G.R. No.

107916 February 20, 1997

PERCIVAL MODAY, ZOTICO MODAY (deceased) and LEONORA MODAY, petitioners,

vs.
COURT OF APPEALS, JUDGE EVANGELINE S. YUIPCO OF BRANCH 6, REGIONAL TRIAL COURT, AGUSAN DEL SUR
AND MUNICIPALITY OF BUNAWAN, respondents.

ROMERO, J.:

The main issue presented in this case is whether a municipality may expropriate private property by virtue of a municipal
resolution which was disapproved by the Sangguniang Panlalawigan. Petitioner seeks the reversal of the Court of Appeals
decision and resolution, promulgated on July 15, 1992 and October 22, 1992 respectively, 1 and a declaration that Municipal
Resolution No. 43-89 of the Bunawan Sangguniang Bayan is null and void.

On July 23, 1989, the Sangguniang Bayan of the Municipality of Bunawan in Agusan del Sur passed Resolution No. 43-89,
"Authorizing the Municipal Mayor to Initiate the Petition for Expropriation of a One (1) Hectare Portion of Lot No. 6138-Pls-4
Along the National Highway Owned by Percival Moday for the Site of Bunawan Farmers Center and Other Government Sports
Facilities." 2

In due time, Resolution No. 43-89 was approved by then Municipal Mayor Anuncio C. Bustillo and transmitted to the
Sangguniang Panlalawigan for its approval. On September 11, 1989, the Sangguniang Panlalawigan disapproved said
Resolution and returned it with the comment that "expropriation is unnecessary considering that there are still available lots in
Bunawan for the establishment of the government center." 3

The Municipality of Bunawan, herein public respondent, subsequently filed a petition for Eminent Domain against petitioner
Percival Moday before the Regional Trial Court at Prosperidad, Agusan del Sur. 4 The complaint was later amended to include
the registered owners, Percival Moday's parents, Zotico and Leonora Moday, as party defendants.

On March 6, 1991, public respondent municipality filed a Motion to Take or Enter Upon the Possession of Subject Matter of This
Case stating that it had already deposited with the municipal treasurer the necessary amount in accordance with Section 2, Rule
67 of the Revised Rules of Court and that it would be in the government's best interest for public respondent to be allowed to
take possession of the property.

Despite petitioners' opposition and after a hearing on the merits, the Regional Trial Court granted respondent municipality's
motion to take possession of the land. The lower court held that the Sangguniang Panlalawigan's failure to declare the resolution
invalid leaves it effective. It added that the duty of the Sangguniang Panlalawigan is merely to review the ordinances and
resolutions passed by the Sangguniang Bayan under Section 208 (1) of B.P. Blg. 337, old Local Government Code and that the
exercise of eminent domain is not one of the two acts enumerated in Section 19 thereof requiring the approval of the
Sangguniang Panlalawigan. 5 The dispositive portion of the lower court's Order dated July 2, 1991 reads:

WHEREFORE, it appearing that the amount of P632.39 had been deposited as per Official Receipt No. 5379647
on December 12, 1989 which this Court now determines as the provisional value of the land, the Motion to Take
or Enter Upon the Possession of the Property filed by petitioner through counsel is hereby GRANTED. The
Sheriff of this Court is ordered to forthwith place the plaintiff in possession of the property involved.

Let the hearing be set on August 9, 1991 at 8:30 o'clock in the morning for the purpose of ascertaining the just
compensation or fair market value of the property sought to be taken, with notice to all the parties concerned.

SO ORDERED. 6

Petitioners' motion for reconsideration was denied by the trial court on October 31, 1991.

Petitioners elevated the case in a petition for certiorari alleging grave abuse of discretion on the part of the trial court, but the
same was dismissed by respondent appellate court on July 15, 1992. 7 The Court of Appeals held that the public purpose for the
expropriation is clear from Resolution No. 43-89 and that since the Sangguniang Panlalawigan of Agusan del Sur did not declare
Resolution No. 43-89 invalid, expropriation of petitioners' property could proceed.

Respondent appellate court also denied petitioners' motion for reconsideration on October 22, 1992. 8

Meanwhile, the Municipality of Bunawan had erected three buildings on the subject property: the Association of Barangay
Councils (ABC) Hall, the Municipal Motorpool, both wooden structures, and the Bunawan Municipal Gymnasium, which is made
of concrete.
In the instant petition for review filed on November 23, 1992, petitioner seeks the reversal of the decision and resolution of the
Court of Appeals and a declaration that Resolution No. 43-89 of the Municipality of Bunawan is null and void.

On December 8, 1993, the Court issued a temporary restraining order enjoining and restraining public respondent Judge
Evangeline Yuipco from enforcing her July 2, 1991 Order and respondent municipality from using and occupying all the buildings
constructed and from further constructing any building on the land subject of this petition. 9

Acting on petitioners' Omnibus Motion for Enforcement of Restraining Order and for Contempt, the Court issued a Resolution on
March 15, 1995, citing incumbent municipal mayor Anuncio C. Bustillo for contempt, ordering him to pay the fine and to demolish
the "blocktiendas" which were built in violation of the restraining order. 10

Former Mayor Anuncio C. Bustillo paid the fine and manifested that he lost in the May 8, 1995 election. 11 The incumbent Mayor
Leonardo Barrios, filed a Manifestation, Motion to Resolve "Urgent Motion for Immediate Dissolution of the Temporary
Restraining Order" and Memorandum on June 11, 1996 for the Municipality of Bunawan. 12

Petitioners contend that the Court of Appeals erred in upholding the legality of the condemnation proceedings initiated by the
municipality. According to petitioners, the expropriation was politically motivated and Resolution No. 43-89 was correctly
disapproved by the Sangguniang Panlalawigan, there being other municipal properties available for the purpose. Petitioners also
pray that the former Mayor Anuncio C. Bustillo be ordered to pay damages for insisting on the enforcement of a void municipal
resolution.

The Court of Appeals declared that the Sangguniang Panlalawigan's reason for disapproving the resolution "could be baseless,
because it failed to point out which and where are those available lots.'" Respondent court also concluded that since the
Sangguniang Panlalawigan did not declare the municipal board's resolution as invalid, expropriation of petitioners' property could
proceed. 13

The Court finds no merit in the petition and affirms the decision of the Court of Appeals.

Eminent domain, the power which the Municipality of Bunawan exercised in the instant case, is a fundamental State power that
is inseparable from sovereignty. 14 It is government's right to appropriate, in the nature of a compulsory sale to the State, private
property for public use or purpose. 15 Inherently possessed by the national legislature, the power of eminent domain may be
validly delegated to local governments, other public entities and public utilities. 16For the taking of private property by the
government to be valid, the taking must be for public use and there must be just compensation. 17

The Municipality of Bunawan's power to exercise the right of eminent domain is not disputed as it is expressly provided for in
Batas Pambansa Blg. 337, the local Government Code 18 in force at the time expropriation proceedings were initiated. Section 9
of said law states:

Sec. 9. Eminent Domain. — A local government unit may, through its head and acting pursuant to a resolution of
its sanggunian, exercise the right of eminent domain and institute condemnation proceedings for public use or
purpose.

What petitioners question is the lack of authority of the municipality to exercise this right since the Sangguniang Panlalawigan
disapproved Resolution No. 43-89.

Section 153 of B.P. Blg. 337 provides:

Sec. 153. Sangguniang Panlalawigan Review. — (1) Within thirty days after receiving copies of approved
ordinances, resolutions and executive orders promulgated by the municipal mayor, the sangguniang
panlalawigan shall examine the documents or transmit them to the provincial attorney, or if there be none, to the
provincial fiscal, who shall examine them promptly and inform the sangguniang panlalawigan in writing of any
defect or impropriety which he may discover therein and make such comments or recommendations as shall
appear to him proper.

(2) If the sangguniang panlalawigan shall find that any municipal ordinance, resolution or executive order is
beyond the power conferred upon the sangguniang bayan or the mayor, it shall declare such ordinance,
resolution or executive order invalid in whole or in part, entering its actions upon the minutes and advising the
proper municipal authorities thereof. The effect of such an action shall be to annul the ordinance, resolution or
executive order in question in whole or in part. The action of the sangguniang panlalawigan shall be final.

xxx xxx xxx (Emphasis supplied.)

The Sangguniang Panlalawigan's disapproval of Municipal Resolution No. 43-89 is an infirm action which does not render said
resolution null and void. The law, as expressed in Section 153 of B.P. Blg. 337, grants the Sangguniang Panlalawigan the power
to declare a municipal resolution invalid on the sole ground that it is beyond the power of the Sangguniang Bayan or the Mayor to
issue. Although pertaining to a similar provision of law but different factual milieu then obtaining, the Court's pronouncements
in Velazco v. Blas, 19 where we cited significant early jurisprudence, are applicable to the case at bar.

The only ground upon which a provincial board may declare any municipal resolution, ordinance, or order invalid
is when such resolution, ordinance, or order is "beyond the powers conferred upon the council or president
making the same." Absolutely no other ground is recognized by the law. A strictly legal question is before the
provincial board in its consideration of a municipal resolution, ordinance, or order. The provincial (board's)
disapproval of any resolution, ordinance, or order must be premised specifically upon the fact that such
resolution, ordinance, or order is outside the scope of the legal powers conferred by law. If a provincial board
passes these limits, it usurps the legislative function of the municipal council or president. Such has been the
consistent course of executive authority. 20

Thus, the Sangguniang Panlalawigan was without the authority to disapprove Municipal Resolution No. 43-89 for the Municipality
of Bunawan clearly has the power to exercise the right of eminent domain and its Sangguniang Bayan the capacity to promulgate
said resolution, pursuant to the earlier-quoted Section 9 of B.P. Blg. 337. Perforce, it follows that Resolution No. 43-89 is valid
and binding and could be used as lawful authority to petition for the condemnation of petitioners' property.

As regards the accusation of political oppression, it is alleged that Percival Moday incurred the ire of then Mayor Anuncio C.
Bustillo when he refused to support the latter's candidacy for mayor in previous elections. Petitioners claim that then incumbent
Mayor C. Bustillo used the expropriation to retaliate by expropriating their land even if there were other properties belonging to
the municipality and available for the purpose. Specifically, they allege that the municipality owns a vacant seven-hectare
property adjacent to petitioners' land, evidenced by a sketch plan. 21

The limitations on the power of eminent domain are that the use must be public, compensation must be made and due process
of law must be
observed. 22 The Supreme Court, taking cognizance of such issues as the adequacy of compensation, necessity of the taking
and the public use character or the purpose of the taking, 23 has ruled that the necessity of exercising eminent domain must be
genuine and of a public character. 24 Government may not capriciously choose what private property should be taken.

After a careful study of the records of the case, however, we find no evidentiary support for petitioners' allegations. The
uncertified photocopy of the sketch plan does not conclusively prove that the municipality does own vacant land adjacent to
petitioners' property suited to the purpose of the expropriation. In the questioned decision, respondent appellate court similarly
held that the pleadings and documents on record have not pointed out any of respondent municipality's "other available
properties available for the same purpose." 25 The accusations of political reprisal are likewise unsupported by competent
evidence. Consequently, the Court holds that petitioners' demand that the former municipal mayor be personally liable for
damages is without basis.

WHEREFORE, the instant petition is hereby DENIED. The questioned Decision and Resolution of the Court of Appeals in the
case of "Percival Moday." et al. v. Municipality of Bunawan, et al." (CA G.R. SP No. 26712) are AFFIRMED. The Temporary
Restraining Order issued by the Court on December 8, 1993 is LIFTED.

SO ORDERED.

G.R. No. 120295 June 28, 1996

JUAN G. FRIVALDO, petitioner,

vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.

G.R. No. 123755 June 28, 1996

RAUL R. LEE, petitioner,

vs.
COMMISSION ON ELECTIONS and JUAN G. FRIVALDO, respondents.

PANGANIBAN, J.:p

The ultimate question posed before this Court in these twin cases is: Who should be declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest number of votes in three successive elections but who was twice
declared by this Court to be disqualified to hold such office due to his alien citizenship, and who now claims to have re-assumed
his lost Philippine citizenship thru repatriation;

(ii) Raul R. Lee, who was the second placer in the canvass, but who claims that the votes cast in favor of Frivaldo should be
considered void; that the electorate should be deemed to have intentionally thrown away their ballots; and that legally, he
secured the most number of valid votes; or

(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously was not voted directly to the position of governor, but who
according to prevailing jurisprudence should take over the said post inasmuch as, by the ineligibility of Frivaldo, a "permanent
vacancy in the contested office has occurred"?

In ruling for Frivaldo, the Court lays down new doctrines on repatriation, clarifies/reiterates/amplifies existing jurisprudence on
citizenship and elections, and upholds the superiority of substantial justice over pure legalisms.

G.R. No. 123755

This is a special civil action under Rules 65 and 58 of the Rules of Court for certiorari and preliminary injunction to review and
annul a Resolution of the respondent Commission on Elections (Comelec), First Division, 1 promulgated on December 19,
19952 and another Resolution of the Comelec en banc promulgated February 23, 19963 denying petitioner's motion for
reconsideration.

The Facts

On March 20, 1995, private respondent Juan G. Frivaldo filed his Certificate of Candidacy for the office of Governor of Sorsogon
in the May 8, 1995 elections. On March 23, 1995, petitioner Raul R. Lee, another candidate, filed a petition4 with the Comelec
docketed as SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office or position by reason
of not yet being a citizen of the Philippines", and that his Certificate of Candidacy be canceled. On May 1, 1995, the Second
Division of the Comelec promulgated a Resolution5 granting the petition with the following disposition6:

WHEREFORE, this Division resolves to GRANT the petition and declares that respondent is DISQUALIFIED to
run for the Office of Governor of Sorsogon on the ground that he is NOT a citizen of the Philippines. Accordingly,
respondent's certificate of candidacy is canceled.

The Motion for Reconsideration filed by Frivaldo remained unacted upon until after the May 8, 1995 elections. So, his candidacy
continued and he was voted for during the elections held on said date. On May 11, 1995, the Comelec en banc7 affirmed the
aforementioned Resolution of the Second Division.

The Provincial Board of Canvassers completed the canvass of the election returns and a Certificate of Votes 8 dated May 27,
1995 was issued showing the following votes obtained by the candidates for the position of Governor of Sorsogon:

Antonio H. Escudero, Jr. 51,060

Juan G. Frivaldo 73,440

Raul R. Lee 53,304

Isagani P. Ocampo 1,925

On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition9 praying for his proclamation as the duly-elected
Governor of Sorsogon.

In an order10 dated June 21, 1995, but promulgated according to the petition "only on June 29, 1995," the Comelec en
banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose of proclaiming candidate Raul Lee
as the winning gubernatorial candidate in the province of Sorsogon on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of
June 30, 1995, Lee was proclaimed governor of Sorsogon.

On July 6, 1995, Frivaldo filed with the Comelec a new petition,11 docketed as SPC No. 95-317, praying for the annulment of the
June 30, 1995 proclamation of Lee and for his own proclamation. He alleged that on June 30, 1995, at 2:00 in the afternoon, he
took his oath of allegiance as a citizen of the Philippines after "his petition for repatriation under P.D. 725 which he filed with the
Special Committee on Naturalization in September 1994 had been granted". As such, when "the said order (dated June 21,
1995) (of the Comelec) . . . was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the evening, there was no
more legal impediment to the proclamation (of Frivaldo) as governor . . ." In the alternative, he averred that pursuant to the two
cases of Labo vs. Comelec,12 the Vice-Governor - not Lee - should occupy said position of governor.

On December 19, 1995, the Comelec First Division promulgated the herein assailed Resolution 13 holding that Lee, "not having
garnered the highest number of votes," was not legally entitled to be proclaimed as duly-elected governor; and that Frivaldo,
"having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree
No. 725 . . . (is) qualified to hold the office of governor of Sorsogon"; thus:

PREMISES CONSIDERED, the Commission (First Division), therefore RESOLVES to GRANT the Petition.

Consistent with the decisions of the Supreme Court, the proclamation of Raul R. Lee as Governor of Sorsogon is
hereby ordered annulled, being contrary to law, he not having garnered the highest number of votes to warrant
his proclamation.

Upon the finality of the annulment of the proclamation of Raul R. Lee, the Provincial Board of Canvassers is
directed to immediately reconvene and, on the basis of the completed canvass, proclaim petitioner Juan G.
Frivaldo as the duly elected Governor of Sorsogon having garnered the highest number of votes, and he having
reacquired his Filipino citizenship by repatriation on June 30, 1995 under the provisions of Presidential Decree
No. 725 and, thus, qualified to hold the office of Governor of Sorsogon.

Conformably with Section 260 of the Omnibus Election Code ( B.P. Blg. 881), the Clerk of the Commission is
directed to notify His Excellency the President of the Philippines, and the Secretary of the Sangguniang
Panlalawigan of the Province of Sorsogon of this resolution immediately upon the due implementation thereof.

On December 26, 1995, Lee filed a motion for reconsideration which was denied by the Comelec en banc in its
Resolution 14 promulgated on February 23, 1996. On February 26, 1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27, 1996 a Resolution which inter alia directed the parties "to maintain
the status quo prevailing prior to the filing of this petition."

The Issues in G.R. No. 123755

Petitioner Lee's "position on the matter at hand may briefly be capsulized in the following propositions" 15:

First -- The initiatory petition below was so far insufficient in form and substance to warrant the exercise by the
COMELEC of its jurisdiction with the result that, in effect, the COMELEC acted without jurisdiction in taking
cognizance of and deciding said petition;

Second -- The judicially declared disqualification of respondent was a continuing condition and rendered him
ineligible to run for, to be elected to and to hold the Office of Governor;

Third -- The alleged repatriation of respondent was neither valid nor is the effect thereof retroactive as to cure his
ineligibility and qualify him to hold the Office of Governor; and

Fourth -- Correctly read and applied, the Labo Doctrine fully supports the validity of petitioner's proclamation as
duly elected Governor of Sorsogon.

G.R. No. 120295

This is a petition to annul three Resolutions of the respondent Comelec, the first two of which are also at issue in G.R. No.
123755, as follows:

1. Resolution16 of the Second Division, promulgated on May 1, 1995, disqualifying Frivaldo from running for
governor of Sorsogon in the May 8, 1995 elections "on the ground that he is not a citizen of the Philippines";

2. Resolution17 of the Comelec en banc, promulgated on May 11, 1995; and

3. Resolution18 of the Comelec en banc, promulgated also on May 11, 1995 suspending the proclamation of,
among others, Frivaldo.

The Facts and the Issue

The facts of this case are essentially the same as those in G.R. No. 123755. However, Frivaldo assails the above-mentioned
resolutions on a different ground: that under Section 78 of the Omnibus Election Code, which is reproduced hereinunder:

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

the Comelec had no jurisdiction to issue said Resolutions because they were not rendered "within the period allowed by
law" i.e., "not later than fifteen days before the election."

Otherwise stated, Frivaldo contends that the failure of the Comelec to act on the petition for disqualification within the period of
fifteen days prior to the election as provided by law is a jurisdictional defect which renders the said Resolutions null and void.

By Resolution on March 12, 1996, the Court consolidated G.R. Nos. 120295 and 123755 since they are intimately related in their
factual environment and are identical in the ultimate question raised, viz., who should occupy the position of governor of the
province of Sorsogon.

On March 19, 1995, the Court heard oral argument from the parties and required them thereafter to file simultaneously their
respective memoranda.

The Consolidated Issues

From the foregoing submissions, the consolidated issues may be restated as follows:

1. Was the repatriation of Frivaldo valid and legal? If so, did it seasonably cure his lack of citizenship as to qualify him to be
proclaimed and to hold the Office of Governor? If not, may it be given retroactive effect? If so, from when?

2. Is Frivaldo's "judicially declared" disqualification for lack of Filipino citizenship a continuing bar to his eligibility to run for, be
elected to or hold the governorship of Sorsogon?

3. Did the respondent Comelec have jurisdiction over the initiatory petition in SPC No. 95-317 considering that said petition is not
"a pre-proclamation case, an election protest or a quo warranto case"?

4. Was the proclamation of Lee, a runner-up in the election, valid and legal in light of existing jurisprudence?

5. Did the respondent Commission on Elections exceed its jurisdiction in promulgating the assailed Resolutions, all of which
prevented Frivaldo from assuming the governorship of Sorsogon, considering that they were not rendered within the period
referred to in Section 78 of the Omnibus Election Code, viz., "not later than fifteen days before the elections"?

The First Issue: Frivaldo's Repatriation

The validity and effectivity of Frivaldo's repatriation is the lis mota, the threshold legal issue in this case. All the other matters
raised are secondary to this.

The Local Government Code of 199119 expressly requires Philippine citizenship as a qualification for elective local officials,
including that of provincial governor, thus:

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

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

xxx xxx xxx

Inasmuch as Frivaldo had been declared by this Court20 as a non-citizen, it is therefore incumbent upon him to show that he has
reacquired citizenship; in fine, that he possesses the qualifications prescribed under the said statute (R.A. 7160).

Under Philippine law,21 citizenship may be reacquired by direct act of Congress, by naturalization or by repatriation. Frivaldo told
this Court in G.R. No. 10465422 and during the oral argument in this case that he tried to resume his citizenship by direct act of
Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the endorsement of several members of
the House of Representatives" due, according to him, to the "maneuvers of his political rivals." In the same case, his attempt
at naturalization was rejected by this Court because of jurisdictional, substantial and procedural defects.

Despite his lack of Philippine citizenship, Frivaldo was overwhelmingly elected governor by the electorate of Sorsogon, with a
margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in 1995 over the same opponent Raul Lee. Twice, he
was judicially declared a non-Filipino and thus twice disqualified from holding and discharging his popular mandate. Now, he
comes to us a third time, with a fresh vote from the people of Sorsogon and a favorable decision from the Commission on
Elections to boot. Moreover, he now boasts of having successfully passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the prime opposing
counsel in the previous cases he lost, this time, as counsel for co-respondent Comelec, arguing the validity of his cause (in
addition to his able private counsel Sixto S. Brillantes, Jr.). That he took his oath of allegiance under the provisions of said
Decree at 2:00 p.m. on June 30, 1995 is not disputed. Hence, he insists that he -- not Lee -- should have been proclaimed as the
duly-elected governor of Sorsogon when the Provincial Board of Canvassers met at 8:30 p.m. on the said date since, clearly and
unquestionably, he garnered the highest number of votes in the elections and since at that time, he already reacquired his
citizenship.

En contrario, Lee argues that Frivaldo's repatriation is tainted with serious defects, which we shall now discuss in seriatim.

First, Lee tells us that P.D. No. 725 had "been effectively repealed", asserting that "then President Corazon Aquino exercising
legislative powers under the Transitory Provisions of the 1987 Constitution, forbade the grant of citizenship by Presidential
Decree or Executive Issuances as the same poses a serious and contentious issue of policy which the present government, in
the exercise of prudence and sound discretion, should best leave to the judgment of the first Congress under the 1987
Constitution", adding that in her memorandum dated March 27, 1987 to the members of the Special Committee on Naturalization
constituted for purposes of Presidential Decree No. 725, President Aquino directed them "to cease and desist from undertaking
any and all proceedings within your functional area of responsibility as defined under Letter of Instructions (LOI) No. 270 dated
April 11, 1975, as amended."23

This memorandum dated March 27, 198724 cannot by any stretch of legal hermeneutics be construed as a law sanctioning or
authorizing a repeal of P.D. No. 725. Laws are repealed only by subsequent ones 25 and a repeal may be express or implied. It is
obvious that no express repeal was made because then President Aquino in her memorandum -- based on the copy furnished us
by Lee -- did not categorically and/or impliedly state that P.D. 725 was being repealed or was being rendered without any legal
effect. In fact, she did not even mention it specifically by its number or text. On the other hand, it is a basic rule of statutory
construction that repeals by implication are not favored. An implied repeal will not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws are clearly repugnant and patently inconsistent that they cannot co-exist".26

The memorandum of then President Aquino cannot even be regarded as a legislative enactment, for not every pronouncement of
the Chief Executive even under the Transitory Provisions of the 1987 Constitution can nor should be regarded as an exercise of
her law-making powers. At best, it could be treated as an executive policy addressed to the Special Committee to halt the
acceptance and processing of applications for repatriation pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President did not repeal P.D. 725 but left it to the first Congress -- once
created -- to deal with the matter. If she had intended to repeal such law, she should have unequivocally said so instead of
referring the matter to Congress. The fact is she carefully couched her presidential issuance in terms that clearly indicated the
intention of "the present government, in the exercise of prudence and sound discretion" to leave the matter of repeal to the new
Congress. Any other interpretation of the said Presidential Memorandum, such as is now being proffered to the Court by Lee,
would visit unmitigated violence not only upon statutory construction but on common sense as well.

Second, Lee also argues that "serious congenital irregularities flawed the repatriation proceedings," asserting that Frivaldo's
application therefor was "filed on June 29, 1995 . . . (and) was approved in just one day or on June 30, 1995 . . .", which
"prevented a judicious review and evaluation of the merits thereof." Frivaldo counters that he filed his application for repatriation
with the Office of the President in Malacañang Palace on August 17, 1994. This is confirmed by the Solicitor General. However,
the Special Committee was reactivated only on June 8, 1995, when presumably the said Committee started processing his
application. On June 29, 1995, he filled up and re-submitted the FORM that the Committee required. Under these circumstances,
it could not be said that there was "indecent haste" in the processing of his application.

Anent Lee's charge that the "sudden reconstitution of the Special Committee on Naturalization was intended solely for the
personal interest of respondent,"27 the Solicitor General explained during the oral argument on March 19, 1996 that such
allegation is simply baseless as there were many others who applied and were considered for repatriation, a list of whom was
submitted by him to this Court, through a Manifestation28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that the presumption of regularity in the performance of official duty
and the presumption of legality in the repatriation of Frivaldo have not been successfully rebutted by Lee. The mere fact that the
proceedings were speeded up is by itself not a ground to conclude that such proceedings were necessarily tainted. After all, the
requirements of repatriation under P.D. No. 725 are not difficult to comply with, nor are they tedious and cumbersome. In fact,
P.D.
72529 itself requires very little of an applicant, and even the rules and regulations to implement the said decree were left to the
Special Committee to promulgate. This is not unusual since, unlike in naturalization where an alien covets a first-time entry into
Philippine political life, in repatriation the applicant is a former natural-born Filipino who is merely seeking to reacquire his
previous citizenship. In the case of Frivaldo, he was undoubtedly a natural-born citizen who openly and faithfully served his
country and his province prior to his naturalization in the United States -- a naturalization he insists was made necessary only to
escape the iron clutches of a dictatorship he abhorred and could not in conscience embrace -- and who, after the fall of the
dictator and the re-establishment of democratic space, wasted no time in returning to his country of birth to offer once more his
talent and services to his people.

So too, the fact that ten other persons, as certified to by the Solicitor General, were granted repatriation argues convincingly and
conclusively against the existence of favoritism vehemently posited by Raul Lee. At any rate, any contest on the legality of
Frivaldo's repatriation should have been pursued before the Committee itself, and, failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of administrative remedies.

Third, Lee further contends that assuming the assailed repatriation to be valid, nevertheless it could only be effective as at 2:00
p.m. of June 30, 1995 whereas the citizenship qualification prescribed by the Local Government Code "must exist on the date of
his election, if not when the certificate of candidacy is filed," citing our decision in G.R. 104654 30 which held that "both the Local
Government Code and the Constitution require that only Philippine citizens can run and be elected to public office." Obviously,
however, this was a mere obiter as the only issue in said case was whether Frivaldo's naturalization was valid or not -- and NOT
the effective date thereof. Since the Court held his naturalization to be invalid, then the issue of when an aspirant for public office
should be a citizen was NOT resolved at all by the Court. Which question we shall now directly rule on.

Under Sec. 39 of the Local Government Code, "(a)n elective local official must be:

* a citizen of the Philippines;

* a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected;

* a resident therein for at least one (1) year immediately preceding the day of the election;

* able to read and write Filipino or any other local language or dialect.

* In addition, "candidates for the position of governor . . . must be at least twenty-three (23) years of age on
election day.

From the above, it will be noted that the law does not specify any particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election day).

Philippine citizenship is an indispensable requirement for holding an elective public office,31 and the purpose of the citizenship
qualification is none other than to ensure that no alien, i.e., no person owing allegiance to another nation, shall govern our people
and our country or a unit of territory thereof. Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin. Since Frivaldo re-assumed his citizenship on June 30,
1995 -- the very day32 the term of office of governor (and other elective officials) began -- he was therefore already qualified to be
proclaimed, to hold such office and to discharge the functions and responsibilities thereof as of said date. In short, at that time,
he was already qualified to govern his native Sorsogon. This is the liberal interpretation that should give spirit, life and meaning
to our law on qualifications consistent with the purpose for which such law was enacted. So too, even from a literal (as
distinguished from liberal) construction, it should be noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why then should such qualification be required at the time of
election or at the time of the filing of the certificates of candidacies, as Lee insists? Literally, such qualifications -- unless
otherwise expressly conditioned, as in the case of age and residence -- should thus be possessed when the "elective [or elected]
official" begins to govern, i.e., at the time he is proclaimed and at the start of his term -- in this case, on June 30, 1995.
Paraphrasing this Court's ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the purpose of the citizenship requirement is
to ensure that our people and country do not end up being governed by aliens, i.e., persons owing allegiance to another nation,
that aim or purpose would not be thwarted but instead achieved by construing the citizenship qualification as applying to the time
of proclamation of the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised during the oral argument 34 to the effect that the citizenship
qualification should be possessed at the time the candidate (or for that matter the elected official) registered as a voter. After all,
Section 39, apart from requiring the official to be a citizen, also specifies as another item of qualification, that he be a "registered
voter". And, under the law35 a "voter" must be a citizen of the Philippines. So therefore, Frivaldo could not have been a voter --
much less a validly registered one -- if he was not a citizen at the time of such registration.

The answer to this problem again lies in discerning the purpose of the requirement. If the law intended
the citizenship qualification to be possessed prior to election consistent with the requirement of being a registered voter, then it
would not have made citizenship a SEPARATE qualification. The law abhors a redundancy. It therefore stands to reason that the
law intended CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes being a citizen first.
It also stands to reason that the voter requirement was included as another qualification (aside from "citizenship"), not to reiterate
the need for nationality but to require that the official be registered as a voter IN THE AREA OR TERRITORY he seeks to
govern, i.e., the law states: "a registered voter in the barangay, municipality, city, or province . . . where he intends to be elected."
It should be emphasized that the Local Government Code requires an elective official to be a registered voter. It does not require
him to vote actually. Hence, registration -- not the actual voting -- is the core of this "qualification". In other words, the law's
purpose in this second requirement is to ensure that the prospective official is actually registered in the area he seeks to govern -
- and not anywhere else.

Before this Court, Frivaldo has repeatedly emphasized -- and Lee has not disputed -- that he "was and is a registered voter of
Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration . . . In fact, he cast his vote in his
precinct on May 8, 1995."36

So too, during the oral argument, his counsel steadfastly maintained that "Mr. Frivaldo has always been a registered voter of
Sorsogon. He has voted in 1987, 1988, 1992, then he voted again in 1995. In fact, his eligibility as a voter was questioned, but
the court dismissed (sic) his eligibility as a voter and he was allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995."3 7

It is thus clear that Frivaldo is a registered voter in the province where he intended to be elected.

There is yet another reason why the prime issue of citizenship should be reckoned from the date of proclamation, not necessarily
the date of election or date of filing of the certificate of candidacy. Section 253 of the Omnibus Election Code 38 gives any voter,
presumably including the defeated candidate, the opportunity to question the ELIGIBILITY (or the disloyalty) of a candidate. This
is the only provision of the Code that authorizes a remedy on how to contest before the Comelec an incumbent's ineligibility
arising from failure to meet the qualifications enumerated under Sec. 39 of the Local Government Code. Such remedy of Quo
Warranto can be availed of "within ten days after proclamation" of the winning candidate. Hence, it is only at such time that the
issue of ineligibility may be taken cognizance of by the Commission. And since, at the very moment of Lee's proclamation (8:30
p.m., June 30, 1995), Juan G. Frivaldo was already and indubitably a citizen, having taken his oath of allegiance earlier in the
afternoon of the same day, then he should have been the candidate proclaimed as he unquestionably garnered the highest
number of votes in the immediately preceding elections and such oath had already cured his previous "judicially-declared"
alienage. Hence, at such time, he was no longer ineligible.

But to remove all doubts on this important issue, we also hold that the repatriation of Frivaldo RETROACTED to the date of the
filing of his application on August 17, 1994.

It is true that under the Civil Code of the Philippines, 39 "(l)aws shall have no retroactive effect, unless the contrary is provided."
But there are settled exceptions40 to this general rule, such as when the statute is CURATIVE or REMEDIAL in nature or when it
CREATES NEW RIGHTS.

According to Tolentino,41 curative statutes are those which undertake to cure errors and irregularities, thereby validating judicial
or administrative proceedings, acts of public officers, or private deeds and contracts which otherwise would not produce their
intended consequences by reason of some statutory disability or failure to comply with some technical requirement. They
operate on conditions already existing, and are necessarily retroactive in operation. Agpalo, 42 on the other hand, says that
curative statutes are
"healing acts . . . curing defects and adding to the means of enforcing existing obligations . . . (and) are intended to supply
defects, abridge superfluities in existing laws, and curb certain evils. . . . By their very nature, curative statutes are retroactive . . .
(and) reach back to past events to correct errors or irregularities and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."

On the other hand, remedial or procedural laws, i.e., those statutes relating to remedies or modes of procedure, which do not
create new or take away vested rights, but only operate in furtherance of the remedy or confirmation of such rights, ordinarily do
not come within the legal meaning of a retrospective law, nor within the general rule against the retrospective operation of
statutes.43
A reading of P.D. 725 immediately shows that it creates a new right, and also provides for a new remedy, thereby filling certain
voids in our laws. Thus, in its preamble, P.D. 725 expressly recognizes the plight of "many Filipino women (who) had lost their
Philippine citizenship by marriage to aliens" and who could not, under the existing law (C.A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the termination of their marital status" and who could neither be benefitted
by the 1973 Constitution's new provision allowing "a Filipino woman who marries an alien to retain her Philippine citizenship . . ."
because "such provision of the new Constitution does not apply to Filipino women who had married aliens before said
constitution took effect." Thus, P.D. 725 granted a new right to these women -- the right to re-acquire Filipino citizenship even
during their marital coverture, which right did not exist prior to P.D. 725. On the other hand, said statute also provided a new
remedy and a new right in favor of other "natural born Filipinos who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation of P.D. 725 such former Filipinos would have had to undergo
the tedious and cumbersome process of naturalization, but with the advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.

The Solicitor General44 argues:

By their very nature, curative statutes are retroactive, (DBP vs. CA, 96 SCRA 342), since they are intended to
supply defects, abridge superfluities in existing laws (Del Castillo vs. Securities and Exchange Commission, 96
Phil. 119) and curb certain evils (Santos vs. Duata, 14 SCRA 1041).

In this case, P.D. No. 725 was enacted to cure the defect in the existing naturalization law, specifically C.A. No.
63 wherein married Filipino women are allowed to repatriate only upon the death of their husbands, and natural-
born Filipinos who lost their citizenship by naturalization and other causes faced the difficulty of undergoing the
rigid procedures of C.A. 63 for reacquisition of Filipino citizenship by naturalization.

Presidential Decree No. 725 provided a remedy for the aforementioned legal aberrations and thus its provisions
are considered essentially remedial and curative.

In light of the foregoing, and prescinding from the wording of the preamble, it is unarguable that the legislative intent was
precisely to give the statute retroactive operation. "(A) retrospective operation is given to a statute or amendment where the
intent that it should so operate clearly appears from a consideration of the act as a whole, or from the terms thereof."45 It is
obvious to the Court that the statute was meant to "reach back" to those persons, events and transactions not otherwise covered
by prevailing law and jurisprudence. And inasmuch as it has been held that citizenship is a political and civil right equally as
important as the freedom of speech, liberty of abode, the right against unreasonable searches and seizures and other
guarantees enshrined in the Bill of Rights, therefore the legislative intent to give retrospective operation to P.D. 725 must be
given the fullest effect possible. "(I)t has been said that a remedial statute must be so construed as to make it effect the evident
purpose for which it was enacted, so that if the reason of the statute extends to past transactions, as well as to those in the
future, then it will be so applied although the statute does not in terms so direct, unless to do so would impair some vested right
or violate some constitutional guaranty."46 This is all the more true of P.D. 725, which did not specify any restrictions on or delimit
or qualify the right of repatriation granted therein.

At this point, a valid question may be raised: How can the retroactivity of P.D. 725 benefit Frivaldo considering that said law was
enacted on June 5, 1975, while Frivaldo lost his Filipino citizenship much later, on January 20, 1983, and applied for repatriation
even later, on August 17, 1994?

While it is true that the law was already in effect at the time that Frivaldo became an American citizen, nevertheless, it is not only
the law itself (P.D. 725) which is to be given retroactive effect, but even the repatriation granted under said law to Frivaldo on
June 30, 1995 is to be deemed to have retroacted to the date of his application therefor, August 17, 1994. The reason for this is
simply that if, as in this case, it was the intent of the legislative authority that the law should apply to past events -- i.e., situations
and transactions existing even before the law came into being -- in order to benefit the greatest number of former Filipinos
possible thereby enabling them to enjoy and exercise the constitutionally guaranteed right of citizenship, and such legislative
intention is to be given the fullest effect and expression, then there is all the more reason to have the law apply in a retroactive or
retrospective manner to situations, events and transactions subsequent to the passage of such law . That is, the repatriation
granted to Frivaldo on June 30, 1995 can and should be made to take effect as of date of his application. As earlier mentioned,
there is nothing in the law that would bar this or would show a contrary intention on the part of the legislative authority; and there
is no showing that damage or prejudice to anyone, or anything unjust or injurious would result from giving retroactivity to his
repatriation. Neither has Lee shown that there will result the impairment of any contractual obligation, disturbance of any vested
right or breach of some constitutional guaranty.

Being a former Filipino who has served the people repeatedly, Frivaldo deserves a liberal interpretation of Philippine laws and
whatever defects there were in his nationality should now be deemed mooted by his repatriation.

