge read:

After a thorough study, evaluation, and deliberation, the Board finds merit to the findings
and recommendation of the Investigating Committee on the existence of a probable
cause for Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service,
Insubordination, and Gross Discourtesy in the Course of Official Duties. However and to
avoid any suspicion of partiality in the conduct of the investigation, the Board hereby
refers this case to the Office of the Government Corporate Counsel to conduct a formal
investigation on the following:

1) The incident during the Credit Committee Meeting on 06 March 2002 where you
allegedly engaged yourself in a verbal tussle with Mr. Joel C. Valdes, President and
CEO. Allegedly, you raised your voice, got angry, shouted at Mr. Valdes and were
infuriated by his remarks such as "are we talking of apples and apples here?",
"everybody should focus on the issues at hand" and "out of the loop";

2) The incident during the Reorganization Meeting on 18 July 2002 where you appeared
to have been rude and arrogant in the way you answered Mr. Valdes to some questions
like "Ano gusto mo? Bibigay ko personally sa iyosasabihan ko personally ikaw?", "You
know Joel alam natin sa isat-isathatI dont know how to term itthere is no love
lost no?", "Ang ibig sabihin kung may galit ka" "Lets be candid you know" "What is
the opportunity? Let me seepakita ko sayo lahat ang aking ano" and "Anong output
tell me?";
3) The incident during the Planning Session on 05 August 2002. Records show that you
reacted to the statement of Mr. Valdes urging everybody to give support to the
Marketing Group in this manner "But of course, we would not want to be the whipping
boy!" Records also show that in the same meeting, you used arrogant and threatening
remarks to the President and CEO like "dont cause division to hide your inefficiency
and gastos! If you push me to the wall, I have goods on you too", "You want me to
charge you to the Ombudsman?", "May humihingi ng documents sa akin, sabayan ko
na sila", "Now Im fighting you openly"and "I am threatening you";

4) The incident involving your Memorandum to Mr. Valdes dated 19 September 2002,
the pertinent portions of which read, as follows:

"I am repulsed and nauseated by the information that yesterday, 18 September 2002 at
the OPCOM meeting, you claim to have talked to me or consulted me about the car you
caused to be purchased for the Corporate Auditor Ms. Maria Bautista.

I have never talked to you about your desire to give Ms. Bautista a car.

This is a brazen lie, a fabrication. Such moral turpitude! How low, how base, how
desperate!

Accordingly, as you have given me no (sic), I am taking you to task for this and all the
illegal acts you have done and are doing against me and TIDCORP."

It appears that the said Memorandum was circulated even to those who were not privy
to the cause of the issuance of such statement.

5) The incident where you assisted and made it appear to be acting as counsel of Mr.
Vicente C. Uy in the case involving the latter relative to the conduct of the APEC
Capacity Building for Trade and Investment Insurance Training Program in April 2002;

6) The incident on 13 November 2002 where you allegedly urged and induced officials
and employees at the 3rd floor of TIDCORP to proceed to the Office of the President
and CEO to give support to EVP Jane Tambanillo who was allegedly then being forced
to resign by Mr. Valdes. This caused not only a commotion but disturbance and
disruption of the office work at both 3rd and 4th floors;

7) The incident on 13 November 2002 where you allegedly shouted at Atty. Jane
Laragan and berated Mr. Valdes in front of officers and employees whom you gathered
as per allegation number 6; and
8) Relative to allegation number 7, your stubborn refusal to obey the order of Mr. Valdes
to go back to work as it was only 9:30 a.m. and instead challenged him to be the one to
bring you down to the 3rd floor instead of asking the guard to do so.

Pursuant to Section 16, Rule II of the Uniform Rules on Administrative Cases in the Civil
Service and in the spirit of justice, fair play, and due process, you are hereby given the
opportunity to submit additional evidence to what you have already submitted during the
preliminary investigation, if any to the Board, through the OGCC, within seventy two
(72) hours from receipt of this Memorandum.

In this regard, you are informed of your right to be assisted by a counsel of your choice
and to indicate in your answer whether or not you elect a formal investigation.
Nevertheless, and in accordance with the aforecited provision of the Uniform Rules on
Administrative Cases in the Civil Service, any requests for clarification, bills of
particulars or motion to dismiss which are obviously designed to delay the
administrative proceeding shall not be entertained. If any of these pleadings are
interposed, the same shall be considered as an answer and shall be evaluated as such.

Finally, and after considering Section 19 of the same Rules, which gives authority to the
disciplining body to issue an order of preventive suspension, you are hereby
preventively suspended for a period of ninety (90) days from receipt hereof.

Let a copy of this memorandum and the complete records of the case be forwarded
immediately to the Office of the Government Corporate Counsel (OGCC) for appropriate
action.2

TIDCORP referred the charge to the Office of the Government Corporate Counsel
(OGCC) for formal investigation and reception of evidence. Pending the investigation,
TIDCORP placed Demigillo under preventive suspension for 90 days. 3

Demigillo assailed her preventive suspension in the Civil Service Commission

(CSC),4 which issued on January 21, 2004 Resolution No. 040047 declaring her
preventive suspension to be "not in order." 5 The CSC stated that under Section 19(2),
Rule II, of the Uniform Rules on

Administrative Cases in the Civil Service (Uniform Rules), a civil service officer like
Demigillo might be preventively suspended by the disciplining authority only if any of the
two grounds were present, to wit: (1) there was a possibility that the civil service
employee might unduly influence or intimidate potential witnesses against him; or (2)
there was a possibility that the civil service employee might tamper the documentary
evidence on file in her office.6 According to the CSC, TIDCORP did not prove with
substantial evidence the existence of any of such grounds, explaining thus:

xxx. As the party claiming affirmative evidence, that is, Demigillos possibility of
influencing potential witnesses or tampering with evidence, TIDCORP is bound to prove
the same by substantial evidence. However, it failed to. TIDCORP claims that its
witnesses "refused to issue any sworn statement during the preliminary investigation in
deference to their immediate superior x x x and that the same witnesses, however,
intimated that they may be compelled to tell the truth if called to testify during the
investigation." On the basis of these statements, it is clear that the witnesses refusal to
execute sworn statement is by reason of their "deference" to Demigillo not on account
of her "intimidation or influence." Further, the fact that said witnesses "will be compelled
to tell the truth" is not because of Demigillos continued presence or absence in the
office but because they are bound by their oath to tell the truth during the investigation.
Under these circumstances, it is not difficult to ascertain that the order of preventive
suspension is not necessary.

Anent the potential tampering of documents by Demigillo, the Commission similarly

finds the same remote. There is no showing that the documentary evidence of the case
leveled against her were in her possession or custody as would otherwise justify the
imposition of preventive suspension. As borne by the evidence on record, the acts
complained of against Demigillo constitute verbal tussles between her and President
Valdes which were all recorded and documented by the TIDCORP. In this situation,
there is no chance of Demigillos tampering with documents.

From the foregoing disquisition, the Commission finds that the preventive suspension of
Demigillo for ninety (90) days was improvidently made because the possibility of
exerting/influencing possible witnesses or tampering with documents, which is the evil
sought to be avoided in this case, does not exist. 7

Upon denial of its motion for reconsideration by the CSC, 8 TIDCORP appealed to the
Court of Appeals (CA),9submitting the sole issue of:

WHETHER OR NOT THE CSC ERRED IN SO HOLDING THE PREVENTIVE

SUSPENSION OF APPELLANT DEMIGILLO WAS NOT IN ORDER. 10

On November 7, 2006, the CA promulgated its decision affirming the CSC, 11 holding and
ruling as follows:

The main issue in this case is whether or not respondent Demigillo was validly placed
under preventive suspension on the ground that she could possibly influence or
intimidate potential witnesses or tamper the evidence on record in her office, thus,
affecting the investigation of the case against her.

Petitioner argues that the preventive suspension imposed against respondent Demigillo
is valid as it is in accordance with the CSC rules and regulations and Section 51,
Chapter 6, Title I (A), Book V of Executive Order No. 292 which states that "the proper
disciplining authority may preventively suspend any subordinate officer or employee
under his authority pending an investigation, if the charge against such officer or
employee involves dishonesty, oppression or grave misconduct, or neglect in the
performance of duty, or if there are reasons to believe that the respondent is guilty of
charges which would warrant his removal from the service", hence, the CSC erred in
holding the same not in order. Further, petitioner contends that since the provision of the
Administrative Code of 1987 on preventive suspension does not set any condition on its
imposition, the provision in the Uniform Rules on Administrative Cases in the Civil
Service promulgated by the CSC should be stricken out as it is not found in the law
itself.

We are not persuaded.

We agree with the CSC Resolution No. 040047 which cited Section 19 (paragraph 2),
Rule II, Uniform Rules on Administrative Cases in the Civil Service as basis in ruling
against the order of preventive suspension against herein respondent. The pertinent
portion of the provision reads, as follows:

An order of preventive suspension may be issued to temporarily remove the respondent

from the scene of his misfeasance or malfeasance and to preclude the possibility of
exerting undue influence or pressure on the witnesses against him or tampering of
documentary evidence on file with his Office.

