CONGRESSMAN HERMILANDO I. MANDANAS; MAYOR EFREN B.

DIONA;
MAYOR ANTONINO A. AURELIO; KAGA WAD MARIOILAGAN;BARANGAY
CHAIR PERLITO MANALO; BARANGA Y CHAIR MEDEL MEDRANO;BARAN
Today is Tuesday, August 06, 2019 home GAY KAGA WAD CRIS RAMOS; BARANGA Y KAGA WAD ELISA D. BALB

Custom Search AGO, and ATTY. JOSE MALVAR VILLEGAS, Petitioners

vs.

EXECUTIVE SECRETARY PAQUITO N. OCHOA, JR.; SECRETARY CESAR PU

G.R. No. 199802, xdate, 2018,
♦ Decision, Bersamin, [J]
♦ Separate Opinion, Velasco, Jr., [J] Caguioa, [J]
RISIMA, Department of Finance; SECRETARY FLORENCIO H. ABAD, Depar
tment of Budget and Management; COMMISSIONER KIM JACINTO-HENA
RES, Bureau of Internal Revenue; and NATIONAL TREASURER ROBERTO
TAN, Bureau of the Treasury, Respondents

♦ Separate Opinion, Leonen, [J] Reyes, [J]

G.R. No. 208488

EN BANC
HONORABLE ENRIQUE T. GARCIA, JR., in his personal and official capacit
y as Representative of the 2nd District of the Province of Bataan, Petitio
JULY 3, 2018
ner

vs.

G.R. No. 199802

HONORABLE [PAQUITO) N. OCHOA, JR., Executive Secretary; HONORABL
E CESAR V. PURISIMA, Secretary, Department of Finance; HONORABLE F
LORENCIO H. ABAD, Secretary, Department of Budget and Management;
 HONORABLE KIM S. JACINTO-HENARES, Commissioner, Bureau of Intern in accordance with their own priorities.1 Such autonomy is as indispensa
al Revenue; and HONORABLE ROZZANO RUFINO B. BIAZON, Commissio ble to the viability of the policy of decentralization as the other.
ner, Bureau of Customs, Respondents

Implementing the constitutional mandate for decentralization and local a

D E C I S I O N utonomy, Congress enacted Republic Act No. 7160, otherwise known as t
he Local Government Code (LGC), in order to guarantee the fiscal auton
omy of the LGUs by specifically providing that:
BERSAMIN, J.:

SECTION 284. Allotment of Internal Revenue Taxes. - Local government

The petitioners hereby challenge the manner in which the just share in t units shall have a share in the national internal revenue taxes based on
he national taxes of the local government units (LGUs) has been comput the collection of the third fiscal year preceding the current fiscal year as
ed. follows:

Antecedents (a) On the first year of the effectivity of this Code, thirty percent (30%);
(b) On the second year, thirty-five percent (35%); and

One of the key features of the 1987 Constitution is its push towards dec
entralization of government and local autonomy. Local autonomy has tw (c) On the third year and thereafter, forty percent (40%).
o facets, the administrative and the fiscal. Fiscal autonomy means that lo
cal governments have the power to create their own sources of revenue
in addition to their equitable share in the national taxes released by th Provided, That in the event that the National Government incurs an unm
e National Government, as well as the power to allocate their resources anageable public sector deficit, the President of the Philippines is hereby
 authorized, upon the recommendation of Secretary of Finance, Secretary
of Interior and Local Government, and Secretary of Budget and Manag
ement, and subject to consultation with the presiding officers of both H
ouses of Congress and the presidents of the "liga", to make the necessa
ry adjustments in the internal revenue allotment of local government uni
ts but in no case shall the allotment be less than thirty percent (30%) o
f the collection of national internal revenue taxes of the third fiscal year
preceding the current fiscal year: Provided, further, That in the first year
of the effectivity of this Code, the local government units shall, in additi
on to the thirty percent (30%) internal revenue allotment which shall incl
ude the cost of devolved functions for essential public services, be entitl
ed to receive the amount equivalent to the cost of devolved personal s
ervices.
The share of the LGUs, heretofore known as the Internal Revenue Allotm
ent (IRA), has been regularly released to the LGUs. According to the im
plementing rules and regulations of the LGC, the IRA is determined on t
he basis of the actual collections of the National Internal Revenue Taxes
(NIRTs) as certified by the Bureau of Internal Revenue (BIR).2
G.R. No. 199802 (Mandanas, et al.) is a special civil action for certiorari,
prohibition and mandamus assailing the manner the General Appropriati
ons Act (GAA) for FY 2012 computed the IRA for the LGUs.
Mandanas, et al. allege herein that certain collections of NIR Ts by the
Bureau of Customs (BOC) - specifically: excise taxes, value added taxes (
VATs) and documentary stamp taxes (DSTs) - have not been included in
the base amounts for the computation of the IRA; that such taxes, albe
it collected by the BOC, should form part of the base from which the I
RA should be computed because they constituted NIRTs; that, conseque
ntly, the release of the additional amount of ₱60,750,000,000.00 to the L
GUs as their IRA for FY 2012 should be ordered; and that for the same
reason the LGUs should also be released their unpaid IRA for FY 1992 t
o FY 2011, inclusive, totaling ₱438,103,906,675.73.
In G.R. No. 208488, Congressman Enrique Garcia, Jr., the lone petitioner,
seeks the writ of mandamus to compel the respondents thereat to com
pute the just share of the LGUs on the basis of all national taxes. His p
etition insists on a literal reading of Section 6, Article X of the 1987 Con
stitution. He avers that the insertion by Congress of the words internal r
evenue in the phrase national taxes found in Section 284 of the LGC ca
used the diminution of the base for determining the just share of the L
GUs, and should be declared unconstitutional; that, moreover, the exclusi
on of certain taxes and accounts pursuant to or in accordance with spec
ial laws was similarly constitutionally untenable; that the VA Ts and excis
e taxes collected by the BOC should be included in the computation of
the IRA; and that the respondents should compute the IRA on the basis
of all national tax collections, and thereafter distribute any shortfall to th
e LGUs.
It is noted that named as common respondents were the then incumbe
nt Executive Secretary, Secretary of Finance, the Secretary of the Depart
ment of Budget and Management (DBM), and the Commissioner of Inter
nal Revenue. In addition, Mandanas, et al. impleaded the National Treas
urer, while Garcia added the Commissioner of Customs.
The cases were consolidated on October 22, 2013. 3 In the meanwhile,
Congressman Garcia, Jr. passed away. Jose Enrique Garcia III, who was s
ubsequently elected to the same congressional post, was substituted for
Congressman Garcia, Jr. as the petitioner in G.R. No. 208488 under the
resolution promulgated on August 23, 2016.4
In response to the petitions, the several respondents, represented by the
Office of the Solicitor General (OSG), urged the dismissal of the petitio
ns upon procedural and substantive considerations.
Anent the procedural considerations, the OSG argues that the petitions
are procedurally defective because, firstly, mandamus does not lie in ord
er to achieve the reliefs sought because Congress may not be compelle
d to appropriate the sums allegedly illegally withheld for to do so will vi
olate the doctrine of separation of powers; and, secondly, mandamus do
es not also lie to compel the DBM to release the amounts to the LGUs
because such disbursements will be contrary to the purposes specified in
the GAA; that Garcia has no clear legal right to sustain his suit for ma
ndamus; that the filing of Garcia's suit violates the doctrine of hierarchy
of courts; and that Garcia's petition seeks declaratory relief but the Cour
t cannot grant such relief in the exercise of its original jurisdiction.
On the substantive considerations, the OSG avers that Article 284 of the
LGC is consistent with the mandate of Section 6, Article X of the 1987
Constitution to the effect that the LGUs shall have a just share in the n
ational taxes; that the determination of the just share is within the discre
tion of Congress; that the limitation under the LGC of the basis for the
just share in the NIRTs was within the powers granted to Congress by t
he 1987 Constitution; that the LGUs have been receiving their just share
in the national taxes based on the correct base amount; that Congress
II.
has the authority to exclude certain taxes from the base amount in com
puting the IRA; that there is a distinction between the VA Ts, excise tax
es and DSTs collected by the BIR, on one hand, and the VA Ts, excise t Whether or not Section 284 of the LGC is unconstitutional for being rep
axes and DSTs collected by the BOC, on the other, thereby warranting t ugnant to Section 6, Article X of the 1987 Constitution;
heir different treatment; and that Development Budget Coordination Co
mmittee (DBCC) Resolution No. 2003-02 dated September 4, 2003 has li
mited the base amount for the computation of the IRA to the "cash coll III.
ections based on the BIR data as reconciled with the Bureau of Treasury
;" and that the collection of such national taxes by the BOC should be
excluded. Whether or not the existing shares given to the LGUs by virtue of the
GAA is consistent with the constitutional mandate to give LGUs a 'just s
hare" to national taxes following Article X, Section 6 of the 1987 Constit
Issues ution;

The issues for resolution are limited to the following, namely: IV.

I. Whether or not the petitioners are entitled to the reliefs prayed for.

Whether or not Mandamus is the proper vehicle to assail the constitutio Simply stated, the petitioners raise the novel question of whether or not
nality of the relevant provisions of the GAA and the LGC; the exclusion of certain national taxes from the base amount for the co
mputation of the just share of the LGUs in the national taxes is constitu
tional.
Ruling of the Court
The petitions are partly meritorious.
I
Mandamus is an improper remedy
Mandanas, et al. seek the writs of certiorari, prohibition and mandamus,
while Garcia prays for the writ of mandamus. Both groups of petitioners
impugn the validity of Section 284 of the LGC.
The remedy of mandamus is defined in Section 3, Rule 65 of the Rules
of Court, which provides:
Section 3. Petition for mandamus. - When any tribunal, corporation, boa
rd, officer or person unlawfully neglects the performance of an act whic
h the law specifically enjoins as a duty resulting from an office, trust, or
station, or unlawfully excludes another from the use and enjoyment of a
right or office to which such other is entitled, and there is no other pl
ain, speedy and adequate remedy in the ordinary course of law, the per
son aggrieved thereby may file a verified petition in the proper court, al
leging the facts with certainty and praying that judgment be rendered c
ommanding the respondent, immediately or at some other time to be s
pecified by the court, to do the act required to be done to protect the
rights of the petitioner, and to pay the damages sustained by the petiti
oner by reason of the wrongful acts of the respondent.
The petition shall also contain a sworn certification of non-forum shoppi
ng as provided in the third paragraph of section 3, Rule 46.
For the writ of mandamus to issue, the petitioner must show that the a
ct sought to be performed or compelled is ministerial on the part of th
e respondent. An act is ministerial when it does not require the exercise
of judgment and the act is performed pursuant to a legal mandate. Th
e burden of proof is on the mandamus petitioner to show that he is en
titled to the performance of a legal right, and that the respondent has
a corresponding duty to perform the act. The writ of mandamus may n
ot issue to compel an official to do anything that is not his duty to do,
or that is his duty not to do, or to obtain for the petitioner anything to
which he is not entitled by law. 5
Considering that its determination of what constitutes the just share of t
he LGUs in the national taxes under the 1987 Constitution is an entirely
discretionary power, Congress cannot be compelled by writ of mandamu
s to act either way. The discretion of Congress thereon, being exclusive,
is not subject to external direction; otherwise, the delicate balance underl
ying our system of government may be unduly disturbed. This conclusio
n should at once then demand the dismissal of the Garcia petition in G.
R. No. 208488, but we do not dismiss it. Garcia has attributed the non-r
elease of some portions of their IRA balances to an alleged congression
al indiscretion - the diminution of the base amount for computing the L
GU's just share. He has asserted that Congress altered the constitutional
base not only by limiting the base to the NIRTs instead of including the
rein all national taxes, but also by excluding some national taxes and re
venues that only benefitted a few LGUs to the detriment of the rest of
the LGUs.
Garcia's petition, while dubbed as a petition for mandamus, is also a pe
tition for certiorari because it alleges that Congress thereby committed g
rave abuse of discretion amounting to lack or excess of jurisdiction. It is
worth reminding that the actual nature of every action is determined by
the allegations in the body of the pleading or the complaint itself, not
by the nomenclature used to designate the same. 6 Moreover, neither s
hould the prayer for relief be controlling; hence, the courts may still gra
nt the proper relief as the facts alleged in the pleadings and the eviden
ce introduced may warrant even without a prayer for specific remedy.7
In this regard, Garcia's allegation of the unconstitutionality of the insertio
n by Congress of the words internal revenue in the phrase national taxe
s justifies treating his petition as one for certiorari. It becomes our duty,
then, to assume jurisdiction over his petition. In Araullo v. Aquino III,8 th
e Court has emphatically opined that the Court's certiorari jurisdiction un
der the expanded judicial power as stated in the second paragraph of S
ection 1, Article VIII of the Constitution can be asserted:
xxxx to set right and undo any act of grave abuse of discretion amounti
ng to lack or excess of jurisdiction by any branch or instrumentality of t
he Government, the Court is not at all precluded from making the inqui
ry provided the challenge was properly brought by interested or affected
parties. The Court has been thereby entrusted expressly or by necessar
y implication with both the duty and the obligation of determining, in a
ppropriate cases, the validity of any assailed legislative or executive actio
n. This entrustment is consistent with the republican system of checks an
d balances. 9
Further, observing that one of the reliefs being sought by Garcia is iden
tical to the main relief sought by Mandanas, et al., the Court should rig
htly dwell on the substantive arguments posited by Garcia to the extent
that they are relevant to the ultimate resolution of these consolidated su
its.
II.
Municipal corporations and their relationship with Congress
The correct resolution and fair disposition of the issues interposed for o
ur consideration require a review of the basic principles underlying our s
ystem of local governments, and of the extent of the autonomy granted
to the LGUs by the 1987 Constitution.
Municipal corporations are now commonly known as local governments.
They are the bodies politic established by law partly as agencies of the
State to assist in the civil governance of the country. Their chief purpose
has been to regulate and administer the local and internal affairs of th
e cities, municipalities or districts. They are legal institutions formed by c
harters from the sovereign power, whereby the populations within comm
unities living within prescribed areas have formed themselves into bodies
politic and corporate, and assumed their corporate names with the righ
t of continuous succession and for the purposes and with the authority
of subordinate self-government and improvement and the local administr
ation of the affairs of the State. 10
Municipal corporations, being the mere creatures of the State, are subjec
t to the will of Congress, their creator. Their continued existence and th
e grant of their powers are dependent on the discretion of Congress. O
n this matter, Judge John F. Dillon of the State of Iowa in the United St
ates of America enunciated in Merriam v. Moody's Executors11 the rule
of statutory construction that came to be oft-mentioned as Dillon's Rule,
to wit:
[A] municipal corporation possesses and can exercise the following powe
rs and no others: First, those granted in express words; second, those n
ecessarily implied or necessarily incident to the powers expressly granted;
third, those absolutely essential to the declared objects and purposes o
f the corporation-not simply convenient but indispensible; fourth, any fair
 doubt as to the existence of a power is resolved by the courts against
the corporation-against the existence of the powers. 12
The formulation of Dillon's Rule has since undergone slight modifications
. Judge Dillon himself introduced some of the modifications through his
post-Merriam writings with the objective of alleviating the original formul
ation's harshness. The word fairly was added to the second proviso; the
word absolutely was deleted from the third proviso; and the words reas
onable and substantial were added to the fourth proviso, thusly:
x x x second, those necessarily or fairly implied in or incident to the po
wers expressly granted; third, those essential to x x x. Any fair, reasonabl
e, doubt. 13
The modified Dillon's Rule has been followed in this jurisdiction, and has
remained despite both the 1973 Constitution and the 1987 Constitution
mandating autonomy for local governments. This has been made evident
in several rulings of the Court, one of which was that handed down in
Magtajas v. Pryce Properties Corporation, lnc.: 14
In light of all the above considerations, we see no way of arriving at th
e conclusion urged on us by the petitioners that the ordinances in ques
tion are valid. On the contrary, we find that the ordinances violate P.D.
1869, which has the character and force of a statute, as well as the pub
lic policy expressed in the decree allowing the playing of certain games
of chance despite the prohibition of gambling in general.
The rationale of the requirement that the ordinances should not contrav
ene a statute is obvious. Municipal governments are only agents of the
national government. Local councils exercise only delegated legislative po
wers conferred on them by Congress as the national lawmaking body. T
he delegate cannot be superior to the principal or exercise powers high
er than those of the latter. It is a heresy to suggest that the local gover
nment units can undo the acts of Congress, from which they have deriv
ed their power in the first place, and negate by mere ordinance the ma
ndate of the statute.
Municipal corporations owe their origin to, and derive their powers and
rights wholly from the legislature. It breathes into them the breath of lif
e, without which they cannot exist. As it creates, so it may destroy. As it
may destroy, it may abridge and control. Unless there is some constitut
ional limitation on the right, the legislature might, by a single act, and if
 we can suppose it capable of so great a folly and so great a wrong, s
weep from existence all of the municipal corporations in the State, and t
he corporation could not prevent it. We know of no limitation on the ri
ght so far as to the corporation themselves are concerned. They are, so
to phrase it, the mere tenants at will of the legislature.
This basic relationship between the national legislature and the local gov
ernment units has not been enfeebled by the new provisions in the Con
stitution strengthening the policy of local autonomy. Without meaning to
detract from that policy, we here confirm that Congress retains control
of the local government units although in significantly reduced degree n
ow than under our previous Constitutions. The power to create still inclu
des the power to destroy. The power to grant still includes the power t
o withhold or recall.
True, there are certain notable innovations in the Constitution, like the di
rect conferment on the local government units of the power to tax, whi
ch cannot now be withdrawn by mere statute. By and large, however, th
e national legislature is still the principal of the local government units,
which cannot defy its will or modify or violate it. [Bold underscoring sup
plied for emphasis]
Also, in the earlier ruling in Ganzon v. Court of Appeals, 15 the Court h
as pointed out that the 1987 Constitution, in mandating autonomy for th
e LGUs, did not intend to deprive Congress of its authority and preroga
tives over the LGUs.
Nonetheless, the LGC has tempered the application of Dillon's Rule in th
e Philippines by providing a norm of interpretation in favor of the LGUs
in its Section 5(a), to wit:
x x x x
(a) Any provision on a power of a local government unit shall be liberall
y interpreted in its favor, and in case of doubt, any question thereon sh
all be resolved in favor of devolution of powers and of the local govern
ment unit. Any fair and reasonable doubt as to the existence of the po
wer shall be interpreted in favor of the local government unit concerned
; [Bold underscoring supplied for emphasis]
x x x x
III.
The extent of local autonomy in the Philippines
Regardless, there remains no question that Congress possesses and wiel
ds plenary power to control and direct the destiny of the LGUs, subject
only to the Constitution itself, for Congress, just like any branch of the
Government, should bow down to the majesty of the Constitution, which
is always supreme.
The 1987 Constitution limits Congress' control over the LGUs by ordainin
g in Section 25 of its Article II that: "The State shall ensure the autono
my of local governments." The autonomy of the LGUs as thereby ensure
d does not contemplate the fragmentation of the Philippines into a colle
ction of mini-states, 16 or the creation of imperium in imperio. 17 The g
rant of autonomy simply means that Congress will allow the LGUs to pe
rform certain functions and exercise certain powers in order not for the
m to be overly dependent on the National Government subject to the li
mitations that the 1987 Constitution or Congress may impose. 18 Local a
utonomy recognizes the wholeness of the Philippine society in its ethnoli
nguistic, cultural, and even religious diversities.19
The constitutional mandate to ensure local autonomy refers to decentrali
zation.20 In its broad or general sense, decentralization has two forms i
n the Philippine setting, namely: the decentralization of power and the d
ecentralization of administration. The decentralization of power involves t
he abdication of political power in favor of the autonomous LGUs as to
grant them the freedom to chart their own destinies and to shape their
futures with minimum intervention from the central government. This am
ounts to self-immolation because the autonomous LGUs thereby become
accountable not to the central authorities but to their constituencies. O
n the other hand, the decentralization of administration occurs when the
central government delegates administrative powers to the LGUs as the
means of broadening the base of governmental powers and of making t
he LGUs more responsive and accountable in the process, and thereby
ensure their fullest development as self-reliant communities and more eff
ective partners in the pursuit of the goals of national development and
social progress. This form of decentralization further relieves the central
government of the burden of managing local affairs so that it can conc
entrate on national concerns.21
Two groups of LGUs enjoy decentralization in distinct ways. The decentr
alization of power has been given to the regional units (namely, the Aut
onomous Region for Muslim Mindanao [ARMM] and the constitutionally-
mandated Cordillera Autonomous Region [CAR]). The other group of LG
Us (i.e., provinces, cities, municipalities and barangays) enjoy the decentr
alization of administration.22 The distinction can be reasonably understoo
Illustrative of the limitation is what transpired in Serna v. Commission on
d. The provinces, cities, municipalities and barangays are given decentrali
Elections,26 where the Court struck down Section 19, Article VI of Repu
zed administration to make governance at the local levels more directly
blic Act No. 9054 (An Act to Strengthen and Expand the Organic Act fo
responsive and effective. In turn, the economic, political and social devel
r the Autonomous Region in Muslim Mindanao, Amending for the Purpo
opments of the smaller political units are expected to propel social and
se Republic Act No. 6734, entitled "An Act Providing for the Autonomou
economic growth and development. 23 In contrast, the regional autono
s Region in Muslim Mindanao," as Amended) insofar as the provision gr
my of the ARMM and the CAR aims to permit determinate groups with
anted to the ARMM the power to create provinces and cities, and conse
common traditions and shared social-cultural characteristics to freely dev
quently declared as void Muslim Mindanao Autonomy Act No. 201 creati
elop their ways of life and heritage, to exercise their rights, and to be i
ng the Province of Shariff Kabunsuan for being contrary to Section 5, Ar
n charge of their own affairs through the establishment of a special gov
ticle VI and Section 20, Article X of the 1987 Constitution, as well as Sec
ernance regime for certain member communities who choose their own
tion 3 of the Ordinance appended to the 1987 Constitution. The Court c
authorities from within themselves, and exercise the jurisdictional authorit
larified therein that only Congress could create provinces and cities. This
y legally accorded to them to decide their internal community affairs. 24
was because the creation of provinces and cities necessarily entailed the
creation of legislative districts, a power that only Congress could exercise
pursuant to Section 5, Article VI of the 1987 Constitution and Section 3
It is to be underscored, however, that the decentralization of power in f
of the Ordinance appended to the Constitution; as such, the ARMM wo
avor of the regional units is not unlimited but involves only the powers
uld be thereby usurping the power of Congress to create legislative distr
enumerated by Section 20, Article X of the 1987 Constitution and by the
icts and national offices.27
acts of Congress. For, with various powers being devolved to the regio
nal units, the grant and exercise of such powers should always be consi
stent with and limited by the 1987 Constitution and the national laws. 2
The 1987 Constitution has surely encouraged decentralization by mandati
5 In other words, the powers are guardedly, not absolutely, abdicated b
ng that a system of decentralization be instituted through the LGC in or
y the National Government.
der to enable a more responsive and accountable local government stru
cture.28 It has also delegated the power to tax to the LGUs by authorizi
ng them to create their own sources of income that would make them
self-reliant.29 It further ensures that each and every LGU will have a just
share in national taxes as well in the development of the national wealt
h.30
The LGC has further delineated in its Section 3 the different operative p
rinciples of decentralization to be adhered to consistently with the consti
tutional policy on local autonomy, viz.:
Sec. 3. Operative Principles of Decentralization-
The formulation and implementation of policies and measures on local a
utonomy shall be guided by the following operative principles:
(a) There shall be an effective allocation among the different local gover
nment units of their respective powers, functions, responsibilities, and res
ources;
(b) There shall be established in every local government unit an account
able, efficient, and dynamic organizational structure and operating mecha
nism that will meet the priority needs and service requirements of its co
mmunities;
(c) Subject to civil service law, rules and regulations, local officials and e
mployees paid wholly or mainly from local funds shall be appointed or r
emoved, according to merit and fitness, by the appropriate appointing a
uthority;
(d) The vesting of duty, responsibility, and accountability in local govern
ment units shall be accompanied with provision for reasonably adequate
resources to discharge their powers and effectively carry out their functi
ons: hence, they shall have the power to create and broaden their own
sources of revenue and the right to a just share in national taxes and a
n equitable share in the proceeds of the utilization and development of
the national wealth within their respective areas;
(e) Provinces with respect to component cities and municipalities, and cit
ies and municipalities with respect to component barangays, shall ensure
that the acts of their component units are within the scope of their pr
escribed powers and functions;
 (j) Effective mechanisms for ensuring the accountability of local governm
ent units to their respective constituents shall be strengthened in order t
(f) Local government units may group themselves, consolidate or coordin
o upgrade continually the quality of local leadership;
ate their efforts, services, and resources commonly beneficial to them;

(k) The realization of local autonomy shall be facilitated through improve

(g) The capabilities of local government units, especially the municipalitie
d coordination of national government policies and programs an extensi
s and barangays, shall be enhanced by providing them with opportunitie
on of adequate technical and material assistance to less developed and
s to participate actively in the implementation of national programs and
deserving local government units;
projects;

(l) The participation of the private sector in local governance, particularly

(h) There shall be a continuing mechanism to enhance local autonomy n
in the delivery of basic services, shall be encouraged to ensure the via
ot only by legislative enabling acts but also by administrative and organi
bility of local autonomy as an alternative strategy for sustainable develop
zational reforms;
ment; and

(i) Local government units shall share with the national government the
(m) The national government shall ensure that decentralization contribute
responsibility in the management and maintenance of ecological balance
s to the continuing improvement of the performance of local governmen
within their territorial jurisdiction, subject to the provisions of this Code
t units and the quality of community life.
and national policies;

Based on the foregoing delineation, decentralization can be considered a

s the decision by the central government to empower its subordinates,
whether geographically or functionally constituted, to exercise authority i
n certain areas. It involves decision-making by subnational units, and is t
ypically a delegated power, whereby a larger government chooses to del
egate authority to more local governments.31 It is also a process, being
the set of policies, electoral or constitutional reforms that transfer respon
sibilities, resources or authority from the higher to the lower levels of g
overnment.32 It is often viewed as a shift of authority towards local gov
ernments and away from the central government, with total government
authority over society and economy imagined as fixed.33
As a system of transferring authority and power from the National Gove
rnment to the LGUs, decentralization in the Philippines may be categoriz
ed into four, namely: (1) political decentralization or devolution; (2) admi
nistrative decentralization or deconcentration; (3) fiscal decentralization; a
nd (4) policy or decision-making decentralization.
Political decentralization or devolution occurs when there is a transfer of
powers, responsibilities, and resources from the central government to th
e LOU s for the performance of certain functions. It is a more liberal fo
rm of decentralization because there is an actual transfer of powers and
responsibilities. It aims to grant greater autonomy to the LGUs in cogniz
ance of their right to self-government, to make them self-reliant, and to
improve their administrative and technical capabilities.34 It is an act by
which the National Government confers power and authority upon the v
arious LGUs to perform specific functions and responsibilities.35 It encom
passes reforms to open sub-national representation and policies to "dev
olve political authority or electoral capacities to sub-national actors. "36
Section 16 to Section 19 of the LGC characterize political decentralization
in the LGC as different LGUs empowered to address the different need
s of their constituents. In contrast, devolution in favor of the regional un
its is more expansive because they are given the authority to regulate a
wider array of subjects, including personal, family and property relations.
Administrative decentralization or deconcentration involves the transfer of
functions or the delegation of authority and responsibility from the nati
onal office to the regional and local offices. 37 Consistent with this conc
ept, the LGC has created the Local School Boards,38 the Local Health B
oards39 and the Local Development Councils,40 and has transferred som
e of the authority from the agencies of the National Government, like th
e Department of Education and the Department of Health, to such bodi
es to better cope up with the needs of particular localities.
Fiscal decentralization means that the LGUs have the power to create th
eir own sources of revenue in addition to their just share in the national
taxes released by the National Government. It includes the power to all
ocate their resources in accordance with their own priorities. It thus exte
nds to the preparation of their budgets, so that the local officials have t
o work within the constraints of their budgets. The budgets are not for
mulated at the national level and imposed on local governments, withou
t regard as to whether or not they are relevant to local needs and reso
urces. Hence, the necessity of a balancing of viewpoints and the harmon
ization of proposals from both local and national officials, who in any ca
se are partners in the attainment of national goals, is recognized and ad
dressed.41
Fiscal decentralization emanates from a specific constitutional mandate th
at is expressed in several provisions of Article X (Local Government) of t
he 1987 Constitution, specifically: Section 5;42 Section 6;43 and Section 7
.44
The constitutional authority extended to each and every LGU to create it
s own sources of income and revenue has been formalized from Section
128 to Section 133 of the LGC. To implement the LGUs' entitlement to
the just share in the national taxes, Congress has enacted Section 284 t
o Section 288 of the LGC. Congress has further enacted Section 289 to
Section 294 of the LGC to define the share of the LGUs in the national
wealth. Indeed, the requirement for the automatic release to the LGUs o
f their just share in the national taxes is but the consequence of the co
nstitutional mandate for fiscal decentralization. 45
For sure, fiscal decentralization does not signify the absolute freedom of
the LGUs to create their own sources of revenue and to spend their rev
enues unrestrictedly or upon their individual whims and caprices. Congre
ss has subjected the LGUs' power to tax to the guidelines set in Section
130 of the LGC and to the limitations stated in Section 133 of the LGC.
The concept of local fiscal autonomy does not exclude any manner of i
ntervention by the National Government in the form of supervision if on
ly to ensure that the local programs, fiscal and otherwise, are consistent
with the national goals.46
Lastly, policy- or decision-making decentralization exists if at least one s
ub-national tier of government has exclusive authority to make decisions
on at least one policy issue.47
In fine, certain limitations are and can be imposed by Congress in all th
e forms of decentralization, for local autonomy, whether as to power or
as to administration, is not absolute. The LGUs remain to be the tenants
of the will of Congress subject to the guarantees that the Constitution
itself imposes.
 Proceeds of National Taxes), of the LGC, which is again quoted for read
y reference:
IV.

Section 284 of the LGC deviates from the plain language

Section 284. Allotment of Internal Revenue Taxes. - Local government u
of Section 6 of Article X of the 1987 Constitution
nits shall have a share in the national internal revenue taxes based on t
he collection of the third fiscal year preceding the current fiscal year as

Section 6, Article X the 1987 Constitution textually commands the allocati follows:

on to the LGUs of a just share in the national taxes, viz.:

(a) On the first year of the effectivity of this Code, thirty percent (30%);

Section 6. Local government units shall have a just share, as determined

by law, in the national taxes which shall be automatically released to the
(b) On the second year, thirty-five percent (35%); and
m.

(c) On the third year and thereafter, forty percent (40%).

Section 6, when parsed, embodies three mandates, namely: (1) the LGUs
shall have a just share in the national taxes; (2) the just share shall be
determined by law; and (3) the just share shall be automatically released
Provided, That in the event that the national government incurs an unm
to the LGUs.48
anageable public sector deficit, the President of the Philippines is hereby
authorized, upon the recommendation of Secretary of Finance, Secretary
of Interior and Local Government and Secretary of Budget and Manage
Congress has sought to carry out the second mandate of Section 6 by
ment, and subject to consultation with the presiding officers of both Ho
enacting Section 284, Title III (Shares of Local Government Units in the
uses of Congress and the presidents of the "liga", to make the necessar
y adjustments in the internal. revenue allotment of local government unit
s but in no case shall the allotment be less than thirty percent (30%) of
the collection of national internal revenue taxes of the third fiscal year
preceding the current fiscal year: Provided, further, That in the first year
of the effectivity of this Code, the local government units shall, in additi
on to the thirty percent (30%) internal revenue allotment which shall incl
ude the cost of devolved functions for essential public services, be entitl
ed to receive the amount equivalent to the cost of devolved personal s
ervices.
There is no issue as to what constitutes the LGUs' just share expressed i
n percentages of the national taxes (i.e., 30%, 35% and 40% stipulated i
n subparagraphs (a), (b), and (c) of Section 284 ). Yet, Section 6, supra,
mentions national taxes as the source of the just share of the LGUs whil
e Section 284 ordains that the share of the LG Us be taken from nation
al internal revenue taxes instead.
Has not Congress thereby infringed the constitutional provision?
Garcia contends that Congress has exceeded its constitutional bou
ndary by limiting to the NIRTs the base from which to compute t
he just share of the LGUs.
We agree with Garcia's contention.
Although the power of Congress to make laws is plenary in nature, con
gressional lawmaking remains subject to the limitations stated in the 198
7 Constitution.49 The phrase national internal revenue taxes engrafted in
Section 284 is undoubtedly more restrictive than the term national taxe
s written in Section 6. As such, Congress has actually departed from the
letter of the 1987 Constitution stating that national taxes should be the
base from which the just share of the LGU comes. Such departure is im
permissible. Verba legis non est recedendum (from the words of a statut
e there should be no departure). 50 Equally impermissible is that Congr
ess has also thereby curtailed the guarantee of fiscal autonomy in favor
of the LGUs under the 1987 Constitution.
Taxes are the enforced proportional contributions exacted by the State fr
om persons and properties pursuant to its sovereignty in order to supp
ort the Gove1nment and to defray all the public needs. Every tax has th
ree elements, namely: (a) it is an enforced proportional contribution fro (d) Other percentage taxes;
m persons and properties; (b) it is imposed by the State by virtue of its
sovereignty; and (c) it is levied for the support of the Government.51 T
axes are classified into national and local. National taxes are those levied (e) Excise taxes;

by the National Government, while local taxes are those levied by the
LGUs.52
(f) Documentary stan1p taxes; and

What the phrase national internal revenue taxes as used in Section 284
(g) Such other taxes as arc or hereafter may be imposed and collected
included are all the taxes enumerated in Section 21 of the National Inter
by the Bureau of Internal Revenue.
nal Revenue Code (NIRC), as amended by R.A. No. 8424, viz.:

In view of the foregoing enumeration of what are the national internal r

Section 21. Sources of Revenue. - The following taxes, fees and charges
evenue taxes, Section 284 has effectively deprived the LGUs from derivin
are deemed to be national internal revenue taxes:
g their just share from other national taxes, like the customs duties.

(a) Income tax;

Strictly speaking, customs duties are also taxes because they are exactio
ns whose proceeds become public funds. According to Garcia v. Executiv

(b) Estate and donor's taxes; e Secretary,53 customs duties is the nomenclature given to taxes impose
d on the importation and exportation of commodities and merchandise t
o or from a foreign country. Although customs duties have either or bo
(c) Value-added tax; th the generation of revenue and the regulation of economic or social a
ctivity as their moving purposes, it is often difficult to say which of the
two is the principal objective in a particular instance, for, verily, customs
duties, much like internal revenue taxes, are rarely designed to achieve
only one policy objective.54 We further note that Section 102(00) of R.A.
No. 10863 (Customs Modernization and Tariff Act) expressly includes all
fees and charges imposed under the Act under the blanket term of taxe
s.
It is clear from the foregoing clarification that the exclusion of other nati
onal taxes like customs duties from the base for determining the just sh
are of the LG Us contravened the express constitutional edict in Section
6, Article X the 1987 Constitution.
Still, the OSG posits that Congress can manipulate, by law, the base of t
he allocation of the just share in the national taxes of the LGUs.
The position of the OSG cannot be sustained. Although it has the prima
ry discretion to determine and fix the just share of the LGUs in the nati
onal taxes (e.g., Section 284 of the LGC), Congress cannot disobey the e
xpress mandate of Section 6, Article X of the 1987 Constitution for the j
ust share of the LGUs to be derived from the national taxes. The phrase
as determined by law in Section 6 follows and qualifies the phrase just
share, and cannot be construed as qualifying the succeeding phrase in t
he national taxes. The intent of the people in respect of Section 6 is re
ally that the base for reckoning the just share of the LGUs should includ
es all national taxes. To read Section 6 differently as requiring that the j
ust share of LGUs in the national taxes shall be determined by law is ta
ntamount to the unauthorized revision of the 1987 Constitution.
V.
Congress can validly exclude taxes that will constitute the base amount f
or
the computation of the IRA only if a Constitutional provision allows such
exclusion
Garcia submits that even assuming that the present version of Section 2
84 of the LGC is constitutionally valid, the implementation thereof has b
een erroneous because Section 284 does not authorize any exclusion or
deduction from the collections of the NIRTs for purposes of the comput
ation of the allocations to the LGUs. He further submits that the exclusi
on of certain NIRTs diminishes the fiscal autonomy granted to the LGUs.
He claims that the following NIRTs have been illegally excluded from th
e base for determining the fair share of the LGUs in the IRA, to wit:
(1) NIRTs collected by the cities and provinces and divided exclusively a
mong the LGUs of the Autonomous Region for Muslim Mindanao (ARM
(5) The shares of relevant LGUs in the proceeds of the sale and convers
M), the regional government and the central government, pursuant to S
ion of former military bases in accordance with R.A. No. 7227 (Bases Co
ection 1555 in relation to Section 9,56 Article IX of R.A. No. 9054 (An A
nversion and Development Act of 1992);62
ct to Strengthen and Expand the Organic Act for the Autonomous Regio
n in Muslim Mindanao, amending for the purpose Republic Act No. 673
4, entitled An Act providing for an Organic Act for the Autonomous Re (6) The shares of different LGUs in the excise taxes imposed on locally
gion in Muslim Mindanao); manufactured Virginia tobacco products as provided in Section 3 of R.A.
No. 7171 (An Act to Promote the Development of the Farmers in the Vir
ginia Tobacco Producing Provinces), and as now provided in Section 289
(2) The shares in the excise taxes on mineral products of the different L
of the NIRC;63
G Us, as provided in Section 287 of the NIRC57 in relation to Section 2
90 of the LGC;58

(7) The shares of different LGUs in the incremental revenues from Burley
and native tobacco products under Section 8 of R.A. No. 8240 (An Act
(3) The shares of the relevant LGUs in the franchise taxes paid by Manil
Amending Sections 138, 140 and 142 of the National Internal Revenue C
a Jockey Club, Inc.59 and Philippine Racing Club, Inc.;60
ode as Amended and for Other Purposes) and as now provided in Secti
on 288 of the NIRC;64 and

(4) The shares of various municipalities in VAT collections under R.A. No.
7643 (An Act to Empower the Commissioner of Internal Revenue to Re
(8) The share of the Commission of Audit (COA) in the NIRTs as provid
quire the Payment of the Value Added Tax Every Month and to Allow L
ed in Section 24p) of P.D. No. 1445 (Government Auditing Code of the
ocal Government Units to Share in VAT Revenue, Amending for this Pur
Philippines) 65 in relation to Section 284 of the NIRC.66
pose Certain Sections of the National Internal Revenue Code) as embodi
ed in Section 283 of the NIRC;61
Garcia insists that the foregoing taxes and revenues should have been i
ncluded by Congress and, by extension, the BIR in the base for computi
ng the IRA on the strength of the cited provisions; that the LGC did no
t authorize such exclusion; and that the continued exclusion has undermi
ned the fiscal autonomy guaranteed by the 1987 Constitution.
The insistence of Garcia is valid to an extent.
An examination of the above-enumerated laws confirms that the followin
g have been excluded from the base for reckoning the just share of the
LGUs as required by Section 6, Article X of the 1987 Constitution, name
ly:
(a) The share of the affected LGUs in the proceeds of the sale and con
version of former military bases in accordance with R.A. No. 7227;
(b) The share of the different LGUs in the excise taxes imposed on local
ly manufactured Virginia tobacco products as provided for in Section 3,
R.A. No. 7171, and as now provided in Section 289 of the NIRC;
(c) The share of the different LGU s in incremental revenues from Burley
and native tobacco products under Section 8 of R.A. No. 8240, and as
now provided for in Section 288 of the NIRC;
(d) The share of the COA in the NIRTs as provided in Section 24(3) of
P.D. No. 144567 in relation to Section 284 of the NIRC;
(e) The shares of the different LGUs in the excise taxes on mineral prod
ucts, as provided in Section 287 of the NIRC in relation to Section 290
of the LGC;
(f) The NIRTs collected by the cities and provinces and divided exclusivel
y among the LGUs of the ARMM, the regional government and the cent
ral government, pursuant to Section 1568 in relation to Section 9,69 Arti
cle IX of R. A. No. 9054; and
(g) The shares of the relevant LG Us in the franchise taxes paid by Man
ila Jockey Club, Inc., and the Philippine Racing Club, Inc.
Anent the share of the affected LG Us in the proceeds of the sale and
conversion of the former military bases pursuant to R.A. No. 7227, the e
xclusion is warranted for the reason that such proceeds do not come fr
om a tax, fee or exaction imposed on the sale and conversion.
nchise taxes go to different beneficiaries. The exclusion conforms to Sect
ion 29(3), Article VI of the 1987 Constitution, which states:
Section 29. x x x

As to the share of the affected LGUs in the excise taxes imposed on loc
ally manufactured Virginia tobacco products under R.A. No. 7171 (now Se x x x x

ction 289 of the NIRC); the share of the affected LGUs in incremental re
venues from Burley and native tobacco products under Section 8, R.A. N
(3) All money collected on any tax levied for a special purpose shall be
o. 8240 (now Section 288 of the NIRC); the share of the COA in the NI
treated as a special fund and paid out for such purpose only. If the pur
RTs pursuant to Section 24(3) of P.D. No. 1445 in relation to Section 28
pose for which a special fund was created has been fulfilled or abandon
4 of the NIRC; and the share of the host LGUs in the franchise taxes p
ed, the balance, if any, shall be transferred to the general funds of the
aid by the Manila Jockey Club, Inc., and Philippine Racing Club, Inc., un
Government. [Bold emphasis supplied]
der Section 6 of R.A. No. 6631 and Section 8 of R:A. No. 6632, respecti
vely, the exclusion is also justified. Although such shares involved nation
al taxes as defined under the NIRC, Congress had the authority to exclu
The exclusion of the share of the different LGUs in the excise taxes imp
de them by virtue of their being taxes imposed for special purposes. A
osed on mineral products pursuant to Section 287 of the NIRC in relatio
reading of Section 288 and Section 289 of the NIRC and Section 24(3)
n to Section 290 of the LGC is premised on a different constitutional pr
of P.D. No. 1445 in relation to Section 284 of the NIRC reveals that all
ovision. Section 7, Article X of the 1987 Constitution allows affected LGU
such taxes are levied and collected for a special purpose. 70 The same i
s to have an equitable share in the proceeds of the utilization of the na
s true for the franchise taxes paid under Section 6 of R.A. No. 6631 and
tion's national wealth "within their respective areas," to wit:
Section 8 of R.A. No. 6632, inasmuch as certain percentages of the fra
Section 7. Local governments shall be entitled to an equitable share in t
he proceeds of the utilization and development of the national wealth w
ithin their respective areas, in the manner provided by law, including sha
ring the same with the inhabitants by way of direct benefits.
This constitutional provision is implemented by Section 287 of the NIRC
and Section 290 of the LGC thusly:
SEC. 287. Shares of Local Government Units in the Proceeds from the D
evelopment and Utilization of the National Wealth. - Local Government
units shall have an equitable share in the proceeds derived from the util
ization and development of the national wealth, within their respective ar
eas, including sharing the same with the inhabitants by way of direct be
nefits.
(A) Amount of Share of Local Government Units. - Local government uni
ts shall, in addition to the internal revenue allotment, have a share of fo
rty percent (40'Yo) of the gross collection derived by the national gover
nment from the preceding fiscal year from excise taxes on mineral prod
ucts, royalties, and such other taxes, fees or charges, including related s
urcharges, interests or fines, and from its share in any co-production, joi
nt venture or production sharing agreement in the utilization and develo
pment of the national wealth within their territorial jurisdiction.
(B) Share of the Local Governments from Any Government Agency or G
overnment-owned or - Controlled Corporation. - Local Government Units
shall have a share, based on the preceding fiscal year, from the procee
ds derived by any government agency or government-owned or controll
ed corporation engaged in the utilization and development of the nation
al wealth based on the following formula, whichever will produce a high
er share for the local government unit:
(1) One percent (l %) of the gross sales or receipts of the preceding cal
endar year, or
(2) Forty percent (40%) of the excise taxes on mineral products, royalties
, and such other taxes, fees or charges, including related surcharges, int
erests or fines the government agency or government-owned or -control
led corporations would have paid if it were not otherwise exempt. [Bold
emphasis supplied]
SEC. 290. Amount of Share of Local Government Units. - Local governm
ent units shall, in addition to the internal revenue allotment, have a shar
e of forty percent ( 40%) of the gross collection derived by the national
government from the preceding fiscal year from mining taxes, royalties,
forestry and fishery charges, and such other taxes, fees, or charges, inclu
ding related surcharges, interests, or fines, and from its share in any co-
production, joint venture or production sharing agreement in the utilizati
Ts collected by the provinces and cities within the ARMM will ensure loc
al autonomy and their very existence with a continuous supply of fundin
g sourced from their very own areas. The ARMM will become self-reliant
and dynamic consistent with the dictates of the 1987 Constitution.
The shares of the municipalities in the VATs collected pursuant to R.A.

on and development of the national wealth within their territorial jurisdic No. 7643 should be included in determining the base for computing the

tion. [Bold emphasis supplied] just share because such VATs are national taxes, and nothing can validl
y justify their exclusion.