Another argument for retroactivity to the date of filing is that it would prevent prejudice to applicants. If P.D. 725 were not to be
given retroactive effect, and the Special Committee decides not to act, i.e., to delay the processing of applications for any
substantial length of time, then the former Filipinos who may be stateless, as Frivaldo -- having already renounced his American
citizenship -- was, may be prejudiced for causes outside their control. This should not be. In case of doubt in the interpretation or
application of laws, it is to be presumed that the law-making body intended right and justice to prevail.4 7

And as experience will show, the Special Committee was able to process, act upon and grant applications for repatriation within
relatively short spans of time after the same were filed.48 The fact that such interregna were relatively insignificant minimizes the
likelihood of prejudice to the government as a result of giving retroactivity to repatriation. Besides, to the mind of the Court, direct
prejudice to the government is possible only where a person's repatriation has the effect of wiping out a liability of his to the
government arising in connection with or as a result of his being an alien, and accruing only during the interregnum between
application and approval, a situation that is not present in the instant case.

And it is but right and just that the mandate of the people, already twice frustrated, should now prevail. Under the circumstances,
there is nothing unjust or iniquitous in treating Frivaldo's repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions about his possession of the nationality qualification -- whether
at the date of proclamation (June 30, 1995) or the date of election (May 8, 1995) or date of filing his certificate of candidacy
(March 20, 1995) would become moot.

Based on the foregoing, any question regarding Frivaldo's status as a registered voter would also be deemed settled. Inasmuch
as he is considered as having been repatriated -- i.e., his Filipino citizenship restored -- as of August 17, 1994, his previous
registration as a voter is likewise deemed validated as of said date.

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?"49 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."50

On this point, we quote from the assailed Resolution dated December 19, 1995:51

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.52

The Second Issue: Is Lack of Citizenship

a Continuing Disqualification?

Lee contends that the May 1, 1995 Resolution 53 of the Comelec Second Division in SPA No. 95-028 as affirmed in toto by
Comelec En Banc in its Resolution of May 11, 1995 "became final and executory after five (5) days or on May 17, 1995, no
restraining order having been issued by this Honorable Court. 54 Hence, before Lee "was proclaimed as the elected governor on
June 30, 1995, there was already a final and executory judgment disqualifying" Frivaldo. Lee adds that this Court's two rulings
(which Frivaldo now concedes were legally "correct") declaring Frivaldo an alien have also become final and executory way
before the 1995 elections, and these "judicial pronouncements of his political status as an American citizen absolutely and for all
time disqualified (him) from running for, and holding any public office in the Philippines."

We do not agree.

It should be noted that our first ruling in G.R. No. 87193 disqualifying Frivaldo was rendered in connection with the 1988
elections while that in G.R. No. 104654 was in connection with the 1992 elections. That he was disqualified for such elections is
final and can no longer be changed. In the words of the respondent Commission (Second Division) in its assailed Resolution: 55

The records show that the Honorable Supreme Court had decided that Frivaldo was not a Filipino citizen and
thus disqualified for the purpose of the 1988 and 1992 elections. However, there is no record of any "final
judgment" of the disqualification of Frivaldo as a candidate for the May 8, 1995 elections. What the Commission
said in its Order of June 21, 1995 (implemented on June 30, 1995), directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen "having been declared by the Supreme Court in its Order dated
March 25, 1995, not a citizen of the Philippines." This declaration of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship cannot govern a person's future status with finality. This is
because a person may subsequently reacquire, or for that matter lose, his citizenship under any of the modes recognized by law
for the purpose. Hence, in Lee vs. Commissioner of Immigration,56 we held:

Everytime the citizenship of a person is material or indispensable in a judicial or administrative case, whatever
the corresponding court or administrative authority decides therein as to such citizenship is generally not
considered res judicata, hence it has to be threshed out again and again, as the occasion demands.

The Third Issue: Comelec's Jurisdiction

Over The Petition in SPC No. 95-317

Lee also avers that respondent Comelec had no jurisdiction to entertain the petition in SPC No. 95-317 because the only
"possible types of proceedings that may be entertained by the Comelec are a pre-proclamation case, an election protest or a quo
warranto case". Again, Lee reminds us that he was proclaimed on June 30, 1995 but that Frivaldo filed SPC No. 95-317
questioning his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day reglementary period." Hence, according to him,
Frivaldo's "recourse was to file either an election protest or a quo warranto action."

This argument is not meritorious. The Constitution57 has given the Comelec ample power to "exercise exclusive original
jurisdiction over all contests relating to the elections, returns and qualifications of all elective . . . provincial . . . officials." Instead
of dwelling at length on the various petitions that Comelec, in the exercise of its constitutional prerogatives, may entertain, suffice
it to say that this Court has invariably recognized the Commission's authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is one.58 Thus, in Mentang vs. COMELEC,59 we ruled:

The petitioner argues that after proclamation and assumption of office, a pre-proclamation controversy is no
longer viable. Indeed, we are aware of cases holding that pre-proclamation controversies may no longer be
entertained by the COMELEC after the winning candidate has been proclaimed. ( citing Gallardo vs. Rimando,
187 SCRA 463; Salvacion vs. COMELEC, 170 SCRA 513; Casimiro vs. COMELEC, 171 SCRA 468.) This rule,
however, is premised on an assumption that the proclamation is no proclamation at all and the proclaimed
candidate's assumption of office cannot deprive the COMELEC of the power to make such declaration of nullity.
(citing Aguam vs. COMELEC, 23 SCRA 883; Agbayani vs. COMELEC, 186 SCRA 484.)

The Court however cautioned that such power to annul a proclamation must "be done within ten (10) days following the
proclamation." Inasmuch as Frivaldo's petition was filed only six (6) days after Lee's proclamation, there is no question that the
Comelec correctly acquired jurisdiction over the same.

The Fourth Issue: Was Lee's Proclamation Valid?

Frivaldo assails the validity of the Lee proclamation. We uphold him for the following reasons:

First. To paraphrase this Court in Labo vs. COMELEC,60 "the fact remains that he (Lee) was not the choice of the sovereign will,"
and in Aquino vs. COMELEC,61 Lee is "a second placer, . . . just that, a second placer."

In spite of this, Lee anchors his claim to the governorship on the pronouncement of this Court in the aforesaid Labo62 case, as
follows:

The rule would have been different if the electorate fully aware in fact and in law of a candidate's disqualification
so as to bring such awareness within the realm of notoriety, would nonetheless cast their votes in favor of the
ineligible candidate. In such case, the electorate may be said to have waived the validity and efficacy of their
votes by notoriously misapplying their franchise or throwing away their votes, in which case, the eligible
candidate obtaining the next higher number of votes may be deemed elected.

But such holding is qualified by the next paragraph, thus:

But this is not the situation obtaining in the instant dispute. It has not been shown, and none was alleged, that
petitioner Labo was notoriously known as an ineligible candidate, much less the electorate as having known of
such fact. On the contrary, petitioner Labo was even allowed by no less than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the office of the city Payor as its resolution dated May 9, 1992 denying due
course to petitioner Labo's certificate of candidacy had not yet become final and subject to the final outcome of
this case.

The last-quoted paragraph in Labo, unfortunately for Lee, is the ruling appropriate in this case because Frivaldo was in 1995 in
an identical situation as Labo was in 1992 when the Comelec's cancellation of his certificate of candidacy was not yet final on
election day as there was in both cases a pending motion for reconsideration, for which reason Comelec issued an (omnibus)
resolution declaring that Frivaldo (like Labo in 1992) and several others can still be voted for in the May 8, 1995 election, as in
fact, he was.

Furthermore, there has been no sufficient evidence presented to show that the electorate of Sorsogon was "fully aware in fact
and in law" of Frivaldo's alleged disqualification as to "bring such awareness within the realm of notoriety;" in other words, that
the voters intentionally wasted their ballots knowing that, in spite of their voting for him, he was ineligible. If Labo has any
relevance at all, it is that the vice-governor -- and not Lee -- should be pro- claimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people" of Sorsogon. This is the emphatic teaching of Labo:

The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible
candidate receiving the next highest number of votes to be declared elected. A minority or defeated candidate
cannot be deemed elected to the office.

Second. As we have earlier declared Frivaldo to have seasonably reacquired his citizenship and inasmuch as he obtained the
highest number of votes in the 1995 elections, he -- not Lee -- should be proclaimed. Hence, Lee's proclamation was patently
erroneous and should now be corrected.

The Fifth Issue: Is Section 78 of the

Election Code Mandatory?

In G.R. No. 120295, Frivaldo claims that the assailed Resolution of the Comelec (Second Division) dated May 1, 1995 and the
confirmatory en banc Resolution of May 11, 1995 disqualifying him for want of citizenship should be annulled because they were
rendered beyond the fifteen (15) day period prescribed by Section 78, of the Omnibus Election Code which reads as follows:

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

This claim is now moot and academic inasmuch as these resolutions are deemed superseded by the subsequent ones issued by
the Commission (First Division) on December 19, 1995, affirmed en banc63 on February 23, 1996; which both upheld his election.
At any rate, it is obvious that Section 78 is merely directory as Section 6 of R.A. No. 6646 authorizes the Commission to try and
decide petitions for disqualifications even after the elections, thus:

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)

Refutation of
Mr. Justice Davide's Dissent

In his dissenting opinion, the esteemed Mr. Justice Hilario G. Davide, Jr. argues that President Aquino's memorandum dated
March 27, 1987 should be viewed as a suspension (not a repeal, as urged by Lee) of P.D. 725. But whether it decrees a
suspension or a repeal is a purely academic distinction because the said issuance is not a statute that can amend or abrogate an
existing law.
The existence and subsistence of P.D. 725 were recognized in the first Frivaldo case; 64 viz., "(u)nder CA No. 63 as amended by
CA No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired by . . . repatriation". He also contends that by allowing
Frivaldo to register and to remain as a registered voter, the Comelec and in effect this Court abetted a "mockery" of our two
previous judgments declaring him a non-citizen. We do not see such abetting or mockery. The retroactivity of his repatriation, as
discussed earlier, legally cured whatever defects there may have been in his registration as a voter for the purpose of the 1995
elections. Such retroactivity did not change his disqualifications in 1988 and 1992, which were the subjects of such previous
rulings.

Mr. Justice Davide also believes that Quo Warranto is not the sole remedy to question the ineligibility of a candidate, citing the
Comelec's authority under Section 78 of the Omnibus Election Code allowing the denial of a certificate of candidacy on the
ground of a false material representation therein as required by Section 74. Citing Loong, he then states his disagreement with
our holding that Section 78 is merely directory. We really have no quarrel. Our point is that Frivaldo was in error in his claim in
G.R. No. 120295 that the Comelec Resolutions promulgated on May 1, 1995 and May 11, 1995 were invalid because they were
issued "not later than fifteen days before the election" as prescribed by Section 78. In dismissing the petition in G.R. No. 120295,
we hold that the Comelec did not commit grave abuse of discretion because "Section 6 of R.A. 6646 authorizes the Comelec to
try and decide disqualifications even after the elections." In spite of his disagreement with us on this point, i.e., that Section 78 "is
merely directory", we note that just like us, Mr. Justice Davide nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to deny due course under Section 78 must be filed within the 25-
day period prescribed therein. The present case however deals with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after the fifteen day period mentioned in Section 78. Here, we rule that a
decision promulgated by the Comelec even after the elections is valid but Loong held that a petition filed beyond the 25-day
period is out of time. There is no inconsistency nor conflict.

Mr. Justice Davide also disagrees with the Court's holding that, given the unique factual circumstances of Frivaldo, repatriation
may be given retroactive effect. He argues that such retroactivity "dilutes" our holding in the first Frivaldo case. But the first (and
even the second Frivaldo) decision did not directly involve repatriation as a mode of acquiring citizenship. If we may repeat, there
is no question that Frivaldo was not a Filipino for purposes of determining his qualifications in the 1988 and 1992 elections. That
is settled. But his supervening repatriation has changed his political status -- not in 1988 or 1992, but only in the 1995 elections.

Our learned colleague also disputes our holding that Frivaldo was stateless prior to his repatriation, saying that "informal
renunciation or abandonment is not a ground to lose American citizenship". Since our courts are charged only with the duty of
determining who are Philippine nationals, we cannot rule on the legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its own citizens -- not who are the citizens of other
countries.65 The issue here is: the Comelec made a finding of fact that Frivaldo was stateless and such finding has not been
shown by Lee to be arbitrary or whimsical. Thus, following settled case law, such finding is binding and final.

The dissenting opinion also submits that Lee who lost by chasmic margins to Frivaldo in all three previous elections, should be
declared winner because "Frivaldo's ineligibility for being an American was publicly known". First, there is absolutely no empirical
evidence for such "public" knowledge. Second, even if there is, such knowledge can be true post facto only of the last two
previous elections. Third, even the Comelec and now this Court were/are still deliberating on his nationality before, during and
after the 1995 elections. How then can there be such "public" knowledge?

Mr. Justice Davide submits that Section 39 of the Local Government Code refers to the qualifications of electivelocal
officials, i.e., candidates, and not elected officials, and that the citizenship qualification [under par. (a) of that section] must be
possessed by candidates, not merely at the commencement of the term, but by election day at the latest. We see it differently.
Section 39, par. (a) thereof speaks of "elective local official" while par. (b) to (f) refer to "candidates". If the qualifications under
par. (a) were intended to apply to "candidates" and not elected officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs. Secondly, if Congress had meant that the citizenship qualification should
be possessed at election day or prior thereto, it would have specifically stated such detail, the same way it did in pars. (b) to (f)
far other qualifications of candidates for governor, mayor, etc.

Mr. Justice Davide also questions the giving of retroactive effect to Frivaldo's repatriation on the ground, among others, that the
law specifically provides that it is only after taking the oath of allegiance that applicants shall be deemed to have reacquired
Philippine citizenship. We do not question what the provision states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is deemed to have reacquired Philippine citizenship, which
reacquisition (or repatriation) is deemed for all purposes and intents to have retroacted to the date of his application therefor.

In any event, our "so too" argument regarding the literal meaning of the word "elective" in reference to Section 39 of the Local
Authority Code, as well as regarding Mr. Justice Davide's thesis that the very wordings of P.D. 725 suggest non-retroactivity,
were already taken up rather extensively earlier in this Decision.

Mr. Justice Davide caps his paper with a clarion call: "This Court must be the first to uphold the Rule of Law." We agree -- we
must all follow the rule of law. But that is NOT the issue here. The issue is how should the law be interpreted and applied in this
case so it can be followed, so it can rule!

At balance, the question really boils down to a choice of philosophy and perception of how to interpret and apply laws relating to
elections: literal or liberal; the letter or the spirit, the naked provision or its ultimate purpose; legal syllogism or substantial justice;
in isolation or in the context of social conditions; harshly against or gently in favor of the voters' obvious choice. In applying
election laws, it would be far better to err in favor of popular sovereignty than to be right in complex but little understood
legalisms. Indeed, to inflict a thrice rejected candidate upon the electorate of Sorsogon would constitute unmitigated judicial
tyranny and an unacceptable assault upon this Court's conscience.

EPILOGUE
In sum, we rule that the citizenship requirement in the Local Government Code is to be possessed by an elective official at the
latest as of the time he is proclaimed and at the start of the term of office to which he has been elected. We further hold P.D. No.
725 to be in full force and effect up to the present, not having been suspended or repealed expressly nor impliedly at any time,
and Frivaldo's repatriation by virtue thereof to have been properly granted and thus valid and effective. Moreover, by reason of
the remedial or curative nature of the law granting him a new right to resume his political status and the legislative intent behind
it, as well as his unique situation of having been forced to give up his citizenship and political aspiration as his means of escaping
a regime he abhorred, his repatriation is to be given retroactive effect as of the date of his application therefor, during the
pendency of which he was stateless, he having given up his U.S. nationality. Thus, in contemplation of law, he possessed the
vital requirement of Filipino citizenship as of the start of the term of office of governor, and should have been proclaimed instead
of Lee. Furthermore, since his reacquisition of citizenship retroacted to August 17, 1994, his registration as a voter of Sorsogon
is deemed to have been validated as of said date as well. The foregoing, of course, are precisely consistent with our holding that
lack of the citizenship requirement is not a continuing disability or disqualification to run for and hold public office. And once
again, we emphasize herein our previous rulings recognizing the Comelec's authority and jurisdiction to hear and decide
petitions for annulment of proclamations.

This Court has time and again liberally and equitably construed the electoral laws of our country to give fullest effect to the
manifest will of our people,66 for in case of doubt, political laws must be interpreted to give life and spirit to the popular mandate
freely expressed through the ballot. Otherwise stated, legal niceties and technicalities cannot stand in the way of the sovereign
will. Consistently, we have held:

. . . (L)aws governing election contests must be liberally construed to the end that the will of the people in the
choice of public officials may not be defeated by mere technical objections (citations omitted). 67

The law and the courts must accord Frivaldo every possible protection, defense and refuge, in deference to the popular will.
Indeed, this Court has repeatedly stressed the importance of giving effect to the sovereign will in order to ensure the survival of
our democracy. In any action involving the possibility of a reversal of the popular electoral choice, this Court must exert utmost
effort to resolve the issues in a manner that would give effect to the will of the majority, for it is merely sound public policy to
cause elective offices to be filled by those who are the choice of the majority. To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the ineligibility is so patently antagonistic68 to constitutional and legal
principles that overriding such ineligibility and thereby giving effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.

In Frivaldo's case. it would have been technically easy to find fault with his cause. The Court could have refused to grant
retroactivity to the effects of his repatriation and hold him still ineligible due to his failure to show his citizenship at the time he
registered as a voter before the 1995 elections. Or, it could have disputed the factual findings of the Comelec that he was
stateless at the time of repatriation and thus hold his consequent dual citizenship as a disqualification "from running for any
elective local position." But the real essence of justice does not emanate from quibblings over patchwork legal technicality. It
proceeds from the spirit's gut consciousness of the dynamic role of law as a brick in the ultimate development of the social
edifice. Thus, the Court struggled against and eschewed the easy, legalistic, technical and sometimes harsh anachronisms of
the law in order to evoke substantial justice in the larger social context consistent with Frivaldo's unique situation approximating
venerability in Philippine political life. Concededly, he sought American citizenship only to escape the clutches of the dictatorship.
At this stage, we cannot seriously entertain any doubt about his loyalty and dedication to this country. At the first opportunity, he
returned to this land, and sought to serve his people once more. The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he filed his certificate of candidacy and during his failed
naturalization bid. And let it not be overlooked, his demonstrated tenacity and sheer determination to re-assume his nationality of
birth despite several legal set-backs speak more loudly, in spirit, in fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines even now at the ripe old age of 81 years. Such loyalty to and
love of country as well as nobility of purpose cannot be lost on this Court of justice and equity. Mortals of lesser mettle would
have given up. After all, Frivaldo was assured of a life of ease and plenty as a citizen of the most powerful country in the world.
But he opted, nay, single-mindedly insisted on returning to and serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which can be applied in his favor. And in the final analysis, over and
above Frivaldo himself, the indomitable people of Sorsogon most certainly deserve to be governed by a leader of their
overwhelming choice.

WHEREFORE, in consideration of the foregoing:

(1) The petition in G.R. No. 123755 is hereby DISMISSED. The assailed Resolutions of the respondent Commission are
AFFIRMED.

(2) The petition in G.R. No. 120295 is also DISMISSED for being moot and academic. In any event, it has no 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. L-28745 October 23, 1974

ELISA SAMSON and ANGEL GAVILAN, plaintiffs-appellees,
vs.
THE HONORABLE CITY MAYOR OF BACOLOD CITY and THE HONORABLE CITY COUNCIL OF BACOLOD
CITY, defendants-appellants.

Ibrado and Ibrado for plaintiff-appellee.

City Fiscal Elizalde P. Rodriguez and Assistant City Fiscal Edmundo L. Palermo for defendants-appellants.

FERNANDO, J.:p

There would have been no necessity for an appeal from a decision of November 22, 1967, nullifying an amendatory
ordinance1 of the City of Bacolod making it unlawful for any proprietor, lessee, or operator of an amusement place to admit two or
more persons with only one admission ticket, had the lower court accorded respect to two decisions from this Tribunal
promulgated in July of that year, Ermita-Malate Hotel and Motel Operators Association v. City Mayor2 and Ormoc Sugar Co. v.
Municipal Board of Ormoc City.3 The former made clear that the burden of demonstrating the alleged nullity of an ordinance rests
on the party assailing its infirmity, there being a presumption of its validity, and the latter reiterated the well-settled principle that a
reliance on the possible adverse effect on property rights of a regulatory measure under the police power does not suffice for a
declaration of unconstitutionality under the due process clause. In this case, contrary to the above procedural requisite and the
substantive rule of law, the lower court adjudged the amendatory ordinance null and void "for being in contravention" of the
Constitution. We have to reverse.

The facts are undisputed. A complaint was filed by the plaintiffs, now appellees, on June 29, 1967, alleging that they were movie
operators of the City of Bacolod, to nullify Ordinance No. 1074, for its being ultra vires and its being contrary to the due process
provision of the Constitution as they were deprived of their property without due process of law, more specifically in that there
was a limitation on their right "to manage their respective theatres in the manner they wish ... ." 4 They sought an injunction to
restrain the enforcement of the Ordinance in the meanwhile, and it was granted by respondent Judge Jose F. Fernandez now
retired.5 An answer was duly filed on July 10, 1967 by the City Fiscal of Bacolod, which perhaps could have been worded more
persuasively and bolstered with the applicable authorities.6 Nonetheless, the attention of the lower court was duly invited to the
previous decisions of this Tribunal manifesting lack of sympathy for the invocation of due process by property owners to set at
naught efforts of municipal corporations to exercise their admitted competence under the police power. The decision, as
previously noted, was handed down on November 22, 1967. It made clear that no evidence was introduced, for unfortunately, the
City Fiscal did not even invoke the Ermita-Malate Hotel decision. It was on the basis of the respective memoranda of the parties
that the decision appealed from was reached. There was no question as to the amendatory ordinance not being ultra vires. So
the lower court held. Nonetheless, it declared it null and void for being in contravention of the due process clause. 7 It went so far
as to consider it a direct violation of the Constitution presumably as it "is nothing but an unwarranted interference with one's
freedom to manage his own business, in the guise of police power."8 Hence this appeal.

To narrate the above is to render clear why a reversal is called for.

1. The lower court instead of merely relying on memoranda ought to have required plaintiffs to satisfy the procedural requirement
that in view of the presumption of validity, they should have presented evidence to be successful in assailing the constitutionality
of an ordinance. Such a doctrine, that goes back to an opinion of Justice Malcolm in United States v. Salaveria,9 was reiterated in
the aforesaid Ermita-Malate Hotel decision. Thus: "Primarily what calls for a reversal of such a decision is the absence of any
evidence to offset the presumption of validity that attaches to a challenged statute or ordinance. As was expressed categorically
by Justice Malcolm: "The presumption is all in favor of validity. ... The action of the elected representatives of the people cannot
be lightly set aside. The councilors must, in the very nature of things, be familiar with the necessities of their particular
municipality and with all the facts and circumstances which surround the subject and necessitate action. The local legislative
body, by enacting the ordinance, has in effect given notice that the regulations are essential to the well-being of the people. ...
The Judiciary should not lightly set aside legislative action when there is not a clear invasion of personal or property rights under
the guise of police regulation." " 10 Further: "It admits of no doubt therefore that there being a presumption of validity, the
necessity for evidence to rebut it is unavoidable, unless the statute or ordinance is void on its face, which is not the case here.
The principle has been nowhere better express than in the leading case of O'Gorman & Young v. Hartford Fire Insurance Co.,
where the American Supreme Court through Justice Brandeis tersely and succinctly summed up the matter thus: "The statute
here questioned deals with a subject clearly within the scope of the police power. We are asked to declare it void on the ground
that the specific method of regulation prescribed is unreasonable and hence deprives the plaintiff of due process of law. As
underlying questions of fact may condition the constitutionality of legislation of this character, the presumption of constitutionality
must prevail in the absence of some factual foundation of record for overthrowing the statute." No such factual foundation being
laid in the present case, the lower court deciding the matter on the pleadings and stipulation of facts, the presumption of validity
must prevail and the judgment against the ordinance set aside." 11

2. The procedural objection disregarded, and assuming a decision on the merits is called for, still the appealed decision cannot
be said to pass the test of conformity with the controlling principles of law. The lower court ought not to have given credence to
the superficial assertion that the amendatory ordinance is violative of the due process guarantee. Such an allegation, premised
solely on what plaintiffs did consider undue interference with their right to manage their property, ought not to have merited even
serious consideration. The Ormoc decision, 12 cited earlier, merely stressed what has been so consistently held by this Court.
While perhaps the verbal formulation relied on in that case is the well-known phrase "restraint of trade," the basic premise on the
part of property owners is the innate repugnance to any interference with the management of their business. Thus: "Nor is
petitioner-appellant any more successful in its claim in the second assigned error that the ordinance suffers from the taint of
illegality, it being in restraint of trade. In the absence of a clear and specific showing that there was a transgression of a
constitutional provision or repugnancy to a controlling statute, an objection of such a generalized character deserves but scant
sympathy from this Court. Considering the indubitable policy expressly set forth in the Local Autonomy Act, the invocation of
such a talismanic formula as "restraint of trade" without more no longer suffices, assuming it ever did, to nullify a taxing
ordinance, otherwise valid." 13 Such a doctrine goes back to United States v. Abendan, 14 a 1913 decision. The ordinance
challenged in that case dealt with the sanitary measure, passed on the first statutory grant of police power under the then
Municipal Code. 15 As was set forth by Justice Moreland, as ponente: "The Municipality of Cebu, as is seen from the quotation of
the general municipal law, has the right to enact ordinances relating to sanitation and the public health. The ordinance as set out
above seems to us to be an enactment clearly within the purview of the statute authorizing it, and, while very general in its terms,
it contains no provision which of itself is against the fundamental law or act of the Legislature or is oppressive or unreasonable.
Unreasonable persons may try to apply it in an unreasonable manner or to an unreasonable degree or under unreasonable
conditions, but in and of itself the ordinance discloses none of the defects which have been alleged against it." 16The next
notable opinion is that of Justice Malcolm, Kwong Sing v. City of Manila, 17 decided in 1920, where a regulation of the laundry
industry in the City of Manila was assailed by Chinese citizens engaged in that trade. According to Justice Malcolm: "The word
"regulate," as used in subsection (1), section 2414 of the Administrative Code, means and includes the power to control, to
govern, and to restrain; but "regulate" should not be construed as synonymous with "suppress" or "prohibit." " 18 Moreover, he did
specify that such a business could be regulated under the general welfare clause "in the interest of the public health, safety
morals, peace, good order, comfort, convenience, prosperity, and the general welfare." 19 A sentence in the next paragraph has
even more relevance for the present litigation: "The object of the ordinance was, accordingly, the promotion of peace and good
order and the prevention of fraud, deceit, cheating, and imposition." 20 Justice Laurel's words, in the leading case of Calalang v.
Williams, 21 promulgated 1940, ought to have cautioned the lower court Judge in deciding the way he did. "Public welfare, then,
lies at the bottom of the enactment of said law, and the state in order to promote the general welfare may interfere with personal
liberty, with property, and with business and occupations. Persons and property may be subjected to all kinds of restraints and
burdens, in order to secure the general comfort, health and prosperity of the state ... " 22

When it is further remembered that insofar as movie houses and other places of amusement are concerned, 23 the least doubt
cannot be entertained as to the validity of a measure prohibiting a proprietor, lessee or operator of an amusement place to admit
two or more persons with only one admission ticket, not only in the interest of preventing fraud insofar as municipal taxes are
concerned, but also in accordance with public health, public safety and the general welfare. 24 An American Supreme Court
decision, Western Turf Association v. Greenberg, 25 the opinion being penned by Justice Harlan, is equally illuminating: "The
statute is only a regulation of places of public entertainment and amusement upon terms of equal and exact justice to everyone
holding a ticket of admission, and who is not, at the time, under the influence of liquor, or boisterous in conduct, or of lewd and
immoral character. ... Such a regulation, in itself just, is likewise promotive, of peace and good order among those who attend
places of public entertainment and amusement. It is neither an arbitrary exertion of the state's inherent or governmental power,
nor a violation of any right secured by the Constitution of the United States." 26

WHEREFORE, the appealed decision of November 22, 1967, declaring null and void Bacolod City Ordinance No. 1074, series of
1967, is hereby reversed and set aside. The writ of preliminary injunction issued by the lower court on June 30, 1967, is likewise
set aside and declared to be bereft of any force or effect. Costs against plaintiffs.

G.R. No. L-29993 October 23, 1978

LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS

MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all Members of the
Municipal Council of Malasiqui in 1959, Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA,
REMEDIOS and ROBERTO, all surnamed FONTANILLA, and THE HONORABLE COURT OF APPEALS, respondents.

G.R. No. L-30183 October 23, 1978

MUNICIPALITY OF MALASIQUI, petitioner,

vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA,
REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the Honorable COURT OF APPEALS, respondents.

Julian M. Armas, Assistant Provincial Fiscal for petitioners.

Isidro L. Padilla for respondents.

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta authorized by a municipal council
under Sec. 2282 of the Municipal Law as embodied in the Revised Administrative Code is a governmental or a corporate or
proprietary function of the municipality.

A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of Malasiqui, and the members
of the Municipal Council of Malasiqui, province of Pangasinan, for a death which occurred during the celebration of the town
fiesta on January 22, 1959, and which was attributed to the negligence of the municipality and its council members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159 whereby "it resolved to
manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and 23, 1959." Resolution No. 182 was also passed
creating the "1959 Malasiqui 'Town Fiesta Executive Committee" which in turn organized a sub-committee on entertainment and
stage, with Jose Macaraeg as Chairman. the council appropriated the amount of P100.00 for the construction of 2 stages, one for
the "zarzuela" and another for the cancionan Jose Macaraeg supervised the construction of the stage and as constructed the
stage for the "zarzuela" was "5-½ meters by 8 meters in size, had a wooden floor high at the rear and was supported by 24
bamboo posts — 4 in a row in front, 4 in the rear and 5 on each side — with bamboo braces." 1

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of the Manila Railroad
Company in Caloocan, Rizal. The troupe arrived in the evening of January 22 for the performance and one of the members of the
group was Vicente Fontanilla. The program started at about 10:15 o'clock that evening with some speeches, and many persons
went up the stage. The "zarzuela" then began but before the dramatic part of the play was reached, the stage collapsed and
Vicente Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to tile San Carlos General
Hospital where he died in the afternoon of the following day.

The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September 11, 1959 to recover
damages. Named party-defendants were the Municipality of Malasiqui, the Municipal Council of Malasiqui and all the individual
members of the Municipal Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally and duly organized
public corporation it performs sovereign functions and the holding of a town fiesta was an exercise of its governmental functions
from which no liability can arise to answer for the negligence of any of its agents.

The defendant councilors inturn maintained that they merely acted as agents of the municipality in carrying out the municipal
ordinance providing for the management of the town fiesta celebration and as such they are likewise not liable for damages as
the undertaking was not one for profit; furthermore, they had exercised due care and diligence in implementing the municipal
ordinance. 2

After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the defendants exercised due
diligence 'm the construction of the stage. From his findings he arrived at the conclusion that the Executive Committee appointed
by the municipal council had exercised due diligence and care like a good father of the family in selecting a competent man to
construct a stage strong enough for the occasion and that if it collapsed that was due to forces beyond the control of the
committee on entertainment, consequently, the defendants were not liable for damages for the death of Vicente Fontanilla. The
complaint was accordingly dismissed in a decision dated July 10, 1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968, the Court of Appeals through
its Fourth Division composed at the time of Justices Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the
trial court's decision and ordered all the defendants-appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums
of P12,000.00 by way of moral and actual damages: P1200.00 its attorney's fees; and the costs. 4

The case is now before Us on various assignments of errors all of which center on the proposition stated at the sentence of this
Opinion and which We repeat:

Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or public function or is it or a
private or proprietary character?

1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with the faculties of municipal
corporations to be exercised by and through their respective municipal governments in conformity with law, and in their proper
corporate name, they may inter alia sue and be sued, and contract and be contracted with. 5
The powers of a municipality are twofold in character public, governmental or political on the one hand, and corporate, private, or
proprietary on the other. Governmental powers are those exercised by the corporation 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 other hand
are exercised for the special benefit and advantage of the community and include those which are ministerial private and
corporate. 6

As to when a certain activity is governmental and when proprietary or private, that is generally a difficult matter to determine. The
evolution of the municipal law in American Jurisprudence, for instance, has shown that; none of the tests which have evolved
and are stated in textbooks have set down a conclusive principle or rule, so that each case will have to be determined on the
basis of attending circumstances.

In McQuillin on Municipal Corporations, 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. 7

Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are two fold. In one they exercise the right
springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political
and governmental Their officers and agents in such capacity, though elected or appointed by the are
nevertheless public functionaries performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a private. proprietary or corporate right,
arising from their existence as legal persons and not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and
not for the state or sovereign power. (112 N. E 994-995)

In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant T. Trent, relying mainly on
American Jurisprudence classified certain activities of the municipality as governmental, e.g.: regulations against fire, disease,
preservation of public peace, maintenance of municipal prisons, establishment of schools, post-offices, etc. while the following
are corporate or proprietary in character, viz: municipal waterwork, slaughter houses, markets, stables, bathing establishments,
wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized
as municipal or city activities of a proprietary character. 9

2. This distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its
agents which result in an injury to third persons.

If the injury is caused in the course of the performance of a governmental function or duty no recovery, as a rule, can be. had
from the municipality unless there is an existing statute on the matter, 10 nor from its officers, so long as they performed their
duties honestly and in good faith or that they did not act wantonly and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte,
et al., 1958, a truck driver employed by the provincial government of Ilocos Norte ran over Proceto Palafox in the course of his
work at the construction of a road. The Supreme Court in affirming the trial court's dismissal of the complaint for damages held
that the province could not be made liable because its employee was in the performance of a governmental function — the
construction and maintenance of roads — and however tragic and deplorable it may be, the death of Palafox imposed on the
province no duty to pay monetary consideration. 12

With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons ex
contract 13 or ex delicto. 14

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 fine of his employment, by which another, who is free from
contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within the operation of
this rule of law, and are liable, accordingly, to civil actions for damages when the requisite elements of liability
co-exist. ... (Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza v. de Leon, supra. 514)

3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of the town fiesta in 1959 by
the municipality of Malsiqui Pangasinan was an exercise of a private or proprietary function of the municipality.

Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:
 Section 2282. Celebration of fiesta. — fiesta may be held in each municipality not oftener than once a year upon
a date fixed by the municipal council A fiesta s not be held upon any other date than that lawfully fixed therefor,
except when, for weighty reasons, such as typhoons, foundations, earthquakes, epidemics, or other public ties,
the fiesta cannot be hold in the date fixed in which case it may be held at a later date in the same year, by
resolution of the council.

This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an
act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the
state. The mere fact that the celebration, as claimed was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the nonetheless it
is private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element,
however beneficial to the public the undertaking may be, is that it is governmental in essence, otherwise. the function becomes
private or proprietary in character. Easily, no overnmental or public policy of the state is involved in the celebration of a town
fiesta. 15

4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable for damages for the death of
Vicente Fontanilia if that was at- tributable to the negligence of the municipality's officers, employees, or agents.

Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. . .

Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only for one's own acts or
omission, but also for those of persons for whom one is responsible. . .

On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now petitioners), that a member of
the "extravaganza troupe removed two principal braces located on the front portion of the stage and u them to hang the screen or
"telon", and that when many people went up the stage the latter collapsed. This testimony was not believed however by
respondent appellate court, and rightly so. According to said defendants, those two braces were "mother" or "principal" braces
located semi-diagonally from the front ends of the stage to the front posts of the ticket booth located at the rear of the stage and
were fastened with a bamboo twine. 16 That being the case, it becomes incredible that any person in his right mind would remove
those principal braces and leave the front portion of the stage practically unsuported Moreover, if that did happen, there was
indeed negligence as there was lack of suspension over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo braces denied having done
go. The Court of Appeals said "Amor by himself alone could not have removed the two braces which must be about ten meters
long and fastened them on top of the stags for the curtain. The stage was only five and a half meters wide. Surely, it, would be
impractical and unwieldy to use a ten meter bamboo pole, much more two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only P100.00 was appropriate for the
construction of two stages and while the floor of the "zarzuela" stage was of wooden planks, the Post and braces used were of
bamboo material We likewise observe that although the stage was described by the Petitioners as being supported by "24"
posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each side. Where were the rest?

The Court of Appeals thus concluded

The court a quo itself attributed the collapse of the stage to the great number of onlookers who mounted the
stage. The municipality and/or its agents had the necessary means within its command to prevent such an
occurrence. Having filed to take the necessary steps to maintain the safety of the stage for the use of the
participants in the stage presentation prepared in connection with the celebration of the town fiesta, particularly,
in preventing non participants or spectators from mounting and accumulating on the stage which was not
constructed to meet the additional weight- the defendant-appellees were negligent and are liable for the death of
Vicente Fontanilla . (pp. 30-31, rollo, L-29993)

The findings of the respondent appellate court that the facts as presented to it establish negligence as a matter of law and that
the Municipality failed to exercise the due diligence of a good father of the family, will not disturbed by Us in the absence of a
clear showing of an abuse of discretion or a gross misapprehension of facts." 18
Liability rests on negligence which is "the want of such care as a person of ordinary prudence would exercise under the
circumstances of the case." 19

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the town fiesta was a
"donation" offered by an association of Malasiqui employees of the Manila Railroad Co. in Caloocan, and that when the
Municipality of Malasiqui accepted the donation of services and constructed precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect that the Municipality through its "Committee on entertainment and stage"
would build or put up a stage or platform strong enough to sustain the weight or burden of the performance and take the
necessary measures to insure the personal safety of the participants. 20 We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was an action against the
city for injuries sustained from a fall when plaintiff was descending the steps of the city auditorium. The city was conducting a
"Know your City Week" and one of the features was the showing of a motion picture in the city auditorium to which the general
public was invited and plaintiff Sanders was one of those who attended. In sustaining the award for Damages in favor of plaintiff,
the District Court of Appeal, Second district, California, held inter alia that the "Know your City Week" was a "proprietary activity"
and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee the duty of exercising ordinary care for her
safety, and plaintiff was entitled to assume that she would not be exposed to a danger (which in this case consisted of lack of
sufficient illumination of the premises) that would come to her through a violation of defendant duty. 21

We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality of Malasiqui resolved to
celebrate the town fiesta in January of 1959; it created a committee in charge of the entertainment and stage; an association of
Malasiqui residents responded to the call for the festivities and volunteered to present a stage show; Vicente Fontanilla was one
of the participants who like Sanders had the right to expect that he would be exposed to danger on that occasion.

Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was Jose Macaraeg who
constructed the stage. The municipality acting through its municipal council appointed Macaraeg as chairman of the sub-
committee on entertainment and in charge of the construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the
Municipality. Under the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the negligence of
its agent acting within his assigned tasks. 22

... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they
are the servants or agents of the corporation. If the corporation appoints or elects them, can control them in the discharge of their
duties, can continue or remove the can hold them responsible for the manner in which they discharge their trust, and if those
duties relate to the exercise of corporate powers, and are for the benefit of the corporation in its local or special interest, they
may justly be regarded as its agents or servants, and the maxim of respondent superior applies." ... (Dillon on Municipal
Corporations, 5th Ed., Vol IV, p. 2879)

5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted the ordinance and
created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for damages under Article 27 of the Civil
Code which provides that d any person suffering ing material or moral loss because a public servant or employee refuses or
neglects, without just cause to perform his official duty may file an action for damages and other relief at the latter. 23

In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling that the holding of a town fiesta
is not a governmental function and that there was negligence on their part for not maintaining and supervising the safe use of the
stage, in applying Article 27 of the Civil Code against them and in not holding Jose Macaraeg liable for the collapse of the stage
and the consequent death of Vicente Fontanilla. 24

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against the for this particular
article covers a case of nonfeasance or non-performance by a public officer of his official duty; it does not apply to a case of
negligence or misfeasance in carrying out an official duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain
error committed by respondent court which however is not invoked in petitioners' brief.

In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz Castro, held that the Supreme
Court is vested with ample authority to review matters not assigned as errors in an appeal if it finds that their consideration and
resolution are indispensable or necessary in arriving at a just decision in a given case, and that tills is author under Sec. 7, Rule
51 of the Rules of Court. 25 We believe that this pronouncement can well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the Municipality of Malasiqui
was not a governmental function. We upheld that ruling. The legal consequence thereof is that the Municipality stands on the
same footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary
principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composing it 26 and the
latter are not as a rule co-responsible in an action for damages for tort or negligence culpa aquilla committed by the corporation's
employees or agents unless there is a showing of bad faith or gross or wanton negligence on their part. 27

xxx xxx xxx

The ordinary doctrine is that a director, merely by reason of his office, is not personally Stable for the torts of his
corporation; he Must be shown to have personally voted for or otherwise participated in them ... Fletcher
Encyclopedia Corporations, Vol 3A Chapt 11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the corporation merely because of their official
relation to it, but because of some wrongful or negligent act by such officer amounting to a breach of duty which
resulted in an injury ... To make an officer of a corporation liable for the negligence of the corporation there must
have been upon his part such a breach of duty as contributed to, or helped to bring about, the injury; that is to
say, he must be a participant in the wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the corporate are not personally liable for the
negligent acts of the exhibitor. (p. 211, Ibid.)

On these people We absolve Use municipal councilors from any liability for the death of Vicente Fontanilla. The records do not
show that said petitioners directly participated in the defective construction of the "zarzuela" stage or that they personally
permitted spectators to go up the platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court. Petitioner-municipality assails the
award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be granted when the court deems
it just and equitable. In this case of Vicente Fontanilla, although respondent appellate court failed to state the grounds for
awarding attorney's fees, the records show however that attempts were made by plaintiffs, now private respondents, to secure
an extrajudicial compensation from the municipality: that the latter gave prorases and assurances of assistance but failed to
comply; and it was only eight month after the incident that the bereaved family of Vicente Fontanilla was compelled to seek relief
from the courts to ventilate what was believed to be a just cause. 28

We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a matter of judicial discretion.
The amount of P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the Municipality of Malasiqui is
concerned (L-30183), and We absolve the municipal councilors from liability and SET ASIDE the judgment against them (L-
9993).

Without pronouncement as to costs.

SO ORDERED,

G.R. No. 94115 August 21, 1992

RODOLFO E. AGUINALDO, petitioner,

vs.
HON. LUIS SANTOS, as Secretary of the Department of Local Government, and MELVIN VARGAS, as Acting Governor of
Cagayan, respondents.

Victor I. Padilla for petitioner.

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

NOCON, J.:
In this petition for certiorari and prohibition with preliminary mandatory injunction and/or restraining order, petitioner Rodolfo E.
Aguinaldo assails the decision of respondent Secretary of Local Government dated March 19,1990 in Adm. Case No. P-10437-
89 dismissing him as Governor of Cagayan on the ground that the power of the Secretary of Local Government to dismiss local
government official under Section 14, Article I, Chapter 3 and Sections 60 to 67, Chapter 4 of Batas Pambansa Blg. 337,
otherwise known as the Local Government Code, was repealed by the effectivity of the 1987 Constitution.

The pertinent facts are as follows: Petitioner was the duly elected Governor of the province of Cagayan, having been elected to
said position during the local elections held on January 17, 1988, to serve a term of four (4) years therefrom. He took his oath
sometimes around March 1988.

Shortly after December 1989 coup d'etat was crushed, respondent Secretary of Local Government sent a telegram and a letter,
both dated December 4, 1989, to petitioner requiring him to show cause why should not be suspended or remove from office for
disloyalty to the Republic, within forty-eight (48) hours from receipt thereof.

On December 7, 1989, a sworn complaint for disloyalty to the Republic and culpable violation of the Constitution was filed by
Veronico Agatep, Manuel Mamba and Orlino Agatep, respectively the mayors of the municipalities of Gattaran, Tuao and Lasam,
all in Cagayan, against petitioner for acts the latter committed during the coup. Petitioner was required to file a verified answer to
the complaint.

On January 5, 1990, the Department of Local Government received a letter from petitioner dated December 29, 1989 in reply to
respondent Secretary's December 4, 1989 letter requiring him to explain why should not be suspended or removed from office
for disloyalty. In his letter, petitioner denied being privy to the planning of the coup or actively participating in its execution,
though he admitted that he was sympathetic to the cause of the rebel soldiers. 1

Respondent Secretary considered petitioner's reply letter as his answer to the complaint of Mayor Veronico Agatep and
others. 2 On the basis thereof, respondent Secretary suspended petitioner from office for sixty (60) days from notice, pending the
outcome of the formal investigation into the charges against him.

During the hearing conducted on the charges against petitioner, complainants presented testimonial and documentary evidence
to prove the charges. Petitioner neither presented evidence nor even cross-examined the complainant's witnesses, choosing
instead to move that respondent Secretary inhibit himself from deciding the case, which motion was denied.

Thereafter, respondent Secretary rendered the questioned decision finding petitioner guilty as charged and ordering his removal
from office. Installed as Governor of Cagayan in the process was respondent Melvin Vargas, who was then the Vice-Governor of
Cagayan.

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

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

Consequently, on May 13, 1992, petitioner filed a petition for certiorari with this Court, G.R. Nos. 105128-30, entitled Rodolfo E.
Aguinaldo v. Commission on Elections, et al., seeking to nullify the resolution of the Commission ordering his disqualification.
The Court, in a resolution dated May 14, 1992, issued a temporary restraining order against the Commission to cease and desist
from enforcing its May 9, 1992 resolution pending the outcome of the disqualification case, thereby allowing the canvassing of
the votes and returns in Cagayan to proceed. However, the Commission was ordered not to proclaim a winner until this Court
has decided the case.

On June 9, 1992, a resolution was issued in the aforementioned case granting petition and annulling the May 9, 1992 resolution
of the Commission on the ground that the decision of respondent Secretary has not yet attained finality and is still pending review
with this Court. As petitioner won by a landslide margin in the elections, the resolution paved the way for his eventual
proclamation as Governor of Cagayan.
Under the environmental circumstances of the case, We find the petition meritorious.

Petitioner's re-election to the position of Governor of Cagayan has rendered the administration case pending before Us moot and
academic. It appears that after the canvassing of votes, petitioner garnered the most number of votes among the candidates for
governor of Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,:

. . . [T]he certified true xerox copy of the "CERTITICATE OF VOTES OF CANDIDATES", attached to the "VERY
URGENT MOTION FOR THE MODIFICATION OF THE RESOLUTION DATED MAY 14, 1992["] filed by
petitioner shows that he received 170,382 votes while the other candidates for the same position received the
following total number of votes: (1) Patricio T. Antonio — 54,412, (2) Paquito F. Castillo — 2,198; and (3)
Florencio L. Vargas — 48,129.

xxx xxx xxx

Considering the fact narrated, the expiration of petitioner's term of office during which the acts
charged were allegedly committed, and his subsequent reelection, the petitioner must be
dismissed for the reason that the issue has become academic. In Pascual v. Provincial Board of
Nueva Ecija, L-11959, October 31, 1959, this Court has ruled:

The weight of authority, however, seems to incline to the ruled denying the right
to remove from office because of misconduct during a prior term to which we
fully subscribe.

Offenses committed, or acts done, during a previous term are generally held not to furnish cause for removal
and this is especially true were the Constitution provides that the penalty in proceeding for removal shall not
extend beyond the removal from office, and disqualification from holding office for a term for which the officer
was elected or appointed. (6 C.J.S. p. 248, citing Rice v. State, 161 S.W. 2nd 4011; Montgomery v. Newell, 40
S.W. 23rd 418; People ex rel Bashaw v. Thompson, 130 P. 2nd 237; Board of Com'rs Kingfisher County v.
Shutler, 281 P. 222; State v. Blake, 280 P. 388; In re Fedula, 147 A 67; State v. Wald, 43 S.W. 217)

The underlying theory is that each term is separate from other terms, and that the reelection to
office operates as a condonation of the officer's misconduct to the extent of cutting off the right
to remove him therefor. (43 Am. Jur. p. 45, citing Atty. Gen. v. Kasty, 184 Ala. 121, 63 Sec. 599,
50 L.R.A. [NS] 553). As held in Comant v. Bregan [ 1887] 6 N.Y.S.R. 332, cited in 17 A.L.R. 63
Sec. 559, 50 [NE] 553.

The Court should ever remove a public officer for acts done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their officers. When a people have elected a man to office, it
must be assumed that they did this with knowledge of his life and character, and that they disregarded or forgave
his fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such fault or misconduct,
to practically overrule the will of the people. (Lizares v. Hechanova, et al., 17 SCRA 58, 59-60 [1966]) (See also
Oliveros v. Villaluz, 57 SCRA 163 [1974]) 3

Clear then, the rule is that a public official can not be removed for administrative misconduct committed during a prior term, since
his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to
remove him therefor. The foregoing rule, however, finds no application to criminal cases pending against petitioner for acts he
may have committed during the failed coup.

The other grounds raised by petitioner deserve scant consideration. Petitioner contends that the power of respondent Secretary
to suspend or remove local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has been
repealed by the 1987 Constitution and which is now vested in the courts.

We do not agree. The power of respondent Secretary to remove local government officials is anchored on both the Constitution
and a statutory grant from the legislative branch. The constitutional basis is provided by Articles VII (17) and X (4) of the 1987
Constitution which vest in the President the power of control over all executive departments, bureaus and offices and the power
of general supervision over local governments, and by the doctrine that the acts of the department head are presumptively the
acts of the President unless expressly rejected by him. 4 The statutory grant found in B.P. Blg. 337 itself has constitutional roots,
having been enacted by the then Batasan Pambansa pursuant to Article XI of the 1973 Constitution, Section 2 of which
specifically provided as follows —

Sec. 2. The National Assembly shall enact a local government code which may not thereafter be amended
except by a majority vote of all its Members, defining a more responsive and accountable local government
structure with an effective system of recall, allocating among the different local government units their powers,
 responsibilities, and resources, and providing for the qualifications, election and removal, term, salaries, power,
functions, and duties of local government officials, and all other matters relating to the organization and
operation of the local units. However, any change in the existing form of local government shall not take effect
until ratified by a majority of the votes cast in the plebiscite called for the purpose. 5

A similar provision is found in Section 3, Article X of the 1987 Constitution, which reads:

Sec. 3. The Congress shall enact a local government code which shall provided for a more responsive and
accountable local government structure instituted through a system of decentralization with effective
mechanisms of recall, initiative, and referendum, allocate among the different local government units their
powers, responsibilities, and resources, and provide for the qualifications, election, appointment, and
removal, term and salaries, powers and functions and duties of local officials, and all other matters relating to the
organization and operation of the local units. 6

Inasmuch as the power and authority of the legislature to enact a local government code, which provides for the manner of
removal of local government officials, is found in the 1973 Constitution as well as in the 1987 Constitution, then it can not be said
that BP Blg. 337 was repealed by the effective of the present Constitution.

Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., 7 this court had the occasion to state that B.P. Blg. 337 remained in force
despite the effectivity of the present Constitution, until such time as the proposed Local Government Code of 1991 is approved.

The power of respondent Secretary of the Department of Local Government to remove local elective government officials is
found in Secs. 60 and 61 of B.P. Blg. 337. 8

As to petitioner's argument of the want of authority of respondent Secretary to appoint respondent Melvin Vargas as Governor of
Cagayan, We need but point to Section 48 (1) of B.P. Blg 337 to show the fallacy of the same, to writ —

In case a permanent vacancy arises when a governor . . . refuses to assume office, fails to quality, dies or
is removed from office, voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions
of his office, the vice-governor . . . shall assume the office for the unexpired term of the former. 9

Equally without merit is petitioner's claim that before he could be suspended or removed from office, proof beyond reasonable
doubt is required inasmuch as he is charged with a penal offense of disloyalty to the Republic which is defined and penalized
under Article 137 of the Revised Penal Code. Petitioner is not being prosecuted criminally under the provisions of the Revised
Penal Code, but administratively with the end in view of removing petitioner as the duly elected Governor of Cagayan Province
for acts of disloyalty to the Republic where the quantum of proof required is only substantial evidence. 10

WHEREFORE, petitioner is hereby GRANTED and the decision of public respondent Secretary of Local Government dated
March 19, 1990 in Adm. Case No. P-10437-89, dismissing petitioner as Governor of Cagayan, is hereby REVERSED.

SO ORDERED.

G.R. No. 147870 July 31, 2002

RAMIR R. PABLICO, petitioner,

vs.
ALEJANDRO A. VILLAPANDO, respondent.

YNARES-SANTIAGO, J.:

May local legislative bodies and/or the Office of the President, on appeal, validly impose the penalty of dismissal from service on
erring elective local officials?

This purely legal issue was posed in connection with a dispute over the mayoralty seat of San Vicente, Palawan. Considering
that the term of the contested office expired on June 30, 2001,1 the present case may be dismissed for having become moot and
academic.2 Nonetheless, we resolved to pass upon the above-stated issue concerning the application of certain provisions of the
Local Government Code of 1991.

The undisputed facts are as follows:

On August 5, 1999, Solomon B. Maagad, and Renato M. Fernandez, both members of the Sangguniang Bayan of San Vicente,
Palawan, filed with the Sangguniang Panlalawigan of Palawan an administrative complaint against respondent Alejandro A.
Villapando, then Mayor of San Vicente, Palawan, for abuse of authority and culpable violation of the Constitution. 3 Complainants
alleged that respondent, on behalf of the municipality, entered into a consultancy agreement with Orlando M. Tiape, a defeated
mayoralty candidate in the May 1998 elections. They argue that the consultancy agreement amounted to an appointment to a
government position within the prohibited one-year period under Article IX-B, Section 6, of the 1987 Constitution.

In his answer, respondent countered that he did not appoint Tiape, rather, he merely hired him. He invoked Opinion No. 106, s.
1992, of the Department of Justice dated August 21, 1992, stating that the appointment of a defeated candidate within one year
from the election as a consultant does not constitute an appointment to a government office or position as prohibited by the
Constitution.

On February 1, 2000, the Sangguniang Panlalawigan of Palawan found respondent guilty of the administrative charge and
imposed on him the penalty of dismissal from service.4 Respondent appealed to the Office of the President which, on May 29,
2000, affirmed the decision of the Sangguniang Panlalawigan of Palawan.5

Pending respondent’s motion for reconsideration of the decision of the Office of the President, or on June 16, 2000, petitioner
Ramir R. Pablico, then Vice-mayor of San Vicente, Palawan, took his oath of office as Municipal Mayor. Consequently,
respondent filed with the Regional Trial Court of Palawan a petition for certiorari and prohibition with preliminary injunction and
prayer for a temporary restraining order, docketed as SPL Proc. No. 3462. 6 The petition, seeks to annul, inter alia, the oath
administered to petitioner. The Executive Judge granted a Temporary Restraining Order effective for 72 hours, as a result of
which petitioner ceased from discharging the functions of mayor. Meanwhile, the case was raffled to Branch 95 which, on June
23, 2000, denied respondent’s motion for extension of the 72-hour temporary restraining order.7 Hence, petitioner resumed his
assumption of the functions of Mayor of San Vicente, Palawan.

On July 4, 2000, respondent instituted a petition for certiorari and prohibition before the Court of Appeals seeking to annul: (1)
the May 29, 2000 decision of the Office of the President; (2) the February 1, 2000, decision of the Sangguniang Panlalawigan of
Palawan; and (3) the June 23, 2000 order of the Regional Trial Court of Palawan, Branch 95.

On March 16, 2001, the Court of Appeals8 declared void the assailed decisions of the Office of the President and
the Sangguniang Panlalawigan of Palawan, and ordered petitioner to vacate the Office of Mayor of San Vicente, Palawan. 9 A
motion for reconsideration was denied on April 23, 2001.10 Hence, the instant petition for review.

The pertinent portion of Section 60 of the Local Government Code of 1991 provides:

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

xxx xxx xxx

An elective local official may be removed from office on the grounds enumerated above by order of the proper court.
(Emphasis supplied)

It is clear from the last paragraph of the aforecited provision that the penalty of dismissal from service upon an erring elective
local official may be decreed only by a court of law. Thus, in Salalima, et al. v. Guingona, et al.,11 we held that "[t]he Office of the
President is without any power to remove elected officials, since such power is exclusively vested in the proper courts as
expressly provided for in the last paragraph of the aforequoted Section 60."

Article 124 (b), Rule XIX of the Rules and Regulations Implementing the Local Government Code, however, adds that – "(b) An
elective local official may be removed from office on the grounds enumerated in paragraph (a) of this Article [The grounds
enumerated in Section 60, Local Government Code of 1991] by order of the proper court or the disciplining authority whichever
first acquires jurisdiction to the exclusion of the other." The disciplining authority referred to pertains to the Sangguniang
Panlalawigan/Panlungsod/Bayan and the Office of the President.12

As held in Salalima,13 this grant to the "disciplining authority" of the power to remove elective local officials is clearly beyond the
authority of the Oversight Committee that prepared the Rules and Regulations. No rule or regulation may alter, amend, or
contravene a provision of law, such as the Local Government Code. Implementing rules should conform, not clash, with the law
that they implement, for a regulation which operates to create a rule out of harmony with the statute is a nullity. Even Senator
Aquilino Q. Pimentel, Jr., the principal author of the Local Government Code of 1991, expressed doubt as to the validity of Article
124 (b), Rule XIX of the implementing rules.14

Verily, the clear legislative intent to make the subject power of removal a judicial prerogative is patent from the deliberations in
the Senate quoted as follows:
 xxx xxx xxx

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

Senator Saguisag. For as long as that is open for some later disposition, may I just add the following thought: It seems to
me that instead of identifying only the proper regional trial court or the Sandiganbayan, and since we know that in the
case of a regional trial court, particularly, a case may be appealed or may be the subject of an injunction, in the framing
of this later on, I would like to suggest that we consider replacing the phrase "PROPER REGIONAL TRIAL COURT OR
THE SANDIGANBAYAN" simply by "COURTS". Kasi po, maaaring sabihin nila na mali iyong regional trial court o
ang Sandiganbayan.

Senator Pimentel. "OR THE PROPER COURT."

Senator Saguisag. "OR THE PROPER COURT."

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

Senator Saguisag. It is to be incorporated in the phraseology that will craft to capture the other ideas that have been
elevated.

xxx xxx x x x.15

It is beyond cavil, therefore, that the power to remove erring elective local officials from service is lodged exclusively with the
courts. Hence, Article 124 (b), Rule XIX, of the Rules and Regulations Implementing the Local Government Code, insofar as it
vests power on the "disciplining authority" to remove from office erring elective local officials, is void for being repugnant to the
last paragraph of Section 60 of the Local Government Code of 1991. The law on suspension or removal of elective public
officials must be strictly construed and applied, and the authority in whom such power of suspension or removal is vested must
exercise it with utmost good faith, for what is involved is not just an ordinary public official but one chosen by the people through
the exercise of their constitutional right of suffrage. Their will must not be put to naught by the caprice or partisanship of the
disciplining authority. Where the disciplining authority is given only the power to suspend and not the power to remove, it should
not be permitted to manipulate the law by usurping the power to remove.16 As explained by the Court in Lacson v. Roque:17

"…the abridgment of the power to remove or suspend an elective mayor is not without its own justification, and was, we
think, deliberately intended by the lawmakers. The evils resulting from a restricted authority to suspend or remove must
have been weighed against the injustices and harms to the public interests which would be likely to emerge from an
unrestrained discretionary power to suspend and remove."

WHEREFORE, in view of the foregoing, the instant petition for review is DENIED.

SO ORDERED.

G.R. No. 110220 May 18, 2000

PEOPLE OF THE PHILIPPINES, petitioner,

vs.
HON. RODOLFO V. TOLEDANO, in his capacity as Presiding Judge of the RTC, Branch 69 and ROLANDO BUNAO, accused in
Criminal Case No. RTC-1274-1, respondents.

BUENA, J.:

In this petition for certiorari and mandamus, petitioner seeks to (1) annul and set aside the Orders of the Regional Trial Court of
Zambales in Criminal Case No. RTC 1274-I, entitled "People of the Philippines versus Rolando Bunao," dated February 26, 1993
and April 12, 1993, which dismissed the information filed against private respondent Bunao and denied petitioner's motion for
reconsideration of the dismissal order, respectively; and (2) prevent respondent judge from hearing the case in the event of
reinstatement of the information.

On June 25, 1990, private respondent Rolando Bunao, while allegedly a member of the Sangguniang Bayan of Sta. Cruz,
Zambales and its Committee on Bids and Awards, entered into a lease contract with said municipality covering two (2) public
market stalls. As a consequence, two (2) administrative charges for violation of Section 3(h) of Republic Act No. 3019 1 docketed
as OMB-1-91-1482 and Republic Act No. 6713 docketed as OMB-ADM-1-91-0327 were filed against private respondent with the
Office of the Ombudsman for Luzon.
On October 12, 1992 the Office of the Ombudsman dismissed Administrative Case No. OMB-1-91-1482 but recommended the
prosecution of private respondent under Section 41, par.(1) in relation to Section 221 of Batas Pambansa Blg. 337 otherwise
known as the 1983 Local Government Code. Similarly, on November 24, 1992 Administrative Case No. OMB-ADM-1-91-0327
was likewise dismissed but respondent was enjoined to terminate and surrender the contract of lease he executed with the
municipality of Sta. Cruz, Zambales over stall nos. 115 and 116 at the new public market of said municipality.

On December 7, 1992 an information for violation of Section 41(1) in relation to Section 221 of Batas Pambansa Blg. 337 was
filed against private respondent before the Regional Trial Court of Iba, Zambales. The information reads:

That on or about the 25th day of June 1990, in the municipality of Sta. Cruz, province of Zambales, Philippines,
and within the jurisdiction of this Honorable Court the above-named accused being then a member of the
Sangguniang Bayan of Sta. Cruz, Zambales and the Committee on Bids and Awards of said Sanggunian and
taking advantage of said positions, did then and there willfully, unlawfully and feloniously execute a lease
contract with the municipality of Sta. Cruz, Zambales for two (2) market stalls at the public market thereat, in his
favor, to the detriment of other stall holders and business competitors.

CONTRARY TO LAW.

The pertinent provision of the old Local Government Code or B.P. Blg. 337 that was allegedly violated reads:

Sec. 41. Officials not to Engage in Business Transactions or Possess Pecuniary Interest . — It shall be unlawful
for any lawful government official, directly or indirectly, individually or as a member of a firm:

(1) To engage in any business transaction with the local government unit of
which he is an official or over which he has the power of supervision, or with
any of its authorized official, boards, agents, or attorneys, whereby money is to
be paid, or property or any other thing of value is to be transferred, directly or
indirectly, out of the resources of the local government unit to such person or
firm;

xxx xxx xxx

Sec. 221 of the same Code provides for the penal sanctions for such violation, thus:

Sec. 221. Engaging in Business Transactions or Possessing Pecuniary Interest. — Any local government official
and any person or persons dealing with him who violate the prohibitions provided in Section 41 hereof, shall be
punished with prision correccional or fine of not less than three thousand pesos (P3,000.00) nor more than ten
thousand pesos (P10,000.00), or both such imprisonment and fine at the discretion of the court.

Before arraignment, private respondent moved to dismiss the information on the ground that the charge had already become
moot and academic and that any criminal liability he may have incurred has been extinguished. 2 In an Order dated February 26,
1993, respondent Court dismissed the information, to wit:

Considering that:

1. The contract of lease is a bilateral contract perfected upon the meeting of the
minds of the lessor and the lessee, and therefore cannot be consummated
without the knowledge and consent of both, the complainant/lessor in his
capacity as Mayor of Municipality of Sta. Cruz, Zambales and the accused as
lessee. If any crime was consummated with the execution of the contract of
lease, then the information charging the offense should not have been only
against the accused but also against the complainant;

2. The charge against the accused in OMB-ADM-1-91-0327 by the Office of the

Deputy Ombudsman for Luzon was dismissed by the said office;

3. It will result in absurdity and inconsistency if the accused were made to

answer and be liable in OMB-1-91-1482 and absolved from any liability under
OMB-ADM-1-91-0327 when in both cases he is charged for violation of Section
41 of B.P. Blg. 337 otherwise known as the Local Government Code;

4. The re-election of the accused as a Kagawad in the 11 May 1992 elections;

 5. The decision of the Supreme Court in Aguinaldo vs. Santos (supra);

6. The Court should be cautious and vigilant so that it does not unknowingly
become an instrument of any protagonist in the political arena,

may the accused be still held liable under Section 41, par.(1) of BP Blg. 337. The answer is in the NEGATIVE.

WHEREFORE, the Information filed against the accused for violation of Section 41, par.(1) in relation to Section
221 of B.P. Blg. 337 is DISMISSED. The cashbond posted by the accused in the amount of P6,000.00 deposited
with the Clerk of Court on 15 January 1993 under O.R. No. 147387 is ordered reimbursed to the accused.

SO ORDERED. 3

On April 2, 1993, 2nd Assistant Provincial Prosecutor Benjamin A. Fadera filed a motion for reconsideration of the order of
dismissal. With the denial of the motion for reconsideration in an Order dated April 12, 1993, 4 Dorentino Z. Floresta, in his
capacity as Provincial Prosecutor of Zambales and Deputized Tanodbayan Prosecutor and Benjamin A. Fadera, in his capacity
as Assistant Provincial Prosecutor of Zambales and Deputized Tanodbayan Prosecutor filed, on June 2, 1993, this petition
for certiorari and mandamus questioning the Orders issued by the respondent court dismissing the information.

Initially, the procedural infirmity regarding the filing of this petition, having been filed by the provincial prosecutor and assistant
provincial prosecutor of Zambales instead of the Solicitor General who is authorized to bring and defend actions in behalf of the
People or Republic of the Philippines in cases brought before the Supreme Court or the Court of Appeals 5 was cured when this
Court, in a Resolution dated February 21, 1994, noted and granted the manifestation and motion filed by the Solicitor General
"stating that they adopt the petition as their own, and prays that the People be impleaded as party petitioner and the reliefs
prayed for in the petition be granted." In view thereof, we now consider the People as the sole petitioner in this case duly
represented by the Solicitor General.

The petition is meritorious.

As indicated above, respondent judge dismissed the information on the ground that the administrative case filed against private
respondent Bunao with the Office of the Ombudsman had been dismissed. In the memorandum filed by the Solicitor General
dated January 11, 1995, 6 said order of dismissal on the ground of extinction of criminal liability is assailed for having been issued
with grave abuse of discretion amounting to lack of jurisdiction on the part of respondent judge, thus:

The respondent court anchored its disposition in Criminal Case RTC No. 1274-I on dismissal of administrative
case OMB-1-91-1482 and OMB-ADM-1-91-0327 against private respondent Rolando Bunao. But Article 89 of
the Revised Penal Code enumerates the grounds for extinction of criminal liability; and, dismissal of an
administrative charge against accused is not one of them, thus:

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties,
liability therefor is extinguished only when the death of the offender occurs before the final
judgment;

2. By the service of the sentence;

3. By amnesty, which completely extinguishes the penalty and all its effects;

4. By absolute pardon;

5. By prescription of the crime;

6. By the prescription of the penalty;

7. By the marriage of the offended woman, as provided in Article 344 of this Code;

The law is clear and unequivocal. There is nothing in it which states that exoneration from an administrative
charge extinguishes criminal liability.
It is indeed a fundamental principle of administrative law that administrative cases are independent from criminal actions for the
same act or omission. 7 Besides, the reliance made by respondent judge on the re-election of private respondent as Kagawad in
the May 1992 election so as to warrant the dismissal of the information filed against him, citing Aguinaldo vs. Santos 8 is
misplaced. The ruling in said case which forbids the removal from office of a public official for administrative misconduct
committed during a prior term, finds no application to criminal cases, pending against said public officer.

Finally, Republic Act 7160, otherwise known as the Local Government Code of 1991, which repealed B.P. Blg. 337 reenacted in
its Section 89 the legal provision of Section 41 of B.P. Blg. 337 under which private respondent Bunao was charged and
penalizes the same act previously penalized under the repealed law, such that the act committed before the reenactment
continuous to be a crime. 9 Hence, prosecution will proceed under the provisions of Section 89 in relation to Section 514 of R.A.
7160. 10

WHEREFORE, the petition is GRANTED and ACCORDINGLY, the orders of respondent judge dated February 26, 1993 and
April 12, 1993 are hereby REVERSED and SET ASIDE and the lower court is ordered to proceed with the case.

SO ORDERED.

G.R. No. 164185 July 23, 2008

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
THE SANDIGANBAYAN (FOURTH DIVISION) and ALEJANDRO A. VILLAPANDO, Respondents.

DECISION

QUISUMBING, J.:

This petition for certiorari filed by the Office of the Ombudsman through the Office of the Special Prosecutor assails the May 20,
2004 Decision1 of the Sandiganbayan, Fourth Division, in Criminal Case No. 27465, granting private respondent Alejandro A.
Villapando’s Demurrer to Evidence2 and acquitting him of the crime of unlawful appointment under Article 244 3 of the Revised
Penal Code.

The facts culled from the records are as follows:

During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente, Palawan. Orlando M. Tiape (now
deceased), a relative of Villapando’s wife, ran for Municipal Mayor of Kitcharao, Agusan del Norte. Villapando won while Tiape
lost. Thereafter, on July 1, 1998, Villapando designated Tiape as Municipal Administrator of the Municipality of San Vicente,
Palawan.4 A Contract of Consultancy5 dated February 8, 1999 was executed between the Municipality of San Vicente, Palawan
and Tiape whereby the former employed the services of Tiape as Municipal Administrative and Development Planning
Consultant in the Office of the Municipal Mayor for a period of six months from January 1, 1999 to June 30, 1999 for a monthly
salary of ₱26,953.80.

On February 4, 2000, Solomon B. Maagad and Renato M. Fernandez charged Villapando and Tiape for violation of Article 244 of
the Revised Penal Code before the Office of the Deputy Ombudsman for Luzon. 6 The complaint was resolved against Villapando
and Tiape and the following Information7 dated March 19, 2002 charging the two with violation of Article 244 of the Revised
Penal Code was filed with the Sandiganbayan:

xxxx

That on or about 01 July 1998 or sometime prior or subsequent thereto, in San Vicente, Palawan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ALEJANDRO A. VILLAPANDO, a public officer, being then the
Municipal Mayor of San Vicente, Palawan, committing the crime herein charged, in relation to and taking advantage of his official
functions, conspiring and confederating with accused Orlando M. Tiape, did then and there wilfully, unlawfully and feloniously
appoint ORLANDO M. TIAPE as a Municipal Administrator of San Vicente, Palawan, accused Alejandro A. Villapando knowing
fully well that Orlando Tiape lacks the qualification as he is a losing mayoralty candidate in the Municipality of Kitcharao, Agusan
del Norte during the May 1998 elections, hence is ineligible for appointment to a public office within one year (1) from the date of
the elections, to the damage and prejudice of the government and of public interest.

CONTRARY TO LAW.8

The Information was docketed as Criminal Case No. 27465 and raffled to the Fourth Division of the Sandiganbayan.
Upon arraignment on September 3, 2002, Villapando pleaded not guilty. Meanwhile, the case against Tiape was dismissed after
the prosecution proved his death which occurred on July 26, 2000.9

After the prosecution rested its case, Villapando moved for leave to file a demurrer to evidence. The Sandiganbayan, Fourth
Division denied his motion but gave him five days within which to inform the court in writing whether he will nonetheless submit
his Demurrer to Evidence for resolution without leave of court.10 Villapando then filed a Manifestation of Intent to File Demurrer to
Evidence,11 and was given 15 days from receipt to file his Demurrer to Evidence. He filed his Demurrer to Evidence 12 on October
28, 2003.

In a Decision dated May 20, 2004, the Sandiganbayan, Fourth Division found Villapando’s Demurrer to Evidence meritorious, as
follows:

The Court found the "Demurrer to Evidence" impressed with merit.

Article 244 of the Revised Penal Code provides:

Article 244. Unlawful appointments.–Any public officer who shall knowingly nominate or appoint to any public office any person
lacking the legal qualifications therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.
(underscoring supplied)

A dissection of the above-cited provision [yields] the following elements, to wit:

1. the offender was a public officer;

2. accused nominated or appointed a person to a public office;

3. such person did not have the legal qualifications [therefor;] and,

4. the offender knew that his nominee or appointee did not have the legal qualifications at the time he made the
nomination or appointment.

Afore-cited elements are hereunder discussed.

1. Mayor Villapando was the duly elected Municipal Mayor of San Vicente, Palawan when the alleged crime was
committed.

2. Accused appointed Orlando Tiape as Municipal Administrator of the Municipality of San Vicente, Palawan.

3. There appears to be a dispute. This Court is now called upon to determine whether Orlando Tiape, at the time of [his]
designation as Municipal Administrator, was lacking in legal qualification. Stated differently, does "legal qualification"
contemplate the one (1) year prohibition on appointment as provided for in Sec. 6, Art. IX-B of the Constitution and Sec.
94 (b) of the Local Government Code, mandating that a candidate who lost in any election shall not, within one year after
such election, be appointed to any office in the Government?

The Court answers in the negative.

In ascertaining the legal qualifications of a particular appointee to a public office, "there must be a law providing for the
qualifications of a person to be nominated or appointed" therein. To illuminate further, Justice Rodolfo Palattao succinctly
discussed in his book that the qualification of a public officer to hold a particular position in the government is provided for by law,
which may refer to educational attainment, civil service eligibility or experience:

As the title suggests, the offender in this article is a public officer who nominates or appoints a person to a public office. The
person nominated or appointed is not qualified and his lack of qualification is known to the party making the nomination or
appointment. The qualification of a public officer to hold a particular position in the government is provided by law. The purpose
of the law is to ensure that the person appointed is competent to perform the duties of the office, thereby promoting efficiency in
rendering public service.

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

"Section 480. Qualifications, Terms, Powers and Duties.–(a) No person shall be appointed administrator unless he is a citizen of
the Philippines, a resident of the local government unit concerned, of good moral character, a holder of a college degree
preferably in public administration, law, or any other related course from a recognized college or university, and a first grade civil
service eligible or its equivalent. He must have acquired experience in management and administration work for at least five (5)
years in the case of the provincial or city administrator, and three (3) years in the case of the municipal administrator.

xxx xxx x x x"

It is noteworthy to mention that the prosecution did not allege much less prove that Mayor Villapando’s appointee, Orlando Tiape,
lacked any of the qualifications imposed by law on the position of Municipal Administrator. Prosecution’s argument rested on the
assertion that since Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal qualifications.

It bears stressing that temporary prohibition is not synonymous with absence or lack of legal qualification. A person who
possessed the required legal qualifications for a position may be temporarily disqualified for appointment to a public position by
reason of the one year prohibition imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified
for appointment, but could not be appointed as he lacked any or all of the required legal qualifications imposed by law.

4. Anent the last element, this Court deems it unnecessary to discuss the same.

WHEREFORE, finding the "Demurrer to Evidence" filed by Mayor Villapando with merit, the same is hereby GRANTED. Mayor
Villapando is hereby ACQUITTED of the crime charged.

SO ORDERED.13

Thus, this petition by the Office of the Ombudsman, through the Office of the Special Prosecutor, representing the People of the
Philippines.

Villapando was required by this Court to file his comment to the petition. Despite several notices, however, he failed to do so and
in a Resolution14 dated June 7, 2006, this Court informed him that he is deemed to have waived the filing of his comment and the
case shall be resolved on the basis of the pleadings submitted by the petitioner.

Petitioner raises the following issues:

I.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
OR EXCESS OF JURISDICTION IN INTERPRETING THAT THE "LEGAL DISQUALIFICATION" IN ARTICLE 244 OF
THE REVISED PENAL CODE DOES NOT INCLUDE THE ONE YEAR PROHIBITION IMPOSED ON LOSING
CANDIDATES AS ENUNCIATED IN THE CONSTITUTION AND THE LOCAL GOVERNMENT CODE.

II.

WHETHER THE RESPONDENT COURT ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF
OR EXCESS OF JURISDICTION IN GIVING DUE COURSE TO, AND EVENTUALLY GRANTING, THE DEMURRER
TO EVIDENCE.15

Simply, the issue is whether or not the Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to lack
or excess of jurisdiction.

Petitioner argues that the Sandiganbayan, Fourth Division acted with grave abuse of discretion amounting to lack or excess of
jurisdiction because its interpretation of Article 244 of the Revised Penal Code does not complement the provision on the one-
year prohibition found in the 1987 Constitution and the Local Government Code, particularly Section 6, Article IX of the 1987
Constitution which states no candidate who has lost in any election shall, within one year after such election, be appointed to any
office in the government or any government-owned or controlled corporation or in any of their subsidiaries. Section 94(b) of the
Local Government Code of 1991, for its part, states that except for losing candidates in barangay elections, no candidate who
lost in any election shall, within one year after such election, be appointed to any office in the government or any government-
owned or controlled corporation or in any of their subsidiaries. Petitioner argues that the court erred when it ruled that temporary
prohibition is not synonymous with the absence of lack of legal qualification.
The Sandiganbayan, Fourth Division held that the qualifications for a position are provided by law and that it may well be that
one who possesses the required legal qualification for a position may be temporarily disqualified for appointment to a public
position by reason of the one-year prohibition imposed on losing candidates. However, there is no violation of Article 244 of the
Revised Penal Code should a person suffering from temporary disqualification be appointed so long as the appointee possesses
all the qualifications stated in the law.

