1.

Flores vs Drilon 223 SCRA 568

2. Marquez vs COMELEC 243 SCRA 538
3. Mariano vs COMELEC 242 SCRA 211
4. Mercado vs Manzano 307 SCRA 630
5. City of Manila vs CA 179 SCRA 428
6. Andaya vs RTC 319 SCRA 696
7. Grego vs COMELEC 274 SCRA 481
8. Borja vs COMELEC 295 SCRA 157
9. Subic Bay vs COMELEC 262 SCRA 492

Disclaimer: not sure kung tama tong mga nakuha kong fulltext. Double check nyo na lang.
G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A. JADLOC,

CARLITO T. CRUZ and MANUEL P. REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J. GORDON, respondents.

Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.

BELLOSILLO, J.:

The constitutionality of Sec. 13, par. (d), of R.A. 7227,1 otherwise known as the "Bases Conversion
and Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City
was appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority
(SBMA), is challenged in this original petition with prayer for prohibition, preliminary injunction and
temporary restraining order "to prevent useless and unnecessary expenditures of public funds by
way of salaries and other operational expenses attached to the office . . . ."2 Paragraph (d) reads —

(d) Chairman administrator — The President shall appoint a professional manager as

administrator of the Subic Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget, who shall be the ex
oficio chairman of the Board and who shall serve as the chief executive officer of the
Subic Authority: Provided, however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo shall be appointed as the
chairman and chief executive officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in
any capacity to any public officer or position during his tenure,"3 because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint",4since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts;5 and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:

Sec. 261. Prohibited Acts. — The following shall be guilty of an election offense: . . .
(g) Appointment of new employees, creation of new position, promotion, or giving
salary increases. — During the period of forty-five days before a regular election and
thirty days before a special election, (1) any head, official or appointing officer of a
government office, agency or instrumentality, whether national or local, including
government-owned or controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or creates and fills any new
position, except upon prior authority of the Commission. The Commission shall not
grant the authority sought unless it is satisfied that the position to be filled is essential
to the proper functioning of the office or agency concerned, and that the position
 shall not be filled in a manner that may influence the election. As an exception to the
foregoing provisions, a new employee may be appointed in case of urgent
need: Provided, however, That notice of the appointment shall be given to the
Commission within three days from the date of the appointment. Any appointment or
hiring in violation of this provision shall be null and void. (2) Any government official
who promotes, or gives any increase of salary or remuneration or privilege to any
government official or employee, including those in government-owned or controlled
corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May
1992 Elections.

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states,
"Provided, however, That for the first year of its operations from the effectivity of this Act, the mayor
of the City of Olongapo shall be appointed as the chairman and chief executive officer of the Subic
Authority," violates the constitutional proscription against appointment or designation of elective
officials to other government posts.

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to

any public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no

appointive official shall hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof, including government-owned or
controlled corporations or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person,
so that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815,6 ". . . . should be allowed to attend to his
duties and responsibilities without the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency . . . ."

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation
where a local elective official will work for his appointment in an executive position in government,
and thus neglect his constituents . . . ."7

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it
needs no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art.
IX-B, of the Constitution. Here, the fact that the expertise of an elective official may be most
beneficial to the higher interest of the body politic is of no moment.

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office.8 But, the
contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13,
par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land.
Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section
sought to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a
practice otherwise unconstitutional as authority for its validity.

In any case, the view that an elective official may be appointed to another post if allowed by law or
by the primary functions of his office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by
an appointive official when allowed by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any exception to the rule against
appointment or designation of an elective official to the government post, except as are particularly
recognized in the Constitution itself, e.g., the President as head of the economic and planning
agency;9 the Vice-President, who may be appointed Member of the Cabinet; 10 and, a member of
Congress who may be designated ex officio member of the Judicial and Bar Council. 11

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental
when drawn, and not without reason. It was purposely sought by the drafters of the Constitution as
shown in their deliberation, thus —

MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict with respect to elective officials, because
in the case of appointive officials, there may be a law that will allow them to hold
other positions.

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold
some other positions. 12

The distinction being clear, the exemption allowed to appointive officials in the second paragraph
cannot be extended to elective officials who are governed by the first paragraph.

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo
City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13 where
we stated that the prohibition against the holding of any other office or employment by the President,
Vice-President, Members of the Cabinet, and their deputies or assistants during their tenure,
as provided in Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials concerned, who are to perform them in an
ex officio capacity as provided by law, without receiving any additional compensation therefor.

This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo
City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent
to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City.
Had it been the legislative intent to make the subject positions ex officio, Congress would have, at
least, avoided the word "appointed" and, instead, "ex officio" would have been used. 14

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene
Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec.
7, first par., had they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the subject proviso was stated, Senator
Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative choice." 15 The Senator took a view
that the constitutional proscription against appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing
the President to appoint him to the post. Without passing upon this view of Senator Saguisag, it
suffices to state that Congress intended the posts to be appointive, thus nibbling in the bud the
argument that they are ex officio.

The analogy with the position of Chairman of the Metro Manila Authority made by respondents
cannot be applied to uphold the constitutionality of the challenged proviso since it is not put in issue
in the present case. In the same vein, the argument that if no elective official may be appointed or
designated to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double
compensation 16 would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of
the subject proviso. In any case, the Vice-President for example, an elective official who may be
appointed to a cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by law.

Petitioners also assail the legislative encroachment on the appointing authority of the President.
Section 13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and
the Chief Executive Officer of SBMA, although he really has no choice under the law but to appoint
the Mayor of Olongapo City.

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons

having authority therefor, to discharge the duties of some office or trust," 17 or "[t]he selection or
designation of a person, by the person or persons having authority therefor, to fill an office or public
function and discharge the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the
authority vested with the power, of an individual who is to exercise the functions of a given office."

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20 "the choice of a person to fill an office constitutes the
essence of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is
intrinsically an executive act involving the exercise of discretion." 22 In Pamantasan ng Lungsod ng
Maynila v. Intermediate Appellate Court 23 we held:

The power to appoint is, in essence, discretionary. The appointing power has the
right of choice which he may exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the necessary qualifications and
eligibilities. It is a prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the
appointee. In other words, the choice of the appointee is a fundamental component of the appointing
power.

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress)
cannot at the same time limit the choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment necessarily carries the discretion of
whom to appoint. Even on the pretext of prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority, directly or indirectly, of his discretion to
pick his own choice. Consequently, when the qualifications prescribed by Congress can only be met
by one individual, such enactment effectively eliminates the discretion of the appointing power to
choose and constitutes an irregular restriction on the power of appointment. 24

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee
for the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of appointment, sans the essential element of
choice, is no power at all and goes against the very nature itself of appointment.

While it may be viewed that the proviso merely sets the qualifications of the officer during the first
year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.

Since the ineligibility of an elective official for appointment remains all throughout his tenure or
during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is enlightening:

MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word
"term" with TENURE.

MR. FOZ. The effect of the proposed amendment is to make possible for one to
resign from his position.

MR. DAVIDE. Yes, we should allow that prerogative.

MR. FOZ. Resign from his position to accept an executive position.

MR. DAVIDE. Besides, it may turn out in a given case that because of, say,
incapacity, he may leave the service, but if he is prohibited from being appointed
within the term for which he was elected, we may be depriving the government of the
needed expertise of an individual. 25

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment

to another public office.

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be
valid in view of his disqualification or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives
may hold any other office or employment in the Government . . . during his term without forfeiting his
seat . . . ." The difference between the two provisions is significant in the sense that incumbent
national legislators lose their elective posts only after they have been appointed to another
government office, while other incumbent elective officials must first resign their posts before they
can be appointed, thus running the risk of losing the elective post as well as not being appointed to
the other post. It is therefore clear that ineligibility is not directly related with forfeiture of office. ". . . .
The effect is quite different where it is expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to incapacitate the incumbent of an office from
accepting or holding a second office (State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d
258; McWilliams v Neal, 130 Ga 733, 61 SE 721) and to render his election or appointment to the
latter office void (State ex rel. Childs v Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or
voidable (Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where the constitution, or
statutes declare that persons holding one office shall be ineligible for election or appointment to
another office, either generally or of a certain kind, the prohibition has been held to incapacitate the
incumbent of the first office to hold the second so that any attempt to hold the second is void (Ala. —
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala 445)." 27

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those of a lawful officer, the law, upon
principles of policy and justice, will hold valid so far as they involve the interest of the public and third
persons, where the duties of the office were exercised . . . . under color of a known election or
appointment, void because the officer was not eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or irregularity in its exercise, such
ineligibility, want of power or defect being unknown to the public . . . . [or] under color of an election,
or appointment, by or pursuant to a public unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213;
Sheehan's Case, 122 Mass, 445, 23 Am. Rep., 323)." 28

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may
be retained by him.

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant
thereto need no longer be discussed.

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he
expressed in the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated —

. . . . (much) as we would like to have the present Mayor of Olongapo City as the
Chief Executive of this Authority that we are creating; (much) as I, myself, would like
to because I know the capacity, integrity, industry and dedication of Mayor Gordon;
(much) as we would like to give him this terrific, burdensome and heavy
responsibility, we cannot do it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or designated to another
position in any capacity." 29

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms
or a rock in the ocean amidst the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by
legitimate needs but only by passing fancies, temporary passions or occasional infatuations of the
people with ideas or personalities . . . . Such a Constitution is not likely to be easily tampered with to
suit political expediency, personal ambitions or ill-advised agitation for change." 31

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however,
That for the first year of its operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is
declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo
City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID.

However, all per diems, allowances and other emoluments received by respondent Gordon, if any,
as such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise
legitimate done by him in the exercise of his authority as officer de facto of SBMA are hereby
UPHELD.

SO ORDERED.
G.R. No. 112889 April 18, 1995

BIENVENIDO O. MARQUEZ, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and EDUARDO T. RODRIGUEZ, respondents.

VITUG, J.:

The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties
on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of
Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states:

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

xxx xxx xxx

(e) Fugitive from justice in criminal or non-political cases here or abroad(.)

Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the
Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the
reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition
for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for
being allegedly a fugitive from justice.

It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge
against him for ten (10) counts of insurance fraud or grand theft of personal property was still
pending before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of
California, U.S.A. A warrant issued by said court for his arrest, it is claimed, has yet to be served on
private respondent on account of his alleged "flight" from that country.

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's
certificate of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the
Local Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the
COMELEC dismissed the petition.

Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992
resolution of COMELEC was dismissed without prejudice, however, to the filing in due time of a
possible post-election quo warranto proceeding against private respondent. The Court, in its
resolution of 02 June 1992, held:

Evidently, the matter elevated to this Court was a pre-proclamation controversy.

Since the private respondent had already been proclaimed as the duly elected
Governor of the Province of Quezon, the petition below for disqualification has
ceased to be a pre-proclamation controversy. In Casimiro vs. Commission on
Elections, G.R. Nos. 84462-63 and Antonio vs. Commission on Elections, G.R. Nos.
84678-79, jointly decided on 29 March 1989, 171 SCRA 468, this court held that a
pre-proclamation controversy is no longer viable at this point of time and should be
 dismissed. The proper remedy of the petitioner is to pursue the disqualification suit in
a separate proceeding.

ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to

the filing of the appropriate proceedings in the proper forum, if so desired, within ten
(10) days from notice. 1

Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner
instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC.
In its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The
COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution.

Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on
whether private respondent who, at the time of the filing of his certificate of candidacy (and to date),
is said to be facing a criminal charge before a foreign court and evading a warrant for his arrest
comes within the term "fugitive from justice" contemplated by Section 40(e) of the Local Government
Code and, therefore, disqualified from being a candidate for, and thereby ineligible from holding on
to, an elective local office.

Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further
interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits,
and it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged flee to avoid prosecution. This definition
truly finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B.
Moreno; Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102,
103; Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p.
792), and it may be so conceded as expressing the general and ordinary connotation of the term.

In turn, private respondent would have the Court respect the conclusions of the Oversight
Committee which, conformably with Section 5332 of R.A. 7160, was convened by the President to
"formulate and issue the appropriate rules and regulations necessary for the efficient and effective
implementation of any and all provisions of the Code to ensure compliance with the principles of
Local Autonomy.

Here are some excerpts from the committee's deliberations:

CHAIRMAN MERCADO. Session is resumed.

So, we are in agreement to retain Line 12, Page 36, as is. So next,
Page 39.

CHAIRMAN DE PEDRO. Kay Benny Marquez.

REP. CUENCO: What does he want?

CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na

kung kuwestiyunin ang constitutionality nito before the Supreme
Court later on.

REP. CUENCO. Anong nakalagay diyan?

CHAIRMAN DE PEDRO. Iyong disqualification to run for public office.

Any person who is a fugitive from justice in criminal or nonpolitical

cases here or abroad.

Mabigat yung abroad. One who is facing criminal charges with the
warrant of arrest pending, unserved. . .

HONORABLE SAGUISAG. I think that is even a good point, ano —

what is a fugitive? It is not defined. We have loose understanding. . .

CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong

fugitive.

Si Benny umalis na, with the understanding na okay na sa atin ito.

THE CHAIRMAN. Whether we have this rule or not she can run. She
is not a fugitive from justice. Mrs. Marcos can run at this point and I
have held that for a long time ago. So can. . .

MS. DOCTOR. Mr. Chairman. . .

THE CHAIRMAN. Yes.

MS. DOCTOR. Let's move to. . .

THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording,
this is very important. Manny, can you come up?

MR. REYES. Let's use the word conviction by final judgment.

THE CHAIRMAN. Fugitive means somebody who is convicted by

final judgment. Okay,. Fugitive means somebody who is convicted by
final judgment. Insert that on Line 43 after the semi-colon. Is that
approved? No objection, approved (TSN, Oversight Committee, 07
May 1991).

xxx xxx xxx

THE CHAIRMAN. Andy, saan ba naman itong amendment on page

2? Sino ba ang gumawa nito? Okay, on page 2, lines 43 and 44,
"fugitive from justice". What "fugitive"? Sino ba ang gumawa nito, ha?

MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree
to clarify the word "fugitive".

THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha?

MR. SANCHEZ. Means a person...

 THE CHAIRMAN. Ha?

HON. REYES. A person who has been convicted.

THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice
shall mean or means one who has been convicted by final judgment.
It means one who has been convicted by final judgment.

HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan.

THE CHAIRMAN. Ano? Sige, tingnan natin.

HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya?

THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been

convicted by final judgment, meaning that if he is simply in jail and
because he put up, post bail, but the case is still being reviewed, that
is not yet conviction by final judgment. 3

The Oversight Committee evidently entertained serious apprehensions on the possible constitutional
infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so
taken as to embrace those who merely were facing criminal charges. A similar concern was
expressed by Senator R. A. V. Saguisag who, during the bicameral conference committee of the
Senate and the House of Representatives, made this reservation:

. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered
ako doon, a. 4

The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991. It provided:

Art. 73. Disqualifications. — The following persons shall be disqualified from running
for any elective local position:

(a) . . .

(e) Fugitives from justice in criminal or non-political cases here or abroad. Fugitive
from justice refers to a person who has been convicted by final judgment.5 (Emphasis
supplied)

Private respondent reminds us that the construction placed upon law by the officials in charge of its
enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development
Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no
obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An
administrative rule or regulation can neither expand nor constrict the law but must remain congruent
to it. The Court believes and thus holds, albeit with some personal reservations of
the ponente (expressed during the Court's en banc deliberations), that Article 73 of the Rules and
Regulations Implementing the Local Government Code of 1991, to the extent that it confines the
term "fugitive from justice" to refer only to a person (the fugitive) "who has been convicted by final
judgment." is an inordinate and undue circumscription of the law.
Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private
respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the
Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the
petition for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated
by the Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand
the case to the COMELEC for a determination of this unresolved factual matter.

WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and
SET ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to
proceed and resolve the case with dispatch conformably with the foregoing opinion. No special
pronouncement on costs.

SO ORDERED.
G.R. No. 118577 March 7, 1995

JUANITO MARIANO, JR. et al., petitioners,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
THE MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

G.R. No. 118627 March 7, 1995

JOHN R. OSMEÑA, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY,
MUNICIPAL TREASURER, AND SANGGUNIANG BAYAN OF MAKATI, respondents.

PUNO, J.:

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7854 as
unconstitutional. R.A. No. 7854 as unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be known as the City of Makati."1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners
Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Tibay, Camilo Santos, Frankie Cruz, Ricardo
Pascual, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante Alba, and Perfecto Alba. Of
the petitioners, only Mariano, Jr., is a resident of Makati. The others are residents of Ibayo Ususan,
Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional sections 2, 51, and 52 of
R.A. No. 7854 on the following grounds:

1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial
jurisdiction of Makati by metes and bounds, with technical descriptions, in violation of
Section 10, Article X of the Constitution, in relation to Sections 7 and 450 of the Local
Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three consecutive
term" limit for local elective officials, in violation of Section 8, Article X and Section 7,
Article VI of the Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for:

(a) it increased the legislative district of Makati only by special law

(the Charter in violation of the constitutional provision requiring a
general reapportionment law to be passed by Congress within three
(3) years following the return of every census;

(b) the increase in legislative district was not expressed in the title of
the bill; and

(c) the addition of another legislative district in Makati is not in accord

with Section 5 (3), Article VI of the Constitution for as of the latest
 survey (1990 census), the population of Makati stands at only
450,000.