Lastly, the NIRTs collected by the provinces and cities within the ARMM
whose portions are distributed to the ARMM's provincial, city and region In recapitulation, the national taxes to be included in the base for comp

al governments are also properly excluded for such taxes are intended t uting the just share the LGUs shall henceforth be, but shall not be limit

o truly enable a sustainable and feasible autonomous region as guarante ed to, the following:

ed by the 1987 Constitution. The mandate under Section 15 to Section 2

1, Article X of the 1987 Constitution is to allow the separate developmen
1. The NIRTs enumerated in Section 21 of the NIRC, as amended, to be
t of peoples with distinctive cultures and traditions in the autonomous a
inclusive of the VA Ts, excise taxes, and DSTs collected by the BIR and t
reas.71 The grant of autonomy to the autonomous regions includes the
he BOC, and their deputized agents;
right of self-determination-which in turn ensures the right of the peoples
residing therein to the necessary level of autonomy that will guarantee
the support of their own cultural identities, the establishment of priorities
2. Tariff and customs duties collected by the BOC;
by their respective communities' internal decision-making processes and
the management of collective matters by themselves.72 As such, the NIR
3. 50% of the VATs collected in the ARMM, and 30% of all other nation
al taxes collected in the ARMM; the remaining 50% of the VA Ts and 7
0% of the collections of the other national taxes in the ARMM shall be
the exclusive share of the ARMM pursuant to Section 9 and Section 15
of R.A. No. 9054;
4. 60% of the national taxes collected from the exploitation and develop
ment of the national wealth; the remaining 40% will exclusively accrue t
o the host LGUs pursuant to Section 290 of the LGC;
5. 85% of the excise taxes collected from locally manufactured Virginia a
nd other tobacco products; the remaining 15% shall accrue to the specia
l purpose funds pursuant created in R.A. No. 7171 and R.A. No. 7227;
6. The entire 50% of the national taxes collected under Section 106, Sect
ion 108 and Section 116 of the NIRC in excess of the increase in collecti
ons for the immediately preceding year; and
7. 5% of the franchise taxes in favor of the national government paid b
y franchise holders in accordance with Section 6 of R.A. No. 6631 and S
ection 8 of R.A. No. 6632.
VI.
Entitlement to the reliefs sought
The petitioners' prayer for the payment of the arrears of the LGUs' just
share on the theory that the computation of the base amount had been
unconstitutional all along cannot be granted.
It is true that with our declaration today that the IRA is not in accordan
ce with the constitutional determination of the just share of the LGUs in
the national taxes, logic demands that the LGUs should receive the diffe
rence between the just share they should have received had the LGC pr
operly reckoned such just share from all national taxes, on the one han
d, and the share - represented by the IRA- the LGUs have actually recei
ved since the effectivity of the IRA under the LGC, on the other. This p
uts the National Government in arrears as to the just share of the LGUs.
A legislative or executive act declared void for being unconstitutional ca
nnot give rise to any right or obligation. 73
Yet, the Court has conceded in Arau/lo v. Aquino III74that:
 able why it should be so, the Constitution being supreme and paramou
nt. Any legislative or executive act contrary to its terms cannot survive.
x x x the generality of the rule makes us ponder whether rigidly applyin
g the rule may at times be impracticable or wasteful. Should we not rec
ognize the need to except from the rigid application of the rule the inst
Such a view has support in logic and possesses the merit of simplicity. I
ances in which the void law or executive act produced an almost irrever
t may not however be sufficiently realistic. It does not admit of doubt t
sible result?
hat prior to the declaration of nullity such challenged legislative or exec
utive act must have been in force and had to be complied with. This is
so as until after the judiciary, in an appropriate case, declares its invalidi
The need is answered by the doctrine of operative fact. The doctrine, d
ty, it is entitled to obedience and respect. Parties may have acted under
efinitely not a novel one, has been exhaustively explained in De Agbaya
it and may have changed their positions. What could be more fitting t
ni v. Philippine National Bank:
han that in a subsequent litigation regard be had to what has been do
ne while such legislative or executive act was in operation and presume

The decision now on appeal reflects the orthodox view that an unconstit d to be valid in all respects. It is now accepted as a doctrine that prior

utional act, for that matter an executive order or a municipal ordinance to its being nullified, its existence as a fact must be reckoned with. This

likewise suffering from that infirmity, cannot be the source of any legal r is merely to reflect awareness that precisely because the judiciary is the

ights or duties. Nor can it justify any official act taken under it. Its repu governmental organ which has the final say on whether or not a legislat

gnancy to the fundamental law once judicially declared results in its bein ive or executive measure is valid, a period of time may have elapsed be

g to all intents and purposes a mere scrap of paper. As the new Civil C fore it can exercise the power of judicial review that may lead to a decl

ode puts it: 'When the courts declare a law to be inconsistent with the aration of nullity. It would be to deprive the law of its quality of fairnes

Constitution, the former shall be void and the latter shall govern.' Admin s and justice then, if there be no recognition of what had transpired pri

istrative or executive acts, orders and regulations shall be valid only whe or to such adjudication.

n they are not contrary to the laws of the Constitution. It is understand

In the language of an American Supreme Court decision: ‘The actual exi
stence of a statute, prior to such a determination [of unconstitutionality],
is an operative fact and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new judicial declaratio
n. The effect of the subsequent ruling as to invalidity may have to be c
onsidered in various aspects, with respect to particular relations, individu
al and corporate, and particular conduct, private and official.'
The doctrine of operative fact recognizes the existence of the law or ex
ecutive act prior to the determination of its unconstitutionality as an ope
rative fact that produced consequences that cannot always be erased, ig
nored or disregarded. In short, it nullifies the void law or executive act
but sustains its effects. It provides an exception to the general rule that
a void or unconstitutional law produces no effect.75 But its use must be
subjected to great scrutiny and circumspection, and it cannot be invoke
d to validate an unconstitutional law or executive act, but is resorted to
only as a matter of equity and fair play. 76 It applies only to cases whe
re extraordinary circumstances exist, and only when the extraordinary circ
umstances have met the stringent conditions that will permit its applicati
on.
Conformably with the foregoing pronouncements in Araullo v. Aquino III,
the effect of our declaration through this decision of the unconstitution
ality of Section 284 of the LGC and its related laws as far as they limite
d the source of the just share of the LGUs to the NIRTs is prospective.
It cannot be otherwise.
VII.
Automatic release of the LGUs' just share in the National Taxes
Section 6, Article X of the 1987 Constitution commands that the just sha
re of the LGUs in national taxes shall be automatically released to them.
The term automatic connotes something mechanical, spontaneous and
perfunctory; and, in the context of this case, the LGUs are not required
to perform any act or thing in order to receive their just share in the n
ational taxes.77
Before anything, we must highlight that the 1987 Constitution includes se
veral provisions that actually deal with and authorize the automatic relea
se of funds by the National Government.
To begin with, Section 3 of Article VIII favors the Judiciary with the auto
matic and regular release of its appropriations:
Section 17(4) of Article XIII replicates the privilege in favour of the Com
mission on Human Rights:

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for t

he Judiciary may not be reduced by the legislature below the amount a
Section 17(4) The approved annual appropriations of the Commission sha
ppropriated for the previous year and, after approval, shall be automatic
ll be automatically and regularly released.
ally and regularly released.

The foregoing constitutional provisions share two aspects. The first relate
Then there is Section 5 of Article IX(A), which contains the common pro
s to the grant of fiscal autonomy, and the second concerns the automat
vision in favor of the Constitutional Commissions:
ic release of funds. 78 The common denominator of the provisions is th
at the automatic release of the appropriated amounts is predicated on t
he approval of the annual appropriations of the offices or agencies conc
Section 5. The Commission shall enjoy fiscal autonomy. Their approved a
erned.
nnual appropriations shall be automatically and regularly released.

Directly contrasting with the foregoing provisions is Section 6, Article X

Section 14 of Article XI extends to the Office of the Ombudsman a simil
of the 1987 Constitution because the latter provision forthrightly ordains
ar privilege:
that the "(l)ocal government units shall have a just share, as determined
by law, in the national taxes which shall be automatically released to the

Section 14. The Office of the Ombudsman shall enjoy fiscal autonomy. It m." Section 6 does not mention of appropriation as a condition for the

s approved annual appropriations shall be automatically and regularly rel automatic release of the just share to the LGUs. This is because Congres

eased. s not only already determined the just share through the LGC's fixing th
e percentage of the collections of the NIRTs to constitute such fair shar
e subject to the power of the President to adjust the same in order to
manage public sector deficits subject to limitations on the adjustments, b
ut also explicitly authorized such just share to be "automatically released
" to the LGUs in the proportions and regularity set under Section 28579
of the LGC without need of annual appropriation. To operationalize the
automatic release without need of appropriation, Section 286 of the LGC
LGC, it seems to be beyond debate that the inclusion of the just share
of the LGUs in the annual GAAs is unnecessary, if not superfluous. Henc
e, the just share of the LGUs in the national taxes shall be released to t
hem without need of yearly appropriation.
1. DECLARES the phrase "internal revenue" appearing in Section 284 of

clearly provides that the automatic release of the just share directly to Republic Act No. 7160 (Local Government Code) UNCONSTITUTIONAL, a

the provincial, city, municipal or barangay treasurer, as the case may be, nd DELETES the phrase from Section 284.

shall be "without need of any further action," viz.:

Section 284, as hereby modified, shall henceforth read as follows:

Section 286. Automatic Release of Shares. - (a) The share of each local
government unit shall be released, without need of any further action; di
Section 284. Allotment of Taxes. - Local government units shall have a s
rectly to the provincial, city, municipal or barangay treasurer, as the case
hare in the national taxes based on the collection of the third fiscal year
may be, on a quarterly basis within five (5) days after the end of each
preceding the current fiscal year as follows:
quarter, and which shall not be subject to any lien or holdback that ma
y be imposed by the National Government for whatever purpose. x x x
(Bold emphasis supplied)
(a) On the first year of the effectivity of this Code, thirty percent (30%);

The 1987 Constitution is forthright and unequivocal in ordering that the j

(b) On the second year, thirty-five percent (35%); and
ust share of the LGUs in the national taxes shall be automatically release
d to them. With Congress having established the just share through the
(c) On the third year and thereafter, forty percent (40%). Section 285. Allocation to Local Government Units. - The share of local
government units in the allotment shall be collected in the following ma
nner:
Provided, That in the event that the national government incurs an unm
anageable public sector deficit, the President of the Philippines is hereby
authorized, upon the recommendation of Secretary of Finance, Secretary (a) Provinces - Twenty-three percent (23%);
of Interior and Local Government and Secretary of Budget and Manage
ment, and subject to consultation with the presiding officers of both Ho
uses of Congress and the presidents of the "liga", to make the necessar (b) Cities - Twenty-three percent (23%);

y adjustments in the allotment of local government units but in no case

shall the allotment be less than thirty percent (30%) of the collection of
(c) Municipalities - Thirty-four percent (34%); and
national taxes of the third fiscal year preceding the current fiscal year; P
rovided, further, That in the first year of the effectivity of this Code, the
local government units shall, in addition to the thirty percent (30%) allot
(d) Barangays - Twenty percent (20%)
ment which shall include the cost of devolved functions for essential pu
blic services, be entitled to receive the amount equivalent to the cost of
devolved personal services. Provided, however, That the share of each province, city, and municipalit
y shall be determined on the basis of the following formula:

The phrase "internal revenue" is likewise hereby DELETED from the relate
d sections of Republic Act No. 7160 (Local Government Code), specificall (a) Population -- Fifty percent (50%);
y Section 285, Section 287, and Section 290, which provisions shall henc
eforth read as follows:
(b) Land Area-· Twenty-five percent (25%); and
(c) Equal sharing--Twenty-five percent (25%) (2) Equal sharing - Fifty percent (50%)

Provided, further. That the share of each barangay with a population of (c) On the third year and thereafter.
not less than one hundred (100) inhabitants shall not be less than Eighty
thousand (₱80,000.00) per annum chargeable against the twenty percen
t (20%) share of the barangay from the allotment, and the balance to b (1) Population - Sixty percent (60%); and

e allocated on the basis of the following formula:

(2) Equal sharing - Forty percent (40%).

(a) On the first year of the effoctivity of this Code:

Provided, finally, That the financial requirements of barangays created by

(1) Population - Forty percent (40%); and local government units after the effectivity of this Code shall be the res
ponsibility of the local government unit concerned.

(2) Equal sharing - Sixty percent (50%)

x x x x

(b) On the second year:

Sectfon 287. Local Development Projects. - Each local government unit s
hall appropriate in its annual budget no less than twenty percent (20%)
(1) Population - Fifty percent (50%); and of its annual allotment for development projects. Copies of the develop
ment plans of local government units shall be furnished the Department
of Interior and Local Government.
x x x x
Section 290. Amount of Share of Local Government Units. - Local gover
nment units shall, in addition to the allotment, have a share of forty per
cent (40%) of the gross collection derived by the national government fr
om the preceding fiscal year from mining taxes, royalties, forestry and fi
shery charges, and such other taxes, fees, or charges, including related s
urcharges, interests, or fines, and from its share in any co-production, joi
nt venture or production sharing agreement in the utilization and develo
pment of the national wealth within their territorial jurisdiction.
Article 378, Article 379, Article 380, Article 382, Article 409, Article 461, a
nd related provisions of the Implementing Rules and Regulations of R.A.
No. 7160 are hereby MODIFIED to reflect the deletion of the phrase "int
ernal revenue" as directed herein.
Henceforth, any mention of "Internal Revenue Allotment" or "IRA" in Rep
ublic Act No. 7160 (Local Government Code) and its Implementing Rules
and Regulations shall be understood as pertaining to the allotment of th
e Local Government Units derived from the national taxes;
2. ORDERS the SECRETARY OF THE DEPARTMENT OF FINANCE; the SEC
RETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT; the C
OMMISSIONER OF INTERNAL REVENUE; the COMMISSIONER OF CUSTO
MS; and the NATIONAL TREASURER to include ALL COLLECTIONS OF N
ATIONAL TAXES in the computation of the base of the just share of the
Local Government Units according to the ratio provided in the now-mo
dified Section 284 of Republic Act No. 7160 (Local Government Code) ex
cept those accruing to special purpose funds and special allotments for
the utilization and development of the national wealth.
For this purpose, the collections of national taxes for inclusion in the ba
se of the just share the Local Government Units shall include, but shall
not be limited to, the following:
(a) The national internal revenue taxes enumerated in Section 21 of the
National Internal Revenue Code, as amended, collected by the Bureau of
Internal Revenue and the Bureau of Customs;
(b) Tariff and customs duties collected by the Bureau of Customs;
(c) 50% of the value-added taxes collected in the Autonomous Region i
n Muslim Mindanao, and 30% of all other national tax collected in the
Autonomous Region in Muslim Mindanao.
The remaining 50% of the collections of value-added taxes and 70% of
the collections of the other national taxes in the Autonomous Region in
Muslim Mindanao shall be the exclusive share of the Autonomous Regio
n in Muslim Mindanao pursuant to Section 9 and Section 15 of Republic
Act No. 9054.
(d) 60% of the national taxes collected from the exploitation and develo
pment of the national wealth.
The remaining 401% of the national taxes collected from the exploitation
and development of the national wealth shall exclusively accrue to the
host Local Government Units pursuant to Section 290 of Republic Act N
o. 7160 (Local Government Code);
(e) 85% of the excise taxes collected from locally manufactured Virginia
and other tobacco products.
The remaining 15% shall accrue to the special purpose funds created by
Republic Act No. 7171 and Republic Act No. 7227;
(f) The entire 50% of the national taxes collected under Sections 106, 10
8 and 116 of the NIRC as provided under Section 283 of the NIRC; and
(g) 5% of the 25% franchise taxes given to the National Government un
der Section 6 of Republic Act No. 6631 and Section 8 of Republic Act N
o. 6632.
3. DECLARES that:
(a) The apportionment of the 25% of the franchise taxes collected from
the Manila Jockey Club and Philippine Racing Club, Inc. - that is, five pe
rcent (5%) to the National Government; five percent (5%) to the host m
unicipality or city; seven percent (7%) to the Philippine Charity Sweepstak
es Office; six percent (6%) to the Anti-Tuberculosis Society; and two per
cent (2%) to the White Cross pursuant to Section 6 of Republic Act No.
6631 and Section 8 of Republic Act No. 6632 - is VALID;
6. COMMANDS the AUTOMATIC RELEASE WITHOUT NEED OF FURTHER
ACTION of the just shares of the Local Government Units in the nationa
l taxes, through their respective provincial, city, municipal, or barangay tr
(b) Section 8 and Section 12 of Republic Act No. 7227 are VALID; and,
easurers, as the case may be, on a quarterly basis but not beyond five
ACCORDINGLY, the proceeds from the sale of the former military bases
(5) days from the end of each quarter, as directed in Section 6, Article
converted to alienable lands thereunder are EXCLUDED from the comput
X of the 1987 Constitution and Section 286 of Republic Act No. 7160 (L
ation of the national tax allocations of the Local Government Units; and
ocal Government Code), and operationalized by Article 383 of the Imple
menting Rules and Regulations of RA 7160.

(c) Section 24(3) of Presidential Decree No. 1445, in relation to Section 2

84 of the National Internal Revenue Code, apportioning one-half of one
Let a copy of this decision be furnished to the President of the Republic
percent (1/2of1%) of national tax collections as the auditing fee of the C
of the Philippines, the President of the Senate, and the Speaker of the
ommission on Audit is VALID;
House of Representatives for their information and guidance.

4. DIRECTS the Bureau of Internal Revenue and the Bureau of Customs

SO ORDERED.
and their deputized collecting agents to certify all national tax collections
, pursuant to Article 3 78 of the Implementing Rules and Regulations of
R.A. No. 7160;
LUCAS P. BERSAMIN

Associate Justice
5. DISMISSES the claims of the Local Government Units for the settleme
nt by the National Government of arrears in the just share on the grou
nd that this decision shall have PROSPECTIVE APPLICATION; and
 x - - - - - - - - - - - - - - - - - - - - - - - x

Today is Tuesday, August 06, 2019 home

Custom Search G.R. No. 193536

AGAPITO J. CARDINO, Petitioner,

Republic of the Philippines vs.

SUPREME COURT DOMINADOR G. JALOSJOS, JR., and COMMISSION ON ELECTIONS, Resp

ondents.
Manila

D E C I S I O N
EN BANC

CARPIO, J.:
G.R. No. 193237 October 9, 2012

These are two special civil actions for certiorari1 questioning the resolutio
DOMINADOR G. JALOSJOS, JR., Petitioner,
ns of the Commission on Elections (COMELEC) in SPA No. 09-076 (DC).
vs. In G.R. No. 193237, Dominador G. Jalosjos, Jr. (Jalosjos) seeks to annul t

COMMISSION ON ELECTIONS and AGAPITO J. CARDINO, Respondents. he 10 May 2010 Resolution2 of the COMELEC First Division and the 11 A
ugust 2010 Resolution3 of the COMELEC En Banc, which both ordered t
he cancellation of his certificate of candidacy on the ground of false ma
terial representation. In G.R. No. 193536, Agapito J. Cardino (Cardino) ch
allenges the 11 August 2010 Resolution of the COMELEC En Banc, which
applied the rule on succession under the Local Government Code in filli
ng the vacancy in the Office of the Mayor of Dapitan City, Zamboanga
del Norte created by the cancellation of Jalosjos’ certificate of candidacy.
The Facts
Both Jalosjos and Cardino were candidates for Mayor of Dapitan City, Z
amboanga del Norte in the May 2010 elections. Jalosjos was running for
his third term. Cardino filed on 6 December 2009 a petition under Secti
on 78 of the Omnibus Election Code to deny due course and to cancel
the certificate of candidacy of Jalosjos. Cardino asserted that Jalosjos ma
de a false material representation in his certificate of candidacy when he
declared under oath that he was eligible for the Office of Mayor.
Cardino claimed that long before Jalosjos filed his certificate of candidac
y, Jalosjos had already been convicted by final judgment for robbery an
d sentenced to prisión mayor by the Regional Trial Court, Branch 18 (RT
C) of Cebu City, in Criminal Case No. CCC-XIV-140-CEBU. Cardino assert
ed that Jalosjos has not yet served his sentence. Jalosjos admitted his c
onviction but stated that he had already been granted probation. Cardin
o countered that the RTC revoked Jalosjos’ probation in an Order dated
19 March 1987. Jalosjos refuted Cardino and stated that the RTC issued
an Order dated 5 February 2004 declaring that Jalosjos had duly compli
ed with the order of probation. Jalosjos further stated that during the 2
004 elections the COMELEC denied a petition for disqualification filed ag
ainst him on the same grounds.4
The COMELEC En Banc narrated the circumstances of Jalosjos’ criminal r
ecord as follows:
As backgrounder, Jalosjos and three (3) others were accused of the crim
e of robbery on January 22, 1969 in Cebu City. On April 30, 1970, Judg
e Francisco Ro. Cupin of the then Circuit Criminal Court of Cebu City fo
und him and his co-accused guilty of robbery and sentenced them to s
uffer the penalty of prision correccional minimum to prision mayor maxi
mum. Jalosjos appealed this decision to the Court of Appeals but his ap
peal was dismissed on August 9, 1973. It was only after a lapse of sever
al years or more specifically on June 17, 1985 that Jalosjos filed a Petitio
n for Probation before the RTC Branch 18 of Cebu City which was grant
ed by the court. But then, on motion filed by his Probation Officer, Jalo
sjos’ probation was revoked by the RTC Cebu City on March 19, 1987 a
nd the corresponding warrant for his arrest was issued. Surprisingly, on
December 19, 2003, Parole and Probation Administrator Gregorio F. Baco
lod issued a Certification attesting that respondent Jalosjos, Jr., had alrea
dy fulfilled the terms and conditions of his probation. This Certification
was the one used by respondent Jalosjos to secure the dismissal of the
disqualification case filed against him by Adasa in 2004, docketed as SP
A No. 04-235.
This prompted Cardino to call the attention of the Commission on the d
ecision of the Sandiganbayan dated September 29, 2008 finding Gregori
o F. Bacolod, former Administrator of the Parole and Probation Administ
ration, guilty of violating Section 3(e) of R.A. 3019 for issuing a falsified
Certification on December 19, 2003 attesting to the fact that respondent
Jalosjos had fully complied with the terms and conditions of his probatio
n. A portion of the decision of the Sandiganbayan is quoted hereunder:
The Court finds that the above acts of the accused gave probationer Do
minador Jalosjos, Jr., unwarranted benefits and advantage because the s
ubject certification, which was issued by the accused without adequate o
r official support, was subsequently utilized by the said probationer as b
asis of the Urgent Motion for Reconsideration and to Lift Warrant of Arr
est that he filed with the Regional Trial Court of Cebu City, which prom
pted the said court to issue the Order dated February 5, 2004 in Crim.
Case No. CCC-XIV-140-CEBU, declaring that said probationer has complie
d with the order of probation and setting aside its Order of January 16,
2004 recalling the warrant or [sic] arrest; and that said Certification was
also used by the said probationer and became the basis for the Commi
ssion on Elections to deny in its Resolution of August 2, 2004 the petiti
on or [sic] private complainant James Adasa for the disqualification of th
e probationer from running for re-election as Mayor of Dapitan City in t
he National and Local Elections of 2004.5
The COMELEC’s Rulings
On 10 May 2010, the COMELEC First Division granted Cardino’s petition
and cancelled Jalosjos’ certificate of candidacy. The COMELEC First Divisi
on concluded that "Jalosjos has indeed committed material misrepresenta
tion in his certificate of candidacy when he declared, under oath, that h
e is eligible for the office he seeks to be elected to when in fact he is
not by reason of a final judgment in a criminal case, the sentence of w
hich he has not yet served."6 The COMELEC First Division found that Jal
osjos’ certificate of compliance of probation was fraudulently issued; thus
, Jalosjos has not yet served his sentence. The penalty imposed on Jalosj
os was the indeterminate sentence of one year, eight months and twent
y days of prisión correccional as minimum, to four years, two months a
nd one day of prisión mayor as maximum. The COMELEC First Division
ruled that Jalosjos "is not eligible by reason of his disqualification as pro
vided for in Section 40(a) of Republic Act No. 7160."7
On 11 August 2010, the COMELEC En Banc denied Jalosjos’ motion for r
econsideration. The pertinent portions of the 11 August 2010 Resolution r
ead:
With the proper revocation of Jalosjos’ earlier probation and a clear sho
wing that he has not yet served the terms of his sentence, there is sim
ply no basis for Jalosjos to claim that his civil as well as political rights
have been violated. Having been convicted by final judgment,
Jalosjos is disqualified to run for an elective position or to hold public o
ffice. His proclamation as the elected mayor in the May 10, 2010 electio
n does not deprive the Commission of its authority to resolve the prese
nt petition to its finality, and to oust him from the office he now wrong
fully holds.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration is
denied for utter lack of merit. Jalosjos is hereby OUSTED from office a
nd ordered to CEASE and DESIST from occupying and discharging the f
unctions of the Office of the Mayor of Dapitan City, Zamboanga. Let th
e provisions of the Local Government Code on succession apply.
SO ORDERED.8
Jalosjos filed his petition on 25 August 2010, docketed as G.R. No. 1932
37, while Cardino filed his petition on 17 September 2010, docketed as
G.R. No. 193536.
On 22 February 2011, this Court issued a Resolution dismissing G.R. No.
193237.
WHEREFORE, the foregoing premises considered, the Petition for Certiora
ri is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolut
ion dated August 11, 2010 of the Commission on Elections in SPA Case
No. 09-076 (DC) are hereby AFFIRMED.9
Cardino filed a Manifestation on 17 March 2011 praying that this Court t
ake judicial notice of its resolution in G.R. No. 193237. Jalosjos filed a M
otion for Reconsideration10 on 22 March 2011. On 29 March 2011, this C
ourt resolved11 to consolidate G.R. No. 193536 with G.R. No. 193237.Jalos
jos then filed a Manifestation on 1 June 2012 which stated that "he has
resigned from the position of Mayor of the City of Dapitan effective 30
April 2012, which resignation was accepted by the Provincial Governor of
Zamboanga del Norte, Atty. Rolando E. Yebes."12 Jalosjos’ resignation w
as made "in deference with the provision of the Omnibus Election Code
in relation to his candidacy as Provincial Governor of Zamboanga del Su
r in May 2013."13
These cases are not rendered moot by Jalosjos’ resignation. In resolving
Jalosjos’ Motion for Reconsideration in G.R. No. 193237 and Cardino’s Pe
tition in G.R. No. 193536, we address not only Jalosjos’ eligibility to run
for public office and the consequences of the cancellation of his certifica
te of candidacy, but also COMELEC’s constitutional duty to enforce and
administer all laws relating to the conduct of elections.
The Issues
In G.R. No. 193237, Jalosjos argues that the COMELEC committed grave
abuse of discretion amounting to lack or excess of jurisdiction when it (1
) ruled that Jalosjos’ probation was revoked; (2) ruled that Jalosjos was
disqualified to run as candidate for Mayor of Dapitan City, Zamboanga
del Norte; and (3) cancelled Jalosjos’ certificate of candidacy without ma
king a finding that Jalosjos committed a deliberate misrepresentation as
to his qualifications, as Jalosjos relied in good faith upon a previous CO
MELEC decision declaring him eligible for the same position from which
he is now being ousted. Finally, the Resolutions dated 10 May 2010 and
11 August 2010 were issued in violation of the COMELEC Rules of Proce
dure.
In G.R. No. 193536, Cardino argues that the COMELEC acted with grave
abuse of discretion amounting to lack or excess of jurisdiction when it a
dded to the dispositive portion of its 11 August 2010 Resolution that the
provisions of the Local Government Code on succession should apply.
This Court’s Ruling
The perpetual special disqualification against Jalosjos arising from his cri
minal conviction by final judgment is a material fact involving eligibility
which is a proper ground for a petition under Section 78 of the Omnib
us Election Code. Jalosjos’ certificate of candidacy was void from the sta
rt since he was not eligible to run for any public office at the time he f
iled his certificate of candidacy. Jalosjos was never a candidate at any ti
me, and all votes for Jalosjos were stray votes. As a result of Jalosjos’ c
ertificate of candidacy being void ab initio, Cardino, as the only qualified
candidate, actually garnered the highest number of votes for the positi
on of Mayor.
The dissenting opinions affirm with modification the 10 May 2010 Resolut
ion of the COMELEC First Division and the 11 August 2010 Resolution of
the COMELEC En Banc. The dissenting opinions erroneously limit the re
medy against Jalosjos to disqualification under Section 68 of the Omnibu
s Election Code and apply the rule on succession under the Local Gover
nment Code.
A false statement in a certificate of candidacy that a candidate is eligibl
e to run for public office is a false material representation which is a gr
ound for a petition under Section 78 of the same Code. Sections 74 an
d 78 read:
Sec. 74. Contents of certificate of candidacy. – The certificate of candida
cy shall state that the person filing it is announcing his candidacy for th
e office stated therein and that he is eligible for said office; if for Mem
ber of the Batasang Pambansa, the province, including its component cit
ies, highly urbanized city or district or sector which he seeks to represen
t; the political party to which he belongs; civil status; his date of birth; r
esidence; his post office address for all election purposes; his profession
or occupation; that he will support and defend the Constitution of the P
hilippines and will maintain true faith and allegiance thereto; that he will
obey the laws, legal orders, and decrees promulgated by the duly consti
tuted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed vol
untarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his kn
owledge.
Sec. 78. Petition to deny due course to or cancel a certificate of candid
acy. – A verified petition seeking to deny due course or to cancel a cer
tificate of candidacy may be filed by the person exclusively on the grou
nd that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not lat
er than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. (Emphasis supplied)
Section 74 requires the candidate to state under oath in his certificate o
f candidacy "that he is eligible for said office." A candidate is eligible if
he has a right to run for the public office.14 If a candidate is not actual
ly eligible because he is barred by final judgment in a criminal case fro
m running for public office, and he still states under oath in his certifica
te of candidacy that he is eligible to run for public office, then the cand
idate clearly makes a false material representation that is a ground for a
petition under Section 78.
(a) Those sentenced by final judgment for an offense involving moral tur
pitude or for an offense punishable by one (1) year or more of imprison
ment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;

A sentence of prisión mayor by final judgment is a ground for disqualifi (c) Those convicted by final judgment for violating the oath of allegianc

cation under Section 40 of the Local Government Code and under Secti e to the Republic;

on 12 of the Omnibus Election Code. It is also a material fact involving

the eligibility of a candidate under Sections 74 and 78 of the Omnibus
(d) Those with dual citizenship;
Election Code. Thus, a person can file a petition under Section 40 of th
e Local Government Code or under either Section 12 or Section 78 of t
he Omnibus Election Code. The pertinent provisions read:
(e) Fugitives from justice in criminal or non-political cases here or abroa
d;

Section 40, Local Government Code:

(f) Permanent residents in a foreign country or those who have acquired

the right to reside abroad and continue to avail of the same right afte
Sec. 40. Disqualifications. - The following persons are disqualified from r
r the effectivity of this Code; and
unning for any elective local position:

(g) The insane or feeble-minded.


Section 12, Omnibus Election Code:
Sec. 12. Disqualifications. — Any person who has been declared by com
petent authority insane or incompetent, or has been sentenced by final j
udgment for subversion, insurrection, rebellion or for any offense for whi
ch he was sentenced to a penalty of more than eighteen months or for
a crime involving moral turpitude, shall be disqualified to be a candidat
e and to hold any office, unless he has been given plenary pardon or g
ranted amnesty.
The disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity
or incompetence had been removed or after the expiration of a period
of five years from his service of sentence, unless within the same period
he again becomes disqualified.
Section 68, Omnibus Election Code:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest
in which he is a party is declared by final decision by a competent cour
t guilty of, or found by the Commission of having (a) given money or o
ther material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terro
rism to enhance his candidacy; (c) spent in his election campaign an am
ount in excess of that allowed by this Code; (d) solicited, received or m
ade any contribution prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any perso
n who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unl
ess said person has waived his status as permanent resident or immigra
nt of a foreign country in accordance with the residence requirement pr
ovided for in the election laws.
Revised Penal Code:
Art. 27. Reclusion perpetua. — x x x
Prisión mayor and temporary disqualification. — The duration of the pen
alties of prisión mayor and temporary disqualification shall be from six y
In case of temporary disqualification, such disqualification as is comprise
ears and one day to twelve years, except when the penalty of disqualific
d in paragraphs 2 and 3 of this article shall last during the term of the
ation is imposed as an accessory penalty, in which case, it shall be that
sentence.
of the principal penalty.

4. The loss of all rights to retirement pay or other pension for any offic
x x x x
e formerly held.

Art. 30. Effects of the penalties of perpetual or temporary absolute disqu

Art. 31. Effects of the penalties of perpetual or temporary special disquali
alification. — The penalties of perpetual or temporary absolute disqualific
fication. — The penalties of perpetual or temporary special disqualificatio
ation for public office shall produce the following effects:
n for public office, profession or calling shall produce the following effec
ts:

1. The deprivation of the public offices and employments which the offe
nder may have held, even if conferred by popular election.
1. The deprivation of the office, employment, profession or calling affecte
d.

2. The deprivation of the right to vote in any election for any popular e
lective office or to be elected to such office.
2. The disqualification for holding similar offices or employments either p
erpetually or during the term of the sentence, according to the extent o
f such disqualification.
3. The disqualification for the offices or public employments and for the
exercise of any of the rights mentioned.
Art. 32. Effects of the penalties of perpetual or temporary special disqual
ification for the exercise of the right of suffrage. — The perpetual or te
mporary special disqualification for the exercise of the right of suffrage s
hall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any po
pular election for any public office or to be elected to such office. More
over, the offender shall not be permitted to hold any public office durin
g the period of his disqualification.
Art. 42. Prisión mayor — its accessory penalties. — The penalty of prisió
n mayor shall carry with it that of temporary absolute disqualification an
d that of perpetual special disqualification from the right of suffrage whi
ch the offender shall suffer although pardoned as to the principal penalt
y, unless the same shall have been expressly remitted in the pardon. (E
mphasis supplied)
The penalty of prisión mayor automatically carries with it, by operation
of law,15 the accessory penalties of temporary absolute disqualification a
nd perpetual special disqualification. Under Article 30 of the Revised Pen
al Code, temporary absolute disqualification produces the effect of "depri
vation of the right to vote in any election for any popular elective office
or to be elected to such office." The duration of the temporary absolut
e disqualification is the same as that of the principal penalty. On the ot
her hand, under Article 32 of the Revised Penal Code perpetual special
disqualification means that "the offender shall not be permitted to hold
any public office during the period of his disqualification," which is perp
etually. Both temporary absolute disqualification and perpetual special dis
qualification constitute ineligibilities to hold elective public office. A perso
n suffering from these ineligibilities is ineligible to run for elective public
office, and commits a false material representation if he states in his cer
tificate of candidacy that he is eligible to so run.
In Lacuna v. Abes,16 the Court, speaking through Justice J.B.L. Reyes, ex
plained the import of the accessory penalty of perpetual special disqualif
ication:
On the first defense of respondent-appellee Abes, it must be remember
ed that appellee’s conviction of a crime penalized with prisión mayor wh
ich carried the accessory penalties of temporary absolute disqualification
and perpetual special disqualification from the right of suffrage (Article 4
2, Revised Penal Code); and Section 99 of the Revised Election Code dis
qualifies a person from voting if he had been sentenced by final judgm
ent to suffer one year or more of imprisonment.
The accessory penalty of temporary absolute disqualification disqualifies t
he convict for public office and for the right to vote, such disqualificatio
n to last only during the term of the sentence (Article 27, paragraph 3,
& Article 30, Revised Penal Code) that, in the case of Abes, would have
expired on 13 October 1961.
But this does not hold true with respect to the other accessory penalty
of perpetual special disqualification for the exercise of the right of suffra
ge. This accessory penalty deprives the convict of the right to vote or t
o be elected to or hold public office perpetually, as distinguished from t
emporary special disqualification, which lasts during the term of the sent
ence. Article 32, Revised Penal Code, provides:
Art. 32. Effects of the penalties of perpetual or temporary special disqual
ification for the exercise of the right of suffrage. — The perpetual or te
mporary special disqualification for the exercise of the right of suffrage s
hall deprive the offender perpetually or during the term of the sentence,
according to the nature of said penalty, of the right to vote in any po
pular election for any public office or to be elected to such office. More
over, the offender shall not be permitted to hold any public office durin
g the period of disqualification.
The word "perpetually" and the phrase "during the term of the sentence
" should be applied distributively to their respective antecedents; thus, th
e word "perpetually" refers to the perpetual kind of special disqualificatio
n, while the phrase "during the term of the sentence" refers to the tem
porary special disqualification. The duration between the perpetual and t
he temporary (both special) are necessarily different because the provisio
n, instead of merging their durations into one period, states that such d
uration is "according to the nature of said penalty" — which means acc
ording to whether the penalty is the perpetual or the temporary special
disqualification. (Emphasis supplied)
Clearly, Lacuna instructs that the accessory penalty of perpetual special d
isqualification "deprives the convict of the right to vote or to be elected
to or hold public office perpetually."
The accessory penalty of perpetual special disqualification takes effect im
mediately once the judgment of conviction becomes final. The effectivity
of this accessory penalty does not depend on the duration of the princi
pal penalty, or on whether the convict serves his jail sentence or not. T
he last sentence of Article 32 states that "the offender shall not be per
mitted to hold any public office during the period of his perpetual speci
al disqualification." Once the judgment of conviction becomes final, it is
immediately executory. Any public office that the convict may be holding
at the time of his conviction becomes vacant upon finality of the judg
ment, and the convict becomes ineligible to run for any elective public
office perpetually. In the case of Jalosjos, he became ineligible perpetuall
y to hold, or to run for, any elective public office from the time his jud
gment of conviction became final.
Perpetual special disqualification is a ground for a petition under Section
78 of the Omnibus Election Code because this accessory penalty is an i
neligibility, which means that the convict is not eligible to run for public
office, contrary to the statement that Section 74 requires him to state u
nder oath. As used in Section 74, the word "eligible" means having the
right to run for elective public office, that is, having all the qualifications
and none of the ineligibilities to run for public office. As this Court held
in Fermin v. Commission on Elections,17 the false material representatio
n may refer to "qualifications or eligibility." One who suffers from perpet
ual special disqualification is ineligible to run for public office. If a perso
n suffering from perpetual special disqualification files a certificate of can
didacy stating under oath that "he is eligible to run for (public) office,"
as expressly required under Section 74, then he clearly makes a false m
aterial representation that is a ground for a petition under Section 78. A
s this Court explained in Fermin:
Lest it be misunderstood, the denial of due course to or the cancellatio
n of the CoC is not based on the lack of qualifications but on a finding
that the candidate made a material representation that is false, which
may relate to the qualifications required of the public office he/she is ru
nning for. It is noted that the candidate states in his/her CoC that he/sh
e is eligible for the office he/she seeks. Section 78 of the OEC, therefor
e, is to be read in relation to the constitutional and statutory provisions
on qualifications or eligibility for public office. If the candidate subseque
ntly states a material representation in the CoC that is false, the COMEL
EC, following the law, is empowered to deny due course to or cancel su
ch certificate. Indeed, the Court has already likened a proceeding under
Section 78 to a quo warranto proceeding under Section 253 of the OEC
since they both deal with the eligibility or qualification of a candidate,
with the distinction mainly in the fact that a "Section 78" petition is filed
before proclamation, while a petition for quo warranto is filed after pro
clamation of the winning candidate.18 (Emphasis supplied)
Conviction for robbery by final judgment with the penalty of prisión ma
yor, to which perpetual special disqualification attaches by operation of l
aw, is not a ground for a petition under Section 68 because robbery is
not one of the offenses enumerated in Section 68. Insofar as crimes are
concerned, Section 68 refers only to election offenses under the Omnib
us Election Code and not to crimes under the Revised Penal Code. For
ready reference, we quote again Section 68 of the Omnibus Election Co
de:
Sec. 68. Disqualifications. — Any candidate who, in an action or protest
in which he is a party is declared by final decision by a competent cour
t guilty of, or found by the Commission of having (a) given money or o
ther material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions;
(b) committed acts of terrorism to enhance his candidacy; (c) spent in hi
s election campaign an amount in excess of that allowed by this Code;
(d) solicited, received or made any contribution prohibited under Section
s 89, 95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86
and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be disqual
ified from continuing as a candidate, or if he has been elected, from ho
lding the office. Any person who is a permanent resident of or an immi
grant to a foreign country shall not be qualified to run for any elective
office under this Code, unless said person has waived his status as perm
anent resident or immigrant of a foreign country in accordance with the
residence requirement provided for in the election laws. (Emphasis suppli
ed)
There is absolutely nothing in the language of Section 68 that will justify
including the crime of robbery as one of the offenses enumerated in t
his Section. All the offenses enumerated in Section 68 refer to offenses
under the Omnibus Election Code. The dissenting opinion of Justice Rey
es gravely errs when it holds that Jalosjos’ conviction for the crime of r
obbery under the Revised Penal Code is a ground for "a petition for dis
qualification under Section 68 of the OEC and not for cancellation of C
OC under Section 78 thereof." This Court has already ruled that offenses
punished in laws other than in the Omnibus Election Code cannot be a
ground for a petition under Section 68. In Codilla, Sr. v. de Venecia,19
the Court declared:
The jurisdiction of the COMELEC to disqualify candidates is limited to th
ose enumerated in Section 68 of the Omnibus Election Code. All other
election offenses are beyond the ambit of COMELEC jurisdiction.They are
criminal and not administrative in nature. (Emphasis supplied)
A candidate for mayor during the 2010 local elections certifies under oat
h four statements: (1) a statement that the candidate is a natural born o
r naturalized Filipino citizen; (2) a statement that the candidate is not a
permanent resident of, or immigrant to, a foreign country; (3) a stateme
nt that the candidate is eligible for the office he seeks election; and (4)
a statement of the candidate’s allegiance to the Constitution of the Rep
ublic of the Philippines.20
We now ask: Did Jalosjos make a false statement of a material fact in h
is certificate of candidacy when he stated under oath that he was eligibl
e to run for mayor? The COMELEC and the dissenting opinions all foun
d that Jalosjos was not eligible to run for public office. The COMELEC c
oncluded that Jalosjos made a false material representation that is a gro
und for a petition under Section 78. The dissenting opinion of Justice R
eyes, however, concluded that the ineligibility of Jalosjos is a disqualificat
ion which is a ground for a petition under Section 68 and not under Se
ction 78. The dissenting opinion of Justice Brion concluded that the ineli
gibility of Jalosjos is a disqualification that is not a ground under Sectio
n 78 without, however, saying under what specific provision of law a pet
ition against Jalosjos can be filed to cancel his certificate of candidacy.
What is indisputably clear is that the false material representation of Jalo
sjos is a ground for a petition under Section 78. However, since the fals
e material representation arises from a crime penalized by prisión mayor
, a petition under Section 12 of the Omnibus Election Code or Section 4
0 of the Local Government Code can also be properly filed. The petition
er has a choice whether to anchor his petition on Section 12 or Section
78 of the Omnibus Election Code, or on Section 40 of the Local Govern
ment Code. The law expressly provides multiple remedies and the choice
of which remedy to adopt belongs to the petitioner.
The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A voi
d certificate of candidacy on the ground of ineligibility that existed at th
e time of the filing of the certificate of candidacy can never give rise to
a valid candidacy, and much less to valid votes.21 Jalosjos’ certificate of
candidacy was cancelled because he was ineligible from the start to ru
n for Mayor. Whether his certificate of candidacy is cancelled before or
after the elections is immaterial because the cancellation on such ground
means he was never a valid candidate from the very beginning, his cer
tificate of candidacy being void ab initio. Jalosjos’ ineligibility existed on
the day he filed his certificate of candidacy, and the cancellation of his
certificate of candidacy retroacted to the day he filed it. Thus, Cardino r
an unopposed. There was only one qualified candidate for Mayor in the
May 2010 elections – Cardino – who received the highest number of vot
es.
Decisions of this Court holding that the second-placer cannot be proclai
med winner if the first-placer is disqualified or declared ineligible22 shou
ld be limited to situations where the certificate of candidacy of the first-
placer was valid at the time of filing but subsequently had to be cancell
ed because of a violation of law that took place, or a legal impediment
that took effect, after the filing of the certificate of candidacy. If the cert
ificate of candidacy is void ab initio, then legally the person who filed s
uch void certificate of candidacy was never a candidate in the elections
at any time. All votes for such non-candidate are stray votes and should
not be counted. Thus, such non-candidate can never be a first-placer i
n the elections. If a certificate of candidacy void ab initio is cancelled o
n the day, or before the day, of the election, prevailing jurisprudence ho
lds that all votes for that candidate are stray votes.23 If a certificate of
candidacy void ab initio is cancelled one day or more after the elections
, all votes for such candidate should also be stray votes because the cer
tificate of candidacy is void from the very beginning. This is the more e
quitable and logical approach on the effect of the cancellation of a certi
ficate of candidacy that is void ab initio. Otherwise, a certificate of candi
dacy void ab initio can operate to defeat one or more valid certificates
of candidacy for the same position.
Even without a petition under either Section 12 or Section 78 of the Om
nibus Election Code, or under Section 40 of the Local Government Code
, the COMELEC is under a legal duty to cancel the certificate of candida
cy of anyone suffering from the accessory penalty of perpetual special d
isqualification to run for public office by virtue of a final judgment of co
nviction. The final judgment of conviction is notice to the COMELEC of t
he disqualification of the convict from running for public office. The law
itself bars the convict from running for public office, and the disqualifica
tion is part of the final judgment of conviction. The final judgment of th
e court is addressed not only to the Executive branch, but also to other
government agencies tasked to implement the final judgment under the
law.
Whether or not the COMELEC is expressly mentioned in the judgment t
o implement the disqualification, it is assumed that the portion of the fi
nal judgment on disqualification to run for elective public office is addre
ssed to the COMELEC because under the Constitution the COMELEC is
duty bound to "enforce and administer all laws and regulations relative t
o the conduct of an election."24 The disqualification of a convict to run
for public office under the Revised Penal Code, as affirmed by final judg
ment of a competent court, is part of the enforcement and administratio
n of "all laws" relating to the conduct of elections.
To allow the COMELEC to wait for a person to file a petition to cancel
the certificate of candidacy of one suffering from perpetual special disqu
alification will result in the anomaly that these cases so grotesquely exe
mplify. Despite a prior perpetual special disqualification, Jalosjos was elec
ted and served twice as mayor. The COMELEC will be grossly remiss in i
ts constitutional duty to "enforce and administer all laws" relating to the
SO ORDERED.
conduct of elections if it does not motu proprio bar from running for p
ublic office those suffering from perpetual special disqualification by virtu
e of a final judgment. ANTONIO T. CARPIO

Associate Justice

WHEREFORE, the Motion for Reconsideration in G.R. No. 193237 is DENI

ED, and the Petition in G.R. No. 193536 is GRANTED. The Resolutions da
WE CONCUR:
ted 10 May 2010 and 11 August 2010 of the COMELEC First Division and
the COMELEC En Bane, respectively, in SPA No. 09-076 (DC), are AFFIR
MED with the MODIFICATION that Agapito J. Cardino ran unopposed in
MARIA LOURDES P. A. SERENO
the May 2010 elections and thus received the highest number of votes f
Chief Justice
or Mayor. The COMELEC En Bane is DIRECTED to constitute a Special Ci
ty Board of Canvassers to proclaim Agapito J. Cardino as the duly electe
d Mayor of Dapitan City, Zamboanga del Norte.
PRESBITERO J. VELASCO, JR.