There is no basis in law or jurisprudence for this interpretation. On the contrary, legal disqualification in Article 244 of the Revised
Penal Code simply means disqualification under the law. Clearly, Section 6, Article IX of the 1987 Constitution and Section 94(b)
of the Local Government Code of 1991 prohibits losing candidates within one year after such election to be appointed to any
office in the government or any government-owned or controlled corporations or in any of their subsidiaries.

Article 244 of the Revised Penal Code states:

Art. 244. Unlawful appointments. — Any public officer who shall knowingly nominate or appoint to any public office any person
lacking the legal qualifications therefore, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.

Section 94 of the Local Government Code provides:

SECTION 94. Appointment of Elective and Appointive Local Officials; Candidates Who Lost in Election. - (a) No elective or
appointive local official shall be eligible for appointment or designation in any capacity to any public office or position during his
tenure.

Unless otherwise allowed by law or by the primary functions of his position, no elective or appointive local official shall hold any
other office or employment in the government or any subdivision, agency or instrumentality thereof, including government-owned
or controlled corporations or their subsidiaries.

(b) Except for losing candidates in barangay elections, no candidate who lost in any election shall, within one (1) year after such
election, be appointed to any office in the government or any government-owned or controlled corporations or in any of their
subsidiaries.

Section 6, Article IX-B of the 1987 Constitution states:

Section 6. No candidate who has lost in any election shall, within one year after such election, be appointed to any office in the
Government or any Government-owned or controlled corporations or in any of their subsidiaries.

Villapando’s contention and the Sandiganbayan, Fourth Division’s interpretation of the term legal disqualification lack cogency.
Article 244 of the Revised Penal Code cannot be circumscribed lexically. Legal disqualification cannot be read as excluding
temporary disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of the 1987 Constitution
and Section 94(b) of the Local Government Code of 1991.

Although this Court held in the case of People v. Sandiganbayan16 that once a court grants the demurrer to evidence, such order
amounts to an acquittal and any further prosecution of the accused would violate the constitutional proscription on double
jeopardy, this Court held in the same case that such ruling on the matter shall not be disturbed in the absence of a grave abuse
of discretion.1avvphi1

Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is
equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty
or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in
an arbitrary and despotic manner by reason of passion and hostility. 17

In this case, the Sandiganbayan, Fourth Division, in disregarding basic rules of statutory construction, acted with grave abuse of
discretion. Its interpretation of the term legal disqualification in Article 244 of the Revised Penal Code defies legal cogency. Legal
disqualification cannot be read as excluding temporary disqualification in order to exempt therefrom the legal prohibitions under
the 1987 Constitution and the Local Government Code of 1991. We reiterate the legal maxim ubi lex non distinguit nec nos
distinguere debemus. Basic is the rule in statutory construction that where the law does not distinguish, the courts should not
distinguish. There should be no distinction in the application of a law where none is indicated.

Further, the Sandiganbayan, Fourth Division denied Villapando’s Motion for Leave to File Demurrer to Evidence yet
accommodated Villapando by giving him five days within which to inform it in writing whether he will submit his demurrer to
evidence for resolution without leave of court.
Notably, a judgment rendered with grave abuse of discretion or without due process is void, does not exist in legal contemplation
and, thus, cannot be the source of an acquittal.18

The Sandiganbayan, Fourth Division having acted with grave abuse of discretion in disregarding the basic rules of statutory
construction resulting in its decision granting Villapando’s Demurrer to Evidence and acquitting the latter, we can do no less but
declare its decision null and void.

WHEREFORE, the petition is GRANTED. The Decision dated May 20, 2004 of the Sandiganbayan, Fourth Division, in Criminal
Case No. 27465, granting private respondent Alejandro A. Villapando’s Demurrer to Evidence and acquitting him of the crime of
unlawful appointment under Article 244 of the Revised Penal Code is hereby declared NULL and VOID. Let the records of this
case be remanded to the Sandiganbayan, Fourth Division, for further proceedings.

SO ORDERED.

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. 135150 July 28, 1999

ROMEO LONZANIDA, petitioner,

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

GONZAGA-REYES, J.:

This petition for certiorari under Rule 65 of the Rules of Court seeks to set aside the resolutions issued by the COMELEC First
Division dated May 21, 1998 and by the COMELEC En Banc dated August 11, 1998 in SPA 98-190 entitled, In the matter of the
Petition to Disqualify Mayoralty Candidate Romeo Lonzanida of San Antonio, Zambales, Eufemio Muli, petitioner, vs. Romeo
Lonzanida, respondent. The assailed resolutions declared herein petitioner Romeo Lonzanida disqualified to run for Mayor in the
municipality of San Antonio, Zambales in the May 1998 elections and that all votes cast in his favor shall not be counted and if he
has been proclaimed winner the said proclamation is declared null and void. 1âwphi1.nêt

Petitioner Romeo Lonzanida was duly elected and served two consecutive terms as municipal mayor of San Antonio, Zambales
prior to the May 8, 1995 elections. In the May 1995 elections Lonzanida ran for mayor of San Antonio, Zambales and was again
proclaimed winner. He assumed office and discharged the duties thereof. His proclamation in 1995 was however contested by
his then opponent Juan Alvez who filed an election protest before the Regional Trial Court of Zambales, which in a decision
dated January 9, 1997 declared a failure of elections. The court ruled:

PREMISES CONSIDERED, this court hereby renders judgment declaring the results of the election for the office
of the mayor in San Antonio, Zambales last May 8, 1995 as null and void on the ground that there was a failure
of election.

Accordingly, the office of the mayor of the Municipality of San Antonio, Zambales is hereby declared vacant.

Both parties appealed to the COMELEC. On November 13, 1997 the COMELEC resolved the election protest filed by Alvez and
after a revision and re-appreciation of the contested ballots declared Alvez the duly elected mayor of San Antonio, Zambales by
plurality of votes cast in his favor totaling P1,720 votes as against 1,488 votes for Lonzanida. On February 27, 1998 the
COMELEC issued a writ of execution ordering Lonzanida to vacate the post, which he obeyed, and Alvez assumed office for the
remainder of the term.

In the May 11, 1998 elections Lonzanida again filed his certificate of candidacy for mayor of San Antonio. On April 21, 1998 his
opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of San Antonio in the 1998 elections
on the ground that he had served three consecutive terms in the same post. On May 13, 1998, petitioner Lonzanida was
proclaimed winner. On May 21, 1998 the First Division of the COMELEC issued the questioned resolution granting the petition
for disqualification upon a finding that Lonzanida had served three consecutive terms as mayor of San Antonio, Zambales and he
is therefore disqualified to run for the same post for the fourth time. The COMELEC found that Lonzanida's assumption of office
by virtue of his proclamation in May 1995, although he was later unseated before the expiration of the term, should be counted
as service for one full term in computing the three term limit under the Constitution and the Local Government Code. The finding
of the COMELEC First Division was affirmed by the COMELEC En Banc in a resolution dated August 11, 1998.

Petitioner Lonzanida challenges the validity of the COMELEC resolutions finding him disqualified to run for mayor of San Antonio
Zambales in the 1998 elections. He maintains that he was duly elected mayor for only two consecutive terms and that his
assumption of office in 1995 cannot be counted as service of a term for the purpose of applying the three term limit for local
government officials, because he was not the duly elected mayor of San Antonio in the May 1995 elections as evidenced by the
COMELEC decision dated November 13, 1997 in EAC No. 6-97 entitled Juan Alvez, Protestant-Appellee vs. Romeo Lonzanida,
Protestee-Appellant; wherein the COMELEC declared Juan Alvez as the duly elected mayor of San Antonio, Zambales.
Petitioner also argues that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was
proclaimed winner in the 1998 mayoral elections; as the proper remedy is a petition for quo warranto with the appropriate
regional trial court under Rule 36 of the COMELEC Rules of Procedure.

Private respondent Eufemio Muli filed comment to the petition asking this court to sustain the questioned resolutions of the
COMELEC and to uphold its jurisdiction over the petition for disqualification. The private respondent states that the petition for
disqualification was filed on April 21, 1998 or before the May 1998 mayoral elections. Under section 6, RA 6646 and Rule 25 of
the COMELEC Rules of Procedure petitions for disqualification filed with the COMELEC before the elections and/or proclamation
of the party sought to be disqualified may still be heard and decided by the COMELEC after the election and proclamation of the
said party without distinction as to the alleged ground for disqualification, whether for acts constituting an election offense or for
ineligibility. Accordingly, it is argued that the resolutions of the COMELEC on the merits of the petition for disqualification were
issued within the commission's jurisdiction. As regards the merits of the case, the private respondent maintains that the
petitioner's assumption of office in 1995 should be considered as service of one full term because he discharged the duties of
mayor for almost three years until March 1, 1998 or barely a few months before the next mayoral elections.

The Solicitor-General filed comment to the petition for the respondent COMELEC praying for the dismissal of the petition. The
Solicitor-General stressed that section 8, Art. X of the Constitution and section 43 (b), Chapter 1 of the Local Government Code
which bar a local government official from serving more than three consecutive terms in the same position speaks of "service of a
term" and so the rule should be examined in this light. The public respondent contends that petitioner Lonzanida discharged the
rights and duties of mayor from 1995 to 1998 which should be counted as service of one full term, albeit he was later unseated,
because he served as mayor for the greater part of the term. The issue of whether or not Lonzanida served as a de jure or de
facto mayor for the 1995-1998 term is inconsequential in the application of the three term limit because the prohibition speaks or
"service of a term" which was intended by the framers of the Constitution to foil any attempt to monopolize political power. It is
likewise argued by the respondent that a petition for quo warranto with the regional trial court is proper when the petition for
disqualification is filed after the elections and so the instant petition for disqualification which was filed before the elections may
be resolved by the COMELEC thereafter regardless of the imputed basis of disqualification.

The petitioner filed Reply to the comment. It is maintained that the petitioner could not have served a valid term from 1995 to
1998 although he assumed office as mayor for that period because he was not lawfully elected to the said office. Moreover, the
petitioner was unseated before the expiration of the term and so his service for the period cannot be considered as one full term.
As regards the issue of jurisdiction, the petitioner reiterated in his Reply that the COMELEC ceased to have jurisdiction to hear
the election protest after the petitioner's proclamation.

The petition has merit.

Sec. 8, Art. X of the Constitution provides:

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

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

Sec. 43. Term of Office.

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

The issue before us is whether petitioner Lonzanida's assumption of office as mayor of San Antonio Zambales from May 1995 to
March 1998 may be considered as service of one full term for the purpose of applying the three-term limit for elective local
government officials.

The records of the 1986 Constitutional Commission show that the three-term limit which is now embodied in section 8, Art. X of
the Constitution was initially proposed to be an absolute bar to any elective local government official from running for the same
position after serving three consecutive terms. The said disqualification was primarily intended to forestall the accumulation of
massive political power by an elective local government official in a given locality in order to perpetuate his tenure in office. The
delegates also considered the need to broaden the choices of the electorate of the candidates who will run for office, and to
infuse new blood in the political arena by disqualifying officials from running for the same office after a term of nine years. The
mayor was compared by some delegates to the President of the Republic as he is a powerful chief executive of his political
territory and is most likely to form a political dynasty. 1 The drafters however, recognized and took note of the fact that some local
government officials run for office before they reach forty years of age; thus to perpetually bar them from running for the same
office after serving nine consecutive years may deprive the people of qualified candidates to choose from. As finally voted upon,
it was agreed that an elective local government official should be barred from running for the same post after three consecutive
terms. After a hiatus of at least one term, he may again run for the same office.2

The scope of the constitutional provision barring elective local officials with the exception of barangay officials from serving more
than three consecutive terms was discussed at length in the case of Benjamin Borja, Jr.; vs. COMELEC and Jose
Capco, Jr.3 where the issue raised was whether a vice-mayor who succeeds to the office of the mayor by operation of law upon
the death of the incumbent mayor and served the remainder of the term should be considered to have served a term in that office
for the purpose of computing the three term limit. This court pointed out that from the discussions of the Constitutional
Convention it is evident that the delegates proceeded from the premise that the official's assumption of office is by reason of
election. This Court stated:4

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

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

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

MR. DAVIDE. That is correct.

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

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

xxx xxx xxx

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

This Court held that the two conditions for the application of the disqualification must concur: 1) that the official concerned has
been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive
terms. It stated:

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

It is not disputed that the petitioner was previously elected and served two consecutive terms as mayor of San Antonio Zambales
prior to the May 1995 mayoral elections. In the May 1995 elections he again ran for mayor of San Antonio, Zambales and was
proclaimed winner. He assumed office and discharged the rights and duties of mayor until March 1998 when he was ordered to
vacate the post by reason of the COMELEC decision dated November 13, 1997 on the election protest against the petitioner
which declared his opponent Juan Alvez, the duly elected mayor of San Antonio. Alvez served the remaining portion of the 1995-
1998 mayoral term.

The two requisites for the application of the three term rule are absent. First, the petitioner cannot be considered as having been
duly elected to the post in the May 1995 elections, and second, the petitioner did not fully serve the 1995-1998 mayoral term by
reason of involuntary relinquishment of office. After a re-appreciation and revision of the contested ballots the COMELEC itself
declared by final judgment that petitioner Lonzanida lost in the May 1995 mayoral elections and his previous proclamation as
winner was declared null and void. His assumption of office as mayor cannot be deemed to have been by reason of a valid
election but by reason of a void proclamation. It has been repeatedly held by this court that a proclamation subsequently
declared void is no proclamation at all 5 and while a proclaimed candidate may assume office on the strength of the proclamation
of the Board of Canvassers he is only a presumptive winner who assumes office subject to the final outcome of the election
protest.6 Petitioner Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to March 1998 because
he was not duly elected to the post; he merely assumed office as presumptive winner, which presumption was later overturned
by the COMELEC when it decided with finality that Lonzanida lost in the May 1995 mayoral elections.

Second, the petitioner cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate his post
before the expiration of the term. The respondents' contention that the petitioner should be deemed to have served one full term
from May 1995-1998 because he served the greater portion of that term has no legal basis to support it; it disregards the second
requisite for the application of the disqualification, i.e., that he has fully served three consecutive terms. The second sentence of
the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of time shall not be considered
as an interruption in the continuity of service for the full term for which he was elected. "The clear intent of the framers of the
constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the same time
respect the people's choice and grant their elected official full service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from
office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The
petitioner vacated his post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with
the legal process of writ of execution issued by the COMELEC to that effect. Such involuntary severance from office is an
interruption of continuity of service and thus, the petitioner did not fully serve the 1995-1998 mayoral term.

In sum, the petitioner was not the duly elected mayor and that he did not hold office for the full term; hence, his assumption of
office from 1995 to March 1998 cannot be counted as a term for purposes of computing the three term limit. The Resolution of
the COMELEC finding him disqualified on this ground to run in the May 1998 mayoral elections should therefore be set aside.

The respondents harp on the delay in resolving the election protest between petitioner and his then opponent Alvez which took
roughly about three years and resultantly extended the petitioners incumbency in an office to which he was not lawfully elected.
We note that such delay cannot be imputed to the petitioner. There is no specific allegation nor proof that the delay was due to
any political maneuvering on his part to prolong his stay in office. Moreover, protestant Alvez, was not without legal recourse to
move for the early resolution of the election protest while it was pending before the regional trial court or to file a motion for the
execution of the regional trial court's decision declaring the position of mayor vacant and ordering the vice-mayor to assume
office while the appeal was pending with the COMELEC. Such delay which is not here shown to have intentionally sought by the
petitioner to prolong his stay in office cannot serve as basis to bar his right to be elected and to serve his chosen local
government post in the succeeding mayoral election.

The petitioner's contention that the COMELEC ceased to have jurisdiction over the petition for disqualification after he was
proclaimed winner is without merit. The instant petition for disqualification was filed on April 21, 1998 or before the May 1998
elections and was resolved on May 21, 1998 or after the petitioner's proclamation. It was held in the case of Sunga
vs. COMELEC and Trinidad7 that the proclamation nor the assumption of office of a candidate against whom a petition for
disqualification is pending before the COMELEC does not divest the COMELEC of jurisdiction to continue hearing the case and
to resolve it on the merits.

Sec. 6 of RA 6646 specifically mandates that:

Sec. 6. Effects of disqualification Case. — any candidate who has been declared by final judgment to be
disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason a candidate
is not declared by final judgment before an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the court or commission shall continue with the trial and hearing of the
action, inquiry or protest and, upon motion of the complainant or any intervenor, may during the pendency
thereof order the suspension of the proclamation of such candidate whenever the evidence of his guilt is strong.

This court held that the clear legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion i.e., until judgment is rendered. The outright dismissal of the petition for disqualification filed before the
election but which remained unresolved after the proclamation of the candidate sought to be disqualified will unduly reward the
said candidate and may encourage him to employ delaying tactics to impede the resolution of the petition until after he has been
proclaimed.

The court stated:

Clearly, the legislative intent is that the COMELEC should continue the trial and hearing of the disqualification
case to its conclusion i.e., until judgment is rendered thereon. The word "shall" signified that this requirement of
the law is mandatory, operating to impose a positive duty which must be enforced. The implication is that the
COMELEC is left with no discretion but to proceed with the disqualification case even after the election. Thus, in
providing for the outright dismissal of the disqualification case which remains unresolved after the
election, Silvestre vs. Duavit in effect disallows what R.A. No. 6646 imperatively requires. This amounts to
 a quasi-judicial legislation by the COMELEC which cannot be countenanced and is invalid for having been
issued beyond the scope of its authority. Interpretative rulings of quasi-judicial bodies or administrative agencies
must always be in perfect harmony with statutes and should be for the sole purpose of carrying their general
provisions into effect. By such interpretative or administrative rulings, of course, the scope of the law itself
cannot be limited. Indeed, a quasi-judicial body or an administrative agency for that matter cannot amend an act
of Congress. Hence, in case of a discrepancy between the basic law and an interpretative or administrative
ruling, the basic law prevails.

Besides, the deleterious effect of the Silvestre ruling is not difficult to foresee. A candidate guilty of election
offenses would be undeservedly rewarded, instead of punished, by the dismissal of the disqualification case
against him simply because the investigating body was unable, for any reason caused upon it, to determine
before the election if the offenses were indeed committed by the candidate sought to be disqualified. All that the
erring aspirant would need to do is to employ delaying tactics so that the disqualification case based on the
commission of election offenses would not be decided before the election. This scenario is productive of more
fraud which certainly is not the main intent and purpose of the law.

The fact that Trinidad was already proclaimed and had assumed the position of mayor did not divest the
COMELEC of authority and jurisdiction to continue the hearing and eventually decide the disqualification case.
In Aguam v. COMELEC this Court held —

Time and again this Court has given its imprimatur on the principle that COMELEC is with
authority to annul any canvass and proclamation which was illegally made. The fact that a
candidate proclaimed has assumed office, we have said, is no bar to the exercise of such
power. It of course may not be availed of where there has been a valid proclamation. Since
private respondent's petition before the COMELEC is precisely directed at the annulment of the
canvass and proclamation, we perceive that inquiry into this issue is within the area allocated by
the Constitution and law to COMELEC . . . Really, were a victim of a proclamation to be
precluded from challenging the validity thereof after that proclamation and the assumption of
office thereunder, baneful effects may easily supervene.

It must be emphasized that the purpose of a disqualification proceeding is to prevent the candidate from running
or, if elected. From serving, or to prosecute him for violation of the election laws. Obviously, the fact that a
candidate has been proclaimed elected does not signify that his disqualification is deemed condoned and may
no longer be the subject of a separate investigation .

Accordingly, the petition is granted. The assailed resolutions of the COMELEC declaring petitioner Lonzanida disqualified to run
for mayor in the 1998 mayoral elections are hereby set aside.1âwphi1.nêt

SO ORDERED.

G.R. No. 147927 February 4, 2002

RAYMUNDO M. ADORMEO, petitioner,

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

DECISION

QUISUMBING, J.:

Before us is a petition for certiorari, with a prayer for a writ of preliminary injunction and/or temporary restraining order, to nullify
and set aside the resolution dated May 9, 2001 of public respondent Commission on Elections in Comelec SPA No. 01-055,
which granted the motion for reconsideration and declared private respondent Ramon Y. Talaga, Jr., qualified to run for Mayor in
Lucena City for the May 14, 2001 election. Petitioner prays that votes cast in private respondent’s favor should not be counted;
and should it happen that private respondent had been already proclaimed the winner, his proclamation should be declared null
and void.

The uncontroverted facts are as follows:

Petitioner and private respondent were the only candidates who filed their certificates of candidacy for mayor of Lucena City in
the May 14, 2001 elections. Private respondent was then the incumbent mayor.
Private respondent Talaga, Jr. was elected mayor in May 1992. He served the full term. Again, he was re-elected in 1995-1998.
In the election of 1998, he lost to Bernard G. Tagarao. In the recall election of May 12, 2000, he again won and served the
unexpired term of Tagarao until June 30, 2001.

On March 2, 2001, petitioner filed with the Office of the Provincial Election Supervisor, Lucena City a Petition to Deny Due
Course to or Cancel Certificate of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on the ground that the latter was
elected and had served as city mayor for three (3) consecutive terms as follows: (1) in the election of May 1992, where he served
the full term; (2) in the election of May 1995, where he again served the full term; and, (3) in the recall election of May 12, 2000,
where he served only the unexpired term of Tagarao after having lost to Tagarao in the 1998 election. Petitioner contended that
Talaga’s candidacy as Mayor constituted a violation of Section 8, Article X of the 1987 Constitution which provides:

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

On March 9, 2001, private respondent responded that he was not elected City Mayor for three (3) consecutive terms but only for
two (2) consecutive terms. He pointed to his defeat in the 1998 election by Tagarao. Because of his defeat the consecutiveness
of his years as mayor was interrupted, and thus his mayorship was not for three consecutive terms of three years each.
Respondent added that his service from May 12, 2001 until June 30, 2001 for 13 months and eighteen (18) days was not a full
term, in the contemplation of the law and the Constitution. He cites Lonzanida vs. COMELEC, G.R. No. 135150, 311 SCRA 602,
611 (1999), as authority to the effect that to apply disqualification under Section 8, Article X of the Constitution, two (2) conditions
must concur, to wit: (a) that the official concerned has been elected for three consecutive terms in the same local government
post, and (b) that he has fully served three (3) consecutive terms.

On April 20, 2001, the COMELEC, through the First Division, found private respondent Ramon Y. Talaga, Jr. disqualified for the
position of city mayor on the ground that he had already served three (3) consecutive terms, and his Certificate of Candidacy
was ordered withdrawn and/or cancelled.

On April 27, 2001, private respondent filed a motion for reconsideration reiterating that "three (3) consecutive terms" means
continuous service for nine (9) years and that the two (2) years service from 1998 to 2000 by Tagarao who defeated him in the
election of 1998 prevented him from having three consecutive years of service. He added that Tagarao’s tenure from 1998 to
2000 could not be considered as a continuation of his mayorship. He further alleged that the recall election was not a regular
election, but a separate special election specifically to remove incompetent local officials.

On May 3, 2001, petitioner filed his Opposition to private respondent’s Motion for Reconsideration stating therein that serving the
unexpired term of office is considered as one (1) term.1 Petitioner further contended that Article 8 of the Constitution speaks of
"term" and does not mention "tenure". The fact that private respondent was not elected in the May 1998 election to start a term
that began on June 30, 1998 was of no moment, according to petitioner, and what matters is that respondent was elected to an
unexpired term in the recall election which should be considered one full term from June 30, 1998 to June 30, 2001.

On May 9, 2001, the COMELEC en banc ruled in favor of private respondent Ramon Y. Talaga, Jr.. It reversed the First
Division’s ruling and held that 1) respondent was not elected for three (3) consecutive terms because he did not win in the May
11, 1998 elections; 2) that he was installed only as mayor by reason of his victory in the recall elections; 3) that his victory in the
recall elections was not considered a term of office and is not included in the 3-term disqualification rule, and 4) that he did not
fully serve the three (3) consecutive terms, and his loss in the May 11, 1998 elections is considered an interruption in the
continuity of his service as Mayor of Lucena City.

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

Petitioner is now before this Court, raising the sole issue:

WHETHER OR NOT PUBLIC RESPONDENT COMELEC ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION WHEN IT ISSUED ITS RESOLUTION DATED MAY 9, 2001, DECLARING PRIVATE
RESPONDENT RAMON Y. TALAGA, JR., QUALIFIED TO RUN FOR MAYOR IN LUCENA CITY FOR THE MAY 14, 2001
ELECTIONS.2

Stated differently, was private respondent disqualified to run for mayor of Lucena City in the May 14, 2001 elections? 3 This issue
hinges on whether, as provided by the Constitution, he had already served three consecutive terms in that office.

Petitioner contends that private respondent was disqualified to run for city mayor by reason of the three-term rule because the
unexpired portion of the term of office he served after winning a recall election, covering the period May 12, 2000 to June 30,
2001 is considered a full term. He posits that to interpret otherwise, private respondent would be serving four (4) consecutive
terms of 10 years, in violation of Section 8, Article X of 1987 Constitution4 and Section 43 (b) of R.A. 7160, known as the Local
Government Code.

Section 43. Term of Office.—

xxx

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

Private respondent, in turn, maintains that his service as city mayor of Lucena is not consecutive. He lost his bid for a second re-
election in 1998 and between June 30, 1998 to May 12, 2000, during Tagarao’s incumbency, he was a private citizen, thus he
had not been mayor for 3 consecutive terms.

In its comment, the COMELEC restated its position that private respondent was not elected for three (3) consecutive terms
having lost his third bid in the May 11, 1998 elections, said defeat is an interruption in the continuity of service as city mayor of
Lucena.

The issue before us was already addressed in Borja, Jr. vs. COMELEC, 295 SCRA 157, 169 (1998), where we held,

To recapitulate, the term limit for elective local officials must be taken to refer to the right to be elected as well as the right to
serve in the same elective position.1âwphi1 Consequently, it is not enough that an individual has served three consecutive terms
in an elective local office, he must also have been elected to the same position for the same number of times before the
disqualification can apply. This point can be made clearer by considering the following case or situation:

xxx

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

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

xxx

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

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

This Court held that the two conditions for the application of the disqualification must concur: a) that the official concerned has
been elected for three consecutive terms in the same local government post and 2) that he has fully served three consecutive
terms.

Accordingly, COMELEC’s ruling that private respondent was not elected for three (3) consecutive terms should be upheld. For
nearly two years he was a private citizen. The continuity of his mayorship was disrupted by his defeat in the 1998 elections.

Patently untenable is petitioner’s contention that COMELEC in allowing respondent Talaga, Jr. to run in the May 1998 election
violates Article X, Section 8 of 1987 Constitution.5 To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas,
a Constitutional Commission member, stating that in interpreting said provision that "if one is elected representative to serve the
unexpired term of another, that unexpired, no matter how short, will be considered one term for the purpose of computing the
number of successive terms allowed."6

As pointed out by the COMELEC en banc, Fr. Bernas’ comment is pertinent only to members of the House of Representatives.
Unlike local government officials, there is no recall election provided for members of Congress. 7

Neither can respondent’s victory in the recall election be deemed a violation of Section 8, Article X of the Constitution as
"voluntary renunciation" for clearly it is not.1âwphi1 In Lonzanida vs. COMELEC, we said:
…The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear
intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of
continuity of service. The petitioner vacated his post a few months before the next mayoral elections, not by voluntary
renunciation but in compliance with the legal process of writ of execution issued by the COMELEC to that effect. Such
involuntary severance from office is an interruption of continuity of service and thus, the petitioner did not fully serve the 1995-
1998 mayoral term.8

WHEREFORE, the instant petition is hereby DISMISSED. The resolution of public respondent Commission on Elections dated
May 9, 2001, in Comelec SPA No. 01-055 is AFFIRMED. Costs against petitioner.

SO ORDERED.

G.R. No. 163295 January 23, 2006

FRANCIS G. ONG, Petitioner,

vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.

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

G.R. No. 163354 January 23, 2006

ROMMEL G. ONG, Petitioner,

vs.
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Respondents.

DECISION

GARCIA, J.:

Before the Court are these two separate petitions under Rule 65 of the Rules of Court to nullify and set aside certain issuances of
the Commission on Elections (COMELEC) en banc.

The first, docketed as G.R. No. 163295, is a petition for certiorari with petitioner Francis G. Ong impugning the COMELEC en
banc resolution1 dated May 7, 2004 in SPA Case No. 04-048, granting private respondent Joseph Stanley Alegre's motion for
reconsideration of the resolution dated March 31, 2004 2 of the COMELEC’s First Division.

The second, G.R. No. 163354, is for certiorari, prohibition and mandamus, with application for injunctive relief, filed by petitioner
Rommel Ong, brother of Francis, seeking, among other things, to stop the COMELEC from enforcing and implementing its
aforesaid May 7, 2004 en banc resolution in SPA Case No. 04-048 pending the outcome of the petition in G.R. No. 163295.

Per its en banc Resolution of June 1, 2004, the Court ordered the consolidation of these petitions.

The recourse stemmed from the following essential and undisputed factual backdrop:

Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis Ong (Francis) were candidates who filed certificates of
candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. Francis was then the incumbent mayor.

On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to Disqualify, Deny Due Course and Cancel
Certificate of Candidacy3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqualify was predicated on the three-
consecutive term rule, Francis having, according to Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections
and have assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms corresponding to those
elections.

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente,
Camarines Norte, with the latter being subsequently proclaimed by COMELEC winner in that contest. Alegre subsequently filed
an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In it,
the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, 4 albeit the decision came out only on July 4,
2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term
as mayor-elect of the municipality of San Vicente.

Acting on Alegre’s petition to disqualify and to cancel Francis’ certificate of candidacy for the May 10, 2004 elections, the First
Division of the COMELEC rendered on March 31, 2004 a resolution5 dismissing the said petition of Alegre, rationalizing as
follows:

We see the circumstances in the case now before us analogous to those obtaining in the sample situations addressed by the
Highest Court in the Borja case. Herein, one of the requisites for the application of the three term rule is not present. Francis Ong
might have indeed fully served the mayoral terms of 1995 to 1998; 1998 to 2001 and 2001 to 2004. The mayoral term however,
from 1998 to 2001 cannot be considered his because he was not duly elected thereto. The [RTC] of Daet, Camarines Norte,
Branch 41 has voided his election for the 1998 term when it held, in its decision that Stanley Alegre was the "legally elected
mayor in the 1998 mayoralty election in San Vicente, Camarines Norte." This disposition had become final after the [COMELEC]
dismissed the appeal filed by Ong, the case having become moot and academic.

xxx xxx xxx

On the basis of the words of the Highest Court pronounced in the Lonzanida case and applicable in the case at bench, Ong
could not be considered as having served as mayor from 1998 to 2001 because "he was not duly elected to the post; he merely
assumed office as a presumptive winner; which presumption was later overturned … when [the RTC] decided with finality that [he]
lost in the May 1998 elections." (Words in bracket and emphasis in the original).

Undaunted, Alegre filed a timely motion for reconsideration, contending, in the main, that there was a misapplication of the three-
term rule, as applied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comelec, infra.

On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a resolution6 reversing the March 31, 2004 resolution of the
COMELEC’s First Division and thereby (a) declaring Francis "as disqualified to run for mayor of San Vicente, Camarines Norte in
the …May 10, 2004"; (b) ordering the deletion of Francis’ name from the official list of candidates; and (c) directing the concerned
board of election inspectors not to count the votes cast in his favor.

The following day, May 8, Francis received a fax machine copy of the aforecited May 7, 2004 resolution, sending him posthaste
to seek the assistance of his political party, the Nationalist People’s Coalition, which immediately nominated his older brother,
Rommel Ong (Rommel), as substitute candidate. At about 5:05 p.m. of the very same day - which is past the deadline for filing a
certificate of candidacy, Rommel filed his own certificate of candidacy for the position of mayor, as substitute candidate for his
brother Francis.

The following undisputed events then transpired:

1. On May 9, 2004, or a day before the May 10 elections, Alegre filed a Petition to Deny Due Course to or Cancel
Certificate of Rommel Ong.

2. Atty. Evillo C. Pormento, counsel for the Ong brothers, addressed a letter 7 to Provincial Election Supervisor (PES) of
Camarines Norte Liza Z. Cariño and Acting Election Officer Emily G. Basilonia in which he appealed that, owing to the
COMELEC’s inaction on Alegre's petition to cancel Rommel’s certificate of candidacy, the name " Rommel Ong" be
included in the official certified list of candidates for mayor of San Vicente, Camarines Norte. The desired listing was
granted by the PES Carino.

3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Virgilio Garcillano, Commissioner-in-Charge for
Regions IV and V, seeking clarification on the legality of the action thus taken by the PES Cariño. Responding,
Commissioner Garcillano issued a Memorandum under date May 10, 2004 9 addressed to PES Liza D. Zabala-Cariño,
ordering her to implement the resolution of the COMELEC en banc in SPA No. 04-048 promulgated on May 7,
2004.10 Said Memorandum partly stated:

The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalaig [Director IV, Law Department], which he quote your
stand, "that substitution is not proper if the certificate of the substituted candidacy is denied due course. In the Resolution of the
Commission En banc, the Certificate of candidacy of Francis Ong was denied due course ," and elaborated further that:

"x x x there is an existing policy of the Commission not to include the name of a substitute candidate in the certified list of
candidates unless the substitution is approved by the Commission.

In view, thereof, it is recommended that 1) the substitute certificate of candidacy of Rommel Ong Gan Ong, should be denied due
course; and 2) the election officer be directed to delete his name from the list of candidates."
The above position of the Commission was in line with the pronouncement of Supreme Court in Miranda vs. Abaya (311 SCRA
617) which states:

"There can no valid substitution where a candidate is excluded not only by disqualification but also by denial and cancellation of
his certificate of candidacy."

In view thereof, you are hereby directed to faithfully implement the said Resolution of the Commission En Banc in SPA No. 04-
048 promulgated on May 7, 2004. (Emphasis in the original; words in bracket added].

4. Owing to the aforementioned Garcillano Memorandum, it would seem that the Chairman of the Municipal Board of
Canvasser of San Vicente issued an order enjoining all concerned not to canvass the votes cast for Rommel, prompting
the latter to file a protest with that Board.11

5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegre as the winning candidate for the mayoralty
post in San Vicente, Camarines Norte.12

On May 12, 2004, Francis filed before the Court a petition for certiorari, presently docketed as G.R. No. 163295. His brother
Rommel’s petition in G.R. No. 163354 followed barely a week after.

In our en banc resolution dated June 1, 2004, G.R. No. 163295 and G.R. No. 163354 were consolidated.13

Meanwhile, on June 4, 2004, the COMELEC issued an order dismissing private respondent Alegre’s Petition to Deny Due
Course to or Cancel Certificate of Candidacy of Rommel Ong, for being moot and academic.14

The issues for resolution of the Court are:

In G.R. No. 163295, whether the COMELEC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in
issuing its en banc resolution dated May 7, 2004 declaring petitioner Francis as disqualified to run for Mayor of San Vicente,
Camarines Norte in the May 10, 2004 elections and consequently ordering the deletion of his name from the official list of
candidates so that any vote cast in his favor shall be considered stray.

In G.R. No. 163354, whether the COMELEC committed grave abuse of discretion when it denied due course to Rommel’s
certificate of candidacy in the same mayoralty election as substitute for his brother Francis.

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’s assumption of office as
Mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose
of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that,
while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation
as mayor-elect in the May 1998 election was contested and eventually nullified per the decision of the RTC of Daet, Camarines
Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida vs. Comelec15, that a proclamation subsequently
declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does so as a
presumptive winner and subject to the final outcome of the election protest.

The three-term limit rule for elective local officials is found in Section 8, Article X of the 1987 Constitution, which provides:

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

Section 43 (b) of the Local Government Code restates the same rule as follows:

Sec. 43. Term of Office.

xxx xxx xxx

(b) No local elective official shall serve for more than three consecutive years in the same position. Voluntary renunciation of the
office for any length of time shall not be considered an interruption in the continuity of service for the full term for which the
elective official concerned was elected.
For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that
the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has
fully served three (3) consecutive terms.16

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from
running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner
Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and
serving the July 1, 1995- June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around
the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May
1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of
the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis’s assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service
in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term", and should be counted as a full term
served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local
elective officials from being elected and serving for more than three consecutive term for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,17 that it was Francis’ opponent (Alegre)
who "won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it
must be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office
has expired. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his
proclamation was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of
Canvassers of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his
continuous exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in
contemplation of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre
would – under the three-term rule - be considered as having served a term by virtue of a veritably meaningless electoral protest
ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in, Lonzanida vs. Comelec,18 citingBorja vs.
Comelec19. In Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio,
Zambales prior to the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and
discharged his duties as Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC
of Zambales, which, in a decision dated January 9, 1997, ruled that there was a failure of elections and declared the position
vacant. The COMELEC affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida
assumed the office and performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran
for mayor of the same town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the
Court held that Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he
did not fully serve the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly
observed, Lonzanida "cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in
fact vacated] his post before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty
election was declared a nullity for the stated reason of "failure of election", and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of mayor. For another, Lonzanida did
not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes. In
fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was
actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis
was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San
Vicente, Camarines Norte for the entire period covering the 1998-2001 term.

The ascription, therefore, of grave abuse of discretion on the part of the COMELEC en banc when it disqualified Francis from
running in the May 10, 2004 elections for the mayoralty post of San Vicente and denying due course to his certificate of
candidacy by force of the constitutional and statutory provisions regarding the three-term limit rule for any local elective official
cannot be sustained. What the COMELEC en banc said in its May 7, 2004 assailed Resolution commends itself for concurrence:

As correctly pointed out by Petitioner-Movant [Alegre]in applying the ruling in the Borja and Lonzanida cases in the instant
petition will be erroneous because the factual milieu in those cases is different from the one obtaining here. Explicitly, the three-
term limit was not made applicable in the cases of Borja and Lonzanida because there was an interruption in the continuity of
service of the three consecutive terms. Here, Respondent Ong would have served continuously for three consecutive terms, from
1995 to 2004. His full term from 1998 to 2001 could not be simply discounted on the basis that he was not duly elected thereto
on account of void proclamation because it would have iniquitous effects producing outright injustice and inequality as it rewards
a legally disqualified and repudiated loser with a crown of victory. (Word in bracket added; emphasis in the original)

Given the foregoing consideration, the question of whether or not then Commissioner Virgilio Garcillano overstepped his
discretion when he issued the May 10, 2004 Memorandum, ordering the implementation of aforesaid May 7, 2004 COMELEC en
banc resolution even before its finality20 is now of little moment and need not detain us any longer.