G.R. No. 118627 was filed by the petitioner John H. Osmeña as senator, taxpayer, and concerned
citizen. Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as
aforestated.

We find no merit in the petitions.

Section 2, Article I of R.A. No. 7854 delineated the land areas of the proposed city of Makati, thus:

Sec. 2. The City of Makati. — The Municipality of Makati shall be converted into a
highly urbanized city to be known as the City of Makati, hereinafter referred to as the
City, which shall comprise the present territory of the Municipality of Makati in
Metropolitan Manila Area over which it has jurisdiction bounded on the northeast by
Pasig River and beyond by the City of Mandaluyong and the Municipality of Pasig; on
the southeast by the municipalities of Pateros and Taguig; on the southwest by the
City of Pasay and the Municipality of Taguig; and, on the northwest, by the City of
Manila.

The foregoing provision shall be without prejudice to the resolution by the appropriate
agency or forum of existing boundary disputes or cases involving questions of
territorial jurisdiction between the City of Makati and the adjoining local government
units. (Emphasis supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local
Government Code which require that the area of a local government unit should be made by metes
and bounds with technical descriptions.2

The importance of drawing with precise strokes the territorial boundaries of a local unit of
government cannot be overemphasized. The boundaries must be clear for they define the limits of
the territorial jurisdiction of a local government unit. It can legitimately exercise powers of
government only within the limits, its acts are ultra vires. Needless to state, any uncertainty in the
boundaries of local government units will sow costly conflicts in the exercise of governmental powers
which ultimately will prejudice the people's welfare. This is the evil sought to avoided by the Local
Government Code in requiring that the land area of a local government unit must be spelled out in
metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the
description made in section 2 of R.A. No. 7854, Petitioners have not demonstrated that the
delineation of the land area of the proposed City of Makati will cause confusion as to its boundaries.
We note that said delineation did not change even by an inch the land area previously covered by
Makati as a municipality. Section 2 did not add, subtract, divide, or multiply the established land area
of Makati. In language that cannot be any clearer, section 2 stated that, the city's land area "shall
comprise the present territory of the municipality."

The deliberations of Congress will reveal that there is a legitimate reason why the land area of the
proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the
time of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati
and Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to co-
equal department of government, legislators felt that the dispute should be left to the courts to
decide. They did not want to foreclose the dispute by making a legislative finding of fact which could
decide the issue. This would have ensued if they defined the land area of the proposed city by its
exact metes and bounds, with technical descriptions.3 We take judicial notice of the fact that
Congress has also refrained from using the metes and bounds description of land areas of other
local government units with unsettled boundary disputes.4

We hold that the existence of a boundary dispute does not per se present an insurmountable
difficulty which will prevent Congress from defining with reasonable certitude the territorial
jurisdiction of a local government unit. In the cases at bench, Congress maintained the existing
boundaries of the proposed City of Makati but as an act of fairness, made them subject to the
ultimate resolution by the courts. Considering these peculiar circumstances, we are not prepared to
hold that section 2 of R.A. No. 7854 is unconstitutional. We sustain the submission of the Solicitor
General in this regard, viz.:

Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil
that the requirement stated therein, viz.: "the territorial jurisdiction of newly created or
converted cities should be described by meted and bounds, with technical
descriptions" — was made in order to provide a means by which the area of said
cities may be reasonably ascertained. In other words, the requirement on metes and
bounds was meant merely as tool in the establishment of local government units. It is
not an end in itself. Ergo, so long as the territorial jurisdiction of a city may be
reasonably ascertained, i.e., by referring to common boundaries with neighboring
municipalities, as in this case, then, it may be concluded that the legislative intent
behind the law has been sufficiently served.

Certainly, Congress did not intends that laws creating new cities must contain therein
detailed technical descriptions similar to those appearing in Torrens titles, as
petitioners seem to imply. To require such description in the law as a condition sine
qua non for its validity would be to defeat the very purpose which the Local
Government Code to seeks to serve. The manifest intent of the Code is to empower
local government units and to give them their rightful due. It seeks to make local
governments more responsive to the needs of their constituents while at the same
time serving as a vital cog in national development. To invalidate R.A. No. 7854 on
the mere ground that no cadastral type of description was used in the law would
serve the letter but defeat the spirit of the Code. It then becomes a case of the
master serving the slave, instead of the other way around. This could not be the
intendment of the law.

Too well settled is the rule that laws must be enforced when ascertained, although it
may not be consistent with the strict letter of the statute. Courts will not follow the
letter of the statute when to do so would depart from the true intent of the legislature
or would otherwise yield conclusions inconsistent with the general purpose of the act.
(Torres v. Limjap, 56 Phil., 141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v.
Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government, which,
for purposes of interpretation, means that laws have ends to achieve, and statutes
should be so construed as not to defeat but to carry out such ends and purposes
(Bocolbo v. Estanislao, 72 SCRA 520). The same rule must indubitably apply to the
case at bar.

II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No.
7854. Section 51 states:

Sec. 51. Officials of the City of Makati. — The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held and
the duly elected officials shall have already qualified and assume their
offices: Provided, The new city will acquire a new corporate existence. The
appointive officials and employees of the City shall likewise continues exercising their
functions and duties and they shall be automatically absorbed by the city government
of the City of Makati.

They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide:

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

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of
three years which shall begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election.

No Member of the House of Representatives 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.

Petitioners stress that under these provisions, elective local officials, including Members of the
House of Representative, have a term of three (3) years and are prohibited from serving for more
than three (3) consecutive terms. They argue that by providing that the new city shall acquire a new
corporate existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective
officials of Makati and disregards the terms previously served by them. In particular, petitioners point
that section 51 favors the incumbent Makati Mayor, respondent Jejomar Binay, who has already
served for two (2) consecutive terms. They further argue that should Mayor Binay decide to run and
eventually win as city mayor in the coming elections, he can still run for the same position in 1998
and seek another three-year consecutive term since his previous three-year consecutive term
as municipal mayor would not be counted. Thus, petitioners conclude that said section 51 has been
conveniently crafted to suit the political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements before a
litigant can challenge the constitutionality of a law are well delineated. They are: 1) there must be an
actual case or controversy; (2) the question of constitutionality must be raised by the proper party;
(3) the constitutional question must be raised at the earliest possible opportunity; and (4) the
decision on the constitutional question must be necessary to the determination of the case itself.5

Petitioners have far from complied with these requirements. The petition is premised on the
occurrence of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty
elections; that he would be re-elected in said elections; and that he would seek re-election for the
same position in the 1998 elections. Considering that these contingencies may or may not happen,
petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy.
Petitioners who are residents of Taguig (except Mariano) are not also the proper parties to raise this
abstract issue. Worse, they hoist this futuristic issue in a petition for declaratory relief over which this
Court has no jurisdiction.

III

Finally, petitioners in the two (2) cases at bench assail the constitutionality of section 52, Article X of
R.A. No. 7854. Section 52 of the Charter provides:

Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized city,
Makati shall thereafter have at least two (2) legislative districts that shall initially
correspond to the two (2) existing districts created under Section 3(a) of Republic
Act. No. 7166 as implemented by the Commission on Elections to commence at the
next national elections to be held after the effectivity of this Act. Henceforth,
barangays Magallanes, Dasmariñas and Forbes shall be with the first district, in lieu
of Barangay Guadalupe-Viejo which shall form part of the second district. (emphasis
supplied)

They contend. that the addition of another legislative district in Makati is unconstitutional for: (1)
reapportionment6cannot made by a special law, (2) the addition of a legislative district is not
expressed in the title of the bill7 and (3) Makati's population, as per the 1990 census, stands at only
four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos.8 In said case, we ruled
that reapportionment of legislative districts may be made through a special law, such as in the
charter of a new city. The Constitution9 clearly provides that Congress shall be composed of not
more than two hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the
Constitution did not preclude Congress from increasing its membership by passing a law, other than
a general reapportionment of the law. This is its exactly what was done by Congress in enacting
R.A. No. 7854 and providing for an increase in Makati's legislative district. Moreover, to hold that
reapportionment can only be made through a general apportionment law, with a review of all the
legislative districts allotted to each local government unit nationwide, would create an inequitable
situation where a new city or province created by Congress will be denied legislative representation
for an indeterminate period of time. 10 The intolerable situations will deprive the people of a new city
or province a particle of their sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
section 5(3), Article VI 12 of the Constitution for as of the latest survey (1990 census), the population
of Makati stands at only four hundred fifty thousand (450,000). 13 Said section provides, inter alia,
that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one
representative. Even granting that the population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still be increased since it has met the
minimum population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased to more
than two hundred fifty thousand (250,000) shall be entitled to at least one congressional
representative. 14
Finally, we do not find merit in petitioners' contention that the creation of an additional legislative
district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias
v. Abalos, op cit., we reiterated the policy of the Court favoring a liberal construction of the "one title-
one subject" rule so as not to impede legislation. To be sure, with Constitution does not command
that the title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence,
we ruled that "it should be sufficient compliance if the title expresses the general subject and all the
provisions are germane to such general subject."

WHEREFORE, the petitions are hereby DISMISSED for lack of merit No costs.

SO ORDERED.
G.R. No. 135083 May 26, 1999

ERNESTO S. MERCADO, petitioner,

vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

MENDOZA, J.:

Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were candidates for
vice mayor of the City of Makati in the May 11, 1998 elections. The other one was Gabriel V. Daza
III. The results of the election were as follows:

Eduardo B. Manzano 103,853

Ernesto S. Mercado 100,894

Gabriel V. Daza III 54,2751

The proclamation of private respondent was suspended in view of a pending petition for
disqualification filed by a certain Ernesto Mamaril who alleged that private respondent was not a
citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998,2 the Second Division of the COMELEC granted the petition of
Mamaril and ordered the cancellation of the certificate of candidacy of private respondent on the
ground that he is a dual citizen and, under §40(d) of the Local Government Code, persons with dual
citizenship are disqualified from running for any elective position. The COMELEC's Second Division
said:

What is presented before the Commission is a petition for disqualification of Eduardo

Barrios Manzano as candidate for the office of Vice-Mayor of Makati City in the May
11, 1998 elections. The petition is based on the ground that the respondent is an
American citizen based on the record of the Bureau of Immigration and
misrepresented himself as a natural-born Filipino citizen.

In his answer to the petition filed on April 27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that he is a Filipino citizen because he was
born in 1955 of a Filipino father and a Filipino mother. He was born in the United
States, San Francisco, California, September 14, 1955, and is considered in
American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship.

Judging from the foregoing facts, it would appear that respondent Manzano is born a
Filipino and a US citizen. In other words, he holds dual citizenship.

The question presented is whether under our laws, he is disqualified from the
position for which he filed his certificate of candidacy. Is he eligible for the office he
seeks to be elected?
 Under Section 40(d) of the Local Government Code, those holding dual citizenship
are disqualified from running for any elective local position.

WHEREFORE, the Commission hereby declares the respondent Eduardo Barrios

Manzano DISQUALIFIED as candidate for Vice-Mayor of Makati City.

On May 8, 1998, private respondent filed a motion for reconsideration.3 The motion remained
pending even until after the election held on May 11, 1998.

Accordingly, pursuant to Omnibus Resolution No. 3044, dated May 10, 1998, of the COMELEC, the
board of canvassers tabulated the votes cast for vice mayor of Makati City but suspended the
proclamation of the winner.

On May 19, 1998, petitioner sought to intervene in the case for disqualification.4 Petitioner's motion
was opposed by private respondent.

The motion was not resolved. Instead, on August 31, 1998, the COMELEC en banc rendered its
resolution. Voting 4 to 1, with one commissioner abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private respondent qualified to run for vice mayor of the
City of Makati in the May 11, 1998 elections.5 The pertinent portions of the resolution of the
COMELEC en banc read:

As aforesaid, respondent Eduardo Barrios Manzano was born in San Francisco,

California, U.S.A. He acquired US citizenship by operation of the United States
Constitution and laws under the principle ofjus soli.

He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the
age of six (6), his parents brought him to the Philippines using an American passport
as travel document. His parents also registered him as an alien with the Philippine
Bureau of Immigration. He was issued an alien certificate of registration. This,
however, did not result in the loss of his Philippine citizenship, as he did not
renounce Philippine citizenship and did not take an oath of allegiance to the United
States.

It is an undisputed fact that when respondent attained the age of majority, he

registered himself as a voter, and voted in the elections of 1992, 1995 and 1998,
which effectively renounced his US citizenship under American law. Under Philippine
law, he no longer had U.S. citizenship.

At the time of the May 11, 1998 elections, the resolution of the Second Division,
adopted on May 7, 1998, was not yet final. Respondent Manzano obtained the
highest number of votes among the candidates for vice-mayor of Makati City,
garnering one hundred three thousand eight hundred fifty three (103,853) votes over
his closest rival, Ernesto S. Mercado, who obtained one hundred thousand eight
hundred ninety four (100,894) votes, or a margin of two thousand nine hundred fifty
nine (2,959) votes. Gabriel Daza III obtained third place with fifty four thousand two
hundred seventy five (54,275) votes. In applying election laws, it would be far better
to err in favor of the popular choice than be embroiled in complex legal issues
involving private international law which may well be settled before the highest court
(Cf. Frivaldo vs. Commission on Elections, 257 SCRA 727).
 WHEREFORE, the Commission en banc hereby REVERSES the resolution of the
Second Division, adopted on May 7, 1998, ordering the cancellation of the
respondent's certificate of candidacy.

We declare respondent Eduardo Luis Barrios Manzano to be QUALIFIED as a

candidate for the position of vice-mayor of Makati City in the May 11, 1998, elections.

ACCORDINGLY, the Commission directs the Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene and proclaim the respondent Eduardo Luis
Barrios Manzano as the winning candidate for vice-mayor of Makati City.

Pursuant to the resolution of the COMELEC en banc, the board of canvassers, on the evening of
August 31, 1998, proclaimed private respondent as vice mayor of the City of Makati.

This is a petition for certiorari seeking to set aside the aforesaid resolution of the COMELEC en
banc and to declare private respondent disqualified to hold the office of vice mayor of Makati City.
Petitioner contends that —

[T]he COMELEC en banc ERRED in holding that:

A. Under Philippine law, Manzano was no longer a U.S. citizen when he:

1. He renounced his U.S. citizenship when he attained the age of

majority when he was already 37 years old; and,

2. He renounced his U.S. citizenship when he (merely) registered

himself as a voter and voted in the elections of 1992, 1995 and 1998.

B. Manzano is qualified to run for and or hold the elective office of Vice-Mayor of the
City of Makati;

C. At the time of the May 11, 1998 elections, the resolution of the Second Division
adopted on 7 May 1998 was not yet final so that, effectively, petitioner may not be
declared the winner even assuming that Manzano is disqualified to run for and hold
the elective office of Vice-Mayor of the City of Makati.

We first consider the threshold procedural issue raised by private respondent Manzano — whether
petitioner Mercado his personality to bring this suit considering that he was not an original party in
the case for disqualification filed by Ernesto Mamaril nor was petitioner's motion for leave to
intervene granted.

I. PETITIONER'S RIGHT TO BRING THIS SUIT

Private respondent cites the following provisions of Rule 8 of the Rules of Procedure of the
COMELEC in support of his claim that petitioner has no right to intervene and, therefore, cannot
bring this suit to set aside the ruling denying his motion for intervention:

Sec. 1. When proper and when may be permitted to intervene. — Any person
allowed to initiate an action or proceeding may, before or during the trial of an action
or proceeding, be permitted by the Commission, in its discretion to intervene in such
action or proceeding, if he has legal interest in the matter in litigation, or in the
 success of either of the parties, or an interest against both, or when he is so situated
as to be adversely affected by such action or proceeding.

xxx xxx xxx

Sec. 3. Discretion of Commission. — In allowing or disallowing a motion for

intervention, the Commission or the Division, in the exercise of its discretion, shall
consider whether or not the intervention will unduly delay or prejudice the
adjudication of the rights of the original parties and whether or not the intervenor's
rights may be fully protected in a separate action or proceeding.

Private respondent argues that petitioner has neither legal interest in the matter in litigation
nor an interest to protect because he is "a defeated candidate for the vice-mayoralty post of
Makati City [who] cannot be proclaimed as the Vice-Mayor of Makati City if the private
respondent be ultimately disqualified by final and executory judgment."

The flaw in this argument is it assumes that, at the time petitioner sought to intervene in the
proceedings before the COMELEC, there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the basis of which petitioner came out only
second to private respondent. The fact, however, is that there had been no proclamation at that time.
Certainly, petitioner had, and still has, an interest in ousting private respondent from the race at the
time he sought to intervene. The rule in Labo v. COMELEC,6 reiterated in several cases,7 only
applies to cases in which the election of the respondent is contested, and the question is whether
one who placed second to the disqualified candidate may be declared the winner. In the present
case, at the time petitioner filed a "Motion for Leave to File Intervention" on May 20, 1998, there had
been no proclamation of the winner, and petitioner's purpose was precisely to have private
respondent disqualified "from running for [an] elective local position" under §40(d) of R.A. No. 7160.
If Ernesto Mamaril (who originally instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner since the latter was a rival
candidate for vice mayor of Makati City.