Based on the aforequoted provision, any of the two grounds: (1) to preclude the
possibility of exerting undue influence or pressure on the witnesses against him; or (2)
tampering of documentary evidence on file with his office, can be validly invoked by the
disciplining authority to justify the imposition of the preventive suspension. As correctly
pointed out by respondent in her motion for leave to file and admit attached comment,
and comment to amended petition for review, under Section 19 (paragraph 2), Rule II, of
the Uniform Rules of Administrative Cases in the Civil Service (URACCS), preventive
suspension is warranted in order to preclude the respondent from exerting "undue
influence" on the witnesses against her. But in this case, TIDCORP failed to prove the
possibility of respondent exerting undue influence on the witnesses, but instead CSC
found TIDCORP to have admitted unequivocally that it is because of the witnesses
deference or respect for respondent that they did not execute sworn statements.
Indeed, the esteem or respect given is not undue influence; it even negates any
wrongdoing on the part of respondent. Indeed, the alleged incidents being harped about
by TIDCORP do not in any way prove undue influence of respondent on the witnesses.
The incidents involved mere verbal tussles between Mr. Joel Valdes, TIDCORP
President and CEO, respondent Demigillo and Jane Larangon, who had already
executed her affidavit even before respondents preventive suspension. In brief,
TIDCORP failed to prove undue influence as there is nothing in those incidents showing
the commission or coercion or compulsion upon one to do what is against his will.

We agree with the findings of the CSC that respondents possibility to exert undue
influence or pressure on the witnesses against her is remote. The purpose of preventive
suspension is to avoid the possibility on the part of the person charged of a certain
offense, to exert influence or undue pressure on the potential witnesses against her. In
Gloria vs. Court of Appeals, the High Court said that preventive suspension pending
investigation is a measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating or in any way
influencing witnesses against him. And as correctly pointed out by the CSC, the
possibility of exerting influence or pressure on the potential witnesses does not exist in
this case because the complainant or the person who stands to be a witness for the
government is influential, so to speak, as he holds the highest position in TIDCORP. It is
really difficult to imagine that a person who occupies the highest position in an
organization could be influenced or intimidated by his subordinate. The president of the
organization has greater degree of control in the organization, and to claim that he could
be intimated or influenced by his subordinate is baseless and unbelievable. Considering
that Valdes was President of TIDCROP and a primary witness against respondent who
is his mere subordinate, we find no valid ground for petitioner to impose preventive
suspension against respondent.

Moreover, as correctly pointed out by the CSC in its resolution, as the party claiming
affirmative relief, TIDCORP is bound to prove the basis thereof, i.e. respondents
possibility of influencing potential witnesses or tampering with the evidence, by
substantial evidence, which it failed to do. There is no showing that the documentary
evidence against respondent are in her possession or custody. The acts complained of
against respondent arose out of the verbal tussles between her and President Valdes
which were all recorded and documented by TIDCORP. In this situation, there is no
chance for respondents tampering with the documents.

As regards the argument that since the provision of the Administrative Code of 1987 on
preventive suspension does not set any condition on its imposition, the provision in the
Uniform Rules on Administrative Cases in the Civil Service promulgated by the CSC
should be stricken out as it is not found in the law itself, we rule in the negative.
We agree with respondent that the aforequoted argument of petitioner is misplaced and
unfounded. Section 12 (2), Chapter 3, Tile I (A) of Book V of the Revised Administrative
Code, provides that among the powers and functions of the Civil Service Commission is
to prescribe, amend and enforce rules and regulations for carrying into effect the
provisions of the Civil Service Law and other pertinent laws. It is on the basis of this
grant of power to the CSC that CSC Resolution No. 991936, otherwise known as the
Uniform Rules on Administrative Cases in the Civil Service was promulgated.

Indeed, the rule-making power of the administrative body is intended to enable it to

implement the policy of the law and to provide for the more effective enforcement of its
provisions. Through the exercise of this power of subordinate legislation, it is possible
for the administrative body to transmit "the active power of the state from its source to
the point of application," that is, apply the law and so fulfill the mandate of the
legislature. It is an elementary rule in administrative law that administrative regulations
and policies enacted by administrative bodies to interpret the law which they are
entrusted to enforce, have the force of law, are entitled to great respect, and have in
their favor a presumption of legality.

Furthermore, Section 10 of Rule 43 of the 1997 Rules of Civil Procedure, provides that
the findings of fact of the court or agency concerned, when supported by substantial
evidence, shall be binding on the Court of Appeals. Indeed, jurisprudence is replete with
the rule that findings of fact of quasi-judicial agencies which have acquired expertise
because their jurisdiction is confined to specific matters are generally accorded not only
respect, but at times even finality if such findings are supported by substantial evidence.

WHEREFORE, the instant petition is DENIED. The assailed Resolutions dated January
21, 2004 and June 7, 2004, issued by the Civil Service Commission, are AFFIRMED.

SO ORDERED.12

Hence, TIDCORP has appealed to the Court.13

Issue

The sole issue concerns the validity of TIDCORPs 90-day preventive suspension of
Demigillo.

Ruling

We grant the petition, and hold that the 90-day preventive suspension order issued
against Demigillo was valid.
The Revised Administrative Code of 1987 (RAC) embodies the major structural,
functional and procedural principles and rules of governance of government agencies
and constitutional bodies like the CSC. Section 1, Chapter 1, Subtitle A, Title I, Book V,
of the RAC states that the CSC is the central personnel agency of the government.
Section 51 and Section 52, Chapter 6, Subtitle A, Title I, Book V of the RAC respectively
contain the rule on preventive suspension of a civil service officer or employee pending
investigation, and the duration of the preventive suspension, viz:

Section 51. Preventive Suspension. The proper disciplining authority may preventively
suspend any subordinate officer or employee under his authority pending an
investigation, if the charge against such officer or employee involves dishonesty,
oppression or grave misconduct, or neglect in the performance of duty, or if there are
reasons to believe that the respondent is guilty of charges which would warrant his
removal from the service.

Section 52. Lifting of Preventive Suspension Pending Administrative Investigation.

When the administrative case against the officer or employee under preventive
suspension is not finally decided by the disciplining authority within the period of ninety
(90) days after the date of suspension of the respondent who is not a presidential
appointee, the respondent shall be automatically reinstated in the service: Provided,
That when the delay in the disposition of the case is due to the fault, negligence or
petition of the respondent, the period of delay shall not be counted in computing the
period of suspension herein provided.

Under Section 51, supra, the imposition of preventive suspension by the proper
disciplining authority is authorized provided the charge involves dishonesty, oppression,
or grave misconduct, or neglect in the performance of duty, or if there are reasons to
believe that the respondent is guilty of charges which would warrant his removal from
the service. Section 51 nowhere states or implies that before a preventive suspension
may issue there must be proof that the subordinate may unduly influence the witnesses
against him or may tamper the documentary evidence on file in her office.

In Gloria v. Court of Appeals, 14 several public school teachers were preventively

suspended for 90 days while being investigated for the charge of grave misconduct,
among others. Citing Section 51 of the RAC, the Court sustained the imposition of the
90-day preventive suspension pending investigation of the charges, saying:

The preventive suspension of civil service employees charged with dishonesty,

oppression or grave misconduct, or neglect of duty is authorized by the Civil Service
Law. It cannot, therefore, be considered "unjustified," even if later the charges are
dismissed so as to justify the payment of salaries to the employee concerned. It is one
of those sacrifices which holding a public office requires for the public good xxx. 15

Pursuant to its rule-making authority, the CSC promulgated the Uniform Rules on
August 31, 1999. Section 19 and Section 20 of Rule II of the Uniform Rules defined the
guidelines in the issuance of an order of preventive suspension and the duration of the
suspension, to wit:

Section 19. Preventive Suspension. Upon petition of the complainant or motu proprio,
the proper disciplining authority may issue an order of preventive suspension upon
service of the Formal Charge, or immediately thereafter to any subordinate officer or
employee under his authority pending an investigation, if the charge involves:

a. dishonesty;

b. oppression;

c. grave misconduct;

d. neglect in the performance of duty; or

e. if there are reasons to believe that the respondent is guilty of charges which
would warrant his removal from the service.

An order of preventive suspension may be issued to temporarily remove the respondent

from the scene of his misfeasance or malfeasance and to preclude the possibility of
exerting undue influence or pressure on the witnesses against him or tampering of
documentary evidence on file with his Office.

In lieu of preventive suspension, for the same purpose, the proper disciplining authority
or head of office may reassign respondent to other unit of the agency during the formal
hearings.

Section 20. Duration of Preventive Suspension. When the administrative case against
an officer or employee under preventive suspension is not finally decided by the
disciplining authority within the period of ninety (90) days after the date of his preventive
suspension, unless otherwise provided by special law, he shall be automatically
reinstated in the service; provided that, when the delay in the disposition of the case is
due to the fault, negligence or petition of the respondent, the period of delay should not
be included in the counting of the 90 calendar days period of preventive suspension.
Provided further that should the respondent be on Maternity/Paternity leave, said
preventive suspension shall be deferred or interrupted until such time that said leave
has been fully enjoyed.

It is clear from Section 19, supra, that before an order of preventive suspension pending
an investigation may validly issue, only two prerequisites need be shown, namely: (1)
that the proper disciplining authority has served a formal charge to the affected officer or
employee; and (2) that the charge involves either dishonesty, oppression, grave
misconduct, neglect in the performance of duty, or if there are reasons to believe that
the respondent is guilty of the charges which would warrant her removal from the
service. Proof showing that the subordinate officer or employee may unduly influence
the witnesses against her or may tamper the documentary evidence on file in her office
is not among the prerequisites.