Just as unmeritorious as Francis’ petition in G.R. No. 163295 is Rommel’s petition in G.R. No. 163354 in which he (Rommel)
challenges the COMELEC's act of not including his name as a substitute candidate in the official list of candidates for the May
10, 2004 elections. As it were, existing COMELEC policy 21 provides for the non-inclusion of the name of substitute candidates in
the certified list of candidates pending approval of the substitution.

Not to be overlooked is the Court’s holding in Miranda vs. Abaya,22 that a candidate whose certificate of candidacy has been
cancelled or not given due course cannot be substituted by another belonging to the same political party as that of the former,
thus:

While there is no dispute as to whether or not a nominee of a registered or accredited political party may substitute for a
candidate of the same party who had been disqualified for any cause, this does not include those cases where the certificate of
candidacy of the person to be substituted had been denied due course and cancelled under Section 78 of the Code.

Expressio unius est exclusio alterius. While the law enumerated the occasions where a candidate may be validly substituted,
there is no mention of the case where a candidate is excluded not only by disqualification but also by denial and cancellation of
his certificate of candidacy. Under the foregoing rule, there can be no valid substitution for the latter case, much in the same way
that a nuisance candidate whose certificate of candidacy is denied due course and/or cancelled may not be substituted. If the
intent of the lawmakers were otherwise, they could have so easily and conveniently included those persons whose certificates of
candidacy have been denied due course and/or cancelled under the provisions of Section 78 of the Code.

xxx xxx xxx

A person without a valid certificate of candidacy cannot be considered a candidate in much the same way as any person who
has not filed any certificate of candidacy at all can not, by any stretch of the imagination, be a candidate at all.

xxx xxx xxx

After having considered the importance of a certificate of candidacy, it can be readily understood why in Bautista [Bautista vs.
Comelec, G.R. No. 133840, November 13, 1998] we ruled that a person with a cancelled certificate is no candidate at all.
Applying this principle to the case at bar and considering that Section 77 of the Code is clear and unequivocal that only an official
candidate of a registered or accredited party may be substituted, there demonstrably cannot be any possible substitution of a
person whose certificate of candidacy has been cancelled and denied due course.

In any event, with the hard reality that the May 10, 2004 elections were already passé, Rommel Ong’s petition in G.R. No.
163354 is already moot and academic.

WHEREFORE, the instant petitions are DISMISSED and the assailed en banc Resolution dated May 7, 2004 of the COMELEC,
in SPA No. 04-048 AFFIRMED.

Costs against petitioners.

SO ORDERED.

G.R. No. 167591 May 9, 2007

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners,

vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.

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

G.R. No. 170577 May 9, 2007

ANTHONY D. DEE, Petitioner,
vs.
COMELEC and MARINO "BOKING" MORALES, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

For our resolution are two consolidated petitions for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended,
assailing the Resolutions dated March 14, 2005 and November 8, 2005 of the COMELEC En Banc.

G.R. No. 167591

ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN v. COMELEC and MARINO "BOKING" MORALES

In the May 2004 Synchronized National and Local Elections, respondent Marino "Boking" Morales ran as candidate for mayor of
Mabalacat, Pampanga for the term commencing July 1, 2004 to June 30, 2007. Prior thereto or on January 5, 2004, he filed his
Certificate of Candidacy.

On January 10, 2004, Attys. Venancio Q. Rivera and Normandick De Guzman, petitioners, filed with the Second Division of the
Commission on Elections (COMELEC) a petition to cancel respondent Morales’ Certificate of Candidacy on the ground that he
was elected and had served three previous consecutive terms as mayor of Mabalacat. They alleged that his candidacy violated
Section 8, Article X of the Constitution and Section 43 (b) of Republic Act (R.A.) No. 7160, also known as the Local Government
Code.

In his answer to the petition, respondent Morales admitted that he was elected mayor of Mabalacat for the term commencing July
1, 1995 to June 30, 1998 (first term) and July 1, 2001 to June 30, 2004 (third term), but he served the second term from July 1,
1998 to June 30, 2001 only as a "caretaker of the office" or as a "de facto officer" because of the following reasons:

a. He was not validly elected for the second term 1998 to 2001 since his proclamation as mayor was declared void by
the Regional Trial Court (RTC), Branch 57, Angeles City in its Decision dated April 2, 2001 in Election Protest Case
(EPC) No. 98-131. The Decision became final and executory on August 6, 2001; and

b. He was preventively suspended by the Ombudsman in an anti-graft case from January 16, 1999 to July 15, 1999.

On May 6, 2004, the COMELEC Second Division rendered its Resolution finding respondent Morales disqualified to run for the
position of municipal mayor on the ground that he had already served three (3) consecutive terms. Accordingly, his Certificate of
Candidacy was cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.

On March 14, 2005, the COMELEC En Banc issued a Resolution granting respondent Morales’ motion for reconsideration and
setting aside that of the Second Division. The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC,
Branch 57, Angeles City declared respondent Morales’ proclamation void, his discharge of the duties in the Office of the Mayor in
Mabalacat is that of a de facto officer or a de facto mayor. Therefore, his continuous service for three consecutive terms has
been severed.

Hence, this petition for certiorari.

G.R. No. 170577

ANTHONY DEE v. COMMISSION ON ELECTIONS and MARIO "BOKING" MORALES

On May 24, 2004, after respondent Morales was proclaimed the duly elected mayor of Mabalacat for the term commencing July
1, 2004 to June 30, 2007, petitioner Anthony Dee, also a candidate for mayor, filed with the RTC, Branch 61, Angeles City a
petition for quo warranto against the said respondent. Petitioner alleged that respondent Morales, having served as mayor for
three consecutive terms, is ineligible to run for another term or fourth term. The case was docketed as Civil Case No. 11503.

In his answer, respondent Morales raised the following defenses:

a. He was not validly elected for the term 1998 to 2001 since the RTC, Branch 57, Angeles City declared in its Decision
that his proclamation as mayor of Mabalacat was void. Petitioner Dee was then proclaimed the duly elected mayor; and
 b. He was preventively suspended for six months by the Ombudsman, during the same term in an anti-graft case, an
interruption in the continuity of his service as municipal mayor of Mabalacat. 1

In its Decision dated November 22, 2004, the RTC dismissed petitioner Dee’s petition for quo warranto on the ground that
respondent Morales did not serve the three-term limit since he was not the duly elected mayor of Mabalacat, but petitioner Dee in
the May 1998 elections for the term 1998 to 2001, thus:

Respondent, Marino Morales, was not the duly elected mayor of Mabalacat, Pampanga in the May 1998 elections for the term
1998 to 2001 because although he was proclaimed as the elected mayor of Mabalacat, Pampanga by the Municipal Board of
Canvassers, had assumed office and discharged the duties of mayor, his close rival, the herein petitioner, Anthony D. Dee, was
declared the duly elected Mayor of Mabalacat, Pampanga in the Decision promulgated on April 2, 2001 in Election Protest EPC
No. 98-131 filed by Anthony Dee against herein respondent, Marino Morales, and decided by RTC, Br. 57, Angeles City. x x x.

Petitioner Dee interposed an appeal to the COMELEC First Division, alleging that respondent Morales violated the three-term
limit rule when he ran for re-election (fourth time) as mayor in the 2004 elections. Consequently, his proclamation as such should
be set aside. In a Resolution dated July 29, 2005 the COMELEC First Division issued a Resolution dismissing the appeal. It held
that respondent Morales cannot be deemed to have served as mayor of Mabalacat during the term 1998 to 2001 because his
proclamation was declared void by the RTC, Branch 57 of Angeles City. He only served as a caretaker, thus, his service during
that term should not be counted.

On August 12, 2005, petitioner Dee filed with the COMELEC En Banc a motion for reconsideration. In a Resolution dated
November 8, 2005, the COMELEC En Banc affirmed the questioned Resolution of the Second Division.

Hence, petitioner Dee’s instant petition for certiorari.

Both cases may be decided based on the same facts and issues.

It is undisputed that respondent Morales was elected to the position of mayor of Mabalacat for the following consecutive terms:

a) July 1, 1995 to June 30, 1998

b) July 1, 1998 to June 30, 2001

c) July 1, 2001 to June 30, 2004

d) July 1, 2004 to June 30, 2007

THE PRINCIPAL ISSUE. –

Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30, 2007 term is not his fourth because his
second term, July 1, 1998 to June 30, 2001 to which he was elected and which he served, may not be counted since his
proclamation was declared void by the RTC, Branch 57 of Angeles City.

Respondent Morales is wrong. This Court, through Mr. Justice Cancio C. Garcia, resolved the same issue in Ong v. Alegre 2 with
identical facts, thus:

To digress a bit, the May 1998 elections saw both Alegre and Francis opposing each other for the office of mayor of San Vicente,
Camarines Norte, with the latter being subsequently proclaimed by the COMELEC winner in the contest. Alegre subsequently
filed an election protest, docketed as Election Case No. 6850 before the Regional Trial Court (RTC) at Daet, Camarines Norte. In
it, the RTC declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision came out only on July 4,
2001, when Francis had fully served the 1998-2001 mayoralty term and was in fact already starting to serve the 2001-2004 term
as mayor-elected for the municipality of San Vicente.

xxx

A resolution of the issues thus formulated hinges on the question of whether or not petitioner Francis’ assumption of office as
mayor of San Vicente, Camarines Norte for the mayoralty term 1998 to 2001 should be considered as full service for the purpose
of the three-term limit rule.

Respondent COMELEC resolved the question in the affirmative. Petitioner Francis, on the other hand, disagrees. He argues that,
while he indeed assumed office and discharged the duties as Mayor of San Vicente for three consecutive terms, his proclamation
as mayor-elected in the May 1998 election was contested and eventually nullified per the Decision of the RTC of Daet,
Camarines Norte dated July 4, 2001. Pressing the point, petitioner argues, citing Lonzanida v. Comelec, that a proclamation
subsequently declared void is no proclamation at all and one assuming office on the strength of a protested proclamation does
so as a presumptive winner and subject to the final outcome of the election protest.

xxx

For the three-term limit for elective local government officials to apply, two conditions or requisites must concur, to wit: (1) that
the official concerned has been elected for three (3) consecutive terms in the same local government post, and (2) that he has
fully served three (3) consecutive terms.

With the view we take of the case, the disqualifying requisites are present herein, thus effectively barring petitioner Francis from
running for mayor of San Vicente, Camarines Norte in the May 10, 2004 elections. There can be no dispute about petitioner
Francis Ong having been duly elected mayor of that municipality in the May 1995 and again in the May 2001 elections and
serving the July 1, 1995-June 30, 1998 and the July 1, 2001-June 30, 2004 terms in full. The herein controversy revolves around
the 1998-2001 mayoral term, albeit there can also be no quibbling that Francis ran for mayor of the same municipality in the May
1998 elections and actually served the 1998-2001 mayoral term by virtue of a proclamation initially declaring him mayor-elect of
the municipality of San Vicente. The question that begs to be addressed, therefore, is whether or not Francis’ assumption of
office as Mayor of San Vicente, Camarines Norte from July 1, 1998 to June 30, 2001, may be considered as one full term service
in the context of the consecutive three-term limit rule.

We hold that such assumption of office constitutes, for Francis, "service for the full term," and should be counted as a full term
served in contemplation of the three-term limit prescribed by the constitutional and statutory provisions, supra, barring local
elective officials from being elected and serving for more than three consecutive terms for the same position.

It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850, that it was Francis’ opponent (Alegre) who
"won" in the 1998 mayoralty race and, therefore, was the legally elected mayor of San Vicente. However, that disposition, it must
be stressed, was without practical and legal use and value, having been promulgated after the term of the contested office has
expired. Petitioner Francis’ contention that he was only a presumptive winner in the 1998 mayoralty derby as his proclamation
was under protest did not make him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers of
San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his assumption of office and his continuous
exercise of the functions thereof from start to finish of the term, should legally be taken as service for a full term in contemplation
of the three-term rule.

The absurdity and the deleterious effect of a contrary view is not hard to discern. Such contrary view would mean that Alegre
would-under the three-term rule-be considered as having served a term by virtue of a veritably meaningless electoral protest
ruling, when another actually served such term pursuant to a proclamation made in due course after an election.

Petitioner cites, but, to our mind, cannot seek refuge from the Court’s ruling in Lonzanida v. Comelec, citing Borja v. Comelec. In
Lonzanida, petitioner Lonzanida was elected and served for two consecutive terms as mayor of San Antonio, Zambales prior to
the May 8, 1995 elections. He then ran again for the same position in the May 1995 elections, won and discharged his duties as
Mayor. However, his opponent contested his proclamation and filed an election protest before the RTC of Zambales, which, in a
decision dated January 8, 1997, ruled that there was a failure of elections and declared the position vacant. The COMELEC
affirmed this ruling and petitioner Lonzanida acceded to the order to vacate the post. Lonzanida assumed the office and
performed his duties up to March 1998 only. Now, during the May 1998 elections, Lonzanida again ran for mayor of the same
town. A petition to disqualify, under the three-term rule, was filed and was eventually granted. There, the Court held that
Lonzanida cannot be considered as having been duly elected to the post in the May 1995 election, and that he did not fully serve
the 1995-1998 mayoralty term by reason of involuntary relinquishment of office. As the Court pointedly observed, Lonzanida
"cannot be deemed to have served the May 1995 to 1998 term because he was ordered to vacate [and in fact vacated] his post
before the expiration of the term."

The difference between the case at bench and Lonzanida is at once apparent. For one, in Lonzanida, the result of the mayoralty
elections was declared a nullity for the stated reason of "failure of election," and, as a consequence thereof, the proclamation of
Lonzanida as mayor-elect was nullified, followed by an order for him to vacate the office of the mayor. For another, Lonzanida
did not fully serve the 1995-1998 mayoral term, there being an involuntary severance from office as a result of legal processes.
In fine, there was an effective interruption of the continuity of service.

On the other hand, the failure-of-election factor does not obtain in the present case. But more importantly, here, there was
actually no interruption or break in the continuity of Francis’ service respecting the 1998-2001 term. Unlike Lonzanida, Francis
was never unseated during the term in question; he never ceased discharging his duties and responsibilities as mayor of San
Vicente, Camarines Norte for the entire period covering the 1998-2001 term.
It bears stressing that in Ong v. Alegre cited above, Francis Ong was elected and assumed the duties of the mayor of San
Vicente, Camarines Norte for three consecutive terms. But his proclamation as mayor in the May 1998 election was declared
void by the RTC of Daet, Camarines Norte in its Decision dated July 4, 2001. As ruled by this Court, his service for the term 1998
to 2001 is for the full term. Clearly, the three-term limit rule applies to him. Indeed, there is no reason why this ruling should not
also apply to respondent Morales who is similarly situated.

Here, respondent Morales invoked not only Lonzanida v. COMELEC, 3 but also Borja, Jr. v. Commission on Elections4 which is
likewise inapplicable. The facts in Borja are:

Private respondent Jose T. Capco was elected vice-mayor of Pateros on January 18, 1998 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.

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. 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. x x x

This Court held that Capco’s assumption of the office of mayor upon the death of the incumbent may not be regarded as a "term"
under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local Government Code). He held the
position from September 2, 1989 to June 30, 1992, a period of less than three years. Moreover, he was not elected to that
position.

Similarly, in Adormeo v. COMELEC,5 this Court ruled that assumption of the office of mayor in a recall election for the remaining
term is not the "term" contemplated under Section 8, Article X of the Constitution and Section 43 (b) of R.A. No. 7160 (the Local
Government Code). As the Court observed, there was a "break" in the service of private respondent Ramon T. Talanga as
mayor. He was a "private citizen" for a time before running for mayor in the recall elections.

Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He assumed the position. He served as mayor
until June 30, 2001. He was mayor for the entire period notwithstanding the Decision of the RTC in the electoral protest case
filed by petitioner Dee ousting him (respondent) as mayor. To reiterate, as held in Ong v. Alegre, 6 such circumstance does not
constitute an interruption in serving the full term.

Section 8, Article X of the Constitution can not be more clear and explicit –

The term of the office of elected local officials x x x, shall be three years and no such official shall serve for more than three
consecutive terms. x x x

Upon the other hand, Section 43 (b) of R.A. No. 7160 (the Local Government Code) clearly provides:

No local official shall serve for more than three consecutive terms in the same position. x x x

Respondent Morales is now serving his fourth term. He has been mayor of Mabalacat continuously without any break since July
1, 1995. In just over a month, by June 30, 2007, he will have been mayor of Mabalacat for twelve (12) continuous years.

In Latasa v. Comelec,7 the Court explained the reason for the maximum term limit, thus:

The framers of the Constitution, by including this exception, wanted to establish some safeguards against the excessive
accumulation of power as a result of consecutive terms. As Commissioner Blas Ople stated during the deliberations:

x x x I think we want to prevent future situations where, as a result of continuous service and frequent re-elections, officials from
the President down to the municipal mayor tend to develop a proprietary interest in their positions and to accumulate these
powers and prerequisites that permit them to stay on indefinitely or to transfer these posts to members of their families in a
subsequent election. x x x

xxx
It is evident that in the abovementioned cases, there exists a rest period or a break in the service of local elective official. In
Lonzanida, petitioner therein was a private citizen a few months before the next mayoral elections. Similarly, in Adormeo and
Socrates, the private respondents therein lived as private citizens for two years and fifteen months respectively. Indeed, the law
contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government unit.

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

This is the very situation in the instant case. Respondent Morales maintains that he served his second term (1998 to 2001) only
as a "caretaker of the office" or as a "de facto officer." Section 8, Article X of the Constitution is violated and its purpose defeated
when an official serves in the same position for three consecutive terms. Whether as "caretaker" or " de facto" officer, he
exercises the powers and enjoys the prerequisites of the office which enables him "to stay on indefinitely".

Respondent Morales should be promptly ousted from the position of mayor of Mabalacat.

G.R. No. 167591 –

Having found respondent Morales ineligible, his Certificate of Candidacy dated December 30, 2003 should be cancelled. The
effect of the cancellation of a Certificate of Candidacy is provided under Sections 6 and 7 of R.A. No. 6646, thus:

SECTION 6. Effect of Disqualification Case. – Any candidate who has been declared by final judgment to be disqualified shall not
be voted for, and the votes cast for him shall not be counted. If for any reason a candidate is not declared by final judgment
before an election to be disqualified and he is voted for and receives the winning number of votes in such election, the Court or
Commission shall continue with the trial and hearing of the action, inquiry, or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such candidate whenever the evidence
of guilt is strong.

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

in relation to Section 211 of the Omnibus Election Code, which provides:

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

xxx

19. Any vote in favor of a person who has not filed a certificate of candidacy or in favor of a candidate for an office for which he
did not present himself shall be considered as a stray vote but it shall not invalidate the whole ballot.

xxx

In the light of the foregoing, respondent Morales can not be considered a candidate in the May 2004 elections. Not being a
candidate, the votes cast for him SHOULD NOT BE COUNTED and must be considered stray votes.

G.R. No. 170577 –

Since respondent Morales is DISQUALIFIED from continuing to serve as mayor of Mabalacat, the instant petition for quo
warranto has become moot.

Going back to G.R. No. 167591, the question now is whether it is the vice-mayor or petitioner Dee who shall serve for the
remaining portion of the 2004 to 2007 term.

In Labo v. Comelec,8 this Court has ruled that a second place candidate cannot be proclaimed as a substitute winner, thus:
The rule, therefore, is: the ineligibility of a candidate receiving majority votes does not entitle the eligible candidate receiving the
next highest number of votes to be declared elected. A minority or defeated candidate cannot be deemed elected to the office.

xxx

It is therefore incorrect to argue that since a candidate has been disqualified, the votes intended for the disqualified candidate
should, in effect, be considered null and void. This would amount to disenfranchising the electorate in whom sovereignty resides.
At the risk of being repetitious, the people of Baguio City opted to elect petitioner Labo bona fide, without any intention to
misapply their franchise, and in the honest belief that Labo was then qualified to be the person to whom they would entrust the
exercise of the powers of the government. Unfortunately, petitioner Labo turned out to be disqualified and cannot assume the
office.

Whether or not the candidate whom the majority voted for can or cannot be installed, under no circumstances can minority or
defeated candidate be deemed elected to the office. Surely, the 12,602 votes cast for petitioner Ortega is not a larger number
than the 27,471 votes cast for petitioner Labo (as certified by the Election Registrar of Baguio City; rollo, p. 109; GR No.
105111).

xxx

As a consequence of petitioner’s ineligibility, a permanent vacancy in the contested office has occurred. This should now be filled
by the vice-mayor in accordance with Section 44 of the Local Government Code, to wit:

Sec. 44. Permanent vacancies in the Offices of the Governor, Vice-Governor, Mayor and Vice-Mayor. – (a) If a permanent
vacancy occurs in the office of the governor or mayor, the vice-governor or the vice-mayor concerned shall become the governor
or mayor. x x x

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

This Decision is immediately executory.

SO ORDERED.

G.R. No. 134213 July 20, 1999

ROMEO J. GAMBOA, JR., petitioner,

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

YNARES-SANTIAGO, J.:

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

The facts are not in dispute.1âwphi1.nêt

In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and respondents Marcelo Aguirre, Jr., and Juan Y.
Araneta were elected Negros Occidental Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995,
the governor designated petitioner as Acting Governor for the duration of the former's official trip abroad until his return. When
the SP held its regular session on September 6, 1995, respondents questioned the authority of petitioner to preside therein in
view of his designation as Acting Governor and asked him to vacate the Chair. The latter, however, refused to do so. In another
session, seven (7) members of the SP voted to allow petitioner to continue presiding while four (4) others voted against with one
(1) abstention. On September 22, 1995, respondents filed before the lower court a petition for declatory relief and prohibition. In
the meantime, on October 2, 1995, the Governor re-assumed his office. Later, the trial court rendered a decision and declared
petitioner as "temporarily legally incapacitated to preside over the sessions of the SP during the period that he is the Acting
Governor." 1 Aggrieved, petitioner filed a petition for review raising the issue earlier mentioned. Although this case is dismissible
for having become moot and academic considering the expiration in 1998 of the terms of office of the local officials involved
herein, the Court nonetheless proceeds to resolve this common controversy but novel issue under the existing laws on local
government.
Sec. 49(a) and 466(a) (1) of Republic Act (R.A.) No. 7160 otherwise known as the Local Government Code of 1991, provide that
the Vice-Governor shall be the presiding officer of the SP.2 In addition to such function, he "become(s)" 3the Governor and
"assume(s)" 4 the higher office for the unexpired term of his predecessor, in case of "permanent vacancy" therein. When the
vacancy, however, is merely temporary, the Vice-Governor "shall automatically exercise the powers (subject to certain
limitations) and perform the duties and functions" 5 of the Governor. It may be noted that the code provides only for modes of
succession in case of permanent vacancy in the office of the Governor and the Vice-Governor (whether single or simultaneously)
as well as in case of a temporary vacancy in the office of the Governor. But, no such contingency is provided in case of
temporary vacancy in the office of the Vice-Governor, just like the 1983 Local Government Code. 6

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

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

1.) Vice-Governor, as presiding officer,

2.) regular elective SP members,

3.) three elective sectoral representatives, and

4.) those ex-officio members, namely:

a.) president of the provincial chapter of the liga ng mga barangay,

b.) president of the panlalawigang pederasyon ng mga sangguniang kabataan,

c.) president of the provincial federation of sangguniang members of municipalities and

component cities. 12

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

It has been held that if a Mayor who is out of the contrary is considered "effectively absent", the Vice-Mayor should discharge the
duties of the mayor during the latter's absence. 14 This doctrine should equally apply to the Vice-Governor since he is similarly
situated as the Vice-Mayor. Although it is difficult to lay down a definite rule as to what constitutes absence, yet this term should
be reasonably construed to mean "effective" absence, 15 that is, one that renders the officer concerned powerless, for the time
being, to discharge the powers and prerogatives of his office. 16 There is no vacancy whenever the office is occupied by a legally
qualified incumbent. A sensu contrario, there is a vacancy when there is no person lawfully authorized to assume and exercise at
present the duties of the office. 17By virtue of the foregoing definition, it can be said that the designation, appointment or
assumption of the Vice-Governor as the Acting Governor creates a corresponding temporary vacancy in the office of the Vice-
Governor during such contingency. Considering the silence of the law on the matter, the mode of succession provided for
permanent vacancies, under the new Code, in the office of the Vice-Governor may likewise be observed in the event of
temporary vacancy occurring in the same office. 18 This is so because in the eyes of the law, the office to which he was elected
was left barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously exercise the duties of the latter office, since the
nature of the duties of the provincial Governor call for a full-time occupant to discharge them. 19Such is not only consistent with
but also appears to be the clear rationale of the new Code wherein the policy of performing dual functions in both offices has
already been abandoned. To repeat, the creation of a temporary vacancy in the office of the Governor creates a corresponding
temporary vacancy in the office of the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy.
This event constitutes an "inability" on the part of the regular presiding officer (Vice Governor) to preside during the SP sessions,
which thus calls for the operation of the remedy set in Article 49(b) of the Local Government Code — concerning the election of a
temporary presiding officer. The continuity of the Acting Governor's (Vice Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity. Under Section 49(b), "(i)n the event of the inability of the regular presiding officer to
preside at the sanggunian session, the members present and constituting a quorum shall elect from among themselves a
temporary presiding officer." 20

WHEREFORE, the petition is DENIED for lack of merit.

SO ORDERED.

G.R. No. 142261 June 29, 2000

GOVERNOR MANUEL M. LAPID, petitioner,

vs.
HONORABLE COURT OF APPEALS, OFFICE OF THE OMBUDSMAN, NATIONAL BUREAU OF INVESTIGATION, FACT-
FINDING INTELLIGENCE BUREAU (FFIB) of the Office of the Ombudsman, DEPARTMENT OF INTERIOR AND LOCAL
GOVERNMENT, respondents.

RESOLUTION

GONZAGA-REYES, J.:

Before us are the Motion for Reconsideration filed by the National Bureau of Investigation and the Department of the Interior and
Local Government, represented by the Office of the Solicitor-General, and the Office of the Ombudsman of our 5 April 2000
Resolution.1 In this resolution, we ordered the immediate reinstatement of petitioner Manuel Lapid to the position of Governor of
Pampanga as the respondents failed to establish the existence of a law mandating the immediate execution of a decision of the
Office of the Ombudsman in an administrative case where the penalty imposed is suspension for one year.

The factual antecedents are as follows:

On the basis of an unsigned letter dated July 20, 1998, allegedly originating from the "Mga Mamamayan ng Lalawigan ng
Pampanga," addressed to the National Bureau of Investigation, the latter initiated an "open probe" on the alleged illegal
quarrying in Pampanga & exaction of exorbitant fees purportedly perpetrated by unscrupulous individuals with the connivance of
high-ranking government officials. The NBI Report was endorsed to the respondent Ombudsman and was docketed as OMB-1-
98-2067.

On Oct. 26, 1998, a complaint was filed charging petitioner Gov. Manuel M. Lapid, Vice-Governor Clayton Olalia, Provincial
Administrator Enrico Quiambao, Provincial Treasurer Jovito Sabado, Mabalacat Municipal Mayor Marino Morales and Senior
Police Officer 4 Nestor Tadeo with alleged "Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the
Service" for allegedly "having conspired between and among themselves in demanding and collecting from various quarrying
operators in Pampanga a control fee, control slip, or monitoring fee of P120.00 per truckload of sand, travel, or other quarry
material, without a duly enacted provincial ordinance authorizing the collection thereof and without issuing receipts for its
collection. They were also accused of giving unwarranted benefits to Nestor Tadeo, Rodrigo "Rudy" Fernandez & Conrado
Pangilinan who are neither officials/employees of the Provincial Government of Pampanga nor quarry operators by allowing
them to collect the said amount which was over and above the P40.00 prescribed under the present provincial ordinance and in
allowing Tadeo, Fernandez and Pangilinan to sell and deliver to various quarry operators booklets of official receipts which were
pre-stamped with "SAND FEE P40.00." 2

The Ombudsman issued an Order dated January 13, 1999 preventively suspending petitioner Lapid, Olalia, Quiambao, Sabado,
Morales and Tadeo for a period of six (6) months without pay pursuant to Sec. 24 of RA 6770. On Jan. 19, 1999, the Department
of the Interior and Local Government (hereinafter the "DILG") implemented the suspension of petitioner Lapid3 .

On November 22, 1999 the Ombudsman rendered a decision4 in the administrative case finding the petitioner administratively
liable for misconduct thus:

Wherefore, premises considered, respondent Manuel M. Lapid, Clayton A. Olalia, Jovito S. Sabado and Nestor C. Tadeo
are hereby found guilty of misconduct for which they are meted out the penalty of one (1) year suspension without pay
 pursuant to section 25 (2) of R.A. 6770 (Ombudsman Act of 1989). Respondent Marino P. Morales is hereby exonerated
from the same administrative charge for insufficiency of evidence. The complaint against respondent Enrico P.
Quiambao, who resigned effective June 30, 1998 was dismissed on March 12, 1999, without prejudice to the outcome of
the criminal case.5

The copy of the said decision was received by counsel for the petitioner on November 25, 1999 and a motion for reconsideration
was filed on November 29, 1999. The Office of the Ombudsman, in an Order 6 dated 12 January 2000, denied the motion for
reconsideration.

Petitioner then filed a petition for review with the Court of Appeals on January 18, 2000 praying for the issuance of a temporary
restraining order to enjoin the Ombudsman from enforcing the questioned decision. The temporary restraining order was issued
by the appellate court on January 19, 2000.7

When the 60-day lifetime of the temporary restraining order lapsed on March 19, 2000 without the Court of Appeals resolving the
prayer for the issuance of a writ of preliminary injunction, a petition8 for certiorari, prohibition and mandamus was filed with this
Court on March 20, 2000. The petition asked for the issuance of a temporary restraining order to enjoin the respondents from
enforcing the assailed decision of the Ombudsman and prayed that "after due proceedings, judgment be rendered reversing and
setting aside the questioned decision (of the Ombudsman) dated November 22, 1999 and the order January 12, 2000. 9

On March 22, 2000 the Third Division of this Court issued a Resolution requiring the respondents to comment on the petition.
That same day, the Court of Appeals issued a resolution 10 denying the petitioner's prayer for injunctive relief. The following day,
or on March 23, 2000, the DILG implemented the assailed decision of the Ombudsman and the highest ranking Provincial Board
Member of Pampanga, Edna David, took her oath of office as O.I.C. — Governor of the Province of Pampanga.

On March 24, 2000 a Motion for Leave to File Supplement to the Petition for Certiorari, Prohibition and Mandamus 11and the
Supplement to the Petition 12 itself were filed in view of the resolution of the Court of Appeals denying the petitioner's prayer for
preliminary injunction. In addition to the arguments raised in the main petition, the petitioner likewise raised in issue the apparent
pre-judgment of the case on the merits by the Court of Appeals in its resolution denying the prayer for preliminary injunction. In
so doing, petitioner argued that the respondent court exceeded the bounds of its jurisdiction. Proceeding from the premise that
the decision of the Ombudsman had not yet become final, the petitioner argued that the writs of prohibition and mandamus may
be issued against the respondent DILG for prematurely implementing the assailed decision. Finally, the petitioner prayed for the
setting aside of the resolution issued by the Court of Appeals dated March 22, 2000 and for the issuance of a new one enjoining
the respondents from enforcing the said decision or, if it has already been implemented, to withdraw any action already taken
until the issue of whether or not the said decision of the Ombudsman is immediately executory has been settled.

The Solicitor-General and the Office of the Ombudsman filed their respective comments 1 to the petition praying for the dismissal
thereof. Regarding the issue of the immediate enforcement of the decision of the Ombudsman, the Solicitor-General maintains
that the said decision is governed by Section 12, Rule 43 of the Rules of Court and is therefore, immediately executory. For its
part, the Office of the Ombudsman maintain that the Ombudsman Law and its implementing rules are silent as to the execution
of decisions rendered by the Ombudsman considering that the portion of the said law cited by petition pertains to the finality of
the decision but not to its enforcement pending appeal. The Office of the Ombudsman also stated that it has uniformly adopted
the provisions in the Local Government Code and Administrative Code that decisions in administrative disciplinary cases are
immediately executory.

The Solicitor-General filed an additional comment 14 alleging that the petitioner did not question the executory character of the
decision of the Ombudsman and that he is presenting this argument for the first time before the Supreme Court. The appellate
court should be given an opportunity to review the case from this standpoint before asking the Supreme Court to review the
resolutions of the Court of Appeals. The petitioner filed a consolidated Reply 15 to the Comments of the respondents.

After oral arguments before the Third Division of this Court on 5 April 2000, the Resolution 16 subject of the instant Motions for
Reconsideration was issued. The Resolution provides as follows:

From the pleadings filed by the parties and after oral arguments held on April 5, 2000, the petitioner represented by Atty.
Augusto G. Panlilio, the respondent Ombudsman represented by its Chief Legal Counsel, and the National Bureau of
Investigation and the Department of the Interior and Local Government represented by the Solicitor General, and after
due deliberation, the Court finds that the respondents failed to establish the existence of a law mandating the immediate
execution of a decision of the Ombudsman in an administrative case where the penalty imposed is suspension for one
year. The immediate implementation of the decision of the Ombudsman against petitioner is thus premature.

WHEREFORE, the respondents are ordered to reinstate effective immediately the petitioner to the position of Governor
of the Province of Pampanga. This case is hereby remanded to the Court of Appeals for resolution of the appeal in CA-
GR. SP No. 564744 on the merits. Said court is hereby directed to resolve the same with utmost deliberate dispatch.
 This is without prejudice to the promulgation of an extended decision.

From this 5 April 2000 Resolution, the Offices of the Solicitor-General and the Ombudsman filed the instant motions for
reconsideration.

The sole issue addressed by our 5 April 2000 Resolution is whether or not the decision of the Office of the Ombudsman finding
herein petitioner administratively liable for misconduct and imposing upon him a penalty of one (1) year suspension without pay
is immediately executory pending appeal.

Petitioner was administratively charged for misconduct under the provisions of R.A. 6770, the Ombudsman Act of 1989. Section
27 of the said Act provides as follows:

Sec. 27. Effectively and Finality of Decisions. — All provisionary orders of the Office of the Ombudsman are immediately
effective and executory.

A motion for reconsideration of any order, directive or decision of the Office of the Ombudsman must be filed within five
(5) days after receipt of written notice and shall be entertained only on the following grounds:

xxx xxx xxx

Findings of fact of the Office of the Ombudsman when supported by substantial evidence are conclusive. Any order,
directive or decision imposing the penalty of public censure or reprimand, suspension of not more than one month's
salary shall be final and unappealable.

In all administrative disciplinary cases, orders, directives or decisions of the Office of the Ombudsman may be appealed
to the Supreme Court by filing a petition for certiorari within ten (10) days from receipt of the written notice of the order,
directive or decision or denial of the motion for reconsideration in accordance with Rule 45 of the Rules of Court.

The Rules of Produce of the Office of the Ombudsman 17 likewise contain a similar provision. Section 7, Rule III of the said Rules
provides as follows:

Sec. 7. Finality of Decision. — where the respondent is absolved of the charge and in case of conviction where the
penalty imposed is public censure or reprimand, suspension of not more than one month, or a fine not equivalent to one
month salary, the decision shall be final and unapllealable. In all other cases, the decision shall become final after the
expiration of ten (10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition
for certiorari, shall have been filed by him as prescribed in Section 27 of R.A. 6770.

It is clear from the above provisions that the punishment imposed upon petitioner, i.e. suspension without pay for one year, is no
among those listed as final and unappealable, hence, immediately executory. Section 27 states that all provisionary orders of the
Office of the Ombudsman are immediately effective and executory; and that any order, directive or decision of the said Office
imposing the penalty of censure or reprimand or suspension of not more than one month's salary is final and unappealable. As
such the legal maxim "inclusion unius est exclusio alterus" finds application. The express mention of the things included
excludes those that are not included. The clear import of these statements taken together is that all other decisions of the Office
of the Ombudsman which impose penalties that are not enumerated in the said section 27 are not final, unappealable and
immediately executory. An appeal timely filed, such as the one filed in the instant case, will stay the immediate implementation of
the decision. This finds support in the Rules of Procedure issued by the Ombudsman itself which states that "(I)n all other cases,
the decision shall become final after the expiration of ten (10) days from receipt thereof by the respondent, unless a motion for
reconsideration or petition for certiorari (should now be petition for review under Rules 43) shall have been filed by him as
prescribed in Section 27 of R.A. 6770."

The Office of the Solicitor General insists however that the case of Fabian vs. Desierto 18 has voided Section 27 of R.A. 6770 and
Section 7, Rule III of Administrative Order No. 07. As such, the review of decision of the Ombudsman in administrative cases is
now governed by Rule 43 of the 1997 Rules of Civil Procedure which mandates, under Section 12 19 thereof, the immediately
executory character of the decision or order appealed from.

The contention of the Solicitor General is not well-taken. Our ruling in the case of Fabian vs. Desierto invalidated Section 27 of
Republic Act No. 6770 and Section 7, Rule III of Administrative Order No. 07 and any other provision of law implementing the
aforesaid Act only insofar as they provide for appeals in administrative disciplinary cases from the Office of the Ombudsman to
the Supreme Court. The only provision affected by the Fabian ruling is the designation of the Court of Appeals as the proper
forum and of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included in said section 27, including
the finality or non-finality of decisions, are not affected and still stand.
Neither can respondents find support in Section 12, Rule 43 of the 1997 Rules of Civil Procedure which provides as follows:

Sec. 12. Effect of Appeal. The appeal shall not stay the award, judgment, final order or resolution sought to be reviewed
unless the Court of Appeals shall direct otherwise upon such terms as it may deem just.

On this point, respondents contend that considering the silence of the Ombudsman Act on the matter of execution pending
appeal, the above-quoted provision of the Rules of Court, which allegedly mandates the immediate execution of all decisions
rendered by administrative and quasi-judicial agencies, should apply suppletorily to the provisions of the Ombudsman Act. We
do not agree.