Associate Justice TERESITA J. LEONARDO-DE CASTRO

Let copies of this Decision be furnished the Secretaries of the Departme
Associate Justice
nt of Justice and the Department of Interior and Local Government so t
hey can cause the arrest of, and enforce the jail sentence on, Dominado ARTURO D. BRION

r G. Jalosjos, Jr. due to his conviction for the crime of robbery in a final
Associate Justice DIOSDADO M. PERALTA
judgment issued by the Regional Trial Court (Branch 18) of Cebu City i
Associate Justice
n Criminal Case No. CCC-XIV-140-CEBU.
LUCAS P. BERSAMIN MARIA LOURDES P. A. SERENO

Associate Justice MARIANO C. DEL CASTILLO Chief Justice

Associate Justice

ROBERTO A. ABAD

Associate Justice MARTIN S. VILLARAMA, JR. Footnotes

Associate Justice

JOSE PORTUGAL PEREZ 1 Under Rule 64 in relation to Rule 65 of the 1997 Rules of Civil Proced
ure.
Associate Justice JOSE C. MENDOZA

Associate Justice
2 Rollo (G.R. No. 193237), pp. 40-48; rollo (G.R. No. 193536), pp. 29-37.
BIENVENIDO L. REYES
Signed by Presiding Commissioner Rene V. Sarmiento, and Commissioner
Associate Justice ESTELA M. PERLAS-BERNABE s Armando C. Velasco and Gregorio Y. Larrazabal.

Associate Justice

C E R T I F I C A T I O N 3 Rollo (G.R. No. 193237), pp. 49-56; rollo (G.R. No. 193536), pp. 22-28.
Signed by Chairman Jose A.R. Melo, and Commissioners Rene V. Sarmie
nto, Nicodemo T. Ferrer, Lucenito N. Tagle, Armando C. Velasco, Elias R.
Pursuant to Section 13, Article VIII of the Constitution, I certify that the c
Yusoph, and Gregorio Y. Larrazabal.
onclusions in the above Decision had been reached in consultation befor
e the case was assigned to the writer of the opinion of the Court.
4 James A. Adasa v. Dominador Jalosjos, Jr., SPA No. 04-235. The Resol
ution of the COMELEC Second Division was promulgated on 2 August 2
12 Id. at 215.
004, while the Resolution of the COMELEC En Banc was promulgated on
16 December 2006. Rollo (G.R. No. 193536), pp. 45-46.

13 Id. at 218.

5 Rollo (G.R. No. 193237), pp. 50-51.

14 The Oxford Dictionary of English (Oxford University Press 2010) define

s the word "eligible" as "having a right to do or obtain something."
6 Id. at 46; rollo (G.R. No. 193536), p. 35.

15 People v. Silvallana, 61 Phil. 636 (1935).

7 Id. at 47; id. at 36.

16 133 Phil. 770, 773-774 (1968).

8 Id. at 55-56; id. at 27-28.

17 G.R. Nos. 179695 and 182369, 18 December 2008, 574 SCRA 782.
9 Rollo (G.R. No. 193237), p. 360.

18 Id. at 792-794.
10 Id. at 373-393.

19 442 Phil. 139, 177-178 (2002).

11 Rollo (G.R. No. 193536), p. 178.
20 I will support and defend the Constitution of the Republic of the Phil
ippines and will maintain true faith and allegiance thereto. I will obey th
e laws, legal orders and decrees promulgated by the duly constituted au
thorities. I impose this obligation upon myself voluntarily, without mental
reservation or purpose of evasion.
21 Bautista v. Commission on Elections, 359 Phil. 1, 16 (1998). See Miran
da v. Abaya, 370 Phil. 642 (1999); Gador v. Commission on Elections, 18
4 Phil. 395 (1980).
22 Aquino v. Commission on Elections, 318 Phil. 467 (1995); Labo, Jr. v.
Commission on Elections, 257 Phil. 1 (1989).
23 Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, 24
April 2007, 522 SCRA 23.
24 CONSTITUTION, Art. IX-C, Sec. 2(1).
The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
BRION, J.:
Dominador G. Jalosjos, Jr. and Agapito Cardino were rivals in the mayor
alty race in Dapitan City, Zamboanga del Norte in the May 2010 electio
ns.
Before election day, Cardino filed with the Commission on Elections (CO
MELEC) a Petition to Deny Due Course and/or Cancel the Certificate of
Candidacy against Jalosjos, alleging that the latter made a material misre
presentation in his Certificate of Candidacy (CoC) when he declared that
he was eligible for the position of mayor when, in fact, he was disqualifi
ed under Section 40 of the Local Government Code for having been pr
eviously convicted by a final judgment for a crime (robbery) involving m
oral turpitude.
In his defense, Jalosjos admitted his previous, conviction but argued that
he had been admitted to probation, which allegedly restored him to all
 his political rights. Cardino rebutted Jalosjos' defense, citing a court ord
er revoking the grant of probation for Jalosjos' failure to comply with th
e terms and conditions of the grant of probation.
On the very day of the election, the COMELEC resolved to grant Cardin
o's petition and ordered the cancellation of Jalosjos' CoC. The COMELEC
ruled that the rules on succession would then apply. Both Cardino and
Jalosjos came to the Court for redress.
On February 22, 2011, the Court denied Jalosjos’ petition, prompting Jalo
sjos to move for reconsideration. During the pendency of his motion, Jal
osjos manifested that he had already tendered his resignation from his
office and that the same was duly accepted by the governor of the pro
vince of Zamboanga del Norte.
I dissent from the majority’s (i) position that the present case involves a
cancellation of a certificate of candidacy (CoC) rather than a case of dis
qualification and (ii) conclusion that Cardino, the "second placer" in the
2010 elections for the mayoralty post of Dapitan City, Zamboanga del N
orte, should be the rightful Mayor. I submit that while Cardino intended
to cancel Jalosjos’ CoC, his petition alleged acts constituting disqualificati
on as its ground. Thus, the case should be resolved under the rules of
disqualification, not from the point of a cancellation of a CoC.
I point out in this Dissenting Opinion, as I did in the cases of Mayor Ba
rbara Ruby C. Talaga v. Commission on Elections, et al.1 and Efren Racel
Aratea v. Commission on Elections, et al.,2 that this case is best resolve
d through an analytical approach that starts from a consideration of the
nature of a CoC; the distinctions between eligibility or lack of it and dis
qualification; the effects of cancellation and disqualification; and the appli
cable remedies.
The CoC and the Qualifications for its Filing.
As I discussed in Talaga and Aratea, a basic rule and one that cannot b
e repeated often enough is that the CoC is the document that creates t
he status of a candidate. In Sinaca v. Mula,3 the Court described the na
ture of a CoC as follows –
A certificate of candidacy is in the nature of a formal manifestation to t
he whole world of the candidate's political creed or lack of political cree
d. It is a statement of a person seeking to run for a public office certify
ing that he announces his candidacy for the office mentioned and that
he is eligible for the office, the name of the political party to which he
Section 2. Contents of certificate of candidacy. - The certificate of candid
belongs, if he belongs to any, and his post-office address for all election
acy shall be under oath and shall state that the person filing it is annou
purposes being as well stated.
ncing his candidacy for the office and constituency stated therein; that h
e is eligible for said office, his age, sex, civil status, place and date of bi
rth, his citizenship, whether natural-born or naturalized; the registered po
Both the 1973 and 1987 Constitutions left to Congress the task of provid
litical party to which he belongs; if married, the full name of the spouse
ing the qualifications of local elective officials. Congress undertook this t
; his legal residence, giving the exact address, the precinct number, bara
ask by enacting Batas Pambasa Bilang (B.P. Blg.) 337 (Local Government
ngay, city or municipality and province where he is registered voter; his
Code or LGC), B.P. Blg. 881 (Omnibus Election Code or OEC) and, later,
post office address for election purposes; his profession or occupation or
Republic Act (R.A.) No. 7160 (Local Government Code of 1991 or LGC 19
employment; that he is not a permanent resident or an immigrant to a
91).4
foreign country; that he will support and defend the Constitution of the
Republic of the Philippines and will maintain true faith and allegiance t

Under Section 79 of the OEC, a political aspirant legally becomes a "can hereto; that he will obey the laws, legal orders, decrees, resolution, rules

didate" only upon the due filing of his sworn CoC.5 In fact, Section 73 and regulations promulgated and issued by the duly-constituted authori

of the OEC makes the filing of the CoC a condition sine qua non for a ties; that he assumes the foregoing obligations voluntarily without mental

person to "be eligible for any elective public office"6 – i.e., to be validly reservation or purpose of evasion; and that the facts stated in the certi

voted for in the elections. Section 76 of the OEC makes it a "ministerial ficate are true and correct to the best of his own knowledge. [italics sup

duty" for a COMELEC official "to receive and acknowledge receipt of the plied]

certificate of candidacy"7 filed.

From the point of view of the common citizen who wants to run for a l

COMELEC Resolution No. 8678 provides what a CoC must contain or sta ocal elective office, the above recital contains all the requirements that h

te:8 e must satisfy; it contains the basic and essential requirements applicable
 to all citizens to qualify for candidacy for a local elective office. These
are their formal terms of entry to local politics. A citizen must not only
possess all these requirements; he must positively represent in his CoC a
pplication that he possesses them. Any falsity on these requirements con
stitutes a material misrepresentation that can lead to the cancellation of
the CoC. On this point, Section 78 of the OEC provides:
Sec. 78. Petition to deny due course to or cancel a certificate of candid
acy. – A verified petition seeking to deny due course or to cancel a cer
tificate of candidacy may be filed by any person exclusively on the grou
nd that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not lat
er than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election. [italics, emphases and underscores
ours]
A necessarily related provision is Section 39 of LGC 1991 which states:
Sec. 39. Qualifications. – (a) An elective local official must be a citizen o
f 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 sanggunian bayan, the district where he in
tends to be elected; a resident therein for at least one (1) year immedia
tely preceding the day of the election; and able to read and write Filipi
no or any other local language or dialect.
x x x x
(c) Candidates for the position of Mayor or vice-mayor of independent c
omponent cities, component cities, or municipalities must be at least twe
nty-one (21) years of age on election day. [italics ours]
Notably, Section 74 of the OEC does not require any negative qualificati
on except only as expressly required therein. A specific negative require
ment refers to the representation that the would-be candidate is not a
permanent resident nor an immigrant in another country. This requireme
nt, however, is in fact simply part of the positive requirement of residen
cy in the locality for which the CoC is filed and, in this sense, is not stri
ctly a negative requirement. Neither does Section 74 require any statem
ent that the would-be candidate does not possess any ground for disqu
alification specifically enumerated by law, as disqualification is a matter t
hat the OEC and LGC 1991 separately deal with, as discussed below.
 To disqualify, in its simplest sense, is (1) to deprive a person of a power
, right or privilege; or (2) to make him or her ineligible for further com
With the accomplishment of the CoC and its filing, a political aspirant of
petition because of violation of the rules.13 It is in these senses that the
ficially acquires the status of a candidate and, at the very least, the pros
term is understood in our election laws.
pect of holding public office; he, too, formally opens himself up to the
complex political environment and processes. The Court cannot be more
emphatic in holding "that the importance of a valid certificate of candid
Thus, anyone who may qualify or may have qualified under the general
acy rests at the very core of the electoral process."9
rules of eligibility applicable to all citizens (Section 74 of the OEC) may
be deprived of the right to be a candidate or may lose the right to be
a candidate (if he has filed his CoC) because of a trait or characteristic
Pertinent laws10 provide the specific periods when a CoC may be filed;
that applies to him or an act that can be imputed to him as an individ
when a petition for its cancellation may be brought; and the effect of it
ual, separately from the general qualifications that must exist for a citize
s filing. These measures, among others, are in line with the State policy
n to run for a local public office.
or objective of ensuring "equal access to opportunities for public service,
"11 bearing in mind that the limitations on the privilege to seek public o
ffice are within the plenary power of Congress to provide.12
In a disqualification situation, the grounds are the individual traits or con
ditions of, or the individual acts of disqualification committed by, a candi
date as provided under Sections 68 and 12 of the OEC and Section 40
The Concept of Disqualification vis-a-vis
of LGC 1991, and which generally have nothing to do with the eligibility
Remedy of Cancellation; and Effects of requirements for the filing of a CoC.14

Disqualification.

Sections 68 and 12 of the OEC (together with Section 40 of LGC 1991, o

utlined below) cover the following as traits, characteristics or acts of disq
ualification: (i) corrupting voters or election officials; (ii) committing acts
of terrorism to enhance candidacy; (iii) overspending; (iv) soliciting, receiv
ing or making prohibited contributions; (v) campaigning outside the cam
c. Those convicted by final judgment for violating the oath of allegiance
paign period; (vi) removal, destruction or defacement of lawful election p
to the Republic;
ropaganda; (vii) committing prohibited forms of election propaganda; (viii
) violating rules and regulations on election propaganda through mass
media; (ix) coercion of subordinates; (x) threats, intimidation, terrorism, u d. Those with dual citizenship;
se of fraudulent device or other forms of coercion; (xi) unlawful election
eering; (xii) release, disbursement or expenditure of public funds; (xiii) sol
icitation of votes or undertaking any propaganda on the day of the elec e. Fugitives from justice in criminal or non-political cases here or abroad
tion; (xiv) declaration as an insane; and (xv) committing subversion, insur ;
rection, rebellion or any offense for which he has been sentenced to a
penalty of more than eighteen months or for a crime involving moral tu
rpitude. f. Permanent residents in a foreign country or those who have acquired
the right to reside abroad and continue to avail of the same right after
the effectivity of this Code; and
Section 40 of LGC 1991, on the other hand, essentially repeats those alre
ady in the OEC under the following disqualifications:
g. The insane or feeble-minded.

a. Those sentenced by final judgment for an offense involving moral tur

pitude or for an offense punishable by one (1) year or more of imprison
ment, within two (2) years after serving sentence;
b. Those removed from office as a result of an administrative case;
Together, these provisions embody the disqualifications that, by statute,
can be imputed against a candidate or a local elected official to deny hi
m of the chance to run for office or of the chance to serve if he has b
een elected.
 When the law allows the cancellation of a candidate’s CoC, the law cons
iders the cancellation from the point of view of those positive requireme
A unique feature of "disqualification" is that under Section 68 of the OE
nts that every citizen who wishes to run for office must commonly satisf
C, it refers only to a "candidate," not to one who is not yet a candidate
y. Since the elements of "eligibility" are common, the vice of ineligibility
. Thus, the grounds for disqualification do not apply to a would-be can
attaches to and affects both the candidate and his CoC. In contrast, wh
didate who is still at the point of filing his CoC. This is the reason why
en the law allows the disqualification of a candidate, the law looks only
no representation is required in the CoC that the would-be candidate d
at the disqualifying trait or condition specific to the individual; if the "eli
oes not possess any ground for disqualification. The time to hold a pers
gibility" requirements have been satisfied, the disqualification applies only
on accountable for the grounds for disqualification is after attaining the
to the person of the candidate, leaving the CoC valid. A previous convi
status of a candidate, with the filing of the CoC.
ction of subversion is the best example as it applies not to the citizenry
at large, but only to the convicted individuals; a convict may have a vali

To sum up and reiterate the essential differences between the eligibility d CoC upon satisfying the eligibility requirements under Section 74 of th

requirements and disqualifications, the former are the requirements that e OEC, but shall nevertheless be disqualified.

apply to, and must be complied by, all citizens who wish to run for loc
al elective office; these must be positively asserted in the CoC.
Distinctions among (i) denying due course to or

cancellation of a CoC, (ii) disqualification,

The latter refer to individual traits, conditions or acts applicable to specif
and (iii) quo warranto
ic individuals that serve as grounds against one who has qualified as a
candidate to lose this status or privilege; essentially, they have nothing t
o do with a candidate’s CoC.
The nature of the eligibility requirements for a local elective office and t
he disqualifications that may apply to candidates necessarily create distin
ctions on the remedies available, on the effects of lack of eligibility and
on the application of disqualification. The remedies available are essential
ly: the cancellation of a CoC, disqualification from candidacy or from hol
ding office, and quo warranto, which are distinct remedies with varying
In a quo warranto petition, the grounds to oust an elected official from
applicability and effects. For ease of presentation and understanding, thei
his office are ineligibility and disloyalty to the Republic of the Philippines
r availability, grounds and effects are topically discussed below.
. This is provided under Section 253 of the OEC and governed by the R
ules of Court as to procedures. While quo warranto and cancellation sha
re the same ineligibility grounds, they differ as to the time these ground
As to the grounds:
s are cited. A cancellation case is brought before the elections, while a
quo warranto is filed after and may still be filed even if a CoC cancellati

In the denial of due course to or cancellation of a CoC, the ground is on case was not filed before elections.

essentially lack of eligibility under the pertinent constitutional and statuto

ry provisions on qualifications or eligibility for public office;15 the governi
The only difference between the two proceedings is that, under section
ng provisions are Sections 78 and 69 of the OEC.16
78, the qualifications for elective office are misrepresented in the certifica
te of candidacy and the proceedings must be initiated before the electio

In a disqualification case, as mentioned above, the grounds are traits, co ns, whereas a petition for quo warranto under section 253 may be brou

nditions, characteristics or acts of disqualification,17 individually applicable ght on the basis of two grounds - (1) ineligibility or (2) disloyalty to the

to a candidate, as provided under Sections 68 and 12 of the OEC; Sect Republic of the Philippines, and must be initiated within ten days after t

ion 40 of LGC 1991; and Section 8, Article X of the Constitution. As prev he proclamation of the election results. Under section 253, a candidate i

iously discussed, the grounds for disqualification are different from, and s ineligible if he is disqualified to be elected to office, and he is disquali

have nothing to do with, a candidate’s CoC although they may result in fied if he lacks any of the qualifications for elective office.18

disqualification from candidacy whose immediate effect upon finality befo

re the elections is the same as a cancellation. If they are cited in a petit
Note that the question of what would constitute acts of disqualification
ion filed before the elections, they remain as disqualification grounds an
– under Sections 68 and 12 of the OEC and Section 40 of LGC 1991 – i
d carry effects that are distinctly peculiar to disqualification.
s best resolved by directly referring to the provisions involved. The appr
oach is not as straight forward in a petition to deny due course to or c
ancel a CoC and also to a quo warranto petition, which similarly covers
the ineligibility of a candidate/elected official. In Salcedo II v. COMELEC,1
9 we ruled that –
In order to justify the cancellation of the certificate of candidacy under
Section 78, it is essential that the false representation mentioned therein
pertain to a material matter for the sanction imposed by this provision
would affect the substantive rights of a candidate — the right to run fo
r the elective post for which he filed the certificate of candidacy. Althou
gh the law does not specify what would be considered as a "material re
presentation," the Court has interpreted this phrase in a line of decisions
applying Section 78 of the Code.
x x x x
Therefore, it may be concluded that the material misrepresentation conte
mplated by Section 78 of the Code refer to qualifications for elective off
ice. This conclusion is strengthened by the fact that the consequences i
mposed upon a candidate guilty of having made a false representation i
n his certificate of candidacy are grave — to prevent the candidate fro
m running or, if elected, from serving, or to prosecute him for violation
of the election laws. It could not have been the intention of the law to
deprive a person of such a basic and substantive political right to be vo
ted for a public office upon just any innocuous mistake. [emphases ours,
citation omitted]
Thus, in addition to the failure to satisfy or comply with the eligibility re
quirements, a material misrepresentation must be present in a cancellatio
n of CoC situation. The law apparently does not allow material divergen
ce from the listed requirements to qualify for candidacy and enforces its
edict by requiring positive representation of compliance under oath. Sig
nificantly, where disqualification is involved, the mere existence of a grou
nd appears sufficient and a material representation assumes no relevanc
e.
As to the period for filing:
The period to file a petition to deny due course to or cancel a CoC de
pends on the provision of law invoked. If the petition is filed under Sect
ion 78 of the OEC, the petition must be filed within twenty-five (25) day
s from the filing of the CoC.20 However, if the petition is brought unde
r Section 69 of the same law, the petition must be filed within five (5)
days from the last day of filing the CoC.21
On the other hand, the period to file a disqualification case is at any ti
me before the proclamation of a winning candidate, as provided in CO
MELEC Resolution No. 8696,22 while a quo warranto petition must be fil
ed within ten (10) days from proclamation.23
As to the effects of a successful suit:
A candidate whose CoC was denied due course or cancelled is not cons
idered a candidate at all. Note that the law fixes the period within whic
h a CoC may be filed.24 After this period, generally no other person m
ay join the election contest. A notable exception to this general rule is t
he rule on substitution. The application of the exception, however, presu
pposes a valid CoC. Unavoidably, a "candidate" whose CoC has been ca
ncelled or denied due course cannot be substituted for lack of a CoC, t
o all intents and purposes.25 Similarly, a successful quo warranto suit re
sults in the ouster of an already elected official from office; substitution,
for obvious reasons, can no longer apply.
On the other hand, a candidate who was simply disqualified is merely p
rohibited from continuing as a candidate or from assuming or continuin
g to assume the functions of the office; substitution can thus take place
under the terms of Section 77 of the OEC.26
As to the effects of a successful suit on the right of the second placer i
n the elections:
In any of these three remedies, the doctrine of rejection of the second
placer applies for the simple reason that –
To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the vo
ter. The second placer is just that, a second placer. He lost the elections
.1âwphi1 He was repudiated by either a majority or plurality of voters. H
e could not be considered the first among qualified candidates because
in a field which excludes the disqualified candidate, the conditions would
have substantially changed. We are not prepared to extrapolate the res
ults under such circumstances.27
With the disqualification of the winning candidate and the application of
the doctrine of rejection of the second placer, the rules on succession u
nder the law accordingly apply, as provided under Section 44 of LGC 19
91.
As an exceptional situation, however, the candidate with the second high
est number of votes (second placer) may be validly proclaimed as the w
inner in the elections should the winning candidate be disqualified by fin
al judgment before the elections, as clearly provided in Section 6 of R.A.
No. 6646.28 The same effect obtains when the electorate is fully aware,
in fact and in law and within the realm of notoriety, of the disqualificat
ion, yet they still voted for the disqualified candidate. In this situation, th
e electorate that cast the plurality of votes in favor of the notoriously di
squalified candidate is simply deemed to have waived their right to vote.
29
In a CoC cancellation proceeding, the law is silent on the legal effect of
a judgment cancelling the CoC and does not also provide any tempora
l distinction. Given, however, the formal initiatory role a CoC plays and t
he standing it gives to a political aspirant, the cancellation of the CoC b
ased on a finding of its invalidity effectively results in a vote for an inex
istent "candidate" or for one who is deemed not to be in the ballot. Alt
hough legally a misnomer, the "second placer" should be proclaimed the
winner as the candidate with the highest number of votes for the cont
ested position. This same consequence should result if the cancellation c
ase becomes final after elections, as the cancellation signifies non-candid
acy from the very start, i.e., from before the elections.
Application of Above Rulings and Principles to the Case.
While it is apparent from the undisputed facts that Cardino did indeed f
ile a petition for denial and/or the cancellation of Jalosjos’ CoC, it is ob
vious as well, based on the above discussions, that the ground he cited
was not appropriate for the cancellation of Jalosjos’ CoC but for his disq
ualification. Conviction for a crime involving moral turpitude is expressly
a ground for disqualification under Section 12 of the OEC. As a ground,
it applies only to Jalosjos; it is not a standard of eligibility that applies t
o all citizens who may be minded to run for a local political position; it
s non-possession is not a negative qualification that must be asserted in
the CoC. Hence, there can be no doubt that what Cardino filed was ef
fectively a petition for disqualification. This conclusion, of course, follows
the rule that the nature of a petition is determined not by its title or b
y its prayers, but by the acts alleged as basis for the petition.
Unfortunately for Cardino, the position of a second placer is not given p Footnotes
reference, both in law and in jurisprudence with respect to the conseque
nces of election disputes (except with well-defined exceptional circumstan
ces discussed above), after election has taken place.30 1 G.R. Nos. 196804 and 197015.

This approach and its consequential results are premised on the general 2 G.R. No. 195229.

principle that the electorate is supreme; it registers its choice during the
election and, after voting, effectively rejects the candidate who comes in
3 373 Phil. 896, 908 (1999).
as the second placer. Under the rule that a disqualified candidate can st
ill stand as a candidate unless his disqualification has been ruled upon
with finality before the elections,31 Jalosjos validly stood as a candidate i
4 Prior to these laws, the applicable laws were the Revised Administrativ
n the elections of May 2010 and won, although he was subsequently dis
e Code of 1917, R.A. No. 2264 (An Act Amending the Laws Governing L
qualified. With his disqualification while already sitting as Mayor, the win
ocal Governments by Increasing Their Autonomy and Reorganizing Provi
ning vice-mayor, not . Cardino as a mere defeated second placer, shoul
ncial Governments); and B.P. Blg. 52 (An Act Governing the Election of L
d rightfully be seated as mayor under Section 44 of LGC 1991 on the la
ocal Government Officials).
w on succession.

5 See, however, Section 15 of R.A. No. 8436, as amended. Penera v. Co

ARTURO D. BRION
mmission on Elections, G.R. No. 181613, November 25, 2009, 605 SCRA 5
Associate Justice 74, 581-586, citing Lanot v. COMELEC, G.R. No. 164858, November 16, 2
006, 507 SCRA 114.
6 Section 73 of the OEC reads:
Section 73. Certificate of candidacy. - No person shall be eligible for an
y elective public office unless he files a sworn certificate of candidacy wi
thin the period fixed herein.
A person who has filed a certificate of candidacy may, prior to the elect
ion, withdraw the same by submitting to the office concerned a written
declaration under oath.
No person shall be eligible for more than one office to be filled in the
same election, and if he files his certificate of candidacy for more than
one office, he shall not be eligible for any of them.
However, before the expiration of the period for the filing of certificates
of candidacy, the person who has filed more than one certificate of can
didacy may declare under oath the office for which he desires to be eli
gible and cancel the certificate of candidacy for the other office or offic
es.
The filing or withdrawal of a certificate of candidacy shall not affect wha
tever civil, criminal or administrative liabilities which a candidate may hav
e incurred. [italics supplied]
Section 13 of R.A. No. 9369, however, adds that "any person who files h
is certificate of candidacy within this period shall only be considered as
a candidate at the start of the campaign period for which he filed his c
ertificate of candidacy: Provided, That, unlawful acts or omissions applica
ble to a candidate shall effect only upon that start of the aforesaid cam
paign period." (italics supplied)
7 See Cipriano v. Commission on Elections, 479 Phil. 677, 689 (2004).
8 The statutory basis is Section 74 of the OEC which provides:
Section 74. Contents of certificate of candidacy. - The certificate of candi
dacy shall state that the person filing it is announcing his candidacy for
the office stated therein and that he is eligible for said office; if for Me
mber of the Batasang Pambansa, the province, including its component
cities, highly urbanized city or district or sector which he seeks to repres
ent; the political party to which he belongs; civil status; his date of birth;
 residence; his post office address for all election purposes; his professio
n or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he
will obey the laws, legal orders, and decrees promulgated by the duly c
onstituted authorities; that he is not a permanent resident or immigrant
to a foreign country; that the obligation imposed by his oath is assume
his certificate of candidacy when he was elected. He may also include o
ne nickname or stage name by which he is generally or popularly know
n in the locality.
The person filing a certificate of candidacy shall also affix his latest phot

d voluntarily, without mental reservation or purpose of evasion; and that ograph, passport size; a statement in duplicate containing his bio-data a

the facts stated in the certificate of candidacy are true to the best of hi nd program of government not exceeding one hundred words, if he so

s knowledge. desires.

Unless a candidate has officially changed his name through a court appr 9 Miranda v. Abaya, 370 Phil. 642, 658 (1999). See also Bautista v. Com

oved proceeding, a certificate shall use in a certificate of candidacy the mission on Elections, 359 Phil. 1 (1998).

name by which he has been baptized, or if has not been baptized in a

ny church or religion, the name registered in the office of the local civil
10 Section 13 of R.A. No. 9369, COMELEC Resolution No. 8678 and Secti
registrar or any other name allowed under the provisions of existing law
on 78 of OEC.
or, in the case of a Muslim, his Hadji name after performing the prescr
ibed religious pilgrimage:

11 1987 Constitution, Article II, Section 26.

Provided, That when there are two or more candidates for an office wit
h the same name and surname, each candidate, upon being made awar
12 See Pamatong v. Commission on Elections, G.R. No. 161872, April 13,
e of such fact, shall state his paternal and maternal surname, except the
2004, 427 SCRA 96, 100-103.
incumbent who may continue to use the name and surname stated in
13 Merriam-Webster’s 11th Collegiate Dictionary, p. 655.
14 If at all, only two grounds for disqualification under the Local Govern
ment Code may as well be considered for the cancellation of a CoC, viz
.: those with dual citizenship and permanent residence in a foreign coun
try, or those who have acquired the right to reside abroad and continue
to avail of the same right after January 1, 1992. It may be argued that
these two disqualifying grounds likewise go into the eligibility requireme
nt of a candidate, as stated under oath by a candidate in his CoC.
15 Fermin v. Commission on Elections, G.R. Nos. 179695 and 182369, De
cember 18, 2008, 574 SCRA 782, 792-794.
16 See Section 7 of R.A. No. 6646.
17 Sections 68 and 12 of the OEC cover these acts: (i) corrupting voters
or election officials; (ii) committing acts of terrorism to enhance candidac
y; (iii) over spending; (iv) soliciting, receiving or making prohibited contri
butions; (v) campaigning outside the campaign period; (vi) removal, destr
uction or defacement of lawful election propaganda; (vii) committing pro
hibited forms of election propaganda; (viii) violating rules and regulations
on election propaganda through mass media; (ix) coercion of subordina
tes; (x) threats, intimidation, terrorism, use of fraudulent device or other
forms of coercion; (xi) unlawful electioneering; (xii) release, disbursement
or expenditure of public funds; (xiii) solicitation of votes or undertaking
any propaganda on the day of the election; (xiv) declaration as an insan
e; and (xv) committing subversion, insurrection, rebellion or any offense f
or which he has been sentenced to a penalty of more than eighteen m
onths or for a crime involving moral turpitude.
18 Salcedo II v. COMELEC, 371 Phil. 377, 387 (1999), citing Aznar v. Com
mission on Elections, 185 SCRA 703 (1990).
19 Supra, at 386-389.
20 Loong v. Commission on Elections, G.R. No. 93986, December 22, 19
92, 216 SCRA 760, 765-766.
21 Section 5(a) of R.A. No. 6646.
22 Section 4(B) of COMELEC Resolution No. 8696 reads:
SEC. 4. Procedure in filing petitions. - For purposes of the preceding sec 25 Miranda v. Abaya, supra note 9, at 658-660.
tions, the following procedure shall be observed:

26 Section 77 of the OEC expressly allows substitution of a candidate w

x x x x ho is "disqualified for any cause."

B. PETITION TO DISOUALIFY A CANDIDATE PURSUANT TO SECTION 68 27 Aquino v. Commission on Elections, G.R. No. 120265, September 18, 1
OF THE OMNIBUS ELECTION CODE AND PETITION TO DISOUALIFY FOR 995, 248 SCRA 400, 424.
LACK OF OUALIFICATIONS OR POSSESSING SOME GROUNDS FOR DIS
QUALIFICATION
28 Cayat v. Commission on Elections, G.R. Nos. 163776 and 165736, April
24, 2007, 522 SCRA 23, 43-47; Section 6 of R.A. No. 6646.
1. A verified petition to disqualify a candidate pursuant to Section 68 of
the OEC and the verified petition to disqualify a candidate for lack of q
ualifications or possessing some grounds for disqualification may be filed 29 Grego v. Commission on Elections, G.R. No. 125955, June 19, 1997, 27

on any day after the last day for filing of certificates of candidacy but 4 SCRA 481, 501.

not later than the date of proclamation.

30 See: discussions at pp. 14-15.

23 Section 253 of the OEC.

31 Section 6 of R.A. No. 6646.

24 Section 15 of R.A. No. 9369.


The Lawphil Project - Arellano Law Foundation
DISSENTING OPINION
REYES, J.:
With all due respect, I dissent from the majority opinion.
Subject of this case are two (2) consolidated Petitions for Certiorari unde
r Rule 65 of the Rules of Court. In G.R. No. 193237, petitioner Dominad
or G. Jalosjos, Jr. (Jalosjos) seeks to annul and set aside the Resolutions
dated May 10, 20101 and August 11, 20102 issued by the Commission on
Elections (COMELEC), which respectively ordered for the cancellation of
his Certificate of Candidacy (COC) and denied his Motion for Reconsider
ation.
In G.R. No. 193536, petitioner Agapito J. Cardino"(Cardino) likewise assails
the Resolution dated August 11, 2010, particularly the dispositive portion
thereof which contained the directive to apply the provision of the Loc
al Government Code (LGC) on succession in filling the vacated office of
the mayor.
Jalosjos attributes grave abuse of discretion on the COMELEC en banc i
n (1) ruling that the grant of his probation was revoked, hence, he is di
squalified to run as Mayor of Dapitan City, Zamboanga Del Norte, (2) ca
ncelling his COC without a finding that he committed a deliberate misre
presentation as to his qualifications, considering that he merely relied in
good faith upon a previous decision of the COMELEC wherein he was d
eclared eligible to run for public office, and (3) issuing the Resolutions d
ated May 10, 2010 and August 11, 2010 in violation of the COMELEC Rul
es of Procedure.
On February 22, 2011, this Court issued a Resolution3 dismissing G.R. No
. 193237, the dispositive portion of which reads:
WHEREFORE, the foregoing premises considered, the Petition for Certiora
ri is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolut
ion dated August 11, 2010 of the Commission in (sic) Elections in SPA C
ase No. 09-076 (DC) are hereby AFFIRMED.4
This Court ruled that Jalosjos could not have qualified to run for any pu
blic office as the grant of his probation was revoked by the RTC, as ear
ly as March 19, 1987 and that he could not rely on the Certification dat
ed December 19, 2003 issued by former Parole and Probation Administr
ator Gregorio F. Bacolod to assert his eligibility. We ratiocinated:
It must be remembered that by the time Bacolod submitted his Termina
tion Report on January 23, 2004, there was no longer a probation to sp
eak of, the same having been revoked more than 16 years earlier. Unde
r the Probation Law of 1976, the order of revocation is not appealable.
There is no showing that the RTC ever issued a subsequent order suspe
nding the execution of petitioner’s sentence and granting him probation
again. In fact, the RTC issued an alias warrant of arrest on January 17, 2
004 pursuant to the March 19, 1987 Order of revocation.
Thus, the same order revoking the grant of probation was valid and sub
sisting at the time that petitioner supposedly completed his probation. P
etitioner could not have validly complied with the conditions of his prob
ation and there would have been no basis for any probation officer to
accept petitioner’s compliance with a non-existent probation order.
This, plus the cloud of doubt created by Bacolod’s conviction for falsifica
tion of the certification relied upon by petitioner, the Court cannot now
rely on the presumption of regularity in the issuance of said certification
in order for us to conclude that petitioner has in fact completed his pro
bation. Considering that petitioner likewise has not served the sentence
of his conviction for the crime of robbery, he is disqualified to run for a
nd hold his current position as Mayor of Dapitan City.5 (Citation omitted
)
Undeterred, Jalosjos filed a Motion for Reconsideration6 on March 22, 2
011, raising the same issues stated in his petition. Subsequently, he filed
a Manifestation dated May 30, 2012, informing this Court that he had al
ready tendered his resignation from his position as Mayor of Dapitan Cit
y, Zamboanga del Norte and that the same was accepted by the Gover
nor of the province, Atty. Rolando E. Yebes.
I will deliberate on the Motion for Reconsideration filed by Jalosjos in G.
R. No. 193237 despite his resignation from office, in conjunction with the
 merits of G.R. No. 193536, with which it shares identical factual backgro
und.
The allegations in the petition filed
by Cardino in SPA No. 09-076 (DC)
bespeak of its characterization as
one for disqualification.
It is well to remember that G.R. Nos. 193237 and 193536 stemmed from
the Petition to Deny Due Course and to Cancel Certificate of Candidacy
of Respondent filed by Cardino against Jalosjos, docketed as SPA No. 09
-076 (DC). In the said petition, Cardino alleged:
3. Respondent Jalosjos is also of legal age, a resident of Dapitan City, a
registered voter of Precinct No. 0187B, likewise filed his certificate of can
didacy for the same position with the Office of the Comelec, Dapitan Cit
y, as that for which petitioner duly filed a certificate of candidacy, for th
e May 10, 2010 national and local elections on December 1, 2009, a cert
ified true copy of said COC is hereto attached as Annex B;
4. Respondent’s Jalosjos certificate of candidacy under oath contains mat
erial misrepresentation, when he declared under oath, that respondent Ja
losjos is eligible for the office he seeks to be elected, par. 16, COC for
Mayor, considering that he is not eligible for the position for which he f
iled a certificate of candidacy because respondent was convicted by final
judgment by the Regional Trial Court of Cebu City in Crim. Case No. C
CC-XIV-140-Cebu for Robbery, an offense involving moral turpitude and
he was sentenced to suffer the penalty of "one (1) year, eight (8) Month
s and Twenty (20) days of prision correctional, as minimum, to Four (4)
years, Two 2 months and One (1) day of prision mayor as maximum," a
certified true (sic) of which decision is hereto attached as Annex C.
5. Respondent Jalosjos failed to serve even a single day of his sentence.
The position requires that a candidate be eligible and/or qualified to as
pire for the position as required under Section 74 of the Omnibus Electi
on Code.7
On the basis of the foregoing allegations, Cardino prayed (1) that Jalosjo
s be declared ineligible for the position for which he filed a COC or tha
t his COC be cancelled or denied due course, (2) that the Board of Elec
tion Inspectors of Dapitan City be directed to exclude all the votes cast
in Jalosjos’ name, (3) that the City Board of Canvassers be ordered to s
uspend or hold in abeyance Jalosjos’ proclamation as the winning candi
date, and (4) that Jalosjos be held liable for damages.8
Subsequently, the COMELEC First Division issued its Resolution dated Ma
y 10, 2010, granting Cardino’s petition and cancelling Jalosjos’ COC. The
COMELEC First Division ratiocinated that Jalosjos "is not eligible by reaso
n of his disqualification as provided for in Section 40(a) of Republic Act
(R.A.) No. 7160."9
Jalosjos promptly filed his Motion for Reconsideration but the COMELEC
en banc denied the same in its Resolution dated August 11, 2010. Introd
uctory to the ratio decidendi of its ruling, the COMELEC en banc stated:
It is long settled that for a material representation to serve as ground f
or the cancellation of a candidate’s certificate of candidacy, it must refer
to his qualifications for elective office. Sections 39 and 40 of the Local
Government Code or Republic Act No. 7160 prescribes the qualifications
and disqualifications for elective municipal officials, x x x.10
Thereafter, the COMELEC en banc correlated Sections 39 and 40 of the
LGC and proceeded to conclude that since Jalosjos was convicted by fin
al judgment for the crime of robbery, he is disqualified to run for any e
lective position or to hold office.
I fully agree with the COMELEC’s ruling that Jalosjos cannot run for any
public office by reason of possession of a ground for disqualification. Ho
wever, the COMELEC laid the predicate of said conclusion on a muddled
discussion of the nature of the petition filed by Cardino and the effects
of a judgment on the same on the status of candidacy.
Verily, a candidate may be prevented from participating in the electoral
race either because he is ineligible or he suffers from any of the groun
ds for disqualification. Ineligibility refers to the lack of the qualifications
prescribed in Sections 311 and 612 of Article VI, and Sections 213 and 31
4 of Article VII of the 1987 Constitution for senatorial, congressional, pre
sidential and vice-presidential candidates, or under Section 3915 of the L
GC for local elective candidates. On the other hand, disqualification pert
ains to the commission of acts which the law perceives as unbecoming
of a local servant, or to a circumstance, status or condition rendering sa
id candidate unfit for public service. To question the eligibility of a candi
date before the elections, the remedy is to file a petition to deny due c
ourse or cancel the COC under Section 78 of the Omnibus Election Cod
e (OEC). If, on the other hand, any ground for disqualification exists, res
ort can be made to the filing of a petition for disqualification against th
e candidate thought to be unqualified for public service under Section 6
8 of the same Code.
Pertinently, Section 78 of OEC states:
Sec. 78. Petition to deny due course to or cancel a certificate of candid
acy. – A verified petition seeking to deny due course or to cancel a cer
tificate of candidacy may be filed by any person exclusively on the grou
nd that any material representation contained therein as required under
Section 74 hereof is false. The petition may be filed at any time not lat
er than twenty-five days from the time of the filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later
than fifteen days before the election.
To be clear, it is not the mere ineligibility or lack of qualification which
warrants the filing of a petition to deny due course or cancel the COC
but the material representation of his qualifications. Material misrepresent
ation as a ground to deny due course or cancel a COC refers to the fal
sity of a statement required to be entered therein, as enumerated in
Section 74 of the OEC,16 which reads:
Sec. 74. Contents of certificate of candidacy. – The certificate of candida
cy shall state that the person filing it is announcing his candidacy for th
e office stated therein and that he is eligible for said office; if for Mem
ber of the Batasang Pambansa, the province, including its component cit
ies, highly urbanized city or district or sector which he seeks to represen
t; the political party to which he belongs; civil status; his date of birth; r
esidence; his post office address for all election purposes; his profession
or occupation; that he will support and defend the Constitution of the P
hilippines and will maintain true faith and allegiance thereto; that he will
obey the laws, legal orders, and decrees promulgated by the duly consti
tuted authorities; that he is not a permanent resident or immigrant to a
foreign country; that the obligation imposed by his oath is assumed vol
untarily, without mental reservation or purpose of evasion; and that the
facts stated in the certificate of candidacy are true to the best of his kn
owledge.
Succinctly, the material misrepresentation contemplated by Section 78 of
the OEC refers to qualifications for elective office. This conclusion is stre
ngthened by the fact that the consequences imposed upon a candidate
guilty of having made a false representation in his COC are grave — to
 prevent the candidate from running or, if elected, from serving, or to p
rosecute him for violation of the election laws. It could not have been t
he intention of the law to deprive a person of such a basic and substan
tive political right to be voted for a public office upon just any innocuo
us mistake.17
Aside from the requirement of materiality, the false representation must
consist of a deliberate attempt to mislead, misinform or hide a fact whic
h would otherwise render a candidate ineligible. In other words, it must
be with an intention to deceive the electorate as to one’s qualification f
or public office.18
On the other hand, a petition for disqualification may be filed if the can
didate committed any of the acts considered as an election offense stat
ed in Section 68 of the OEC which reads:
Sec. 68. Disqualifications. – Any candidate who, in an action or protest i
n which he is a party is declared by final decision of a competent court
guilty of, or found by the Commission of having: (a) given money or o
ther material consideration to influence, induce or corrupt the voters or
public officials performing electoral functions; (b) committed acts of terro
rism to enhance his candidacy; (c) spent in his election campaign an am
ount in excess of that allowed by this Code; (d) solicited, received or m
ade any contribution prohibited under Sections 89, 95, 96, 97 and 104;
or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e,
k, v, and cc, sub-paragraph 6, shall be disqualified from continuing as a
candidate, or if he has been elected, from holding the office. Any perso
n who is a permanent resident of or an immigrant to a foreign country
shall not be qualified to run for any elective office under this Code, unl
ess said person has waived his status as permanent resident or immigra
nt of a foreign country in accordance with the residence requirement pr
ovided for in the election laws.
The same petition may be filed on the ground of possession of a status
or condition which makes the candidate incapable of assuming the ster
n demands of public service or which places him in serious contradiction
with his oath of office, as enumerated in Section 12 of the OEC and S
ection 40 of the LGC:
Section 12 of the OEC
Sec. 12. Disqualifications. – Any person who has been declared by comp
etent authority insane or incompetent, or has been sentenced by final ju
dgment for subversion, insurrection, rebellion, or for any offense for whi
ch he has been sentenced to a penalty of more than eighteen months
or for a crime involving moral turpitude, shall be disqualified to be a ca
ndidate and to hold any office, unless he has been given plenary pardo
n or granted amnesty.
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegianc
e to the Republic;

The disqualifications to be a candidate herein provided shall be deemed

removed upon the declaration by competent authority that said insanity (d) Those with dual citizenship;

or incompetence had been removed or after the expiration of a period

of five years from his service of sentence, unless within the same period
(e) Fugitives from justice in criminal or non-political cases here or abroa
he again becomes disqualified.
d;

Section 40 of the LGC

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

Sec. 40. Disqualifications. – The following persons are disqualified from r r the effectivity of this Code; and

unning for any elective local position:

(g) The insane or feeble-minded.