Nor is petitioner's interest in the matter in litigation any less because he filed a motion for
intervention only on May 20, 1998, after private respondent had been shown to have garnered the
highest number of votes among the candidates for vice mayor. That petitioner had a right to
intervene at that stage of the proceedings for the disqualification against private respondent is clear
from §6 of R.A. No. 6646, otherwise known as the Electoral Reform Law of 1987, which provides:

Any candidate who his 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 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 guilt is strong.

Under this provision, intervention may be allowed in proceedings for disqualification even after
election if there has yet been no final judgment rendered.

The failure of the COMELEC en banc to resolve petitioner's motion for intervention was tantamount
to a denial of the motion, justifying petitioner in filing the instant petition for certiorari. As the
COMELEC en banc instead decided the merits of the case, the present petition properly deals not
only with the denial of petitioner's motion for intervention but also with the substantive issues
respecting private respondent's alleged disqualification on the ground of dual citizenship.

This brings us to the next question, namely, whether private respondent Manzano possesses dual
citizenship and, if so, whether he is disqualified from being a candidate for vice mayor of Makati City.

II. DUAL CITIZENSHIP AS A GROUND FOR DISQUALIFICATION

The disqualification of private respondent Manzano is being sought under §40 of the Local
Government Code of 1991 (R.A. No. 7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This provision is incorporated in the
Charter of the City of Makati. 8

Invoking the maxim dura lex sed lex, petitioner, as well as the Solicitor General, who sides with him
in this case, contends that through §40(d) of the Local Government Code, Congress has
"command[ed] in explicit terms the ineligibility of persons possessing dual allegiance to hold local
elective office."

To begin with, dual citizenship is different from dual allegiance. The former arises when, as a result
of the concurrent application of the different laws of two or more states, a person is simultaneously
considered a national by the said states.9 For instance, such a situation may arise when a person
whose parents are citizens of a state which adheres to the principle of jus sanguinis is born in a state
which follows the doctrine of jus soli. Such a person, ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states. Considering the citizenship clause (Art. IV)
of our Constitution, it is possible for the following classes of citizens of the Philippines to possess
dual citizenship:

(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;

(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their father's' country such children are citizens of that country;

(3) Those who marry aliens if by the laws of the latter's country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.

There may be other situations in which a citizen of the Philippines may, without performing any act,
be also a citizen of another state; but the above cases are clearly possible given the constitutional
provisions on citizenship.

Dual allegiance, on the other hand, refers to the situation in which a person simultaneously owes, by
some positive act, loyalty to two or more states. While dual citizenship is involuntary, dual allegiance
is the result of an individual's volition.

With respect to dual allegiance, Article IV, §5 of the Constitution provides: "Dual allegiance of
citizens is inimical to the national interest and shall be dealt with by law." This provision was included
in the 1987 Constitution at the instance of Commissioner Blas F. Ople who explained its necessity
as follows: 10
 . . . I want to draw attention to the fact that dual allegiance is not dual citizenship. I
have circulated a memorandum to the Bernas Committee according to which a dual
allegiance — and I reiterate a dual allegiance — is larger and more threatening than
that of mere double citizenship which is seldom intentional and, perhaps, never
insidious. That is often a function of the accident of mixed marriages or of birth on
foreign soil. And so, I do not question double citizenship at all.

What we would like the Committee to consider is to take constitutional cognizance of

the problem of dual allegiance. For example, we all know what happens in the
triennial elections of the Federation of Filipino-Chinese Chambers of Commerce
which consists of about 600 chapters all over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is the fact chat the Filipino-Chinese
community is represented in the Legislative Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in Mainland China in the People's Republic
of China, they have the Associated Legislative Council for overseas Chinese wherein
all of Southeast Asia including some European and Latin countries were
represented, which was dissolved after several years because of diplomatic friction.
At that time, the Filipino-Chinese were also represented in that Overseas Council.

When I speak of double allegiance, therefore, I speak of this unsettled kind of

allegiance of Filipinos, of citizens who are already Filipinos but who, by their acts,
may be said to be bound by a second allegiance, either to Peking or Taiwan. I also
took close note of the concern expressed by some Commissioners yesterday,
including Commissioner Villacorta, who were concerned about the lack of guarantees
of thorough assimilation, and especially Commissioner Concepcion who has always
been worried about minority claims on our natural resources.

Dull allegiance can actually siphon scarce national capital to Taiwan, Singapore,
China or Malaysia, and this is already happening. Some of the great commercial
places in downtown Taipei are Filipino-owned, owned by Filipino-Chinese — it is of
common knowledge in Manila. It can mean a tragic capital outflow when we have to
endure a capital famine which also means economic stagnation, worsening
unemployment and social unrest.

And so, this is exactly what we ask — that the Committee kindly consider
incorporating a new section, probably Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS INIMICAL TO CITIZENSHIP AND
SHALL BE DEALT WITH ACCORDING TO LAW.

In another session of the Commission, Ople spoke on the problem of these citizens with dual
allegiance, thus: 11

. . . A significant number of Commissioners expressed their concern about dual

citizenship in the sense that it implies a double allegiance under a double sovereignty
which some of us who spoke then in a freewheeling debate thought would be
repugnant to the sovereignty which pervades the Constitution and to citizenship itself
which implies a uniqueness and which elsewhere in the Constitution is defined in
terms of rights and obligations exclusive to that citizenship including, of course, the
obligation to rise to the defense of the State when it is threatened, and back of this,
Commissioner Bernas, is, of course, the concern for national security. In the course
of those debates, I think some noted the fact that as a result of the wave of
naturalizations since the decision to establish diplomatic relations with the People's
 Republic of China was made in 1975, a good number of these naturalized Filipinos
still routinely go to Taipei every October 10; and it is asserted that some of them do
renew their oath of allegiance to a foreign government maybe just to enter into the
spirit of the occasion when the anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a genuine and deep concern about double
citizenship, with its attendant risk of double allegiance which is repugnant to our
sovereignty and national security. I appreciate what the Committee said that this
could be left to the determination of a future legislature. But considering the scale of
the problem, the real impact on the security of this country, arising from, let us say,
potentially great numbers of double citizens professing double allegiance, will the
Committee entertain a proposed amendment at the proper time that will prohibit, in
effect, or regulate double citizenship?

Clearly, in including §5 in Article IV on citizenship, the concern of the Constitutional Commission was
not with dual citizens per se but with naturalized citizens who maintain their allegiance to their
countries of origin even after their naturalization. Hence, the phrase "dual citizenship" in R.A. No.
7160, §40(d) and in R.A. No. 7854, §20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall under this disqualification. Unlike those
with dual allegiance, who must, therefore, be subject to strict process with respect to the termination
of their status, for candidates with dual citizenship, it should suffice if, upon the filing of their
certificates of candidacy, they elect Philippine citizenship to terminate their status as persons with
dual citizenship considering that their condition is the unavoidable consequence of conflicting laws of
different states. As Joaquin G. Bernas, one of the most perceptive members of the Constitutional
Commission, pointed out: "[D]ual citizenship is just a reality imposed on us because we have no
control of the laws on citizenship of other countries. We recognize a child of a Filipino mother. But
whether she is considered a citizen of another country is something completely beyond our
control." 12

By electing Philippine citizenship, such candidates at the same time forswear allegiance to the other
country of which they are also citizens and thereby terminate their status as dual citizens. It may be
that, from the point of view of the foreign state and of its laws, such an individual has not effectively
renounced his foreign citizenship. That is of no moment as the following discussion on §40(d)
between Senators Enrile and Pimentel clearly shows: 13

SENATOR ENRILE. Mr. President, I would like to ask clarification of line 41, page
17: "Any person with dual citizenship" is disqualified to run for any elective local
position. Under the present Constitution, Mr. President, someone whose mother is a
citizen of the Philippines but his father is a foreigner is a natural-born citizen of the
Republic. There is no requirement that such a natural born citizen, upon reaching the
age of majority, must elect or give up Philippine citizenship.

On the assumption that this person would carry two passports, one belonging to the
country of his or her father and one belonging to the Republic of the Philippines, may
such a situation disqualify the person to run for a local government position?

SENATOR PIMENTEL. To my mind, Mr. President, it only means that at the moment
when he would want to run for public office, he has to repudiate one of his
citizenships.

SENATOR ENRILE. Suppose he carries only a Philippine passport but the country of
origin or the country of the father claims that person, nevertheless, as a citizen? No
one can renounce. There are such countries in the world.
 SENATOR PIMENTEL. Well, the very fact that he is running for public office would,
in effect, be an election for him of his desire to be considered as a Filipino citizen.

SENATOR ENRILE. But, precisely, Mr. President, the Constitution does not require
an election. Under the Constitution, a person whose mother is a citizen of the
Philippines is, at birth, a citizen without any overt act to claim the citizenship.

SENATOR PIMENTEL. Yes. What we are saying, Mr. President, is: Under the
Gentleman's example, if he does not renounce his other citizenship, then he is
opening himself to question. So, if he is really interested to run, the first thing he
should do is to say in the Certificate of Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."

SENATOR ENRILE. But we are talking from the viewpoint of Philippine law, Mr.
President. He will always have one citizenship, and that is the citizenship invested
upon him or her in the Constitution of the Republic.

SENATOR PIMENTEL. That is true, Mr. President. But if he exercises acts that will
prove that he also acknowledges other citizenships, then he will probably fall under
this disqualification.

This is similar to the requirement that an applicant for naturalization must renounce "all allegiance
and fidelity to any foreign prince, potentate, state, or sovereignty" 14 of which at the time he is a
subject or citizen before he can be issued a certificate of naturalization as a citizen of the
Philippines. In Parado v. Republic, 15 it was held:

[W]hen a person applying for citizenship by naturalization takes an oath that he

renounce, his loyalty to any other country or government and solemnly declares that
he owes his allegiance to the Republic of the Philippines, the condition imposed by
law is satisfied and compiled with. The determination whether such renunciation is
valid or fully complies with the provisions of our Naturalization Law lies within the
province and is an exclusive prerogative of our courts. The latter should apply the
law duly enacted by the legislative department of the Republic. No foreign law may or
should interfere with its operation and application. If the requirement of the Chinese
Law of Nationality were to be read into our Naturalization Law, we would be applying
not what our legislative department has deemed it wise to require, but what a foreign
government has thought or intended to exact. That, of course, is absurd. It must be
resisted by all means and at all cost. It would be a brazen encroachment upon the
sovereign will and power of the people of this Republic.

III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP

The record shows that private respondent was born in San Francisco, California on September 4,
1955, of Filipino parents. Since the Philippines adheres to the principle of jus sanguinis, while the
United States follows the doctrine of jus soli, the parties agree that, at birth at least, he was a
national both of the Philippines and of the United States. However, the COMELEC en banc held that,
by participating in Philippine elections in 1992, 1995, and 1998, private respondent "effectively
renounced his U.S. citizenship under American law," so that now he is solely a Philippine national.

Petitioner challenges this ruling. He argues that merely taking part in Philippine elections is not
sufficient evidence of renunciation and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was ineffective as it should have been made
when he reached the age of majority.

In holding that by voting in Philippine elections private respondent renounced his American
citizenship, the COMELEC must have in mind §349 of the Immigration and Nationality Act of the
United States, which provided that "A person who is a national of the United States, whether by birth
or naturalization, shall lose his nationality by: . . . (e) Voting in a political election in a foreign state or
participating in an election or plebiscite to determine the sovereignty over foreign territory." To be
sure this provision was declared unconstitutional by the U.S. Supreme Court in Afroyim v. Rusk 16 as
beyond the power given to the U.S. Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private respondent elected Philippine
citizenship and in effect renounced his American citizenship. Private respondent's certificate of
candidacy, filed on March 27, 1998, contained the following statements made under oath:

6. I AM A FILIPINO CITIZEN (STATE IF "NATURAL-BORN" OR

"NATURALIZED") NATURAL-BORN

xxx xxx xxx

10. I AM A REGISTERED VOTER OF PRECINCT NO. 747-A, BARANGAY SAN

LORENZO, CITY/MUNICIPALITY OF MAKATI, PROVINCE OF NCR.

11. I AM NOT A PERMANENT RESIDENT OF, OR IMMIGRANT TO, A FOREIGN

COUNTRY.

12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO BE ELECTED. I WILL SUPPORT

AND DEFEND THE CONSTITUTION OF THE PHILIPPINES AND WILL MAINTAIN
TRUE FAITH AND ALLEGIANCE THERETO; THAT I WILL OBEY THE LAWS,
LEGAL ORDERS AND DECREES PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE PHILIPPINES; AND THAT I IMPOSE
THIS OBLIGATION UPON MYSELF VOLUNTARILY, WITHOUT MENTAL
RESERVATION OR PURPOSE OF EVASION. I HEREBY CERTIFY THAT THE
FACTS STATED HEREIN ARE TRUE AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.

The filing of such certificate of candidacy sufficed to renounce his American citizenship, effectively
removing any disqualification he might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held: 17

It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under
Sec. 40 of the Local Government Code would disqualify him "from running for any
elective local position?" We answer this question in the negative, as there is cogent
reason to hold that Frivaldo was really STATELESS at the time he took said oath of
allegiance and even before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long abandoned his American
citizenship — long before May 8, 1995. At best, Frivaldo was stateless in the interim
— when he abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship."

On this point, we quote from the assailed Resolution dated December 19, 1995:
 By the laws of the United States, petitioner Frivaldo lost his American
citizenship when he took his oath of allegiance to the Philippine
Government when he ran for Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an oath of allegiance to the
Philippine Government.

These factual findings that Frivaldo has lost his foreign nationality long before the
elections of 1995 have not been effectively rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are conclusive upon this Court, absent any
showing of capriciousness or arbitrariness or abuse.

There is, therefore, no merit in petitioner's contention that the oath of allegiance contained in private
respondent's certificate of candidacy is insufficient to constitute renunciation that, to be effective,
such renunciation should have been made upon private respondent reaching the age of majority
since no law requires the election of Philippine citizenship to be made upon majority age.

Finally, much is made of the fact that private respondent admitted that he is registered as an
American citizen in the Bureau of Immigration and Deportation and that he holds an American
passport which he used in his last travel to the United States on April 22, 1997. There is no merit in
this. Until the filing of his certificate of candidacy on March 21, 1998, he had dual citizenship. The
acts attributed to him can be considered simply as the assertion of his American nationality before
the termination of his American citizenship. What this Court said in Aznar
v. COMELEC 18 applies mutatis mundatis to private respondent in the case at bar:

. . . Considering the fact that admittedly Osmeña was both a Filipino and an
American, the mere fact that he has a Certificate staring he is an American does not
mean that he is not still a Filipino. . . . [T]he Certification that he is an American does
not mean that he is not still a Filipino, possessed as he is, of both nationalities or
citizenships. Indeed, there is no express renunciation here of Philippine citizenship;
truth to tell, there is even no implied renunciation of said citizenship. When We
consider that the renunciation needed to lose Philippine citizenship must be
"express," it stands to reason that there can be no such loss of Philippine citizenship
when there is no renunciation, either "express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he is a Filipino citizen; that he is not a
permanent resident or immigrant of another country; that he will defend and support the Constitution
of the Philippines and bear true faith and allegiance thereto and that he does so without mental
reservation, private respondent has, as far as the laws of this country are concerned, effectively
repudiated his American citizenship and anything which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the Philippines, when considered with
the fact that he has spent his youth and adulthood, received his education, practiced his profession
as an artist, and taken part in past elections in this country, leaves no doubt of his election of
Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his undertaking made under oath.
Should he betray that trust, there are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu v. Defensor-Santiago, 19 we
sustained the denial of entry into the country of petitioner on the ground that, after taking his oath as
a naturalized citizen, he applied for the renewal of his Portuguese passport and declared in
commercial documents executed abroad that he was a Portuguese national. A similar sanction can
be taken against any one who, in electing Philippine citizenship, renounces his foreign nationality,
but subsequently does some act constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of merit. 1âwphi1.nêt

SO ORDERED.
G.R. No. 71159 November 15, 1989

CITY OF MANILA, and EVANGELINE SUVA, petitioners,

vs.
HON. INTERMEDIATE APPELLATE COURT, IRENE STO. DOMINGO and for and in behalf of
her minor children, VIVENCIO, JR., IRIS, VERGEL and IMELDA, all surnamed STO.
DOMINGO, respondents.

The City Legal Officer for petitioners.

Jose M. Castillo for respondents.

PARAS, J.:

This is a petition for review on certiorari seeking to reverse and set aside: (a) the Decision of the
Intermediate Appellate Court now Court of Appeals 1 promulgated on May 31, 1984 in AC-G.R. CV
No. 00613-R entitled Irene Sto. Domingo et al., v. City Court of Manila et al., modifying the decision
of the then Court of First Instance of Manila, Branch VIII 2 in Civil Case No. 121921 ordering the
defendants (herein petitioners,) to give plaintiffs (herein private respondents) the right to use a burial
lot in the North Cemetery corresponding to the unexpired term of the fully paid lease sued upon, to
search the remains of the late Vivencio Sto. Domingo, Sr. and to bury the same in a substitute lot to
be chosen by the plaintiffs; and (b) the Resolution of the Court of Appeals dated May 28, 1985
denying petitioner's motion for reconsideration.