A judgment becomes "final and executory" by operation of law. 20 Section 27 of the Ombudsman Act provides that any order,
directive or decision of the Office of the Ombudsman imposing a penalty of public censure or reprimand, or suspension of not
more than one month's salary shall be final and unappealable. In all other cases, the respondent therein has the right to appeal
to the Court of Appeals within ten (10) days from receipt of the written notice of the order, directive or decision. In all these other
cases therefore, the judgment imposed therein will become final after the lapse of the reglementary period of appeal in of appeal
is perfected 21 or, an appeal therefrom having been taken, the judgment in the appellate tribunal become final. It is this final
judgment which is then correctly categorized as a "final and executory judgment" in respect to which execution shall issue as a
matter of right. 22 In other words, the fact that the Ombudsman Act gives parties the right to appeal from its decisions should
generally carry with it the stay of these decisions pending appeal. Otherwise, the essential nature of these judgments as being
appealable would be rendered nugatory.

The general rule is that judgments by lower courts or tribunals become executory only after it has become final and
executory, 2 execution pending appeal being an exception to this general rule. It is the contention of respondents however that
with respect to decisions of quasi-judicial agencies and administrative bodies, the opposite is true. It is argued that the general
rule with respect to quasi-judicial and administrative agencies is that the decisions of such bodies are immediately executory
even pending appeal.

The contention of respondents is misplaced. There is no general legal principle that mandates that all decisions of quasi-
judicial agencies are immediately executory. Decisions rendered by the Securities and Exchange Commission 24 and the Civil
Aeronautics Board, 25 for example, are not immediately executory and are stayed when an appeal is filed before the Court of
Appeals. On the other hand, the decisions of the Civil Service Commission, under the Administrative Code 26 , and the Office of
the President under the Local Government Code 27 , which respondents cite, are immediately executory even pending appeal
because the pertinent laws under which the decisions were rendered mandate them to be so. The provisions of the last two cited
laws expressly provide for the execution pending appeal of their final orders or decisions. The Local Government Code, under
Section 68 thereof provides as follows:

Sec. 68. Execution Pending Appeal. — An appeal shall not prevent a decision from becoming final and executory. The
respondent shall be considered as having been placed under preventive suspension during the pendency of an appeal in
the event he wins such appeal. In the event the appeal results in an exoneration, he shall be paid his salary and such
other emoluments during the pendency of the appeal.

Similarly, Book V, Title I, Subtitle A, Chapter 6, Section 47, par. (4) of the Administrative Code of 1987 provides:

(4) An appeal shall not stop the decision from being from being executory, and in case the penalty is suspension or
removal, the respondent shall be considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal.

Where the legislature has seen fit to declare that the decision of the quasi-judicial agency is immediately final and executory
pending appeal, the law expressly so provides.

Sec. 12 of Rule 43 should therefore be interpreted as mandating that the appeal will not stay the award, judgment, final order or
resolution unless the law directs otherwise.

Petitioner was charged administratively before the Ombudsman and accordingly the provisions of the Ombudsman Act should
apply in his case. Section 68 of the Local Government Code only applies to administrative decisions rendered by the Office of
the President or the appropriate Sanggunian against elective local government officials. Similarly, the provision in the
Administrative Code of 1987 mandating execution pending review applies specifically to administrative decisions of the Civil
Service Commission involving members of the Civil Service.

There is no basis in law for the proposition that the provisions of the Administrative Code of 1987 and the Local Government
Code on execution pending review should be applied suppletorily to the provisions of the Ombudsman Act as there is nothing in
the Ombudsman Act which provides for such suppletory application. Courts may not, in the guise of interpretation, enlarge the
scope of a statute and include therein situations not provided or intended by the lawmakers. An omission at the time of
enactment, whether careless or calculated, cannot be judicially supplied however later wisdom may recommend the inclusion. 28

And while in one respect, the Ombudsman Law, the Administrative Code of 1987 and the Local Government Code are in pari
materia insofar as the three laws relate or deal with public officers, the similarity ends there. It is a principle in statutory
construction that where there are two statutes that apply to a particular case, that which was specially designed for the said case
must prevail over the other. 29 In the instant case, the acts attributed to petitioner could have been the subject of administrative
disciplinary proceedings before the Office of the President under the Local Government Code or before the Office of the
Ombudsman under the Ombudsman Act. Considering however, that petitioner was charged under the Ombudsman Act, it is this
law alone which should govern his case.

Respondents, through the Office of the Solicitor General, argue that the ruling against execution pending review of the
Ombudsman's decision grants a one-sided protection to the offender found guilty of misconduct in office and nothing at all to the
government as the aggrieved party. The offender, according to respondents, can just let the case drag on until the expiration of
his office or his reelection as by then, the case against him shall become academic and his offense, obliterated. As such,
respondents conclude, the government is left without further remedy and is left helpless in its own fight against graft and
corruption.

We find this argument much too speculative to warrant serious consideration. If it perceived that the fight against graft and
corruption is hampered by the inadequacy of the provisions of the Ombudsman Act, the remedy lies not with this Court but by
legislative amendment.

As regards the contention of the Office of the Ombudsman that under Sec. 13(8), Article XI of the 1987 Constitution, the Office of
the Ombudsman is empowered to "(p)romulgate its rules of procedure and exercise such other powers or perform such functions
or duties as may be provided by law," suffice it to note that the Ombudsman rules of procedure, Administrative Order No. 07,
mandate that decisions of the Office of the Ombudsman where the penalty imposed is other than public censure or reprimand,
suspension of not more than one month salary or fine equivalent to one month salary are still appealable and hence, not final
and executory. Under these rules, which were admittedly promulgated by virtue of the rule-making power of the Office of the
Ombudsman, the decision imposing a penalty of one year suspension without pay on petitioner Lapid is not immediately
executory.

WHEREFORE, the Motions for Reconsideration filed by the Office of the Solicitor General and the Office of the Ombudsman are
hereby DENIED for lack of merit.1âwphi1.nêt

SO ORDERED.

G.R. No. 123169 November 4, 1996

DANILO E. PARAS, petitioner,

vs.
COMMISSION ON ELECTIONS, respondent.

RESOLUTION

FRANCISCO, J.:

Petitioner Danilo E. Paras is the incumbent Punong Barangay of Pula, Cabanatuan City who won during the last regular
barangay election in 1994. A petition for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting
on the petition for recall, public respondent Commission on Elections (COMELEC) resolved to approve the petition, scheduled
the petition signing on October 14, 1995, and set the recall election on November 13,
1995.1 At least 29.30% of the registered voters signed the petition, well above the 25% requirement provided by law. The
COMELEC, however, deferred the recall election in view of petitioner's opposition. On December 6, 1995, the COMELEC set
anew the recall election, this time on December 16, 1995. To prevent the holding of the recall election, petitioner filed before the
Regional Trial Court of Cabanatuan City a petition for injunction, docketed as SP Civil Action No. 2254-AF, with the trial court
issuing a temporary restraining order. After conducting a summary hearing, the trial court lifted the restraining order, dismissed
the petition and required petitioner and his counsel to explain why they should not be cited for contempt for misrepresenting that
the barangay recall election was without COMELEC approval.2

In a resolution dated January 5, 1996, the COMELEC, for the third time, re-scheduled the recall election an January 13, 1996;
hence, the instant petition for certiorari with urgent prayer for injunction. On January 12, 1996, the Court issued a temporary
restraining order and required the Office of the Solicitor General, in behalf of public respondent, to comment on the petition. In
view of the Office of the Solicitor General's manifestation maintaining an opinion adverse to that of the COMELEC, the latter
through its law department filed the required comment. Petitioner thereafter filed a reply.3

Petitioner's argument is simple and to the point. Citing Section 74 (b) of Republic Act No. 7160, otherwise known as the Local
Government Code, which states that "no recall shall take place within one (1) year from the date of the official's assumption to
office or one (1) year immediately preceding a regular local election", petitioner insists that the scheduled January 13, 1996 recall
election is now barred as the Sangguniang Kabataan (SK) election was set by Republic Act No. 7808 on the first Monday of May
1996, and every three years thereafter. In support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237
SCRA 621, where the Court considered the SK election as a regular local election. Petitioner maintains that as the SK election is
a regular local election, hence no recall election can be had for barely four months separate the SK election from the recall
election. We do not agree.

The subject provision of the Local Government Code provides:

Sec. 74. Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once
during his term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1)
year immediately preceding a regular local election.

[Emphasis added]

It is a rule in statutory construction that every part of the statute must be interpreted with reference to the context, i.e., that every
part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole
enactment.4 The evident intent of Section 74 is to subject an elective local official to recall election once during his term of office.
Paragraph (b) construed together with paragraph (a) merely designates the period when such elective local official may be
subject of a recall election, that is, during the second year of his term of office. Thus, subscribing to petitioner's interpretation of
the phrase regular local election to include the SK election will unduly circumscribe the novel provision of the Local Government
Code on recall, a mode of removal of public officers by initiation of the people before the end of his term. And if the SK election
which is set by R.A No. 7808 to be held every three years from May 1996 were to be deemed within the purview of the phrase
"regular local election", as erroneously insisted by petitioner, then no recall election can be conducted rendering inutile the recall
provision of the Local Government Code.

In the interpretation of a statute, the Court should start with the assumption that the legislature intended to enact an effective law,
and the legislature is not presumed to have done a vain thing in the enactment of a statute. 5 An interpretation should, if possible,
be avoided under which a statute or provision being construed is defeated, or as otherwise expressed, nullified, destroyed,
emasculated, repealed, explained away, or rendered insignificant, meaningless, inoperative or nugatory.6

It is likewise a basic precept in statutory construction that a statute should be interpreted in harmony with the Constitution.7 Thus,
the interpretation of Section 74 of the Local Government Code, specifically paragraph (b) thereof, should not be in conflict with
the Constitutional mandate of Section 3 of Article X of the Constitution to "enact a local government code which shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization with effective
mechanism of recall, initiative, and referendum . . . ."

Moreover, petitioner's too literal interpretation of the law leads to absurdity which we cannot countenance. Thus, in a case, the
Court made the following admonition:

We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purpose and
defeat the intention of its authors. That intention is usually found not in "the letter that killeth but in the spirit that
vivifieth". . .8

The spirit, rather than the letter of a law determines its construction; hence, a statute, as in this case, must be read
according to its spirit and intent.

Finally, recall election is potentially disruptive of the normal working of the local government unit necessitating additional
expenses, hence the prohibition against the conduct of recall election one year immediately preceding the regular local election.
The proscription is due to the proximity of the next regular election for the office of the local elective official concerned. The
electorate could choose the official's replacement in the said election who certainly has a longer tenure in office than a successor
elected through a recall election. It would, therefore, be more in keeping with the intent of the recall provision of the Code to
construe regular local election as one referring to an election where the office held by the local elective official sought to be
recalled will be contested and be filled by the electorate.
Nevertheless, recall at this time is no longer possible because of the limitation stated under Section 74 (b) of the Code
considering that the next regular election involving the barangay office concerned is barely seven (7) months away, the same
having been scheduled on May 1997. 9

ACCORDINGLY, the petition is hereby dismissed for having become moot and academic. The temporary restraining order
issued by the Court on January 12, 1996, enjoining the recall election should be as it is hereby made permanent.

SO ORDERED.

G.R. No. 140560 May 4, 2000

JOVITO O. CLAUDIO, petitioner,

vs.
COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and RICHARD
ADVINCULA, respondents.

G.R. No. 140714 May 4, 2000

PREPARATORY RECALL ASSEMBLY OF PASAY CITY, herein represented by its Chairman, RICHARD
ADVINCULA, petitioner,
vs.
THE COMMISSION ON ELECTIONS, DEPARTMENT OF BUDGET AND MANAGEMENT, COMMISSION ON AUDIT and HON.
JOVITO O. CLAUDIO, respondents.

MENDOZA, J.:

These are petitions arising from the proceedings initiated by the Preparatory Recall Assembly of Pasay City (PRA) in the
Commission on Elections in E.M. No. 99-005 entitled IN THE MATTER OF THE PREPARATORY RECALL ASSEMBLY
RESOLUTION NO. 01, S-1999 ADOPTED ON 29 MAY 1999 FOR THE RECALL OF MAYOR JOVITO CLAUDIO OF PASAY
CITY. G.R. No. 140560 is a petition for certiorari and prohibition, seeking the nullification of the resolution, 1 dated October 18,
1999, of the COMELEC giving due course to the petition for the recall of petitioner Jovito O. Claudio as mayor of Pasay City. On
the other hand, G.R. No. 140714 is a petition for mandamus filed by the PRA, represented by its Chair, Richard Advincula, to
compel the COMELEC to set the date for the holding of recall elections in Pasay City pursuant to the aforecited resolution of the
COMELEC.

The facts are as follows:

Jovito O. Claudio, petitioner in G.R. No. 140560, was the duly elected mayor of Pasay City in the May 11, 1998 elections. He
assumed office on July 1, 1998.

Sometime during the second week of May 1999, the chairs of several barangays in Pasay City gathered to discuss the possibility
of filing a petition for recall against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of barangay chair
Benjamin Lim, Jr. in Barangay 11, Zone 4, Pasay City, several barangay chairs formed an ad hoc committee for the purpose of
convening the PRA. Richard Advincula, private respondent in G.R. No. 140560 and petitioner in G.R. No. 140714, was
designated chair.

On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and sangguniang kabataan chairs of
Pasay City, adopted Resolution No. 01, S-1999, entitled RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO
AS MAYOR OF PASAY CITY FOR LOSS OF CONFIDENCE. In a letter dated June 29, 1999, Advincula, as chair of the PRA,
invited the Mayor, Vice-Mayor, Station Commander, and thirteen (13) Councilors of Pasay City to witness the formal submission
to the Office of the Election Officer on July 2, 1999 of the petition for recall.

As scheduled, the petition for recall was filed on July 2, 1999, accompanied by an affidavit of service of the petition on the Office
of the City Mayor. Pursuant to the rules of the COMELEC, copies of the petition were posted on the bulletin boards of the local
COMELEC office, the City Hall, the Police Department, the public market at Libertad St. and Taft Avenue, and at the entrance of
the Sta. Clara Church on P. Burgos St., all in Pasay City. Subsequently, a verification of the authenticity of the signatures on the
resolution was conducted by Ligaya Salayon, the election officer for Pasay City designated by the COMELEC.

Oppositions to the petition were filed by petitioner Jovito O. Claudio, Rev. Ronald Langub, and Roberto L. Angeles, alleging
procedural and substantive defects in the petition, to wit: (1) the signatures affixed to the resolution were actually meant to show
attendance at the PRA meeting; (2) most of the signatories were only representatives of the parties concerned who were sent
there merely to observe the proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the
election case, 2 filed by Wenceslao Trinidad in this Court, seeking the annulment of the proclamation of petitioner Claudio as
mayor of Pasay City, should first be decided before recall proceedings against petitioner could be filed; and (5) the recall
resolution failed to obtain the majority of all the members of the PRA, considering that 10 were actually double entries, 14 were
not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay
chairs executed affidavits of retraction.

In its resolution of October 18, 1999, the COMELEC granted the petition for recall and dismissed the oppositions against it. On
the issue of whether the PRA was constituted by a majority of its members, the COMELEC held that the 1,073 members who
attended the May 29, 1999 meeting were more than necessary to constitute the PRA, considering that its records showed the
total membership of the PRA was 1,790, while the statistics of the Department of Interior and Local Government (DILG) showed
that the total membership of the PRA was 1,876. In either case, since only a majority is required to constitute the PRA, clearly, a
majority had been obtained in support of the recall resolution. Based on the verification made by election officer Ligaya Salayon,
the COMELEC found the signatures of 958 members of the PRA sufficient. On whether the pendency of the case questioning the
proclamation of petitioner was a prejudicial question which must first be decided before any recall election could be held, the
COMELEC ruled that it was not and that petitioner was merely using the pendency of the case to delay the recall proceedings.
Finally, on whether the petition for recall violated the bar on recall within one year from the elective official's assumption of office,
the COMELEC ruled in the negative, holding that recall is a process which starts with the filing of the petition for recall. Since the
petition was filed on July 2, 1999, exactly one year and a day after petitioner Claudio's assumption of office, it was held that the
petition was filed on time.

Hence, these petitions. Oral arguments were held in these cases in Baguio City on April 4, 2000, after which the Court, by the
vote of 8 to 6 of its members, 3 resolved to dismiss the petition in G.R. No. 140560 for lack of showing that the COMELEC
committed a grave abuse of discretion. On the other hand, the Court unanimously dismissed the petition in G.R. No. 140714 on
the ground that the issue raised therein had become moot and academic.

We now proceed to explain the grounds for our resolution.

In its Resolution No. 3121, dated March 9, 2000, the COMELEC set the date of the recall elections in Pasay City on April 15,
2000. Consequently, the petition for mandamus in G.R. No. 140714 to compel the COMELEC to fix a date for the recall elections
in Pasay City is no longer tenable. We are thus left with only petitioner Claudio's action for certiorari and prohibition.

The bone of contention in this case is §74 of the Local Government Code (LCG) 4 which provides:

Limitations on Recall. — (a) Any elective local official may be the subject of a recall election only once during his
term of office for loss of confidence.

(b) No recall shall take place within one (1) year from the date of the official's assumption to office or one (1)
year immediately preceding a regular local election.

As defined at the hearing of these cases on April 4, 2000, the issues are:

WHETHER, under Section 74 of the Local Government Code of 1991 (R.A. No. 7160) . . . .

A. The word "recall" in paragraph (b) covers a process which includes the convening of the Preparatory Recall
Assembly and its approval of the recall resolution.

B. The term "regular local election" in the last clause of paragraph (b) includes the election period for that regular
election or simply the date of such election.

(1)

On Whether the Word "Recall" in Paragraph (b) of §74 of the Local Government Code Includes the Convening of
the Preparatory Recall Assembly and the Filing by it of a Recall Resolution.

Petitioner contends that the term "recall" in §74(b) refers to a process, in contrast to the term "recall election" found in §74(a),
which obviously refers to an election. He claims that "when several barangay chairmen met and convened on May 19, 1999 and
unanimously resolved to initiate the recall, followed by the taking of votes by the PRA on May 29, 1999 for the purpose of
adopting a resolution "to initiate the recall of Jovito Claudio as Mayor of Pasay City for loss of confidence," the process of recall
began" and, since May 29, 1999 was less than a year after he had assumed office, the PRA was illegally convened and all
proceedings held thereafter, including the filing of the recall petition on July 2, 1999, were null and void.
The COMELEC, on the other hand, maintains that the process of recall starts with the filing of the petition for recall and ends with
the conduct of the recall election, and that, since the petition for recall in this case was filed on July 2, 1999, exactly one year and
a day after petitioner's assumption of office, the recall was validly initiated outside the one-year prohibited period.

Both petitioner Claudio and the COMELEC thus agree that the term "recall" as used in §74 refers to a process. They disagree
only as to when the process starts for purposes of the one-year limitation in paragraph (b) of §74.

We can agree that recall is a process which begins with the convening of the preparatory recall assembly or the gathering of the
signatures at least 25% of the registered voters of a local government unit, and then proceeds to the filing of a recall resolution or
petition with the COMELEC, the verification of such resolution or petition, the fixing of the date of the recall election, and the
holding of the election on the scheduled date. 5 However, as used in paragraph (b) of §74, "recall" refers to the election itself by
means of which voters decide whether they should retain their local official or elect his replacement. Several reasons can be
cited in support of this conclusion.

First, §74 deals with restrictions on the power of recall. It is in fact entitled "Limitations on Recall." On the other hand, §69
provides that "the power of recall . . . shall be exercised by the registered voters of a local government unit to which the local
elective official belongs." Since the power vested on the electorate is not the power to initiate recall proceedings 6 but the power
to elect an official into office, the limitations in §74 cannot be deemed to apply to the entire recall proceedings. In other words,
the term "recall" in paragraph (b) refers only to the recall election, excluding the convening of the PRA and the filing of a petition
for recall with the COMELEC, or the gathering of the signatures of at least 25 % of the voters for a petition for recall.

Thus, there may be several PRAs held (as in the case of Bataan Province in 1993) or petitions for recall filed with the COMELEC
— there is no legal limit on the number of times such processes may be resorted to. These are merely preliminary steps for the
purpose of initiating a recall. The limitations in §74 apply only to the exercise of the power of recall which is vested in the
registered voters. It is this — and not merely the preliminary steps required to be taken to initiate a recall — which paragraph (b) of
§74 seeks to limit by providing that no recall shall take place within one year from the date of assumption of office of an elective
local official.

Indeed, this is the thrust of the ruling in Garcia v. COMELEC 7 where two objections were raised against the legality of PRAs: (1)
that even the power to initiate recall proceedings is the sole prerogative of the electorate which cannot be delegated to PRAs,
and (2) that by vesting this power in a PRA, the law in effect unconstitutionally authorizes it to shorten the term of office of
incumbent elective local officials. Both objections were dismissed on the ground that the holding of a PRA is not the recall itself.
With respect to the first objection, it was held that it is the power to recall and not the power to initiate recall that the Constitution
gave to the people. With respect to the second objection, it was held that a recall resolution "merely sets the stage for the official
concerned before the tribunal of the people so he can justify why he should be allowed to continue in office. [But until] the people
render their sovereign judgment, the official concerned remains in office . . . ."

If these preliminary proceedings do not produce a decision by the electorate on whether the local official concerned continues to
enjoy the confidence of the people, then, the prohibition in paragraph (b) against the holding of a recall, except one year after the
official's assumption of office, cannot apply to such proceedings.

The second reason why the term "recall" in paragraph (b) refers to recall election is to be found in the purpose of the limitation
itself. There are two limitations in paragraph (b) on the holding of recalls: (1) that no recall shall take place within one year from
the date of assumption of office of the official concerned, and (2) that no recall shall take place within one year immediately
preceding a regular local election.

The purpose of the first limitation is to provide a reasonable basis for judging the performance of an elective local official. In the
Bower case 8 cited by this Court in Angobung v. COMELEC, 9 it was held that "The only logical reason which we can ascribe for
requiring the electors to wait one year before petitioning for a recall election is to prevent premature action on their part in voting
to remove a newly elected official before having had sufficient time to evaluate the soundness of his policies and decisions." The
one-year limitation was reckoned as of the filing of a petition for recall because the Municipal Code involved in that case
expressly provided that "no removal petition shall be filed against any officer or until he has actually held office for at least twelve
months." But however the period of prohibition is determined, the principle announced is that the purpose of the limitation is to
provide a reasonable basis for evaluating the performance of an elective local official. Hence, in this case, as long as the election
is held outside the one-year period, the preliminary proceedings to initiate a recall can be held even before the end of the first
year in office of a local official.

It cannot be argued that to allow recall proceedings to be initiated before the official concerned has been in office for one-year
would be to allow him to be judged without sufficient basis. As already stated, it is not the holding of PRA nor the adoption of
recall resolutions that produces a judgment on the performance of the official concerned; it is the vote of the electorate in the
election that does. Therefore, as long as the recall election is not held before the official concerned has completed one year in
office, he will not be judged on his performance prematurely.
Third, to construe the term "recall" in paragraph (b) as including the convening of the PRA for the purpose of discussing the
performance in office of elective local officials would be to unduly restrict the constitutional right of speech and of assembly of its
members. The people cannot just be asked on the day of the election to decide on the performance of their officials. The
crystallization and formation of an informed public opinion takes time. To hold, therefore, that the first limitation in paragraph (b)
includes the holding of assemblies for the exchange of ideas and opinions among citizens is to unduly curtail one of the most
cherished rights in a free society. Indeed, it is wrong to assume that such assemblies will always eventuate in a recall election.
To the contrary, they may result in the expression of confidence in the incumbent.

Our esteemed colleague Justice Puno says in his dissent that the purpose of the one-year period in paragraph (b) is to provide
the local official concerned a "period of repose" during which "[his] attention should not be distracted by any impediment,
especially by disturbance due to political partisanship." Unfortunately, the law cannot really provide for a period of honeymoon or
moratorium in politics. From the day an elective official assumes office, his acts become subject to scrutiny and criticism, and it is
not always easy to determine when criticism of his performance is politically motivated and when it is not. The only safeguard
against the baneful and enervating effects of partisan politics is the good sense and self restraint of the people and its leaders
against such shortcomings of our political system. A respite from partisan politics may have the incidental effect of providing
respite from partisanship, but that is not really the purpose of the limitation on recall under the law. The limitation is only intended
to provide a sufficient basis for evaluating and judging the performance of an elected local official.

In any event, it is argued that the judgments of PRAs are not "as politically unassailable as recalls initiated directly by the
people." Justice Puno cites the "embarrassing repudiation by the people of [Kaloocan City's] Preparatory Recall Assembly"
when, instead of ousting Mayor Rey Malonzo, they reelected him.

Two points may be made against this argument.

One is that it is no disparagement of the PRA that in the ensuing election the local official whose recall is sought is actually
reelected. Laws converting municipalities into cities and providing for the holding of plebiscites during which the question of
cityhood is submitted to the people for their approval are not always approved by the people. Yet, no one can say that Congress
is not a good judge of the will of the voters in the locality. In the case of recall elections in Kaloocan City, had it been shown that
the PRA was resorted to only because those behind the move to oust the incumbent mayor failed to obtain the signatures of 25%
of the voters of that city to a petition for his recall, there may be some plausibility for the claim that PRAs are not as good a gauge
of the people's will as are the 25 % of the voters.

Indeed, recalls initiated directly by 25% of the registered voters of a local government unit cannot be more representative of the
sentiments of the people than those initiated by PRAs whose members represent the entire electorate in the local government
unit. Voters who directly initiate recalls are just as vulnerable to political maneuverings or manipulations as are those composing
PRAs.

The other point regarding Justice Puno's claim is that the question here is not whether recalls initiated by 25% of the voters are
better. The issue is whether the one-year period of limitation in paragraph (b) includes the convening of the PRA. Given that
question, will convening the PRA outside this period make it any more representative of the people, as the petition filed by 25%
of the registered voters is claimed to be?

To sum up, the term "recall" in paragraph (b) refers to the recall election and not to the preliminary proceedings to initiate recall —

1. Because §74 speaks of limitations on "recall" which, according to §69, is a power which shall be exercised by
the registered voters of a local government unit. Since the voters do not exercise such right except in an
election, it is clear that the initiation of recall proceedings is not prohibited within the one-year period provided in
paragraph (b);

2. Because the purpose of the first limitation in paragraph (b) is to provide voters a sufficient basis for judging an
elective local official, and final judging is not done until the day of the election; and

3. Because to construe the limitation in paragraph (b) as including the initiation of recall proceedings would
unduly curtail freedom of speech and of assembly guaranteed in the Constitution.

As the recall election in Pasay City is set on April 15, 2000, more than one year after petitioner assumed office as mayor of that
city, we hold that there is no bar to its holding on that date.

(2)

On Whether the Phrase "Regular Local Election" in the Same Paragraph (b) of §74 of the Local Government
Code includes the Election Period for that Regular Election or Simply the Date of Such Election.
Petitioner contends, however, that the date set by the COMELEC for the recall election is within the second period of prohibition
in paragraph (b). He argues that the phrase "regular local elections" in paragraph (b) does not only mean "the day of the regular
local election" which, for the year 2001 is May 14, but the election period as well, which is normally at least forty five (45) days
immediately before the day of the election. Hence, he contends that beginning March 30, 2000, no recall election may be held.

This contention is untenable.

The law is unambiguous in providing that "[n]o recall shall take place within . . . one (1) year immediately preceding a regular
local election." Had Congress intended this limitation to refer to the campaign period, which period is defined in the Omnibus
Election Code, 10 it could have expressly said so.

Moreover, petitioner's interpretation would severely limit the period during which a recall election may be held. Actually, because
no recall election may be held until one year after the assumption of office of an elective local official, presumably on June 30
following his election, the free period is only the period from July 1 of the following year to about the middle of May of the
succeeding year. This is a period of only nine months and 15 days, more or less. To construe the second limitation in paragraph
(b) as including the campaign period would reduce this period to eight months. Such an interpretation must be rejected, because
it would devitalize the right of recall which is designed to make local government units "more responsive and accountable."

Indeed, there is a distinction between election period and campaign period. Under the Omnibus Election Code, 11unless
otherwise fixed by the COMELEC, the election period commences ninety (90) days before the day of the election and ends thirty
(30) days thereafter. Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the "election
period" would emasculate even more a vital right of the people.

To recapitulate the discussion in parts 1 and 2, §74 imposes limitations on the holding of recall elections. First, paragraph (a)
prohibits the holding of such election more than once during the term of office of an elective local official. Second, paragraph (b)
prohibits the holding of such election within one year from the date the official assumed office. And third, paragraph (b) prohibits
the holding of a recall election within one year immediately preceding a regular local election. As succinctly stated in Paras
v. COMELEC, 12 "[p]aragraph (b) construed together with paragraph (a) merely designates the period when such elective local
official may be subject to recall election, that is, during the second year of office."

(3)

On Whether the Recall RESOLUTION was Signed by a Majority of the PRA and Duly Verified.

Petitioner alleges other grounds for seeking the annulment of the resolution of the COMELEC ordering the holding of a recall
election. He contends that a majority of the signatures of the members of the PRA was not obtained because 74 members did
not really sign the recall resolution. According to petitioner, the 74 merely signed their names on pages 94-104 of the resolution
to signify their attendance and not their concurrence. Petitioner claims that this is shown by the word "Attendance" written by
hand at the top of the page on which the signatures of the 74 begin.

This contention has no basis. To be sure, this claim is being raised for the first time in this case. It was not raised before the
COMELEC, in which the claim made by petitioner was that some of the names in the petition were double entries, that some
members had withdrawn their support for the petition, and that Wenceslao Trinidad's pending election protest was a prejudicial
question which must first be resolved before the petition for recall could be given due course. The order of the COMELEC
embodying the stipulations of the parties and defining the issues to be resolved does not include the issue now being raised by
petitioner.

Although the word "Attendance" appears at the top of the page, it is apparent that it was written by mistake because it was
crossed out by two parallel lines drawn across it. Apparently, it was mistaken for the attendance sheet which is a separate
document. It is absurd to believe that the 74 members of the PRA who signed the recall resolution signified their attendance at
the meeting twice. It is more probable to believe that they signed pages 94-104 to signify their concurrence in the recall
resolution of which the pages in question are part.

The other point raised by petitioner is that the recall petition filed in the COMELEC was not duly verified, because Atty. Nelson
Ng, who notarized it, is not commissioned as notary public for Pasay City but for Makati City. As in the case of the first claim, this
issue was not raised before the COMELEC itself. It cannot, therefore, be raised now.

WHEREFORE, G.R. No. 140560 is DISMISSED for lack of merit, while the petition in G.R. No. 140714 is DISMISSED for having
been rendered moot and academic.

SO ORDERED.
G.R. No. L-11154 March 21, 1916

E. MERRITT, plaintiff-appellant,
vs.
GOVERNMENT OF THE PHILIPPINE ISLANDS, defendant-appellant.

Crossfield and O'Brien for plaintiff.

Attorney-General Avanceña for defendant..

TRENT, J.:

This is an appeal by both parties from a judgment of the Court of First Instance of the city of Manila in favor of the plaintiff for the
sum of P14,741, together with the costs of the cause.

Counsel for the plaintiff insist that the trial court erred (1) "in limiting the general damages which the plaintiff suffered to P5,000,
instead of P25,000 as claimed in the complaint," and (2) "in limiting the time when plaintiff was entirely disabled to two months
and twenty-one days and fixing the damage accordingly in the sum of P2,666, instead of P6,000 as claimed by plaintiff in his
complaint."

The Attorney-General on behalf of the defendant urges that the trial court erred: (a) in finding that the collision between the
plaintiff's motorcycle and the ambulance of the General Hospital was due to the negligence of the chauffeur; (b) in holding that
the Government of the Philippine Islands is liable for the damages sustained by the plaintiff as a result of the collision, even if it
be true that the collision was due to the negligence of the chauffeur; and (c) in rendering judgment against the defendant for the
sum of P14,741.

The trial court's findings of fact, which are fully supported by the record, are as follows:

It is a fact not disputed by counsel for the defendant that when the plaintiff, riding on a motorcycle, was going toward the
western part of Calle Padre Faura, passing along the west side thereof at a speed of ten to twelve miles an hour, upon
crossing Taft Avenue and when he was ten feet from the southwestern intersection of said streets, the General Hospital
ambulance, upon reaching said avenue, instead of turning toward the south, after passing the center thereof, so that it
would be on the left side of said avenue, as is prescribed by the ordinance and the Motor Vehicle Act, turned suddenly
and unexpectedly and long before reaching the center of the street, into the right side of Taft Avenue, without having
sounded any whistle or horn, by which movement it struck the plaintiff, who was already six feet from the southwestern
point or from the post place there.

By reason of the resulting collision, the plaintiff was so severely injured that, according to Dr. Saleeby, who examined
him on the very same day that he was taken to the General Hospital, he was suffering from a depression in the left
parietal region, a would in the same place and in the back part of his head, while blood issued from his nose and he was
entirely unconscious.

The marks revealed that he had one or more fractures of the skull and that the grey matter and brain was had suffered
material injury. At ten o'clock of the night in question, which was the time set for performing the operation, his pulse was
so weak and so irregular that, in his opinion, there was little hope that he would live. His right leg was broken in such a
way that the fracture extended to the outer skin in such manner that it might be regarded as double and the would be
exposed to infection, for which reason it was of the most serious nature.

At another examination six days before the day of the trial, Dr. Saleeby noticed that the plaintiff's leg showed a
contraction of an inch and a half and a curvature that made his leg very weak and painful at the point of the fracture.
Examination of his head revealed a notable readjustment of the functions of the brain and nerves. The patient apparently
was slightly deaf, had a light weakness in his eyes and in his mental condition. This latter weakness was always noticed
when the plaintiff had to do any difficult mental labor, especially when he attempted to use his money for mathematical
calculations.

According to the various merchants who testified as witnesses, the plaintiff's mental and physical condition prior to the
accident was excellent, and that after having received the injuries that have been discussed, his physical condition had
undergone a noticeable depreciation, for he had lost the agility, energy, and ability that he had constantly displayed
before the accident as one of the best constructors of wooden buildings and he could not now earn even a half of the
income that he had secured for his work because he had lost 50 per cent of his efficiency. As a contractor, he could no
longer, as he had before done, climb up ladders and scaffoldings to reach the highest parts of the building.

As a consequence of the loss the plaintiff suffered in the efficiency of his work as a contractor, he had to dissolved the
partnership he had formed with the engineer. Wilson, because he was incapacitated from making mathematical
 calculations on account of the condition of his leg and of his mental faculties, and he had to give up a contract he had for
the construction of the Uy Chaco building."

We may say at the outset that we are in full accord with the trial court to the effect that the collision between the plaintiff's
motorcycle and the ambulance of the General Hospital was due solely to the negligence of the chauffeur.

The two items which constitute a part of the P14,741 and which are drawn in question by the plaintiff are (a) P5,000, the award
awarded for permanent injuries, and (b) the P2,666, the amount allowed for the loss of wages during the time the plaintiff was
incapacitated from pursuing his occupation. We find nothing in the record which would justify us in increasing the amount of the
first. As to the second, the record shows, and the trial court so found, that the plaintiff's services as a contractor were worth
P1,000 per month. The court, however, limited the time to two months and twenty-one days, which the plaintiff was actually
confined in the hospital. In this we think there was error, because it was clearly established that the plaintiff was wholly
incapacitated for a period of six months. The mere fact that he remained in the hospital only two months and twenty-one days
while the remainder of the six months was spent in his home, would not prevent recovery for the whole time. We, therefore, find
that the amount of damages sustained by the plaintiff, without any fault on his part, is P18,075.

As the negligence which caused the collision is a tort committed by an agent or employee of the Government, the inquiry at once
arises whether the Government is legally-liable for the damages resulting therefrom.

Act No. 2457, effective February 3, 1915, reads:

An Act authorizing E. Merritt to bring suit against the Government of the Philippine Islands and authorizing the Attorney-
General of said Islands to appear in said suit.

Whereas a claim has been filed against the Government of the Philippine Islands by Mr. E. Merritt, of Manila, for
damages resulting from a collision between his motorcycle and the ambulance of the General Hospital on March twenty-
fifth, nineteen hundred and thirteen;

Whereas it is not known who is responsible for the accident nor is it possible to determine the amount of damages, if
any, to which the claimant is entitled; and

Whereas the Director of Public Works and the Attorney-General recommended that an Act be passed by the Legislature
authorizing Mr. E. Merritt to bring suit in the courts against the Government, in order that said questions may be decided:
Now, therefore,

By authority of the United States, be it enacted by the Philippine Legislature, that:

SECTION 1. E. Merritt is hereby authorized to bring suit in the Court of First Instance of the city of Manila against the
Government of the Philippine Islands in order to fix the responsibility for the collision between his motorcycle and the
ambulance of the General Hospital, and to determine the amount of the damages, if any, to which Mr. E. Merritt is
entitled on account of said collision, and the Attorney-General of the Philippine Islands is hereby authorized and directed
to appear at the trial on the behalf of the Government of said Islands, to defendant said Government at the same.

SEC. 2. This Act shall take effect on its passage.

Enacted, February 3, 1915.

Did the defendant, in enacting the above quoted Act, simply waive its immunity from suit or did it also concede its liability to the
plaintiff? If only the former, then it cannot be held that the Act created any new cause of action in favor of the plaintiff or extended
the defendant's liability to any case not previously recognized.

All admit that the Insular Government (the defendant) cannot be sued by an individual without its consent. It is also admitted that
the instant case is one against the Government. As the consent of the Government to be sued by the plaintiff was entirely
voluntary on its part, it is our duty to look carefully into the terms of the consent, and render judgment accordingly.

The plaintiff was authorized to bring this action against the Government "in order to fix the responsibility for the collision between
his motorcycle and the ambulance of the General Hospital and to determine the amount of the damages, if any, to which Mr. E.
Merritt is entitled on account of said collision, . . . ." These were the two questions submitted to the court for determination. The
Act was passed "in order that said questions may be decided." We have "decided" that the accident was due solely to the
negligence of the chauffeur, who was at the time an employee of the defendant, and we have also fixed the amount of damages
sustained by the plaintiff as a result of the collision. Does the Act authorize us to hold that the Government is legally liable for that
amount? If not, we must look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having been "modeled after the Federal and State Governments in the United States,"
we may look to the decisions of the high courts of that country for aid in determining the purpose and scope of Act No. 2457.