Preventing the subordinate officer or employee from influencing the witnesses and
tampering the documentary evidence under her custody are mere purposes for which
an order of preventive suspension may issue as reflected under paragraph 2 of Section
19, supra. This is apparent in the phrase "for the same purpose" found in paragraph 3 of
Section 19. A "purpose" cannot be considered and understood as a "condition." A
purpose means "reason for which something is done or exists," while a condition refers
to a "necessary requirement for something else to happen;" or is a "restriction,
qualification."16 The two terms have different meanings and implications, and one
cannot substitute for the other.

In Gloria v. Court of Appeals, 17 we stated that preventive suspension pending

investigation "is a measure intended to enable the disciplining authority to investigate
charges against respondent by preventing the latter from intimidating or in any way
influencing witnesses against him." As such, preventing the subordinate officer or
employee from intimidating the witnesses during investigation or from tampering the
documentary evidence in her office is a purpose, not a condition, for imposing
preventive suspension, as shown in the use of the word "intended."

Relevantly, CSC Resolution No. 030502, which was issued on May 5, 2003 for the
proper enforcement of preventive suspension pending investigation, provides in part as
follows:

WHEREAS, Sections 51 and 52, Chapter 6, Subtitle A, Title I, Book V of the

Administrative Code of 1987, set out the controlling standards on the imposition of
preventive suspension, as follows:

xxxx
WHEREAS, in order to effectuate the afore-quoted provisions of law, the Civil Service
Commission, as the central personnel agency of the government empowered, inter alia,
with the promulgation, amendment and enforcement of rules and regulations intended
to carry out into effect the provisions of the Civil Service Law and other pertinent laws,
adopted Sections 19, 20, and 21 of the Uniform Rules on Administrative Cases in the
Civil Service (CSC Memorandum Circular No. 19, s. 1999), to wit:

xxxx

4. The imposition of preventive suspension shall be confined to the well-defined

instances set forth under the pertinent provisions of the Administrative Code of 1987
and the Local Government Code of 1991. Both of these laws decree that recourse may
be had to preventive suspension where the formal charge involves any of the following
administrative offenses, or under the circumstances specified in paragraph (e) herein:

a. Dishonesty;

b. Oppression;

c. Grave Misconduct;

d. Neglect in the performance of duty; or

e. If there are reasons to believe that the respondent is guilty of the charge/s,
which would warrant his removal from the service.

xxxx

a. A declaration by a competent authority that an order of preventive suspension is null

and void on its face entitles the respondent official or employee to immediate
reinstatement and payment of back salaries corresponding to the period of the unlawful
preventive suspension.

The phrase "null and void on its face" in relation to a preventive suspension order
imports any of the following circumstances:

i) The order was issued by one who is not authorized by law;

ii) The order was not premised on any of the grounds or causes warranted by law;

iii) The order of suspension was without a formal charge; or

iv) While lawful in the sense that it is based on the enumerated grounds, the duration of
the imposed preventive suspension has exceeded the prescribed periods, in which case
the payment of back salaries shall correspond to the excess period only.

CSC Resolution No. 030502 apparently reiterates the rule stated in Section 19 of the
Uniform Rules, supra, that for a preventive suspension to issue, there must be a formal
charge and the charge involves the offenses enumerated therein. The resolution
considers an order of preventive suspension as null and void if the order was not
premised on any of the mentioned grounds, or if the order was issued without a formal
charge. As in the case of Section 19, the resolution does not include as a condition for
issuing an order of preventive suspension that there must be proof adduced showing
that the subordinate officer or employee may unduly influence the witnesses against her
or tamper the documentary evidence in her custody.

Consequently, the CSC and the CA erred in making the purpose of preventive
suspension a condition for its issuance.1wphi1 Although, as a rule, we defer to the
interpretation by administrative agencies like the CSC of their own rules, especially if
the interpretation is affirmed by the CA, we withhold deference if the interpretation is
palpably erroneous,18 like in this instance.

We hold that TIDCORPs issuance against Demigillo of the order for her 90-day
preventive suspension pending the investigation was valid and lawful.

WHEREFORE, we GRANT the petition for review on certiorari; SET ASIDE the decision
of the Court of Appeals promulgated on November 7, 2006, and DECLARE AS
VALID the order for the preventive suspension for 90 days of MA. ROSARIO S.
MANALANG-DEMIGILIO pending her investigation for grave misconduct.

The respondent shall pay the costs of suit.

SO ORDERED.

G.R. No. 196355 September 18, 2012

BIENVENIDO WILLIAM D. LLOREN, Petitioner,

vs.
THE COMMISSION ON ELECTIONS and ROGELIO PUA, JR., Respondents.
DECISION

BERSAMIN, J.:

This special civil action for certiorari seeks to set aside the dismissal by the First
Division of the Commission on Elections (COMELEC) of petitioners appeal taken in his
election protest on the ground that he did not pay the appeal fee on time and the denial
of his motion for reconsideration by the COMELEC En Banc on the ground that he did
not pay the motion fee on time as required by the rules of the COMELEC.

The dismissal of petitioners appeal was through the order issued on January 31, 2011
by the First Division of the COMELEC, 1 while the denial of the motion for
reconsideration was through the order dated March 16, 2011 of the COMELEC En
Banc.2

Antecedents

Petitioner and respondent Rogelio Pua, Jr. (Pua) were the candidates for Vice-Mayor of
the Municipality of Inopacan, Leyte in the May 10, 2010 Automated National and Local
Elections. The Municipal Board of Canvassers proclaimed Pua as the winning candidate
with a plurality of 752 votes for garnering 5,682 votes as against petitioners 4,930
votes.

Alleging massive vote-buying, intimidation, defective PCOS machines in all the

clustered precincts, election fraud, and other election-related manipulations, petitioner
commenced Election Protest Case (EPC) No. H-026 in the Regional Trial Court (RTC)
in Hilongos, Leyte.

In his answer with special and affirmative defenses and counterclaim, Pua alleged that
the election protest stated no cause of action, was insufficient in form and content, and
should be dismissed for failure of petitioner to pay the required cash deposit.

On November 12, 2012, the RTC dismissed the election protest for insufficiency in form
and substance and for failure to pay the required cash deposit, 3 viz:

ALL THE FOREGOING CONSIDERED, for insufficiency in form and content as required
under Rule 2, Sec. 10 (c) (ii) and (iv) and for failing to make the required cash deposit
within the given period, the instant election protest is hereby DISMISSED.

With costs against the protestant.

SO ORDERED.4
On November 17, 2010, petitioner filed a notice of appeal in the RTC, 5 and paid the
appeal fee of P 1,000.00 to the same court. The RTC granted due course to the appeal
on November 24, 2010.

On December 2, 2010, the fifteenth day from the filing of the notice of appeal, petitioner
remitted the appeal fee of P 3,200.00 to the COMELEC Electoral Contests Adjudication
Department (ECAD) by postal money order.6

Through the first assailed order of January 31, 2011, however, the COMELEC First
Division dismissed the appeal on the ground of petitioners failure to pay the appeal fee
within the period set under Section 4, Rule 40 of the COMELEC Rules of
Procedure,7 holding:

The Commission (First division) RESOLVED as it hereby RESOLVES to DISMISS the

instant appeal case for protestant-appellants failure to pay the amount of Three
thousand Pesos (Php3,000.00) appeal fee within the reglementary period under the
1993 Comelec Rules of Procedure as amended by Comelec Resolution No. 02-0130
dated 18 September 2002.

Section 4, Rule 40 of the Comelec Rules of Procedure mandates the payment of the
appeal fee within the period to file the notice of appeal or five (5) days from receipt of
the decision sought to be appealed, while Sec. 9, Rule 22 of the same Rules provides
that failure to pay the appeal fee is a ground for the dismissal of the appeal. These
provisions were reinforced by the ruling of the Supreme Court in the case of
Divinagracia vs. Comelec (G.R. Nos. 186007 & 186016) promulgated on 27 July 2009.
The Ruling declared that for notices of appeal filed after its promulgation, errors in the
matters of non-payment or incomplete payment of appeal fees in the court a quo and
the Commission on Elections are no longer excusable.

SO ORDERED.

Petitioner moved for the reconsideration of the dismissal on February 14, 2011, and
later sent a notice dated March 3, 2011, stating that he paid the motion fee of P 300.00
by postal money order.

On March 16, 2011, the COMELEC En Banc denied petitioners motion for
reconsideration through the second assailed order, viz: 8

xxx the Commission En Banc hereby resolves to DENY the same for protestant-
appellants FAILURE to PAY the required motion fees prescribed under Section 7 (f),
Rule 40, Comelec Rules of Procedure, as amended by Comelec Minute Resolution No.
02-0130 dated September 18, 2002, in relation to Section 18, Rule 40, same Comelec
Rules.

In the same order of March 16, 2011, the COMELEC En Banc directed the Clerk of the
Commission, ECAD, to issue an entry of judgment and to record the entry of judgment
in the Book of Entries of Judgment.

Aggrieved, petitioner commenced this special civil action for certiorari to annul the
assailed orders of the COMELEC.