As found by the Court of Appeals and the trial court, the undisputed facts of the case are as follows:

Brought on February 22, 1979 by the widow and children of the late Vivencio Sto.
Domingo, Sr. was this action for damages against the City of Manila; Evangeline
Suva of the City Health Office; Sergio Mallari, officer-in-charge of the North
Cemetery; and Joseph Helmuth, the latter's predecessor as officer-in-charge of the
said burial grounds owned and operated by the City Government of Manila.

Vivencio Sto. Domingo, Sr. deceased husband of plaintiff Irene Sto. Domingo and
father of the litigating minors, died on June 4,1971 and buried on June 6,1971 in Lot
No. 159, Block No. 194 of the North Cemetery which lot was leased by the city to
Irene Sto. Domingo for the period from June 6, 1971 to June 6, 2021 per Official
Receipt No. 61307 dated June 6, 1971 (see Exh. A) with an expiry date of June 6,
2021 (see Exh. A-1). Full payment of the rental therefor of P50.00 is evidenced by
the said receipt which appears to be regular on its face. Apart from the
aforementioned receipt, no other document was executed to embody such lease
over the burial lot in question. In fact, the burial record for Block No. 194 of Manila
North Cemetery (see Exh. 2) in which subject Lot No. 159 is situated does not reflect
the term of duration of the lease thereover in favor of the Sto. Domingos.

Believing in good faith that, in accordance with Administrative Order No. 5, Series of
1975, dated March 6, 1975, of the City Mayor of Manila (See Exh. 1) prescribing
uniform procedure and guidelines in the processing of documents pertaining to and
for the use and disposition of burial lots and plots within the North Cemetery, etc.,
subject Lot No. 159 of Block 194 in which the mortal remains of the late Vivencio Sto.
 Domingo were laid to rest, was leased to the bereaved family for five (5) years only,
subject lot was certified on January 25, 1978 as ready for exhumation.

On the basis of such certification, the authorities of the North Cemetery then headed
by defendant Joseph Helmuth authorized the exhumation and removal from subject
burial lot the remains of the late Vivencio Sto. Domingo, Sr., placed the bones and
skull in a bag or sack and kept the same in the depository or bodega of the cemetery
y Subsequently, the same lot in question was rented out to another lessee so that
when the plaintiffs herein went to said lot on All Souls Day in their shock,
consternation and dismay, that the resting place of their dear departed did not
anymore bear the stone marker which they lovingly placed on the tomb. Indignant
and disgusted over such a sorrowful finding, Irene Sto. Domingo lost no time in
inquiring from the officer-in-charge of the North Cemetery, defendant Sergio Mallari,
and was told that the remains of her late husband had been taken from the burial lot
in question which was given to another lessee.

Irene Sto. Domingo was also informed that she can look for the bones of her
deceased husband in the warehouse of the cemetery where the exhumed remains
from the different burial lots of the North Cemetery are being kept until they are
retrieved by interested parties. But to the bereaved widow, what she was advised to
do was simply unacceptable. According to her, it was just impossible to locate the
remains of her late husband in a depository containing thousands upon thousands of
sacks of human bones. She did not want to run the risk of claiming for the wrong set
of bones. She was even offered another lot but was never appeased. She was too
aggrieved that she came to court for relief even before she could formally present her
claims and demands to the city government and to the other defendants named in
the present complaint. (Decision, Court of Appeals, pp. 2-3; Rollo, pp. 34-55)

The trial court, on August 4, 1981, rendered its Decision, the dispositive portion of which states:

WHEREFORE, judgment is hereby rendered, ordering the defendants to give

plaintiffs the right to make use of another single lot within the North Cemetery for a
period of forty-three (43) years four (4) months and eleven (11) days, corresponding
to the unexpired term of the fully paid lease sued upon; and to search without let up
and with the use of all means humanly possible, for the remains of the late Vivencio
Sto. Domingo, Sr. and thereafter, to bury the same in the substitute lot to be chosen
by the plaintiffs pursuant to this decision.

For want of merit, defendant's counterclaim is DISMISSED.

No pronouncement as to costs.

SO ORDERED. (Rollo, p. 31)

The decision was appealed to the Court of Appeals which on May 31, 1984 rendered a decision
(Rollo, pp. 33-40) modifying the decision appealed from, the dispositive portion of which reads:

WHEREFORE, PREMISES CONSIDERED, the decision appealed from is hereby

REVERSED (is hereby modified) and another one is hereby entered:
 1. Requiring in full force the defendants to look in earnest for the bones and skull of
the late Vivencio Sto. Domingo, Sr., and to bury the same in the substitute lot
adjudged in favor of plaintiffs hereunder;

2. Ordering defendants to pay plaintiffs-appellants jointly and severally P10,000.00

for breach of contract;

3. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P20,000.00

for moral damages;

4. Ordering defendants to pay plaintiffs-appellants jointly and severally, P20,000.00

for exemplary damages;

5. Ordering defendants to pay plaintiffs-appellants, jointly and severally, P10,000.00

as and for attorney's fees;

6. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, on the

foregoing amounts legal rate of interest computed from filing hereof until fully paid;
and

7. Ordering defendants, to pay plaintiffs-appellants, jointly and severally, the cost of

suit.

SO ORDERED. (Rollo, p. 40)

The petitioners' motion for reconsideration was likewise denied.

Hence, this instant petition (Rollo, pp. 7-27) filed on July 27, 1985.

The grounds relied upon for this petition are as follows:

THE HONORABLE INTERMEDIATE APPELLATE COURT ERRED IN AWARDING

DAMAGES AGAINST THE PETITIONERS HEREIN, NOTWITHSTANDING THEIR
GOOD FAITH AND THEIR LACK OF KNOWLEDGE OR CONSENT TO THE
REMOVAL OF THE SKELETAL REMAINS OF THE LATE VIVENCIO STO.
DOMINGO, SR. FROM THE SUBJECT BURIAL LOT.

II

THE HON. INTERMEDIATE APPELLATE COURT ERRED IN HOLDING

PETITIONERS HEREIN RESPONSIBLE FOR THE ALLEGED TORTS OF THEIR
SUBORDINATE OFFICIALS AND EMPLOYEES, INSPITE OF THE PROVISIONS
OF SECTION 4 OF THE REPUBLIC ACT NO. 409 (REVISED CHARTER OF
MANILA) AND OTHER APPLICABLE JURISPRUDENCE ON THE SUBJECT
EXEMPTING THE PETITIONERS FROM DAMAGES FROM THE MALFEASANCE
OR MISFEASANCE OF THEIR OFFICIALS AND EMPLOYEES, IF THERE BE ANY
IN THIS CASE. (Brief for Petitioners, Rollo, pp. 93-94)

In the resolution dated November 13, 1985 (,Rollo, p. 84), the petition was given due course.
The pivotal issue of this case is whether or not the operations and functions of a public cemetery are
a governmental, or a corporate or proprietary function of the City of Manila. The resolution of this
issue is essential to the determination of the liability for damages of the petitioner city.

Petitioners alleged in their petition that the North Cemetery is exclusively devoted for public use or
purpose as stated in Sec. 316 of the Compilation of the Ordinances of the City of Manila. They
conclude that since the City is a political subdivision in the performance of its governmental function,
it is immune from tort liability which may be caused by its public officers and subordinate employees.
Further Section 4, Article I of the Revised Charter of Manila exempts the city from liability for
damages or injuries to persons or property arising from the failure of the Mayor, the Municipal Board,
or any other city officer, to enforce the provision of its charter or any other laws, or ordinance, or
from negligence of said Mayor, Municipal Board or any other officers while enforcing or attempting to
enforce said provisions. They allege that the Revised Charter of Manila being a special law cannot
be defeated by the Human Relations provisions of the Civil Code being a general law.

Private respondents on the other hand maintain that the City of Manila entered into a contract of
lease which involve the exercise of proprietary functions with private respondent Irene Sto. Domingo.
The city and its officers therefore can be sued for any-violation of the contract of lease.

Private respondents' contention is well-taken.

Under Philippine laws, the City of Manila is a political body corporate and as such endowed with the
faculties of municipal corporations to be exercised by and through its city government in conformity
with law, and in its proper corporate name. It may sue and be sued, and contract and be contracted
with. Its powers are twofold in character-public, governmental or political on the one hand, and
corporate, private and proprietary on the other. Governmental powers are those exercised in
administering the powers of the state and promoting the public welfare and they include the
legislative, judicial, public and political. Municipal powers on the one hand are exercised for the
special benefit and advantage of the community and include those which are ministerial, private and
corporate. In McQuillin on Municipal Corporation, the rule is stated thus: "A municipal corporation
proper has ... a public character as regards the state at large insofar as it is its agent in government,
and private (so called) insofar as it is to promote local necessities and conveniences for its own
community (Torio v. Fontanilla, 85 SCRA 599 [1978]). In connection with the powers of a municipal
corporation, it may acquire property in its public or governmental capacity, and private or proprietary
capacity. The New Civil Code divides such properties into property for public use and patrimonial
properties (Article 423), and further enumerates the properties for public use as provincial roads, city
streets, municipal streets, the squares, fountains, public waters, promenades, and public works for
public service paid for by said provisions, cities or municipalities, all other property is patrimonial
without prejudice to the provisions of special laws (Article 424; Province of Zamboanga del Norte v.
City of Zamboanga, et al., 22 SCRA 1334 [1968]).

Thus in Torio v. Fontanilla, supra, the Court declared that with respect to proprietary functions the
settled rule is that a municipal corporation can be held liable to third persons ex
contractu (Municipality of Moncada v. Cajuigan, et al., 21 Phil. 184 (1912) or ex delicto (Mendoza v.
de Leon, 33 Phil. 508 (1916).

The Court further stressed:

Municipal corporations are subject to be sued upon contracts and in tort....

xxx xxx xxx

 The rule of law is a general one, that the superior or employer must answer civilly for
the negligence or want of skill of its agent or servant in the course or line of his
employment, by which another who is free from contributory fault, is injured.
Municipal corporations under the conditions herein stated, fall within tile operation of
this rule of law, and are liable accordingly, to civil actions for damages when the
requisite elements of liability co-exist. ... (Emphasis supplied)

The Court added:

... while the following are corporate or proprietary in character, viz: municipal
waterworks, slaughter houses, markets, stables, bathing establishments, wharves,
ferries and fisheries. Maintenance of parks, golf courses, cemeteries and airports
among others, are also recognized as municipal or city activities of a proprietary
character. (Dept. of Treasury v. City of Evansvulle, Sup. Ct. of Indiana, 60 N.E. 2nd
952, 954 cited in Torio v. Fontanilla, supra) (Emphasis supplied)

Under the foregoing considerations and in the absence of a special law, the North Cemetery is a
patrimonial property of the City of Manila which was created by resolution of the Municipal Board of
August 27, 1903 and January 7, 1904 (Petition, Rollo pp. 20-21 Compilation of the Ordinances of the
City of Manila). The administration and government of the cemetery are under the City Health Officer
(Ibid., Sec. 3189), the order and police of the cemetery (Ibid., See. 319), the opening of graves,
niches, or tombs, the exhuming of remains, and the purification of the same (Ibid., Sec. 327) are
under the charge and responsibility of the superintendent of the cemetery. The City of Manila
furthermore prescribes the procedure and guidelines for the use and dispositions of burial lots and
plots within the North Cemetery through Administrative Order No. 5, s. 1975 (Rollo, p. 44). With the
acts of dominion, there is, therefore no doubt that the North Cemetery is within the class of property
which the City of Manila owns in its proprietary or private character. Furthermore, there is no dispute
that the burial lot was leased in favor of the private respondents. Hence, obligations arising from
contracts have the force of law between the contracting parties. Thus a lease contract executed by
the lessor and lessee remains as the law between them. (Henson v. Intermediate Appellate Court,
148 SCRA 11 [1 987]). Therefore, a breach of contractual provision entitles the other party to
damages even if no penalty for such breach is prescribed in the contract. (Boysaw v. Interphil
Promotions, Inc., 148 SCRA 635 [1987]).

Noteworthy are the findings of the Court of Appeals as to the harrowing experience of private
respondents and their wounded feelings upon discovery that the remains of their loved one were
exhumed without their knowledge and consent, as said Court declared:

It has been fully established that the appellants, in spite or perhaps because, of their
lowly station in life have found great consolation in their bereavement from the loss of
their family head, by visiting his grave on special or even ordinary occasions, but
particularly on All Saints Day, in keeping with the deep, beautiful and Catholic Filipino
tradition of revering the memory of their dead. It would have been but fair and
equitable that they were notified of the intention of the city government to transfer the
skeletal remains of the late Vivencio Sto. Domingo to give them an opportunity to
demand the faithful fulfillment of their contract, or at least to prepare and make
provisions for said transfer in order that they would not lose track of the remains of
their beloved dead, as what has actually happened on this case. We understand fully
what the family of the deceased must have felt when on All Saints Day of 1978, they
found a new marker on the grave they were to visit, only to be told to locate their
beloved dead among thousands of skeletal remains which to them was desecration
 and an impossible task. Even the lower court recognized this when it stated in its
decision thus:

All things considered, even as the Court commiserates with plaintiffs

for the unfortunate happening complained of and untimely
desecration of the resting place and remains of their deceased dearly
beloved, it finds the reliefs prayed for by them lacking in legal and
factual basis. Under the aforementioned facts and circumstances, the
most that plaintiffs ran ask for is the replacement of subject lot with
another lot of equal size and similar location in the North Cemetery
which substitute lot plaintiffs can make use of without paying any
rental to the city government for a period of forty-three (43) years,
four (4) months and eleven (11) days corresponding to the unexpired
portion of the term of the lease sued upon as of January 25, 1978
when the remains of the late Vivencio Sto. Domingo, Sr. were
prematurely removed from the disputed lot; and to require the
defendants to look in earnest for the bones and skull of the late
Vivencio Sto. Domingo Sr. and to bury the same in the substitute lot
adjudged in favor of plaintiffs hereunder. (Decision, Intermediate
Appellate Court, p. 7, Rollo, p. 39)

As regards the issue of the validity of the contract of lease of grave lot No. 159, Block No. 195 of the
North Cemetery for 50 years beginning from June 6, 1971 to June 6, 2021 as clearly stated in the
receipt duly signed by the deputy treasurer of the City of Manila and sealed by the city government,
there is nothing in the record that justifies the reversal of the conclusion of both the trial court and the
Intermediate Appellate Court to the effect that the receipt is in itself a contract of lease. (Decision,
Intermediate Appellate Court, p. 3, Rollo, pp. 5-6).

Under the doctrine of respondent superior, (Torio v. Fontanilla, supra), petitioner City of Manila is
liable for the tortious act committed by its agents who failed to verify and check the duration of the
contract of lease. The contention of the petitioner-city that the lease is covered by Administrative
Order No. 5, series of 1975 dated March 6, 1975 of the City of Manila for five (5) years only
beginning from June 6, 1971 is not meritorious for the said administrative order covers new leases.
When subject lot was certified on January 25, 1978 as ready for exhumation, the lease contract for
fifty (50) years was still in full force and effect.

PREMISES CONSIDERED, the Decision of the Intermediate Appellate Court is hereby AFFIRMED.

SO ORDERED.
G.R. No. 126661 December 3, 1999

JOSE S. ANDAYA and EDGARDO L. INCIONG, petitioners,

vs.
REGIONAL TRIAL COURT, Cebu City, Branch 20, and THE CITY OF CEBU, respondents.

PARDO, J.:

The case is an appeal via certiorari from a decision 1 of the Regional Trial Court, Cebu City, Branch
20, commanding petitioner Jose S. Andaya as Regional Police Command No. 7, to include P/Chief
Inspector Andres Sarmiento in the list of five (5) recommendees to be submitted to the mayor from
which list the mayor shall select the City Director, Cebu City Police Command (chief of police).

On January 3, 1996, the position of City Director, Cebu City Police Command (chief of police)
became vacant after P/Supt. Antonio Enteria was relieved of command.

Sometime in January 1996, petitioner Andaya submitted to the City Mayor, Cebu City a list of five (5)
eligibles for the mayor choose one to be appointed as the chief of police of Cebu City. The mayor did
not choose anyone from the list of five (5) recommendees because the name of P/Chief Inspector
Andres Sarmiento was not included therein.

However, petitioner Andaya refused to agree to Mayor Alvin B. Garcia's request to include the name
of Major Andres Sarmiento in the list of police officers for appointment by the mayor to the position of
City Director (chief of police), Cebu City Police Command. Petitioner Andaya's refusal was based on
his contention that Major Andres Sarmiento was not qualified for the position of City Director (chief of
police), Cebu City Police Command, under NAPOLCOM Memorandum Circular No. 95-04 dated
January 12, 1995, particularly Item No. 8, paragraph D thereof, which provides that the minimum
qualification standards for Directors of Provincial/City Police Commands, include completion of the
Officers Senior Executive Course (OSEC) and the rank of Police Superintendent.

