FLORES vs. HON.

DRILON and GORDON

G.R. No. 104732 June 22, 1993
PRINCIPLES: 1.) No legislative act prevails over the constitution. We cannot invoke a practice otherwise unconstitutional
as authority for its validity.
2.) Meaning of the phrase “shall be appointed”. 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," 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.’ It also means "the selection, by the authority vested with the power, of an
individual who is to exercise the functions of a given office."
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.
3.) Right of choice of the appointing power. There is 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.
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.
4.) De facto public 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.”
FACTS: 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 a petition 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).
Said provision allegedly 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," 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", since it was Congress through the questioned proviso and not the President who appointed the Mayor to the subject
posts; and, (c) Sec. 261, par. (g), of the Omnibus Election Code, 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.
ISSUE: Whether or not the proviso in Sec. 13, par. (d), of R.A. 7227 violates the constitutional proscription against
appointment or designation of elective officials to other government posts.
RULING: Yes. Said provision of law is unconstitutional.
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 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. The 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.
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, 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.
While the second paragraph of said Constitutional provision 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; the Vice-President, who may
be appointed Member of the Cabinet; and, a member of Congress who may be designated ex officio member of the Judicial and Bar
Council.
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. 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. As long as he is an incumbent, an
elective official remains ineligible for appointment to another public office.
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. 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.
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.
It is manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other, can qualify. 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.
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.
The proviso in par. (d), Sec. 13, of R.A. 7227 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.

FLORES V DRILON

FACTS

Petitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of
Sec. 13 (d) of the Bases Conversion and Development Act of 1992 which directs the President to
appoint a professional manager as administrator of the SBMA…provided that “for the 1st year of
its operations, the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman
and the CEO of the Subic Authority.”

ISSUES

(1) Whether the proviso violates the constitutional proscription against appointment
or designation of elective officials to other government posts.

(2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo
City and thus an excepted circumstance.

(3) Whether or not the Constitutional provision allowing an elective official to receive double
compensation (Sec. 8, Art. IX-B) would be useless if no elective official may be appointed to
another post.

(4) Whether there is legislative encroachment on the appointing authority of the President.

(5) Whether Mayor Gordon may retain any and all per diems, allowances and other emoluments
which he may have received pursuant to his appointment.

HELD
(1) YES, 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 subject proviso directs the President to appoint an elective official i.e. the
Mayor of Olongapo City, to other government post (as Chairman and CEO of SBMA). This is
precisely what the Constitution prohibits. It seeks to prevent a situation where a local elective
official will work for his appointment in an executive position in government, and thus neglect
his constitutents.
(2) NO, Congress did not contemplate making the SBMA posts as automatically attached to the
Office of the Mayor 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.
(3) NO, 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, may receive
the compensation attached to the cabinet position if specifically authorized by law.
(4) YES, although Section 13(d) itself vests in the President the power to appoint the Chairman
of SBMA, he really has no choice but to appoint the Mayor of Olongapo City. The power of
choice is the heart of the power to appoint. Appointment involves an exercise of discretion of
whom to appoint. Hence, when Congress clothes the President with the power to appoint an
officer, it cannot at the same time limit the choice of the President to only one candidate. Such
enactment effectively eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power 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. 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.
Consequently, as long as he is an incumbent, an elective official remains ineligible for
appointment to another public office.
(5) YES, as incumbent elective official, Gordon is ineligible for appointment to the position of
Chairman and CEO of SBMA; hence, his appointment thereto 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, and in accordance with jurisprudence, is entitled to such
benefits.

MARQUEZ versus COMELEC (243 SCRA 538)

Disqualification case on the ground of “fugitive from justice”

MARQUEZ versus COMELEC (243 SCRA 538)

Facts:
Marquez, a candidate for an elective position in Quezon Province during
the 1998 elections, filed a petition praying for the cancellation of the certificate of
candidacy of Rodriguez on the ground of disqualification under section 40 of the
Local Government Code Section 40. Disqualification.
The following persons are disqualified from running for any local elective
position… (e) Fugitive from justice in criminal or non-political cases here or
abroad.
Rodriguez is allegedly criminally charged with insurance fraud or grand
theft of personal property in the United States and that his arrest is yet to be
served because of his flight from the country. The COMELEC dismissed Marquez’s
Petition. Rodriguez was proclaimed the Governor-elect of Quezon.
Issue:
Whether or not private respondent, who at the time of the filing of his COC
is said to be facing criminal charges before a foreign court and evading a warrant
of arrest comes within the term “fugitive from justice”.
Held:
No. Although it is provided in Article 73 of the Rules and Regulations
implementing the Local Government Code of 1991 that for a person to be
considered a fugitive from justice, he or she has to be convicted by final
judgment, but such definition is an ordinate and under circumscription of the law.
For the term fugitive from justice includes not only those who after conviction to
avoid punishment but likewise those who, after being charged, flee to avoid
prosecution. This definition truly finds support from jurisprudence, and it may be
conceded as expressing the general and ordinary connotation of the term.

Mercado v. Manzano Case Digest [G.R. No. 135083. May 26,

1999]
FACTS:

Petitioner Ernesto Mercado and Eduardo Manzano were both candidates for Vice-Mayor of Makati in the May 11,
1998 elections.

Based on the results of the election, Manzano garnered the highest number of votes. However, his proclamation was
suspended due to the pending petition for disqualification filed by Ernesto Mercado on the ground that he was not a
citizen of the Philippines but of the United States.

From the facts presented, it appears that Manzano is both a Filipino and a US citizen.