Issue

Petitioner contends that he timely filed his notice of appeal in the RTC and timely paid
the appeal fee of P 1,000.00 on November 17, 2010; and that he also paid the appeal
fee of P 3,200.00 to the COMELEC ECAD on December 2, 2010 within the 15-day
reglementary period counted from the filing of the notice of appeal, conformably with
Resolution No. 8486 dated July 15, 2008.

In his comment, Pua maintains that petitioner paid the P 3,200.00 beyond the five-day
reglementary period under Section 4, Rule 40 of the COMELEC Rules of Procedure;
and that petitioner did not pay the motion fee of P 300.00 prescribed under Section 7(f),
Rule 40 of the same rules. Hence, Pua submits that the dismissal of petitioners appeal
and denial of his motion for reconsideration did not constitute grave abuse of discretion.

The issue of whether the COMELEC committed grave abuse of discretion amounting to
lack or excess of jurisdiction in issuing the assailed orders is approached through two
questions: firstly, the procedural, which concerns the determination of whether or not
petitioner timely paid the appeal fee and motion fee under the COMELEC Rules of
Procedure; and, secondly, the substantive, which delves on whether or not the appeal
may still proceed.

Ruling

The petition is meritorious as to the procedural question, but not as to the substantive
question.

1.
Procedural Question:
Petitioner timely perfected his appeal

The rules on the timely perfection of an appeal in an election case requires two different
appeal fees, one to be paid in the trial court together with the filing of the notice of
appeal within five days from notice of the decision, and the other to be paid in the
COMELEC Cash Division within the 15-day period from the filing of the notice of appeal.

In A.M. No. 07-4-15-SC, the Court promulgated the Rules of Procedure In Election
Contests Before The Courts Involving Elective Municipal and Barangay Officials
(hereafter, the Rules in A.M. No. 07-4-15-SC), effective on May 15, 2007, to set down
the procedure for election contests and quo warranto cases involving municipal and
barangay officials that are commenced in the trial courts. The Rules in A.M. No. 07-4-
15-SC superseded Rule 35 ("Election Contests Before Courts of General Jurisdiction")
and Rule 36 ("Quo Warranto Case Before Courts of General Jurisdiction") of the 1993
COMELEC Rules of Procedure.

Under Section 8,9 of Rule 14 of the Rules in A.M. No. 07-4-15-SC, an aggrieved party
may appeal the decision of the trial court to the COMELEC within five days after
promulgation by filing a notice of appeal in the trial court that rendered the decision,
serving a copy of the notice of appeal on the adverse counsel or on the adverse party if
the party is not represented by counsel. Section 9, 10 of Rule 14 of the Rules in A.M. No.
07-4-15-SC prescribes for that purpose an appeal fee of P 1,000.00 to be paid to the
trial court rendering the decision simultaneously with the filing of the notice of appeal.

It should be stressed, however, that the Rules in A.M. No. 07-4-15-SC did not
supersede the appeal fee prescribed by the COMELEC under its own rules of
procedure. As a result, "the requirement of two appeal fees by two different jurisdictions
caused a confusion in the implementation by the COMELEC of its procedural rules on
the payment of appeal fees necessary for the perfection of appeals." 11 To remove the
confusion, the COMELEC issued Resolution No. 8486, 12 effective on July 24,
2008,13 whereby the COMELEC clarified the rules on the payment of the two appeal
fees by allowing the appellant to pay the COMELECs appeal fee of P 3,200.00 at the
COMELECs Cash Division through the ECAD or by postal money order payable to the
COMELEC within a period of 15 days from the time of the filing of the notice of appeal in
the trial court, to wit:

xxxx

1. That if the appellant had already paid the amount of P 1,000.00 before the Regional
Trial Court, Metropolitan Trial Court, Municipal Trial Court or lower courts within the five-
day period, pursuant to Section 9, Rule 14 of the Rules of Procedure in Election
Contests Before the Courts Involving Elective Municipal and Barangay Officials
(Supreme Court Administrative Order No. 07-4-15) and his Appeal was given due
course by the Court, said appellant is required to pay the Comelec appeal fee
of P 3,200.00 at the Commissions Cash Division through the Electoral Contests
Adjudication Department (ECAD) or by postal money order payable to the Commission
on Elections through ECAD, within a period of fifteen days (15) from the time of the filing
of the Notice of Appeal with the lower court. If no payment is made within the prescribed
period, the appeal shall be dismissed pursuant to Section 9 (a) of Rule 22 of the
COMELEC Rules of Procedure, which provides:

Sec. 9. Grounds for Dismissal of Appeal. The appeal may be dismissed upon motion
of either party or at the instance of the Commission on any of the following grounds:

(a) Failure of the appellant to pay the correct appeal fee; xxx

2. That if the appellant failed to pay the P 1,000.00-appeal fee with the lower court
within the five (5) day period as prescribed by the Supreme Court New Rules of
Procedure but the case was nonetheless elevated to the Commission, the appeal shall
be dismissed outright by the Commission, in accordance with the aforestated Section 9
(a) of Rule 22 of the Comelec Rules of Procedure.

xxxx

Following the clarification made by the COMELEC in Resolution No. 8486, the Court
declared an end to the confusion arising from the requirement of two appeal fees
effective on July 27, 2009, the date of promulgation of the ruling in Divinagracia, Jr. v.
Commission on Elections14 by announcing that "for notices of appeal filed after the
promulgation of this decision, errors in the matter of non-payment or incomplete
payment of the two appeal fees in election cases are no longer excusable."15

In light of the foregoing, the Court finds that petitioner perfected his appeal of the
decision rendered on November 12, 2012 by the RTC in EPC No. H-026. He filed his
notice of appeal and paid the P 1,000.00 appeal fee to the RTC on November 17, 2012.
Such filing and payment, being done within five days from the promulgation of the
decision, complied with Section 8, Rule 14 of the Rules in A.M. No. 07-4-15-SC.
Thereafter, he paid the appeal fee of P 3,200.00 to the COMELEC Cash Division
through the ECAD on December 2, 2012. Such payment, being done on the fifteenth
day from his filing of the notice of appeal in the RTC, complied with Resolution No.
8486.

Yet, in determining whether petitioner had perfected his appeal, the COMELEC First
Division relied on Section 4 of Rule 40 of its 1993 Rules of Procedure, a provision that
required an appellant to pay the appeal fee prescribed by the COMELEC within the
period to file the notice of appeal.16
The reliance on Section 4 of Rule 40 of the COMELEC 1993 Rules of Procedure was
plainly arbitrary and capricious. The COMELEC First Division thereby totally
disregarded Resolution No. 8486, whereby the COMELEC revised Section 4 of Rule 40
of the 1993 Rules of Procedure by expressly allowing the appellant "to pay the Comelec
appeal fee of P 3,200.00 at the Commissions Cash Division through the Electoral
Contests Adjudication Department (ECAD) or by postal money order payable to the
Commission on Elections through ECAD, within a period of fifteen days (15) from the
time of the filing of the Notice of Appeal with the lower court." In effect, the period of
perfecting the appeal in the COMELEC was extended from the original period of five
days counted from promulgation of the decision by the trial court to a longer period of 15
days reckoned from the filing of the notice of appeal in the trial court.

Accordingly, the order issued on January 31, 2011 by the COMELEC First Division was
null and void for being contrary to Resolution No. 8486.

As to the order issued on March 16, 2011 by the COMELEC En Banc, the Court finds
that the COMELEC En Banc was capricious and arbitrary in thereby denying petitioners
motion for reconsideration on the ground that he did not simultaneously pay the motion
fee of P 300.00 prescribed by Section 7(f), Rule 40 of the 1993 Rules of Procedure.

The non-payment of the motion fee of P 300.00 at the time of the filing of the motion for
reconsideration did not warrant the outright denial of the motion for reconsideration, but
might only justify the COMELEC to refuse to take action on the motion for
reconsideration until the fees were paid, or to dismiss the action or proceeding when no
full payment of the fees is ultimately made. The authority to dismiss is discretionary and
permissive, not mandatory and exclusive, as expressly provided in Section 18, Rule 40
of the 1993 Rules of Procedure itself, to wit:

Section 18. Non-payment of Prescribed Fees. - If the fees above prescribed are not
paid, the Commission may refuse to take action thereon until they are paid and may
dismiss the action or the proceeding. (emphasis supplied)

The evident intent of rendering Section 18, Rule 40 of the 1993 Rules of Procedure
discretionary and permissive is to accord the movant an opportunity to pay the motion
fee in full. The dire outcome of denial of the motion for reconsideration should befall the
movant only upon his deliberate or unreasonable failure to pay the fee in full. It appears,
however, that petitioners failure to pay the motion fee simultaneously with his filing of
the motion for reconsideration was neither deliberate nor unreasonable. He actually
paid the fee by postal money order on March 3, 2011.17
In light of his having complied with the requirements for a timely perfection of the appeal
in both the RTC and the COMELEC, and considering that he actually paid the motion
fee, the COMELEC En Bancs strict and rigid application of the discretionary and
permissive rule amounted to giving undue primacy to technicality over substance. That
outcome would not be just to petitioner, for the COMELEC En Banc would close its eyes
to the patent error committed by the First Division in entirely ignoring Resolution No.
8486. Accordingly, the assailed order of March 16, 2011 is another nullity to be struck
down.

2.
Substantive Question:
Petitioners election protest lacks merit

Nonetheless, we affirm the dismissal by the RTC of EPC No. H-026 for being in accord
with the Rules in A.M. No. 10-4-1-SC.