Due to the impasse, on March 22, 1996, the City of Cebu filed with the Regional Trial Court, Branch
20, Cebu City, a complaint for declaratory relief with preliminary prohibitory and mandatory injunction
and temporary restraining order against P/Chief Supt. Jose S. Andaya and Edgardo L. Inciong,
Regional Director, National Police Commission. 2

On April 10, 1996, petitioners filed with the trial court their respective answer to the complaint.
Petitioners stated that the power to designate the chief of police of Cebu City (City Director, Cebu
City Police Command) is vested with the Regional Director, Regional Police Command No. 7.
However, the mayor is authorized to choose the chief of police from a list of five (5) eligibles
submitted by the Regional Director. In case of conflict between the Regional Director and the mayor,
the issue shall be elevated to the Regional Director, National Police Commission, who shall resolve
the issue within five (5) working days from receipt and whose decision on the choice of the chief of
police shall be final and executory. Thus, petitioners prayed for dismissal of the complaint for lack of
legal basis and failure to exhaust administrative remedies. 3

On April 18, 1996, the trial court issued a writ of preliminary injunction against petitioner Jose S.
Andaya enjoining him from replacing C/Insp. Andres Sarmiento as OIC Director or Chief of Police of
the Cebu City Police Command by designating another as OIC Chief of Police or appointing a
regular replacement for said officer, and, from submitting to the mayor a list of five (5) eligibles which
did not include the name of Major Andres Sarmiento. 4
On July 12, 1996, the trial court rendered decision in favor of respondent City of Cebu, the
dispositive portion of which reads as follows:

WHEREFORE, in view of all the foregoing premises, judgment is hereby rendered in

favor of plaintiff as against defendants, declaring that P/CInsp. Andres Sarmiento is
qualified under RA 6975 to be appointed as Chief Director or Chief of Police of the
Cebu City Police Command and whose name must be included in the list of five (5)
eligibles recommended as regular replacement to the position of the Chief of Police
of said Cebu City Police Command.

The writ of preliminary prohibitory injunction issued in this case against defendants
and their agents, or, representatives or any other persons acting for and in their
behalf enjoining and preventing them from replacing P/CInsp. Andres Sarmiento as
OIC Chief of Police of Cebu City Police Command by designating anyone from the
eligibles recommended in the two (2) lists thereof submitted to Mayor Garcia or from
any other list of said eligible recommendees for said position is hereby made
permanent.

Let a permanent writ of preliminary mandatory injunction be issued against defendant

Jose S. Andaya or his successor ordering the latter to include Major Andres
Sarmiento in the list of five (5) eligible persons recommended for the replacement to
the position of Chief of Police of Cebu City Police Command.

SO ORDERED.

Cebu City, July 12, 1996.

(s/t) FERDINAND J. MARCOS

Judge 5

In due time, petitioners filed with the trial court their joint motion for reconsideration 6 on the ground
that the decision is contrary to Section 51 of Republic Act 6975 which only empowers the mayor to
choose one (1) from the five (5) eligibles recommended by the Regional Police Director to be named
chief of police. The mayor cannot superimpose his will on the recommending authority by insisting
that his protégé be included in the list of five eligibles from which the chief of police is to be chosen.

On September 11, 1996, the trial court denied petitioners' motion for reconsideration ruling that no
new matters had been raised therein. 7

Hence, this petition 8 review on certiorari on pure question of law. 9

On June 11, 1997, we gave due course to the petition. 10

At issue is whether or not the Mayor of Cebu City may require the Regional Director, Regional Police
Command No. 7, to include the mayor's protégé in the list of five (5) eligibles to be recommended by
the Regional Police Director to the mayor from which the mayor shall choose the City Director, City
Police Command (chief of police) City of Cebu.

We resolve the issue against the position of the city mayor.

Republic Act No. 6975, Section 51, gives authority to the mayor of Cebu City 11 to choose the chief of
police from a list of five (5) eligibles recommended by the Regional Director, Regional Police
Command No. 7.

The National Police Commission has issued Memorandum Circular No. 95-04, dated January 12,
1995, for the implementation of Republic Act No. 6975. It provides that among the qualifications for
chief of police of highly urbanized cities are (1) completion of the Officers' Senior Executive Course
(OSEC) and (2) holding the rank of Police Superintendent.

The mayor of Cebu City submits that Memorandum Circular No. 95-04 of the National Police
Commission prescribing such additional qualifications is not valid as it contravenes the law.

We do not agree. Under Republic Act No. 6975, Section 51, the mayor of Cebu City shall be
deputized as representative of the Commission (National Police Commission) in his territorial
jurisdiction and as such the mayor shall have authority to choose the chief of police from a list of five
(5) eligibles recommended by the Police Regional Director. The City Police Station of Cebu City is
under the direct command and control of the PNP Regional Director, Regional Police Command No.
7, and is equivalent to a provincial office. 12 Then, the Regional Director, Regional Police Command
No. 7 appoints the officer selected by the mayor as the City Director, City Police Command (chief of
police) Cebu City. It is the prerogative of the Regional Police Director to name the five (5) eligibles
from a pool of eligible officers screened by the Senior Officers Promotion and Selection Board,
Headquarters, Philippine National Police, Camp Crame, Quezon City, without interference from local
executives. In case of disagreement between the Regional Police Director and the Mayor, the
question shall be elevated to the Regional Director, National Police Commission, who shall resolve
the issue within five (5) working days from receipt and whose decision on the choice of the Chief of
Police shall be final and executory. 13 As deputy of the Commission, the authority of the mayor is very
limited. In reality, he has no power of appointment; he has only the limited power of selecting one
from among the list of five eligibles to be named the chief of police. Actually, the power to appoint
the chief of police of Cebu City is vested in the Regional Director, Regional Police Command No. 7.
Much less may the mayor require the Regional Director, Regional Police Command, to include the
name of any officer, no matter how qualified, in the list of five to be submitted to the mayor. The
purpose is to enhance police professionalism and to isolate the police service from political
domination.

Consequently, we find that the trial court erred in granting preliminary injunction that effectively
restrained the Regional Director, Regional Police Command, Region 7, from performing his statutory
function. The writ of preliminary injunction issued on April 18, 1996, is contrary to law and thus void.
Similarly, the lower court's decision sustaining the City Mayor's position suffers from the same legal
infirmity.

WHEREFORE, the Court GRANTS the petition and SETS ASIDE the decision of the Regional Trial
Court, Branch 20, Cebu City, dated July 12, 1996, in Civil Case No. CEB-18545. In lieu thereof, the
Court renders judgment upholding the sole discretion of the Regional Director, Regional Police
Command No. 7, to submit to the mayor of Cebu City a list of five (5) eligibles from which the mayor
shall choose the chief of police. In case of the mayor's refusal to make his choice within a given
period due to disagreement as to the eligible nominees, the issue shall be submitted to the Regional
Director, National Police Commission, whose decision shall be final.

No costs.

SO ORDERED.
G.R. No. 125955 June 19, 1997

WILMER GREGO, petitioner,

vs.
COMMISSION ON ELECTIONS and HUMBERTO BASCO, respondents.

ROMERO, J.:

The instant special civil action for certiorari and prohibition impugns the resolution of the
Commission on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing
petitioner's motion for reconsideration of an earlier resolution rendered by the COMELEC's First
Division on October 6, 1995, which also dismissed the petition for disqualification 1 filed by petitioner
Wilmer Grego against private respondent Humberto Basco.

The essential and undisputed factual antecedents of the case are as follows:

On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this
Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena
Tordesillas. The Court held:

WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO

BASCO OF THE CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT
IN OFFICE FOR THE SECOND TIME, HE IS HEREBY DISMISSED FROM THE
SERVICE WITH FORFEITURE OF ALL RETIREMENT BENEFITS AND WITH
PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR
LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES,
OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.

xxx xxx xxx 2

Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila
during the January 18, 1988, local elections. He won and, accordingly, assumed office.

After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again,
he succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his
victory this time did not remain unchallenged. In the midst of his successful re-election, he found
himself besieged by lawsuits of his opponents in the polls who wanted to dislodge him from his
position.

One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo,
another candidate for councilor in the same district, who alleged Basco's ineligibility to be elected
councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also
commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior
and Local Government. 4 All these challenges were, however, dismissed, thus, paving the way for
Basco's continued stay in office.

Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in
the May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by
emerging sixth in a battle for six councilor seats. As in the past, however, his right to office was
again contested. On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct
No. 966, District II, City of Manila, filed with the COMELEC a petition for disqualification, praying for
Basco's disqualification, for the suspension of his proclamation, and for the declaration of Romualdo
S. Maranan as the sixth duly elected Councilor of Manila's Second District.

On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished
with a copy of the petition. The other members of the BOC learned about this petition only two days
later.

The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to
submit simultaneously their respective memoranda.

Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco
on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among
several candidates who vied for the seats. 5 Basco immediately took his oath of office before the
Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.

In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what
he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City
BOC. He reiterated Basco's disqualification and prayed anew that candidate Romualdo S. Maranan
be declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition
to: Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant
Petition for Disqualification with Temporary Restraining Order).

On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation
he made earlier, summarizing his contentions and praying as follows:

Respondent thus now submits that the petitioner is not entitled to relief for the
following reasons:

1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of

the Local Government Code because the Tordesillas decision is barred by laches,
prescription, res judicata, lis pendens, bar by prior judgment, law of the case
and stare decisis;

2. Section 4[0] par. B of the Local Government Code may not be validly applied to
persons who were dismissed prior to its effectivity. To do so would make it ex post
facto, bill of attainder, and retroactive legislation which impairs vested rights. It is also
a class legislation and unconstitutional on the account.

3. Respondent had already been proclaimed. And the petition being a

preproclamation contest under the Marquez v. Comelec Ruling, supra, it should be
dismissed by virtue of said pronouncement.

4. Respondent's three-time election as candidate for councilor constitutes implied

pardon by the people of previous misconduct (Aguinaldo v. Comelec G.R. 105128;
Rice v. State 161 SCRA 401; Montgomery v. Newell 40 SW 2d 4181; People v.
Bashaw 130 P. 2nd 237, etc.).
 5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was
premature as an election protest and it was not brought by a proper party in interest
as such protest.:

PRAYER

WHEREFORE it is respectfully prayed that the instant case be dismissed on instant

motion to dismiss the prayer for restraining order denied (sic). If this Honorable Office
is not minded to dismiss, it is respectfully prayed that instant motion be considered
as respondent's answer. All other reliefs and remedies just and proper in the
premises are likewise hereby prayed for.

After the parties' respective memoranda had been filed, the COMELEC's First Division resolved to
dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty
imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and
condoned by the electorate which elected him" and that on account of Basco's proclamation on May
17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no
longer be viable." 6

Petitioner's motion for reconsideration of said resolution was later denied by the COMELEC en
banc in its assailed resolution promulgated on July 31, 1996. 7 Hence, this petition.

Petitioner argues that Basco should be disqualified from running far any elective position since he
had been "removed from office as a result of an administrative case" pursuant to Section 40 (b) of
Republic Act No. 7160, otherwise known as the Local Government Code (the Code), which took
effect on January 1, 1992. 8

Petitioner wants the Court to likewise resolve the following issues, namely:

1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively to
those removed from office before it took effect on January 1, 1992;

2. Whether or not private respondent's election in 1988, 1992 and in 1995 as City
Councilor of Manila wiped away and condoned the administrative penalty against
him;

3. Whether or not private respondent's proclamation as sixth winning candidate on

May 17, 1995, while the disqualification case was still pending consideration by
COMELEC, is void ab initio; and

4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates
for City Councilor of Manila, may be declared a winner pursuant to Section 6 of
Republic Act No. 6646.

While we do not necessarily agree with the conclusions and reasons of the COMELEC in the
assailed resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the
petition for disqualification. The instant petition must, therefore, fail.

We shall discuss the issues raised by petitioner in seriatim.

 I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from
office before it took effect on January 1, 1992?

Section 40 (b) of the Local Government Code under which petitioner anchors Basco's alleged
disqualification to run as City Councilor states:

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

xxx xxx xxx

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

xxx xxx xxx

In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section
40 (b) must nonetheless be given retroactive effect and applied to Basco's dismissal from office
which took place in 1981. It is stressed that the provision of the law as worded does not mention or
even qualify the date of removal from office of the candidate in order for disqualification thereunder
to attach. Hence, petitioner impresses upon the Court that as long as a candidate was once
removed from office due to an administrative case, regardless of whether it took place during or prior
to the effectivity of the Code, the disqualification applies. 9 To him, this interpretation is made more
evident by the manner in which the provisions of Section 40 are couched. Since the past tense is
used in enumerating the grounds for disqualification, petitioner strongly contends that the provision
must have also referred to removal from office occurring prior to the effectivity of the Code. 10

We do not, however, subscribe to petitioner's view. Our refusal to give retroactive application to the
provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to
depart therefrom. Thus, in Aguinaldo v. COMELEC, 11 reiterated in the more recent cases of Reyes
v. COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled, thus:

The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act
7160) which provides:

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

xxx xxx xxx

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

Republic Act 7160 took effect only on January 1, 1992.

The rule is:

xxx xxx xxx

. . . Well-settled is the principle that while the Legislature has the

power to pass retroactive laws which do not impair the obligation of
contracts, or affect injuriously vested rights, it is equally true that
statutes are not to be construed as intended to have a retroactive
 effect so as to affect pending proceedings, unless such intent is
expressly declared or clearly and necessarily implied from the
language of the enactment. . . . (Jones v. Summers, 105 Cal. App.
51, 286 Pac. 1093; U.S. v. Whyel 28 (2d) 30; Espiritu v. Cipriano, 55
SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519
[1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-
Amanah Islamic Investment Bank of the Philippines v. Civil Service
Commission, et al., G.R. No. 100599, April 8, 1992).

There is no provision in the statute which would clearly indicate that the same
operates retroactively.

It, therefore, follows that [Section] 40 (b) of the Local Government Code is not
applicable to the present case. (Emphasis supplied).

That the provision of the Code in question does not qualify the date of a candidate's removal from
office and that it is couched in the past tense should not deter us from applying the law
prospectively. The basic tenet in legal hermeneutics that laws operate only prospectively and not
retroactively provides the qualification sought by petitioner. A statute, despite the generality in its
language, must not be so construed as to overreach acts, events or matters which transpired before
its passage. Lex prospicit, non respicit. The law looks forward, not backward. 14

II. Did private respondent's election to office as City Councilor of Manila in the 1988, 1992
and 1995 elections wipe away and condone the administrative penalty against him, thus
restoring his eligibility for public office?

Petitioner maintains the negative. He quotes the earlier ruling of the Court in Frivaldo
v. COMELEC 15 to the effect that a candidate's disqualification cannot be erased by the electorate
alone through the instrumentality of the ballot. Thus:

. . . (T)he qualifications prescribed for elective office cannot be erased by the

electorate alone. The will of the people as expressed through the ballot cannot cure
the vice of ineligibility, especially if they mistakenly believed, as in this case, that the
candidate was qualified. . . .

At first glance, there seems to be a prima facie semblance of merit to petitioner's argument.
However, the issue of whether or not Basco's triple election to office cured his alleged ineligibility is
actually beside the point because the argument proceeds on the assumption that he was in the first
place disqualified when he ran in the three previous elections. This assumption, of course, is
untenable considering that Basco was NOT subject to any disqualification at all under Section 40 (b)
of the Local Government Code which, as we said earlier, applies only to those removed from office
on or after January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no
more reason for the Court to still dwell on the matter at length.

Anent Basco's alleged circumvention of the prohibition in Tordesillas against reinstatement to any
position in the national or local government, including its agencies and instrumentalities, as well as
government-owned or controlled corporations, we are of the view that petitioner's contention is
baseless. Neither does petitioner's argument that the term "any position" is broad enough to cover
without distinction both appointive and local positions merit any consideration.
Contrary to petitioner's assertion, the Tordesillas decision did not bar Basco from running for any
elective position. As can be gleaned from the decretal portion of the said decision, the Court
couched the prohibition in this wise:

. . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE

NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED
CORPORATIONS.

In this regard, particular attention is directed to the use of the term "reinstatement." Under
the former Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was
administratively dismissed from office, the term "reinstatement" had a technical meaning,
referring only to an appointive position. Thus:

Art. VIII. PERSONNEL POLICIES AND STANDARDS.

Sec. 24. Personnel Actions. —

xxx xxx xxx

(d) Reinstatement. — Any person who has been permanently APPOINTED to a

position in the career service and who has, through no delinquency or misconduct,
been separated therefrom, may be reinstated to a position in the same level for
which he is qualified.

xxx xxx xxx

(Emphasis supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on
November 10, 1975, 17 provides a clearer definition. It reads:

RULE VI. OTHER PERSONNEL ACTIONS

Sec. 7. Reinstatement is the REAPPOINTMENT of a person who was previously

separated from the service through no delinquency or misconduct on his part from a
position in the career service to which he was permanently appointed, to a position
for which he is qualified. (Emphasis supplied).