In the United States the rule that the state is not liable for the torts committed by its officers or agents whom it employs, except
when expressly made so by legislative enactment, is well settled. "The Government," says Justice Story, "does not undertake to
guarantee to any person the fidelity of the officers or agents whom it employs, since that would involve it in all its operations in
endless embarrassments, difficulties and losses, which would be subversive of the public interest." (Claussen vs. City of
Luverne, 103 Minn., 491, citing U. S. vs. Kirkpatrick, 9 Wheat, 720; 6 L. Ed., 199; and Beers vs. States, 20 How., 527; 15 L. Ed.,
991.)

In the case of Melvin vs. State (121 Cal., 16), the plaintiff sought to recover damages from the state for personal injuries received
on account of the negligence of the state officers at the state fair, a state institution created by the legislature for the purpose of
improving agricultural and kindred industries; to disseminate information calculated to educate and benefit the industrial classes;
and to advance by such means the material interests of the state, being objects similar to those sought by the public school
system. In passing upon the question of the state's liability for the negligent acts of its officers or agents, the court said:

No claim arises against any government is favor of an individual, by reason of the misfeasance, laches, or unauthorized
exercise of powers by its officers or agents. (Citing Gibbons vs. U. S., 8 Wall., 269; Clodfelter vs. State, 86 N. C., 51, 53;
41 Am. Rep., 440; Chapman vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Green vs. State, 73 Cal., 29; Bourn vs. Hart,
93 Cal., 321; 27 Am. St. Rep., 203; Story on Agency, sec. 319.)

As to the scope of legislative enactments permitting individuals to sue the state where the cause of action arises out of either fort
or contract, the rule is stated in 36 Cyc., 915, thus:

By consenting to be sued a state simply waives its immunity from suit. It does not thereby concede its liability to plaintiff,
or create any cause of action in his favor, or extend its liability to any cause not previously recognized. It merely gives a
remedy to enforce a preexisting liability and submits itself to the jurisdiction of the court, subject to its right to interpose
any lawful defense.

In Apfelbacher vs. State (152 N. W., 144, advanced sheets), decided April 16, 1915, the Act of 1913, which authorized the
bringing of this suit, read:

SECTION 1. Authority is hereby given to George Apfelbacher, of the town of Summit, Waukesha County, Wisconsin, to
bring suit in such court or courts and in such form or forms as he may be advised for the purpose of settling and
determining all controversies which he may now have with the State of Wisconsin, or its duly authorized officers and
agents, relative to the mill property of said George Apfelbacher, the fish hatchery of the State of Wisconsin on the Bark
River, and the mill property of Evan Humphrey at the lower end of Nagawicka Lake, and relative to the use of the waters
of said Bark River and Nagawicka Lake, all in the county of Waukesha, Wisconsin.

In determining the scope of this act, the court said:

Plaintiff claims that by the enactment of this law the legislature admitted liability on the part of the state for the acts of its
officers, and that the suit now stands just as it would stand between private parties. It is difficult to see how the act does,
or was intended to do, more than remove the state's immunity from suit. It simply gives authority to commence suit for
the purpose of settling plaintiff's controversies with the estate. Nowhere in the act is there a whisper or suggestion that
the court or courts in the disposition of the suit shall depart from well established principles of law, or that the amount of
damages is the only question to be settled. The act opened the door of the court to the plaintiff. It did not pass upon the
question of liability, but left the suit just where it would be in the absence of the state's immunity from suit. If the
Legislature had intended to change the rule that obtained in this state so long and to declare liability on the part of the
state, it would not have left so important a matter to mere inference, but would have done so in express terms. (Murdock
Grate Co. vs. Commonwealth, 152 Mass., 28; 24 N.E., 854; 8 L. R. A., 399.)

In Denning vs. State (123 Cal., 316), the provisions of the Act of 1893, relied upon and considered, are as follows:

All persons who have, or shall hereafter have, claims on contract or for negligence against the state not allowed by the
state board of examiners, are hereby authorized, on the terms and conditions herein contained, to bring suit thereon
against the state in any of the courts of this state of competent jurisdiction, and prosecute the same to final judgment.
The rules of practice in civil cases shall apply to such suits, except as herein otherwise provided.

And the court said:

This statute has been considered by this court in at least two cases, arising under different facts, and in both it was held
that said statute did not create any liability or cause of action against the state where none existed before, but merely
 gave an additional remedy to enforce such liability as would have existed if the statute had not been enacted. (Chapman
vs. State, 104 Cal., 690; 43 Am. St. Rep., 158; Melvin vs. State, 121 Cal., 16.)

A statute of Massachusetts enacted in 1887 gave to the superior court "jurisdiction of all claims against the commonwealth,
whether at law or in equity," with an exception not necessary to be here mentioned. In construing this statute the court,
in Murdock Grate Co. vs. Commonwealth (152 Mass., 28), said:

The statute we are discussing disclose no intention to create against the state a new and heretofore unrecognized class
of liabilities, but only an intention to provide a judicial tribunal where well recognized existing liabilities can be
adjudicated.

In Sipple vs. State (99 N. Y., 284), where the board of the canal claims had, by the terms of the statute of New York, jurisdiction
of claims for damages for injuries in the management of the canals such as the plaintiff had sustained, Chief Justice Ruger
remarks: "It must be conceded that the state can be made liable for injuries arising from the negligence of its agents or servants,
only by force of some positive statute assuming such liability."

It being quite clear that Act No. 2457 does not operate to extend the Government's liability to any cause not previously
recognized, we will now examine the substantive law touching the defendant's liability for the negligent acts of its officers,
agents, and employees. Paragraph 5 of article 1903 of the Civil Code reads:

The state is liable in this sense when it acts through a special agent, but not when the damage should have been caused
by the official to whom properly it pertained to do the act performed, in which case the provisions of the preceding article
shall be applicable.

The supreme court of Spain in defining the scope of this paragraph said:

That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based,
as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence,
takes part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of
such provisions of law, is not responsible for the damages suffered by private individuals in consequence of acts
performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even
negligence can be presumed on the part of the state in the organization of branches of public service and in the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that
each branch of service serves the general weal an that of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where
the state acts as a judicial person capable of acquiring rights and contracting obligations. (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.)

That the Civil Code in chapter 2, title 16, book 4, regulates the obligations which arise out of fault or negligence; and
whereas in the first article thereof. No. 1902, where the general principle is laid down that where a person who by an act
or omission causes damage to another through fault or negligence, shall be obliged to repair the damage so done,
reference is made to acts or omissions of the persons who directly or indirectly cause the damage, the following articles
refers to this persons and imposes an identical obligation upon those who maintain fixed relations of authority and
superiority over the authors of the damage, because the law presumes that in consequence of such relations the evil
caused by their own fault or negligence is imputable to them. This legal presumption gives way to proof, however,
because, as held in the last paragraph of article 1903, responsibility for acts of third persons ceases when the persons
mentioned in said article prove that they employed all the diligence of a good father of a family to avoid the damage, and
among these persons, called upon to answer in a direct and not a subsidiary manner, are found, in addition to the mother
or the father in a proper case, guardians and owners or directors of an establishment or enterprise, the state, but not
always, except when it acts through the agency of a special agent, doubtless because and only in this case, the fault or
negligence, which is the original basis of this kind of objections, must be presumed to lie with the state.

That although in some cases the state might by virtue of the general principle set forth in article 1902 respond for all the
damage that is occasioned to private parties by orders or resolutions which by fault or negligence are made by branches
of the central administration acting in the name and representation of the state itself and as an external expression of its
sovereignty in the exercise of its executive powers, yet said article is not applicable in the case of damages said to have
been occasioned to the petitioners by an executive official, acting in the exercise of his powers, in proceedings to
enforce the collections of certain property taxes owing by the owner of the property which they hold in sublease.

That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent(and a
special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to
 any executive agent who is an employee of the acting administration and who on his own responsibility performs the
functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.)

That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others,
of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform some act or charged with some definite
purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to the proper responsibility in the manner
laid down by the law of civil responsibility. Consequently, the trial court in not so deciding and in sentencing the said
entity to the payment of damages, caused by an official of the second class referred to, has by erroneous interpretation
infringed the provisions of articles 1902 and 1903 of the Civil Code. (Supreme Court of Spain, July 30, 1911; 122 Jur.
Civ., 146.)

It is, therefore, evidence that the State (the Government of the Philippine Islands) is only liable, according to the above quoted
decisions of the Supreme Court of Spain, for the acts of its agents, officers and employees when they act as special agents
within the meaning of paragraph 5 of article 1903, supra, and that the chauffeur of the ambulance of the General Hospital was
not such an agent.

For the foregoing reasons, the judgment appealed from must be reversed, without costs in this instance. Whether the
Government intends to make itself legally liable for the amount of damages above set forth, which the plaintiff has sustained by
reason of the negligent acts of one of its employees, by legislative enactment and by appropriating sufficient funds therefor, we
are not called upon to determine. This matter rests solely with the Legislature and not with the courts.

G.R. No. L-1120 August 31, 1948

INOCENCIO ROSETE, petitioner,

vs.
THE AUDITOR GENERAL, respondent.

Quijano, Rosete and Tizon for petitioner.

First Assistant Solicitor General Jose B. L. Reyes and Solicitor Manuel Tomacruz for respondent.

FERIA, J.:

This is an appeal from the decision of the Insular Auditor denying the claim of Inocencio Rosete and others against the
Government in the amount of P35,376, for damages caused to buildings belonging to the claimant, which according to the
appellant's claim were destroyed by fire that came from the contiguous warehouse of the Emergency Control Administration,
ECA, located at No. 2262 Azcarraga, due to the negligence of a certain Jose Frayno y Panlilio in igniting recklessly his cigarette-
lighter near a five gallon drum into which gasoline was being drained, and of the officers of the said ECA, which is an office or
agency of the Government, in storing gasoline in said warehouse contrary to the provisions of Ordinances of the City of Manila.

It is not necessary for us to pass upon the facts alleged by the appellant, but only on the question whether, assuming them to be
true, the Insular Auditor erred in denying or dismissing the appellant's claim.

The claimant contends that the Auditor General erred in not finding that the government agency or instrumentality known as the
Emergency Control Administration of the officers thereof, were guilty of negligence in storing a highly combustible and
inflammable substance in its warehouse on bodega in Manila in violation of City Ordinances, and therefore the government is
liable for the damages sustained by the claimant under article 1903 of the Civil Code, which in its pertinent part reads as follows:

ART. 1903. The obligation imposed by the preceding article is enforceable not only for personal acts and omissions but
also for those persons for whom another is responsible.

xxx xxx xxx

The state is liable in the scene when it acts through a special agent, but not when the damage should have been caused
by the official to whom it properly pertained to do the act performed, in which case the provisions of the preceding article
shall be applicable.

In the case of Merritt vs. Government of the Philippine Islands (34 Phil., 311), this Court held the following:

. . . Paragraph 5 of article 1903 of the Civil Code reads:

 "The state is liable in this sense when it acts through a special agent, but not when the damage should have been
caused by the official to whom properly it pertained to do the act performed, in which cast the provisions of the preceding
article shall be applicable."

The supreme court of Spain in defining the scope of this paragraph said:

"That the obligation to indemnify for damages which a third person causes to another by his fault or negligence is based,
as is evidenced by the same Law 3, Title 15, Partida 7, on that the person obligated, by his own fault or negligence,
takes part in the act or omission of the third party who caused the damage. It follows therefrom that the state, by virtue of
such provisions of law, is not responsible for the damage suffered by private individuals in consequence of acts
performed by its employees in the discharge of the functions pertaining to their office, because neither fault nor even
negligence can be presumed on the part of the state in the organization of branches of the public service and the
appointment of its agents; on the contrary, we must presuppose all foresight humanly possible on its part in order that
each branch of service serves the general weal and that of private persons interested in its operation. Between these
latter and the state, therefore, no relations of a private nature governed by the civil law can arise except in a case where
the state acts as a judicial person capable of acquiring rights and contracting obligations." (Supreme Court of Spain,
January 7, 1898; 83 Jur. Civ., 24.).

xxx xxx xxx

"That the responsibility of the state is limited by article 1903 to the case wherein it acts through a special agent (and a
special agent, in the sense in which these words are employed, is one who receives a definite and fixed order or
commission, foreign to the exercise of the duties of his office if he is a special official) so that in representation of the
state and being bound to act as an agent thereof, he executes the trust confided to him. This concept does not apply to
any executive agent who is an employee of the active administration and who on his own responsibility performs the
functions which are inherent in and naturally pertain to his office and which are regulated by law and the regulations."
(Supreme Court of Spain, May 18, 1904; 98 Jur. Civ., 389, 390.).

"That according to paragraph 5 of article 1903 of the Civil Code and the principle laid down in a decision, among others,
of the 18th of May, 1904, in a damage case, the responsibility of the state is limited to that which it contracts through a
special agent, duly empowered by a definite order or commission to perform some act or charged with some definite
purpose which gives rise to the claim, and not where the claim is based on acts or omissions imputable to a public
official charged with some administrative or technical office who can be held to the proper responsibility. Consequently,
the trial court in not so deciding and in sentencing the said entity to the payment of damages, caused by an official of the
second class referred to, has by erroneous interpretation infringed the provisions of article 1902 and 1903 of the Civil
Code.' (Supreme Court of Spain, July 30, 1911; 122 Jur. Civ., 146.)"

There being no showing that whatever negligence may be imputed to the Emergency Control Administration or its officers, was
done by an special agent, because the officers of the Emergency Control Administration did not act as special agents of the
government within the above defined meaning of that word in article 1903 of the Civil Code in storing gasoline in warehouse of
the ECA, the government is not responsible for the damages caused through such negligence.

The case of Marine Trading vs. Government, 39 Phil., 29, cited by the appellant, is inapplicable, because the plaintiff in that case
recovered under the special provisions of articles 862, 827, 828 and 830 of the Code of Commerce and the Philippine Marine
Regulations of the Collector of Customs, regarding collision of vessels, and not on the ground of tort in general provided for in
article 1903 of the Civil Code.

Act No. 327, in authorizing the filing of claims against the Government with the Insular Auditor, and appeal by the private persons
or entities from the latter's decision to the Supreme Court, does not make any and all claims against the Government allowable,
and the latter responsible for all claims which may be filed with the Insular Auditor under the provisions of said Act.

In view of the foregoing, the decision appealed from is affirmed.

G.R. No. L-20322 May 29, 1968

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HON. PERFECTO R. PALACIO, as Judge of the Court of First Instance of Camarines Sur,
MACARIO M. OFILADA, as ex-officio Sheriff of Manila, and ILDEFONSO ORTIZ, respondents.

Office of the Solicitor General for petitioner.

Luis Contreras for respondents.
REYES, J.B.L., J.:

This is a petition for review of the decision of the Court of Appeals (in CA-G.R. No. 30915), dismissing the original action for
certiorari and prohibition filed with said Court by herein petitioner Republic of the Philippines, to restrain the enforcement of a writ
of execution (issued by the Court of First Instance of Camarines Sur in its Civil Case No. 4886) on the trust fund in the account of
the Irrigation Service Unit with the Philippine National Bank.

There is no controversy as to the following facts:

On April 2, 1960, Ildefonso Ortiz instituted in the Court of First Instance of Camarines Sur Civil Case No. 4886, against the
Handong Irrigation Association, Inc., a corporation with principal place of business in Libmanan, Camarines Sur, and the
Irrigation Service Unit, an office or agency under the Department of Public Works and Communications, to recover possession,
with damages, of a 958 square meter-lot located in Handong, San Juan, Libmanan, Camarines Sur, which the Irrigation
Association allegedly entered and occupied, at the instance of its co-defendant. For failure to appear and answer the complaint,
therein defendant Irrigation Service Unit was declared in default.

On June 3, 1960, the Republic of the Philippines, through the Solicitor General, moved for the dismissal of the complaint,
claiming that defendant Irrigation Service Unit has no juridical personality to sue and be sued. By order of June 11, 1960, this
motion was denied, on the ground that the said defendant although a mere agency of the Republic of the Philippines, is engaged
in the private business of selling irrigation pumps and construction materials on installment plan. The Solicitor General's motion
for reconsideration of the aforesaid order was also denied on July 19, 1960. No appeal appears to have been taken.

On January 29, 1962, the Solicitor General was served with copy of the writ of execution issued by the court against the
defendants in the above-mentioned civil case; and, on February 16, 1962, an order of garnishment was served by the Sheriff of
Manila against the deposits and/or pump irrigation trust fund in the account of the Irrigation Service Unit at the Philippine
National Bank, Manila, to cover the sum of P14,874.40.1

On March 8, 1962, the Solicitor General, on behalf of the Republic of the Philippines, filed with the lower court an urgent motion
to lift the order of garnishment, for the reason that the funds subject matter thereof are public funds and exempt from attachment
or execution. Upon denial of this motion, as well as of the motion for reconsideration of said denial, the Solicitor General
commenced the present certiorari and prohibition proceeding in the Court of Appeals. 1ªvvphi1.nêt

In its decision of August 21, 1962, the appellate court sustained the propriety of the disputed garnishment-order, and dismissed
the Government's petition, on the basis of the finding by the trial court that the Irrigation Service Unit, "formerly an office under
the Department of Agriculture and Natural Resources created by virtue of a 'Memorandum of Agreement on the Irrigation Pump
Program of the Philippines', signed by the Chairman of the PHILCUSA (now NEC), Chief of the MSA Mission (now AID) and the
Secretary of Agriculture and Natural Resources, and presently under the Department of Public Works and Communications to
which it was transferred", is engaged in a private business of purchase and sale of irrigation pumps and systems. Consequently,
according to the Court of Appeals, and following the ruling in the case of National Airports Corporation vs. Teodoro, et al ., L-
5122, April 30, 1952 (91 Phil. 203), by thus engaging in private business, the Government, through the Irrigation Service Unit,
had actually consented to the suit. Hence, the present petition for review filed by the Republic of the Philippines.

The issue presented by this case is whether or not the pump irrigation trust fund, deposited with the Philippine National Bank in
the account of the Irrigation Service Unit, may be garnished to satisfy a money-judgment against the latter. This issue in turn
calls for a determination of the nature of said trust fund, i.e., whether it is a fund belonging to the National Government (which
was not a party to Civil Case No. 4886), as maintained by herein petitioner, or purely the proceeds of a private venture by the
government, as claimed by the respondents.

For a better understanding of the nature, function and operation of the Irrigation Service Unit (ISU) which is necessary for the
proper resolution of the issue herein involved, it is worthwhile to recall that this office was originally created under the
Department of Agriculture and Natural Resources by virtue of a Memorandum Agreement between the governments of the
Philippines and the United States, dated August 13, 1952. It was later transferred to the Department of Public Works and
Communications as an office directly under the Office of the Secretary, "to prosecute to completion the rehabilitation of pump
systems transferred from the former Irrigation Pump Administration of the Department of Agriculture and Natural
Resources,2 including the settlement of the obligations of said administration." The budgetary requirements to carry out the
objectives of the project were to be financed by withdrawals from the Counterpart Fund-Special Account. (Memorandum
Agreement of June, 1954.)

This Counterpart Fund-Special Account referred to above was established in the Central Bank by the Government of the
Philippines and made up of deposits in pesos commensurate with the indicated dollar cost to the Government of the United
States of economic and technical assistance made available to the Philippines, pursuant to the Bilateral Agreement between the
Philippines and the United States of April 27, 1951; of deposits accruing to it (Philippine government) from the sale of
commodities or services supplied under the Agreement or otherwise accruing to it as a result of the import of such commodities
or service; and of any advance deposits which the Philippine government may make in the Special Account (Sec. 1, paragraphs
2[a], [b] and [c], Annex to Memo. Agreement of April 27, 1951). Later, on the basis of a supplemental agreement (No. 2,
Counterpart Project No. 409 — Pump Irrigation), the Pump Irrigation Trust Fund was established in the Philippine National Bank,
to which all authorized releases to the ISU3 from the Counterpart Fund — Special Account, to finance the peso-cost of the
Irrigation Pump Project, were transferred. This is the fund on which the disputed writ of execution for money judgment rendered
against the ISU, is being enforced.

A reading of the records and documents submitted to the Court of Appeals will readily show that the sales of irrigation pumps to
farmers by ISU are governed by the terms of the Supplemental Agreement No. 2 to Counterpart Project No. 409 (signed by
representatives of the Philippine and U. S. governments) hereunder copied in full:

C. Disposition of Proceeds from Payments under Contracts of Sale

1. Under the Guiding Principles of the Irrigation Pump Project, pumps are sold to farmers' associations under conditional
sales contracts. Periodic payments to ISU by each association are required. The total payment required under the
contract is stated in the contract and is equal to the sum of (a) the landed cost of equipment at the installation site, (b)
the cost of installation and construction including survey and design, (c) the cost of fuel and oil financed for the first crop
season, if any, (d) ten per cent of the total of a and b to cover the cost of administration, technical assistance furnished
by the ISU, inspection and collection, and (e) the compensating use tax to the Philippine Government. Interest is also
payable under each contract at the rate of six percent per annum on any unpaid balance of the total amount of the
contract.

2. All principal and interest payments received by the ISU from farmers' associations shall be deposited immediately in
the Trust Fund. The separate account established by the project agreement for Counterpart Project 409, entitled
"Irrigation Pump Sales Proceeds Account" is hereby abolished and any deposits therein will be immediately transferred
to the Trust Fund.

3. Whenever the total value of all deposits made to the Trust Fund from contract principal and interest payments
exceeds the value of total releases made to the Trust Fund from the Counterpart Fund-Special Account, these excess
deposits shall be transferred from the Trust Fund to the Counter Fund-Special Account. Such transfers shall be
considered as "proceeds of sale" and "advance deposits" as provided in Annex Section 1, (b) and (c) of the Bilateral
Agreement between the Republic of the Philippines and the United States of America.

It was also provided therein that the payments by the farmers' associations on conditional sales agreements specified in
paragraph C-2, above, will be considered in the preparation, and shall form part, of the ISU annual budget, which will finance the
costs of supply and equipment purchases, the installation and construction of pump units, and the operating expenses of ISU for
which appropriated funds are not available. (Para. B-1).

It is clear from the foregoing that the ISU is not only an office in the Government of the Republic of the Philippines, created to
promote a specific economic policy of said government, but also that its activity (of selling irrigation pumps to farmers on
installment basis) is not intended to earn profit or financial gain to its operator. The mere fact that interests are being collected on
the balance of the unpaid cost of the purchased pumps does not convert this economic project of the government into a
corporate activity. As previously pointed out, the installment payments and interests receivable from the farmers are to be used
to replenish the counterpart funds utilized in furtherance of the operation of the project.

Although evidently acknowledging the nature of the Pump Irrigation Trust Fund as a public fund, the Court of Appeals
nevertheless sustained the garnishment order, on the ground that the ISU, by engaging in the private business of purchasing and
selling irrigation pumps on installment basis, has waived its governmental immunity and, by implication, consented to the suit.

It is apparent that this decision of the Court of Appeals suffers from the erroneous assumption that because the State has waived
its immunity, its property and funds become liable to seizure under the legal process. This emphatically is not the law (Merritt vs.
Insular Government, 34 Phil. 311).

Even though the rule as to immunity of a state from suit is relaxed, the power of the courts ends when the judgment is
rendered. Although the liability of the state has been judicially ascertained, the state is at liberty to determine for itself
whether to pay the judgment or not, and execution can not issue on a judgment against the state. Such statutes do not
authorize a seizure of state property to satisfy judgments recovered, and only convey implication that the legislature will
recognize such judgment as final and make provision for the satisfaction thereof. (49 Am. Jur., Sec. 104, pp. 312-320.)

Judgments against a state, in cases where it has consented to be sued, generally operate merely to liquidate and
establish plaintiff's claim in the absence of express provision; otherwise they can not be enforced by processes of law;
and it is for the legislature to provide for their payment in such manner as it sees fit. (59 C.J. sec. 501, p. 331; 81 C.J.S.,
sec. 232, p. 1343.)
It needs no stressing that to allow the levying under execution of the ISU funds would amount to diverting them from the purpose
originally contemplated by the P.I.U.S. Bilateral Agreement, and would amount to a disbursement without any proper
appropriation as required by law.

A second infirmity of the decision under appeal originates from its ignoring the fact that the initial complaint against the Irrigation
Service Unit was that it had induced the Handong Irrigation Association, Inc., to invade and occupy the land of the plaintiff
Ildefonso Ortiz. The ISU liability thus arose from tort and not from contract; and it is a well-entrenched rule in this jurisdiction,
embodied in Article 2180 of the Civil Code of the Philippines, that the State is liable only for torts caused by its special agents,
specially commissioned to carry out the acts complained of outside of such agent's regular duties (Merritt vs. Insular
Government, supra; Rosete vs. Auditor General, 81 Phil. 453). There being no proof that the making of the tortious inducement
was authorized, neither the State nor its funds can be made liable therefor.

WHEREFORE, the decision of the Court of Appeals under review is reversed and set aside, and the order of garnishment issued
by the Sheriff of Manila on the Pump Irrigation Trust Fund in the account of the Irrigation Service Unit, with the Philippine
National Bank, is hereby declared null and void. The writ of preliminary injunction heretofore issued is made permanent. No
costs.

G.R. No. L-29993 October 23, 1978

LAUDENCIO TORIO, GUILLERMO EVANGELISTA, MANUEL DE GUZMAN, ALFONSO R. MAGSANOC, JESUS

MACARANAS, MAXIMO MANANGAN, FIDEL MONTEMAYOR, MELCHOR VIRAY, RAMON TULAGAN, all Members of the
Municipal Council of Malasiqui in 1959, Malasiqui, Pangasinan, petitioners,
vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA,
REMEDIOS and ROBERTO, all surnamed FONTANILLA, and THE HONORABLE COURT OF APPEALS, respondents.

G.R. No. L-30183 October 23, 1978

MUNICIPALITY OF MALASIQUI, petitioner,

vs.
ROSALINA, ANGELINA, LEONARDO, EDUARDO, ARTEMIO, ANGELITA, ANITA, ERNESTO, NORMA, VIRGINIA,
REMEDIOS and ROBERTO, all surnamed FONTANILLA, and the Honorable COURT OF APPEALS, respondents.

Julian M. Armas, Assistant Provincial Fiscal for petitioners.

Isidro L. Padilla for respondents.

MUÑOZ PALMA, J.:

These Petitions for review present the issue of whether or not the celebration of a town fiesta authorized by a municipal council
under Sec. 2282 of the Municipal Law as embodied in the Revised Administrative Code is a governmental or a corporate or
proprietary function of the municipality.

A resolution of that issue will lead to another, viz the civil liability for damages of the Municipality of Malasiqui, and the members
of the Municipal Council of Malasiqui, province of Pangasinan, for a death which occurred during the celebration of the town
fiesta on January 22, 1959, and which was attributed to the negligence of the municipality and its council members.

The following facts are not in dispute:

On October 21, 1958, the Municipal Council of Malasiqui, Pangasinan, passed Resolution No. 159 whereby "it resolved to
manage the 1959 Malasiqui town fiesta celebration on January 21, 22, and 23, 1959." Resolution No. 182 was also passed
creating the "1959 Malasiqui 'Town Fiesta Executive Committee" which in turn organized a sub-committee on entertainment and
stage, with Jose Macaraeg as Chairman. the council appropriated the amount of P100.00 for the construction of 2 stages, one for
the "zarzuela" and another for the cancionan Jose Macaraeg supervised the construction of the stage and as constructed the
stage for the "zarzuela" was "5-½ meters by 8 meters in size, had a wooden floor high at the rear and was supported by 24
bamboo posts — 4 in a row in front, 4 in the rear and 5 on each side — with bamboo braces." 1

The "zarzuela" entitled "Midas Extravaganza" was donated by an association of Malasiqui employees of the Manila Railroad
Company in Caloocan, Rizal. The troupe arrived in the evening of January 22 for the performance and one of the members of the
group was Vicente Fontanilla. The program started at about 10:15 o'clock that evening with some speeches, and many persons
went up the stage. The "zarzuela" then began but before the dramatic part of the play was reached, the stage collapsed and
Vicente Fontanilla who was at the rear of the stage was pinned underneath. Fontanilia was taken to tile San Carlos General
Hospital where he died in the afternoon of the following day.

The heirs of Vicente Fontanilia filed a complaint with the Court of First Instance of Manila on September 11, 1959 to recover
damages. Named party-defendants were the Municipality of Malasiqui, the Municipal Council of Malasiqui and all the individual
members of the Municipal Council in 1959.

Answering the complaint defendant municipality invoked inter alia the principal defense that as a legally and duly organized
public corporation it performs sovereign functions and the holding of a town fiesta was an exercise of its governmental functions
from which no liability can arise to answer for the negligence of any of its agents.

The defendant councilors inturn maintained that they merely acted as agents of the municipality in carrying out the municipal
ordinance providing for the management of the town fiesta celebration and as such they are likewise not liable for damages as
the undertaking was not one for profit; furthermore, they had exercised due care and diligence in implementing the municipal
ordinance. 2

After trial, the Presiding Judge, Hon. Gregorio T. Lantin narrowed the issue to whether or not the defendants exercised due
diligence 'm the construction of the stage. From his findings he arrived at the conclusion that the Executive Committee appointed
by the municipal council had exercised due diligence and care like a good father of the family in selecting a competent man to
construct a stage strong enough for the occasion and that if it collapsed that was due to forces beyond the control of the
committee on entertainment, consequently, the defendants were not liable for damages for the death of Vicente Fontanilla. The
complaint was accordingly dismissed in a decision dated July 10, 1962. 3

The Fontanillas appealed to the Court of Appeals. In a decision Promulgated on October 31, 1968, the Court of Appeals through
its Fourth Division composed at the time of Justices Salvador V. Esguerra, Nicasio A. Yatco and Eulogio S. Serrano reversed the
trial court's decision and ordered all the defendants-appellees to pay jointly and severally the heirs of Vicente Fontanilla the sums
of P12,000.00 by way of moral and actual damages: P1200.00 its attorney's fees; and the costs. 4

The case is now before Us on various assignments of errors all of which center on the proposition stated at the sentence of this
Opinion and which We repeat:

Is the celebration of a town fiesta an undertaking in the excercise of a municipality's governmental or public function or is it or a
private or proprietary character?

1. Under Philippine laws municipalities are political bodies corporate and as such ag endowed with the faculties of municipal
corporations to be exercised by and through their respective municipal governments in conformity with law, and in their proper
corporate name, they may inter alia sue and be sued, and contract and be contracted with. 5

The powers of a municipality are twofold in character public, governmental or political on the one hand, and corporate, private, or
proprietary on the other. Governmental powers are those exercised by the corporation 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 other hand
are exercised for the special benefit and advantage of the community and include those which are ministerial private and
corporate. 6

As to when a certain activity is governmental and when proprietary or private, that is generally a difficult matter to determine. The
evolution of the municipal law in American Jurisprudence, for instance, has shown that; none of the tests which have evolved
and are stated in textbooks have set down a conclusive principle or rule, so that each case will have to be determined on the
basis of attending circumstances.

In McQuillin on Municipal Corporations, 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. 7

Another statement of the test is given in City of Kokomo v. Loy, decided by the Supreme Court of Indiana in 1916, thus:

Municipal corporations exist in a dual capacity, and their functions are two fold. In one they exercise the right
springing from sovereignty, and while in the performance of the duties pertaining thereto, their acts are political
and governmental Their officers and agents in such capacity, though elected or appointed by the are
nevertheless public functionaries performing a public service, and as such they are officers, agents, and
servants of the state. In the other capacity the municipalities exercise a private. proprietary or corporate right,
arising from their existence as legal persons and not as public agencies. Their officers and agents in the
performance of such functions act in behalf of the municipalities in their corporate or in. individual capacity, and
not for the state or sovereign power. (112 N. E 994-995)
In the early Philippine case of Mendoza v. de Leon 1916, the Supreme Court, through Justice Grant T. Trent, relying mainly on
American Jurisprudence classified certain activities of the municipality as governmental, e.g.: regulations against fire, disease,
preservation of public peace, maintenance of municipal prisons, establishment of schools, post-offices, etc. while the following
are corporate or proprietary in character, viz: municipal waterwork, slaughter houses, markets, stables, bathing establishments,
wharves, ferries, and fisheries. 8 Maintenance of parks, golf courses, cemeteries and airports among others, are also recognized
as municipal or city activities of a proprietary character. 9

2. This distinction of powers becomes important for purposes of determining the liability of the municipality for the acts of its
agents which result in an injury to third persons.

If the injury is caused in the course of the performance of a governmental function or duty no recovery, as a rule, can be. had
from the municipality unless there is an existing statute on the matter, 10 nor from its officers, so long as they performed their
duties honestly and in good faith or that they did not act wantonly and maliciously. 11 In Palafox, et al., v. Province of Ilocos Norte,
et al., 1958, a truck driver employed by the provincial government of Ilocos Norte ran over Proceto Palafox in the course of his
work at the construction of a road. The Supreme Court in affirming the trial court's dismissal of the complaint for damages held
that the province could not be made liable because its employee was in the performance of a governmental function — the
construction and maintenance of roads — and however tragic and deplorable it may be, the death of Palafox imposed on the
province no duty to pay monetary consideration. 12

With respect to proprietary functions, the settled rule is that a municipal corporation can be held liable to third persons ex
contract 13 or ex delicto. 14

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 fine of his employment, by which another, who is free from
contributory fault, is injured. Municipal corporations under the conditions herein stated, fall within the operation of
this rule of law, and are liable, accordingly, to civil actions for damages when the requisite elements of liability
co-exist. ... (Dillon on Municipal Corporations, 5th ed. Sec. 1610,1647, cited in Mendoza v. de Leon, supra. 514)

3. Coming to the cam before Us, and applying the general tests given above, We hold that the ho of the town fiesta in 1959 by
the municipality of Malsiqui Pangasinan was an exercise of a private or proprietary function of the municipality.

Section 2282 of the Chatter on Municipal Law of the Revised Administrative Code provides:

Section 2282. Celebration of fiesta. — fiesta may be held in each municipality not oftener than once a year upon
a date fixed by the municipal council A fiesta s not be held upon any other date than that lawfully fixed therefor,
except when, for weighty reasons, such as typhoons, foundations, earthquakes, epidemics, or other public ties,
the fiesta cannot be hold in the date fixed in which case it may be held at a later date in the same year, by
resolution of the council.

This provision simply gives authority to the municipality to accelebrate a yearly fiesta but it does not impose upon it a duty to
observe one. Holding a fiesta even if the purpose is to commemorate a religious or historical event of the town is in essence an
act for the special benefit of the community and not for the general welfare of the public performed in pursuance of a policy of the
state. The mere fact that the celebration, as claimed was not to secure profit or gain but merely to provide entertainment to the
town inhabitants is not a conclusive test. For instance, the maintenance of parks is not a source of income for the nonetheless it
is private undertaking as distinguished from the maintenance of public schools, jails, and the like which are for public service.

As stated earlier, there can be no hard and fast rule for purposes of determining the true nature of an undertaking or function of a
municipality; the surrounding circumstances of a particular case are to be considered and will be decisive. The basic element,
however beneficial to the public the undertaking may be, is that it is governmental in essence, otherwise. the function becomes
private or proprietary in character. Easily, no overnmental or public policy of the state is involved in the celebration of a town
fiesta. 15

4. It follows that under the doctrine of respondent superior, petitioner-municipality is to be held liable for damages for the death of
Vicente Fontanilia if that was at- tributable to the negligence of the municipality's officers, employees, or agents.

Art. 2176, Civil Code: Whoever by act or omission causes damage to another, there being fault or negligence, is
obliged to pay for the damage done. . .
 Art. 2180, Civil Code: The obligation imposed by article 2176 is demandable not only for one's own acts or
omission, but also for those of persons for whom one is responsible. . .

On this point, the Court of Appeals found and held that there was negligence.

The trial court gave credence to the testimony of Angel Novado, a witness of the defendants (now petitioners), that a member of
the "extravaganza troupe removed two principal braces located on the front portion of the stage and u them to hang the screen or
"telon", and that when many people went up the stage the latter collapsed. This testimony was not believed however by
respondent appellate court, and rightly so. According to said defendants, those two braces were "mother" or "principal" braces
located semi-diagonally from the front ends of the stage to the front posts of the ticket booth located at the rear of the stage and
were fastened with a bamboo twine. 16 That being the case, it becomes incredible that any person in his right mind would remove
those principal braces and leave the front portion of the stage practically unsuported Moreover, if that did happen, there was
indeed negligence as there was lack of suspension over the use of the stage to prevent such an occurrence.

At any rate, the guitarist who was pointed to by Novado as the person who removed the two bamboo braces denied having done
go. The Court of Appeals said "Amor by himself alone could not have removed the two braces which must be about ten meters
long and fastened them on top of the stags for the curtain. The stage was only five and a half meters wide. Surely, it, would be
impractical and unwieldy to use a ten meter bamboo pole, much more two poles for the stage curtain. 17

The appellate court also found that the stage was not strong enough considering that only P100.00 was appropriate for the
construction of two stages and while the floor of the "zarzuela" stage was of wooden planks, the Post and braces used were of
bamboo material We likewise observe that although the stage was described by the Petitioners as being supported by "24"
posts, nevertheless there were only 4 in front, 4 at the rear, and 5 on each side. Where were the rest?

The Court of Appeals thus concluded

The court a quo itself attributed the collapse of the stage to the great number of onlookers who mounted the
stage. The municipality and/or its agents had the necessary means within its command to prevent such an
occurrence. Having filed to take the necessary steps to maintain the safety of the stage for the use of the
participants in the stage presentation prepared in connection with the celebration of the town fiesta, particularly,
in preventing non participants or spectators from mounting and accumulating on the stage which was not
constructed to meet the additional weight- the defendant-appellees were negligent and are liable for the death of
Vicente Fontanilla . (pp. 30-31, rollo, L-29993)

The findings of the respondent appellate court that the facts as presented to it establish negligence as a matter of law and that
the Municipality failed to exercise the due diligence of a good father of the family, will not disturbed by Us in the absence of a
clear showing of an abuse of discretion or a gross misapprehension of facts." 18

Liability rests on negligence which is "the want of such care as a person of ordinary prudence would exercise under the
circumstances of the case." 19

Thus, private respondents argue that the "Midas Extravaganza" which was to be performed during the town fiesta was a
"donation" offered by an association of Malasiqui employees of the Manila Railroad Co. in Caloocan, and that when the
Municipality of Malasiqui accepted the donation of services and constructed precisely a "zarzuela stage" for the purpose, the
participants in the stage show had the right to expect that the Municipality through its "Committee on entertainment and stage"
would build or put up a stage or platform strong enough to sustain the weight or burden of the performance and take the
necessary measures to insure the personal safety of the participants. 20 We agree.