Section 10(c), Rule 2 of the Rules in A.M. No. 10-4-1-SC pertinently provides as follows:

Section 10. Contents of the protest or petition.

xxxx

c. An election protest shall also state:

(i) that the protestant was a candidate who had duly filed a certificate of candidacy and
had been voted for the same office;

(ii) the total number of precincts in the municipality;

(iii) the protested precincts and votes of the parties in the protested precincts per the
Statement of Votes by Precinct or, if the votes of the parties are not specified, an
explanation why the votes are not specified; and

(iv) a detailed specification of the acts or omissions complained of showing the electoral
frauds, anomalies or irregularities in the protested precincts. (Emphasis supplied)

As the findings of the RTC show, petitioner did not indicate the total number of precincts
in the municipality in his election protest.1wphi1 The omission rendered the election
protest insufficient in form and content, and warranted its summary dismissal, in
accordance with Section 12, Rule 2 of the Rules in A.M. No. 10-4-1-SC, to wit:
Section 12. Summary dismissal of election contests. The court shall summarily
dismiss, motu proprio, an election protest, counter-protest or petition for quo warranto
on any of the following grounds:

(a) The court has no jurisdiction over the subject matter;

(b) The petition is insufficient in form and content as required under Section 10;

(c) The petition is filed beyond the period prescribed in these Rules;

(d) The filing fee is not paid within the period for filing the election protest or petition for
quo warranto; and

(e) In a protest case where cash deposit is required, the deposit is not paid within five
(5) days from the filing of the protest. (Emphasis supplied)

Likewise, the RTC found that the cash deposit made by petitioner was insufficient.
Considering that the Court cannot disturb the findings on the insufficiency of petitioners
cash deposit made by the trial court, that finding was another basis for the summary
dismissal of the election protest under Section 12.

We note that the summary dismissal of the election protest upon any of the grounds
mentioned in Section 12 is mandatory.

WHEREFORE, the Court PARTIALLY GRANTS the petition for certiorari; ANNULS AND
SETS ASIDE the assailed orders of the COMELEC First Division and the COMELEC En
Banc respectively dated January 31, 2011 and March 16, 2011; AFFIRMS the Decision
rendered on November 12, 2010 by the Regional Trial Court dismissing Election Protest
Case No. H-026 for insufficiency in form and content of the election protest as well as
for insufficiency of protestants cash deposit; and ORDERS petitioner to pay the costs of
suit.

SO ORDERED.
G.R. No. 196804 October 9, 2012

MAYOR BARBARA RUBY C. TALAGA, Petitioner,

vs.
COMMISSION ON ELECTIONS and RODERICK A. ALCALA, Respondents.

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

G.R. No. 197015

PHILIP M. CASTILLO, Petitioner,

vs.
COMMISSION ON ELECTIONS, BARBARA RUBY TALAGA and RODERICK A.
ALCALA, Respondents.
DECISION

BERSAMIN, J.:

In focus in these consolidated special civil actions are the disqualification of a substitute
who was proclaimed the winner of a mayoralty election; and the ascertainment of who
should assume the office following the substitutes disqualification.

The consolidated petitions for certiorari seek to annul and set aside the En Banc
Resolution issued on May 20, 2011 in SPC No. 10-024 by the Commission on Elections
(COMELEC), the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered:

1. REVERSING and SETTING ASIDE the January 11, 2011 Resolution of the
Second Division;

2. GRANTING the petition in intervention of Roderick A. Alcala;

3. ANNULLING the election and proclamation of respondent Barbara C. Talaga

as mayor of Lucena City and CANCELLING the Certificate of Canvass and
Proclamation issued therefor;

4. Ordering respondent Barbara Ruby Talaga to cease and desist from

discharging the functions of the Office of the Mayor;

5. In view of the permanent vacancy in the Office of the Mayor of Lucena City, the
proclaimed Vice-Mayor is ORDERED to succeed as Mayor as provided under
Section 44 of the Local Government Code;

6. DIRECTING the Clerk of Court of the Commission to furnish copies of this

Resolution to the Office of the President of the Philippines, the Department of
Interior and Local Government, the Department of Finance and the Secretary of
the Sangguniang Panglunsod of Lucena City.

Let the Department of Interior and Local Government and the Regional Election Director
of Region IV of COMELEC implement this resolution.

SO ORDERED.1

Antecedents
On November 26, 2009 and December 1, 2009, Ramon Talaga (Ramon) and Philip M.
Castillo (Castillo) respectively filed their certificates of candidacy (CoCs) for the position
of Mayor of Lucena City to be contested in the scheduled May 10, 2010 national and
local elections.2

Ramon, the official candidate of the Lakas-Kampi-CMD, 3 declared in his CoC that he
was eligible for the office he was seeking to be elected to.

Four days later, or on December 5, 2009, Castillo filed with the COMELEC a petition
denominated as In the Matter of the Petition to Deny Due Course to or Cancel
Certificate of Candidacy of Ramon Y. Talaga, Jr. as Mayor for Having Already Served
Three (3) Consecutive Terms as a City Mayor of Lucena, which was docketed as SPA
09-029 (DC).4 He alleged

therein that Ramon, despite knowing that he had been elected and had served three
consecutive terms as Mayor of Lucena City, still filed his CoC for Mayor of Lucena City
in the May 10, 2010 national and local elections.

The pertinent portions of Castillos petition follow:

1. Petitioner is of legal age, Filipino, married, and a resident of Barangay Mayao

Crossing, Lucena City but may be served with summons and other processes of
this Commission at the address of his counsel at 624 Aurora Blvd., Lucena City
4301;

2. Respondent Ramon Y. Talaga, Jr. is likewise of legal age, married, and a

resident of Barangay Ibabang Iyam, Lucena City and with postal address at the
Office of the City Mayor, City Hall, Lucena City, where he may be served with
summons and other processes of this Commission;

3. Petitioner, the incumbent city vice-mayor of Lucena having been elected

during the 2007 local elections, is running for city mayor of Lucena under the
Liberal party this coming 10 May 2010 local elections and has filed his certificate
of candidacy for city mayor of Lucena;

4. Respondent was successively elected mayor of Lucena City in 2001, 2004,

and 2007 local elections based on the records of the Commission on Elections of
Lucena City and had fully served the aforesaid three (3) terms without any
voluntary and involuntary interruption;

5. Except the preventive suspension imposed upon him from 13 October 2005 to
14 November 2005 and from 4 September 2009 to 30 October 2009 pursuant to
 Sandiganbayan 4th Division Resolution in Criminal Case No. 27738 dated 3
October 2005, the public service as city mayor of the respondent is continuous
and uninterrupted under the existing laws and jurisprudence;

6. There is no law nor jurisprudence to justify the filing of the certificate of

candidacy of the respondent, hence, such act is outrightly unconstitutional,
illegal, and highly immoral;

7. Respondent, knowing well that he was elected for and had fully served three
(3) consecutive terms as a city mayor of Lucena, he still filed his Certificate of
Candidacy for City Mayor of Lucena for this coming 10 May 2010 national and
local elections;

8. Under the Constitution and existing Election Laws, New Local Government
Code of the Philippines, and jurisprudence the respondent is no longer entitled
and is already disqualified to be a city mayor for the fourth consecutive term;

9. The filing of the respondent for the position of city mayor is highly improper,
unlawful and is potentially injurious and prejudicial to taxpayers of the City of
Lucena; and

10. It is most respectfully prayed by the petitioner that the respondent be

declared disqualified and no longer entitled to run in public office as city mayor of
Lucena City based on the existing law and jurisprudence. 5

The petition prayed for the following reliefs, to wit:

WHEREFORE, premises considered, it is respectfully prayed that the Certificate of

Candidacy filed by the respondent be denied due course to or cancel the same and that
he be declared as a disqualified candidate under the existing Election Laws and by the
provisions of the New Local Government Code.6 (Emphasis supplied.)

Ramon countered that that the Sandiganbayan had preventively suspended him from
office during his second and third terms; and that the three-term limit rule did not then
apply to him pursuant to the prevailing jurisprudence 7 to the effect that an involuntary
separation from office amounted to an interruption of continuity of service for purposes
of the application of the three-term limit rule.

In the meantime, on December 23, 2009, the Court promulgated the ruling in Aldovino,
Jr. v. Commission on Elections, 8 holding that preventive suspension, being a mere
temporary incapacity, was not a valid ground for avoiding the effect of the three-term
limit rule. Thus, on December 30, 2009, Ramon filed in the COMELEC a Manifestation
with Motion to Resolve, taking into account the intervening ruling in Aldovino. Relevant
portions of his Manifestation with Motion to Resolve are quoted herein, viz:

4. When respondent filed his certificate of candidacy for the position of Mayor of Lucena
City, the rule that where the separation from office is caused by reasons beyond the
control of the officer i.e. involuntary the service of term is deemed interrupted has
not yet been overturned by the new ruling of the Supreme Court. As a matter of fact, the
prevailing rule then of the Honorable Commission in [sic] respect of the three (3)-term
limitation was its decision in the case of Aldovino, et al. vs. Asilo where it stated:

"Thus, even if respondent was elected during the 2004 elections, which was supposedly
his third and final term as city councilor, the same cannot be treated as a complete
service or full term in office since the same was interrupted when he was suspended by
the Sandiganbayan Fourth Division. And the respondent actually heeded the
suspension order since he did not receive his salary during the period October 16-31
and November 1-15 by reason of his actual suspension from office. And this was further
bolstered by the fact that the DILG issued a

Memorandum directing him, among others, to reassume his position." (Emphasis

supplied.)