(a) Those sentenced by final judgment for an offense involving moral tur
pitude or for an offense punishable by one (1) year or more of imprison
The petition filed by Cardino in SPA No. 09-076 (DC) is a confusion of t
ment, within two (2) years after serving sentence;
he remedies of petition to deny due course or cancel a COC and petiti
on for disqualification. It must be remembered that while both remedies
aim to prevent a candidate from participating in the elections, they are
separate and distinct from one another. They are embraced by distinct p
rovisions of law, which provide for their respective prescriptive periods a
nd particular sets of grounds. Further, each remedy entails diverging effe
cts on the status of candidacy of the concerned candidate thus subsumi
ng one remedy within the coverage of the other is a dangerous feat.
In Fermin v. Commission on Elections,19 we had the occasion to ponder
on the substantial differences between the two remedies, thus:
Lest it be misunderstood, the denial of due course to or the cancellatio
n of the CoC is not based on the lack of qualifications but on a finding
that the candidate made a material representation that is false, which
may relate to the qualifications required of the public office he/she is ru
nning for. It is noted that the candidate states in his/her CoC that he/sh
e is eligible for the office he/she seeks. Section 78 of the OEC, therefor
e, is to be read in relation to the constitutional and statutory provisions
on qualifications or eligibility for public office. If the candidate subseque
ntly states a material representation in the CoC that is false, the COMEL
EC, following the law, is empowered to deny due course to or cancel su
ch certificate. Indeed, the Court has already likened a proceeding under
Section 78 to a quo warranto proceeding under Section 253 of the OEC
since they both deal with the eligibility or qualification of a candidate,
with the distinction mainly in the fact that a "Section 78" petition is filed
before proclamation, while a petition for quo warranto is filed after pro
clamation of the wining candidate.
At this point, we must stress that a "Section 78" petition ought not to b
e interchanged or confused with a "Section 68" petition. They are differe
nt remedies, based on different grounds, and resulting in different event
ualities. Private respondent’s insistence, therefore, that the petition it filed
before the COMELEC in SPA No. 07-372 is in the nature of a disqualifi
cation case under Section 68, as it is in fact captioned a "Petition for Di
squalification," does not persuade the Court.
x x x x
To emphasize, a petition for disqualification, on the one hand, can be p
remised on Section 12 or 68 of the OEC, or Section 40 of the LGC. On
the other hand, a petition to deny due course to or cancel a CoC can
only be grounded on a statement of a material representation in the sai
d certificate that is false. The petitions also have different effects. While
a person who is disqualified under Section 68 is merely prohibited to co
ntinue as a candidate, the person whose certificate is cancelled or denie
d due course under Section 78 is not treated as a candidate at all, as if
he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made t
he distinction that a candidate who is disqualified under Section 68 can
validly be substituted under Section 77 of the OEC because he/she rema
ins a candidate until disqualified; but a person whose CoC has been de
nied due course or cancelled under Section 78 cannot be substituted be
cause he/she is never considered a candidate.20 (Citations omitted)
It is beyond dispute that Jalosjos cannot run for public office because of
a prior conviction for a crime involving moral turpitude. While he was
granted probation, his failure to comply with the terms and conditions o
f this privilege resulted to the revocation of the same on March 19, 198
7. It bears reiterating that probation is not a right of an accused but a
mere privilege, an act of grace and clemency or immunity conferred by
the state, which may be granted to a seemingly deserving defendant wh
o thereby escapes the extreme rigors of the penalty imposed by law for
the offense for which he was convicted.21 As a mere discretionary gran
t, he must pay full obedience to the terms and conditions appertaining
thereto or run the risk of the State revoking this privilege. In Soriano v.
Court of Appeals,22 this Court underscored the import of the terms and
conditions of probation, to wit:
These conditions are not whims of the trial court but are requirements l
aid down by statute. They are among the conditions that the trial court
is empowered to impose and the petitioner, as probationer, is required t
o follow. Only by satisfying these conditions may the purposes of probat
ion be fulfilled. These include promoting the correction and rehabilitation
of an offender by providing him with individualized treatment, and prov
iding an opportunity for the reformation of a penitent offender which m
ight be less probable if he were to serve a prison sentence. Failure to c
omply will result in the revocation of the order granting probation, purs
uant to the Probation Law:
Sec. 11. Effectivity of Probation Order. — A probation order shall take ef
fect upon its issuance, at which time the court shall inform the offender
of the consequences thereof and explain that upon his failure to comply
with any of the conditions prescribed in the said order or his commissi
on of another offense, he shall serve the penalty imposed for the offens
e under which he was placed on probation.
Probation is not an absolute right. It is a mere privilege whose grant re
sts upon the discretion of the trial court. Its grant is subject to certain t
erms and conditions that may be imposed by the trial court. Having the
power to grant probation, it follows that the trial court also has the po
wer to order its revocation in a proper case and under appropriate circu
mstances.23 (Citations omitted)
On the ground of Jalosjos’ failure to comply with the terms and conditi
ons of his probation, the RTC revoked said grant and ordered for the is
suance of an alias warrant of arrest against him. Stripped of the privileg
e, he becomes an ordinary convict who is imposed with restraints in the
exercise of his civil and political rights. Specifically, under Section 40(a)
of the LGC, he is disqualified to run for any local elective office. His dis
qualification cannot be defeated by bare allegation that he was earlier g
ranted probation as this does not perfunctorily obliterate the fact of con
viction and the corresponding accessory penalties.
Further, in Baclayon v. Hon. Mutia,24 we emphasized that an order placi
ng defendant on "probation" is not a "sentence" but is rather a suspensi
on of the imposition of sentence. It is not a final judgment but is rather
an "interlocutory judgment" in the nature of a conditional order placing
the convicted defendant under the supervision of the court for his refo
rmation, to be followed by a final judgment of discharge, if the conditio
ns of the probation are complied with, or by a final judgment of senten
ce if the conditions are violated.25 With the revocation of the grant of J
alosjos’ probation, the temporary suspension of his sentence is lifted and
all the ensuing disqualifications regain full effect.
Remarkably, Cardino’s challenge to Jalosjos’ candidacy was not based sq
uarely on the fact that there is a final judgment of conviction for robber
y against him but on the ground that he made a material misrepresenta
tion in his COC by declaring that he is eligible to run for public office
when there is an existing circumstance which renders his candidacy unac
ceptable. Based on the designation of his petition in SPA No. 09-076 (D
C), Cardino intends to file a petition to cancel the COC of Jalosjos, an a
ction which is governed by Section 74, in relation with Section 78 of the
OEC. The combined application of these sections requires that the facts
stated in the COC by the would-be candidate be true, as any false rep
resentation of a material fact is a ground for the COC’s cancellation or t
he withholding of due course.26 Essentially, the details required to be st
ated in the COC are the personal circumstances of the candidate, i.e., n
ame/stage name, age, civil status, citizenship and residency, which serve
as basis of his eligibility to become a candidate taking into consideration
the standards set under the law. The manifest intent of the law in imp
osing these qualifications is to confine the right to participate in the ele
ctions to local residents who have reached the age when they can serio
usly reckon the gravity of the responsibility they wish to take on and w
ho, at the same time, are heavily acquainted with the actual state and u
rgent demands of the community.
Considering that the core of Cardino’s petition in SPA No. 09-076 (DC) i
s the existence of a final judgment of conviction against Jalosjos, this m
aterial allegation is controlling of the characterization of the nature of th
A painstaking examination of the petition filed by Cardino with the COM
e petition regardless of the caption used to introduce the same. Cardino
ELEC would reveal that while it is designated as a petition to deny due
’s petition must therefore be treated and evaluated as a petition for dis
course to or cancel a COC, the ground used to support the same actua
qualification and not for cancellation of COC. Well-settled rule is that th
lly partake of a circumstance which is more fittingly used in a petition f
e caption is not determinative of the nature of the petition. What chara
or disqualification. Section 40(a) of the LGC clearly enumerates a final ju
cterizes the nature of the action or petition are the material allegations
dgment of conviction for a crime involving moral turpitude as a ground
therein contained, irrespective of whether the petitioner is entitled to the
for disqualification. That Cardino employed the term "material misreprese
reliefs prayed for therein.27
ntation" in his disputations cannot give his petition a semblance of what
is properly a petition to cancel a COC. It bears reiterating that a petiti
on to deny due course to or cancel a COC and a petition for disqualific
In order to conform with existing laws and established jurisprudence, the
ation are two separate and distinct actions which may be filed based on
Resolution dated February 22, 2011 of this Court in G.R. No. 193237 mu
grounds pertaining to it. Thus, a petition for cancellation of COC canno
st accordingly be modified to reflect the foregoing clarification on the n
t be predicated on a ground which is proper only in a petition for disq
ature of Cardino’s petition in SPA No. 09-076 (DC) and the ensuing con
ualification. The legislature would not have found it wise to provide for t
sequences of the judgment on the same.
wo different remedies to challenge the candidacy of an aspiring local se
rvant and even provide for an enumeration of the grounds on which th
ey may be based if they were intended to address the same predicame Turning to G.R. No. 193536, it is Cardino’s contention that with the canc
nt. The fact that the mentioned remedies were covered by separate pro ellation of Jalosjos’ COC, he should succeed to the office of the mayor
visions of law which relate to distinct set of grounds is a manifestation of Dapitan City, Zamboanga del Norte as he was the only remaining qu
of the intention to treat them severally. alified candidate for said position. He posits that the cancellation of Jalo
sjos’ COC retroacted to the date of its filing and rendered the latter a n
on-candidate as if he never filed one at all. Consequently, all the votes
cast in his favor are considered stray and his proclamation as winning c
andidate did not produce any legal effect.
Further, Cardino imputes grave abuse of discretion on the part of the C
OMELEC for stating in the dispositive portion of its Resolution dated Au
gust 11, 2010 that the provisions on succession in the LGC will apply in f
illing the post vacated by Jalosjos. To begin with, he argues that Section
44 of the LGC applies only when a permanent vacancy occurs in the o
ffice of the mayor. A permanent vacancy contemplates a situation where
by the disqualified mayor was duly elected to the position and lawfully
assumed the office before he vacated the same for any legal cause. It d
oes not embrace cancellation of COC since this eventuality has the effec
t of rendering the individual a non-candidate, who cannot be voted for
and much less, be proclaimed winner in the elections.28
Cardino’s disputations fail to persuade.
Cardino as a mere second placer
cannot be proclaimed mayor of
Dapitan City, Zamboanga del
Norte.
Truly, a judgment on a petition to cancel a COC impinges on the very
eligibility of an individual to qualify as a candidate and that its ultimate
effect is to render the person a non-candidate as if he never filed a CO
C at all. The votes in favor of the candidate whose COC was cancelled
are considered stray even if he happens to be the one who gathered th
e majority of the votes. In such case, the candidate receiving the second
highest number of votes may be proclaimed the winner as he is techni
cally considered the one who received the highest number of votes. Furt
her, the judgment on a petition to cancel a COC does not distinguish w
hether the same attained finality before or after the elections since the
consequences retroact to the date of filing of the COC. Regardless of th
e point in time when the cancellation of the COC was adjudged, the eff
ect is nevertheless the same: the person is stripped of his status as an
official candidate.
Cardino’s disputations could have been tenable if the petition he filed in
SPA No. 09-076 (DC) is a petition to cancel a COC. However, the perti
nent allegations of his petition bespeak of the fact that the same is actu
ally a petition for disqualification, the effect of which is covered by Secti
on 6 of R.A. No. 6646, which repealed Section 72 of the OEC, to wit:
 In Cayat v. Commission on Elections,29 we cogitated on the import of S
ection 6 of R.A. No. 6646, to wit:
Sec. 6. Effect of Disqualification Case. – Any candidate who has been de
clared by final judgment to be disqualified shall not be voted for, and t
he votes cast for him shall not be counted. If for any reason a candidat
Section 6 of the Electoral Reforms Law of 1987 covers two situations. Th
e is not declared by final judgment before an election to be disqualified
e first is when the disqualification becomes final before the elections, wh
and he is voted for and receives the winning number of votes in such
ich is the situation covered in the first sentence of Section 6.The second
election, the Court or Commission shall continue with the trial and heari
is when the disqualification becomes final after the elections, which is t
ng of the action, inquiry, or protest and, upon motion of the complaina
he situation covered in the second sentence of Section 6.
nt or any intervenor, may during the pendency thereof order the suspen
sion of the proclamation of such candidate whenever the evidence of hi
s guilt is strong. (Italics ours) The present case falls under the first situation. Section 6 of the Electoral
Reforms Law governing the first situation is categorical: a candidate disq
ualified by final judgment before an election cannot be voted for, and v
Unlike a judgment on a petition to cancel a COC, the effects of a judg
otes cast for him shall not be counted. The Resolution disqualifying Cay
ment on a petition for disqualification distinguish whether the same attai
at became final on 17 April 2004, way before the 10 May 2004 elections
ned finality before or after the elections. If the judgment became final b
. Therefore, all the 8,164 votes cast in Cayat’s favor are stray. Cayat was
efore the elections, the effect is identical to that of cancellation of a CO
never a candidate in the 10 May 2004 elections. Palileng’s proclamation i
C.
s proper because he was the sole and only candidate, second to none.3
0 (Emphasis supplied)

If, however, the judgment attained finality after the elections, the individ
ual is still considered an official candidate and may even be proclaimed
The instant case falls under the second situation contemplated in Section
winner should he muster the majority votes of the constituency.
6 of R.A. No. 6646. The petition to disqualify Jalosjos was filed on Dec
ember 6, 2009 and was resolved by the COMELEC on the very day of e
lections of May 10, 2010. Thus, on the election day, Jalosjos is still consi
dered an official candidate notwithstanding the issuance of the COMELE
C Resolution disqualifying him from holding public office. The pendency
of a disqualification case against him or even the issuance of judgment
of disqualification against him does not forthwith divest him of the right
to participate in the elections as a candidate because the law requires n
o less than a final judgment. Thus, the votes cast in his name were righ
tfully counted in his favor and, there being no order suspending his pro
clamation, the City Board of Canvassers lawfully proclaimed him as the
winning candidate. However, upon the finality of the judgment of disqua
lification against him on August 11, 2010, a permanent vacancy was creat
ed in the office of the mayor which must be filled in accordance with S
ection 44 of the LGC, which states:
Sec. 44. Permanent Vacancies in the Offices of the Governor, Vice Gover
nor, Mayor, and Vice-Mayor. – If a permanent vacancy occurs in the offi
ce of the governor or mayor, the vice-governor or vice-mayor concerne
d shall become the governor or mayor. x x x.
x x x x
For purposes of this Chapter, a permanent vacancy arises when an electi
ve local official fills a higher vacant office, refuses to assume office, fails
to qualify, dies, is removed from office, voluntarily resigns, or is otherwis
e permanently incapacitated to discharge the functions of his office.
The language of the law is clear, explicit and unequivocal, thus admits n
o room for interpretation but merely application.31 Accordingly, when Jal
osjos was adjudged to be disqualified, a permanent vacancy was created
in the office of the mayor for failure of the elected mayor to qualify fo
r the position. As provided by law, it is the duly-elected vice-mayor of t
he locality who should succeed to the vacated office.
Following the foregoing ratiocination, Cardino’s contention that he shoul
d be proclaimed mayor of Dapitan City, Zamboanga del Norte lacks leg
al basis. That he was the one who received the second highest number
of votes does not entitle him to any right or preference to succeeding t
he vacated post. Unmistakably, he did not have the mandate of the voti
ng populace and this must not be defeated by substituting him, a losin
g candidate, in place of the disqualified candidate who received the maj
ority votes. In Benito v. Commission on Elections,32 we held:
In every election, the people’s choice is the paramount consideration an
d their expressed will must, at all times, be given effect. When the majo
rity speaks and elects into office a candidate by giving him the highest
number of votes cast in the election for that office, no one can be decl
ared elected in his place.
The fact that the candidate who obtained the highest number of votes
dies, or is later declared to be disqualified or not eligible for the office
to which he was elected does not necessarily entitle the candidate who
obtained the second highest number of votes to be declared the winner
of the elective office. For to allow the defeated and repudiated candida
te to take over the mayoralty despite his rejection by the electorate is t
o disenfranchise the electorate without any fault on their part and to un
dermine the importance and meaning of democracy and the people’s ri
ght to elect officials of their choice.33 (Citations omitted)
Further, in Kare v. Commission on Elections,34 we further deliberated on
the reason behind the doctrine of rejection of the second placer. We en
unciated:
Theoretically, the second placer could receive just one vote. In such a c
ase, it would be absurd to proclaim the totally repudiated candidate as
the voters’ choice. Moreover, there are instances in which the votes rece
ived by the second placer may not be considered numerically insignifica
nt. In such situations, if the equation changes because of the disqualifica
tion of an ineligible candidate, voters’ preferences would nonetheless be
so volatile and unpredictable that the results for qualified candidates wo
uld not be self-evident. The absence of the apparent though ineligible w
inner among the choices could lead to a shifting of votes to candidates
other than the second placer. Where an "ineligible" candidate has garner
ed either a majority or a plurality of the votes, by no mathematical for
mulation can the runner-up in the election be construed to have obtain
ed the majority or the plurality of votes cast.35 (Citations omitted)
In other words, a second placer cannot bank on a mere supposition tha
t he could have won the elections had the winning candidate, who was
eventually adjudged disqualified, been excluded in the roster of official c
andidates. It is erroneous to assume that the sovereign will could have
opted for the candidate who received the second highest number of vot
es had they known of the disqualification of the winning candidate early
on. For in such event, they could have cast their votes in favor of anot
her candidate, not necessarily the one who received the second highest
number of votes.
Finally, Cardino impugns the wisdom of the doctrine of rejection of seco
nd placer which was first enunciated in Topacio v. Paredes36 on the gro
und that the doctrine effectively discourages qualified candidates for the
same position for which the disqualified candidate was elected, in initiati
ng a disqualification case because the prospect of being proclaimed to t
he position is nil.37
The doctrine of rejection of the second placer was not conceived to suit
the selfish interests of losing candidates or arm them with a weapon to
retaliate against the prevailing candidates. The primordial consideration i
n adhering to this doctrine is not simply to protect the interest of the o
ther qualified candidates joining the electoral race but more than that, t
o safeguard the will of the people in whom the sovereignty resides. The
doctrine ensures that only the candidate who has the people’s faith an
d confidence will be allowed to run the machinery of the government. It
is a guarantee that the popular choice will not be compromised, even i
n the occasion that the prevailing candidate is eventually disqualified, by
replacing him with the next-in-rank official who was also elected to offic
e by the authority of the electorate.
It is of no moment that, as Cardino surmised, the doctrine of rejection
of the second placer dissuades other qualified candidates in filing a disq
ualification case against the prevailing candidate for lack of expectation
of gain. To justify the abandonment of the doctrine following Cardino’s
asseveration is to reduce its significance and put premium on the interes
t of the candidate rather than of the electorate for whose interest the el
ection is being conducted. The doctrine was for the protection of the p
ublic and not for any private individual’s advantage. Thus, the right to fil
e a petition for disqualification is not exclusive to the opposing candidat
e but may also be pursued by any citizen of voting age, or duly registe
red political party, organization or coalition of political parties,38 who ar
e minded to do so.
In ruling therefore that the provisions of the LGC shall apply in determin
ing the rightful successor to the office of the mayor of Dapitan City, Za
mboanga del Norte, the COMELEC did not commit any grave abuse of
discretion. The application of the provisions of the LGC is the necessary
consequence of Jalosjos' disqualification.
In view of the foregoing disquisitions, I respectfully vote to:
(1) DISMISS G.R. No. 193536 for lack of merit.
(2) MODIFY the Resolution dated February 22, 2011 of this Court in G.R.
No. 193237. The Resolutions dated May 10, 2010 and August 11, 2010 of
4 Id. at 360.
the COMELEC in SPA No. 09-076 (DC) should be AFFIRMED with MODIF
ICATION in that Dominador G. Jalosjos, Jr. should be declared disqualifie
d to run as Mayor of Dapitan City, Zamboanga del Norte and the provi 5 Id. at 359-360.
sions of the Local Government Code on succession be applied in filling
the vacated office.
6 Id. at 373-393.

BIENVENIDO L. REYES
7 Id. at 57-58.
Associate Justice

8 Id. at 59.

Footnotes
9 Id. at 47.

1 G.R. No. 193237 rollo, pp. 40-48.

10 Id. at 53.

2 Id. at 49-56.
11 Art. VI, Sec. 3. No person shall be a Senator unless he is a natural-b
orn citizen of the Philippines, and, on the day of the election, is at least
3 Id. at 355-360. thirty-five years of age, able to read and write, a registered voter, and
a resident of the Philippines for not less than two years immediately pre
ceding the day of the election.
15 Sec. 39. Qualifications. – (a) An elective local official must be a cit
izen of the Philippines; a registered voter in the barangay, municipality,
city, or province or, in the case of a member of the sangguniang panlal
12 Art. VI, Sec. 6. No person shall be a Member of the House of Repre
awigan, sangguniang panlungsod, or sangguniang bayan, the district whe
sentatives unless he is a natural-born citizen of the Philippines and, on t
re he intends to be elected; a resident therein for at least one (1) year i
he day of the election, is at least twenty-five years of age, able to read
mmediately preceding the day of the election; and able to read and wri
and write, and, except the party-list representatives, a registered voter in
te Filipino or any other local language or dialect.
the district in which he shall be elected, and a resident thereof for a p
eriod of not less than one year immediately preceding the day of the el
ection.
(b) Candidates for the position of governor, vice-governor, or member o
f the sangguniang panlalawigan, or mayor, vice-mayor or member of th
e sangguniang panlungsod of highly urbanized cities must be at least t
13 Art. VII, Sec. 2. No person may be elected President unless he is a n
wenty-three (23) years of age on election day.
atural-born citizen of the Philippines, a registered voter, able to read an
d write, at least forty years of age on the day of the election, and a re
sident of the Philippines for at least ten years immediately preceding suc
(c) Candidates for the position of mayor or vice-mayor of independent c
h election.
omponent cities, component cities, or municipalities must be at least twe
nty-one (21) years of age on election day.

14 Art. VII, Sec. 3. There shall be a Vice-President who shall have the sa
me qualifications and term of office and be elected with and in the sam
(d) Candidates for the position of member of the sangguniang panlungs
e manner as the President. He maybe removed from office in the same
od or sangguniang bayan must be at least eighteen (18) years of age o
manner as the President. x x x.
n election day.
 992, 211 SCRA 297, Frivaldo v. COMELEC, 327 Phil. 521 1996), Republic v.
De la Rosa, G.R. No. 104654, June 6, 1994, 232 SCRA 785.
(e) Candidates for the position of punong barangay or member of the s
angguniang barangay must be at least eighteen (18) years of age on ele
ction day.
19 G.R. No. 179695, December 18, 2008, 574 SCRA 782.

(f) Candidates for the sangguniang kabataan must be at least fifteen (15)
20 Id. at 792-796.
years of age but not more than twenty-one (21) years of age on electi
on day.

21 Santos v. Court of Appeals, 377 Phil. 642, 652 (1999), citing Francisco
v. CA, 313 Phil. 241, 254(1995).
16 Justimbaste v. Commission on Elections, G.R. No. 179413, November 2
8, 2008, 572 SCRA 736, 740.

22 363 Phil. 573 (1999).

17 Salcedo II v. COMELEC, 371 Phil. 377, 389 (1999).

23 Id. at 583-584.

18 Gonzalez v. Commission on Elections, G.R. No. 192856, March 8, 2011,

644 SCRA 761, 775-776, citing Salcedo II v. Commission on Elections, su 24 214 Phil. 126 (1984).
pra note 37, at 390, citing Romualdez-Marcos v. Commission on Election
s, G.R. No. 119976, September 18, 1995, 248 SCRA 300, Abella v. Larraza
bal, 259 Phil. 992 (1989), Aquino v. Commission on Elections, 318 Phil. 4 25 Id. at 132, citing Commonwealth ex rel. Paige vs. Smith, 198 A. 812,
67 (1995), Labo, Jr. v. Commission on Elections, G.R. No. 105111, July 3, 1 813, 815, l30 Pa. Super. 536.
26 Velasco v. Commission on Elections, G.R. No. 180051, December 24, 2 34 G.R. No. 157526, April 28, 2004, 428 SCRA 264.
008, 575 SCRA 590, 602.

35 Id. at 274-275.
27 Guiang v. Co, 479 Phil. 473, 480 (2004), citing Ty v. Court of Appeal
s, 408 Phil. 792 (2001).
36 23 Phil. 238 (1912).

28 G.R. No. 193536 rollo, pp. 11-12.

37 G.R. No. 193536 rollo, pp. 12-15.

29 G.R. 163776, April 24, 2007, 522 SCRA 23.

38 The 1993 COMELEC Rules of Procedure, Rule 25, Section 1.

30 Id. at 45.

The Lawphil Project - Arellano Law Foundation

31 Sunga v. COMELEC, 351 Phil. 310, 327 (1998).

CONCURRING OPINION
32 235 SCRA 436 (1994).

BERSAMIN, J.:
33 Id. at 441-442.
 oth Resolutions declared Jalosjos ineligible to run as Mayor of Dapitan C
ity, Zamboanga Del Norte in the May 10, 2010 national and local electio
The all-important concern here is the effect of the conviction for robber
ns pursuant to Section 40(a) of The Local Government Code (LGC), viz:
y by final judgment of and the probation allegedly granted to Dominad
or G. Jalosjos, petitioner in G.R. No. 193237, on his candidacy for the po
sition of Mayor of Dapitan City; and the determination of the rightful pe
Section 40. Disqualifications. – The following persons are disqualified fro
rson to assume the contested elective position upon the ineligibility of J
m running for any elective local position:
alosjos.

(a) Those sentenced by final judgment for an offense involving moral tur
I easily CONCUR with the insightful opinion delivered for the Majority by
pitude or for an offense punishable by one (1) year or more of imprison
our esteemed colleague, Senior Associate Justice Carpio. As I see it, the
ment, within two (2) years after serving sentence; (b) Those removed fro
se consolidated cases furnish to the Court the appropriate occasion to l
m office as a result of an administrative case;
ook again into the candidacy of a clearly ineligible candidate garnering t
he majority of the votes cast in an election and being proclaimed as th
e winning candidate to the detriment of the valid candidacy of his rival xxx
who has all the qualifications and suffers none of the disqualifications. T
he ineligible candidate thereby mocks the sanctity of the ballot and redu
ces the electoral exercise into an expensive joke. Additionally, the COMELEC cancelled Jalosjos’ certificate of candidacy (Co
C) on the ground of material misrepresentation made therein.

G.R. No. 193237 is a special civil action for certiorari brought by Jalosjos
to assail the Resolution dated August 11, 2010,1 whereby the Commission Jalosjos charges the COMELEC En Banc with committing grave abuse of
on Elections (COMELEC) En Banc affirmed the Resolution dated May 10, discretion when it ruled that he was disqualified to run as Mayor of Da
20102 issued by the COMELEC First Division in SPC No. 09-076 (DC). B pitan City in view of the revocation of his probation; and when it cancel
led his CoC without finding that he had deliberately misrepresented his
qualifications to run as Mayor.
On December 6, 2009, private respondent Agapito J. Cardino filed a Peti
tion to Deny Due Course to and Cancel Certificate of Candidacy of petit
ioner before respondent Comelec. Petitioner and private respondent wer
G.R. No. 193536 is a special civil action for certiorari commenced by Ag
e both candidates for Mayor of Dapitan City, Zamboanga del Norte duri
apito J. Cardino, the only other candidate against Jalosjos, in order to se
ng the 2010 Elections. Private respondent alleged that petitioner misrepre
t aside the COMELEC En Banc’s Resolution dated August 11, 2010,3 to th
sented in his CoC that he was eligible to run for Mayor, when, in fact,
e extent that the Resolution directed the application of the rule of succe
he was not, since he had been convicted by final judgment of robbery,
ssion as provided in the LGC. Cardino challenges the COMELEC En Banc
a crime involving moral turpitude, and he has failed to serve a single d
’s application of the rule of succession under the LGC, contending that
ay of his sentence.
he should be considered elected as Mayor upon the cancellation of Jalo
sjos’ CoC because he had been the only bona fide candidate for the po
sition of Mayor of Dapitan City.4 Cardino insists that the cancellation of
The final judgment for robbery stems from the following factual anteced
Jalosjos’ CoC retroacted to the date of its filing, thereby reducing him in
ents:
to a non-candidate.5

On April 30, 1970, the then Circuit Criminal Court (now Regional Trial C
The special civil actions were consolidated on March 29, 2011.6
ourt RTC) of Cebu City convicted petitioner of the crime of robbery and
sentenced him to suffer the penalty of one (1) year, eight (8) months,
and twenty (20) days of prision correccional, as minimum, to four (4) ye
Antecedents
ars, two (2) months, and one (1) day of prision mayor, as maximum. Pet
itioner appealed his conviction to the Court of Appeals (CA). He later ab

The antecedents are narrated in the Resolution the Court has promulgat andoned the appeal, which was thus dismissed on August 9, 1973. Some

ed on February 22, 2011 in G.R. No. 193237, to wit: time in June 1985, petitioner filed a petition for probation.
 At this time, the prosecution also decided to stir the case. It filed a mot
ion for the issuance of an alias warrant of arrest. The RTC granted the
On July 9, 1985, Gregorio F. Bacolod (Bacolod), who was then the Super
motion on January 16, 2004 and issued an Order for the Issuance of an
vising Probation Officer of the Parole and Probation Office, recommende
Alias Warrant of Arrest against petitioner.
d to the RTC the grant of petitioner's application for probation. On the
same day, the RTC issued an Order granting the probation for a period
of one year subject to the terms and conditions stated therein.
On January 23, 2004, Bacolod submitted to the RTC a Termination Repo
rt stating that petitioner had fulfilled the terms and conditions of his pro
bation and, hence, his case should be deemed terminated. On the same
However, on August 8, 1986, Bacolod filed a Motion for Revocation of t
day, petitioner filed an Urgent Motion to Reconsider its January 16, 200
he probation on the ground that petitioner failed to report to him, in vi
4 Order and to Lift the Warrant of Arrest.
olation of the condition of the probation. Accordingly, the RTC issued a
n Order dated March 19, 1987, revoking the probation and ordering the
issuance of a warrant of arrest. A warrant of arrest was issued but remai
On January 29, 2004, James A. Adasa (Adasa), petitioner's opponent for
ned unserved.
the mayoralty position during the 2004 Elections, filed a Petition for Dis
qualification against petitioner, based on Section 40(a) of Republic Act (R
.A.) No. 7160, the Local Government Code of 1991, on the ground that t
More than 16 years later, or on December 19, 2003, petitioner secured a
he latter has been convicted of robbery and failed to serve his sentence
Certification from the Central Office of the Parole and Probation Admini
. Adasa later amended his petition to include Section 40(e) of the same
stration (PPA), which was signed by Bacolod, now Administrator of the P
law, claiming that petitioner is also a "fugitive from justice."
PA, attesting that petitioner had fulfilled the terms and conditions of his
probation.

Meanwhile, acting on petitioner's urgent motion, the RTC issued an Ord

er dated February 5, 2004, declaring that petitioner had duly complied
with the order of probation, setting aside its January 16, 2004 Order, an
d recalling the warrant of arrest.
Thus, in resolving Adasa's petition, the Comelec Investigating Officer cite
d the February 5, 2004 RTC Order and recommended that petitioner be
declared qualified to run for Mayor. In the Resolution dated August 2, 2
004, the Comelec-Second Division adopted the recommendation of the I
nvestigating Officer and denied the petition for disqualification. It held th
at petitioner has amply proven that he had complied with the requireme
nts of his probation as shown by the Certification from the PPA dated
December 19, 2003, which was the basis of the February 5, 2004 RTC O
rder.
Adasa filed a motion for reconsideration, which the Comelec En Banc de
nied on December 13, 2006.
Adasa then filed a petition for certiorari with the Supreme Court (G.R. N
o. 176285). In a Resolution dated June 3, 2008, the Court dismissed the
petition for being moot and academic, the three-year term of office havi
ng expired.
In a related incident, Bacolod, who issued the Certification dated Decem
ber 19, 2003 to petitioner, was charged with violation of Section 3(e) of
R.A. No. 3019 and falsification of public document under the Revised Pe
nal Code for issuing said Certification. On September 29, 2008, the Sand
iganbayan rendered a decision finding Bacolod guilty as charged. It held
that the Certification he issued was definitely false because petitioner di
d not actually fulfill the conditions of his probation as shown in the RTC
Order dated March 19, 1987, which states that the probation was being
revoked. Hence, at the time the Certification was issued, there was no l
onger a probation order to be fulfilled by petitioner.
On May 10, 2010, the elections were held, and petitioner won as Mayor
of Dapitan City.
On the same day, the Comelec-First Division issued a resolution granting
the Petition to Deny Due Course and cancelling petitioner's CoC.The Co
melec noted that the dismissal of Adasa's petition for disqualification hin
ged on the presumption of regularity in the issuance of the PPA Certific
ation dated December 19, 2003, declaring that petitioner had complied
with the requirements of his probation. It opined that, with the decision
of the Sandiganbayan convicting Bacolod, it would now appear that the
December 19, 2003 Certification was fraudulently issued and that petition
er had not actually served his sentence; thus, the ruling on Adasa’s petit
ion is "left with no leg to stand on."
Petitioner moved for reconsideration. The Comelec En Banc denied the
motion in a resolution dated August 11, 2010. The Comelec ordered him
to cease and desist from occupying and discharging the functions of the
Office of the Mayor of Dapitan City.7
Through the Resolution promulgated on February 22, 2011,8 the Court di
smissed G.R. No. 193237, disposing:
WHEREFORE, the foregoing premises considered, the Petition for Certiora
ri is DISMISSED. The assailed Resolution dated May 10, 2010 and Resolut
ion dated August 11, 2010 of the Commission on Elections in SPA Case
No. 09-076 (DC) are hereby AFFIRMED.
On March 22, 2011, Jalosjos moved for the reconsideration of the Februa
ry 22, 2011 Resolution,9 raising the same issues he had averred in his p
etition.
On June 1, 2012, however, Jalosjos filed a manifestation dated May 30, 2
012, informing the Court that he had meanwhile tendered his resignation
as Mayor of Dapitan City effective April 30, 2012; that his resignation h
ad been accepted by Governor Rolando E. Yebes of
Zamboanga del Norte; and that Vice Mayor Patri Bajamunde-Chan had t
aken her oath of office as the new Mayor of Dapitan City.
Disposition
I vote to affirm the disqualification of Jalosjos as a candidate for Mayor
of Dapitan City; and to sustain the Resolution of the COMELEC En Banc
cancelling his CoC.
I agree with the Majority that the rule of succession provided by the LG
C does not apply to determine who should now sit as Mayor of Dapita
n City. Thus, I hold that Cardino, the only other candidate with a valid
CoC for Mayor of Dapitan City in the May 10, 2010 elections, had the le
gal right to assume the position of City Mayor.
Let me specify the reasons for this humble concurrence.
1.
Cardino’s petition in SPA Case No. 09-076 (DC)
was a petition to deny due course to
or cancel a CoC under Section 78 of the
Omnibus Election Code
The COMELEC En Banc correctly held that the petition of Cardino in SP
A Case No. 09-076 (DC) was in the nature of a petition to deny due co
urse to or cancel a CoC under Section 78 of the Omnibus Election Cod
e.
In Salcedo II v. Commission on Elections,10 the Court pointed out that t
here are two remedies available to challenge the qualifications of a cand
idate, namely:
(1) Before the election, pursuant to Section 78 of the Omnibus Election
Code, to wit:
Section 78. Petition to deny due course or to cancel a certificate of can
didacy. - A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by any person exclusively on the gr
ound that any material misrepresentation contained therein as required u
nder Section 74 hereof is false. The petition may be filed at any time n
ot later than twenty-five days from the time of the filing of the certificat
e of candidacy and shall be decided, after due notice and hearing, not l
ater than fifteen days before the election.
and –
(2) After the election, pursuant to Section 253 of the Omnibus Election
Code, viz:
Section 253. Petition for quo warranto. - Any voter contesting the electi
on of any Member of the Batasang Pambansa, regional, provincial, or cit
y officer on the ground of ineligibility or of disloyalty to the Republic of
the Philippines shall file a sworn petition for quo warranto with the Co
mmission within ten days after the proclamation of the results of the ele
ction.
The Court has explained that the only difference between the two reme
dies is that, under Section 78, the qualifications for elective office are mi
srepresented in the CoC, and the proceedings must be initiated prior to
the elections, while under Section 253, a petition for quo warranto may
be brought within ten days after the proclamation of the election results
on either of two grounds, to wit: (a) ineligibility; or (b) disloyalty to the
Republic of the Philippines. A candidate is ineligible under Section 253
if he is disqualified to be elected to office; and he is disqualified if he l
acks any of the qualifications for elective office.11
In describing the nature of a Section 78 petition, the Court said in Ferm
in v. Commission on Elections:12
Lest it be misunderstood, the denial of due course to or the cancellatio
n of the CoC is not based on the lack of qualifications but on a finding
that the candidate made a material representation that is false, which
may relate to the qualifications required of the public office he/she is ru
nning for. It is noted that the candidate states in his/her CoC that he/sh
e is eligible for the office he/she seeks. Section 78 of the OEC, therefor
e, is to be read in relation to the constitutional and statutory provisions
on qualifications or eligibility for public office. If the candidate subseque
ntly states a material representation in the CoC that is false, the COMEL
EC, following the law, is empowered to deny due course to or cancel su
ch certificate. Indeed, the Court has already likened a proceeding under
Section 78 to a quo warranto proceeding under Section 253 of the OEC
since they both deal with the eligibility or qualification of a candidate,
with the distinction mainly in the fact that a "Section 78" petition is filed
before proclamation, while a petition for quo warranto is filed after pro
clamation of the winning candidate.13
Clearly, the only instance where a petition assailing the qualifications of
a candidate for elective office can be filed prior to the elections is when
the petition is filed under Section 78.14
A Section 78 petition is not to be confused with a Section 12 or Section
68 petition. The two are different remedies, are based on different gro
unds, and can result in different eventualities.15 A person who is disquali
fied under either Section 1216 or Section 6817 is prohibited to continue
as a candidate, but a person whose CoC is cancelled or denied due cou
rse under Section 78 is not considered a candidate at all because his st
atus is that of a person who has not filed a CoC.18
 10, 2010 national and local elections on December 1, 2009, a certified tr
ue copy of said COC is hereto attached as Annex B;
To ascertain whether Cardino’s petition against Jaloslos was a petition un
der Section 78, on one hand, or under Section 12 or Section 68, on the
other hand, it is necessary to look at its averments and relief prayed fo
4. Respondent’s certificate of candidacy under oath contains material mis
r, viz:
representation, when he declared under oath, that respondent is eligible
for the office he seeks to be elected, par. 16, COC for Mayor, considerin
g that he is not eligible for the position for which he filed a certificate
1. Petitioner is of legal age, Filipino citizen, married, able to read and wr
of candidacy because respondent was convicted by final judgment by th
ite, a registered voter of Precinct No. 0019A, and is and has been a resi
e Regional Trial Court of Cebu City in Crim. Case No. CCC-XIV-140-Ceb
dent of Dapitan City, continuously since birth up to the present;
u for Robbery, an offense involving moral turpitude and he was sentenc
ed to suffer the penalty of "one (1) year, eight (8) Months and Twenty (

2. Petitioner duly filed his certificate of candidacy for the position of City 20) Days of prision correctional, as minimum, to Four (4) years, Two (2)

Mayor of Dapitan for the election on May 10, 2010, with the Office of months and One (1) day of prision mayor as maximum, a certified true

the Commission on Election, Dapitan City, on December 1, 2009, which copy of which decision is hereto attached as Annex C;

accepted and acknowledged the same, a copy of which is hereto attach

ed as Annex A;
5. Respondent failed to serve even a single day of his sentence. The po
sition requires that a candidate be eligible and/or qualified to aspire for

3. Respondent is also of legal age, a resident of Dapitan City, a register the position as required under Section 74 of the Omnibus Election Code

ed voter of Precinct No. 0187B, likewise filed his certificate of candidacy ;

for the same position with the Office of the Comelec, Dapitan City, as t
hat for which petitioner duly filed a certificate of candidacy, for the May
6. This petition is being filed within the reglementary period of within fiv
e days following the last day for the filing of certificate of candidacy.
 he position for which he filed certificate of candidacy" but also for denyi
ng "due course to such filing and to cancel the certificate of candidacy."
WHEREFORE, it is most respectfully prayed of this Honorable Commissio
Thereby, Cardino’s petition attacked both Jalosjos’ qualifications to run
n:
as Mayor of Dapitan City and the validity of Jalosjos’ CoC based on the
latter’s assertion of his eligibility despite knowledge of his conviction and

1. Declaring respondent, Dominador G. Jalosjos, Jr. ineligible for the posit despite his failure to serve his sentence. The petition was properly cons

ion for which he filed certificate of candidacy and to deny due course t idered to be in all respects as a petition to deny due course to or canc

o such filing and to cancel the certificate of candidacy Annex B; x x x19 el Jalosjos’ CoC under Section 78 of the Omnibus Election Code.

(Emphasis supplied)

2.