In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from
running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is
reinstatement to an appointiveposition.

III. Is private respondent's proclamation as sixth winning candidate on May 17, 1995, while
the disqualification case was still pending consideration by COMELEC, void ab initio?

To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph
(i) of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases
of Duremdes v. COMELEC, 18Benito v. COMELEC 19 and Aguam v. COMELEC. 20
We are not convinced. The provisions and cases cited are all misplaced and quoted out of context.
For the sake of clarity, let us tackle each one by one.

Section 20, paragraph (i) of Rep. Act 7166 reads:

Sec. 20. Procedure in Disposition of Contested Election Returns. —

xxx xxx xxx

(i) The board of canvassers shall not proclaim any candidate as winner unless
authorized by the Commission after the latter has ruled on the objections brought to it
on appeal by the losing party. Any proclamation made in violation hereof shall be
void ab initio, unless the contested returns will not adversely affect the results of the
election.

xxx xxx xxx

The inapplicability of the abovementioned provision to the present case is very much patent on its
face considering that the same refers only to a void proclamation in relation to contested returns and
NOT to contested qualifications of a candidate.

Next, petitioner cites Section 6 of Rep. Act 6646 which 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 supplied).

This provision, however, does not support petitioner's contention that the COMELEC, or more
properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the
word "may" indicates that the suspension of a proclamation is merely directory and permissive in
nature and operates to confer discretion. 21 What is merely made mandatory, according to the
provision itself, is the continuation of the trial and hearing of the action, inquiry or protest. Thus, in
view of this discretion granted to the COMELEC, the question of whether or not evidence of guilt is
so strong as to warrant suspension of proclamation must be left for its own determination and the
Court cannot interfere therewith and substitute its own judgment unless such discretion has been
exercised whimsically and capriciously. 22 The COMELEC, as an administrative agency and a
specialized constitutional body charged with the enforcement and administration of all laws and
regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall, 23 has
more than enough expertise in its field that its findings or conclusions are generally respected and
even given finality. 24 The COMELEC has not found any ground to suspend the proclamation and the
records likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there
is no ample justification to hold that the COMELEC gravely abused its discretion.

It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that:
 Sec. 5. Effect of petition if unresolved before completion of canvass. — . . . (H)is
proclamation shall be suspended notwithstanding the fact that he received the
winning number of votes in such election.

However, being merely an implementing rule, the same must not override, but instead remain
consistent with and in harmony with the law it seeks to apply and implement. Administrative rules
and regulations are intended to carry out, neither to supplant nor to modify, the law. 26 Thus,
in Miners Association of the Philippines, Inc. v. Factoran, Jr., 27 the Court ruled that:

We reiterate the principle that the power of administrative officials to promulgate

rules and regulations in the implementation of a statute is necessarily limited only to
carrying into effect what is provided in the legislative enactment. The principle was
enunciated as early as 1908 in the case of United States v.Barrias. The scope of the
exercise of such rule-making power was clearly expressed in the case of United
States v. Tupasi Molina, decided in 1914, thus: "Of course, the regulations adopted
under legislative authority by a particular department must be in harmony with the
provisions of the law, and for the sole purpose of carrying into effect its general
provisions. By such regulations, of course, the law itself can not be extended. So
long, however, as the regulations relate solely to carrying into effect the provision of
the law, they are valid.

Recently, the case of People v. Maceren gave a brief delineation of the scope of said
power of administrative officials:

Administrative regulations adopted under legislative authority by a particular

department must be in harmony with the provisions of the law, and should be for the
sole purpose of carrying into effect its general provisions. By such regulations, of
course, the law itself cannot be extended (U.S. v. Tupasi Molina, supra). An
administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109
Phil. 419, 422; Teoxon vs. Members of the Board of Administrators, L-25619, June
30, 1970, 33 SCRA 585; Manuel vs. General Auditing Office, L-28952, December 29,
1971, 42 SCRA 660; Deluao v. Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or
proceeding to carry into effect the law as it has been enacted. The power cannot be
extended to amending or expanding the statutory requirements or to embrace
matters not covered by the statute. Rules that subvert the statute cannot be
sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382,
citing 12 C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v.
Villaflor, 69 Phil. 319; Wise & Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil.
Veterans Administration, L-27299, June 27, 1973, 51 SCRA 340, 349).

xxx xxx xxx

. . . The rule or regulations should be within the scope of the statutory authority
granted by the legislature to the administrative agency (Davis, Administrative Law, p.
194, 197, cited in Victorias Milling Co., Inc. v. Social Security Commission, 114 Phil.
555, 558).

In case of discrepancy between the basic law and a rule or regulation issued to
implement said law, the basic law prevails because said rule or regulations cannot go
beyond the terms and provisions of the basic law (People v. Lim, 108 Phil. 1091).
Since Section 6 of Rep. Act 6646, the law which Section 5 of Rule 25 of the COMELEC Rules of
Procedure seeks to implement, employed the word "may," it is, therefore, improper and highly
irregular for the COMELEC to have used instead the word "shall" in its rules.

Moreover, there is no reason why the Manila City BOC should not have proclaimed Basco as the
sixth winning City Councilor. Absent any determination of irregularity in the election returns, as well
as an order enjoining the canvassing and proclamation of the winner, it is a mandatory and
ministerial duty of the Board of Canvassers concerned to count the votes based on such returns and
declare the result. This has been the rule as early as in the case of Dizon v. Provincial Board of
Canvassers of Laguna 28 where we clarified the nature of the functions of the Board of
Canvassers, viz.:

The simple purpose and duty of the canvassing board is to ascertain and declare the
apparent result of the voting. All other questions are to be tried before the court or
other tribunal for contesting elections or in quo warranto proceedings. (9 R.C.L., p.
1110)

To the same effect is the following quotation:

. . . Where there is no question as to the genuineness of the returns or that all the
returns are before them, the powers and duties of canvassers are limited to the
mechanical or mathematical function of ascertaining and declaring the apparent
result of the election by adding or compiling the votes cast for each candidate as
shown on the face of the returns before them, and then declaring or certifying the
result so ascertained. (20 C.J., 200-201) [Emphasis supplied]

Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and
inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real
issue. These three cases do not in any manner refer to void proclamations resulting from the mere
pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to
the provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of
contested election returns.

In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of
Canvassers' violation of its ministerial duty to proclaim the candidate receiving the highest number of
votes and pave the way to succession in office. In said case, the candidate receiving the highest
number of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming
the deceased candidate winner, declared Benito, a mere second-placer, the mayor.

Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only
on advanced copies of election returns which, under the law then prevailing, could not have been a
proper and legal basis for proclamation.

With no precedent clearly in point, petitioner's arguments must, therefore, be rejected.

IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?

Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate
pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes
which put him in sixth place. Thus, petitioner's emphatic reference to Labo v. COMELEC, 29 where
we laid down a possible exception to the rule that a second placer may not be declared the winning
candidate, finds no application in this case. The exception is predicated on the concurrence of two
assumptions, namely: (1) the one who obtained the highest number of votes is disqualified; and (2)
the electorate is fully aware in fact and in law of a candidate's disqualification so as to bring such
awareness within the realm of notoriety but would nonetheless cast their votes in favor of the
ineligible candidate. Both assumptions, however, are absent in this case. Petitioner's allegation that
Basco was well-known to have been disqualified in the small community where he ran as a
candidate is purely speculative and conjectural, unsupported as it is by any convincing facts of
record to show notoriety of his alleged disqualification. 30

In sum, we see the dismissal of the petition for disqualification as not having been attended by grave
abuse of discretion. There is then no more legal impediment for private respondent's continuance in
office as City Councilor for the Second District of Manila.

WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of
merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA 95-212
dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.
G.R. No. 133495 September 3, 1998

BENJAMIN U. BORJA, JR., petitioner,

vs.
COMMISSION ON ELECTIONS and JOSE T. CAPCO, JR., respondents.

MENDOZA, J.:

This case presents for determination the scope of the constitutional provision barring elective local
officials, with the exception of barangay officials, from serving more than three consecutive terms. In
particular, the question is whether a vice-mayor who succeeds to the office of mayor by operation of
law and serves the remainder of the term is considered to have served a term in that office for the
purpose of the three-term limit.

Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18, 1988 for a
term ending June 30, 1992. On September 2, 1989, he became mayor, by operation of law, upon the
death of the incumbent, Cesar Borja. On May 11, 1992, he ran and was elected mayor for a term of
three years which ended on June 30, 1995. On May 8, 1995, he was reelected mayor for another
term of three years ending June 30, 1998.1

On March 27, 1998, private respondent Capco filed a certificate of candidacy for mayor of Pateros
relative to the May 11, 1998 elections. Petitioner Benjamin U. Borja Jr., who was also a candidate for
mayor, sought Capco's disqualification on the theory that the latter would have already served as
mayor for three consecutive terms by June 30, 1998 and would therefore be ineligible to serve for
another term after that.

On April 30, 1998, the Second Division of the Commission on Elections ruled in favor of petitioner
and declared private respondent Capco disqualified from running for reelection as mayor of
Pateros. 2 However, on motion of private respondent the COMELEC en banc, voting 5-2, reversed
the decision and declared Capco eligible to run for mayor in the May 11, 1998 elections. 3 The
majority stated in its decision:

In both the Constitution and the Local Government Code, the three-term limitation
refers to the term of office for which the local official was elected. It made no
reference to succession to an office to which he was not elected. In the case before
the Commission, respondent Capco was not elected to the position of Mayor in the
January 18, 1988 local elections. He succeeded to such office by operation of law
and served for the unexpired term of his predecessor. Consequently, such
succession into office is not counted as one (1) term for purposes of the computation
of the three-term limitation under the Constitution and the Local Government Code.

Accordingly, private respondent was voted for in the elections. He received 16,558 votes against
petitioner's 7,773 votes and was proclaimed elected by the Municipal Board of Canvassers.

This is a petition for certiorari brought to set aside the resolution, dated My 7, 1998, of the
COMELEC and to seek a declaration that private respondent is disqualified to serve another term as
mayor of Pateros, Metro Manila.
Petitioner contends that private respondent Capco's service as mayor from September 2, 1989 to
June 30, 1992 should be considered as service for one full term, and since he thereafter served from
1992 to 1998 two more terms as mayor, he should be considered to have served three consecutive
terms within the contemplation of Art. X, §8 of the Constitution and §43(b) of the Local Government
Code. Petitioner stresses the fact that, upon the death of Mayor Cesar Borja on September 2, 1989,
private respondent became the mayor and thereafter served the remainder of the term. Petitioner
argues that it is irrelevant that private respondent became mayor by succession because the
purpose of the constitutional provision in limiting the number of terms elective local officials may
serve is to prevent a monopolization of political power.

This contention will not bear analysis. Article X, §8 of the Constitution provides:

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

This provision is restated in §43(b) of the Local Government Code (R.A. No. 7160):

Sec. 43. Term of Office. — . . .

(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. . . .

First, to prevent the establishment of political dynasties is not the only policy embodied in the
constitutional provision in question. The other policy is that of enhancing the freedom of choice of the
people. To consider, therefore, only stay in office regardless of how the official concerned came to
that office — whether by election or by succession by operation of law — would be to disregard one
of the purposes of the constitutional provision in question.

Thus, a consideration of the historical background of Article X, §8 of the Constitution reveals that the
members of the Constitutional Commission were as much concerned with preserving the freedom of
choice of the people as they were with preventing the monopolization of political power. Indeed, they
rejected a proposal put forth by Commissioner Edmundo F. Garcia that after serving three
consecutive terms or nine years there should be no further reelection for local and legislative
officials. Instead, they adopted the alternative proposal of Commissioner Christian Monsod that such
officials be simply barred from running for the same position in the of the succeeding election
following the expiration of the third consecutive term. 4 Monsod warned against "prescreening
candidates [from] whom the people will choose" as a result of the proposed absolute disqualification,
considering that the draft constitution contained provisions "recognizing people's power." 5

Commissioner Blas F. Ople, who supported the Monsod proposal, said:

The principle involved is really whether this Commission shall impose a temporary or
a perpetual disqualification on those who have served their terms in accordance with
the limits on consecutive service as decided by the Constitutional Commission. I
would be very wary about this Commission exercising a sort of omnipotent power in
order to disqualify those who will already have served their terms from perpetuating
themselves in office. I think the Commission achieves its purpose in establishing
 safeguards against the excessive accumulation of power as a result of consecutive
terms. We do put a cap on consecutive service — in the case of the President, six
years, in the case of the Vice-President, unlimited; and in the case of the Senators,
one reelection. In the case of the Members of Congress, both from the legislative
districts and from the party list and sectoral representation, this is now under
discussion and later on the policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the same. I think we want
to prevent future situations where, as a result of continuous service and frequent
reelections, officials from the President down to the municipal mayor tend to develop
a proprietary interest in their positions and to accumulate those powers and
perquisites that permit them to stay on indefinitely or to transfer these posts to
members of their families in a subsequent election. I think that is taken care of
because we put a gap on the continuity or the unbroken service of all of these
officials. But where we now decide to put these prospective servants of the people or
politicians, if we want to use the coarser term, under a perpetual disqualification, I
have a feeling that we are taking away too much from the people, whereas we
should be giving as much to the people as we can in terms of their own freedom of
choice. . . . 6

Other commissioners went on record against "perpetually disqualifying" elective officials who have
served a certain number of terms as this would deny the right of the people to choose. As
Commissioner Yusup R. Abubakar asked, "why should we arrogate unto ourselves the right to
decide what the people want?" 7

Commissioner Felicitas S. Aquino spoke in the same vein when she called on her colleagues to
"allow the people to exercise their own sense of proportion and [rely] on their own strength to curtail
power when it overreaches itself." 8

Commissioner Teodoro C. Bacani stressed: "Why should we not leave [perpetual disqualification
after serving a number of terms] to the premise accepted by practically everybody here that our
people are politically mature? Should we use this assumption only when it is convenient for us, and
not when it may also lead to a freedom of choice for the people and for politicians who may aspire to
serve them longer?" 9

Two ideas thus emerge from a consideration of the proceedings of the Constitutional Commission.
The first is the notion of service of term, derived from the concern about the accumulation of power
as a result of a prolonged stay in office. The second is the idea of election, derived from the concern
that the right of the people to choose those whom they wish to govern them be preserved.

It is likewise noteworthy that, in discussing term limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving by reason of election. This is clear from the
following exchange in the Constitutional Commission concerning term limits, now embodied in Art.
VI, §§4 and 7 of the Constitution, for members of Congress:

MR. GASCON. I would like to ask a question with regard to the issue after the
second term. We will allow the Senator to rest for a period of time before he
can run again?

MR. DAVIDE. That is correct.

 MR. GASCON. And the question that we left behind before — if the Gentlemen will
remember — was: How long will that period of rest be? Will it be one election which
is three years or one term which is six years?

MR. DAVIDE. If the Gentlemen will remember, Commissioner Rodrigo expressed the
view that during the election following the expiration of the first 12 years, whether
such election will be on the third year or on the sixth year thereafter, this particular
member of the Senate can run. So, it is not really a period of hibernation for six
years. That was the Committee's stand. 10

Indeed a fundamental tenet of representative democracy is that the people should be allowed to
choose those whom they please to govern them. 11 To bar the election of a local official because he
has already served three terms, although the first as a result of succession by operation of law rather
than election, would therefore be to violate this principle.

Second, not only historical examination but textual analysis as well supports the ruling of the
COMELEC that Art. X, §8 contemplates service by local officials for three consecutive terms as a
result of election. The first sentence speaks of "the term of office of elective local officials" and bars
"such official[s]" from serving for more than three consecutive terms. The second sentence, in
explaining when an elective local official may be deemed to have served his full term of office, states
that "voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected." The term
served must therefore be one "for which [the official concerned] was elected." The purpose of this
provision is to prevent a circumvention of the limitation on the number of terms an elective local
official may serve. Conversely, if he is not serving a term for which he was elected because he is
simply continuing the service of the official he succeeds, such official cannot be considered to have
fully served the term notwithstanding his voluntary renunciation of office prior to its expiration.

Reference is made to Commissioner Bernas' comment on Art. VI, §7, which similarly bars members
of the House of Representatives from serving for more than three terms. Commissioner Bernas
states that "if one is elected Representative to serve the unexpired term of another, that unexpired
term, no matter how short, will be considered one term for the purpose of computing the number of
successive terms allowed." 12

This is actually based on the opinion expressed by Commissioner Davide in answer to a query of
Commissioner Suarez: "For example, a special election is called for a Senator, and the Senator
newly elected would have to serve the unexpired portion of the term. Would that mean that serving
the unexpired portion of the term is already considered one term? So, half a term, which is actually
the correct statement, plus one term would disqualify the Senator concerned from running? Is that
the meaning of this provision on disqualification, Madam President?" Commissioner Davide said:
"Yes, because we speak of "term," and if there is a special election, he will serve only for the
unexpired portion of that particular term plus one more term for the Senator and two more terms for
the Members of the Lower House." 13

There is a difference, however, between the case of a vice-mayor and that of a member of the
House of Representatives who succeeds another who dies, resigns, becomes incapacitated, or is
removed from office. The vice-mayor succeeds to the mayorship by operation of law. 14 On the other
hand, the Representative is elected to fill the vacancy. 15 In a real sense, therefore, such
Representative serves a term for which he was elected. As the purpose of the constitutional
provision is to limit the right to be elected and to serve in Congress, his service of the unexpired term
is rightly counted as his first term. Rather than refute what we believe to be the intendment of Art. X,
§8 with regard to elective local officials, the case of a Representative who succeeds another
confirms the theory.