5. Clearly, there was no misrepresentation on the part of respondent as would constitute

a ground for the denial of due course to and/or the cancellation of respondents
certificate of candidacy at the time he filed the same. Petitioners ground for the denial
of due course to and/or the cancellation of respondents certificate of candidacy thus
has no basis, in fact and in law, as there is no ground to warrant such relief under the
Omnibus Election Code and/or its implementing laws.

6. Pursuant, however, to the new ruling of the Supreme Court in respect of the issue on
the three (3)-term limitation, respondent acknowledges that he is now DISQUALIFIED to
run for the position of Mayor of Lucena City having served three (3) (albeit interrupted)
terms as Mayor of Lucena City prior to the filing of his certificate of candidacy for the
2010 elections.

7. In view of the foregoing premises and new jurisprudence on the matter, respondent
respectfully submits the present case for decision declaring him as DISQUALIFIED to
run for the position of Mayor of Lucena City.9

Notwithstanding his express recognition of his disqualification to run as Mayor of

Lucena City in the May 10, 2010 national and local elections, Ramon did not withdraw
his CoC.
Acting on Ramons Manifestation with Motion to Resolve, the COMELEC First Division
issued a Resolution on April 19, 2010,10 disposing as follows:

WHEREFORE, premises considered, the instant Petition is hereby GRANTED.

Accordingly, Ramon Y. Talaga, Jr. is hereby declared DISQUALIFIED to run for Mayor of
Lucena City for the 10 May 2010 National and Local Elections.

SO ORDERED.

Initially, Ramon filed his Verified Motion for Reconsideration against the April 19, 2010
Resolution of the COMELEC First Division. 11 Later on, however, he filed at 9:00 a.m. of
May 4, 2010 an Ex-parte Manifestation of Withdrawal of the Pending Motion for
Reconsideration.12 At 4:30 p.m. on the same date, Barbara Ruby filed her own CoC for
Mayor of Lucena City in substitution of Ramon, attaching thereto the Certificate of
Nomination and Acceptance (CONA) issued by Lakas-Kampi-CMD, the party that had
nominated Ramon.13

On May 5, 2010, the COMELEC En Banc, acting on Ramons Ex parte Manifestation of

Withdrawal, declared the COMELEC First Divisions Resolution dated April 19, 2010
final and executory.14

On election day on May 10, 2010, the name of Ramon remained printed on the ballots
but the votes cast in his favor were counted in favor of Barbara Ruby as his substitute
candidate, resulting in Barbara Ruby being ultimately credited with 44,099 votes as
against Castillos 39,615 votes.15

Castillo promptly filed a petition in the City Board of Canvassers (CBOC) seeking the
suspension of Barbara Rubys proclamation.16

It was only on May 13, 2010 when the COMELEC En Banc, upon the recommendation
of its Law Department,17gave due course to Barbara Rubys CoC and CONA through
Resolution No. 8917, thereby including her in the certified list of
candidates.18 Consequently, the CBOC proclaimed Barbara Ruby as the newly-elected
Mayor of Lucena City.19

On May 20, 2010, Castillo filed a Petition for Annulment of Proclamation with the
COMELEC,20 docketed as SPC 10-024. He alleged that Barbara Ruby could not
substitute Ramon because his CoC had been cancelled and denied due course; and
Barbara Ruby could not be considered a candidate because the COMELEC En Banc
had approved her substitution three days after the elections; hence, the votes cast for
Ramon should be considered stray.
In her Comment on the Petition for Annulment of Proclamation, 21 Barbara Ruby
maintained the validity of her substitution. She countered that the COMELEC En Banc
did not deny due course to or cancel Ramons COC, despite a declaration of his
disqualification, because there was no finding that he had committed misrepresentation,
the ground for the denial of due course to or cancellation of his COC. She prayed that
with her valid substitution, Section 12 of Republic Act No. 9006 22 applied, based on
which the votes cast for Ramon were properly counted in her favor.

On July 26, 2010, Roderick Alcala (Alcala), the duly-elected Vice Mayor of Lucena City,
sought to intervene,23positing that he should assume the post of Mayor because
Barbara Rubys substitution had been invalid and Castillo had clearly lost the elections.

On January 11, 2011, the COMELEC Second Division dismissed Castillos petition and
Alcalas petition-in-intervention,24 holding:

In the present case, Castillo was notified of Resolution 8917 on May 13, 2010 as it was
the basis for the proclamation of Ruby on that date. He, however, failed to file any action
within the prescribed period either in the Commission or the Supreme Court assailing
the said resolution. Thus, the said resolution has become final and executory. It cannot
anymore be altered or reversed.

xxxx

x x x. A close perusal of the petition filed by Castillo in SPA 10-029 (Dc) shows that it
was actually for the disqualification of Ramon for having served three consecutive
terms, which is a ground for his disqualification under the Constitution in relation to
Section 4(b)3 of Resolution 8696. There was no mention therein that Ramon has
committed material representation that would be a ground for the cancellation or denial
of due course to the CoC of Ramon under Section 78 of the Omnibus Election Code.
The First Division, in fact, treated the petition as one for disqualification as gleaned from
the body of the resolution and its dispositive portion quoted above. This treatment of the
First Division of the petition as one for disqualification only is affirmed by the fact that its
members signed Resolution No. 8917 where it was clearly stated that the First Division
only disqualified Ramon.

Having been disqualified only, the doctrine laid down in Miranda v. Abaya is not
applicable. Ramon was rightly substituted by Ruby. As such, the votes for Ramon
cannot be considered as stray votes but should be counted in favor of Ruby since the
substituted and the substitute carry the same surname Talaga, as provided in Section
12 of Republic Act No. 9006.
xxxx

Moreover, there is no provision in the Omnibus Election Code or any election laws for
that matter which requires that the substitution and the Certificate of Candidacy of the
substitute should be approved and given due course first by the Commission or the Law
Department before it can be considered as effective. All that Section 77 of the Omnibus
Election Code as implemented by Section 13 of Resolution No. 8678 requires is that it
should be filed with the proper office. The respondent is correct when she argued that in
fact even the BEI can receive a CoC of a substitute candidate in case the cause for the
substitution happened between the day before the election and mid-day of election day.
Thus, even if the approval of the substitution was made after the election, the
substitution became effective on the date of the filing of the CoC with the Certificate of
Nomination and Acceptance.

There being no irregularity in the substitution by Ruby of Ramon as candidate for mayor
of Lucena City, the counting of the votes of Ramon in favor of Ruby is proper. The
proclamation, thus, of Ruby as mayor elect of Lucena City is in order. Hence, we find no
cogent reason to annul the proclamation of respondent Barbara Ruby C. Talaga as the
duly elected Mayor of the City of Lucena after the elections conducted on May 10,
2010.25

Acting on Castillo and Alcalas respective motions for reconsideration, the COMELEC
En Banc issued the assailed Resolution dated May 20, 2011 reversing the COMELEC
Second Divisions ruling.26

Pointing out that: (a) Resolution No. 8917 did not attain finality for being issued without
a hearing as a mere incident of the COMELECs ministerial duty to receive the COCs of
substitute candidates; (b) Resolution No. 8917 was based on the wrong facts; and (c)
Ramons disqualification was resolved with finality only on May 5, 2010, the COMELEC
En Banc concluded that Barbara Ruby could not have properly substituted Ramon but
had simply become an additional candidate who had filed her COC out of time; and held
that Vice Mayor Alcala should succeed to the position pursuant to Section 44 of the
Local Government Code (LGC).27

Issues

The core issue involves the validity of the substitution by Barbara Ruby as candidate for
the position of Mayor of Lucena City in lieu of Ramon, her husband.

Ancillary to the core issue is the determination of who among the contending parties
should assume the contested elective position.
Ruling

The petitions lack merit.

1.

Existence of a valid CoC is a condition

sine qua non for a valid substitution

The filing of a CoC within the period provided by law is a mandatory requirement for any
person to be considered a candidate in a national or local election. This is clear from
Section 73 of the Omnibus Election Code, to wit:

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.

Section 74 of the Omnibus Election Code specifies the contents of a COC, viz:

Section 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

The evident purposes of the requirement for the filing of CoCs and in fixing the time limit
for filing them are, namely: (a) to enable the voters to know, at least 60 days prior to the
regular election, the candidates from among whom they are to make the choice; and (b)
to avoid confusion and inconvenience in the tabulation of the votes cast. If the law does
not confine to the duly-registered candidates the choice by the voters, there may be as
many persons voted for as there are voters, and votes may be cast even for unknown or
fictitious persons as a mark to identify the votes in favor of a candidate for another office
in the same election.28 Moreover, according to Sinaca v. Mula,29 the CoC is:

x x x in the nature of a formal manifestation to the whole world of the candidates

political creed or lack of political creed. It is a statement of a person seeking to run for a
public office certifying that he announces his candidacy for the office mentioned and that
he is eligible for the office, the name of the political party to which he belongs, if he
belongs to any, and his post-office address for all election purposes being as well
stated.