The foregoing make it evident that Cardino’s petition contained the esse
ntial allegations pertaining to a Section 78 petition, namely: (a) Jalosjos
Jalosjos materially misrepresented his eligibility as a
made a false representation in his CoC; (b) the false representation refer
red to a material matter that would affect the substantive right of Jalosj candidate for Mayor of Dapitan City; hence, the
os to run in the elections for which he filed his CoC; and (c) Jalosjos m
COMELEC properly cancelled his CoC
ade the false representation with the intention to deceive the electorate
as to his qualification for public office or to deliberately attempt to misl
ead, misinform, or hide a fact that would otherwise render him ineligible The denial of due course to or the cancellation of the CoC under Sectio
.20 n 78 of the Omnibus Election Code involves a finding not only that a p
erson lacked the qualifications but also that he made a material represe
ntation that was false.21 In Mitra v. Commission on Elections,22 the
Worthy of noting is that the specific reliefs prayed for by the petition, s
upra, were not only for the declaration that Jalosjos was "ineligible for t
Court added that there must also be a deliberate attempt to mislead, th
us:
The false representation under Section 78 must likewise be a "deliberate
attempt to mislead, misinform, or hide a fact that would otherwise rend
er a candidate ineligible." Given the purpose of the requirement, it must
be made with the intention to deceive the electorate as to the would-b
e candidate’s qualifications for public office. Thus, the misrepresentation t
hat Section 78 addresses cannot be the result of a mere innocuous mist
ake, and cannot exist in a situation where the intent to deceive is paten
tly absent, or where no deception on the electorate results. The delibera
te character of the misrepresentation necessarily follows from a consider
ation of the consequences of any material falsity: a candidate who falsifi
es a material fact cannot run; if he runs and is elected, he cannot serve;
in both cases, he can be prosecuted for violation of the election laws.2
3 nal judgment for an offense involving moral turpitude or for an offense
A petition for the denial of due course to or cancellation of a CoC that
is short of the requirements should not be granted.
Based on the antecedents narrated herein, I consider to be warranted th
e COMELEC En Banc’s conclusion to the effect that, firstly, his conviction
for robbery absolutely disqualified Jalosjos from running as Mayor of D
apitan City, and, secondly, Jalosjos deliberately misrepresented his eligibili
ty when he filed his CoC.
First of all, the records show that the erstwhile Circuit Criminal Court in
Cebu City had convicted Jalosjos of the felony of robbery on April 30, 1
970 and had sentenced him to suffer the indeterminate penalty of one
year, eight months and 20 days of prision correccional, as minimum, to
four years, two months and one day of prision mayor, as maximum. Alt
hough he had appealed, his appeal was turned down on August 9, 1973
. In June 1985, or more than 15 years after his conviction by the Circuit
Criminal Court, he filed a petition for probation.
Pursuant to Section 40(a) of the LGC,24 his having been sentenced by fi
punishable by one year or more of imprisonment rendered Jalosjos ineli
gible to run for Mayor of Dapitan City. There is no quibbling about the
felony of robbery being an offense involving moral turpitude. As the Co
urt has already settled, "embezzlement, forgery, robbery, and swindling a
re crimes which denote moral turpitude and, as a general rule, all crime
s of which fraud is an element are looked on as involving moral turpitu
de."25

Anent moral turpitude for purposes of the election laws, the Court has s
tated in Teves v. Commission on Elections:26
Moral turpitude has been defined as everything which is done contrary t
o justice, modesty, or good morals; an act of baseness, vileness or depr
avity in the private and social duties which a man owes his fellowmen,
or to society in general.
x x x
Thus, in Dela Torre v. Commission on Elections, the Court clarified that:
Not every criminal act, however, involves moral turpitude. It is for this re
ason that "as to what crime involves moral turpitude, is for the Supreme
Court to determine." In resolving the foregoing question, the Court is g
uided by one of the general rules that crimes mala in se involve moral
turpitude, while crimes mala prohibita do not, the rationale of which was
set forth in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself, regardless of th
e fact that it is punishable by law or not. It must not be merely mala p
rohibita, but the act itself must be inherently immoral. The doing of the
act itself, and not its prohibition by statute fixes the moral turpitude. Mo
ral turpitude does not, however, include such acts as are not of themsel
ves immoral but whose illegality lies in their being positively prohibited."
27
It is relevant to mention at this juncture that the ineligibility of a candid
ate based on his conviction by final judgment for a crime involving mor
al turpitude is also dealt with in Section 12 of the Omnibus Election Cod
e, which specifically states: –
Section 12. Disqualifications. – Any person who has been declared by co
mpetent authority insane or incompetent, or has been sentenced by fina
l judgment for subversion, insurrection, rebellion, or for any offense for
which he has been sentenced to a penalty of more than eighteen mont
hs or for a crime involving moral turpitude, shall be disqualified to be a
candidate and to hold any office, unless he has been given plenary par
don or granted amnesty.
This disqualifications to be a candidate herein provided shall be deemed
removed upon the declaration by competent authority that said insanity
or incompetence had been removed or after the expiration of a period
of five years from his service of sentence, unless within the same perio
d he again becomes disqualified. (Emphasis supplied.)
Pursuant to Section 12, Jalosjos remained ineligible to run for a public o
ffice considering that he had not been granted plenary pardon for his c
riminal offense. The expiration of the five-year period defined in Section
12 counted from his service of sentence did not affect the ineligibility, it
being indubitable that he had not even served his sentence at all.
It is relevant to clarify, moreover, that the five-year period defined in Se
ction 12 is deemed superseded by the LGC, whose Section 40(a) express
ly sets two years after serving sentence as the period of disqualification
in relation to local elective positions. To reconcile the incompatibility bet
ween Section 12 and Section 40(a), the Court has discoursed in Magno
v. Commission on Elections:28
It should be noted that the Omnibus Election Code (BP 881) was approv
ed on December 3, 1985 while the Local Government Code (RA 7160) to
ok effect on January 1, 1992. It is basic in statutory construction that in
case of irreconcilable conflict between two laws, the later enactment mus
t prevail, being the more recent expression of legislative will. Legis poste
riores priores contrarias abrogant. In enacting the later law, the legislatur
e is presumed to have knowledge of the older law and intended to cha
nge it. Furthermore, the repealing clause of Section 534 of RA 7160 or t
he Local Government Code states that:
(f) All general and special laws, acts, city charters, decrees, executive ord
ers, proclamations and administrative regulations, or part or parts thereof
which are inconsistent with any provisions of this Code are hereby repe
aled or modified accordingly.
In accordance therewith, Section 40 of RA 7160 is deemed to have repe
aled Section 12 of BP 881. Furthermore, Article 7 of the Civil Code provi
des that laws are repealed only by subsequent ones, and not the other
way around. When a subsequent law entirely encompasses the subject
matter of the former enactment, the latter is deemed repealed.
In David vs. COMELEC, we declared that RA 7160 is a codified set of la
ws that specifically applies to local government units. Section 40 thereof
specially and definitively provides for disqualifications of candidates for el
ective local positions. It is applicable to them only. On the other hand,
Section 12 of BP 881 speaks of disqualifications of candidates for any pu
blic office. It deals with the election of all public officers. Thus, Section 4
0 of RA 7160, insofar as it governs the disqualifications of candidates for
local positions, assumes the nature of a special law which ought to pre
vail.
The intent of the legislature to reduce the disqualification period of can
didates for local positions from five to two years is evident. The cardinal
rule in the interpretation of all laws is to ascertain and give effect to t
he intent of the law. The reduction of the disqualification period from fi
ve to two years is the manifest intent. (Bold emphases supplied)29
Regardless of whether the period applicable was five years or two years,
Jalosjos was still ineligible to run for any public office in any election b
y virtue of his having been sentenced to suffer prision mayor. That sent
ence perpetually disqualified him from running for any elective office co
nsidering that he had not been meanwhile granted any plenary pardon
by the Chief Executive.
Indeed, in accordance with the express provisions of the Revised Penal
Code, the penalty of prision mayor imposed on Jalosjos for the robbery
conviction carried the accessory penalties of temporary absolute disqualifi
cation and of perpetual special disqualification from the right of suffrage.
The effects of the accessory penalty of temporary absolute disqualificati
on included the deprivation during the term of the sentence of the righ
t to vote in any election for any popular elective office or to be elected
to such office.30 The effects of the accessory penalty of perpetual speci
al disqualification from the right of suffrage was to deprive the convict
perpetually of the right to vote in any popular election for any public of
fice or to be elected to such office; he was further prohibited from hold
ing any public office perpetually.31 These accessory penalties would rema
in even though the convict would be pardoned as to the principal penal
ty, unless the pardon expressly remitted the accessory penalties.32
Secondly, Jalosjos had no legal and factual bases to insist that he beca
me eligible to run as Mayor of Dapitan City because he had been decla
red under the RTC order dated February 5, 2004 to have duly complied
with the order of his probation. His insistence has no merit whatsoever.
Probation, by its legal definition, is only "a disposition under which a def
endant, after conviction and sentence, is released subject to conditions i
mposed by the court and to the supervision of a probation officer."33 T
he grant of probation cannot by itself remove a person’s disqualification
to be a candidate or to hold any office due to its not being included a
mong the grounds for the removal of the disqualification under Section
12 of the Omnibus Election Code, supra. Although the original text of S
ection 4 of Presidential Decree No. 968 (Probation Law of 1976) stated t
hat: -
xxx an application for probation shall be filed with the trial court, with n
otice to the appellate court if an appeal has been taken from the sente
nce of conviction. The filing of the application shall be deemed a waiver
of the right to appeal, or the automatic withdrawal of a pending appe
al.
the amendment of Presidential Decree No. 968 by Presidential Decree N
o. 199034 has made more explicit that probation only suspends the exec
ution of the sentence under certain conditions set by the trial court, viz:
Section 4. Grant of Probation. — Subject to the provisions of this Decre
e, the trial court may, after it shall have convicted and sentenced a defe
ndant, and upon application by said defendant within the period for per
fecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and condi
tions as it may deem best; Provided, That no application for probation s
hall be entertained or granted if the defendant has perfected the appeal
from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imp
risonment or a fine only. An application for probation shall be filed with
the trial court. The filing of the application shall be deemed a waiver o
f the right to appeal.
An order granting or denying probation shall not be appealable.
For sure, probation or its grant has not been intended to relieve the co
nvict of all the consequences of the sentence imposed on his crime invo
lving moral turpitude. Upon his final discharge as a probationer, the con
vict is restored only to "all civil rights lost or suspended as a result of h
is conviction." This consequence is according to the second paragraph of
Section 16 of the Probation Law of 1976, which states: "The final dischar
ge of the probationer shall operate to restore to him all civil rights lost
or suspended as a result of his conviction and to fully discharge his liab
ility for any fine imposed as to the offense for which probation was gra
nted." There is no question that civil rights are distinct and different fro
m political rights, like the right of suffrage or the right to run for a pub
lic office.
Even assuming that Jalosjos had been validly granted probation despite
his having appealed his conviction (considering that the amendment stati
ng that an appeal barred the application for probation took effect only
on October 5, 1985 but his application for probation was earlier made i
n June 1985), his disqualification pursuant to Section 40(a) of the LGC w
ould have still attached simply because the legal effect of a validly-grant
ed probation was only to suspend the execution of sentence,35 not to
obliterate the consequences of the sentence on his political rights.
In reality, Jalosjos could not even legitimately and sincerely rely on his s
upposed final discharge from probation. He was fully aware that he did
not at all satisfy the conditions of his probation,36 contrary to what Sect
ion 10 and Section 16 of the Probation Law definitely required, to wit:
Section 10. Conditions of Probation. — Every probation order issued by
the court shall contain conditions requiring that the probationer shall:
(a) present himself to the probation officer designated to undertake his
supervision at such place as may be specified in the order within sevent
y-two hours from receipt of said order; .
(b) report to the probation officer at least once a month at such time a
nd place as specified by said officer. x x x
Section 16. Termination of Probation. — After the period of probation a
nd upon consideration of the report and recommendation of the probati
on officer, the court may order the final discharge of the probationer u
pon finding that he has fulfilled the terms and conditions of his probati
on and thereupon the case is deemed terminated.
The final discharge of the probationer shall operate to restore to him all
civil rights lost or suspend as a result of his conviction and to fully dis
charge his liability for any fine imposed as to the offense for which pro
bation was granted.
The probationer and the probation officer shall each be furnished with a
copy of such order.
The records indicate that the RTC revoked the order of probation on M
arch 19, 1987 upon a motion filed by one Gregorio Bacolod, the Supervi
sing Probation Officer who had recommended the approval of the appli
cation for probation. The revocation was premised on Jalosjos’ failure to
report to Bacolod in violation of the conditions of his probation. Followi
ng the revocation, the RTC issued a warrant for the arrest of Jalosjos, b
ut the warrant has remained unserved until this date. With the revocatio
n of his probation and in the absence of an order of final discharge, Jal
osjos was still legally bound to serve the sentence for robbery.
I point out for emphasis that the February 5, 2004 order of the RTC de
claring that Jalosjos had duly complied with the order of probation dese
rved no consideration for the following reasons, namely: (a) the certificati
on attesting that Jalosjos had fulfilled the terms and conditions of his pr
obation was secured by and issued to him only on December 19, 2003,
more than 16 years from the issuance of the RTC order revoking his pr
obation; (b) the certification was issued by Bacolod, the same Supervisin
g Probation Officer who had moved for the revocation of the probation;
and (c) the Sandiganbayan later on found the certification to have bee
n falsified by Bacolod considering that at the time of its issuance there
was no longer a probation order to be fulfilled by Jalosjos.37
And, thirdly, Jalosjos argues that he acted in good faith in representing i
n his CoC that he was qualified to run as Mayor of Dapitan City,38 havi
ng relied on the previous ruling of the COMELEC adjudging him eligible
to run and to be elected as Mayor of Dapitan City;39 and that it cann
ot then be said that he deliberately attempted to mislead or to deceive
the electorate as to his eligibility.
The argument is devoid of merit.
The COMELEC Resolution dated August 2, 2004, on which Jalosjos has a
nchored his claim of good faith, was rendered on the basis of the RTC
order dated February 5, 2004 that had declared Jalosjos to have sufficie
ntly complied with the conditions of his probation based on the certifica
tion dated December 19, 2003. As earlier emphasized, however, the issua
nce of the certification dated December 19, 2003 that became the basis
for the RTC order dated February 5, 2004 proved to be highly irregular,
and culminated in the Sandiganbayan convicting Bacolod of falsification i
n relation to his issuance of the certification.
Clearly, Jalosjos’ reliance on the COMELEC Resolution dated August 2, 2
004 was definitely not in good faith, but was contrary to every juridical
conception of good faith, which, according to Heirs of the Late Joaquin
Limense v. Vda. De Ramos,40 is –
xxx an intangible and abstract quality with no technical meaning or statu
tory definition; and it encompasses, among other things, an honest belie
f, the absence of malice and the absence of a design to defraud or to
seek an unconscionable advantage. An individual’s personal good faith is
a concept of his own mind and, therefore, may not conclusively be det
ermined by his protestations alone. It implies honesty of intention, and f
reedom from knowledge of circumstances which ought to put the holder
upon inquiry. The essence of good faith lies in an honest belief in the
validity of one’s right, ignorance of a superior claim, and absence of int
ention to overreach another.41
In contrast, Jalosjos had knowledge of the circumstances surrounding the
finality of his conviction and the revocation of his probation. He never
denied and cannot now dispute his failure to comply with the conditions
of his probation, for he fully knew that he had never duly reported to
Bacolod during the period of his probation. The following findings rende
red by the Sandiganbayan in its Decision dated September 29, 2008 con
victing Bacolod of falsification of a public document and violation of Re
public Act No. 3019 sustained the fact that Jalosjos had been unable to
fulfil the terms of his probation: –
xxx The subject Certification of the accused [Bacolod] attesting that "as
per records" Mr. Jalosjos "has fulfilled the terms and conditions of his pr
obation and his case is deemed terminated," is nevertheless false becaus
e the PPA Central Office had no records of an order of final discharge i
ssued by the court to support the facts narrated in the subject certificati
on that Mr. Jalosjos has fulfilled the terms and conditions of his probati
on and that his case is deemed terminated.
Besides, the accused failed to submit any oral or documentary evidence
to establish that at the time he issued the subject Certification on Dece
mber 19, 2003, Mr. Jalosjos has already fulfilled the terms and conditions
of his probation. His belated submission on January 23, 2004 of a term
ination report dated January 12, 2004 does not cure or remedy the falsit
y of the facts narrated in the subject certification. Rather, it strengthens
the theory of the prosecution that at the time the accused issued the s
ubject Certification on December 19, 2003, probationer Jalosjos had not
yet fulfilled the terms and conditions of his probation because, if it were
so, his submission of the said termination report would no longer be n
ecessary. Since the PPA Central Office had no record of a court order o
f final discharge of the probationer from probation, then he should have
been truthful and certified to that effect.42
Nor could Jalosjos even feign a lack of awareness of the issuance of the
warrant for his arrest following the revocation of his probation by the
RTC on March 19, 1987. This is because he filed an Urgent Motion for R
econsideration and to Lift Warrant of Arrest in the RTC upon obtaining
the falsified certification issued by Bacolod.43 The absurdity of his claim
of good faith was well-known even to him because of his possession at
the time he filed his CoC of all the information material to his convictio
n and invalid probation. Being presumed to know the law, he knew that
his conviction for robbery and his failure to serve his sentence rendere
d him ineligible to run as Mayor of Dapitan City. As a result, his affirma
tion of his eligibility in his CoC was truly nothing but an act tainted wit
h bad faith.
3.
Jalosjos did not file a valid CoC for the May 10,
2010 elections; not being an official candidate,
votes cast in his favor are considered stray
The filing of a CoC within the period provided by law is a mandatory r
equirement for any person to be considered a candidate in a national o
r local election. This is clear from Section 73 of the Omnibus Election C
ode, to wit:
Section 73. Certificate of candidacy — No person shall be eligible for an
y elective public office unless he files a sworn certificate of candidacy wi
thin the period fixed herein.
In turn, Section 74 of the Omnibus Election Code specifies the contents
of a CoC, viz:
Section 74. Contents of certificate of candidacy.—The certificate of candi
dacy shall state that the person filing it is announcing his candidacy for
the office stated therein and that he is eligible for said office; if for Me
mber of the Batasang Pambansa, the province, including its component
cities, highly urbanized city or district or sector which he seeks to repres
ent; the political party to which he belongs; civil status; his date of birth;
residence; his post office address for all election purposes; his professio
n or occupation; that he will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto; that he
will obey the laws, legal orders, and decrees promulgated by the duly c
onstituted authorities; that he is not a permanent resident or immigrant
to a foreign country; that the obligation imposed by his oath is assume
d voluntarily, without mental reservation or purpose of evasion; and that
the facts stated in the certificate of candidacy are true to the best of hi
s knowledge. x x x (Emphasis supplied)
A CoC, according to Sinaca v. Mula,44 "is in the nature of a formal ma
nifestation to the whole world of the candidate’s political creed or lack
of political creed. It is a statement of a person seeking to run for a pu
blic office certifying that he announces his candidacy for the office ment
ioned and that he is eligible for the office, the name of the political par
ty to which he belongs, if he belongs to any, and his post-office addres
s for all election purposes being as well stated."
Accordingly, a person’s declaration of his intention to run for public offic
e and his declaration that he possesses the eligibility for the position he
seeks to assume, followed by the timely filing of such declaration, const
itute a valid CoC that render the declarant an official candidate.
In Bautista v. Commission on Elections,45 the Court stated that a cancell
ed CoC does not give rise to a valid candidacy. A person without a vali
d CoC cannot be considered a candidate in much the same way as any
person who has not filed any CoC cannot at all be a candidate.46
Hence, the cancellation of Jalosjos’ CoC rendered him a non-candidate i
n the May 10, 2010 elections.
But, even without the cancellation of his CoC, Jalosjos undeniably posses
sed a disqualification to run as Mayor of Dapitan City. The fact of his in
eligibility was by itself adequate to invalidate his CoC without the necess
ity of its express cancellation or denial of due course by the COMELEC.
Under no circumstance could he have filed a valid CoC. The accessory p
enalties that inhered to his penalty of prision mayor perpetually disqualifi
ed him from the right of suffrage as well as the right to be voted for i
n any election for public office. The disqualification was by operation of
a mandatory penal law. For him to be allowed to ignore the perpetual
disqualification would be to sanction his lawlessness, and would permit h
im to make a mockery of the electoral process that has been so vital to
our democracy. He was not entitled to be voted for, leaving all the vot
es cast for him stray and legally non-existent.
In contrast, Cardino, the only remaining candidate, was duly elected and
should legally assume the position of Mayor of Dapitan City. According
to the Court in Santos v. Commission on Elections:47
Anent petitioner’s contention that his disqualification does not ipso facto
warrant the proclamation of private respondent, We find the same unten
able and without legal basis since votes cast for a disqualified candidate
fall within the category of invalid non-existent votes because a disqualifie
d candidate is no candidate at all in the eyes of the law. Section 155 of
the Election Code provides —
"Any vote cast in favor of a candidate who has been disqualified shall b
e considered as stray and shall not be counted but it shall not invalidat
e the ballot." (Italics supplied)
Considering that all the votes garnered by the petitioner are stray votes
and therefore should not be counted, We find no error, much less any
grave abuse of discretion on the part of the Comelec, in proclaiming pri
vate respondent Ricardo J. Rufino the duly elected Mayor of Taytay, Riza
l, he having obtained the highest number of votes as appearing and cer
tified in the canvass of votes submitted by the Municipal Board of Canv
assers petitioner having been legally disqualified. Such a proclamation fin
ds legal support from the case of Ticzon vs. Comelec 103 SCRA 671, wh
erein disqualified candidate Ticzon likewise questioned the legality of the
Resolution of the Comelec which not only disqualified him but further
proclaimed Dizon, the only candidate left for the disputed position, and
this Court upheld the proclamation of Cesar Dizon as Mayor of San Pab
lo City.48
Although the doctrine of the sovereign will has prevailed several times i
n the past to prevent the nullification of an election victory of a disquali
fied candidate, or of one whose CoC was cancelled, the Court should n
ot now be thwarted from enforcing the law in its letter and spirit by an
y desire to respect the will of the people expressed in an election. The
objective of prescribing disqualifications in the election laws as well as in
the penal laws is obviously to prevent the convicted criminals and the
undeserving from running and being voted for. Unless the Court leads t
he way to see to the implementation of the unquestionable national poli
cy behind the prescription of disqualifications, there would inevitably co
me the time when many communities of the country would be electing
convicts and misfits. When that time should come, the public trust woul
d be trivialized and the public office degraded. This is now the appropri
ate occasion, therefore, to apply the law in all its majesty in order to en
force its clear letter and underlying spirit. Thereby, we will prevent the el
ectoral exercise from being subjected to mockery and from being render
ed a travesty.
In closing, I consider to be appropriate and fitting the Court’s following
pronouncement in Velasco v. Commission on Elections:49
x x x We have ruled in the past that a candidate’s victory in the electio
n may be considered a sufficient basis to rule in favor of the candidate
sought to be disqualified if the main issue involves defects in the candid
ate’s certificate of candidacy. We said that while provisions relating to ce
rtificates of candidacy are mandatory in terms, it is an established rule o
f interpretation as regards election laws, that mandatory provisions requir
ing certain steps before elections will be construed as directory after the
elections, to give effect to the will of the people. We so ruled in Quiz
on v. COMELEC and Saya-ang v. COMELEC.
The present case perhaps presents the proper time and opportunity to f
ine-tune our above ruling. We say this with the realization that a blanke
t and unqualified reading and application of this ruling can be fraught
with dangerous significance for the rule of law and the integrity of our
elections. For one, such blanket/unqualified reading may provide a way
around the law that effectively negates election requirements aimed at p
roviding the electorate with the basic information to make an informed
choice about a candidate’s eligibility and fitness for office.
The first requirement that may fall when an unqualified reading is made
is Section 39 of the LGC which specifies the basic qualifications of local
government officials. Equally susceptive of being rendered toothless is Se
ction 74 of the OEC that sets out what should be stated in a COC. Sect
ion 78 may likewise be emasculated as mere delay in the resolution of t
he petition to cancel or deny due course to a COC can render a Sectio
n 78 petition useless if a candidate with false COC data wins. To state t
he obvious, candidates may risk falsifying their COC qualifications if they
know that an election victory will cure any defect that their COCs may
have. Election victory then becomes a magic formula to bypass election
eligibility requirements.
In the process, the rule of law suffers; the clear and unequivocal legal c
ommand, framed by a Congress representing the national will, is rendere
d inutile because the people of a given locality has decided to vote a c
andidate into office despite his or her lack of the· qualifications Congres
s has determined to be necessary.
In the present case, Velasco is not only going around the law by his cla
im that he is registered voter when he is not, as has been determined
by a court in a final judgment. Equally important is that he has made a
material misrepresentation under oath in his COC regarding his qualificat
ion. For these violations, he must pay the ultimate price - the nullificatio
ays tilt in favor of upholding and enforcing the law. To rule otherwise is
to slowly gnaw at the rule of law. 50
ACCORDINGLY, I JOIN the Majority in granting the petition in G.R. No. 1

n of his election victory. He may also harve to account in a criminal co 93536; in dismissing the petition in G.R. No. 193237 for lack of merit; an

urt for making a false statement under oath, but this is a matter for the d in affirming the COMELEC En Bane Resolution dated February 22, 2011

proper authorities to decide upon.
We distinguish our ruling in this case from others that we have made in
the past by the clarification that COC defects beyond matters of form
and that involve material misrepresentations cannot avail of the benefit
of our ruling that COC mandatory requirements before elections are con
subject to the modification that Agapito J. Cardino be proclaimed as th
e duly elected Mayor of Dapitan City, Zamboanga during the May 10, 2
010 national and local elections, and thus entitled to assume the office
of Mayor of Dapitan City.
LUCAS P. BERSAMIN

sidered merely directory after the people shall have spoken. A mandator Associate Justice
y and material election law requirement involves more than the will of t
he people in any given locality. Where a material COC misrepresentation
under oath is made, thereby violating both our election and criminal la
ws, we are faced as well with an assault on the will of the people of th
Footnotes
e Philippines as expressed in our laws. In a choice between provisions o
n material qualifications of elected officials, on the one hand, and the wi
ll of the electorate in any given locality, on the other, we believe and s 1 Rollo, G.R. No. 193237, pp. 49-56.
o hold that we cannot choose the electorate will. The balance must alw
2 Id. at 40-48.

G.R. No. 180363 April 28, 2009

3 Id. at 49-56.

EDGAR Y. TEVES, Petitioner,

4 Rollo, G.R. No. 193536, p. 9. vs.

THE COMMISSION ON ELECTIONS and HERMINIO G. TEVES, Respondent

s.
5 Id.

D E C I S I O N

YNARES-SANTIAGO, J.:
Today is Tuesday, August 06, 2019 home

The issue for resolution is whether the crime of which petitioner Edgar
Republic of the Philippines
Y. Teves was convicted in Teves v. Sandiganbayan1 involved moral turpit
SUPREME COURT ude.

Manila

The facts of the case are undisputed.

EN BANC
Petitioner was a candidate for the position of Representative of the 3rd
legislative district of Negros Oriental during the May 14, 2007 elections.
On March 30, 2007, respondent Herminio G. Teves filed a petition to dis
qualify2 petitioner on the ground that in Teves v. Sandiganbayan,3 he w
as convicted of violating Section 3(h), Republic Act (R.A.) No. 3019, or th
e Anti-Graft and Corrupt Practices Act, for possessing pecuniary or finan
cial interest in a cockpit, which is prohibited under Section 89(2) of the
It appears, however, that [petitioner] lost in the last 14 May 2007 congre
ssional elections for the position of member of the House of Representa
tives of the Third district of Negros Oriental thereby rendering the insta
nt Motion for Reconsideration moot and academic.
WHEREFORE, in view of the foregoing, the Motion for Reconsideration d

Local Government Code (LGC) of 1991, and was sentenced to pay a fine ated 28 May 2007 filed by respondent Edgar Y. Teves challenging the R

of P10,000.00. Respondent alleged that petitioner is disqualified from run esolution of this Commission (First Division) promulgated on 11 May 200

ning for public office because he was convicted of a crime involving mo 7 is hereby DENIED for having been rendered moot and academic.

ral turpitude which carries the accessory penalty of perpetual disqualificat

ion from public office.4 The case was docketed as SPA No. 07-242 and
SO ORDERED.6
assigned to the COMELEC’s First Division.

Hence, the instant petition based on the following grounds:

On May 11, 2007, the COMELEC First Division disqualified petitioner from
running for the position of member of House of Representatives and o
rdered the cancellation of his Certificate of Candidacy.5
I.

Petitioner filed a motion for reconsideration before the COMELEC en ba

THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
nc which was denied in its assailed October 9, 2007 Resolution for bein
OF JURISDICTION, WHEN THE COMELEC EN BANC DEMURRED IN RESO
g moot, thus:
LVING THE MAIN ISSUE RAISED IN PETITIONER’S MOTION FOR RECONS
IDERATION, WHETHER PETITIONER IS DISQUALIFIED TO RUN FOR PUBLI
C OFFICE TAKING INTO CONSIDERATION THE DECISION OF THE SUPRE
ME COURT IN G.R. NO. 154182.
II.
THE MAIN ISSUE IS NOT RENDERED MOOT AND ACADEMIC AS THE RE
SOLUTION THEREOF WILL DETERMINE PETITIONER’S QUALIFICATION TO
RUN FOR OTHER PUBLIC POSITIONS IN FUTURE ELECTIONS.
III.
THERE WAS ABUSE OF DISCRETION, AMOUNTING TO LACK OR EXCESS
OF JURISDICTION, WHEN THE COMELEC EN BANC IN EFFECT AFFIRMED
THE FINDINGS OF THE FIRST DIVISION WHICH RULED THAT PETITIONE
R’S CONVICTION FOR VIOLATION OF SECTION 3(H) OF R.A. 3019 AND
THE IMPOSITION OF FINE IS A CONVICTION FOR A CRIME INVOLVING
MORAL TURPITUDE.
A.
THE ISSUE OF WHETHER PETITIONER WAS CONVICTED OF A CRIME IN
VOLVING MORAL TURPITUDE SHOULD BE RESOLVED TAKING INTO CO
NSIDERATION THE FINDINGS OF THE SUPREME COURT IN G.R. NO. 154
182.
B.
THERE IS NOTHING IN THE DECISION OF THE SUPREME COURT THAT
SUPPORTS THE FINDINGS OF THE FIRST DIVISION OF THE COMELEC, T
HAT BASED ON THE "TOTALITY OF FACTS" DOCTRINE, PETITIONER WA
S CONVICTED OF A CRIME INVOLVING MORAL TURPITUDE.7
The petition is impressed with merit.
The fact that petitioner lost in the congressional race in the May 14, 20
07 elections did not effectively moot the issue of whether he was disqua
lified from running for public office on the ground that the crime he wa
s convicted of involved moral turpitude. It is still a justiciable issue which
the COMELEC should have resolved instead of merely declaring that th
e disqualification case has become moot in view of petitioner’s defeat.
 ch he has been sentenced to a penalty of more than eighteen months,
or for a crime involving moral turpitude, shall be disqualified to be a ca
Further, there is no basis in the COMELEC’s findings that petitioner is eli
ndidate and to hold any office, unless he has been given plenary pardo
gible to run again in the 2010 elections because his disqualification shall
n or granted amnesty.lawphil.net
be deemed removed after the expiration of a period of five years from
service of the sentence. Assuming that the elections would be held on
May 14, 2010, the records show that it was only on May 24, 2005 when
The disqualifications to be a candidate herein provided shall be deemed
petitioner paid the fine of P10,000.00 he was sentenced to pay in Teve
removed upon the declaration by competent authority that said insanity
s v. Sandignbayan.8 Such being the reckoning point, thus, the five-year
or incompetence had been removed or after the expiration of a period
disqualification period will end only on May 25, 2010. Therefore he woul
of five years from his service of sentence, unless within the same period
d still be ineligible to run for public office during the May 14, 2010 elect
he again becomes disqualified. (Emphasis supplied)
ions.

Moral turpitude has been defined as everything which is done contrary t

Hence, it behooves the Court to resolve the issue of whether or not pet
o justice, modesty, or good morals; an act of baseness, vileness or depr
itioner’s violation of Section 3(h), R.A. No. 3019 involves moral turpitude.
avity in the private and social duties which a man owes his fellowmen,
1avvphi1
or to society in general.9

Section 12 of the Omnibus Election Code reads:

Section 3(h) of R.A. 3019 of which petitioner was convicted, reads:

Sec. 12. Disqualifications. - Any person who has been declared by comp
Sec. 3. Corrupt practices of public officers. — In addition to acts or omi
etent authority insane or incompetent, or has been sentenced by final ju
ssions of public officers already penalized by existing law, the following s
dgment for subversion, insurrection, rebellion, or for any offense for whi
hall constitute corrupt practices of any public officer and are hereby decl
ared to be unlawful:
x x x x
(h) Directly or indirectly having financial or pecuniary interest in any busi
ness, contract or transaction in connection with which he intervenes or t
akes part in his official capacity, or in which he is prohibited by the Con
stitution or by any law from having any interest.
The essential elements of the violation of said provision are as follows: 1
) The accused is a public officer; 2) he has a direct or indirect financial
or pecuniary interest in any business, contract or transaction; 3) he eithe
r: a) intervenes or takes part in his official capacity in connection with s
uch interest, or b) is prohibited from having such interest by the Constit
ution or by law.10
Thus, there are two modes by which a public officer who has a direct o
r indirect financial or pecuniary interest in any business, contract, or tran
saction may violate Section 3(h) of R.A. 3019. The first mode is when th
e public officer intervenes or takes part in his official capacity in connect
ion with his financial or pecuniary interest in any business, contract, or tr
ansaction. The second mode is when he is prohibited from having such
an interest by the Constitution or by law.11
In Teves v. Sandiganbayan,12 petitioner was convicted under the second
mode for having pecuniary or financial interest in a cockpit which is pro
hibited under Sec. 89(2) of the Local Government Code of 1991. The Co
urt held therein:
However, the evidence for the prosecution has established that petitioner
Edgar Teves, then mayor of Valencia, Negros Oriental, owned the cock
pit in question. In his sworn application for registration of cockpit filed o
n 26 September 1983 with the Philippine Gamefowl Commission, Cubao,
Quezon City, as well as in his renewal application dated 6 January 1989
he stated that he is the owner and manager of the said cockpit. Absent
any evidence that he divested himself of his ownership over the cockpit
, his ownership thereof is rightly to be presumed because a thing once
proved to exist continues as long as is usual with things of that nature.
His affidavit dated 27 September 1990 declaring that effective January 19
90 he "turned over the management of the cockpit to Mrs. Teresita Z. T
eves for the reason that [he] could no longer devote a full time as man
ager of the said entity due to other work pressure" is not sufficient pro
of that he divested himself of his ownership over the cockpit. Only the
management of the cockpit was transferred to Teresita Teves effective Ja
nuary 1990. Being the owner of the cockpit, his interest over it was dire
ct.
Even if the ownership of petitioner Edgar Teves over the cockpit were tr
ansferred to his wife, still he would have a direct interest thereon becau
se, as correctly held by respondent Sandiganbayan, they remained marri
ed to each other from 1983 up to 1992, and as such their property relat
ion can be presumed to be that of conjugal partnership of gains in the
absence of evidence to the contrary. Article 160 of the Civil Code provid
es that all property of the marriage is presumed to belong to the conju
gal partnership unless it be proved that it pertains exclusively to the hus
band or to the wife. And Section 143 of the Civil Code declares all the
property of the conjugal partnership of gains to be owned in common
by the husband and wife. Hence, his interest in the Valencia Cockpit is
direct and is, therefore, prohibited under Section 89(2) of the LGC of 19
91, which reads:
Section 89. Prohibited Business and Pecuniary Interest. – (a) It shall be u
nlawful for any local government official or employee, directly or indirect
ly, to:
x x x x
(2) Hold such interests in any cockpit or other games licensed by a loca
l government unit…. [Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Sectio
n 3(h) of the Anti-Graft Law, which is possession of a prohibited interest
.13
However, conviction under the second mode does not automatically mea
n that the same involved moral turpitude. A determination of all surroun
ding circumstances of the violation of the statute must be considered. B
esides, moral turpitude does not include such acts as are not of themsel
ves immoral but whose illegality lies in their being positively prohibited,
as in the instant case.
Thus, in Dela Torre v. Commission on Elections,14 the Court clarified tha
t:
Not every criminal act, however, involves moral turpitude. It is for this re
ason that "as to what crime involves moral turpitude, is for the Supreme
Court to determine." In resolving the foregoing question, the Court is g
uided by one of the general rules that crimes mala in se involve moral
turpitude, while crimes mala prohibita do not, the rationale of which was
set forth in "Zari v. Flores," to wit:
"It (moral turpitude) implies something immoral in itself, regardless of th
e fact that it is punishable by law or not. It must not be merely mala p
rohibita, but the act itself must be inherently immoral. The doing of the
act itself, and not its prohibition by statute fixes the moral turpitude. Mo
ral turpitude does not, however, include such acts as are not of themsel
ves immoral but whose illegality lies in their being positively prohibited."
This guideline nonetheless proved short of providing a clear-cut solution,
for in "International Rice Research Institute v. NLRC, the Court admitted
that it cannot always be ascertained whether moral turpitude does or do
es not exist by merely classifying a crime as malum in se or as malum
prohibitum. There are crimes which are mala in se and yet but rarely in
volve moral turpitude and there are crimes which involve moral turpitud
e and are mala prohibita only. In the final analysis, whether or not a cri
me involves moral turpitude is ultimately a question of fact and frequent
ly depends on all the circumstances surrounding the violation of the stat
ute. (Emphasis supplied)1awphi1
Applying the foregoing guidelines, we examined all the circumstances su
rrounding petitioner’s conviction and found that the same does not invol
ve moral turpitude.
First, there is neither merit nor factual basis in COMELEC’s finding that p
etitioner used his official capacity in connection with his interest in the c
ockpit and that he hid the same by transferring the management to his
wife, in violation of the trust reposed on him by the people.
The COMELEC, in justifying its conclusion that petitioner’s conviction invo
lved moral turpitude, misunderstood or misapplied our ruling in Teves v.
Sandiganbayan. According to the COMELEC:
In the present case, while the crime for which [petitioner] was convicted
may per se not involve moral turpitude, still the totality of facts evinces
[his] moral turpitude. The prohibition was intended to avoid any conflict
of interest or any instance wherein the public official would favor his ow
n interest at the expense of the public interest. The [petitioner] knew of
the prohibition but he attempted to circumvent the same by holding ou
t that the Valencia Cockpit and Recreation Center is to be owned by a
On the contrary, the Court’s ruling states:
certain Daniel Teves. Later on, he would aver that he already divested hi
mself of any interest of the cockpit in favor of his wife. But the Suprem
e Court saw through the ruse and declared that what he divested was The Sandiganbayan found that the charge against Mayor Teves for causi
only the management of the cockpit but not the ownership. And even if ng the issuance of the business permit or license to operate the Valenci
the ownership is transferred to his wife, the respondent would neverthe a Cockpit and Recreation Center is "not well-founded." This it based, an
less have an interest thereon because it would still belong to the conjug d rightly so, on the additional finding that only the Sangguniang Bayan
al partnership of gains, of which the [petitioner] is the other half. could have issued a permit to operate the Valencia Cockpit in the year
1992. Indeed, under Section 447(3) of the LGC of 1991, which took effect
on 1 January 1992, it is the Sangguniang Bayan that has the authority t
[Petitioner] therefore maintained ownership of the cockpit by deceit. He
o issue a license for the establishment, operation, and maintenance of c
has the duty to divest himself but he did not and instead employed me
ockpits. Unlike in the old LGC, Batas Pambansa Blg. 337, wherein the m
ans to hide his interests. He knew that it was prohibited he nevertheless
unicipal mayor was the presiding officer of the Sangguniang Bayan, und
concealed his interest thereon. The facts that he hid his interest denote
er the LGC of 1991, the mayor is not so anymore and is not even a me
s his malicious intent to favor self-interest at the expense of the public.
mber of the Sangguniang Bayan. Hence, Mayor Teves could not have in
Only a man with a malevolent, decadent, corrupt and selfish motive wou
tervened or taken part in his official capacity in the issuance of a cockpi
ld cling on and conceal his interest, the acquisition of which is prohibite
t license during the material time, as alleged in the information, because
d. This plainly shows his moral depravity and proclivity to put primacy o
he was not a member of the Sangguniang Bayan.16
n his self interest over that of his fellowmen. Being a public official, his
act is also a betrayal of the trust reposed on him by the people. Clearly
, the totality of his acts is contrary to the accepted rules of right and d Thus, petitioner, as then Mayor of Valencia, did not use his influence, au
uty, honesty and good morals. The crime, as committed by the [petition thority or power to gain such pecuniary or financial interest in the cock
er], plainly involves moral turpitude.15 pit. Neither did he intentionally hide his interest in the subject cockpit b
y transferring the management thereof to his wife considering that the s
aid transfer occurred before the effectivity of the present LGC prohibitin
Second, while possession of business and pecuniary interest in a cockpit
g possession of such interest.
licensed by the local government unit is expressly prohibited by the pres
ent LGC, however, its illegality does not mean that violation thereof nec
essarily involves moral turpitude or makes such possession of interest in
As aptly observed in Teves v. Sandiganbayan:
herently immoral. Under the old LGC, mere possession by a public office
r of pecuniary interest in a cockpit was not among the prohibitions. Thu

As early as 1983, Edgar Teves was already the owner of the Valencia Co s, in Teves v. Sandiganbayan, the Court took judicial notice of the fact t

ckpit. Since then until 31 December 1991, possession by a local official of hat:

pecuniary interest in a cockpit was not yet prohibited. It was before th

e effectivity of the LGC of 1991, or on January 1990, that he transferred
x x x under the old LGC, mere possession of pecuniary interest in a coc
the management of the cockpit to his wife Teresita. In accordance there
kpit was not among the prohibitions enumerated in Section 41 thereof.
with it was Teresita who thereafter applied for the renewal of the cockpi
Such possession became unlawful or prohibited only upon the advent of
t registration. Thus, in her sworn applications for renewal of the registrat
the LGC of 1991, which took effect on 1 January 1992. Petitioner Edgar
ion of the cockpit in question dated 28 January 1990 and 18 February 1
Teves stands charged with an offense in connection with his prohibited i
991, she stated that she is the Owner/Licensee and Operator/Manager of
nterest committed on or about 4 February 1992, shortly after the maide
the said cockpit. In her renewal application dated 6 January 1992, she r
n appearance of the prohibition. Presumably, he was not yet very much
eferred to herself as the Owner/Licensee of the cockpit. Likewise in the
aware of the prohibition. Although ignorance thereof would not excuse
separate Lists of Duly Licensed Personnel for Calendar Years 1991 and 19
him from criminal liability, such would justify the imposition of the lighte
92, which she submitted on 22 February 1991 and 17 February 1992, res
r penalty of a fine of P10,000 under Section 514 of the LGC of 1991.18 (I
pectively, in compliance with the requirement of the Philippine Gamefowl
talics supplied)
Commission for the renewal of the cockpit registration, she signed her
name as Operator/Licensee.17 (Emphasis supplied)
The downgrading of the indeterminate penalty of imprisonment of nine
years and twenty-one days as minimum to twelve years as maximum to
a lighter penalty of a fine of P10,000.00 is a recognition that petitioner’s
violation was not intentionally done contrary to justice, modesty, or goo
d morals but due to his lack of awareness or ignorance of the prohibiti
on.
Lastly, it may be argued that having an interest in a cockpit is detriment
al to public morality as it tends to bring forth idlers and gamblers, henc
e, violation of Section 89(2) of the LGC involves moral turpitude.
Suffice it to state that cockfighting, or sabong in the local parlance, has
a long and storied tradition in our culture and was prevalent even durin
g the Spanish occupation.19 While it is a form of gambling, the morality
thereof or the wisdom in legalizing it is not a justiciable issue. In Magt
ajas v. Pryce Properties Corporation, Inc., it was held that:
The morality of gambling is not a justiciable issue. Gambling is not illeg
al per se. While it is generally considered inimical to the interests of the
people, there is nothing in the Constitution categorically proscribing or
penalizing gambling or, for that matter, even mentioning it at all. It is le
ft to Congress to deal with the activity as it sees fit. In the exercise of i
ts own discretion, the legislature may prohibit gambling altogether or all
ow it without limitation or it may prohibit some forms of gambling and
allow others for whatever reasons it may consider sufficient. Thus, it has
prohibited jueteng and monte but permits lotteries, cockfighting and hor
se-racing. In making such choices, Congress has consulted its own wisdo
m, which this Court has no authority to review, much less reverse. Well
has it been said that courts do no sit to resolve the merits of conflictin
g theories. That is the prerogative of the political departments. It is settl
ed that questions regarding the wisdom, morality, or practicability of stat
utes are not addressed to the judiciary but may be resolved only by the
legislative and executive departments, to which the function belongs in
our scheme of government. That function is exclusive. Whichever way th
ese branches decide, they are answerable only to their own conscience
and the constituents who will ultimately judge their acts, and not to the
courts of justice.
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the C
ommission on Elections dated May 11, 2007 and October 9, 2007 disqual
ifying petitioner Edgar Y. Teves from running for the position of Represe
ntative of the 3rd District of Negros Oriental, are REVERSED and SET AS
IDE and a new one is entered declaring that the crime committed by p
etitioner (violation of Section 3(h) of R.A. 3019) did not involve moral tur
pitude.
 CONCHITA CARPIO MORALES

SO ORDERED. Associate Justice DANTE O. TINGA

Associate Justice

CONSUELO YNARES-SANTIAGO MINITA V. CHICO-NAZARIO

Associate Justice Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

WE CONCUR: ANTONIO EDUARDO B. NACHURA

Associate Justice TERESITA J. LEONARDO-DE CASTRO

REYNATO S. PUNO Associate Justice

Chief Justice ARTURO D. BRION

Associate Justice DIOSDADO M. PERALTA

LEONARDO A. QUISUMBING Associate Justice

Associate Justice ANTONIO T. CARPIO LUCAS P. BERSAMIN

Associate Justice Associate Justice

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice RENATO C. CORONA C E R T I F I C A T I O N

Associate Justice
Pursuant to Section 13, Article VIII of the Constitution, it is hereby certifi
ed that the conclusions in the above Decision were reached in consultati
5 Id. at 45-46.
on before the case was assigned to the writer of the opinion of the Co
urt.