The Commission on Elections declared Manzano disqualified as candidate for said elective position.

However, in a subsequent resolution of the COMELEC en banc, the disqualification of the respondent was reversed.
Respondent was held to have renounced his US citizenship when he attained the age of majority and registered
himself as a voter in the elections of 1992, 1995 and 1998.

Manzano was eventually proclaimed as the Vice-Mayor of Makati City on August 31, 1998.
Thus the present petition.

ISSUE:

Whether or not a dual citizen is disqualified to hold public elective office in the philippines.

RULING:

The court ruled that the phrase "dual citizenship" in R.A. 7160 Sec. 40 (d) and R.A. 7854 Sec. 20 must be understood
as referring to dual allegiance. Dual citizenship is different from dual allegiance. The former arises when, as a result
of the application of the different laws of two or more states, a person is simultaneously considered a national by the
said states. Dual allegiance on the other hand, refers to a 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 a result of an
individual's volition. Article IV Sec. 5 of the Constitution provides "Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law."

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.

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.

When a person applying for citizenship by naturalization takes an oath that he renounces 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 complied 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.

The court ruled that the filing of certificate of candidacy of respondent sufficed to renounce his American citizenship,
effectively removing any disqualification he might have as a dual citizen. 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, the court 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.

The petition for certiorari is DISMISSED for lack of merit.

Andaya vs RTC, Cebu City, Br. 20 [319 SCRA 296; GR 126661, Dec 3, 1999]
Posted by Pius Morados on November 7, 2011
(Public Officers, Appointments, PNP)
Facts: Petitioner Andaya, Regional Director, Regional Police Command No. 7, submitted to the City Mayor of Cebu a list of 5
eligibles for the mayor to choose one to be appointed as the chief of police of Cebu City. The mayor did not choose anyone from the
list because the name of his protégé was not included therein.
The City of Cebu filed a complaint against the petitioner to require him to include the mayor’s protégé in the list of 5 eligibles to be
recommended by the Regional Police Director to the mayor.

Petitioner refuses stating that aside from the fact that said protégé is not qualified; the power to designate the chief of police of Cebu
City is vested with the Regional Director. However, the mayor is authorized to choose the chief of police from a list of 5 eligibles
submitted by the Regional Director.

Under RA 6975, Sec 51, the mayor of Cebu City shall be deputized as representative of the 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 5 eligibles recommended
by the Police Regional Director. Then the Regional Director, RPC No.7, appoints the officer selected by the mayor as the Chief of
Police, Cebu City.

Issue: WON the mayor has the authority to appoint the Chief of Police.
Held: No. 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 5 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.
Moreover, it is the prerogative of the Regional Police Director to name the 5 eligibles from a pool of eligible officers without
interference from local executives. Hence, the mayor cannot require the petitioner to include the mayor’s protégé in the list of
5 eligibles to be recommended by the Regional Police Director to the mayor.

GREGO V COMELEC (DIGEST)

Digests

WILMER GREGO, petitioner, VS. COMMISSION ON ELECTIONS

AND HUMBERTO BASCO, respondents (DIGEST)
G.R. No. 125955, June 19, 1997

FACTS:
In 1981, Basco was removed from his position as Deputy Sheriff for serious
misconduct. Subsequently, he ran as a candidate for councilor in the Second
District of the City of Manila during the 1988, local elections. He won and
assumed office. After his term, Basco sought re-election. Again, he won.
However, he found himself facing lawsuits filed by his opponents who
wanted to dislodge him from his position.

Petitioner argues that Basco should be disqualified from running for 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.
For a third time, Basco was elected councilor in 1995. Expectedly, his right
to office was again contested. In 1995, petitioner Grego filed with the
COMELEC a petition for disqualification. The COMELEC conducted a
hearing and ordered the parties to submit their respective memoranda.

However, the Manila City BOC proclaimed Basco in May 1995, as a duly
elected councilor for the Second District of Manila, placing sixth among
several candidates who vied for the seats. Basco immediately took his oath of
office.

COMELEC resolved to dismiss the petition for disqualification. Petitioner’s

motion for reconsideration of said resolution was later denied by the
COMELEC,, hence, this petition.
ISSUE:
Whether or not COMELEC acted in with grave abuse of discretion in
dismissing the petition for disqualification.

RULING:
No. The Supreme Court found no grave abuse of discretion on the part of
COMELEC in dismissing the petition for disqualification, however, the Court
noted that they do not agree with its conclusions and reasons in the assailed
resolution.

The Court reiterated that being merely an implementing rule, Sec 25 of the
COMELEC Rules of Procedure 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. The law itself cannot be extended to
amending or expanding the statutory requirements or to embrace matters not
covered by the statute. An administrative agency cannot amend an act of
Congress.

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. 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.

Still, the Court DISMISSED the petition for lack of merit.

Borja vs COMELEC [295 SCRA 157; GR 133495, September 3, 1998]
Posted by Pius Morados on November 6, 2011

(Municipal Corporation, Disqualification, Succession – Exception to the 3 term limit)

Facts: 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. For the next
two succeeding elections in 1992 and 1995, he was again re-elected as Mayor.
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.

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 but in the motion for reconsideration, majority overturned the original decision.

Issue: WON Capco has served for three consecutive terms as Mayor?
Held: No. Article X, Sec. 8 of the Constitution provides that “…the term of office of elective local officials… …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 par. 43(b) of the Local Government Code (R.A. No. 71) which states that “…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….”

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 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 not withstanding his voluntary renunciation of office prior to its expiration.

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.