Accordingly, a persons declaration of his intention to run for public office and his
affirmation that he possesses the eligibility for the position he seeks to assume, followed
by the timely filing of such declaration, constitute a valid CoC that render the person
making the declaration a valid or official candidate.

There are two remedies available to prevent a candidate from running in an electoral
race. One is through a petition for disqualification and the other through a petition to
deny due course to or cancel a certificate of candidacy. The Court differentiated the two
remedies in Fermin v. Commission on Elections, 30 thuswise:

x x x A petition for disqualification, on the one hand, can be premised on Section 12 or

68 of the Omnibus Election Code, or Section 40 of the Local Government Code. 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.31

Inasmuch as the grounds for disqualification under Section 68 of the Omnibus Election
Code (i.e., prohibited acts of candidates, and the fact of a candidates permanent
residency in another country when that fact affects the residency requirement of a
candidate) are separate and distinct from the grounds for the cancellation of or denying
due course to a COC (i.e., nuisance candidates under Section 69 of the Omnibus
Election Code; and material misrepresentation under Section 78 of the Omnibus
Election Code), the Court has recognized in Miranda v. Abaya 32that the following
circumstances may result from the granting of the petitions, to wit:

(1) A candidate may not be qualified to run for election but may have filed a valid
CoC;

(2) A candidate may not be qualified and at the same time may not have filed a
valid CoC; and

(3) A candidate may be qualified but his CoC may be denied due course or
cancelled.
In the event that a candidate is disqualified to run for a public office, or dies, or
withdraws his CoC before the elections, Section 77 of the Omnibus Election Code
provides the option of substitution, to wit:

Section 77. Candidates in case of death, disqualification or withdrawal. If after the

last day for the filing of certificates of candidacy, an official candidate of a registered or
accredited political party dies, withdraws or is disqualified for any cause, only a person
belonging to, and certified by, the same political party may file a certificate of candidacy
to replace the candidate who died, withdrew or was disqualified. The substitute
candidate nominated by the political party concerned may file his certificate of
candidacy for the office affected in accordance with the preceding sections not later
than mid-day of the day of the election. If the death, withdrawal or disqualification
should occur between the day before the election and mid-day of election day, said
certificate may be filed with any board of election inspectors in the political subdivision
where he is a candidate, or, in the case of candidates to be voted for by the entire
electorate of the country, with the Commission.

Nonetheless, whether the ground for substitution is death, withdrawal or disqualification

of a candidate, Section 77 of the Omnibus Election Code unequivocally states that only
an official candidate of a registered or accredited party may be substituted.

Considering that a cancelled CoC does not give rise to a valid candidacy, 33 there can be
no valid substitution of the candidate under Section 77 of the Omnibus Election Code. It
should be clear, too, that a candidate who does not file a valid CoC may not be validly
substituted, because a person without a valid CoC is not considered a candidate in
much the same way as any person who has not filed a CoC is not at all a candidate. 34

Likewise, a candidate who has not withdrawn his CoC in accordance with Section 73 of
the Omnibus Election Code may not be substituted. A withdrawal of candidacy can only
give effect to a substitution if the substitute candidate submits prior to the election a
sworn CoC as required by Section 73 of the Omnibus Election Code. 35

2.

Declaration of Ramons disqualification

rendered his CoC invalid; hence, he was not
a valid candidate to be properly substituted

In the light of the foregoing rules on the CoC, the Court concurs with the conclusion of
the COMELEC En Banc that the Castillo petition in SPA 09-029 (DC) was in the nature
of a petition to deny due course to or cancel a CoC under Section 78 of the Omnibus
Election Code.

In describing the nature of a Section 78 petition, the Court said in Fermin v. Commission
on Elections:36

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.

Castillos petition contained essential allegations pertaining to a Section 78 petition,

namely: (a) Ramon made a false representation in his CoC; (b) the false representation
referred to a material matter that would affect the substantive right of Ramon as
candidate (that is, the right to run for the election for which he filed his certificate); and
(c) Ramon made the false representation with the intention to deceive the electorate as
to his qualification for public office or deliberately attempted to mislead, misinform, or
hide a fact that would otherwise render him ineligible. 37The petition expressly
challenged Ramons eligibility for public office based on the prohibition stated in the
Constitution and the Local Government Code against any person serving three
consecutive terms, and specifically prayed that "the Certificate of Candidacy filed by the
respondent Ramon be denied due course to or cancel the same and that he be
declared as a disqualified candidate." 38

The denial of due course to or the cancellation of the CoC under Section 78 involves a
finding not only that a person lacks a qualification but also that he made a material
representation that is false.39 A petition for the denial of due course to or cancellation of
CoC that is short of the requirements will not be granted. In Mitra v. Commission on
Elections,40 the Court stressed that there must also be a deliberate attempt to mislead,
thus:
The false representation under Section 78 must likewise be a "deliberate attempt to
mislead, misinform, or hide a fact that would otherwise render a candidate ineligible."
Given the purpose of the requirement, it must be made with the intention to deceive the
electorate as to the would-be candidates qualifications for public office. Thus, the
misrepresentation that Section 78 addresses cannot be the result of a mere innocuous
mistake, and cannot exist in a situation where the intent to deceive is patently absent, or
where no deception on the electorate results. The deliberate character of the
misrepresentation necessarily follows from a consideration of the consequences of any
material falsity: a candidate who falsifies a material fact cannot run; if he runs and is
elected, he cannot serve; in both cases, he can be prosecuted for violation of the
election laws.

It is underscored, however, that a Section 78 petition should not be interchanged or

confused with a Section 68 petition. The remedies under the two sections are different,
for they are based on different grounds, and can result in different eventualities. 41 A
person who is disqualified under Section 68 is prohibited to continue as a candidate, but
a person whose CoC is cancelled or denied due course under Section 78 is not
considered as a candidate at all because his status is that of a person who has not filed
a CoC.42 Miranda v. Abaya43 has clarified that a candidate who is disqualified under
Section 68 can be validly substituted pursuant to Section 77 because he 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 is not considered a
candidate.1wphi1

To be sure, the cause of Ramons ineligibility (i.e., the three-term limit) is enforced both
by the Constitution and statutory law. Article X, Section 8 of the 1987 Constitution
provides:

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 of the Local Government Code reiterates the constitutional three-term limit
for all elective local officials, to wit:

Section 43. Term of Office. (a) x x x

(b) No local elective official shall serve for more than three (3) consecutive terms in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected. (Emphasis supplied.)

The objective of imposing the three-term limit rule was "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." The Court underscored this objective in
Aldovino, Jr. v. Commission on Elections,44 stating:

x x x 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.

To accord with the constitutional and statutory proscriptions, Ramon was absolutely
precluded from asserting an eligibility to run as Mayor of Lucena City for the fourth
consecutive term. Resultantly, his CoC was invalid and ineffectual ab initio for
containing the incurable defect consisting in his false declaration of his eligibility to run.
The invalidity and inefficacy of his CoC made his situation even worse than that of a
nuisance candidate because the nuisance candidate may remain eligible despite
cancellation of his CoC or despite the denial of due course to the CoC pursuant to
Section 69 of the Omnibus Election Code.45

Ramon himself specifically admitted his ineligibility when he filed his Manifestation with
Motion to Resolve on December 30, 2009 in the COMELEC. 46 That sufficed to render
his CoC invalid, considering that for all intents and purposes the COMELECs
declaration of his disqualification had the effect of announcing that he was no candidate
at all.

We stress that a non-candidate like Ramon had no right to pass on to his substitute. As
Miranda v. Abaya aptly put it:

Even on the most basic and fundamental principles, it is readily understood that the
concept of a substitute presupposes the existence of the person to be substituted, for
how can a person take the place of somebody who does not exist or who never was.
The Court has no other choice but to rule that in all the instances enumerated in Section
77 of the Omnibus Election Code, the existence of a valid certificate of candidacy
seasonably filed is a requisite sine qua non.

All told, a disqualified candidate may only be substituted if he had a valid certificate of
candidacy in the first place because, if the disqualified candidate did not have a valid
and seasonably filed certificate of candidacy, he is and was not a candidate at all. If a
person was not a candidate, he cannot be substituted under Section 77 of the Code.
Besides, if we were to allow the so-called "substitute" to file a "new" and "original"
certificate of candidacy beyond the period for the filing thereof, it would be a crystalline
case of unequal protection of the law, an act abhorred by our Constitution. 47 (Emphasis
supplied)

3.

Granting without any qualification of petition in

SPA No. 09-029(DC) manifested COMELECs intention to
declare Ramon disqualified and to cancel his CoC

That the COMELEC made no express finding that Ramon committed any deliberate
misrepresentation in his CoC was of little consequence in the determination of whether
his CoC should be deemed cancelled or not.

In Miranda v. Abaya,48 the specific relief that the petition prayed for was that the CoC
"be not given due course and/or cancelled." The COMELEC categorically granted "the
petition" and then pronounced in apparent contradiction that Joel Pempe Miranda
was "disqualified." The

Court held that the COMELEC, by granting the petition without any qualification,
disqualified Joel Pempe Miranda and at the same time cancelled Jose Pempe
Mirandas CoC. The Court explained:

The question to settle next is whether or not aside from Joel "Pempe" Miranda being
disqualified by the Comelec in its May 5, 1998 resolution, his certificate of candidacy
had likewise been denied due course and cancelled.

The Court rules that it was.