Quite relevant to that argument is the American case of Sanders v. City of Long Beach, 1942, which was an action against the
city for injuries sustained from a fall when plaintiff was descending the steps of the city auditorium. The city was conducting a
"Know your City Week" and one of the features was the showing of a motion picture in the city auditorium to which the general
public was invited and plaintiff Sanders was one of those who attended. In sustaining the award for Damages in favor of plaintiff,
the District Court of Appeal, Second district, California, held inter alia that the "Know your City Week" was a "proprietary activity"
and not a "governmental one" of the city, that defendant owed to plaintiff, an invitee the duty of exercising ordinary care for her
safety, and plaintiff was entitled to assume that she would not be exposed to a danger (which in this case consisted of lack of
sufficient illumination of the premises) that would come to her through a violation of defendant duty. 21

We can say that the deceased Vicente Fontanilla was similarly situated as Sander The Municipality of Malasiqui resolved to
celebrate the town fiesta in January of 1959; it created a committee in charge of the entertainment and stage; an association of
Malasiqui residents responded to the call for the festivities and volunteered to present a stage show; Vicente Fontanilla was one
of the participants who like Sanders had the right to expect that he would be exposed to danger on that occasion.
Lastly, petitioner or appellant Municipality cannot evade ability and/or liability under the c that it was Jose Macaraeg who
constructed the stage. The municipality acting through its municipal council appointed Macaraeg as chairman of the sub-
committee on entertainment and in charge of the construction of the "zarzuela" stage. Macaraeg acted merely as an agent of the
Municipality. Under the doctrine of respondent superior mentioned earlier, petitioner is responsible or liable for the negligence of
its agent acting within his assigned tasks. 22

... when it is sought to render a municipal corporation liable for the act of servants or agents, a cardinal inquiry is, whether they
are the servants or agents of the corporation. If the corporation appoints or elects them, can control them in the discharge of their
duties, can continue or remove the can hold them responsible for the manner in which they discharge their trust, and if those
duties relate to the exercise of corporate powers, and are for the benefit of the corporation in its local or special interest, they
may justly be regarded as its agents or servants, and the maxim of respondent superior applies." ... (Dillon on Municipal
Corporations, 5th Ed., Vol IV, p. 2879)

5. The remaining question to be resolved centers on the liability of the municipal councilors who enacted the ordinance and
created the fiesta committee.

The Court of Appeals held the councilors jointly and solidarity liable with the municipality for damages under Article 27 of the Civil
Code which provides that d any person suffering ing material or moral loss because a public servant or employee refuses or
neglects, without just cause to perform his official duty may file an action for damages and other relief at the latter. 23

In their Petition for review the municipal councilors allege that the Court of Appeals erred in ruling that the holding of a town fiesta
is not a governmental function and that there was negligence on their part for not maintaining and supervising the safe use of the
stage, in applying Article 27 of the Civil Code against them and in not holding Jose Macaraeg liable for the collapse of the stage
and the consequent death of Vicente Fontanilla. 24

We agree with petitioners that the Court of Appeals erred in applying Article 27 of the Civil Code against the for this particular
article covers a case of nonfeasance or non-performance by a public officer of his official duty; it does not apply to a case of
negligence or misfeasance in carrying out an official duty.

If We are led to set aside the decision of the Court of Appeals insofar as these petitioners are concerned, it is because of a plain
error committed by respondent court which however is not invoked in petitioners' brief.

In Miguel v. The Court of appeal. et al., the Court, through Justice, now Chief Justice, Fred Ruiz Castro, held that the Supreme
Court is vested with ample authority to review matters not assigned as errors in an appeal if it finds that their consideration and
resolution are indispensable or necessary in arriving at a just decision in a given case, and that tills is author under Sec. 7, Rule
51 of the Rules of Court. 25 We believe that this pronouncement can well be applied in the instant case.

The Court of Appeals in its decision now under review held that the celebration of a town fiesta by the Municipality of Malasiqui
was not a governmental function. We upheld that ruling. The legal consequence thereof is that the Municipality stands on the
same footing as an ordinary private corporation with the municipal council acting as its board of directors. It is an elementary
principle that a corporation has a personality, separate and distinct from its officers, directors, or persons composing it 26 and the
latter are not as a rule co-responsible in an action for damages for tort or negligence culpa aquilla committed by the corporation's
employees or agents unless there is a showing of bad faith or gross or wanton negligence on their part. 27

xxx xxx xxx

The ordinary doctrine is that a director, merely by reason of his office, is not personally Stable for the torts of his
corporation; he Must be shown to have personally voted for or otherwise participated in them ... Fletcher
Encyclopedia Corporations, Vol 3A Chapt 11, p. 207)

Officers of a corporation 'are not held liable for the negligence of the corporation merely because of their official
relation to it, but because of some wrongful or negligent act by such officer amounting to a breach of duty which
resulted in an injury ... To make an officer of a corporation liable for the negligence of the corporation there must
have been upon his part such a breach of duty as contributed to, or helped to bring about, the injury; that is to
say, he must be a participant in the wrongful act. ... (pp. 207-208, Ibid.)

xxx xxx xxx

Directors who merely employ one to give a fireworks Ambition on the corporate are not personally liable for the
negligent acts of the exhibitor. (p. 211, Ibid.)
On these people We absolve Use municipal councilors from any liability for the death of Vicente Fontanilla. The records do not
show that said petitioners directly participated in the defective construction of the "zarzuela" stage or that they personally
permitted spectators to go up the platform.

6. One last point We have to resolve is on the award of attorney's fees by respondent court. Petitioner-municipality assails the
award.

Under paragraph 11, Art. 2208 of the Civil Code attorney's fees and expenses of litigation may be granted when the court deems
it just and equitable. In this case of Vicente Fontanilla, although respondent appellate court failed to state the grounds for
awarding attorney's fees, the records show however that attempts were made by plaintiffs, now private respondents, to secure
an extrajudicial compensation from the municipality: that the latter gave prorases and assurances of assistance but failed to
comply; and it was only eight month after the incident that the bereaved family of Vicente Fontanilla was compelled to seek relief
from the courts to ventilate what was believed to be a just cause. 28

We hold, therefore, that there is no error committed in the grant of attorney's fees which after all is a matter of judicial discretion.
The amount of P1,200.00 is fair and reasonable.

PREMISES CONSIDERED, We AFFIRM in toto the decision of the Court of Appeals insofar as the Municipality of Malasiqui is
concerned (L-30183), and We absolve the municipal councilors from liability and SET ASIDE the judgment against them (L-
9993).

Without pronouncement as to costs.

SO ORDERED,

G.R. No. L-23052 January 29, 1968

CITY OF MANILA, petitioner,

vs.
GENARO N. TEOTICO and COURT OF APPEALS, respondents.

City Fiscal Manuel T. Reyes for petitioner.

Sevilla, Daza and Associates for respondents.

CONCEPCION, C.J.:

Appeal by certiorari from a decision of the Court of Appeals.

On January 27, 1958, at about 8:00 p.m., Genaro N. Teotico was at the corner of the Old Luneta and P. Burgos Avenue, Manila,
within a "loading and unloading" zone, waiting for a jeepney to take him down town. After waiting for about five minutes, he
managed to hail a jeepney that came along to a stop. As he stepped down from the curb to board the jeepney, and took a few
steps, he fell inside an uncovered and unlighted catch basin or manhole on P. Burgos Avenue. Due to the fall, his head hit the
rim of the manhole breaking his eyeglasses and causing broken pieces thereof to pierce his left eyelid. As blood flowed
therefrom, impairing his vision, several persons came to his assistance and pulled him out of the manhole. One of them brought
Teotico to the Philippine General Hospital, where his injuries were treated, after which he was taken home. In addition to the
lacerated wound in his left upper eyelid, Teotico suffered contusions on the left thigh, the left upper arm, the right leg and the
upper lip apart from an abrasion on the right infra-patella region. These injuries and the allergic eruption caused by anti-tetanus
injections administered to him in the hospital, required further medical treatment by a private practitioner who charged therefor
P1,400.00.

As a consequence of the foregoing occurrence, Teotico filed, with the Court of First Instance of Manila, a complaint — which was,
subsequently, amended — for damages against the City of Manila, its mayor, city engineer, city health officer, city treasurer and
chief of police. As stated in the decision of the trial court, and quoted with approval by the Court of Appeals,

At the time of the incident, plaintiff was a practicing public accountant, a businessman and a professor at the University
of the East. He held responsible positions in various business firms like the Philippine Merchandising Co., the A.U.
Valencia and Co., the Silver Swan Manufacturing Company and the Sincere Packing Corporation. He was also
associated with several civic organizations such as the Wack Wack Golf Club, the Chamber of Commerce of the
Philippines, Y's Men Club of Manila and the Knights of Rizal. As a result of the incident, plaintiff was prevented from
engaging in his customary occupation for twenty days. Plaintiff has lost a daily income of about P50.00 during his
incapacity to work. Because of the incident, he was subjected to humiliation and ridicule by his business associates and
friends. During the period of his treatment, plaintiff was under constant fear and anxiety for the welfare of his minor
 children since he was their only support. Due to the filing of this case, plaintiff has obligated himself to pay his counsel
the sum of P2,000.00.

On the other hand, the defense presented evidence, oral and documentary, to prove that the Storm Drain Section, Office
of the City Engineer of Manila, received a report of the uncovered condition of a catchbasin at the corner of P. Burgos
and Old Luneta Streets, Manila, on January 24, 1958, but the same was covered on the same day (Exhibit 4); that again
the iron cover of the same catch basin was reported missing on January 30, 1958, but the said cover was replaced the
next day (Exhibit 5); that the Office of the City Engineer never received any report to the effect that the catchbasin in
question was not covered between January 25 and 29, 1968; that it has always been a policy of the said office, which is
charged with the duty of installation, repair and care of storm drains in the City of Manila, that whenever a report is
received from whatever source of the loss of a catchbasin cover, the matter is immediately attended to, either by
immediately replacing the missing cover or covering the catchbasin with steel matting that because of the lucrative scrap
iron business then prevailing, stealing of iron catchbasin covers was rampant; that the Office of the City Engineer has
filed complaints in court resulting from theft of said iron covers; that in order to prevent such thefts, the city government
has changed the position and layout of catchbasins in the City by constructing them under the sidewalks with concrete
cement covers and openings on the side of the gutter; and that these changes had been undertaken by the city from time
to time whenever funds were available.

After appropriate proceedings the Court of First Instance of Manila rendered the aforementioned decision sustaining the theory
of the defendants and dismissing the amended complaint, without costs.

On appeal taken by plaintiff, this decision was affirmed by the Court of Appeals, except insofar as the City of Manila is
concerned, which was sentenced to pay damages in the aggregate sum of P6,750.00. 1 Hence, this appeal by the City of Manila.

The first issue raised by the latter is whether the present case is governed by Section 4 of Republic Act No. 409 (Charter of the
City of Manila) reading:

The city shall not be liable or held 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 provisions of this chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or other officers while enforcing or attempting to enforce said provisions.

or by Article 2189 of the Civil Code of the Philippines which provides:

Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by
reason of defective conditions of road, streets, bridges, public buildings, and other public works under their control or
supervision.

Manila maintains that the former provision should prevail over the latter, because Republic Act 409, is a special law, intended
exclusively for the City of Manila, whereas the Civil Code is a general law, applicable to the entire Philippines.

The Court of Appeals, however, applied the Civil Code, and, we think, correctly. It is true that, insofar as its territorial application
is concerned, Republic Act No. 409 is a special law and the Civil Code a general legislation; but, as regards the subject-matter of
the provisions above quoted, Section 4 of Republic Act 409 establishes a general rule regulating the liability of the City of Manila
for: "damages or injury to persons or property arising from the failure of" city officers "to enforce the provisions of" said Act "or
any other law or ordinance, or from negligence" of the city "Mayor, Municipal Board, or other officers while enforcing or
attempting to enforce said provisions." Upon the other hand, Article 2189 of the Civil Code constitutes a particular prescription
making "provinces, cities and municipalities . . . liable for damages for the death of, or injury suffered by any person by reason" —
specifically — "of the defective condition of roads, streets, bridges, public buildings, and other-public works under their control or
supervision." In other words, said section 4 refers to liability arising from negligence, in general, regardless of the object thereof,
whereas Article 2189 governs liability due to "defective streets," in particular. Since the present action is based upon the alleged
defective condition of a road, said Article 2189 is decisive thereon.

It is urged that the City of Manila cannot be held liable to Teotico for damages: 1) because the accident involving him took place
in a national highway; and 2) because the City of Manila has not been negligent in connection therewith.

As regards the first issue, we note that it is based upon an allegation of fact not made in the answer of the City. Moreover,
Teotico alleged in his complaint, as well as in his amended complaint, that his injuries were due to the defective condition of a
street which is "under the supervision and control" of the City. In its answer to the amended complaint, the City, in turn, alleged
that "the streets aforementioned were and have been constantly kept in good condition and regularly inspected and the storm
drains and manholes thereof covered by the defendant City and the officers concerned" who "have been ever vigilant and
zealous in the performance of their respective functions and duties as imposed upon them by law." Thus, the City had, in effect,
admitted that P. Burgos Avenue was and is under its control and supervision.
Moreover, the assertion to the effect that said Avenue is a national highway was made, for the first time, in its motion for
reconsideration of the decision of the Court of Appeals. Such assertion raised, therefore, a question of fact, which had not been
put in issue in the trial court, and cannot be set up, for the first time, on appeal, much less after the rendition of the decision of the
appellate court, in a motion for the reconsideration thereof.

At any rate, under Article 2189 of the Civil Code, it is not necessary for the liability therein established to attach that the defective
roads or streets belong to the province, city or municipality from which responsibility is exacted. What said article requires is that
the province, city or municipality have either "control or supervision" over said street or road. Even if P. Burgos Avenue were,
therefore, a national highway, this circumstance would not necessarily detract from its "control or supervision" by the City of
Manila, under Republic Act 409. In fact Section 18(x) thereof provides:

Sec. 18. Legislative powers. — The Municipal Board shall have the following legislative powers:

xxx xxx xxx

(x) Subject to the provisions of existing law to provide for the laying out, construction and improvement, and to regulate
the use of streets, avenues, alleys, sidewalks, wharves, piers, parks, cemeteries, and other public places; to provide for
lighting, cleaning, and sprinkling of streets and public places; . . . to provide for the inspection of, fix the license fees for
and regulate the openings in the same for the laying of gas, water, sewer and other pipes, the building and repair of
tunnels, sewers, and drains, and all structures in and under the same and the erecting of poles and the stringing of wires
therein; to provide for and regulate cross-works, curbs, and gutters therein, . . . to regulate traffic and sales upon the
streets and other public places; to provide for the abatement of nuisances in the same and punish the authors or owners
thereof; to provide for the construction and maintenance, and regulate the use, of bridges, viaducts and culverts; to
prohibit and regulate ball playing, kite-flying, hoop rolling, and other amusements which may annoy persons using the
streets and public places, or frighten horses or other animals; to regulate the speed of horses and other animals, motor
and other vehicles, cars, and locomotives within the limits of the city; to regulate the lights used on all vehicles, cars, and
locomotives; . . . to provide for and change the location, grade, and crossing of railroads, and compel any such railroad
to raise or lower its tracks to conform to such provisions or changes; and to require railroad companies to fence their
property, or any part thereof, to provide suitable protection against injury to persons or property , and to construct and
repair ditches, drains, sewers, and culverts along and under their tracks, so that the natural drainage of the streets and
adjacent property shall not be obstructed.

This authority has been neither withdrawn nor restricted by Republic Act No. 917 and Executive Order No. 113, dated May 2,
1955, upon which the City relies. Said Act governs the disposition or appropriation of the highway funds and the giving of aid to
provinces, chartered cities and municipalities in the construction of roads and streets within their respective boundaries, and
Executive Order No. 113 merely implements the provisions of said Republic Act No. 917, concerning the disposition and
appropriation of the highway funds. Moreover, it provides that "the construction, maintenance and improvement of national
primary, national secondary and national aid provincial and city roads shall be accomplished by the Highway District Engineers
and Highway City Engineers under the supervision of the Commissioner of Public Highways and shall be financed from such
appropriations as may be authorized by the Republic of the Philippines in annual or special appropriation Acts."

Then, again, the determination of whether or not P. Burgos Avenue is under the control or supervision of the City of Manila and
whether the latter is guilty of negligence, in connection with the maintenance of said road, which were decided by the Court of
Appeals in the affirmative, is one of fact, and the findings of said Court thereon are not subject to our review.

WHEREFORE, the decision appealed from should be as it is hereby affirmed, with costs against the City of Manila. It is so
ordered.1äwphï1.ñët

G.R. No. 154512 November 12, 2002

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petitioner,

vs.
THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBLY (PRA) of Puerto Princesa City, PRA Interim
Chairman Punong Bgy. MARK DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN JARILLA, PRA Chairman
and Presiding Officer Punong Bgy. EARL S. BUENVIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.

-----------------------------

G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner,

vs.
THE COMMISSION ON ELECTIONS, respondent.
-----------------------------

G.R. Nos. 155083-84 November 12, 2002

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR., petitioners,
vs.
THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respondents.

DECISION

CARPIO, J.:

The Case

Before us are consolidated petitions for certiorari 1 seeking the reversal of the resolutions issued by the Commission on Elections
("COMELEC" for brevity) in relation to the recall election for mayor of Puerto Princesa City, Palawan.

The Antecedents

On July 2, 2002, 312 out of 528 members of the then incumbent barangay officials of the Puerto Princesa convened themselves
into a Preparatory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay San Jose from 9:00 a.m. to 12:00 noon.
The PRA was convened to initiate the recall 2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who assumed office as
Puerto Princesa's mayor on June 30, 2001. The members of the PRA designated Mark David M. Hagedorn, president of the
Association of Barangay Captains, as interim chair of the PRA.

On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolution" for brevity) which declared its loss of confidence
in Socrates and called for his recall. The PRA requested the COMELEC to schedule the recall election for mayor within 30 days
from receipt of the Recall Resolution.

On July 16, 2002, Socrates filed with the COMELEC a petition, docketed as E.M. No. 02-010 (RC), to nullify and deny due
course to the Recall Resolution.

On August 14, 2002, the COMELEC en banc3 promulgated a resolution dismissing for lack of merit Socrates' petition. The
COMELEC gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002.

On August 21, 2002, the COMELEC en banc promulgated Resolution No. 5673 prescribing the calendar of activities and periods
of certain prohibited acts in connection with the recall election. The COMELEC fixed the campaign period from August 27, 2002
to September 5, 2002 or a period of 10 days.

On August 23, 2002, Edward M. Hagedorn ("Hagedorn" for brevity) filed his certificate of candidacy for mayor in the recall
election.

On August 17, 2002, Ma. Flores F. Adovo ("Adovo" for brevity) and Merly E. Gilo ("Gilo" for brevity) filed a petition before the
COMELEC, docketed as SPA No. 02-492, to disqualify Hagedorn from running in the recall election and to cancel his certificate
of candidacy. On August 30, 2002, a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-intervention in SPA
No. 02-492 also seeking to disqualify Hagedorn. On the same date, a certain Genaro V. Manaay filed another petition, docketed
as SPA No. 02-539, against Hagedorn alleging substantially the same facts and involving the same issues. The petitions were all
anchored on the ground that "Hagedorn is disqualified from running for a fourth consecutive term, having been elected and
having served as mayor of the city for three (3) consecutive full terms immediately prior to the instant recall election for the same
post." Subsequently, SPA Nos. 02-492 and 02-539 were consolidated.

In a resolution promulgated on September 20, 2002, the COMELEC's First Division4 dismissed for lack of merit SPA Nos. 02-492
and 02-539. The COMELEC declared Hagedorn qualified to run in the recall election. The COMELEC also reset the recall
election from September 7, 2002 to September 24, 2002.

On September 23, 2002, the COMELEC en banc promulgated a resolution denying the motion for reconsideration of Adovo and
Gilo. The COMELEC affirmed the resolution declaring Hagedorn qualified to run in the recall election.

Hence, the instant consolidated petitions.

G.R. No. 154512

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dated August 14, 2002 in E.M. No. 02-010 (RC) which
gave due course to the Recall Resolution and scheduled the recall election on September 7, 2002.

Socrates alleges that the COMELEC gravely abused its discretion in upholding the Recall Resolution. Socrates cites the
following circumstances as legal infirmities attending the convening of the PRA and its issuance of the Recall Resolution: (1) not
all members of the PRA were notified of the meeting to adopt the resolution; (2) the proof of service of notice was palpably and
legally deficient; (3) the members of the PRA were themselves seeking a new electoral mandate from their respective
constituents; (4) the adoption of the resolution was exercised with grave abuse of authority; and (5) the PRA proceedings were
conducted in a manner that violated his and the public's constitutional right to information.

G.R. No. 154683

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution No. 5673 dated August 21, 2002 insofar as it fixed the
recall election on September 7, 2002, giving the candidates only a ten-day campaign period. He prayed that the COMELEC be
enjoined from holding the recall election on September 7, 2002 and that a new date be fixed giving the candidates at least an
additional 15 days to campaign.

In a resolution dated September 3, 2002, the Court en banc enjoined the COMELEC from implementing Resolution No. 5673
insofar as it fixed the date of the recall election on September 7, 2002. The Court directed the COMELEC to give the candidates
an additional fifteen 15 days from September 7, 2002 within which to campaign.

Accordingly, on September 9, 2002, the COMELEC en banc issued Resolution No. 5708 giving the candidates an additional 15
days from September 7, 2002 within which to campaign. Thus, the COMELEC reset the recall election to September 24, 2002.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions dated September 20, 2002 and September 23, 2002 in
SPA Nos. 02-492 and 02-539 declaring Hagedorn qualified to run for mayor in the recall election. They likewise prayed for the
issuance of a temporary restraining order to enjoin the proclamation of the winning candidate in the recall election.

Petitioners argue that the COMELEC gravely abused its discretion in upholding Hagedorn's qualification to run for mayor in the
recall election despite the constitutional and statutory prohibitions against a fourth consecutive term for elective local officials.

In a resolution dated September 24, 2002, the Court ordered the COMELEC to desist from proclaiming any winning candidate in
the recall election until further orders from the Court. Petitioners were required to post a P20,000 bond.

On September 27, 2002, Socrates filed a motion for leave to file an attached petition for intervention seeking the same reliefs as
those sought by Adovo, Gilo and Ollave.

In the meantime, Hagedorn garnered the highest number of votes in the recall election with 20,238 votes. Rival candidates
Socrates and Sandoval obtained 17,220 votes and 13,241 votes, respectively.

Hagedorn filed motions to lift the order restraining the COMELEC from proclaiming the winning candidate and to allow him to
assume office to give effect to the will of the electorate.

On October 1, 2002, the Court granted Socrates' motion for leave to file a petition for intervention.

The Issues

The issues for resolution of the Court are:

1. In G.R. No. 154512, whether the COMELEC committed grave abuse of discretion in giving due course to the Recall
Resolution and scheduling the recall election for mayor of Puerto Princesa.

2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayor in the recall election of Puerto Princesa on
September 24, 2002.

In G.R. No. 154683, the issue of whether the COMELEC committed grave abuse of discretion in fixing a campaign period of only
10 days has become moot. Our Resolution of September 3, 2002 and COMELEC Resolution No. 5708 granted an additional 15
days for the campaign period as prayed for by petitioner.
First Issue: Validity of the Recall Resolution.

Petitioner Socrates argues that the COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite
the absence of notice to 130 PRA members and the defective service of notice to other PRA members. The COMELEC,
however, found that –

"On various dates, in the month of June 2002, the proponents for the Recall of incumbent City Mayor Victorino Dennis M.
Socrates sent notices of the convening of the PRA to the members thereof pursuant to Section 70 of the Local Government
Code. Copies of the said notice are in Volumes I and II entitled Notices to PRA. Likewise, Proof of Service for each of the said
notices were attached to the Petition and marked as Annex "G" of Volumes II and III of the Petition.

Notices were likewise posted in conspicuous places particularly at the Barangay Hall. Photos establishing the same were
attached to the Petition and marked as Annex "H". The proponents likewise utilized the broadcast mass media in the
dissemination of the convening of the PRA.

Notices of the convening of the Puerto Princesa PRA were also sent to the following: [a list of 25 names of provincial elective
officials, print and broadcast media practitioners, PNP officials, COMELEC city, regional and national officials, and DILG
officials].

xxx

The City Election Officer of Puerto Princesa City in her Certification dated 10 July 2002 certified that upon a 'thorough and
careful verification of the signatures appearing in PRA Resolution 01-02, x x x the majority of all members of the PRA concerned
approved said resolution.' She likewise certified 'that not a single member/signatory of the PRA complained or objected as to the
veracity and authenticity of their signatures.'

The Provincial Election Supervisor of Palawan, Atty. Urbano Arlando, in his Indorsement dated 10 July 2002, stated, 'upon
proper review, all documents submitted are found in order.'

The Acting Director IV, Region IV, in his study dated 30 July 2002 submitted the following recommendations:

'This Office, after evaluating the documents filed, finds the instant Petition sufficient in form and substance. That the PRA was
validly constituted and that the majority of all members thereof approved Resolution No. 01-02 calling for the recall of Mayor
Victorino Dennis M. Socrates.'

x x x ."

This Court is bound by the findings of fact of the COMELEC on matters within the competence and expertise of the COMELEC,
unless the findings are patently erroneous. In Malonzo v. COMELEC, 5 which also dealt with alleged defective service of notice to
PRA members, we ruled that –

"Needless to state, the issue of propriety of the notices sent to the PRA members is factual in nature, and the determination of
the same is therefore a function of the COMELEC. In the absence of patent error, or serious inconsistencies in the findings, the
Court should not disturb the same. The factual findings of the COMELEC, based on its own assessments and duly supported by
gathered evidence, are conclusive upon the court, more so, in the absence of a substantiated attack on the validity of the same."

In the instant case, we do not find any valid reason to hold that the COMELEC's findings of fact are patently erroneous.

Socrates also claims that the PRA members had no authority to adopt the Recall Resolution on July 2, 2002 because a majority
of PRA members were seeking a new electoral mandate in the barangay elections scheduled on July 15, 2002. This argument
deserves scant consideration considering that when the PRA members adopted the Recall Resolution their terms of office had
not yet expired. They were all de jure sangguniang barangay members with no legal disqualification to participate in the recall
assembly under Section 70 of the Local Government Code.

Socrates bewails that the manner private respondents conducted the PRA proceedings violated his constitutional right to
information on matters of public concern. Socrates, however, admits receiving notice of the PRA meeting and of even sending
his representative and counsel who were present during the entire PRA proceedings. Proponents of the recall election submitted
to the COMELEC the Recall Resolution, minutes of the PRA proceedings, the journal of the PRA assembly, attendance sheets,
notices sent to PRA members, and authenticated master list of barangay officials in Puerto Princesa. Socrates had the right to
examine and copy all these public records in the official custody of the COMELEC. Socrates, however, does not claim that the
COMELEC denied him this right. There is no legal basis in Socrates' claim that respondents violated his constitutional right to
information on matters of public concern.
Thus, we rule that the COMELEC did not commit grave abuse of discretion in upholding the validity of the Recall Resolution and
in scheduling the recall election on September 24, 2002.

Second Issue: Hagedorn's qualification to run for mayor

in the recall election of September 24, 2002.

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

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

This three-term limit rule is reiterated in Section 43 (b) of RA No. 7160, otherwise known as the Local Government Code, which
provides:

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

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

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

After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited
election refers to the next regular election for the same office following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate reelection after three consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.

When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there
would be no further election after three terms, or whether there would be "no immediate reelection" after three terms. This is
clear from the following deliberations of the Constitutional Commission:

"THE PRESIDENT: The Acting Floor Leader is recognized.

MR. ROMULO:6 We are now ready to discuss the two issues, as indicated on the blackboard, and these are Alternative
No. I where there is no further election after a total of three terms and Alternative No. 2 where there is no immediate
reelection after three successive terms."7

The Journal of the Constitutional Commission reports the following manifestation on the term of elective local officials:

"MANIFESTATION OF MR. ROMULO

Upon resumption of session, Mr. Romulo manifested that the Body would proceed to the consideration of two issues on the term
of Representatives and local officials, namely: 1) Alternative No. 1 (no further reelection after a total of three terms), and 2)
Alternative No. 2 (no immediate reelection after three successive terms)."8

The framers of the Constitution used the same "no immediate reelection" question in voting for the term limits of Senators 9 and
Representatives of the House.10

Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The
Constitution, however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately
after the end of the third consecutive term. A recall election mid-way in the term following the third consecutive term is a
subsequent election but not an immediate reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election
involving the same term of office. What the Constitution prohibits is a consecutive fourth term. The debates in the Constitutional
Commission evidently show that the prohibited election referred to by the framers of the Constitution is the immediate reelection
after the third term, not any other subsequent election.

If the prohibition on elective local officials is applied to any election within the three-year full term following the three-term limit,
then Senators should also be prohibited from running in any election within the six-year full term following their two-term limit.
The constitutional provision on the term limit of Senators is worded exactly like the term limit of elective local officials, thus:

"No Senator shall serve for more than two consecutive terms. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of his service for the full term for which he was elected." 11

In the debates on the term limit of Senators, the following exchange in the Constitutional Convention is instructive:

"GASCON:12 I would like to ask a question with regard to the issue after the second term. We will allow the Senator to
rest for a period of time before he can run again?

DAVIDE:13 That is correct.

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

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

GASCON: So, effectively, the period of rest would be three years at the least."14 (Emphasis supplied)

The framers of the Constitution thus clarified that a Senator can run after only three years 15 following his completion of two terms.
The framers expressly acknowledged that the prohibited election refers only to the immediate reelection, and not to any
subsequent election, during the six-year period following the two term limit. The framers of the Constitution did not intend "the
period of rest" of an elective official who has reached his term limit to be the full extent of the succeeding term.

In the case of Hagedorn, his candidacy in the recall election on September 24, 2002 is not an immediate reelection after his third
consecutive term which ended on June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001. Hagedorn did not seek reelection in the 2001 elections.

Hagedorn was elected for three consecutive terms in the 1992, 1995 and 1998 elections and served in full his three consecutive
terms as mayor of Puerto Princesa. Under the Constitution and the Local Government Code, Hagedorn could no longer run for
mayor in the 2001 elections. The Constitution and the Local Government Code disqualified Hagedorn, who had reached the
maximum three-term limit, from running for a fourth consecutive term as mayor. Thus, Hagedorn did not run for mayor in the
2001 elections.16 Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After Hagedorn ceased to be mayor
on June 30, 2001, he became a private citizen until the recall election of September 24, 2002 when he won by 3,018 votes over
his closest opponent, Socrates.

From June 30, 2001 until the recall election on September 24, 2002, the mayor of Puerto Princesa was Socrates. During the
same period, Hagedorn was simply a private citizen. This period is clearly an interruption in the continuity of Hagedorn's service
as mayor, not because of his voluntary renunciation, but because of a legal prohibition. Hagedorn's three consecutive terms
ended on June 30, 2001. Hagedorn's new recall term from September 24, 2002 to June 30, 2004 is not a seamless continuation
of his previous three consecutive terms as mayor. One cannot stitch together Hagedorn's previous three-terms with his new
recall term to make the recall term a fourth consecutive term because factually it is not. An involuntary interruption occurred from
June 30, 2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorn's service as mayor.

In Lonzanida v. Comelec,17 the Court had occasion to explain interruption of continuity of service in this manner:

"x x x The second sentence of the constitutional provision under scrutiny states, "Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of service for the full term for which he was elected." The clear
intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office
and at the same time respect the people's choice and grant their elected official full service of a term is evident in this provision.
Voluntary renunciation of a term does not cancel the renounced term in the computation of the three-term limit; conversely,
involuntary severance from office for any length of time short of the full term provided by law amounts to an interruption of
continuity of service. x x x." (Emphasis supplied)
In Hagedorn's case, the nearly 15-month period he was out of office, although short of a full term of three years, constituted an
interruption in the continuity of his service as mayor. The Constitution does not require the interruption or hiatus to be a full term
of three years. The clear intent is that interruption "for any length of time," as long as the cause is involuntary, is sufficient to
break an elective local official's continuity of service.

In the recent case of Adormeo v. Comelec and Talaga,18 a unanimous Court reiterated the rule that an interruption consisting of
a portion of a term of office breaks the continuity of service of an elective local official. In Adormeo, Ramon Y. Talaga, Jr. had
served two consecutive full terms as mayor of Lucena City. In his third bid for election as mayor in 1998, Talaga lost to Bernard
G. Tagarao. However, in the recall election of May 12, 2000, Talaga won and served the unexpired term of Tagarao from May
12, 2000 to June 30, 2001. When Talaga ran again for mayor in the 2001 elections, Raymundo Adormeo, the other candidate for
mayor, petitioned for Talaga's disqualification on the ground that Talaga had already served three consecutive terms as mayor.

Thus, the issue in Adormeo was whether Talaga's recall term was a continuation of his previous two terms so that he was
deemed to have already served three consecutive terms as mayor. The Court ruled that Talaga was qualified to run in the 2001
elections, stating that the period from June 30, 1998 to May 12, 2000 when Talaga was out of office interrupted the continuity of
his service as mayor. Talaga's recall term as mayor was not consecutive to his previous two terms because of this interruption,
there having been a break of almost two years during which time Tagarao was the mayor.

We held in Adormeo that the period an elective local official is out of office interrupts the continuity of his service and prevents his
recall term from being stitched together as a seamless continuation of his previous two consecutive terms. In the instant case,
we likewise hold that the nearly 15 months Hagedorn was out of office interrupted his continuity of service and prevents his recall
term from being stitched together as a seamless continuation of his previous three consecutive terms. The only difference
between Adormeo and the instant case is the time of the interruption. In Adormeo, the interruption occurred after the first two
consecutive terms. In the instant case, the interruption happened after the first three consecutive terms. In both cases, the
respondents were seeking election for a fourth term.

In Adormeo, the recall term of Talaga began only from the date he assumed office after winning the recall election. Talaga's
recall term did not retroact to include the tenure in office of his predecessor. If Talaga's recall term was made to so retroact, then
he would have been disqualified to run in the 2001 elections because he would already have served three consecutive terms
prior to the 2001 elections. One who wins and serves a recall term does not serve the full term of his predecessor but only the
unexpired term. The period of time prior to the recall term, when another elective official holds office, constitutes an interruption
in continuity of service. Clearly, Adormeo established the rule that the winner in the recall election cannot be charged or credited
with the full term of three years for purposes of counting the consecutiveness of an elective official's terms in office.

In the same manner, Hagedorn's recall term does not retroact to include the tenure in office of Socrates. Hagedorn can only be
disqualified to run in the September 24, 2002 recall election if the recall term is made to retroact to June 30, 2001, for only then
can the recall term constitute a fourth consecutive term. But to consider Hagedorn's recall term as a full term of three years,
retroacting to June 30, 2001, despite the fact that he won his recall term only last September 24, 2002, is to ignore reality. This
Court cannot declare as consecutive or successive terms of office which historically and factually are not.

Worse, to make Hagedorn's recall term retroact to June 30, 2001 creates a legal fiction that unduly curtails the freedom of the
people to choose their leaders through popular elections. The concept of term limits is in derogation of the sovereign will of the
people to elect the leaders of their own choosing. Term limits must be construed strictly to give the fullest possible effect to the
sovereign will of the people. As this Court aptly stated in Borja, Jr. v. Comelec:

"Thus, a consideration of the historical background of Art. X, §8 of the Constitution reveals that the members of the Constitutional
Commission were as much concerned with preserving the freedom of choice of the people as they were with preventing the
monopolization of political power. Indeed, they rejected a proposal put forth by Commissioner Edmundo F. Garcia that after
serving three consecutive terms or nine years there should be no further reelection for local and legislative officials. Instead, they
adopted the alternative proposal of Commissioner Christian Monsod that such officials be simply barred from running for the
same position in the succeeding election following the expiration of the third consecutive term. Monsod warned against
'prescreening candidates [from] whom the people will choose' as a result of the proposed absolute disqualification, considering
that the draft constitution contained provisions 'recognizing people's power.'"19 (Emphasis supplied)

A necessary consequence of the interruption of continuity of service is the start of a new term following the interruption. An
official elected in recall election serves the unexpired term of the recalled official. This unexpired term is in itself one term for
purposes of counting the three-term limit. This is clear from the following discussion in the Constitutional Commission:

"SUAREZ:20 For example, a special election is called for a Senator, and the Senator newly elected would have to serve the
unexpired portion of the term. Would that mean that serving the unexpired portion of the term is already considered one term?
So, half a term, which is actually the correct statement, plus one term would disqualify the Senator concerned from running? Is
that the meaning of this provision on disqualification, Madam President?
DAVIDE: Yes, because we speak of 'term,' and if there is a special election, he will serve only for the unexpired portion of that
particular term plus one more term for the Senator and two more terms for the Members of the Lower House." 21

Although the discussion referred to special elections for Senators and Representatives of the House, the same principle applies
to a recall election of local officials. Otherwise, an elective local official who serves a recall term can serve for more than nine
consecutive years comprising of the recall term plus the regular three full terms. A local official who serves a recall term should
know that the recall term is in itself one term although less than three years. This is the inherent limitation he takes by running
and winning in the recall election.

In summary, we hold that Hagedorn is qualified to run in the September 24, 2002 recall election for mayor of Puerto Princesa
because:

1. Hagedorn is not running for immediate reelection following his three consecutive terms as mayor which ended on
June 30, 2001;

2. Hagedorn's continuity of service as mayor was involuntarily interrupted from June 30, 2001 to September 24, 2002
during which time he was a private citizen;

3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 cannot be made to retroact to June 30, 2001 to
make a fourth consecutive term because factually the recall term is not a fourth consecutive term; and

4. Term limits should be construed strictly to give the fullest possible effect to the right of the electorate to choose their
leaders.

WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 are DISMISSED. The temporary restraining order
issued by this Court on September 24, 2002 enjoining the proclamation of the winning candidate for mayor of Puerto Princesa in
the recall election of September 24, 2002 is lifted. No costs.

SO ORDERED.