Petitioner also cites Art. VII, §4 of the Constitution which provides for succession of the Vice-
President to the Presidency in case of vacancy in that office. After stating that "The President shall
not be eligible for any reelection," this provision says that "No person who has succeeded as
President and has served as such for more than four years shall be qualified for election to the same
office at any time." Petitioner contends that, by analogy, the vice-mayor should likewise be
considered to have served a full term as mayor if he succeeds to the latter's office and serves for the
remainder of the term.

The framers of the Constitution included such a provision because, without it, the Vice-President,
who simply steps into the Presidency by succession, would be qualified to run President even if he
has occupied that office for more than four years. The absence of a similar provision in Art. X, §8 on
elective local officials throws in bold relief the difference between the two cases. It underscores the
constitutional intent to cover only the terms of office to which one may have been elected for
purposes of the three-term limit on local elective officials, disregarding for this purpose service by
automatic succession.

There is another reason why the Vice-President who succeeds to the Presidency and serves in that
office for more than four years is ineligible for election as President. The Vice-President is elected
primarily to succeed the President in the event of the latter's death, permanent disability, removal, or
resignation. While he may be appointed to the cabinet, his becoming, so is entirely dependent on the
good graces of the President. In running for Vice-President, he may thus be said to also seek the
Presidency. For their part, the electors likewise choose as Vice-President the candidate who they
think can fill the Presidency in the event it becomes vacant. Hence, service in the Presidency for
more than four years may rightly be considered as service for a full term.

This is not so in the case of the vice-mayor. Under the Local Government Code, he is the presiding
officer of the sanggunian and he appoints all officials and employees of such local assembly. He has
distinct powers and functions, succession to mayorship in the event of vacancy therein being only
one of
them. 16 It cannot be said of him, as much as of the Vice-President in the event of a vacancy in the
Presidency, that, in running for vice-mayor, he also seeks the mayorship. His assumption of the
mayorship in the event of vacancy is more a matter of chance than of design. Hence, his service in
that office should not be counted in the application of any term limit.

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the disqualification can
apply. This point can be made clearer by considering the following cases or situations:

Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason of the death
of the incumbent. Six months before the next election, he resigns and is twice
elected thereafter. Can he run again for mayor in the next election?

Yes, because although he has already first served as mayor by succession and
subsequently resigned from office before the full term expired, he has not actually
served three full terms in all for the purpose of applying the term limit. Under Art. X,
§8, voluntary renunciation of the office is not considered as an interruption in the
continuity of his service for the full term only if the term is one "for which he was
 elected." Since A is only completing the service of the term for which the deceased
and not he was elected, A cannot be considered to have completed one term. His
resignation constitutes an interruption of the full term.

Case No. 2. Suppose B is elected mayor and, during his first term, he is twice
suspended for misconduct for a total of 1 year. If he is twice reelected after that, can
he run for one more term in the next election?

Yes, because he has served only two full terms successively.

In both cases, the mayor is entitled to run for reelection because the two conditions for the
application of the disqualification provisions have not concurred, namely, that the local official
concerned has been elected three consecutive times and that he has fully served three consecutive
terms. In the first case, even if the local official is considered to have served three full terms
notwithstanding his resignation before the end of the first term, the fact remains that he has not
been elected three times. In the second case, the local official has been elected three consecutive
times, but he has not fully served three consecutive terms.

Case No. 3. The case of vice-mayor C who becomes mayor by succession involves
a total failure of the two conditions to concur for the purpose of applying Art. X, §8.
Suppose he is twice elected after that term, is he qualified to run again in the next
election?

Yes, because he was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he served the full term
because he only continued the service, interrupted by the death, of the deceased
mayor.

To consider C in the third case to have served the first term in full and therefore ineligible to run a
third time for reelection would be not only to falsify reality but also to unduly restrict the right of the
people to choose whom they wish to govern them. If the vice-mayor turns out to be a bad mayor, the
people can remedy the situation by simply not reelecting him for another term. But if, on the other
hand, he proves to be a good mayor, there will be no way the people can return him to office (even if
it is just the third time he is standing for reelection) if his service of the first term is counted as one for
the purpose of applying the term limit.

To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a monopoly
of political power may bring about, care should be taken that their freedom of choice is not unduly
curtailed.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
G.R. No. 125416 September 26, 1996

SUBIC BAY METROPOLITAN AUTHORITY, petitioner,

vs.
COMMISSION ON ELECTIONS, ENRIQUE T. GARCIA and CATALINO A.
CALIMBAS, respondents.

PANGANIBAN, J.:

The 1987 Constitution is unique in many ways. For one thing, it institutionalized people
power in law-making. Learning from the bitter lesson of completely surrending to Congress
the sole authority to make, amend or repeal laws, the present Constitution concurrently
vested such prerogatives in the electorate by expressly recognizing their residual and
sovereign authority to ordain legislation directly through the concepts and processes of
initiative and of referendum.

In this Decision, this Court distinguishes referendum from initiative and discusses the
practical and legal implications of such differences. It also sets down some guidelines in the
conduct and implementation of these two novel and vital features of popular democracy, as
well as settles some relevant questions on jurisdiction — all with the purpose of nurturing,
protecting and promoting the people's exercise of direct democracy.

In this action for certiorari and prohibition, petitioner seeks to nullify the respondent
Commission on Elections' Ruling dated April 17, 1996 and Resolution No. 2848 promulgated
on June 27, 19961 denying petitioner's plea to stop the holding of a local initiative and
referendum on the proposition to recall Pambayang Kapasyahan Blg. 10, Serye 1993, of the
Sangguniang Bayan of Morong, Bataan.

The Facts

On March 13, 1992, Congress enacted Republic Act No. 7227 (The Bases Conversion and
Development Act of 1992), which among others, provided for the creation of the Subic
Economic Zone, thus:

Sec. 12. Subic Special Economic Zone. — Subject to the concurrence by resolution
of the Sangguniang Panlugnsod of the City of Olongapo and the Sangguniang Bayan
of the Municipalities of Subic. Morong and Hermosa, there is hereby created a
Special Economic and Free-port Zone consisting of the City of Olongapo and the
Municipality of Subic, Province of Zambales, the lands occupied by the Subic Naval
Base and its contiguous extensions as embraced, covered and defined by the 1947
Military Bases Agreement between the Philippines and the United States of America
as amended, and within the territorial jurisdiction of the Municipalities of Morong and
Hermosa, Province of Bataan, hereinafter referred to as the Subic Special Economic
Zone whose metes and bounds shall be delineated in a proclamation to be issued by
the President of the Philippines. Within thirty (30) days after the approval of this Act,
each local government unit shall submit its resolution of concurrence to join the Subic
Special Economic Zone to the Office of the President. Thereafter, the President of
the Philippines shall issue a proclamation defining the metes and bounds of the zone
as provided herein." (Emphasis supplied)
RA 7227 likewise created petitioner to implement the declared national policy of converting
the Subic military reservation into alternative productive uses.2 Petitioner was organized with
an authorized capital stock of P20 billion which was fully subscribed and fully paid up by the
Republic of the Philippines with, among other assets, "(a)ll lands embraced, covered and
defined in Section 12 hereof, as well as permanent improvements and fixtures upon proper
inventory not otherwise alienated, conveyed, or transferred to another government agency".3

On November 24, 1992, the American navy turned over the Subic military reservation to the
Philippines government. Immediately, petitioner commenced the implementation of its task,
particularly the preservation of the sea-ports, airport, buildings, houses and other
installations left by the American navy.

In April 1993, the Sangguniang Bayan of Morong, Bataan passed Pambayang Kapasyahan
Bilang 10, Serye 1993, expressing therein its absolute concurrence, as required by said Sec.
12 of RA 7227, to join the Subic Special Economic Zone. On September 5, 1993,
the Sangguniang Bayan of Morong submitted Pambayang Kapasyahan Bilang 10, Serye
1993 to the Office of the President.

On May 24, 1993, respondents Garcia, Calimbas and their companions filed a petition with
the Sangguniang Bayan of Morong to annul Pambayang Kapasyahan Blg. 10, Serye 1993.
The petition prayed for the following:

I. Bawiin, nulipikahin at pawalang-bisa and Pambayang Kapasyahang Blg. 10, Serye

1993 ng Sangguniang Bayan para sa pag-anib ng Morong sa SSEFZ na walang
kundisyon.

II. Palitan ito ng isang Pambayang kapasyahan na aanib lamang ang Morong sa
SSEFZ kung ang mga sumusunod na kondisyones ay ipagkakaloob, ipatutupad at
isasagawa para sa kapakanan at interest ng Morong at Bataan:

(A) Ibalik sa Bataan ang "Virgin Forests" — isang bundok na hindi

nagagalaw at punong-puno ng malalaking punong-kahoy at iba't-
ibang halaman.

(B) Ihiwalay ang Grande Island sa SSEFZ at ibalik ito sa Bataan.

(K) Isama ang mga lupain ng Bataan na nakapaloob sa SBMA sa

pagkukuenta ng salaping ipinagkaloob ng pamahalaang national o
"Internal Revenue Allotment" (IRA) sa Morong, Hermosa at sa
Lalawigan.

(D) Payagang magtatag rin ng sariling "special economic zones" and

bawat bayan ng Morong, Hermosa at Dinalupihan.

(E) Ibase sa laki ng kanya-kanyang lupa ang pamamahagi ng kikitain

ng SBMA.

(G) Ibase rin ang alokasyon ng pagbibigay ng trabaho sa laki ng

nasabing mga lupa.
 (H) Pabayaang bukas ang pinto ng SBMA na nasa Morong ng 24 na
oras at bukod dito sa magbukas pa ng pinto sa hangganan naman ng
Morong at Hermosa upang magkaroon ng pagkakataong umunlad rin
ang mga nasabing bayan, pati na rin ng iba pang bayan ng Bataan.

(I) Tapusin ang pagkokonkreto ng mga daang Morong-Tala-Orani at

Morong-Tasig-Dinalupihan para sa kabutihan ng mga taga-Bataan at
tuloy makatulong sa pangangalaga ng mga kabundukan.

(J) Magkakaroon ng sapat na representasyon sa pamunuan ng

SBMA ang Morong, Hermosa at Bataan.

The Sangguniang Bayan ng Morong acted upon the petition of respondents Garcia,
Calimbas, et al. by promulgating Pambayang Kapasyahan Blg. 18, Serye 1993, requesting
Congress of the Philippines so amend certain provisions of RA 7227, particularly those
concerning the matters cited in items (A), (B), (K), (E), and (G) of private respondent's
petition. The Sangguniang Bayan of Morong also informed respondents that items (D) and
(H) had already been referred to and favorably acted upon by the government agencies
concerned, such as the Bases Conversion Development Authority and the Office of the
President.

Not satisfied, and within 30 days from submission of their petition, herein respondents
resorted to their power initiative under the Local Government Code of 1991,4 Sec. 122
paragraph (b) of which provides as follows:

Sec. 122. Procedure in Local Initiative. —

xxx xxx xxx

(b) If no favorable action thereon is taken by the sanggunian concerned, the

proponents, through their duly authorized and registered representatives, may invoke
their power of initiative, giving notice thereof to the sangguniang concerned.

xxx xxx xxx

On July 6, 1993, respondent Commission En Banc in Comelec Resolution No. 93-1623

denied the petition for local initiative by herein private respondents on the ground that the
subject thereof was merely a resolution (pambayang kapasyahan) and not an ordinance. On
July 13, 1993, public respondent Comelec En Banc (thru Comelec Resolution no. 93-1676)
further directed its Provincial Election Supervisor to hold action on the authentication of
signatures being solicited by private respondents.

On August 15, 1993, private respondents instituted a petition

for certiorari and mandamus5 before this Court against the Commission on Elections and the
Sangguniang Bayan of Morong, Bataan, to set aside Comelec Resolution No. 93-1623
insofar as it disallowed the conduct of a local initiative to annul Pambayang Kapasyahan
Bilang 10, Serye 1993, and Comelec Resolution No. 93-1676 insofar as it prevented the
Provincial Election Supervisor of Bataan from proceeding with the authentication of the
required number of signatures in support of the initiative and the gathering of signatures.
On February 1, 1995, pursuant to Sec. 12 of RA 7227, the President of the Philippines
issued Proclamation No. 532 defining the metes and bounds of the SSEZ. Said proclamation
included in the SSEZ all the lands within the former Subic Naval Base, including Grande
Island and that portion of the former naval base within the territorial jurisdiction of the
Municipality of Morong.

On June 18, 19956, respondent Comelec issued Resolution No. 2845, adopting therein a
"Calendar of Activities for local referendum on certain municipal ordinance passed by
the Sangguniang Bayan of Morong, Bataan", and which indicated, among others, the
scheduled Referendum Day (July 27, 1996, Saturday). On June 27, 1996, the Comelec
promulgated the assailed Resolution No. 2848 providing for "the rules and guidelines to
govern the conduct of the referendum proposing to annul or repeal Kapasyahan Blg. 10,
Serye 1993 of the Sangguniang Bayan of Morong, Bataan".

On July 10, 1996, petitioner instituted the present petition for certiorari and prohibition
contesting the validity of Resolution No. 2848 and alleging, inter alia, that public respondent
"is intent on proceeding with a local initiative that proposes an amendment of a national law.
...

The Issues

The petition6 presents the following "argument":

Respondent Commission on Elections committed a grave abuse of discretion

amounting to lack of jurisdiction in scheduling a local initiative which seeks the
amendment of a national law.

In his Comment, private respondent Garcia claims that (1) petitioner has failed to show the
existence of an actual case of controversy: (2) . . . petitioner seeks to overturn a
decision/judgment which has long become final and executory; (3) . . . public respondent has
not abused its discretion and has in fact acted within its jurisdiction; (and) (4) . . . the
concurrence of local government units is required for the establishment of the Subic Special
Economic Zone."

Private respondent Calimbas, now the incumbent Mayor of Morong, in his Reply (should be
Comment) joined petitioner's cause because "(a)fter several meetings with petitioner's
Chairman and staff and after consultation with legal counsel, respondent Calimbas
discovered that the demands in the petition for a local initiative/referendum were not legally
feasible." 7

The Solicitor General, as counsel for public respondent, identified two issues, as follows:

1. Whether or not the Comelec can be enjoined from scheduling/conducting the local
initiative proposing to annul Pambayang Kapasyahan Blg. 10, Serye 1993 of the
Sangguniang Bayan of Morong, Bataan.

2. Whether or not the Comelec committed grave abuse of discretion in denying the
request of petitioner SBMA to stop the local initiative.

On July 23, 1996, the Court heard oral argument by the parties, after which, it issued the
following Resolution:
 The Court Resolved to: (1) GRANT the Motion to Admit the Attachment Comment
filed by counsel for private respondent Enrique T. Garcia, dated July 22, 1996 and
(2) NOTE the: (a) Reply (should be comment) to the petition for certiorari and
prohibition with prayer for temporary restraining order and/or writ of preliminary
injunction, filed by counsel for respondent Catalino Calimbas, date July 22, 1996; (b)
Separate Comments on the petition, filed by: (b-1) the Solicitor General for
respondent Commission on Elections dated July 19, 1996 and (b-2) counsel for
private respondent Enrique T. Garcia, dated July 22, 1996, all filed in compliance
with the resolution of July 16, 1996 and (c) Manifestation filed by counsel for
petitioner, dated July 22, 1996.

At the hearing of this case this morning, Atty. Rodolfo O. Reyes appeared and
argued for petitioner Subic Bay Metropolitan Authority (SBMA) while Atty. Sixto
Brillantes for private respondent Enrique T. Garcia, and Atty. Oscar L. Karaan for
respondent Catalino Calimbas. Solicitor General Raul Goco, Assistant Solicitor
General Cecilio O. Estoesta and Solicitor Zenaida Hernandez-Perez appeared for
respondent Commission on Elections with Solicitor General Goco arguing.

Before the Court adjourned, the Court directed the counsel for both parties to
INFORM this Court by Friday, July 26, 1996, whether or not Commission on
Elections would push through with the initiative/referendum this Saturday, July 27,
1996.

Thereafter, the case shall be considered SUBMITTED for resolution.

At 2:50 p.m., July 23, 1996, the Court received by facsimile transmission an Order
dated also on July 23, 1996 from the respondent Commission on Elections En
Banc inter alia "to hold in abeyance the scheduled referendum (initiative) on July 27,
1996 pending resolution of G.R. No. 125416." In view of this Order, the petitioner's
application for a temporary restraining order and/or writ of preliminary injunction has
become moot and academic and will thus not be passed upon by this Court at this
time. Puno, J., no part due to relationship. Bellosillo, J., is on leave.