6 Id. at 49.

REYNATO S. PUNO

Chief Justice 7 Id. at 12-13.

8 Rollo, p. 145.

Footnotes

9 Soriano v. Dizon, A.C. No. 6792, January 25, 2006, 480 SCRA 1, 9.

1 488 Phil. 311 (2004).

10 Domingo v. Sandiganbayan, G.R. No. 149175, October 25, 2005, 474 S

CRA 203, 215.
2 Rollo, pp. 130-134.

11 Id.
3 Supra, note 1.

12 Supra note 4.
4 Rollo, pp. 131, 133 & 134.
13 Id. at 329-330. CONCURRING OPINION

14 327 Phil. 1144, 1150-1151 (1996). BRION, J.:

15 Rollo, pp. 44-45. I fully concur with the ponencia of my esteemed colleague, Justice Cons
uelo Ynares-Santiago. I add these views to further explore the term "mo
ral turpitude" – a term that, while carrying far-reaching effects, embodies
16 Teves v. Sandiganbayan, supra note 1 at 327-328. a concept that to date has not been given much jurisprudential focus.

17 Id. at 335. I. Historical Roots

18 Supra note 4 at 333-334.
19 Tan v. Pereña G.R. No. 149743, February 18, 2005, 452 SCRA 53, 69.
The Lawphil Project - Arellano Law Foundation
The term "moral turpitude" first took root under the United States (U.S.)
immigration laws.1 Its history can be traced back as far as the 17th cent
ury when the States of Virginia and Pennsylvania enacted the earliest im
migration resolutions excluding criminals from America, in response to th
e British government’s policy of sending convicts to the colonies. State l
egislators at that time strongly suspected that Europe was deliberately e
xporting its human liabilities.2 In the U.S., the term "moral turpitude" firs
t appeared in the Immigration Act of March 3, 1891, which directed the
exclusion of persons who have been convicted of a felony or other infa
mous crime or misdemeanor involving moral turpitude; this marked the f
irst time the U.S. Congress used the term "moral turpitude" in immigrati
on laws.3 Since then, the presence of moral turpitude has been used as
a test in a variety of situations, including legislation governing the disbar
ment of attorneys and the revocation of medical licenses. Moral turpitud
e also has been judicially used as a criterion in disqualifying and impeac
hing witnesses, in determining the measure of contribution between joint
tortfeasors, and in deciding whether a certain language is slanderous.4
In 1951, the U.S. Supreme Court ruled on the constitutionality of the ter
m "moral turpitude" in Jordan v. De George.5 The case presented only
one question: whether conspiracy to defraud the U.S. of taxes on distille
d spirits is a crime involving moral turpitude within the meaning of Secti
on 19 (a) of the Immigration Act of 1919 (Immigration Act). Sam De Geo
rge, an Italian immigrant was convicted twice of conspiracy to defraud t
he U.S. government of taxes on distilled spirits. Subsequently, the Board
of Immigration Appeals ordered De George’s deportation on the basis o
f the Immigration Act provision that allows the deportation of aliens wh
o commit multiple crimes involving moral turpitude. De George argued t
hat he should not be deported because his tax evasion crimes did not i
nvolve moral turpitude. The U.S. Supreme Court, through Chief Justice Vi
nzon, disagreed, finding that "under an unbroken course of judicial decis
ions, the crime of conspiring to defraud the U.S. is a crime involving m
oral turpitude."6 Notably, the Court determined that fraudulent conduct i
nvolved moral turpitude without exception:
Whatever the phrase "involving moral turpitude" may mean in peripheral
cases, the decided cases make it plain that crimes in which fraud was
an ingredient have always been regarded as involving moral turpitude.xx
x Fraud is the touchstone by which this case should be judged.xxx We t
herefore decide that Congress sufficiently forewarned respondent that th
e statutory consequence of twice conspiring to defraud the United State
s is deportation. 7
Significantly, the U.S. Congress has never exactly defined what amounts t
o a "crime involving moral turpitude." The legislative history of statutes c
ontaining the moral turpitude standard indicates that Congress left the i
nterpretation of the term to U.S. courts and administrative agencies.8 In
the absence of legislative history as interpretative aid, American courts h
ave resorted to the dictionary definition – "the last resort of the baffled
judge."9 The most common definition of moral turpitude is similar to on
e found in the early editions of Black’s Law Dictionary:
[An] act of baseness, vileness, or the depravity in private and social duti
es which man owes to his fellow man, or to society in general, contrary
to the accepted and customary rule of right and duty between man and
man. xxx Act or behavior that gravely violates moral sentiment or acce
pted moral standards of community and is a morally culpable quality hel
d to be present in some criminal offenses as distinguished from others.
xxx The quality of a crime involving grave infringement of the moral sen
timent of the community as distinguished from statutory mala prohibita.1
0 guidance and held:
In the Philippines, the term moral turpitude was first introduced in 1901 i
n Act No. 190, otherwise known as the Code of Civil Actions and Specia
l Proceedings.11 The Act provided that a member of the bar may be re
moved or suspended from his office as lawyer by the Supreme Court u
pon conviction of a crime involving moral turpitude.12 Subsequently, the
term "moral turpitude" has been employed in statutes governing disquali
fications of notaries public,13 priests and ministers in solemnizing marriag
es,14 registration to military service,15 exclusion16 and naturalization of al
iens,17 discharge of the accused to be a state witness,18 admission to th
e bar,19 suspension and removal of elective local officials,20 and disquali
fication of persons from running for any elective local position.21
In Re Basa,22 a 1920 case, provided the first instance for the Court to d
efine the term moral turpitude in the context of Section 21 of the Code
of Civil Procedure on the disbarment of a lawyer for conviction of a cri
me involving moral turpitude. Carlos S. Basa, a lawyer, was convicted of
the crime of abduction with consent. The sole question presented was w
hether the crime of abduction with consent, as punished by Article 446
of the Penal Code of 1887, involved moral turpitude. The Court, finding
no exact definition in the statutes, turned to Bouvier’s Law Dictionary for
"Moral turpitude," it has been said, "includes everything which is done c
ontrary to justice, honesty, modesty, or good morals." (Bouvier's Law Dic
tionary, cited by numerous courts.) Although no decision can be found
which has decided the exact question, it cannot admit of doubt that cri
mes of this character involve moral turpitude. The inherent nature of the
act is such that it is against good morals and the accepted rule of righ
t conduct.
Thus, early on, the Philippines followed the American lead and adopted
a general dictionary definition, opening the way for a case-to-case appr
oach in determining whether a crime involves moral turpitude.
II. Problems with the Definition of Moral Turpitude
 NLRC29 that moral turpitude "is somewhat a vague and indefinite term,
the meaning of which must be left to the process of judicial inclusion o
Through the years, the Court has never significantly deviated from the Bl
r exclusion as the cases are reached" – once again confirming, as late a
ack’s Law Dictionary definition of moral turpitude as "an act of baseness,
s 1993 in IRRI, our case-by-case approach in determining the crimes inv
vileness, or depravity in the private duties which a man owes his fellow
olving moral turpitude.
men, or to society in general, contrary to the accepted and customary
rule of right and duty between man and woman, or conduct contrary to
justice, honesty, modesty, or good morals."23 This definition is more sp
Second, the definition also assumes the existence of a universally recogn
ecific than that used in In re Vinzon24 where the term moral turpitude
ized code for socially acceptable behavior -- the "private and social duti
was considered as encompassing "everything which is done contrary to j
es which man owes to his fellow man, or to society in general"; moral t
ustice, honesty, or good morals."25
urpitude is an act violating these duties. The problem is that the definiti
on does not state what these duties are, or provide examples of acts w
hich violate them. Instead, it provides terms such as "baseness," "vileness
In the U.S., these same definitions have been highly criticized for their v
," and "depravity," which better describe moral reactions to an act than
agueness and ambiguity.26 In Jordan, Justice Jackson noted that "except
the act itself. In essence, they are "conclusory but non-descriptive."30 To
for the Court’s [majority opinion], there appears to be a universal recog
be sure, the use of morality as a norm cannot be avoided, as the term
nition that we have here an undefined and undefinable standard."27 Thu
"moral turpitude" contains the word "moral" and its direct connotation o
s, the phrase "crimes involving moral turpitude" has been described as "
f right and wrong. "Turpitude," on the other hand, directly means "depra
vague," "nebulous," "most unfortunate," and even "bewildering." 28
vity" which cannot be appreciated without considering an act’s degree of
being right or wrong. Thus, the law, in adopting the term "moral turpit

Criticisms of moral turpitude as an inexactly defined concept are not un ude," necessarily adopted a concept involving notions of morality – stan

warranted. First, the current definition of the term is broad. It can be str dards that involve a good measure of subjective consideration and, in te

etched to include most kinds of wrongs in society -- a result that the L rms of certainty and fixity, are far from the usual measures used in law.

egislature could not have intended. This Court itself concluded in IRRI v. 31
Third, as a legal standard, moral turpitude fails to inform anyone of wha 2. Bigamy38
t it requires.32 It has been said that the loose terminology of moral tur
pitude hampers uniformity since … [i]t is hardly to be expected that a w
ord which baffle judges will be more easily interpreted by laymen.33 Thi 3. Concubinage39

s led Justice Jackson to conclude in Jordan that "moral turpitude offered

judges no clearer guideline than their own consciences, inviting them t
4. Smuggling40
o condemn all that we personally disapprove and for no better reason t
han that we disapprove it."34 This trait, however, cannot be taken lightly
, given that the consequences of committing a crime involving moral tur
5. Rape41
pitude can be severe.

6. Estafa through falsification of a document42

Crimes Categorized as Crimes Involving Moral Turpitude35

7. Attempted Bribery43
Since the early 1920 case of In re Basa,36 the Court has maintained its
case-by-case categorization of crimes on the basis of moral turpitude an
d has labeled specific crimes as necessarily involving moral turpitude. Th 8. Profiteering44
e following is a list, not necessarily complete, of the crimes adjudged to
involve moral turpitude:
9. Robbery45

1. Abduction with consent37

10. Murder, whether consummated or attempted46

19. Perjury55

11. Estafa47

20. Forgery56

12. Theft48

21. Direct Bribery57

13. Illicit Sexual Relations with a Fellow Worker49

22. Frustrated Homicide58

14. Violation of BP Bldg. 2250

Zari v. Flores59 is one case that has provided jurisprudence its own list
of crimes involving moral turpitude, namely: adultery, concubinage, rape,
15. Falsification of Document51
arson, evasion of income tax, barratry, bigamy, blackmail, bribery, crimina
l conspiracy to smuggle opium, dueling, embezzlement, extortion, forgery

16. Intriguing against Honor52
17. Violation of the Anti-Fencing Law53
, libel, making fraudulent proof of loss on insurance contract, murder, m
utilation of public records, fabrication of evidence, offenses against pensi
on laws, perjury, seduction under the promise of marriage, estafa, falsific
ation of public document, and estafa thru falsification of public documen
t.60

18. Violation of Dangerous Drugs Act of 1972 (Drug-pushing)54

Crimes Categorized as Crimes Not Involving Moral Turpitude61
 ignificantly deviated from what it laid down in In re Basa. The key elem
ent, directly derived from the word "turpitude," is the standard of depra
The Court, on the other hand, has also had the occasion to categoricall
vity viewed from a scale of right and wrong.
y rule that certain crimes do not involve moral turpitude, namely:

The application of this depravity standard can be made from at least thr
1. Minor transgressions of the law (i.e., conviction for speeding)62
ee perspectives or approaches, namely: from the objective perspective of
the act itself, irrespective of whether or not the act is a crime; from th

2. Illegal recruitment63 e perspective of the crime itself, as defined through its elements; and fr
om the subjective perspective that takes into account the perpetrator’s l
evel of depravity when he committed the crime.
3. Slight physical injuries and carrying of deadly weapon (Illegal possessi
on of firearms)64
The Court best expressed the first approach in Zari v. Flores66 where th
e Court saw the involvement of moral turpitude where an act is intrinsic
4. Indirect Contempt65 ally immoral, regardless of whether it is punishable by law or not. The C
ourt emphasized that moral turpitude goes beyond being merely mala p
rohibita; the act itself must be inherently immoral. Thus, this approach r
III. Approaches and Standards.
equires that the committed act itself be examined, divorced from its cha
racterization as a crime.

Even a cursory examination of the above lists readily reveals that while t
he concept of "moral turpitude" does not have one specific definition th
A ruling that exemplifies this approach is that made in the U.S. case In
at lends itself to easy and ready application, the Court has been fairly c The Matter of G---67 where, in considering gambling, it was held that:
onsistent in its understanding and application of the term and has not s

Gambling has been in existence since time immemorial. Card playing for
small stakes is a common accompaniment of social life; small bets on h
orse racing and the "policy or numbers games" are diversions of the ma
sses. That such enterprises exist surreptitiously is a matter of common k
nowledge. Many countries permit it under a license system. In ancient ti
mes laws were enacted to discourage people from gambling on the the
ory that the State had first claim upon their time and energy, and at lat
er dates antigambling laws were aimed especially at the activity as practi
ced by the working classes. Present-day movements to suppress gamblin
g are also tinged with other considerations. In urban communities in the
past few decades the purely religious opposition to gambling has tende
d to become less violent because certain activities, highly reputable acco
rding to prevailing social standards, have come more and more to rese
mble it. Prohibition against gambling has had something of a police rath
er than a truly penal character. At all times an important fact in arousin
g antagonism in gambling has been the association, almost inevitable, wi
th sharp practice. In established societies more or less serious attempts
are everywhere made, however, to prohibit or to regulate gambling in it
s more notorious forms.
It would appear that statutes permitting gambling, such as those under
discussion, rest primarily on the theory that they are in the interest of p
ublic policy: that is to regulate and restrict any possible abuse, to obviat
e cheating and other corrupt practices that may result if uncontrolled.
From this discussion, the Court went on to conclude that gambling is a
malum prohibitum that is not intrinsically evil and, thus, is not a crime i
nvolving moral turpitude.
With the same approach, but with a different result, is Office of the Cou
rt Administrator v. Librado,68 a case involving drug possession. Librado,
a Deputy Sheriff in MTCC Iligan City was convicted of possession of "sh
abu," a prohibited drug. The Office of the Court Administrator commenc
ed an administrative case against him and he was subsequently suspend
ed from office. In his subsequent plea for reinstatement, the Court stron
gly denounced drug possession as an "especially vicious crime, one of t
he most pernicious evils that has ever crept into our society… For those
who become addicted to it not only slide into the ranks of the living de
ad, what is worse, they become a grave menace to the safety of law ab
iding members of society." The Court, apparently drawing on what societ
y deems important, held that the use of drugs amounted to an act so i
nherently evil that no law was needed to deem it as such; it is an evil
without need for a law to call it evil69 - "an immoral act in itself regard
less of whether it is punishable or not."70
 , otherwise known as the Anti-Fencing Law. Dela Torre appealed to this
Court to overturn his disqualification on the ground that the crime of fe
In People v. Yambot,71 the Court categorically ruled that the possession
ncing is not a crime involving moral turpitude. The Court ruled that mor
of a deadly weapon does not involve moral turpitude since the act of c
al turpitude is deducible from the third element. Actual knowledge by th
arrying a weapon by itself is not inherently wrong in the absence of a l
e fence of the fact that property received is stolen displays the same de
aw punishing it. Likewise, the Court acknowledged in Court Administrator
gree of malicious deprivation of one’s rightful property as that which ani
v. San Andres72 that illegal recruitment does not involve moral turpitud
mated the robbery or theft which, by their very nature, are crimes of m
e since it is not in itself an evil act – being ordinarily an act in the ordi
oral turpitude.
nary course of business – in the absence of the a law prohibiting it.

To be sure, the elements of the crime can be a critical factor in determi

The second approach is to look at the act committed through its eleme
ning moral turpitude if the second approach is used in the crimes listed
nts as a crime. In Paras v. Vailoces,73 the Court recognized that as a "g
above as involving moral turpitude. In Villaber v. Commission on Election
eneral rule, all crimes of which fraud is an element are looked on as inv
s,76 the Court, by analyzing the elements alone of the offense under Ba
olving moral turpitude." This is the same conclusion that the U.S. Supre
tas Pambansa Blg. 22, held that the "presence of the second element m
me Court made in Jordan, i.e., that crimes requiring fraud or intent to d
anifest moral turpitude" in that "a drawer who issues an unfunded check
efraud always involve moral turpitude.74
deliberately reneges on his private duties he owes his fellow men or so
ciety in a manner contrary to accepted and customary rule of right and

Dela Torre v. Commission on Elections75 is a case in point that uses th duty, justice, honesty or good morals." The same conclusion was reache

e second approach and is one case where the Court even dispensed wit d by the Court in Magno v. Commission on Elections,77 when it ruled t

h the review of facts and circumstances surrounding the commission of hat direct bribery involves moral turpitude, thus:

the crime since Dela Torre did not assail his conviction. Dela Torre was
disqualified by the Comelec from running as Mayor of Cavinti, Laguna o
n the basis of his conviction for violation of Presidential Decree No. 1612
Moral turpitude can be inferred from the third element. The fact that th
e offender agrees to accept a promise or gift and deliberately commits
In IRRI v. NLRC,79 the International Rice Research Institute terminated th
an unjust act or refrains from performing an official duty in exchange fo
e employment contract of Nestor Micosa on the ground that he has be
r some favors, denotes a malicious intent on the part of the offender to
en convicted of the crime of homicide – a a crime involving moral turpi
renege on the duties which he owes his fellowmen and society in gene
tude. The Court refused to characterize the crime of homicide as one of
ral. Also, the fact that the offender takes advantage of his office and po
moral turpitude in light of the circumstances of its commission. The Co
sition is a betrayal of the trust reposed on him by the public. It is a co
urt ruled:
nduct clearly contrary to the accepted rules of right and duty, justice, h
onesty and good morals. In all respects, direct bribery is a crime involvi
ng moral turpitude. [Emphasis supplied] These facts show that Micosa’s intention was not to slay the victim but
only to defend his person. The appreciation in his favor of the mitigatin
g circumstances of self-defense and voluntary surrender, plus the total a
The third approach, the subjective approach, essentially takes the offend
bsence of any aggravating circumstances demonstrate that Micosa’s char
er and his acts into account in light of the attendant circumstances of t
acter and intentions were not inherently vile, immoral or unjust. [italics s
he crime: was he motivated by ill will indicating depravity? The Court ap
upllied].
parently used this approach in Ao Lin v. Republic,78 a 1964 case, when
it held "that the use of a meter stick without the corresponding seal of
the Internal Revenue Office by one who has been engaged in business f The Court stressed, too, not only the subjective element, but the need f
or a long time, involves moral turpitude because it involves a fraudulent or the appreciation of facts in considering whether moral turpitude exists
use of a meter stick, not necessarily because the Government is cheated – an unavoidable step under the third approach. Thus, the Court explai
of the revenue involved in the sealing of the meter stick, but because i ned:
t manifests an evil intent on the part of the petitioner to defraud custo
mers purchasing from him in respect to the measurement of the goods
purchased."
This is not to say that all convictions of the crime of homicide do not i
nvolve moral turpitude. Homicide may or may not involve moral turpitud
e depending on the degree of the crime. Moral turpitude is not involve
d in every criminal act and is not shown by every known and intentiona
l violation of statute, but whether any particular conviction involves mora
l turpitude may be a question of fact and frequently depends on all the
surrounding circumstances. [Emphasis supplied]
In contrast, while IRRI refused to characterize the crime of homicide as
one of moral turpitude, the recent case of Soriano v. Dizon80 held that
based on the circumstances, the crime of frustrated homicide committed
by the respondent involved moral turpitude. In Soriano, complainant Sori
ano filed a disbarment case against respondent Atty. Manuel Dizon alleg
ing that the crime of frustrated homicide involves moral turpitude under
the circumstances surrounding its commission, and was a sufficient grou
nd for his disbarment under Section 27 of Rule 138 of the Rules of Cou
rt. The Court after noting the factual antecedents of IRRI held that –
The present case is totally different. As the IBP correctly found, the circu
mstances clearly evince the moral turpitude of respondent and his unwo
rthiness to practice law. Atty. Dizon was definitely the aggressor, as he
pursued and shot complainant when the latter least expected it. The act
of aggression shown by respondent will not be mitigated by the fact th
at he was hit once and his arm twisted by complainant. Under the circu
mstances, those were reasonable actions clearly intended to fend off the
lawyer’s assault.
We also consider the trial court’s finding of treachery as a further indica
tion of the skewed morals of respondent. He shot the victim when the l
atter was not in a position to defend himself. In fact, under the impressi
on that the assault was already over, the unarmed complainant was mer
ely returning the eyeglasses of Atty. Dizon when the latter unexpectedly
shot him. To make matters worse, respondent wrapped the handle of hi
s gun with a handkerchief so as not to leave fingerprints. In so doing, h
e betrayed his sly intention to escape punishment for his crime.
The totality of the facts unmistakably bears the earmarks of moral turpit
ude. By his conduct, respondent revealed his extreme arrogance and feel
ing of self-importance. As it were, he acted like a god on the road, wh
o deserved to be venerated and never to be slighted. Clearly, his inordi
nate reaction to a simple traffic incident reflected poorly on his fitness t
o be a member of the legal profession. His overreaction also evinced vi
ndictiveness, which was definitely an undesirable trait in any individual,
more so in a lawyer. In the tenacity with which he pursued complainant,
 we see not the persistence of a person who has been grievously wron
ged, but the obstinacy of one trying to assert a false sense of superiorit
y and to exact revenge. 81 [Emphasis supplied]
Laguitan v. Tinio,82 expressed in terms of the protection of the sanctity
of marriage,83 also necessarily looked at the subjective element because
the offender’s concubinage involved an assault on the basic social institu
tion of marriage. Another subjective element case, in terms of looking at
the damage wrought by the offender’s act, is People v. Jamero84 wher
e the Court disregarded the appellants’ argument that the trial court err
ed in ordering the discharge of Inocencio Retirado from the Information
in order to make him a state witness, since he has been previously con
victed of the crime of malicious mischief – a crime involving moral turpi
tude. The Court said:
In the absence of any evidence to show the gravity and the nature of t
he malicious mischief committed, We are not in a position to say wheth
er or not the previous conviction of malicious mischief proves that accus
ed had displayed the baseness, the vileness and the depravity which con
stitute moral turpitude. And considering that under paragraph 3 of Articl
e 329 of the Revised Penal Code, any deliberate act (not constituting ar
son or other crimes involving destruction) causing damage in the proper
ty of another, may constitute the crime of malicious mischief, We should
not make haste in declaring that such crime involves moral turpitude w
ithout determining, at least, the value of the property destroyed and/or
the circumstances under which the act of destroying was committed.85 [
Emphasis supplied]
Thus, again, the need for a factual determination was considered necess
ary.
In sum, a survey of jurisprudence from the earliest case of In Re Basa86
to the recent case of Soriano v. Dizon 87 shows that the Court has us
ed varying approaches, but used the same standard or measure – the d
egree of attendant depravity. The safest approach to avoid being misled
in one’s conclusion is to apply all three approaches, if possible, and to
evaluate the results from each of the approaches. A useful caveat in the
evaluation is to resolve any doubt in favor of the perpetrator, as a con
clusion of moral turpitude invariably signifies a worse consequence for hi
m or her.
IV. The Approaches Applied to TEVES
The Objective Approach

The essential elements of the offense of possession of prohibited interest

(Section 3(h) of the Anti-Graft Law) for which the petitioner was convict
The crime for which petitioner Teves was convicted (possession of pecun
ed are:
iary or financial interest in a cockpit) is, at its core, related to gambling
– an act that by contemporary community standards is not per se immo
ral. Other than the ruling heretofore cited on this point,88 judicial notice
1. The accused is a public officer;
can be taken of state-sponsored gambling activities in the country that,
although not without controversy, is generally regarded to be within ac
ceptable moral limits. The ponencia correctly noted that prior to the ena 2. He has a direct or indirect financial or pecuniary interest in any busin
ctment of the Local Government Code of 1991, mere possession by a pu ess, contract or transaction; and
blic officer of pecuniary interest in a cockpit was not expressly prohibite
d. This bit of history alone is an indicator that, objectively, no essential
depravity is involved even from the standards of a holder of a public of 3. He is prohibited from having such interest by the Constitution or any
fice. This reasoning led the ponencia to conclude that "its illegality does law.
not mean that violation thereof . . . makes such possession of interest i
nherently immoral."89
From the perspective of moral turpitude, the third element is the critical
element. This element shows that the holding of interest that the law co
From the Perspective of the Elements of the Crime vers is not a conduct clearly contrary to the accepted rules of right and
duty, justice, honesty and good morals; it is illegal solely because of the
prohibition that exists in law or in the Constitution. Thus, no depravity i
Under this approach, we determine whether a crime involves moral turpi mmediately leaps up or suggests itself based on the elements of the cri
tude based solely on our analysis of the elements of the crime alone. me committed.
 approaches. Analysis in this manner, with one approach reinforcing anot
her, results in clear and easily appreciated conclusions.
The Subjective Approach

ARTURO D. BRION
This approach is largely the ponencia’s approach, as it expressly stated t
hat "a determination of all surrounding circumstances of the violation of Associate Justice
the statute must be considered."90 In doing this, the ponencia firstly co
nsidered that the petitioner did not use his official capacity in connectio
n with the interest in the cockpit, not that he hid this interest by transfe
rring it to his wife, as the transfer took effect before the effectivity of th Footnotes
e law prohibiting the possession of interest. The ponencia significantly n
oted, too, that the violation was not intentionally committed in a manne
r contrary to justice, modesty, or good morals, but due simply to Teves’ 1 Jordan v. De George, 341 U.S. 223, 227 (1951).
lack of awareness or ignorance of the prohibition. This, in my view, is t
he clinching argument that no moral turpitude can be involved as no d
epravity can be gleaned where intent is clearly absent.

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Conclusion

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To recapitulate, all three approaches point to the conclusion that no mo

ral turpitude was involved in the crime Teves committed, with the predo
minant reasons being the first (or objective) and the third (or subjective)
EN BANC m, Samar in the July 15, 2002 Synchronized Barangay and Sangguniang
Kabataan Elections.

G.R. No. 168550 August 10, 2006

The following are the undisputed facts:

URBANO M. MORENO, Petitioner,

Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from runni
vs.
ng for Punong Barangay on the ground that the latter was convicted by
COMMISSION ON ELECTIONS and NORMA L. MEJES, CHICO-NAZARIO, final judgment of the crime of Arbitrary Detention and was sentenced t
Respondents. o suffer imprisonment of Four (4) Months and One (1) Day to Two (2) Y
ears and Four (4) Months by the Regional Trial Court, Branch 28 of Cat
balogan, Samar on August 27, 1998.
D E C I S I O N

Moreno filed an answer averring that the petition states no cause of act
TINGA, J.:
ion because he was already granted probation. Allegedly, following the c
ase of Baclayon v. Mutia, 4 the imposition of the sentence of imprisonm
ent, as well as the accessory penalties, was thereby suspended. Moreno
In this Petition 1 dated July 6, 2005, Urbano M. Moreno (Moreno) assails
also argued that under Sec. 16 of the Probation Law of 1976 (Probation
the Resolution 2 of the Commission on Elections (Comelec) en banc da
Law), the final discharge of the probation shall operate to restore to hi
ted June 1, 2005, affirming the Resolution 3 of the Comelec First Divisio
m all civil rights lost or suspended as a result of his conviction and to f
n dated November 15, 2002 which, in turn, disqualified him from runnin
ully discharge his liability for any fine imposed. The order of the trial co
g for the elective office of Punong Barangay of Barangay Cabugao, Dara
urt dated December 18, 2000 allegedly terminated his probation and rest
ored to him all the civil rights he lost as a result of his conviction, inclu
ding the right to vote and be voted for in the July 15, 2002 elections.
The case was forwarded to the Office of the Provincial Election Supervis
or of Samar for preliminary hearing. After due proceedings, the Investiga
ting Officer recommended that Moreno be disqualified from running for
Punong Barangay.
The Comelec First Division adopted this recommendation. On motion for
reconsideration filed with the Comelec en banc, the Resolution of the F
irst Division was affirmed. According to the Comelec en banc, Sec. 40(a)
of the Local Government Code provides that those sentenced by final ju
dgment for an offense involving moral turpitude or for an offense punis
hable by one (1) year or more of imprisonment, within two (2) years aft
er serving sentence, are disqualified from running for any elective local
position. 5 Since Moreno was released from probation on December 20,
2000, disqualification shall commence on this date and end two (2) year
s thence. The grant of probation to Moreno merely suspended the exec
ution of his sentence but did not affect his disqualification from running
for an elective local office.
Further, the Comelec en banc held that the provisions of the Local Gov
ernment Code take precedence over the case of Baclayon v. Mutia cited
by Moreno and the Probation Law because it is a much later enactme
nt and a special law setting forth the qualifications and disqualifications
of elective local officials.
In this petition, Moreno argues that the disqualification under the Local
Government Code applies only to those who have served their sentence
and not to probationers because the latter do not serve the adjudged s
entence. The Probation Law should allegedly be read as an exception to
the Local Government Code because it is a special law which applies o
nly to probationers. Further, even assuming that he is disqualified, his su
bsequent election as Punong Barangay allegedly constitutes an implied p
ardon of his previous misconduct.
In its Comment 6 dated November 18, 2005 on behalf of the Comelec,
the Office of the Solicitor General argues that this Court in Dela Torre v
. Comelec 7 definitively settled a similar controversy by ruling that convi
ction for an offense involving moral turpitude stands even if the candida
te was granted probation. The disqualification under Sec. 40(a) of the Lo
cal Government Code subsists and remains totally unaffected notwithstan
ding the grant of probation.

Moreno filed a Reply to Comment 8 dated March 27, 2006, reiterating h
is arguments and pointing out material differences between his case and
Dela Torre v. Comelec which allegedly warrant a conclusion favorable t
o him. According to Moreno, Dela Torre v. Comelec involves a convictio
n for violation of the Anti-Fencing Law, an offense involving moral turpit
ude covered by the first part of Sec. 40(a) of the Local Government Co
de. Dela Torre, the petitioner in that case, applied for probation nearly f
our (4) years after his conviction and only after appealing his conviction,
such that he could not have been eligible for probation under the law.
In contrast, Moreno alleges that he applied for and was granted probati
on within the period specified therefor. He never served a day of his se
ntence as a result. Hence, the disqualification under Sec. 40(a) of the Lo
cal Government Code does not apply to him.
The resolution of the present controversy depends on the application of
the phrase "within two (2) years after serving sentence" found in Sec. 40
(a) of the Local Government Code, which reads:
Sec. 40. Disqualifications. – The following persons are disqualified from r
unning for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral tur
pitude or for an offense punishable by one (1) year or more of imprison
ment, within two (2) years after serving sentence; [Emphasis supplied.]
. . . .
We should mention at this juncture that there is no need to rule on wh
ether Arbitrary Detention, the crime of which Moreno was convicted by f
inal judgment, involves moral turpitude falling under the first part of the
above-quoted provision. The question of whether Arbitrary Detention is
a crime involving moral turpitude was never raised in the petition for di
squalification because the ground relied upon by Mejes, and which the
Comelec used in its assailed resolutions, is his alleged disqualification fro
m running for a local elective office within two (2) years from his discha
rge from probation after having been convicted by final judgment for a
n offense punishable by Four (4) Months and One (1) Day to Two (2) Y
ears and Four (4) Months. Besides, a determination that the crime of Ar
bitrary Detention involves moral turpitude is not decisive of this case, th
e crucial issue being whether Moreno’s sentence was in fact served.

In this sense, Dela Torre v. Comelec is not squarely applicable. Our pron
ouncement therein that the grant of probation does not affect the disqu
alification under Sec. 40(a) of the Local Government Code was based pri
marily on the finding that the crime of fencing of which petitioner was
convicted involves moral turpitude, a circumstance which does not obtai
n in this case. At any rate, the phrase "within two (2) years after serving
sentence" should have been interpreted and understood to apply both
to those who have been sentenced by final judgment for an offense inv
olving moral turpitude and to those who have been sentenced by final j
udgment for an offense punishable by one (1) year or more of imprison
ment. The placing of the comma (,) in the provision means that the phr
ase modifies both parts of Sec. 40(a) of the Local Government Code.
The Court’s declaration on the effect of probation on Sec. 40(a) of the
Local Government Code, we should add, ought to be considered an obi
ter in view of the fact that Dela Torre was not even entitled to probatio
n because he appealed his conviction to the Regional Trial Court which,
however, affirmed his conviction. It has been held that the perfection of
an appeal is a relinquishment of the alternative remedy of availing of th
e Probation Law, the purpose of which is to prevent speculation or opp
ortunism on the part of an accused who, although already eligible, did
not at once apply for probation, but did so only after failing in his app
eal. 9
Sec. 40(a) of the Local Government Code appears innocuous enough at
first glance. The phrase "service of sentence," understood in its general
and common sense, means the confinement of a convicted
person in a penal facility for the period adjudged by the court. 10 This
seemingly clear and unambiguous provision, however, has spawned a co
ntroversy worthy of this Court’s attention because the Comelec, in the a
ssailed resolutions, is alleged to have broadened the coverage of the la
w to include even those who did not serve a day of their sentence bec
ause they were granted probation.
Moreno argues, quite persuasively, that he should not have been disqual
ified because he did not serve the adjudged sentence having been gran
ted probation and finally discharged by the trial court.
In Baclayon v. Mutia, the Court declared that an order placing defendan
t on probation is not a sentence but is rather, in effect, a suspension of
the imposition of sentence. We held that the grant of probation to peti
tioner suspended the imposition of the principal penalty of imprisonment
, as well as the accessory penalties of suspension from public office and
from the right to follow a profession or calling, and that of perpetual sp
ecial disqualification from the right of suffrage. We thus deleted from th
e order granting probation the paragraph which required that petitioner
refrain from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties of sus
pension from public office, from the right to follow a profession or calli
ng, and that of perpetual special disqualification from the right of suffra
ge, attendant to the penalty of arresto mayor in its maximum period to
prision correccional in its minimum period 11 imposed upon Moreno wer
e similarly suspended upon the grant of probation.
It appears then that during the period of probation, the probationer is
not even disqualified from running for a public office because the acces
sory penalty of suspension from public office is put on hold for the dur
ation of the probation.
Clearly, the period within which a person is under probation cannot be
equated with service of the sentence adjudged. Sec. 4 of the Probation
Law specifically provides that the grant of probation suspends the execut
ion of the sentence. During the period of probation, 12 the probationer
does not serve the penalty imposed upon him by the court but is merel
y required to comply with all the conditions prescribed in the probation
order. 13
It is regrettable that the Comelec and the OSG have misapprehended th
e real issue in this case. They focused on the fact that Moreno’s judgm
ent of conviction attained finality upon his application for probation inste
ad of the question of whether his sentence had been served.
The Comelec could have correctly resolved this case by simply applying
the law to the letter. Sec. 40(a) of the Local Government Code unequivo
cally disqualifies only those who have been sentenced by final judgment
for an offense punishable by imprisonment of one (1) year or more, wit
hin two (2) years after serving sentence.
This is as good a time as any to clarify that those who have not served
their sentence by reason of the grant of probation which, we reiterate,
should not be equated with service of sentence, should not likewise be
disqualified from running for a local elective office because the two (2)-y
ear period of ineligibility under Sec. 40(a) of the Local Government Cod
e does not even begin to run.
 the Local Government Code. Interpretare et concordare legis legibus est
optimus interpretandi.
The fact that the trial court already issued an order finally discharging
Moreno fortifies his position. Sec. 16 of the Probation Law provides that
"[t]he final discharge of the probationer shall operate to restore to him
Probation is not a right of an accused but a mere privilege, an act of g
all civil rights lost or suspended as a result of his conviction and to fully
race and clemency or immunity conferred by the state, which is granted
discharge his liability for any fine imposed as to the offense for which
to a deserving defendant who thereby escapes the extreme rigors of the
probation was granted." Thus, when Moreno was finally discharged upon
penalty imposed by law for the offense of which he was convicted. 15
the court’s finding that he has fulfilled the terms and conditions of his
Thus, the Probation Law lays out rather stringent standards regarding wh
probation, his case was deemed terminated and all civil rights lost or su
o are qualified for probation. For instance, it provides that the benefits
spended as a result of his conviction were restored to him, including th
of probation shall not be extended to those sentenced to serve a maxi
e right to run for public office.
mum term of imprisonment of more than six (6) years; convicted of any
offense against the security of the State; those who have previously be
en convicted by final judgment of an offense punished by imprisonment
Even assuming that there is an ambiguity in Sec. 40(a) of the Local Gov
of not less than one (1) month and one (1) day and/or a fine of not les
ernment Code which gives room for judicial interpretation, 14 our conclu
s than P200.00; those who have been once on probation; and those wh
sion will remain the same.
o are already serving sentence at the time the substantive provisions of
the Probation Law became applicable. 16

It is unfortunate that the deliberations on the Local Government Code af

ford us no clue as to the intended meaning of the phrase "service of s
It is important to note that the disqualification under Sec. 40(a) of the L
entence," i.e., whether the legislature also meant to disqualify those who
ocal Government Code covers offenses punishable by one (1) year or m
have been granted probation. The Court’s function, in the face of this s
ore of imprisonment, a penalty which also covers probationable offenses.
eeming dissonance, is to interpret and harmonize the Probation Law and
In spite of this, the provision does not specifically disqualify probationer
s from running for a local elective office. This omission is significant bec
ause it offers a glimpse into the legislative intent to treat probationers a
s a distinct class of offenders not covered by the disqualification.
Further, it should be mentioned that the present Local Government Cod
e was enacted in 1991, some seven (7) years after Baclayon v. Mutia was
decided. When the legislature approved the enumerated disqualifications
under Sec. 40(a) of the Local Government Code, it is presumed to hav
e knowledge of our ruling in Baclayon v. Mutia on the effect of probati
on on the disqualification from holding public office. That it chose not t
o include probationers within the purview of the provision is a clear exp
ression of the legislative will not to disqualify probationers.
On this score, we agree with Moreno that the Probation Law should be
construed as an exception to the Local Government Code. While the Lo
cal Government Code is a later law which sets forth the qualifications an
d disqualifications of local elective officials, the Probation Law is a specia
l legislation which applies only to probationers. It is a canon of statutory
construction that a later statute, general in its terms and not expressly
repealing a prior special statute, will ordinarily not affect the special prov
isions of such earlier statute. 17
In construing Sec. 40(a) of the Local Government Code in a way that br
oadens the scope of the disqualification to include Moreno, the Comelec
committed an egregious error which we here correct. We rule that Mor
eno was not disqualified to run for Punong Barangay of Barangay Cabu
gao, Daram, Samar in the July 15, 2002 Synchronized Barangay and San
gguniang Kabataan Elections.
Finally, we note that Moreno was the incumbent Punong Barangay at th
e time of his conviction of the crime of Arbitrary Detention. He claims t
o have obtained a fresh mandate from the people of Barangay Cabuga
o, Daram, Samar in the July 15, 2002 elections. This situation calls to mi
nd the poignant words of Mr. Justice now Chief Justice Artemio Pangani
ban in Frivaldo v. Comelec 18 where he said that "it would be far better
to err in favor of popular sovereignty than to be right in complex but
little understood legalisms."
WHEREFORE, the petition is GRANTED. The Resolution of the Commissio
n on Elections en banc dated June 1, 2005 and the Resolution of its Firs
t Division dated November 15, 2002, as well as all other actions and ord
ers issued pursuant thereto, are ANNULLED and SET ASIDE. The Commis
sion on Elections is directed to proceed in accordance with this Decision
. No pronouncement as to costs.
 CONSUELO YNARES-SANTIAGO

SO ORDERED. Associate Justice

DANTE O. TINGA ANGELINA SANDOVAL-GUTIERREZ

Associate Justice Associate Justice

WE CONCUR: ANTONIO T. CARPIO

Associate Justice

ARTEMIO V. PANGANIBAN

Chief Justice MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

REYNATO S. PUNO

Associate Justice RENATO C. CORONA

Associate Justice

LEONARDO A. QUISUMBING

Associate Justice
Today is Tuesday, August 06, 2019 home

Custom Search BRION, J.:

Is the preventive suspension of an elected public official an interruption

of his term of office for purposes of the three-term limit rule under Sec
Republic of the Philippines
tion 8, Article X of the Constitution and Section 43(b) of Republic Act N
SUPREME COURT o. 7160 (RA 7160, or the Local Government Code)?

Manila

The respondent Commission on Elections (COMELEC) ruled that preventiv

EN BANC e suspension is an effective interruption because it renders the suspende

d public official unable to provide complete service for the full term; thu
s, such term should not be counted for the purpose of the three-term li
G.R. No. 184836 December 23, 2009 mit rule.

SIMON B. ALDOVINO, JR., DANILO B. FALLER AND FERDINAND N. TALA The present petition1 seeks to annul and set aside this COMELEC ruling
BONG, Petitioners, for having been issued with grave abuse of discretion amounting to lack
or excess of jurisdiction.
vs.

COMMISSION ON ELECTIONS AND WILFREDO F. ASILO, Respondents.

THE ANTECEDENTS

D E C I S I O N
The respondent Wilfredo F. Asilo (Asilo) was elected councilor of Lucena
City for three consecutive terms: for the 1998-2001, 2001-2004, and 2004
-2007 terms, respectively. In September 2005 or during his 2004-2007 te
rm of office, the Sandiganbayan preventively suspended him for 90 days
in relation with a criminal case he then faced. This Court, however, sub
sequently lifted the Sandiganbayan’s suspension order; hence, he resume
The COMELEC en banc refused to reconsider the Second Division’s rulin
g in its October 7, 2008 Resolution; hence, the PRESENT PETITION raisin
g the following ISSUES:
1. Whether preventive suspension of an elected local official is an interru

d performing the functions of his office and finished his term. ption of the three-term limit rule; and

In the 2007 election, Asilo filed his certificate of candidacy for the same 2. Whether preventive suspension is considered involuntary renunciation

position. The petitioners Simon B. Aldovino, Jr., Danilo B. Faller, and Ferd as contemplated in Section 43(b) of RA 7160

inand N. Talabong (the petitioners) sought to deny due course to Asilo’s

certificate of candidacy or to cancel it on the ground that he had bee
Thus presented, the case raises the direct issue of whether Asilo’s preve
n elected and had served for three terms; his candidacy for a fourth ter
ntive suspension constituted an interruption that allowed him to run for
m therefore violated the three-term limit rule under Section 8, Article X
a 4th term.
of the Constitution and Section 43(b) of RA 7160.

THE COURT’S RULING

The COMELEC’s Second Division ruled against the petitioners and in Asil
o’s favour in its Resolution of November 28, 2007. It reasoned out that
the three-term limit rule did not apply, as Asilo failed to render complet
We find the petition meritorious.
e service for the 2004-2007 term because of the suspension the Sandiga
nbayan had ordered.

General Considerations
 d as an interruption in the continuity of his service for the full term for
which he was elected.
The present case is not the first before this Court on the three-term lim
it provision of the Constitution, but is the first on the effect of preventiv
e suspension on the continuity of an elective official’s term. To be sure,
Section 43 (b) of RA 7160 practically repeats the constitutional provision,
preventive suspension, as an interruption in the term of an elective publi
and any difference in wording does not assume any significance in this
c official, has been mentioned as an example in Borja v. Commission on
case.
Elections.2 Doctrinally, however, Borja is not a controlling ruling; it did
not deal with preventive suspension, but with the application of the thre
e-term rule on the term that an elective official acquired by succession. As worded, the constitutional provision fixes the term of a local elective
office and limits an elective official’s stay in office to no more than thre
e consecutive terms. This is the first branch of the rule embodied in Sec
a. The Three-term Limit Rule:
tion 8, Article X.