Private respondents petition in SPA No. 98-019 specifically prayed for the following:

WHEREFORE, it is respectfully prayed that the Certificate of Candidacy filed by

respondent for the position of Mayor for the City of Santiago be not given due course
and/or cancelled.
Other reliefs just and equitable in the premises are likewise prayed for.

(Rollo, p. 31; Emphasis ours.)

In resolving the petition filed by private respondent specifying a very particular relief, the
Comelec ruled favorably in the following manner:

WHEREFORE, in view of the foregoing, the Commission (FIRST DIVISION) GRANTS

the Petition. Respondent JOSE "Pempe" MIRANDA is hereby DISQUALIFIED from
running for the position of mayor of Santiago City, Isabela, in the May 11, 1998 national
and local elections.

SO ORDERED.

(p.43, Rollo; Emphasis ours.)

From a plain reading of the dispositive portion of the Comelec resolution of May 5, 1998
in SPA No. 98-019, it is sufficiently clear that the prayer specifically and particularly
sought in the petition was GRANTED, there being no qualification on the matter
whatsoever. The disqualification was simply ruled over and above the granting of the
specific prayer for denial of due course and cancellation of the certificate of candidacy. x
x x.49

xxxx

x x x. There is no dispute that the complaint or petition filed by private respondent in

SPA No. 98-019 is one to deny due course and to cancel the certificate of candidacy of
Jose "Pempe" Miranda (Rollo, pp. 26-31). There is likewise no question that the said
petition was GRANTED without any qualification whatsoever. It is rather clear, therefore,
that whether or not the Comelec granted any further relief in SPA No. 98-019 by
disqualifying the candidate, the fact remains that the said petition was granted and that
the certificate of candidacy of Jose "Pempe" Miranda was denied due course and
cancelled. x x x.50

The crucial point of Miranda v. Abaya was that the COMELEC actually granted the
particular relief of cancelling or denying due course to the CoC prayed for in the petition
by not subjecting that relief to any qualification.

Miranda v. Abaya applies herein. Although Castillos petition in SPA No. 09-029 (DC)
specifically sought both the disqualification of Ramon and the denial of due course to or
cancellation of his CoC, the COMELEC categorically stated in the Resolution dated April
19, 2010 that it was granting the petition. Despite the COMELEC making no finding of
material misrepresentation on the part of Ramon, its granting of Castillos petition
without express qualifications manifested that the COMELEC had cancelled Ramons
CoC based on his apparent ineligibility. The Resolution dated April 19, 2010 became
final and executory because Castillo did not move for its reconsideration, and because
Ramon later withdrew his motion for reconsideration filed in relation to it.

4.

Elected Vice Mayor must succeed

and assume the position of Mayor
due to a permanent vacancy in the office

On the issue of who should assume the office of Mayor of Lucena City, Castillo submits
that the doctrine on the rejection of the second-placer espoused in Labo, Jr. v.
Commission on Elections51 should not apply to him because Ramons disqualification
became final prior to the elections. 52 Instead, he cites Cayat v. Commission on
Elections,53where the Court said:

x x x In Labo there was no final judgment of disqualification before the elections. The
doctrine on the rejection of the second placer was applied in Labo and a host of other
cases because the judgment declaring the candidates disqualification in Labo and the
other cases had not become final before the elections. To repeat, Labo and the other
cases applying the doctrine on the rejection of the second placer have one common
essential condition the disqualification of the candidate had not become final before
the elections. This essential condition does not exist in the present case.

Thus, in Labo, Labos disqualification became final only on 14 May 1992, three days
after the 11 May 1992 elections. On election day itself, Labo was still legally a
candidate. In the present case, Cayat was disqualified by final judgment 23 days before
the 10 May 2004 elections. On election day, Cayat was no longer legally a candidate for
mayor. In short, Cayats candidacy for Mayor of Buguias, Benguet was legally non-
existent in the 10 May 2004 elections.

The law expressly declares that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. This is a
mandatory provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms
Law of 1987, states:

Sec. 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 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when
the disqualification becomes final before the elections, which is the situation covered in
the first sentence of Section 6. The second is when the disqualification becomes final
after the elections, which is the situation covered in the second sentence of Section 6.

The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment
before an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May
2004 elections. Therefore, all the 8,164 votes cast in Cayats favor are stray. Cayat was
never a candidate in the 10 May 2004 elections. Palilengs proclamation is proper
because he was the sole and only candidate, second to none. 54

Relying on the pronouncement in Cayat, Castillo asserts that he was entitled to assume
the position of Mayor of Lucena City for having obtained the highest number of votes
among the remaining qualified candidates.

It would seem, then, that the date of the finality of the COMELEC resolution declaring
Ramon disqualified is decisive. According to Section 10, Rule 19 of the COMELECs
Resolution No. 8804,55 a decision or resolution of a Division becomes final and
executory after the lapse of five days following its promulgation unless a motion for
reconsideration is seasonably filed. Under Section 8, Rule 20 of Resolution No. 8804,
the decision of the COMELEC En Banc becomes final and executory five days after its
promulgation and receipt of notice by the parties.

The COMELEC First Division declared Ramon disqualified through its Resolution dated
April 19, 2010, the copy of which Ramon received on the same date. 56 Ramon filed a
motion for reconsideration on April 21, 2010 57 in accordance with Section 7 of
COMELEC Resolution No. 8696,58 but withdrew the motion on May 4, 2010, 59ostensibly
to allow his substitution by Barbara Ruby. On his part, Castillo did not file any motion for
reconsideration. Such circumstances indicated that there was no more pending matter
that could have effectively suspended the finality of the ruling in due course. Hence, the
Resolution dated April 19, 2010 could be said to have attained finality upon the lapse of
five days from its promulgation and receipt of it by the parties. This happened probably
on April 24, 2010. Despite such finality, the COMELEC En Banc continued to act on the
withdrawal by Ramon of his motion for reconsideration through the May 5, 2010
Resolution declaring the April 19, 2010 Resolution of the COMELEC First Division final
and executory.

Yet, we cannot agree with Castillos assertion that with Ramons disqualification
becoming final prior to the May 10, 2010 elections, the ruling in Cayat was applicable in
his favor. Barbara Rubys filing of her CoC in substitution of Ramon significantly
differentiated this case from the factual circumstances obtaining in Cayat. Rev. Fr.
Nardo B. Cayat, the petitioner in Cayat, was disqualified on April 17, 2004, and his
disqualification became final before the May 10, 2004 elections. Considering that no
substitution of Cayat was made, Thomas R. Palileng, Sr., his rival, remained the only
candidate for the mayoralty post in Buguias, Benguet. In contrast, after Barbara Ruby
substituted Ramon, the May 10, 2010 elections proceeded with her being regarded by
the electorate of Lucena City as a bona fide candidate. To the electorate, she became a
contender for the same position vied for by Castillo, such that she stood on the same
footing as Castillo. Such standing as a candidate negated Castillos claim of being the
candidate who obtained the highest number of votes, and of being consequently entitled
to assume the office of Mayor.

Indeed, Castillo could not assume the office for he was only a second
placer.1wphi1 Labo, Jr. should be applied. There, the Court emphasized that the
candidate obtaining the second highest number of votes for the contested office could
not assume the office despite the disqualification of the first placer because the second
placer was "not the choice of the sovereign will." 60 Surely, the Court explained, a
minority or defeated candidate could not be deemed elected to the office. 61 There was to
be no question that the second placer lost in the election, was repudiated by the
electorate, and could not assume the vacated position. 62 No law imposed upon and
compelled the people of Lucena City to accept a loser to be their political leader or their
representative.63

The only time that a second placer is allowed to take the place of a disqualified winning
candidate is when two requisites concur, namely: (a) the candidate who obtained the
highest number of votes is disqualified; and (b) the electorate was fully aware in fact
and in law of that candidates disqualification as to bring such awareness within the
realm of notoriety but the electorate still cast the plurality of the votes in favor of the
ineligible candidate.64 Under this sole exception, 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 with the second
highest number of votes may be deemed elected. 65 But the exception did not apply in
favor of Castillo simply because the second element was absent. The electorate of
Lucena City were not the least aware of the fact of Barbara Rubys ineligibility as the
substitute. In fact, the COMELEC En Banc issued the Resolution finding her substitution
invalid only on May 20, 2011, or a full year after the decisions.

On the other hand, the COMELEC En Banc properly disqualified Barbara Ruby from
assuming the position of Mayor of Lucena City. To begin with, there was no valid
candidate for her to substitute due to Ramons ineligibility. Also, Ramon did not
voluntarily withdraw his CoC before the elections in accordance with Section 73 of the
Omnibus Election Code. Lastly, she was not an additional candidate for the position of
Mayor of Lucena City because her filing of her CoC on May 4, 2010 was beyond the
period fixed by law. Indeed, she was not, in law and in fact, a candidate. 66

A permanent vacancy in the office of Mayor of Lucena City thus resulted, and such
vacancy should be filled pursuant to the law on succession defined in Section 44 of the
LGC, to wit:67

Section 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor, Mayor,
and Vice-Mayor. 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. x x x

WHEREFORE, the Court DISMISSES the petitions in these consolidated cases;

AFFIRMS the Resolution issued on May 20, 2011 by the COMELEC En Banc; and
ORDERS the petitioners to pay the costs of suit.

SO ORDERED.