After careful study of and judicious deliberation on the submissions and arguments of the
parties, the Court believes that the issues may be restated as follows:

(1) Whether this petition "seeks to overturn a decision/judgment which has long
become final and executory"; namely, G.R. No. 111230, Enrique Garcia, et al. vs.
Commission on Elections, et al.;

(2) Whether the respondent Comelec committed grave abuse of discretion in

promulgating and implementing its Resolution No. 2848 which "govern(s) the conduct
of the referendum proposing to annul or repeal Pambayang Kapasyahan Blg. 10,
Serye 1993 of the Sangguniang Bayan of Morong, Bataan;" and

(3) Whether the questioned local initiative covers a subject within the powers of the
people of Morong to enact; i.e., whether such initiative "seeks the amendment of a
national law."

First Issue: Bar by Final Judgment

Respondent Garcia contends that this Court had already ruled with finality in Enrique
T. Garcia, et al. vs. Commission on Elections, et al.8 on "the very issue raised in (the)
petition: whether or not there can be an initiative by the people of Morong, Bataan on the
subject proposition — the very same proposition, it bears emphasizing, the submission of
which to the people of Morong, Bataan is now sought to be enjoined by petitioner . . .".

We disagree. The only issue resolved in the earlier Garcia case is whether a municipal
resolution as contra-distinguished from an ordinance may be the proper subject of an
initiative and/or referendum. We quote from our said Decision:9

In light of this legal backdrop, the essential issue to be resolved in the case at bench
is whether Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan
of Morong, Bataan is the proper subject of an initiative. Respondents take the
negative stance as they contend that under the Local Government Code of 1991 only
an ordinance can be the subject of initiative. They rely on Section 120, Chapter 2,
Title XI, Book I of the Local Government Code of 1991 which provides: "Local
Initiative
Defined. — Local initiative is the legal process whereby the registered voters of a
local government until may directly propose, enact, or amend any ordinance."

We reject respondents' narrow and literal reading of the above provision for it will
collide with the Constitution and will subvert the intent of the lawmakers in enacting
the provisions of the Local Government of 1991 on initiative and referendum.

The Constitution clearly includes not only ordinance but resolutions as appropriate
subjects of a local initiative. Section 32 of Article VI provides in luminous language:
"The Congress shall, as early as possible, provide for a system of initiative and
referendum, and the exceptions therefrom, whereby the people can directly propose
and enact laws or approve or reject any act or law or part thereof passed by the
Congress, or local legislative body . . .". An act includes a resolution. Black defines
an act as "an expression of will or purpose . . . it may denote something done . . . as
a legislature, including not merely physical acts, but also decrees, edicts, laws,
judgments, resolves, awards, and determinations . . .". It is basic that a law should be
construed in harmony with and not in violation of the Constitution. In line with this
postulate, we held in In Re Guarina that "if there is doubt or uncertainty as to the
meaning of the legislative, if the words or provisions are obscure, or if the enactment
is fairly susceptible of two or more constructions, that interpretation will be adopted
which will avoid the effect of unconstitutionality, even though it may be necessary, for
this purpose, to disregard the more usual or apparent import of the language used."

Moreover, we reviewed our rollo in said G.R. No. 111230 and we found that the sole issue
presented by the pleadings was the question of "whether or not a Sangguniang Bayan
Resolution can be the subject of a valid initiative or referendum".10

In the present case, petitioner is not contesting the propriety of a municipal resolution as the
form by which these two new constitutional prerogatives of the people may be validly
exercised. What is at issue here is whether Pambayang Kapasyahan Blg. 10, Serye 1993, as
worded, is sufficient in form and substance for submission to the people for their approval; in
fine, whether the Comelec acted properly and juridically in promulgating and implementing
Resolution No. 2848.

Second Issue: Sufficiency of Comelec Resolution No. 2848

The main issue in this case may be re-stated thus: Did respondent Comelec commit grave
abuse of discretion in promulgating and implementing Resolution No. 2848?

We answer the question in the affirmative.

To begin with, the process started by private respondents was an INITIATIVE but respondent
Comelec made preparations for a REFERENDUM only. In fact, in the body of the
Resolution 11 as reproduced in the footnote below, the word "referendum" is repeated at least
27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a
"Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the
documents were called "referendum returns"; the canvassers, "Referendum Board of
Canvassers" and the ballots themselves bore the description "referendum". To repeat, not
once was the word "initiative" used in said body of Resolution No. 2848. And yet, this
exercise is unquestionably an INITIATIVE.

There are statutory and conceptual demarcations between a referendum and an initiative. In
enacting the "Initiative and Referendum Act,12 Congress differentiated one term from the
other, thus:

(a) "Initiative" is the power of the people to propose amendments to the Constitution
or to propose and enact legislations through an election called for the purpose.

There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to a

petition proposing amendments to the Constitution;

a.2. Initiative on statutes which refers to a petition

proposing to enact a national legislation; and

a.3. Initiative on local legislation which refers to a

petition proposing to enact a regional, provincial, city,
municipal, or barangay law, resolution or ordinance.

(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent
to Congress or the local legislative body for action.

(c) "Referendum" is the power of the electorate to approve or reject a legislation

through an election called for the purpose. It may be of two classes, namely:

c.1. Referendum on statutes which refers to a petition

to approve or reject an act or law, or part thereof,
passed by Congress; and

c.2 Referendum on local law which refers to a petition

to approve or reject a law, resolution or ordinance
enacted by regional assemblies and local legislative
bodies.

Along these statutory definitions, Justice Isagani A. Cruz13 defines initiative as the "power of
the people to propose bills and laws, and to enact or reject them at the polls independent of
the legislative assembly." On the other hand, he explains that referendum "is the right
reserved to the people to adopt or reject any act or measure which has been passed by a
legislative body and which in most cases would without action on the part of electors become
a law." The foregoing definitions, which are based on Black's14 and other leading American
authorities, are echoed in the Local Government Code (RA 7160) substantially as follows:

Sec. 120. Local Initiative Defined. — Local initiative is the legal process whereby the
registered voters of local government unit may directly propose, enact, or amend any
ordinance.

Sec. 126. Local Referendum Defined. — Local referendum is the legal process
whereby the registered voters of the local government units may approve, amend or
reject any ordinance enacted by the sanggunian.

The local referendum shall be held under the control and direction of the Comelec
within sixty (60) days in case of provinces and cities, forty-five (45) days in case of
municipalities and thirty (30) days in case of baranggays.

The Comelec shall certify and proclaim the results of the said referendum.

Prescinding from these definitions, we gather that initiative is resorted to (or initiated) by the
people directly either because the law-making body fails or refuses to enact the law,
ordinance, resolution or act that they desire or because they want to amend or modify one
already existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the
opportunity to enact the proposal. If it refuses/neglects to do so within thirty (30) days from its
presentation, the proponents through their duly-authorized and registered representatives
may invoke their power of initiative, giving notice thereof to the local legislative body
concerned. Should the proponents be able to collect the number of signed conformities
within the period granted by said statute, the Commission on Elections "shall then set a date
for the initiative (not referendum) at which the proposition shall be submitted to the registered
voters in the local government unit concerned . . .".

On the other hand, in a local referendum, the law-making body submits to the registered
voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which
is duly enacted or approved by such law-making authority. Said referendum shall be
conducted also under the control and direction of the Commission on Elections.15

In other words, while initiative is entirely the work of the electorate, referendum is begun and
consented to by the law-making body. Initiative is a process of law-making by the people
themselves without the participation and against the wishes of their elected representatives,
while referendum consists merely of the electorate approving or rejecting what has been
drawn up or enacted by a legislative body. Hence, the process and the voting in an initiative
are understandably more complex than in a referendum where expectedly the voters will
simply write either "Yes" of "No" in the ballot.

[Note: While the above quoted laws variously refer to initiative and referendum as "powers"
or "legal processes", these can be also be "rights", as Justice Cruz terms them, or
"concepts", or "the proposal" itself (in the case of initiative) being referred to in this Decision.]

From the above differentiation, it follows that there is need for the Comelec to supervise an
initiative more closely, its authority thereon extending not only to the counting and
canvassing of votes but also to seeing to it that the matter or act submitted to the people is in
the proper form and language so it may be easily understood and voted upon by the
electorate. This is especially true where the proposed legislation is lengthy and complicated,
and should thus be broken down into several autonomous parts, each such part to be voted
upon separately. Care must also be exercised that "(n)o petition embracing more than one
subject shall be submitted to the electorate,"16 although "two or more propositions may be
submitted in an initiative".17

It should be noted that under Sec. 13 (c) of RA 6735, the "Secretary of Local Government or
his designated representative shall extend assistance in the formulation of the proposition."

In initiative and referendum, the Comelec exercises administration and supervision of the
process itself, akin to its powers over the conduct of elections. These law-making powers
belong to the people, hence the respondent Commission cannot control or change the
substance or the content of legislation. In the exercise of its authority, it may (in fact it should
have done so already) issue relevant and adequate guidelines and rules for the orderly
exercise of these "people-power" features of our Constitution.

Third Issue: Withdrawal of Adherence and

Imposition of Conditionalities — Ultra Vires?

Petitioner maintains that the proposition sought to be submitted in the plebiscite,

namely, Pambayang Kapasyahan Blg. 10, Serye 1993, is ultra vires or beyond the powers of
the Sangguniang Bayan to enact,18stressing that under Sec. 124 (b) of RA 7160 (the Local
Government Code), "local initiative shall cover only such subjects or matters as are within
the legal powers of the sangguniang to enact." Elsewise stated, a local initiative may enact
only such ordinances or resolutions as the municipal council itself could, if it decided to so
enact. 19 After the Sangguniang Bayan of Morong and the other municipalities concerned
(Olongapo, Subic and Hermosa) gave their resolutions of concurrence, and by reason of
which the SSEZ had been created, whose metes and bounds had already been delineated
by Proclamation No. 532 issued on February 1, 1995 in accordance with Section 12 of R.A.
No. 7227, the power to withdraw such concurrence and/or to substitute therefor a conditional
concurrence is no longer within the authority and competence of the Municipal Council of
Morong to legislate. Furthermore, petitioner adds, the specific conditionalities included in the
questioned municipal resolution are beyond the powers of the Council to impose. Hence,
such withdrawal can no longer be enacted or conditionalities imposed by initiative. In other
words, petitioner insists, the creation of SSEZ is now a faith accompli for the benefit of the
entire nation. Thus, Morong cannot unilaterally withdraw its concurrence or impose new
conditions for such concurrence as this would effectively render nugatory the creation by
(national) law of the SSEZ and would deprive the entire nation of the benefits to be derived
therefrom. Once created. SSEZ has ceased to be a local concern. It has become a national
project.

On the other hand, private respondent Garcia counters that such argument is premature and
conjectural because at this point, the resolution is just a proposal. If the people should reject
it during the referendum, then there is nothing to declare as illegal.

Deliberating on this issue, the Court agrees with private respondent Garcia that indeed, the
municipal resolution is still in the proposal stage. It is not yet an approved law. Should the
people reject it, then there would be nothing to contest and to adjudicate. It is only when the
people have voted for it and it has become an approved ordinance or resolution that rights
and obligations can be enforced or implemented thereunder. At this point, it is merely a
proposal and the writ or prohibition cannot issue upon a mere conjecture or possibility.
Constitutionally speaking, courts may decide only actual controversies, not hypothetical
questions or cases.20

We also note that the Initiative and Referendum Act itself provides21 that "(n)othing in this Act
shall prevent or preclude the proper courts from declaring null and void any
proposition approved pursuant to this Act . . . ."

So too, the Supreme Court is basically a review court.22 It passes upon errors of law (and
sometimes of fact, as in the case of mandatory appeals of capital offenses) of lower courts
as well as determines whether there had been grave abuse of discretion amounting to lack
or excess of jurisdiction on the part of any "branch or instrumentality" of government. In the
present case, it is quite clear that the Court has authority to review Comelec Resolution No.
2848 to determine the commission of grave abuse of discretion. However, it does not have
the same authority in regard to the proposed initiative since it has not been promulgated or
approved, or passed upon by any "branch or instrumentality" or lower court, for that matter.
The Commission on Elections itself has made no reviewable pronouncements about the
issues brought by the pleadings. The Comelec simply included verbatim the proposal in its
questioned Resolution No. 2848. Hence, there is really no decision or action made by a
branch, instrumentality or court which this Court could take cognizance of and acquire
jurisdiction over, in the exercise of its review powers.

Having said that, we are in no wise suggesting that the Commelec itself has no power to
pass upon proposed resolutions in an initiative. Quite the contrary, we are ruling that these
matters are in fact within the initiatory jurisdiction of the Commission — to which then the
herein basic questions ought to have been addressed, and by which the same should have
been decided in the first instance. In other words, while regular courts may take jurisdiction
over "approved propositions" per said Sec. 18 of R.A. 6735, the Comelec in the exercise of
its quasi-judicial and administrative powers may adjudicate and pass upon such proposals
insofar as their form and language are concerned, as discussed earlier; and it may be added,
even as to content, where the proposals or parts thereof are patently and clearly outside the
"capacity of the local legislative body to enact."23 Accordingly, the question of whether the
subject of this initiative is within the capacity of the Municipal Council of Morong to enact may
be ruled upon by the Comelec upon remand and after hearing the parties thereon.

While on the subject of capacity of the local lawmaking body, it would be fruitful for the
parties and the Comelec to plead and adjudicate, respectively, the question of whether
Grande Island and the "virgin forest" mentioned in the proposed initiative belong to the
national government and thus cannot be segregated from the Zone and "returned to Bataan"
by the simple expedient of passing a municipal resolution. We note that Sec. 13 (e) of R.A.
7227 speaks of the full subscription and payment of the P20 billion authorized capital stock
of the Subic Authority by the Republic, with, aside from cash and other assets, the ". . . lands
embraced, covered and defined in Section 12 hereof, . . ." which includes said island and
forests. The ownership of said lands is question of fact that may be taken up in the proper
forum — the Commission on Elections.

Another question which the parties may wish to submit to the Comelec upon remand of the
initiative is whether the proposal, assuming it is within the capacity of the Municipal Council
to enact, may be divided into several parts for purposes of voting. Item "I" is a proposal to
recall, nullify and render without effect (bawiin, nulipikahin at pawalangbisa) Municipal
Resolution No. 10, Series of 1993. On the other hand, Item "II" proposes to change or
replace (palitan) said resolution with another municipal resolution of
concurrence provided certain conditions enumerated thereunder would be granted, obeyed
and implemented (ipagkakaloob, ipatutupad at isasagawa) for the benefit and interest of
Morong and Bataan. A voter may favor Item I — i.e., he may want a total dismemberment of
Morong from the Authority — but may not agree with any of the conditions set forth in Item II.
Should the proposal then be divided and be voted upon separately and independently?

All told, we shall not pass upon the third issue of ultra vires on the ground of prematurity.

Epilogue

In sum, we hold that (i) our decision in the earlier Garcia case is not a bar to the present
controversy as the issue raised and decided therein is different from the questions involved
here; (iii) the respondent Commission should be given an opportunity to review and correct
its errors in promulgating its Resolution No. 2848 and in preparing — if necessary — for the
plebiscite; and (iii) that the said Commission has administrative and initiatory quasi-judicial
jurisdiction to pass upon the question of whether the proposal is sufficient in form and
language and whether such proposal or part or parts thereof are clearly and patently outside
the powers of the municipal council of Morong to enact, and therefore violative of law.

In deciding this case, the Court realizes that initiative and referendum, as concepts and
processes, are new in our country. We are remanding the matter to the Comelec so that
proper corrective measures, as above discussed, may be undertaken, with a view to helping
fulfill our people's aspirations for the actualization of effective direct sovereignty. Indeed we
recognize that "(p)rovisions for initiative and referendum are liberally construed to effectuate
their purposes, to facilitate and not to hamper the exercise by the voters of the rights granted
thereby."24 In his authoritative treatise on the Constitution, Fr. Joaquin G. Bernas, S. J.
treasures these "instruments which can be used should the legislature show itself indifferent
to the needs of the people."25 Impelled by a sense or urgency, Congress enacted Republic
Act No. 6735 to give life and form to the constitutional mandate. Congress also interphased
initiative and referendum into the workings of local governments by including a chapter on
this subject in the Local Government Code of 1991.26 And the Commission on Elections can
do no less by seasonably and judiciously promulgating guidelines and rules, for both national
and local use, in implementation of these laws. For its part, this Court early on expressly
recognized the revolutionary import of reserving people power in the process of law-making.27

Like elections, initiative and referendum are powerful and valuable modes of expressing
popular sovereignty. And this Court as a matter of policy and doctrine will exert every effort
to nurture, protect and promote their legitimate exercise. For it is but sound public policy to
enable the electorate to express their free and untrammeled will, not only in the election of
their anointed lawmakers and executives, but also in the formulation of the very rules and
laws by which our society shall be governed and managed.

WHEREFORE the petition is GRANTED. Resolution No. 2848 is ANNULLED and SET
ASIDE. The initiative on Pambayang Kapasyahan Blg. 10, Serye 1993 is REMANDED to the
Commission on Elections for further proceeding consistent with the foregoing discussion. No
costs.

IT IS SO ORDERED.