The Constitutional Provision Analyzed

Significantly, this provision refers to a "term" as a period of time – three
years – during which an official has title to office and can serve. Appar
i v. Court of Appeals,3 a Resolution promulgated on November 28, 2007
Section 8, Article X of the Constitution states:
, succinctly discusses what a "term" connotes, as follows:

Section 8. The term of office of elective local officials, except barangay

The word "term" in a legal sense means a fixed and definite period of t
officials, which shall be determined by law, shall be three years and no
ime which the law describes that an officer may hold an office. Accordin
such official shall serve for more than three consecutive terms. Voluntary
g to Mechem, the term of office is the period during which an office m
renunciation of the office for any length of time shall not be considere
ay be held. Upon expiration of the officer’s term, unless he is authorized
 by law to holdover, his rights, duties and authority as a public officer
must ipso facto cease. In the law of public officers, the most and natura
l frequent method by which a public officer ceases to be such is by the
expiration of the terms for which he was elected or appointed. [Empha
sis supplied].1avvphi1
A later case, Gaminde v. Commission on Audit,4 reiterated that "[T]he te
rm means the time during which the officer may claim to hold office as
of right, and fixes the interval after which the several incumbents shall s
ucceed one another."
The "limitation" under this first branch of the provision is expressed in t
he negative – "no such official shall serve for more than three consecuti
ve terms." This formulation – no more than three consecutive terms – is
a clear command suggesting the existence of an inflexible rule. While it
gives no exact indication of what to "serve. . . three consecutive terms"
exactly connotes, the meaning is clear – reference is to the term, not t
o the service that a public official may render.1awphi1 In other words, th
e limitation refers to the term.
The second branch relates to the provision’s express initiative to prevent
any circumvention of the limitation through voluntary severance of ties
with the public office; it expressly states that voluntary renunciation of of
fice "shall not be considered as an interruption in the continuity of his s
ervice for the full term for which he was elected." This declaration comp
lements the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually stat
e that voluntary renunciation is the only actual interruption of service th
at does not affect "continuity of service for a full term" for purposes of
the three-term limit rule. It is a pure declaratory statement of what does
not serve as an interruption of service for a full term, but the phrase "
voluntary renunciation," by itself, is not without significance in determinin
g constitutional intent.
The word "renunciation" carries the dictionary meaning of abandonment.
To renounce is to give up, abandon, decline, or resign.5 It is an act tha
t emanates from its author, as contrasted to an act that operates from t
he outside. Read with the definition of a "term" in mind, renunciation, a
s mentioned under the second branch of the constitutional provision, ca
nnot but mean an act that results in cutting short the term, i.e., the loss
of title to office. The descriptive word "voluntary" linked together with "
renunciation" signifies an act of surrender based on the surenderee’s ow
n freely exercised will; in other words, a loss of title to office by conscio
us choice. In the context of the three-term limit rule, such loss of title is
not considered an interruption because it is presumed to be purposely
sought to avoid the application of the term limitation.
The following exchanges in the deliberations of the Constitutional Commi
ssion on the term "voluntary renunciation" shed further light on the exte
nt of the term "voluntary renunciation":
MR. MAAMBONG. Could I address the clarificatory question to the Com
mittee? This term "voluntary renunciation" does not appear in Section 3
[of Article VI]; it also appears in Section 6 [of Article VI].
MR DAVIDE. Yes.
MR. MAAMBONG. It is also a recurring phrase all over the Constitution.
Could the Committee please enlighten us exactly what "voluntary renunci
ation" mean? Is this akin to abandonment?
MR. DAVIDE. Abandonment is voluntary. In other words, he cannot circu
mvent the restriction by merely resigning at any given time on the seco
nd term.
MR. MAAMBONG. Is the Committee saying that the term "voluntary ren
unciation" is more general than abandonment and resignation?
MR. DAVIDE. It is more general, more embracing.6
From this exchange and Commissioner Davide’s expansive interpretation
of the term "voluntary renunciation," the framers’ intent apparently was t
o close all gaps that an elective official may seize to defeat the three-te
rm limit rule, in the way that voluntary renunciation has been rendered
unavailable as a mode of defeating the three-term limit rule. Harking ba
ck to the text of the constitutional provision, we note further that Com
missioner Davide’s view is consistent with the negative formulation of th
e first branch of the provision and the inflexible interpretation that it su
ggests.
This examination of the wording of the constitutional provision and of th
e circumstances surrounding its formulation impresses upon us the clear
intent to make term limitation a high priority constitutional objective wh
ose terms must be strictly construed and which cannot be defeated by,
nor sacrificed for, values of less than equal constitutional worth. We vie
w preventive suspension vis-à-vis term limitation with this firm mindset.
b. Relevant Jurisprudence on the
Three-term Limit Rule
Other than the above-cited materials, jurisprudence best gives us a lead
into the concepts within the provision’s contemplation, particularly on th
e "interruption in the continuity of service for the full term" that it speak
s of.
ocal government post; and 2. that he has fully served three consecutive
terms) were not present. In so ruling, we said:
The clear intent of the framers of the constitution to bar any attempt to
circumvent the three-term limit by a voluntary renunciation of office an
d 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 renun
ciation of a term does not cancel the renounced term in the computatio
n of the three term limit; conversely, involuntary severance from office f
or any length of time short of the full term provided by law amounts t
o an interruption of continuity of service. The petitioner vacated his post
a few months before the next mayoral elections, not by voluntary renu
nciation but in compliance with the legal process of writ of execution iss
ued by the COMELEC to that effect. Such involuntary severance from off
ice is an interruption of continuity of service and thus, the petitioner did
not fully serve the 1995-1998 mayoral term. [Emphasis supplied]

Lonzanida v. Commission on Elections7 presented the question of wheth

er the disqualification on the basis of the three-term limit applies if the
Our intended meaning under this ruling is clear: it is severance from offi
election of the public official (to be strictly accurate, the proclamation as
ce, or to be exact, loss of title, that renders the three-term limit rule ina
winner of the public official) for his supposedly third term had been de
pplicable.
clared invalid in a final and executory judgment. We ruled that the two
requisites for the application of the disqualification (viz., 1. that the offici
al concerned has been elected for three consecutive terms in the same l
Ong v. Alegre8 and Rivera v. COMELEC,9 like Lonzanida, also involved t
he issue of whether there had been a completed term for purposes of t
he three-term limit disqualification. These cases, however, presented an i
nteresting twist, as their final judgments in the electoral contest came af
ter the term of the contested office had expired so that the elective offi
cials in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus w
as never validly elected), the Court concluded that there was nevertheles
s an election and service for a full term in contemplation of the three-t
erm rule based on the following premises: (1) the final decision that the
third-termer lost the election was without practical and legal use and val
ue, having been promulgated after the term of the contested office had
expired; and (2) the official assumed and continuously exercised the func
tions of the office from the start to the end of the term. The Court not
ed in Ong the absurdity and the deleterious effect of a contrary view –
that the official (referring to the winner in the election protest) would, u
nder the three-term rule, be considered to have served a term by virtue
of a veritably meaningless electoral protest ruling, when another actuall
y served the term pursuant to a proclamation made in due course after
an election. This factual variation led the Court to rule differently from L
onzanida.
In the same vein, the Court in Rivera rejected the theory that the official
who finally lost the election contest was merely a "caretaker of the offi
ce" or a mere "de facto officer." The Court obeserved that Section 8, Ar
ticle X of the Constitution is violated and its purpose defeated when an
official fully served in the same position for three consecutive terms. Wh
ether as "caretaker" or "de facto" officer, he exercised the powers and e
njoyed the perquisites of the office that enabled him "to stay on indefini
tely."
Ong and Rivera are important rulings for purposes of the three-term lim
itation because of what they directly imply. Although the election requisi
te was not actually present, the Court still gave full effect to the three-t
erm limitation because of the constitutional intent to strictly limit elective
officials to service for three terms. By so ruling, the Court signalled ho
w zealously it guards the three-term limit rule. Effectively, these cases te
ach us to strictly interpret the term limitation rule in favor of limitation r
ather than its exception.
Adormeo v. Commission on Elections10 dealt with the effect of recall on
the three-term limit disqualification. The case presented the question of
whether the disqualification applies if the official lost in the regular electi
on for the supposed third term, but was elected in a recall election cov
ering that term. The Court upheld the COMELEC’s ruling that the official
was not elected for three (3) consecutive terms. The Court reasoned ou
t that for nearly two years, the official was a private citizen; hence, the
continuity of his mayorship was disrupted by his defeat in the election f
or the third term.
Socrates v. Commission on Elections11 also tackled recall vis-à-vis the thr
ee-term limit disqualification. Edward Hagedorn served three full terms a
s mayor. As he was disqualified to run for a fourth term, he did not pa
rticipate in the election that immediately followed his third term. In this
election, the petitioner Victorino Dennis M. Socrates was elected mayor.
Less than 1 ½ years after Mayor Socrates assumed the functions of the
office, recall proceedings were initiated against him, leading to the call f
or a recall election. Hagedorn filed his certificate of candidacy for mayor
in the recall election, but Socrates sought his disqualification on the gr
ound that he (Hagedorn) had fully served three terms prior to the recall
election and was therefore disqualified to run because of the three-ter
m limit rule. We decided in Hagedorn’s favor, ruling that:
After three consecutive terms, an elective local official cannot seek imme
diate 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 lo
nger covered by the prohibition for two reasons. First, a subsequent elec
tion like a recall election is no longer an immediate reelection after thre
e consecutive terms. Second, the intervening period constitutes an involu
ntary interruption in the continuity of service.
When the framers of the Constitution debated on the term limit of elect
ive local officials, the question asked was whether there would be no fur
ther election after three terms, or whether there would be "no immediat
e reelection" after three terms.
x x x x
Clearly, what the Constitution prohibits is an immediate reelection for a f
ourth term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent reelection for a fourth term as long as t
he reelection is not immediately after the end of the third consecutive t
erm. A recall election mid-way in the term following the third consecutiv
e term is a subsequent election but not an immediate reelection after th
e third term.
Neither does the Constitution prohibit one barred from seeking immedia
te reelection to run in any other subsequent election involving the same
term of office. What the Constitution prohibits is a consecutive fourth t
erm.12
Latasa v. Commission on Elections13 presented the novel question of wh
ether a municipal mayor who had fully served for three consecutive ter
ms could run as city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the municipality was con
verted into a city; the cityhood charter provided that the elective officials
of the municipality shall, in a holdover capacity, continue to exercise th
eir powers and functions until elections were held for the new city offici
als. The Court ruled that the conversion of the municipality into a city d
id not convert the office of the municipal mayor into a local governmen
t post different from the office of the city mayor – the territorial jurisdic
tion of the city was the same as that of the municipality; the inhabitants
were the same group of voters who elected the municipal mayor for 3
consecutive terms; and they were the same inhabitants over whom the
municipal mayor held power and authority as their chief executive for ni
ne years. The Court said:
This Court reiterates that the framers of the Constitution specifically inclu
ded an exception to the people’s freedom to choose those who will gov
ern them in order to avoid the evil of a single person accumulating exc
essive power over a particular territorial jurisdiction as a result of a prol
onged stay in the same office. To allow petitioner Latasa to vie for the
position of city mayor after having served for three consecutive terms as
a municipal mayor would obviously defeat the very intent of the framer
s when they wrote this exception. Should he be allowed another three c
onsecutive terms as mayor of the City of Digos, petitioner would then b
e possibly holding office as chief executive over the same territorial juris
diction and inhabitants for a total of eighteen consecutive years. This is
the very scenario sought to be avoided by the Constitution, if not abhor
red by it.14
Latasa instructively highlights, after a review of Lonzanida, Adormeo and
Socrates, that no three-term limit violation results if a rest period or bre
ak in the service between terms or tenure in a given elective post interv
ened. In Lonzanida, the petitioner was a private citizen with no title to a
ny elective office for a few months before the next mayoral elections. Si
milarly, in Adormeo and Socrates, the private respondents lived as privat
e citizens for two years and fifteen months, respectively. Thus, these cas
es establish that the law contemplates a complete break from office duri
ng which the local elective official steps down and ceases to exercise po
wer or authority over the inhabitants of the territorial jurisdiction of a p
articular local government unit.
Seemingly differing from these results is the case of Montebon v. Comm
ission on Elections,15 where the highest-ranking municipal councilor succ
eeded to the position of vice-mayor by operation of law. The question
posed when he subsequently ran for councilor was whether his assumpti
on as vice-mayor was an interruption of his term as councilor that woul
d place him outside the operation of the three-term limit rule. We ruled
that an interruption had intervened so that he could again run as coun
cilor. This result seemingly deviates from the results in the cases heretof
ore discussed since the elective official continued to hold public office a
nd did not become a private citizen during the interim. The common th
read that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of v
ice-mayor by operation of law. Thus, for a time he ceased to be council
or – an interruption that effectively placed him outside the ambit of the
three-term limit rule.
c. Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the "interruption" of a term exem
pting an elective official from the three-term limit rule is one that involv
es no less than the involuntary loss of title to office. The elective official
must have involuntarily left his office for a length of time, however short
, for an effective interruption to occur. This has to be the case if the th
rust of Section 8, Article X and its strict intent are to be faithfully served
, i.e., to limit an elective official’s continuous stay in office to no more t
han three consecutive terms, using "voluntary renunciation" as an exampl
e and standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being i
nvoluntary, is an effective interruption of service within a term, as we he
ld in Montebon. On the other hand, temporary inability or disqualificatio
n to exercise the functions of an elective post, even if involuntary, shoul
d not be considered an effective interruption of a term because it does
not involve the loss of title to office or at least an effective break from
holding office; the office holder, while retaining title, is simply barred fro
m exercising the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office hold
er lost the right to hold on to his office, and cannot be equated with t
he failure to render service. The latter occurs during an office holder’s t
erm when he retains title to the office but cannot exercise his functions
for reasons established by law. Of course, the term "failure to serve" can
not be used once the right to office is lost; without the right to hold of
fice or to serve, then no service can be rendered so that none is really
lost.
hority over the inhabitants of the territorial jurisdiction of a particular loc
al government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule

To put it differently although at the risk of repetition, Section 8, Article a. Nature of Preventive Suspension

X – both by structure and substance – fixes an elective official’s term of

office and limits his stay in office to three consecutive terms as an inflex
Preventive suspension – whether under the Local Government Code,17 th
ible rule that is stressed, no less, by citing voluntary renunciation as an
e Anti-Graft and Corrupt Practices Act,18 or the Ombudsman Act19 – is
example of a circumvention. The provision should be read in the context
an interim remedial measure to address the situation of an official who
of interruption of term, not in the context of interrupting the full conti
have been charged administratively or criminally, where the evidence pre
nuity of the exercise of the powers of the elective position. The "volunta
liminarily indicates the likelihood of or potential for eventual guilt or liab
ry renunciation" it speaks of refers only to the elective official’s voluntary
ility.
relinquishment of office and loss of title to this office. It does not spea
k of the temporary "cessation of the exercise of power or authority" that
may occur for various reasons, with preventive suspension being only o
Preventive suspension is imposed under the Local Government Code "wh
ne of them. To quote Latasa v. Comelec:16
en the evidence of guilt is strong and given the gravity of the offense, t
here is a possibility that the continuance in office of the respondent cou
ld influence the witnesses or pose a threat to the safety and integrity of
Indeed, [T]he law contemplates a rest period during which the local elec
the records and other evidence." Under the Anti-Graft and Corrupt Prac
tive official steps down from office and ceases to exercise power or aut
tices Act, it is imposed after a valid information (that requires a finding
of probable cause) has been filed in court, while under the Ombudsman
 Act, it is imposed when, in the judgment of the Ombudsman, the evid
ence of guilt is strong; and (a) the charge involves dishonesty, oppressio
n or grave misconduct or neglect in the performance of duty; or (b) the
charges would warrant removal from the service; or (c) the respondent’
s continued stay in office may prejudice the case filed against him.
Notably in all cases of preventive suspension, the suspended official is b
arred from performing the functions of his office and does not receive s
alary in the meanwhile, but does not vacate and lose title to his office; l
oss of office is a consequence that only results upon an eventual findin
g of guilt or liability.
Preventive suspension is a remedial measure that operates under closely-
controlled conditions and gives a premium to the protection of the servi
ce rather than to the interests of the individual office holder. Even then,
protection of the service goes only as far as a temporary prohibition on
the exercise of the functions of the official’s office; the official is reinstat
ed to the exercise of his position as soon as the preventive suspension i
s lifted. Thus, while a temporary incapacity in the exercise of power resu
lts, no position is vacated when a public official is preventively suspende
d. This was what exactly happened to Asilo.
That the imposition of preventive suspension can be abused is a reality
that is true in the exercise of all powers and prerogative under the Con
stitution and the laws. The imposition of preventive suspension, however,
is not an unlimited power; there are limitations built into the laws20 th
emselves that the courts can enforce when these limitations are transgre
ssed, particularly when grave abuse of discretion is present. In light of t
his well-defined parameters in the imposition of preventive suspension, w
e should not view preventive suspension from the extreme situation – th
at it can totally deprive an elective office holder of the prerogative to s
erve and is thus an effective interruption of an election official’s term.
Term limitation and preventive suspension are two vastly different aspect
s of an elective officials’ service in office and they do not overlap. As al
ready mentioned above, preventive suspension involves protection of the
service and of the people being served, and prevents the office holder
from temporarily exercising the power of his office. Term limitation, on t
he other hand, is triggered after an elective official has served his three
terms in office without any break. Its companion concept – interruption
of a term – on the other hand, requires loss of title to office. If prevent
ive suspension and term limitation or interruption have any commonality
at all, this common point may be with respect to the discontinuity of se
rvice that may occur in both. But even on this point, they merely run p
arallel to each other and never intersect; preventive suspension, by its n
ature, is a temporary incapacity to render service during an unbroken te
rm; in the context of term limitation, interruption of service occurs after
there has been a break in the term.
b. Preventive Suspension and the Intent of the Three-Term Limit Rule
Strict adherence to the intent of the three-term limit rule demands that
preventive suspension should not be considered an interruption that allo
ws an elective official’s stay in office beyond three terms. A preventive s
uspension cannot simply be a term interruption because the suspended
official continues to stay in office although he is barred from exercising
the functions and prerogatives of the office within the suspension period
. The best indicator of the suspended official’s continuity in office is the
absence of a permanent replacement and the lack of the authority to a
ppoint one since no vacancy exists.
To allow a preventively suspended elective official to run for a fourth an
d prohibited term is to close our eyes to this reality and to allow a con
stitutional violation through sophistry by equating the temporary inability
to discharge the functions of office with the interruption of term that th
e constitutional provision contemplates. To be sure, many reasons exist,
voluntary or involuntary – some of them personal and some of them by
operation of law – that may temporarily prevent an elective office hold
er from exercising the functions of his office in the way that preventive
suspension does. A serious extended illness, inability through force maje
ure, or the enforcement of a suspension as a penalty, to cite some invo
luntary examples, may prevent an office holder from exercising the functi
ons of his office for a time without forfeiting title to office. Preventive s
uspension is no different because it disrupts actual delivery of service for
a time within a term. Adopting such interruption of actual service as th
e standard to determine effective interruption of term under the three-te
rm rule raises at least the possibility of confusion in implementing this r
ule, given the many modes and occasions when actual service may be i
nterrupted in the course of serving a term of office. The standard may r
educe the enforcement of the three-term limit rule to a case-to-case an
d possibly see-sawing determination of what an effective interruption is.
c. Preventive Suspension and Voluntary Renunciation
Preventive suspension, because it is imposed by operation of law, does
not involve a voluntary act on the part of the suspended official, except
in the indirect sense that he may have voluntarily committed the act tha
t became the basis of the charge against him. From this perspective, pr
eventive suspension does not have the element of voluntariness that vol
untary renunciation embodies. Neither does it contain the element of re
nunciation or loss of title to office as it merely involves the temporary i
ncapacity to perform the service that an elective office demands. Thus vi
ewed, preventive suspension is – by its very nature – the exact opposite
of voluntary renunciation; it is involuntary and temporary, and involves
only the actual delivery of service, not the title to the office. The easy c
onclusion therefore is that they are, by nature, different and non-compar
able.
But beyond the obvious comparison of their respective natures is the m
ore important consideration of how they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapa
city to render service, is disallowed by the Constitution as an effective in
terruption of a term. It is therefore not allowed as a mode of circumven
ting the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interru
ption of a term and should therefore not be a reason to avoid the thre
e-term limitation. It can pose as a threat, however, if we shall disregard
its nature and consider it an effective interruption of a term. Let it be n
oted that a preventive suspension is easier to undertake than voluntary r
enunciation, as it does not require relinquishment or loss of office even
for the briefest time. It merely requires an easily fabricated administrative
charge that can be dismissed soon after a preventive suspension has b
een imposed. In this sense, recognizing preventive suspension as an effe
ctive interruption of a term can serve as a circumvention more potent t
han the voluntary renunciation that the Constitution expressly disallows a
s an interruption.
Conclusion
To recapitulate, Asilo’s 2004-2007 term was not interrupted by the Sandi
ganbayan-imposed preventive suspension in 2005, as preventive suspensi
on does not interrupt an elective official’s term. Thus, the COMELEC refu
sed to apply the legal command of Section 8, Article X of the Constituti
on when it granted due course to Asilo’s certificate of candidacy for a p
rohibited fourth term. By so refusing, the COMELEC effectively committe
d grave abuse of discretion amounting to lack or excess of jurisdiction; i
ts action was a refusal to perform a positive duty required by no less t
han the Constitution and was one undertaken outside the contemplation
of law.21
WHEREFORE, premises considered, we GRANT the petition and according Associate Justice
ly NULLIFY the assailed COMELEC rulings. The private respondent Wilfred
ANTONIO EDUARDO B. NACHURA
o F. Asilo is declared DISQUALIFIED to run, and perforce to serve, as C
ouncilor of Lucena City for a prohibited fourth term. Costs against privat Associate Justice DIOSDADO M. PERALTA

e respondent Asilo. Associate Justice

RENATO C. CORONA

SO ORDERED. Associate Justice PRESBITERO J. VELASCO, JR.

Associate Justice

ARTURO D. BRION TERESITA J. LEONARDO-DE CASTRO

Associate Justice Associate Justice LUCAS P. BERSAMIN

Associate Justice

WE CONCUR: MARIANO C. DEL CASTILLO

Associate Justice ROBERTO A. ABAD

REYNATO S. PUNO Associate Justice

Chief Justice MARTIN S. VILLARAMA, JR.

Associate Justice

ANTONIO T. CARPIO

Acting Chief Justice CONCHITA CARPIO MORALES C E R T I F I C A T I O N

 4 401 Phil. 77, 88 (2000).

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certifi

ed that the conclusions in the above Decision were reached in consultati
5 Webster’s Third New International Dictionary (1993), p. 1922.
on before the case was assigned to the writer of the opinion of the Co
urt.

6 II RECORD, Constitutional Commission 591 (August 1, 1986).

REYNATO S. PUNO

Chief Justice 7 G.R. No. 135150, July 28, 1999, 311 SCRA 602.

8 G.R. No. 163295, January 23, 2006, 479 SCRA 473.

Footnotes

9 G.R. No. 167591, May 9, 2007, 523 SCRA 41.

1 Filed under Rule 64, in relation with Rule 65 of the Rules of Court.

10 426 Phil. 472 (2002).

2 329 Phil. 409 (1996).

11 440 Phil. 106 (2002).

3 G.R. No. L-30057, January 31, 1984, 127 SCRA 231, 240.

12 Id. at 125-127.
 21 Grave abuse of discretion defies exact definition, but it generally refer
s to "capricious or whimsical exercise of judgment as is equivalent to lac
13 G.R. No. 154829, December 10, 2003, 417 SCRA 601.
k of jurisdiction – the abuse of discretion must be patent and gross as
to amount to an evasion of positive duty or a virtual refusal to perform

14 Id. at 312-313. a duty enjoined by law, or to act at all in contemplation of law, as whe
re the power is exercised in an arbitrary and despotic manner by reason
of passion and hostility; Quintos v. Commission on Elections, 440 Phil. 1
15 G.R. No. 180444, April 9, 2008, 551 SCRA 50. 045, 1064 (2002), citing Sahali v. Commission on Elections, 381 Phil. 505
(2002).

16 Supra note 12.

The Lawphil Project - Arellano Law Foundation

17 RA 7160, Sections 63 and 64.

18 RA 3019, Section 13.

CONCURRING OPINION
19 RA 6770, Sections 24 and 25.

LEONARDO-DE CASTRO, J.:

20 See: Sec. 24, R.A. No. 6770; Sec. 63, R.A. No. 7160; Sec. 13, R.A. No.
3019.
I concur with the well-written ponencia of Honorable Justice Arturo D. B
rion which holds that "preventive suspension" is not equivalent to an "in
voluntary renunciation" of a public office for the purpose of applying Se
ction 8, Article X of the Constitution. However, I wish to further elucidat
e my concurrence to the views of Justice Brion and give my reflections
on the implications of the outcome of the case for which an elective pu
blic official is suspended pendente lite, which I believe is relevant to the
issue on hand.
The aforementioned provision of Article X reads as follows:
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 considere
d as an interruption in the continuity of his service for the full term for
which he was elected.
The minority view considers "preventive suspension" as an "involuntary re
nunciation" of an elective public official’s term of office, such that even i
f he was elected thrice to serve for three (3) consecutive terms, he may
still run for a fourth term because his service was interrupted by his pre
ventive suspension. However, according to this view, his continuation in
office for such fourth term will depend on his exoneration in the case w
here he was preventively suspended. In other words, the suspended pub
lic official will be deemed disqualified to run for a fourth term only upo
n his conviction which will retroact to the date when he filed his certific
ate of candidacy for his fourth term. This means that even if he runs an
d wins a fourth term and thereafter is convicted in the case in which he
was previously preventively suspended, he will be deemed to have reno
unced voluntarily his fourth term.
I concur with Justice Brion’s view that Borja v. Commission on Elections i
s not the controlling precedent on preventive suspension because this m
atter was not squarely raised in the said case and that the consideration
of preventive suspension from the perspective of voluntary or involuntar
y renunciation is inappropriate.
Nonetheless, I would like to venture into the effect of the acquittal or c
onviction of the preventively suspended public officer to further support
my position that "preventive suspension" does not partake of the nature
of "involuntary renunciation" of an office.
The language of Section 8, Article X of the Constitution implies that an
interruption in the continuity of the service of elective officials is a valid
ground for him to run for a fourth consecutive term. The same provisio
n of the Constitution is explicit and categorical in its declaration that "vo
luntary renunciation" of elective position for any length of time is not to
be considered as an interruption in the continuity of service of an elect
ive official. Conversely, "involuntary renunciation of office" can be deeme
d an interruption in the continuity of the service of the elective official
which would render him eligible to run for a fourth term.
In my opinion, preventive suspension cannot be considered as an "involu
ntary renunciation" of an elective position. One who has been elected to
a public office for three (3) consecutive terms is prohibited to run for t
he same position for a fourth term, notwithstanding his preventive suspe
nsion during any of his first three (3) consecutive terms. Since preventive
suspension is not akin to involuntary renunciation, the rule should hold
true irrespective of his acquittal or conviction in the case in which an el
ective official was preventively suspended.
There is an inherent difference between "renunciation" and "preventive s
uspension" even if the former is involuntary. The former connotes an act
of abandonment or giving up of a position by a public officer which w
ould result in the termination of his service, whereas the latter means th
at a public officer is prevented by legal compulsion, not by his own voli
tion, from discharging the functions and duties of his office, but without
being removed or separated from his office. The term of office of a pre
ventively suspended public officer subsists because preventive suspension
does not create a vacancy in his office. As Justice Brion puts it, he doe
s not become a private citizen while he is under preventive suspension.
The continuity of the term of the suspended official during the period o
f his preventive suspension, whether rendered administrative or court pro
ceedings, is recognized by law and jurisprudence, such that a public offi
cer who is acquitted of the charges against him, is entitled to receive th
e salaries and benefits which he failed to receive during the period of h
is preventive suspension (Section 64, Local Government Code of 1991, Re
public Act (R.A.) No. 7160; Section 13, R.A. 3019, as amended; Tan v. De
partment of Public Works and Highways, G.R. No. 143289, Nov. 11, 2004,
442 SCRA 192, 202).
If the suspended public officer is convicted of the charges, still there is
no interruption of service within the three (3) consecutive terms, within t
he meaning of the Constitution which will warrant his running for a four
th term. Here, it is not the preventive suspension but his having commit
ted a wrongdoing, which gave ground for his removal from office or for
forfeiture of the remainder of his term which can be considered as vol
untary renunciation of his office. The commission of a crime or an admi
nistrative infraction which is a ground for the removal from office of a p
ublic officer is akin to his "voluntary renunciation" of his office. He may
be deemed, by his willful wrongdoing, which betrayed public trust, to ha
ve thereby voluntarily renounced his office under the provision of Sectio
uld not be considered as an interruption of the service of the said publi
c officer that would qualify him to run for a fourth term.
TERESITA J. LEONARDO-DE CASTRO

n 8, Article X of the Constitution. Associate Justice

I beg to disagree with the proposition that the suspended public official
should be allowed to run for a fourth time and if convicted, he should
The Lawphil Project - Arellano Law Foundation
be considered to have voluntarily renounced his fourth term. My reason
is that the crime was committed not during his fourth term but during
his previous term. The renunciation should refer to the term during whic
h the crime was committed. The commission of the crime is tantamount
to his voluntary renunciation of the term he was then serving, and not
any future term. Besides, the electorate should not be placed in an unce SEPARATE CONCURRING OPINION
rtain situation wherein they will be allowed to vote for a fourth term a
candidate who may later on be convicted and removed from office by a
judgment in a case where he was previously preventively suspended. ABAD, J.:

In view of the foregoing, I reiterate my concurrence with the majority o I join the majority opinion and add a few thoughts of my own.

pinion that preventive suspension, regardless of the outcome of the case

in which an elective public officer has been preventively suspended, sho
The Facts

Respondent Wilfredo F. Asilo won three consecutive elections as councilo
r of Lucena City, specifically from 1998 to 2001, from 2001 to 2004, and
from 2004 to 2007. During his last term or on October 3, 2005, the Sa
ndiganbayan ordered him placed under preventive suspension for ninety
days in connection with a crime of which he had been charged. After a
bout thirty-seven days, however, or on November 9, 2005, this Court lift
ed the order of suspension and allowed Asilo to resume the duties of h
is office.
Believing that his brief preventive suspension interrupted his full service i
n office and allowed him to seek a fourth term as councilor because of
it, Asilo filed a certificate of candidacy for the same office in the 2007 e
lections. When this was questioned, both the Second Division of the Co
mmission on Elections and its En Banc ruled that the three-term limit di
d not apply to Asilo’s case since the Sandiganbayan’s order of preventiv
e suspension did not allow him to complete the third term for which he
was elected in 2004.
The Issue
The issue in this case is whether or not respondent Asilo’s preventive su
spension during his third term as councilor, which shortened the length
of his normal service by thirty-seven days, allowed him to run for a four
th consecutive term for the same office.
Discussion
The issue in this case revolves around Section 8 of Article X of the 1987
Constitution:
The term of office of elective local officials, except barangay officials, whi
ch 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 inter
ruption in the continuity of his service for the full term for which he wa
s elected.
The first part states that no local official shall serve for more than three
consecutive terms.
The second, on the other hand, states that voluntary renunciation of offi
ce shall not be considered an interruption in the continuity of his servic
e for the full term for which he was elected.1
That the first part is a prohibitory rule is not in question. This is quite cl
ear. It says that no local official can serve for more than three terms. Tr
aditionally, politicians find ways of entrenching themselves in their offices
and the consensus is that this practice is not ideal for good governme
nt. Indeed, the Constitution expresses through the three-term limit rule a
determination to open public office to others and bring fresh ideas and
energies into government as a matter of policy. The mandate of this C
ourt in this case is to enforce such constitutionally established prohibitio
n.
Actually, what creates the mischief is the statement in the second part o
f Section 8 that "voluntary renunciation" of office shall not be considere
d an interruption in the continuity of his service for the full term for wh
ich the local official was elected. The dissenting opinion infers from this
that "any service short of full service of three consecutive terms, save fo
r voluntary renunciation of office, does not bar an elective local official f
rom running again for the same local government post." In other words,
elected politicians whose services are cut in the course of any term by
"involuntary renunciation" are eligible for a fourth term.
Relying on its above inference, the dissenting opinion claims that preven
tive suspension is, by default, an "involuntary renunciation" of an elective
official’s term of office since he does not choose to be preventively sus
pended. Preventive suspension cuts into the full term of the elected offic
ial and gives him justification for seeking a fourth term.
But, there is in reality no such thing as "involuntary" renunciation. Renun
ciation is essentially "formal or voluntary." It is the act, says Webster, "of
renouncing; a giving up formally or voluntarily, often at a sacrifice, of a
right, claim, title, etc."2 If the dissenting opinion insists on using the ter
m "involuntary renunciation," it could only mean "coerced" renunciation, i
.e., renunciation forced on the elected official. With this meaning, any p
olitician can simply arrange for someone to make him sign a resignation
paper at gun point. This will justify his running for a fourth term. But,
surely, the law cannot be mocked in this way.
Parenthetically, there can be other causes for "involuntary renunciation," i
nterruption of service that is not of the elected official’s making. For inst
ance, through the fault of a truck driver, the elected official’s car could f
all into a ditch and put the official in the hospital for a week, cutting hi
s service in office against his will. Temporary illness can also interrupt se
rvice. Natural calamities like floods and earthquakes could produce the s
ame result. Since these are "involuntary renunciations" or interruptions in
the elective official’s service, it seems that he would, under the dissentin
g opinion’s theory, be exempt from the three-year rule. But surely, Secti
on 8 could not have intended this for it would overwhelm the constituti
onal ban against election for more than three consecutive terms.
Actually, though, "voluntary renunciation," the term that the law uses sim
ply means resignation from or abandonment of office. The elected offici
al who voluntarily resigns or abandons his duties freely renounces the p
owers, rights, and privileges of his position. The opposite of "voluntary r
enunciation" in this context would be "removal from office," a sanction i
mposed by some duly authorized person or body, not an initiative of or
a choice freely made by the elected official. Should "removal from offic
e" be the test, therefore, for determining interruption of service that will
warrant an exception to the three-term limit rule?
Apparently not, since an elected official could be removed from office th
rough recall (a judgment by the electorates that he is unfit to continue
serving in office),3 criminal conviction by final judgment,4 and administra
tive dismissal.5 Surely, the Constitution could not have intended to rewar
d those removed in this way with the opportunity to skip the three-year
bar.
The only interruption in the continuity of service of an elected official th
at does not amount to removal is termination of his service by operatio
n of law. This is exemplified in the case of Montebon v. COMELEC,6 wh
ere this Court deemed the highest-ranking councilor’s third term as such
"involuntarily" interrupted when he succeeded as vice mayor by operati
on of law upon the latter’s retirement. This Court considered the ranking
councilor eligible to run again as councilor for the succeeding term.
But Montebon cannot be compared with Asilo’s case since Montebon’s t
erm as councilor ended by operation of law when the vice mayor retire
d and Montebon had to step into his shoes.7 Asilo’s term, on the other
hand, did not end when the Sandiganbayan placed him under preventi
ve suspension. He did not vacate his office. It merely enjoined him in th
e meantime from performing his duties and exercising his powers. His te
rm ran the full course; it was not cut.
It might be correct to say that the will of the electorates is for Asilo to
serve the full term of his office. But, given the presumption that the ele
ctorates knew of the law governing preventive suspension when they ele
cted him, it must be assumed that they elected him subject to the cond
ition that he can be preventively suspended if the occasion warrants. Su
ch suspension cannot, therefore, be regarded as a desecration of the pe
ople’s will.
It does not matter that the preventive suspension imposed on the electe
d official may later on prove unwarranted. The law provides the proper
remedy for such error. Here, the Supreme Court supplied that remedy. I
t set aside the preventive suspension imposed on Asilo by the Sandigan
bayan. There is, on the other hand, no law that allows an elected officia
l to tack to his term of office the period of service he had lost by reas
on of preventive suspension just so he can make up for the loss. The di
ssenting opinion’s position would create a rule that will allow Asilo, who
lost thirty-seven days of service because of that suspension, a right to b
e re-elected to a fourth consecutive term of one thousand ninety-five d
ays (365 days x 3).
In Borja, Jr. v. COMELEC,8 this Court cited a hypothetical situation where
B is elected Mayor and, during his first term, he is twice suspended for
misconduct for a total of one year. If he is twice reelected after that, c
an he run for one more term in the next election? This Court answered
in the affirmative, stating as reason that B successfully served only two f
ull terms.9
But such interpretation of the law wounds its very spirit for, in effect, it
would reward the elected official for his misconduct. Fr. Joaquin G. Bern
as, S.J., a recognized constitutionalist, is also not swayed by it. He points
out that when an elected official is suspended, he shortens neither his
term nor his tenure. He is still seen as the rightful holder of the office
and, therefore, must be considered as having served a full term during t
he period of suspension.10
ACCORDINGLY, I submit that preventive suspension did not interrupt Asil
o’s term of office from 2004-2007 and it cannot be considered an exce
ption to the three-term limit rule. Thus, Asilo is disqualified from running
in the 2007 elections for violation of that rule pursuant to Section 8, A
rticle X of the Constitution. I vote to GRANT the petition.
ROBERTO A. ABAD
Associate Justice
 G.R. No. 154512 November 12, 2002

Footnotes

VICTORINO DENNIS M. SOCRATES, Mayor of Puerto Princesa City, petiti

oner,
1 Socrates v. Commission on Elections, G.R. No. 154512, November 12, 2
002, 391 SCRA 457, 467. vs.

THE COMMISSION ON ELECTIONS, THE PREPARATORY RECALL ASSEMBL

Y (PRA) of Puerto Princesa City, PRA Interim Chairman Punong Bgy. MA
2 Webster’s New World College Dictionary, Third Edition, p. 1137.
RK DAVID HAGEDORN, PRA Interim Secretary Punong Bgy. BENJAMIN J
ARILLA, PRA Chairman and Presiding Officer Punong Bgy. EARL S. BUEN

3 R.A. No. 7160, Section 69. By Whom Exercised. - The power of r VIAJE and PRA Secretary Punong Bgy. CARLOS ABALLA, JR. respondents.

-----------------------------

Today is Thursday, September 12, 2019home

Custom Search G.R. No. 154683 November 12, 2002

VICENTE S. SANDOVAL, JR., petitioner,

vs.

EN BANC THE COMMISSION ON ELECTIONS, respondent.

----------------------------- brevity) in relation to the recall election for mayor of Puerto Princesa Cit
y, Palawan.

G.R. Nos. 155083-84 November 12, 2002

The Antecedents

MA. FLORES P. ADOVO, MERCY E. GILO and BIENVENIDO OLLAVE, SR.,

petitioners, On July 2, 2002, 312 out of 528 members of the then incumbent baran
gay officials of the Puerto Princesa convened themselves into a Preparat
vs.
ory Recall Assembly ("PRA" for brevity) at the Gymnasium of Barangay S
THE COMMISSION ON ELECTIONS, and EDWARD S. HAGEDORN, respon an Jose from 9:00 a.m. to 12:00 noon. The PRA was convened to initiate
dents. the recall2 of Victorino Dennis M. Socrates ("Socrates" for brevity) who
assumed office as Puerto Princesa's mayor on June 30, 2001. The memb
ers of the PRA designated Mark David M. Hagedorn, president of the A
D E C I S I O N
ssociation of Barangay Captains, as interim chair of the PRA.

CARPIO, J.:
On the same date, the PRA passed Resolution No. 01-02 ("Recall Resolut
ion" for brevity) which declared its loss of confidence in Socrates and ca
lled for his recall. The PRA requested the COMELEC to schedule the rec
The Case
all election for mayor within 30 days from receipt of the Recall Resolutio
n.

Before us are consolidated petitions for certiorari1 seeking the reversal of

the resolutions issued by the Commission on Elections ("COMELEC" for
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 R
esolution.
On August 14, 2002, the COMELEC en banc3 promulgated a resolution
dismissing for lack of merit Socrates' petition. The COMELEC gave due c
ourse to the Recall Resolution and scheduled the recall election on Sept
ember 7, 2002.
On August 21, 2002, the COMELEC en banc promulgated Resolution No.
5673 prescribing the calendar of activities and periods of certain prohib
ited acts in connection with the recall election. The COMELEC fixed the
campaign period from August 27, 2002 to September 5, 2002 or a peri
od 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 Merl
y E. Gilo ("Gilo" for brevity) filed a petition before the COMELEC, docket
ed as SPA No. 02-492, to disqualify Hagedorn from running in the recal
l election and to cancel his certificate of candidacy. On August 30, 2002,
a certain Bienvenido Ollave, Sr. ("Ollave" for brevity) filed a petition-in-i
ntervention in SPA No. 02-492 also seeking to disqualify Hagedorn. On
the same date, a certain Genaro V. Manaay filed another petition, docke
ted 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 co
nsecutive term, having been elected and having served as mayor of the
city for three (3) consecutive full terms immediately prior to the instant r
ecall 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 Firs
t 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 Sep
tember 24, 2002.
On September 23, 2002, the COMELEC en banc promulgated a resolutio
n denying the motion for reconsideration of Adovo and Gilo. The COME
LEC affirmed the resolution declaring Hagedorn qualified to run in the r
ecall election.
 G.R. No. 154683

Hence, the instant consolidated petitions.

Petitioner Vicente S. Sandoval, Jr. seeks to annul COMELEC Resolution N

o. 5673 dated August 21, 2002 insofar as it fixed the recall election on
G.R. No. 154512
September 7, 2002, giving the candidates only a ten-day campaign perio
d. He prayed that the COMELEC be enjoined from holding the recall ele

Petitioner Socrates seeks to nullify the COMELEC en banc resolution dat ction on September 7, 2002 and that a new date be fixed giving the ca

ed August 14, 2002 in E.M. No. 02-010 (RC) which gave due course to t ndidates at least an additional 15 days to campaign.

he Recall Resolution and scheduled the recall election on September 7,

2002.
In a resolution dated September 3, 2002, the Court en banc enjoined th
e COMELEC from implementing Resolution No. 5673 insofar as it fixed t

Socrates alleges that the COMELEC gravely abused its discretion in upho he date of the recall election on September 7, 2002. The Court directed

lding the Recall Resolution. Socrates cites the following circumstances as the COMELEC to give the candidates an additional fifteen 15 days from

legal infirmities attending the convening of the PRA and its issuance of t September 7, 2002 within which to campaign.

he Recall Resolution: (1) not all members of the PRA were notified of th
e meeting to adopt the resolution; (2) the proof of service of notice wa
Accordingly, on September 9, 2002, the COMELEC en banc issued Resol
s palpably and legally deficient; (3) the members of the PRA were thems
ution No. 5708 giving the candidates an additional 15 days from Septem
elves seeking a new electoral mandate from their respective constituents;
ber 7, 2002 within which to campaign. Thus, the COMELEC reset the rec
(4) the adoption of the resolution was exercised with grave abuse of a
all election to September 24, 2002.
uthority; and (5) the PRA proceedings were conducted in a manner that
violated his and the public's constitutional right to information.

G.R. Nos. 155083-84

Petitioners Adovo, Gilo and Ollave assail the COMELEC's resolutions date
d 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 elec
tion. They likewise prayed for the issuance of a temporary restraining or
der to enjoin the proclamation of the winning candidate in the recall ele
ction.
Petitioners argue that the COMELEC gravely abused its discretion in uph
olding Hagedorn's qualification to run for mayor in the recall election de
spite the constitutional and statutory prohibitions against a fourth consec
In the meantime, Hagedorn garnered the highest number of votes in th
e recall election with 20,238 votes. Rival candidates Socrates and Sandov
al 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

utive term for elective local officials. a petition for intervention.

In a resolution dated September 24, 2002, the Court ordered the COME The Issues

LEC to desist from proclaiming any winning candidate in the recall electi
on until further orders from the Court. Petitioners were required to post
The issues for resolution of the Court are:
a P20,000 bond.

1. In G.R. No. 154512, whether the COMELEC committed grave abuse of

On September 27, 2002, Socrates filed a motion for leave to file an atta
discretion in giving due course to the Recall Resolution and scheduling t
ched petition for intervention seeking the same reliefs as those sought b
he recall election for mayor of Puerto Princesa.
y Adovo, Gilo and Ollave.
 n 70 of the Local Government Code. Copies of the said notice are in V
olumes I and II entitled Notices to PRA. Likewise, Proof of Service for ea
2. In G.R. Nos.155083-84, whether Hagedorn is qualified to run for mayo
ch of the said notices were attached to the Petition and marked as Ann
r in the recall election of Puerto Princesa on September 24, 2002.
ex "G" of Volumes II and III of the Petition.

In G.R. No. 154683, the issue of whether the COMELEC committed grave
Notices were likewise posted in conspicuous places particularly at the Ba
abuse of discretion in fixing a campaign period of only 10 days has be
rangay Hall. Photos establishing the same were attached to the Petition
come moot. Our Resolution of September 3, 2002 and COMELEC Resolu
and marked as Annex "H". The proponents likewise utilized the broadcas
tion No. 5708 granted an additional 15 days for the campaign period as
t mass media in the dissemination of the convening of the PRA.
prayed for by petitioner.

Notices of the convening of the Puerto Princesa PRA were also sent to
First Issue: Validity of the Recall Resolution.
the following: [a list of 25 names of provincial elective officials, print and
broadcast media practitioners, PNP officials, COMELEC city, regional and

Petitioner Socrates argues that the COMELEC committed grave abuse of national officials, and DILG officials].

discretion in upholding the Recall Resolution despite the absence of noti

ce to 130 PRA members and the defective service of notice to other PR
x x x
A members. The COMELEC, however, found that –

The City Election Officer of Puerto Princesa City in her Certification date
"On various dates, in the month of June 2002, the proponents for the R
d 10 July 2002 certified that upon a 'thorough and careful verification of
ecall of incumbent City Mayor Victorino Dennis M. Socrates sent notices
the signatures appearing in PRA Resolution 01-02, x x x the majority of
of the convening of the PRA to the members thereof pursuant to Sectio
all members of the PRA concerned approved said resolution.' She likewi
se 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 hi
s Indorsement dated 10 July 2002, stated, 'upon proper review, all docu
ments submitted are found in order.'
The Acting Director IV, Region IV, in his study dated 30 July 2002 subm
itted the following recommendations:
'This Office, after evaluating the documents filed, finds the instant Petitio
n sufficient in form and substance. That the PRA was validly constituted
and that the majority of all members thereof approved Resolution No. 0
1-02 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 findin
gs are patently erroneous. In Malonzo v. COMELEC,5 which also dealt wi
th 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 the
refore a function of the COMELEC. In the absence of patent error, or se
rious inconsistencies in the findings, the Court should not disturb the sa
me. The factual findings of the COMELEC, based on its own assessments
and duly supported by gathered evidence, are conclusive upon the cou
rt, more so, in the absence of a substantiated attack on the validity of t
he same."
In the instant case, we do not find any valid reason to hold that the C
OMELEC's findings of fact are patently erroneous.
Socrates also claims that the PRA members had no authority to adopt t
he Recall Resolution on July 2, 2002 because a majority of PRA member
s were seeking a new electoral mandate in the barangay elections sched
uled on July 15, 2002. This argument deserves scant consideration consid
ering that when the PRA members adopted the Recall Resolution their t
erms of office had not yet expired. They were all de jure sangguniang b
arangay members with no legal disqualification to participate in the recal
l assembly under Section 70 of the Local Government Code.
in the recall election of September 24, 2002.

Socrates bewails that the manner private respondents conducted the PR

A 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 elec
tion submitted to the COMELEC the Recall Resolution, minutes of the PR
A proceedings, the journal of the PRA assembly, attendance sheets, notic
es sent to PRA members, and authenticated master list of barangay offic
ials in Puerto Princesa. Socrates had the right to examine and copy all t
hese public records in the official custody of the COMELEC. Socrates, ho
wever, does not claim that the COMELEC denied him this right. There is
no legal basis in Socrates' claim that respondents violated his constituti
onal right to information on matters of public concern.
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 considere
d 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:

Thus, we rule that the COMELEC did not commit grave abuse of discreti
on in upholding the validity of the Recall Resolution and in scheduling t "Section 43. Term of Office. – (a) x x x
he recall election on September 24, 2002.

(b) No local elective official shall serve for more than three (3) consecuti
Second Issue: Hagedorn's qualification to run for mayor ve terms in the same position. Voluntary renunciation of the office for a
ny length of time shall not be considered as an interruption in the conti
nuity of service for the full term for which the elective official was electe
When the framers of the Constitution debated on the term limit of elect
d."
ive local officials, the question asked was whether there would be no fur
ther election after three terms, or whether there would be "no immediat
e reelection" after three terms. This is clear from the following deliberati
These constitutional and statutory provisions have two parts. The first pa
ons of the Constitutional Commission:
rt provides that an elective local official cannot serve for more than thre
e consecutive terms. The clear intent is that only consecutive terms coun
t in determining the three-term limit rule. The second part states that v
"THE PRESIDENT: The Acting Floor Leader is recognized.
oluntary renunciation of office for any length of time does not interrupt
the continuity of service. The clear intent is that involuntary severance fr
om office for any length of time interrupts continuity of service and pre MR. ROMULO:6 We are now ready to discuss the two issues, as indicate
vents the service before and after the interruption from being joined tog d on the blackboard, and these are Alternative No. I where there is no
ether to form a continuous service or consecutive terms. further election after a total of three terms and Alternative No. 2 where
there is no immediate reelection after three successive terms."7

After three consecutive terms, an elective local official cannot seek imme
diate reelection for a fourth term. The prohibited election refers to the The Journal of the Constitutional Commission reports the following manif
next regular election for the same office following the end of the third estation on the term of elective local officials:
consecutive term. Any subsequent election, like a recall election, is no lo
nger covered by the prohibition for two reasons. First, a subsequent elec
tion like a recall election is no longer an immediate reelection after thre "MANIFESTATION OF MR. ROMULO
e consecutive terms. Second, the intervening period constitutes an involu
ntary interruption in the continuity of service.
Upon resumption of session, Mr. Romulo manifested that the Body woul
d proceed to the consideration of two issues on the term of Representa
tives and local officials, namely: 1) Alternative No. 1 (no further reelection
after a total of three terms), and 2) Alternative No. 2 (no immediate re
election after three successive terms)."8
The framers of the Constitution used the same "no immediate reelection
" question in voting for the term limits of Senators9 and Representatives
of the House.10
Clearly, what the Constitution prohibits is an immediate reelection for a f
ourth term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent reelection for a fourth term as long as t
he reelection is not immediately after the end of the third consecutive t
erm. A recall election mid-way in the term following the third consecutiv
e term is a subsequent election but not an immediate reelection after th
e third term.
Neither does the Constitution prohibit one barred from seeking immedia
te reelection to run in any other subsequent election involving the same
term of office. What the Constitution prohibits is a consecutive fourth t
erm. The debates in the Constitutional Commission evidently show that t
he prohibited election referred to by the framers of the Constitution is t
he immediate reelection after the third term, not any other subsequent
election.
If the prohibition on elective local officials is applied to any election with
in the three-year full term following the three-term limit, then Senators s
hould also be prohibited from running in any election within the six-year
full term following their two-term limit. The constitutional provision on t
he 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 afte
r the second term. We will allow the Senator to rest for a period of tim
e before he can run again?
DAVIDE:13 That is correct.
GASCON: And the question that we left behind before - if the Gentlema
n 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 express
ed 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 r
eally a period of hibernation for six years. That was the Committee's sta
nd.
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 afte
r only three years15 following his completion of two terms. The framers
expressly acknowledged that the prohibited election refers only to the i
mmediate 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 reach
ed his term limit to be the full extent of the succeeding term.
In the case of Hagedorn, his candidacy in the recall election on Septem
ber 24, 2002 is not an immediate reelection after his third consecutive t
erm which ended on June 30, 2001. The immediate reelection that the C
onstitution barred Hagedorn from seeking referred to the regular electio
ns 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 Co
de, 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 th
e 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, 20
01, 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, Hagedo
rn was simply a private citizen. This period is clearly an interruption in t
he continuity of Hagedorn's service as mayor, not because of his volunt
ary renunciation, but because of a legal prohibition. Hagedorn's three co
nsecutive terms ended on June 30, 2001. Hagedorn's new recall term fro
m September 24, 2002 to June 30, 2004 is not a seamless continuation
of his previous three consecutive terms as mayor. One cannot stitch tog
ether 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, 2
002 which broke the continuity or consecutive character of Hagedorn's s
ervice as mayor.
In Lonzanida v. Comelec,17 the Court had occasion to explain interruptio
n 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 r
enounced term in the computation of the three-term limit; conversely, in
voluntary severance from office for any length of time short of the full t
erm 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, alt
hough 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 int
ent 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 s
ervice.
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 offici
al. In Adormeo, Ramon Y. Talaga, Jr. had served two consecutive full ter
ms as mayor of Lucena City. In his third bid for election as mayor in 19
98, Talaga lost to Bernard G. Tagarao. However, in the recall election of
May 12, 2000, Talaga won and served the unexpired term of Tagarao fr
om May 12, 2000 to June 30, 2001. When Talaga ran again for mayor i
n the 2001 elections, Raymundo Adormeo, the other candidate for mayo
r, 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 cont
inuation of his previous two terms so that he was deemed to have alre
ady served three consecutive terms as mayor. The Court ruled that Tala
ga was qualified to run in the 2001 elections, stating that the period fro
m June 30, 1998 to May 12, 2000 when Talaga was out of office interru
pted the continuity of his service as mayor. Talaga's recall term as mayo
r was not consecutive to his previous two terms because of this interrup
tion, 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 o
ffice interrupts the continuity of his service and prevents his recall term f
rom being stitched together as a seamless continuation of his previous t
wo consecutive terms. In the instant case, we likewise hold that the near
ly 15 months Hagedorn was out of office interrupted his continuity of se
rvice and prevents his recall term from being stitched together as a sea
mless continuation of his previous three consecutive terms. The only diff
erence between Adormeo and the instant case is the time of the interru
ption. In Adormeo, the interruption occurred after the first two consecuti
ve terms. In the instant case, the interruption happened after the first th
ree consecutive terms. In both cases, the respondents were seeking elect
ion for a fourth term.
In Adormeo, the recall term of Talaga began only from the date he ass
umed 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 re
call term was made to so retroact, then he would have been disqualifie
d to run in the 2001 elections because he would already have served th
ree consecutive terms prior to the 2001 elections. One who wins and ser
ves a recall term does not serve the full term of his predecessor but on
ly the unexpired term. The period of time prior to the recall term, when
another elective official holds office, constitutes an interruption in contin
uity of service. Clearly, Adormeo established the rule that the winner in
the recall election cannot be charged or credited with the full term of t
hree years for purposes of counting the consecutiveness of an elective o
fficial's terms in office.
In the same manner, Hagedorn's recall term does not retroact to includ
e 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 th
at he won his recall term only last September 24, 2002, is to ignore rea
lity. This Court cannot declare as consecutive or successive terms of offic
e 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 t
heir own choosing. Term limits must be construed strictly to give the ful
lest possible effect to the sovereign will of the people. As this Court apt
ly 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 pow
er. Indeed, they rejected a proposal put forth by Commissioner Edmund
o F. Garcia that after serving three consecutive terms or nine years ther
e should be no further reelection for local and legislative officials. Instea
d, they adopted the alternative proposal of Commissioner Christian Mons
od that such officials be simply barred from running for the same positi
on in the succeeding election following the expiration of the third conse
cutive term. Monsod warned against 'prescreening candidates [from] who
m the people will choose' as a result of the proposed absolute disqualifi
cation, considering that the draft constitution contained provisions 'recog
nizing people's power.'"19 (Emphasis supplied)
A necessary consequence of the interruption of continuity of service is t
he start of a new term following the interruption. An official elected in r
ecall election serves the unexpired term of the recalled official. This unex
pired term is in itself one term for purposes of counting the three-term
limit. This is clear from the following discussion in the Constitutional Co
mmission:
"SUAREZ:20 For example, a special election is called for a Senator, and t
he Senator newly elected would have to serve the unexpired portion of
the term. Would that mean that serving the unexpired portion of the te
rm is already considered one term? So, half a term, which is actually th
e correct statement, plus one term would disqualify the Senator concern
In summary, we hold that Hagedorn is qualified to run in the Septembe
r 24, 2002 recall election for mayor of Puerto Princesa because:
1. Hagedorn is not running for immediate reelection following his three

ed from running? Is that the meaning of this provision on disqualificatio consecutive terms as mayor which ended on June 30, 2001;

n, Madam President?

2. Hagedorn's continuity of service as mayor was involuntarily interrupted

DAVIDE: Yes, because we speak of 'term,' and if there is a special electi from June 30, 2001 to September 24, 2002 during which time he was

on, he will serve only for the unexpired portion of that particular term p a private citizen;

lus one more term for the Senator and two more terms for the Membe
rs of the Lower House."21
3. Hagedorn's recall term from September 24, 2002 to June 30, 2004 ca
nnot be made to retroact to June 30, 2001 to make a fourth consecutiv

Although the discussion referred to special elections for Senators and Re e term because factually the recall term is not a fourth consecutive term

presentatives of the House, the same principle applies to a recall electio ; and

n of local officials. Otherwise, an elective local official who serves a recal

l term can serve for more than nine consecutive years comprising of the
4. Term limits should be construed strictly to give the fullest possible eff
recall term plus the regular three full terms. A local official who serves
ect to the right of the electorate to choose their leaders.
a recall term should know that the recall term is in itself one term altho
ugh less than three years. This is the inherent limitation he takes by run
ning and winning in the recall election.
WHEREFORE, the petitions in G.R. Nos. 154512, 154683 and 155083-84 ar
e DISMISSED. The temporary restraining order issued by this Court on S
eptember 24, 2002 enjoining the proclamation of the winning candidate
for mayor of Puerto Princesa in the recall election of September 24, 200
2 is lifted. No costs.
SO ORDERED.
Bellosillo, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez,
Carpio-Morales, and Callejo, Sr., JJ., concur.
Davide, Jr., C.J., see concurring and dissenting opinion.
Puno, J., see concurring opinion.
Vitug, J., in the result.
Mendoza, J., in the result, without to the filing of separate opinion.
Austria-Martinez, J., on leave.
P
The term of office covered by the May 2001 election is up to 30 June 2
004. Section 8 of Article X of the Constitution and Section 43(b) of R.A.
No. 7160 are clear in what is prohibited, which is the fourth term. Nothi
ng can be clearer from the wordings thereof: "the term of office of elec
tive local officials ... shall be three years and no such official shall serve
for more that three consecutive terms." In short, an elective local official
who has served three consecutive terms, like Hagedorn, is disqualified fr
om seeking re-election for the succeeding fourth term. The provision bar
s the holding of four consecutive terms.
The ponencia is then correct when it holds that the three-term limit bar
s an immediate reelection for a fourth term. But I disagree when it rules
that in the case of Hagedorn he did not seek an immediate reelection
for a fourth term because he was not a candidate for reelection in the
May 2001 election. It forgets that what would have been his fourth term
by virtue of the May 2001 election was for the period from 30 June 20
01 to 30 June 2004. The flaw in the ruling results from an apparent con
fusion between term and election, the root cause of which is the attem
pt to distinguish "voluntary renunciation" of office from "involuntary seve
rance" from office and the term of office to which it relates.
Let me first discuss the matter of whether the Constitutional Commission
did approve the rule of "no Immediate reelection after three consecutiv
e terms." In support of its affirmative conclusion the ponencia quotes th
e Manifestation of Commissioner Romulo as entered in the Journal of th
e Constitutional Commission, thus:
MANIFESTATION OF MR. ROMULO
 report of the Committee on Local Governments as to its recommendatio
n on this matter.
Upon resumption of session, Mr. Romulo manifested that the Body woul
d proceed to the consideration of two issues on the term of Representa
tives and local officials, namely: a) Alternative No. 1 (no further reelectio
MR. RODRIGO. As a matter of fact, I will go further than that, it is my
n after a total of three terms), and 2) Alternative No. 2 (no immediate r
belief, as regards local officials, that we should leave this matter to the l
eelection after three successive terms).
egislative.

This is inaccurate. What actually happened was that the issue was origin
THE PRESIDENT. So what is the pleasure now of the Acting Floor Leader
ally for elective national and local officials. However, the Commission dec
or of the Chairman of the Committee on the Legislative?
ided to consider first the term of the members of Congress; and to def
er the discussion on the term of elective local officials until the Commiss
ion would consider the report of the Committee on Local Governments. MR. RODRIGO. I wonder if the two proponents, Madam President, will a
On this point I quote the pertinent portions of Volume Two, pages 238- gree that we first talk about the term of office of the Representatives b
245 of the Record of the Constitutional Commission of its proceedings o ecause we are now discussing the legislative department.
n 25 July 1986:

MR. DAVIDE. Madam President.

THE PRESIDENT. Maybe it will be of help we Just remind ourselves that
what we have before us now is the report of the Committee on the Le
gislative. Therefore, maybe we should confine ourselves first to what is c THE PRESIDENT. Commissioner Davide is recognized.
overed by the report which is the term of office of the Senators and th
e Representatives.And with respect to the local officials, let us await the
MR. DAVIDE. I will agree really that this matter should relate only to the
term of office of the Representatives.
MR. ROMULO. In a way, Madam President, we have settled the synchro
nization task, because we have decided on the officials' absolute terms.
All we are really talking about now is whether or not they are eligible f
THE PRESIDENT. But are we agreed on these two proposals - the one o
or reelection, and I think those are separable issues.
f Commissioner Garcia where there is no further election after a total of
three terms and the other where there is no Immediate reelection after
three successive terms?
MR. OPLE. If they are separable, and we have already settled the synchr
onization task, then I think that is something to be thankful about. But
considering the immediate business at hand, is it the wish of the Acting
MR. OPLE. Madam President, originally if I remember right, the Commiss
Floor Leader that the election of the local officials should be eliminated
ion decided to consider the synchronization of elections. And from that
from the consideration of those two choices?
original commitment, we proceeded to fix the terms and decided related
questions within the context of synchronization. Are we now abandonin
g the original task of synchronization which could only be fully settled i
MR. ROMULO. Yes. I think the sense of the body now is to limit this ch
n terms of delimitations on the proposed terms of the President and th
oice to the Members of the House of Representatives.
e Vice-President, the Members of Congress and the local officials, or do
we want to postpone the synchronization task to a later time after we h
ear from the Committee on Local Governments and the other concerned MR. OPLE. And do the manifestations of both Commissioners Garcia and
committees? Monsod still stand after the elimination of the election of the local offic
ials?

THE PRESIDENT. What does the Acting Floor Leader say to this particula
r question of Commissioner Ople? MR. ROMULO. Yes, I think so.
… At this juncture, pieces of paper were distributed, and the Commissioner
s wrote down their votes.

THE PRESIDENT. Commissioner Davide is recognized.

RESUMPTION OF SESSION

MR. DAVIDE. Madam President, as worded, It is a personal disqualificatio

n. At 3:50 p.m., the session was resumed.

MR. ROMULO. We are now ready to vote, Madam President. THE PRESIDENT. The session is resumed.

SUSPENSION OF SESSION
THE PRESIDENT. We are now ready to vote by ballot. Let us distribute t
he ballots. Anyway the voting would take only about 10 minutes.
The session is suspended.
MR. GASCON. Madam President, may I have a clarification before we co
unt the ballots. The voting now is just for Representatives. We are not s
peaking of the term of office of the Senators yet. Is that correct?
THE PRESIDENT. The term of office of the Senators was disposed of this
morning.

This voting now is only for Representatives.

It was 3:40 p.m.
 Alternative No. 1 - no further election after a total of three terms: /////-
/////-/////-//
MR. GASCON. I think the Issue of whether the Senators could run again
for election after their two consecutive terms or 12 years after a lapse
of a period of time has not yet been finalized.
Alternative No. 2 - no immediate reelection after three successive terms:
/////-/////-/////-/////-/////-/

THE PRESIDENT. I beg the Commissioner's pardon.

THE PRESIDENT. The results show 17 votes for Alternative No. 1 and 26
votes for Alternative No. 2; Alternative No. 2 is approved.
MR. GASCON. Is this voting just for Congressmen?

What does the Acting Floor Leader say?

THE PRESIDENT. Yes.

MR. ROMULO. Alternative No. 2 has won, Madam President. It seems th

The Secretary-General will now please proceed to count the votes.
ere are some doubts as to the term of office of the Senators, so I prop
ose that we similarly vote on that to end any doubt. It was my underst

COUNTING OF BALLOTS anding this morning that when we voted for the term of office of the S
enators, they would not be perpetually disqualified.

THE SECRETARY-GENERAL. Madam President, we have here 43 ballots ca

st. We will now start the counting. THE PRESIDENT. From the transcripts, it appears here that with respect t
o Senators, 22 votes went to Scheme No. II; that is, with one reelection.
 This is already a majority. So, does the Acting Floor Leader propose th hat is a similar question to what we had posed with regard to the Hous
at we vote again? e of Representatives.

MR. ROMULO. The question is whether or not that will be perpetual, M THE PRESIDENT. In other words, after serving with one reelection, wheth
adam President, or after resting for six years they can run again. That is er or not he is perpetually disqualified after serving 12 years?
the question that is not answered. I am talking of the Senators.

MR. ROMULO. Yes, Madam President.

THE PRESIDENT. This morning, Scheme No. I, without reelection, has 3 v
otes; Scheme No. II, with one reelection - 22 votes; Scheme No. III, no l
imit on reelection - 17 votes. MR. RODRIGO. Madam President.

MR. REGALADO. Madam President. THE PRESIDENT. Yes, Commissioner Rodrigo is recognized.

MR. RODRIGO. Madam President. MR. RODRIGO. Or, if after one reelection, he is perpetually disqualified o
r he can hibernate - the very word used - for six years and then run a
gain for reelection but not consecutive, not immediate. In other words,
THE PRESIDENT. May we first clarify this from the Secretary-General? he is entitled to one immediate reelection.

MR. ROMULO. The question is whether or not in voting for the term of REV. RIGOS. Another point, Madam President.
six years with one reelection, the Senator is perpetually disqualified, so t
MR. RODRIGO. And then, after that, if there is a gap, when he is not a
Senator, then he can run for the same office.
The session is suspended

REV. RIGOS. Madam President.

It was 3:58 p.m.

THE PRESIDENT. Yes, Commissioner Rigos is recognized.

RESUMPTION OF SESSION

REV. RIGOS. In relation to that, if he will be allowed to run again as Se

At 4:05 p.m., the session was resumed.
nator after a period of hibernation, we have to clarify how long that sh
ould be. It could be three years, because in the proposed scheme, ever
y three years we can elect the Senators. THE PRESIDENT. The session is resumed.

MR. RODRIGO. Yes, Madam President, it can be three years. The Acting Floor Leader is recognized.

SUSPENSION OF SESSION MR. ROMULO. Madam President, we are now ready to vote on the que
stion of the Senators, and the schemes are as follows: The first scheme
is, no further election after two terms; the - second scheme is, no imme
THE PRESIDENT. I will suspend the session again so as to allow the part
diate reelection after two successive terms.
ies to compare with the Acting Floor Leader so that we will know what
we are going to vote on.
Madam President, inasmuch as the principles applicable here are the sa THE SECRETARY-GENERAL, reading:
me as those for the House of Representatives, I move that we go direct
ly to the voting and forego any further discussions.
Scheme No. I - /////-/////-//

THE PRESIDENT. Please distribute the ballots for this particular item for
Senators. Scheme No. II - /////-/////-/////-/////-/////-/////-//

Are we ready now? THE PRESIDENT. The results show 12 votes for Scheme No. I and 32 vot
es for Scheme No. II; Scheme No. II approved.

The Secretary-General will please count the ballots.

All the results will be considered by the Committee on the Legislative in
preparation of their report.
COUNTING OF BALLOTS

So can we leave this matter now?

THE SECRETARY-GENERAL. We have 43 ballots here, Madam President.
We shall now begin to count.
The corresponding proposal on the three-term limit for elective local offi
cials without immediate reelection was taken up by the Constitutional Co
THE PRESIDENT. Please proceed. mmission much later or specifically on 16 August 1986. On this point, th
e pertinent portions of Vol. Three, pages 406-408, Record of the Constit
utional Commission, read as follows:
 MR. NOLLEDO. One clarificatory question, Madam President. What will b
e the term of the office of barangay officials as provided for?
MR. RAMA. Madam President, I ask that Commissioner Davide be recog
nized.

MR. DAVIDE. As may be determined by law.

THE PRESIDENT. Commissioner Davide is recognized.

MR. NOLLEDO. As provided for in the Local Government Code.

MR. DAVIDE. Thank you, Madam President.

MR. DAVIDE. Yes.

After Section 4, I propose to Insert a new section to be denominated la

ter as Section 5. It provides as follows: THE TERM OF OFFICE OF ELECTI
MR. NOLLEDO. We accept the amendment. The Committee accepts the
VE LOCAL OFFICIALS, EXCEPT BARANGAY OFFICIALS, WHICH SHALL BE
amendment.
DETERMINED BY LAW, SHALL BE THREE YEARS AND NO SUCH OFFICIA
L SHALL SERVE FOR MORE THAN THREE CONSECUTIVE TERMS. VOLUN
TARY RENUNCIATION OF THE OFFICE FOR ANY LENGTH OF TIME SHAL …
L NOT BE CONSIDERED AS AN INTERRUPTION IN THE CONTINUITY OF
HIS SERVICE FOR THE FULL TERM FOR WHICH HE WAS ELECTED. This i
s in accordance with the mandate of the Commission when we voted o THE PRESIDENT. May we have the reaction of the Committee?
n the terms of officials up to local officials, excluding the term of baran
gay officials which was a very specific exception.
MR. NOLLEDO. The Committee accepts the amendment, as amended, M
adam President.
THE PRESIDENT. Is there any other comment?
MR. OPLE. Madam President.
THE PRESIDENT. Commissioner Ople is recognized.'
MR. OPLE. May we ask the Committee to read the proposed amendmen
t now.
MR. NOLLEDO. May we ask Commissioner Davide to read the new secti
on.
MR. DAVIDE. THE TERM OF OFFICE OF ELECTIVE LOCAL OFFICIALS, EXC
EPT BARANGAY OFFICIALS, WHICH SHALL BE DETERMINED BY LAW, SH
ALL BE THREE YEARS AND N SUCH OFFICIAL SHALL SERVE FOR MORE
THAN THREE CONSECUTIVE TERMS. VOLUNTARY RENUNCIATION OF TH
E 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 PRESIDENT. Then let us vote first on the Davide amendment.
Is there any objection to this new section proposed by Commissioner D
avide which has been read to the body? (Silence) The Chair hears none;
the proposed section is approved.
I wish to add that the Constitutional Commission debates on the issue o
f "no immediate reelection" after three consecutive terms for members o
f Congress clearly indicated that the "no immediate reelection" after the
3-term limit would equally apply to the elective local officials. This accou
nted for the immediate acceptance by the Committee on Local Governm
ents of the aforementioned Amendment of Commissioner Davide, which
is now Section 8 of Article X of the Constitution. These debates clearly s
howed the Intent of the Commission that the ban against an immediate
reelection after three consecutive terms applies to the fourth term, i.e., t
he term immediately following the three consecutive terms, to be filled
up by the regular election for such fourth term. For one to be able to r
un again after three consecutive terms, he has to rest for the entire im
mediately succeeding fourth term. On the next fifth term he can run ag COUNTING OF BALLOTS
ain to start a new series of three consecutive terms. We quote these pe
rtinent portions of the debates, recorded in Volume Two, pages 232-233
of the Record of the Constitutional Commission: THE SECRETARY-GENERAL, reading:

MR. ROMULO. Madam President, the following are the various alternativ Scheme No. I - ///

es:Scheme No. I is without reelection; Scheme No. II is with one reelecti

on; and Scheme No. III is reelection without limit. This is for 'the Senato
Scheme No. II - /////-/////-/////-/////-//
rs.

Scheme No. Ill - /////-/////-/////-//

At this juncture, pieces of paper were distributed and the Commissioners
wrote down their votes.

THE PRESIDENT. The results show 3 votes for Scheme No. I; 22 votes fo
r Scheme No. II; and 17 votes for Scheme No. III; Scheme No. II is appr
THE PRESIDENT. The Chair asks the Chairman, Commissioner Davide, to
oved.
please consolidate the results of the voting for President and Vice-Presid
ent.

MR. ROMULO. Madam President, the next position is for the House of R
epresentatives, the Congressmen. I would assume we can use the same
THE SECRETARY-GENERAL. Madam President, we are ready. THE PRESIDE
choices. Does any one want any variation?
NT. The Secretary-General will please proceed.
MR. RODRIGO. Madam President. MR. GUINGONA. May I suggest one more scheme - with two reelection
s for the Members of the House of Representatives?

THE PRESIDENT. Commissioner Rodrigo is recognized.

THE PRESIDENT. So, we shall distribute ballots again.

MR. RODRIGO. For the record, I would like to ask Commissioner Romulo
some questions. MR. ROMULO. While the ballots are being distributed, may I read the fo
llowing four propositions for Congressmen: '

MR. ROMULO. Yes.

Scheme No. I, without reelection.

MR. RODRIGO. Scheme No. II says "the Vice-President - with one reelect
ion." Scheme No. II, with one reelection.

THE PRESIDENT. No, that is for Senators.' Scheme No. III, with two reelections.

MR. GUINGONA. Madam President. Scheme No. IV, no limit on reelection. I

THE PRESIDENT. Yes, Commissioner Guenon is recognized. MR. DE LOS REYES. Madam President.
THE PRESIDENT. Commissioner de los Reyes is recognized.
MR. DE LOS REYES. The term of the Members of the House of Represe
ntatives will be three years, according to the first voting; the term of th
e Senators, if they are entitled to one reelection, will be 12 years. So, in
order for a Member of the House of Representatives to have also 12 ye
ars, he must be entitled to three reelections. I propose another scheme
with three reelections to make it equal.
MR. RODRIGO. Will the Gentleman maintain the number there and add
that as No. V. I filled up my ballot already and if I erase, this might be
disqualified as a marked ballot.
THE PRESIDENT. Commissioner Rodrigo may change his ballot.
MR. DE CASTRO. Madam President.
THE PRESIDENT. Commissioner de Castro Is recognized.
MR. DE CASTRO. The situation stated by Commissioner de los Reyes is
apparently covered by Scheme No. II which we agreed upon earlier. The
situation will not happen, because both the Senators and the Congress
men will have five (5) years on the first election. So, the possibility that
the Senators will have a longer term than the Congressmen is remote.
MR. MONSOD. Madam President.
THE PRESIDENT. Commissioner Monsod is recognized.
MR. MONSOD. Madam President, it occurred to us that the three altern
atives are not really mutually exclusive. Can we have only these three: w
ithout reelection, with reelection and with unlimited reelection? We are a
sking here for plurality only, Madam President. Can we eliminate?
THE PRESIDENT. In other words, we shall have the same schemes as tho
se for Senators; without reelection, with one reelection and unlimited ree
lection.
REV. RIGOS. Madam President, besides we have already submitted our b Scheme No. I - 0
allots.

Scheme No. II - //
MR. MONSOD. I withdraw my proposal, Madam President.

Scheme No. III - /////-/////-/////-/////-/

MR. GARCIA. Madam President, I would suggest that the two schemes
with the highest votes be voted upon to get the key majority. For exam
ple, if the schemes with two reelections and no limit to election get the Scheme No. IV - /////-/////-////

highest number of votes, then we vote again to get the key majority.

Scheme No. V - /////-/

THE PRESIDENT. We will do that. Are all the votes in?

THE PRESIDENT. The results show no vote for Scheme No. I; 2 votes for

COUNTING OF BALLOTS Scheme No. II; 21 votes for Scheme No. III; 14 votes for Scheme No. IV
; and 6 votes for Scheme No. V; Scheme No. III is approved.

THE SECRETARY-GENERAL. Madam President, we have 43 ballots.

MR. RODRIGO. Madam President.

THE PRESIDENT. The Secretary-General will please proceed. THE SECRET

ARY-GENERAL, reading: THE PRESIDENT. Commissioner Rodrigo is recognized.
MR. RODRIGO.. I would like to ask a question for clarification. MR. DAVIDE. Consecutively.

THE PRESIDENT. Please proceed. MR. RODRIGO. But after nine years he can let one …

MR. RODRIGO. If the Members of the Lower House can have two reelec MR. DAVIDE. He can rest. He can hibernate for three years.
tions, does this mean two immediate reelections, or a term of nine cons
ecutive years? Let us say that a Member of the Lower House has been
reelected twice; that means he will serve for nine years. Can he let thre MR. RODRIGO. And run again.

e years elapse and then run again?

MR. DAVIDE. He can run again.

THE PRESIDENT. We will ask the Chairman of the Committee on the Le

gislative to answer the question.
MR. RODRIGO. And again have nine years as a maximum.

MR. DAVIDE. That is correct, Madam President, because two reelections

MR. DAVIDE. I do not know if that is also the thinking of Commissioner
mean two successive reelections. So he cannot serve beyond nine conse
Garcia who is the main proponent of this proposal on two reelections. I
cutive years.
would seek the opinion of Commissioner Garcia for the record. (undersc
oring supplied for emphasis.)

MR. RODRIGO. Consecutively?

The dichotomy made in the ponencia between "voluntary renunciation of
the office" as used in Section 8 of Article X of the Constitution and Se
ction 43(b) of R.A. No. 7160 and "involuntary severance from office" is u
nnecessary, if not misplaced. From the discussion in the ponencia, the la
tter is made to apply to the banned term, i.e., the fourth term immediat
ely following three consecutive terms. Speaking now of Hagedorn, he ca
nnot have suffered "involuntary severance from office" because there wa
s nothing to be severed; he was not a holder of an office either in a d
e jure or de facto capacity. He knew he was disqualified from seeking a
third reelection to office. Disqualification is, definitely, not synonymous
with involuntary severance. Even if we concede that involuntary severanc
e is an act which interrupts the continuity of a term for purposes of ap
plying the three-term principle the rule laid down in Lonzanida vs. COM
ELEC (311 SCRA 609), cited in the ponencia, page 17, is not applicable in
the case of Hagedorn. The involuntary severance referred to in that cas
e was one that took place during any of the three terms; hence, the ter
m during which it occurred should be excluded in the computation. In t
he case of Hagedorn, no such involuntary severance took place during a
ny of his three terms brought about by his election in 1992 and reelecti
ons in 1995 and 1998.
More importantly, the voluntary renunciation referred to in Section 8, Art
icle X of the Constitution and Section 43(b) of R.A. No. 7160 is one that
takes place at any time during either the first, second, or third term of
the three consecutive terms. This is very clear from the last clause of Se
ction 8, Article X of the Constitution, which reads: "shall not be consider
ed as an interruption in the continuity of his service for the full term for
which he was elected." The purpose of the provision is to prevent an e
lective local official from voluntarily resigning from office for the purpose
of circumventing the rule on the belief that the term during which he r
esigned would be excluded in the counting of the three-term rule. In sh
ort, the provision excluded is intended to impose a penalty on one who
flouts the rule or make a mockery of it by the simple act of resigning.
Thus, applying it in the case of Hagedorn, even if he voluntarily resigne
d on his third term, he would still be barred from seeking reelection in
the May 2001 election.
Hagedorn cannot likewise avail of the ruling in Adormeo vs. COMELEC (
G.R. No. 147927, 4 February 2002) because in that case Talaga did not
win in his second reelection bid, or for a third term, in the May 1998 el
ections. He won in the recall election of 12 May 2000. Hagedorn, as earl
ier stated, fully served three successive terms.
Neither can we allow Hagedorn to take refuge under the exchange bet
ween Commissioner Suarez and Commissioner Davide found on page 59
2, Vol. II of the Record of the Constitutional Commission and quoted on
pages 19-20 of the ponencia:
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 i
s already considered one term? So, half a term, which is actually the co
rrect statement, plus one term would disqualify the Senator concerned fr
om running? Is that the meaning of this provision on disqualification, M
adam President?
DAVIDE: Yes, because we speak of "term" And if there is a special electi
on, he will serve only for the unexpired portion of that particular term p
lus one more term for the Senator and two more terms for the Membe
rs of the Lower House.
On the contrary, it is clear from the views of Commissioners Suarez and
Davide that the term of office of one who is elected in a special electi
on is considered one term for purposes of determining the three consec
utive terms.
A declaration that Hagedorn is qualified to seek reelection in a recall ele
ction to remove the Mayor who was elected for a term for which Hage
dorn was constitutionally and statutorily disqualified to be reelected to o
r, to hold Is to subvert the rationale of the three-consecutive-term rule
and make a mockery of it. Worse, it abets destructive endless partisan p
olitics and unsound governance. An elective local official who is disqualifi
ed to seek a fourth term because of the three-term limit but obsessed t
o hold on to power would spend the first year of the fourth term camp
aigning for the recall of the incumbent in the second year of said term.
This would' not be a problem If the disqualified official has a solid follo
wing and a strong political machinery. Interestingly, in this case, as state
d on page 3 of the ponencia, the President of the Association of Baran
gay Captains of Puerto Princesa City is one Mark David M. Hagedorn an
d he was designated by the Preparatory Recall Assembly as interim Chai
rman.
I therefore vote to grant the petition in G.R. Nos. 155083-84, to set asid
e the resolution of the COMELEC holding private respondent Edward Ha
gedorn a qualified candidate for the position of Mayor of Puerto Princes
a City in the recall election, and to declare him DISQUALIFIED from seek
ing reelection for a fourth term or from being a candidate for Mayor in
the recall election in question.
 e of Palawan and lost. Petitioner-intervenor Victorino Dennis M. Socrates
was elected mayor of Puerto Princesa City.
CONCURRING OPINION

On July 2, 2002, three hundred twelve (312) out of five hundred twenty-
PUNO, J.:
eight (528) members of the Barangay Officials of Puerto Princesa City co
nvened themselves into a Preparatory Recall Assembly to initiate the rec

The correctness of the decision so ably written by Mr. Justice Carpio spe all of Mayor Socrates. On August 21, 2002, COMELEC promulgated Resol

aks for itself. Nonetheless, the complex constitutional dimensions of the i ution No. 5673 prescribing a calendar of activities for the recall election.

ssue for resolution compels this humble concurring opinion. The issue is Two days after, Hagedorn filed his certificate of candidacy for mayor in

whether private respondent Hagedorn is disqualified from running in the said election.

September 24, 2002 recall election for mayor of Puerto Princesa City an
d from serving the unexpired portion of the 2001-2004 mayoralty term c
On August 27, 2002, petitioners Adovo and Gilo sought for Hagedorn's i
onsidering that he has thrice been consecutively elected and has served
mmediate disqualification on the ground that he had served three conse
three full terms as Puerto Princesa City mayor from 1992-1998. In illumin
cutive full terms as mayor of Puerto Princesa City immediately prior to t
ating the gray interstices of this election case, prudence dictates that ". .
he recall election and was thus proscribed by the Constitution from runn
. where the sovereignty of the people is at stake, we must not only be
ing in said election. On August 30, 2002, petitioner Ollave, Sr. intervene
legally right but also politically correct."1
d to disqualify Hagedorn on the same ground.

Private respondent Hagedorn was elected mayor of Puerto Princesa City,

The recall election was set on September 24, 2002. On September 20, 2
Palawan in 1992, 1995 and 1998 and served three full terms. In the May
002, public respondent COMELEC's First Division denied the petitions for
14, 2001 national and local elections, he ran for governor for the Provinc
Hagedorn's disqualification. The following day, petitioners Adovo, Gilo an
d Ollave, Sr. filed a motion for reconsideration imploring the COMELEC
en banc to reverse the September 20 resolution. On September 23, 200
2, the COMELEC en banc affirmed the resolution of the First Division ho
II.
lding Hagedorn qualified to run in the recall election.

THE HONORABLE COMELEC GRAVELY ERRED AND ABUSED ITS DISCRETI

On September 24, 2002, petitioners Adovo, Gilo and Ollave, Sr. sought r
ON WHEN IT PROCEEDED TO DIVIDE A SINGLE TERM OF OFFICE INTO
ecourse in this Court with a Very Urgent Petition for Certiorari and Proh
TWO.
ibition with Preliminary Injunction and Prayer for Temporary Restraining
Order. On the same date, Mayor Socrates filed a petition-in-intervention
to nullify the September 23 resolution of the COMELEC. III.

The petitions before us raise the following issues: THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
AND VIOLATED THE INTENT AND PURPOSE FOR HOLDING THE SCHED
ULED RECALL ELECTIONS FOR THE POSITION OF MAYOR OF PUERTO P
"I.
RINCESA CITY AND THE CONSTITUTIONAL AND STATUTORY BAR AGAI
NST A FOURTH CONSECUTIVE TERM.

THE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN IT RULED THA

T RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM RUNNING FO
IV.
R THE POSITION OF MAYOR OF PUERTO PRINCESA CITY IN THE SCHE
DULED RECALL ELECTION, THE CLEAR AND UNAMBIGUOUS CONSTITUTI
ONAL AND STATUTORY PROHIBITION AGAINST A FOURTH CONSECUTIV THE HONORABLE COMELEC GRAVELY ABUSED ITS DISCRETION WHEN I
E TERM FOR LOCAL ELECTIVE OFFICIALS NOTWITHSTANDING. T RULED THAT RESPONDENT HAGEDORN IS NOT DISQUALIFIED FROM
RUNNING IN THE UPCOMING RECALL ELECTIONS AS HIS INELIGIBILITY I
S NOT APPARENT UNDER SECTIONS 65 AND 68 OF THE OMNIBUS ELE
CTION CODE, SECTIONS 39 AND 40 OF RA 7160 (LOCAL GOVERNMENT
CODE), AND RULES 23 AND 25 OF THE COMELEC RULES OF PROCED
URE.
V.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT RULED THAT RESPONDENT HAGEDORN IS QUALIFIED TO RU
N IN THE RECALL ELECTION EVEN IF HE STANDS DISQUALIFIED FROM
SERVING UNDER A FOURTH CONSECUTIVE TERM AS SUCH IS ALLEGEDL
Y NOT THE PROVINCE OF THE INSTANT DISQUALIFICATION PROCEEDIN
GS.
VI.
THE HONORABLE COMELEC COMMITTED GRAVE ABUSE OF DISCRETION
WHEN IT ISSUED A DEFECTIVE AND CLEARLY VOID RESOLUTION."2
The foregoing issues may be reduced to the singular issue of whether o
r not private respondent Hagedorn is disqualified from running in the Se
ptember 24, 2002 recall election and serving as mayor of Puerto Princes
a City considering that he has been thrice consecutively elected and has
served three full terms in that position from 1992 to 2001.
I find the petitions devoid of merit.
Art. X, Sec. 8 of the Constitution provides:
"Sec. 8: The term of office of elective local officials, except barangay offi
cials, which shall be determined by law, shall be three years and no suc
h official shall serve for more than three consecutive terms. Voluntary re
nunciation of the office for any length of time shall not be considered a
s an interruption in the continuity of his service for the full term for whi
ch he was elected."
This constitutional provision is restated in the Local Government Code of
1991, to wit:
"Sec. 43. Term of Office. -. . . (b) No local elective official shall serve for
more than three (3) consecutive terms in the same position. Voluntary r
enunciation 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."
We have not interpreted Art. X, Sec. 8 of the Constitution in the recall
election context of the cases at bar. It is imperative to distill the intent
of the framers of the Constitution and the people who ratified it.3 Mere
reliance on the surface meaning of the words of the above provision,
however, will not suffice to capture this elusive intent. Thus, we turn to
the proceedings and debates of the Constitutional Commission (ConCom
) as an extrinsic aid to interpretation.4 The Record of the Constitutional
Commission shows that Art. X. Sec. 8 was readily accepted by the Com
missioners without much discussion;5 nonetheless, their debates on settin
g the term limit for Representatives show that the rationale for the limit
applies to both Representatives and elective local officials. We quote at l
ength the relevant portions of the debates, to wit:
"MR. GARCIA. I would like to advocate the proposition that no further el
ection for local and legislative officials be allowed after a total of three t
erms or nine years. I have four reasons why I would like to advocate thi
s proposal, which are as follows: (1) to prevent monopoly of political po
wer; (2) to broaden the choice of the people; (3) so that no one is indi
spensable in running the affairs of the country; (4) to create a reserve o
f statesmen both in the national and local levels. May I explain briefly th
ese four reasons.
First: To prevent monopoly of political power - Our history has shown t
hat prolonged stay in public office can lead to the creation of entrenche
d preserves of political dynasties. In this regard, I would also like to adv
ocate that immediate members of the families of public officials be barr
ed from occupying the same position being vacated.
Second: To broaden the choice of the people - Although individuals hav
e the right to present themselves for public office, our times demand th
at we create structures that will enable more aspirants to offer to serve
and to provide the people a broader choice so that more and more pe
ople can be enlisted to the cause of public service, not just limited only
to those who may have the reason or the advantage due to their positi
on.
Third: No one is indispensable in running the affairs of the country – Af
ter the official's more than a decade or nearly a decade of occupying t
he same public office, I think we should try to encourage a more team-
oriented consensual approach to governance favored by a proposal that
will limit public servants to occupy the same office for three terms. And
this would also favor not relying on personalities no matter how heroic,
some of whom, in fact, are now in our midst.
Lastly, the fact that we will not reelect people after three terms would a
lso favor the creation of a reserve of statesmen both in the national an
d local levels.
Turnovers in public office after nine years will ensure that new ideas an
d new approaches will be welcome. Public office will no longer be a pre
serve of conservatism and tradition. At the same time, we will create a r
eserve of statesmen, both in the national and local levels, since we will
not deprive the community of the wealth of experience and advice that
could come from those who have served for nine years in public office.
Finally, the concept of public service, if political dynasty symbolized by p
rolonged stay in particular public offices is barred will have fuller meanin
g. It will not be limited only to those who directly hold public office, bu
t also to consultative bodies organized by the people, among whom co
uld be counted those who have served in public office with accomplish
ment and distinction, for public service must no longer be limited only t
o public office.
x x x x x x x x x
MR. MONSOD. Madam President, I was reflecting on this issue earlier an
d I asked to speak because in this draft Constitution, we are recognizing
people power. We have said that now there is a new awareness, a ne
w kind of voter, a new kind of Filipino. And yet at the same time, we a
re prescreening candidates among whom they will choose. We are sayin
g that this 48-member Constitutional Commission has decreed that thos
e who have served for a period of nine years are barred from running f
or the same position.
The argument is that there may be other positions. But there are some
people who are very skilled and good at legislation, and yet are not of
a national stature to be Senators. They may be perfectly honest, perfectl
y competent and with integrity. They get voted into office at the age of
25, which is the age we provide for Congressmen. And at 34 years old
we put them to pasture.
Second, we say that we want to broaden the choices of the people. We
are talking here only of congressional or senatorial seats. We want to
If we agree that we will make sure that these people do not set up str
broaden the people's choice but we are making a prejudgment today b
uctures that will perpetuate them, then let us give them this rest period
ecause we exclude a certain number of people. We are, in effect, puttin
of three years or whatever it is. Maybe during that time, we would even
g an additional qualification for office - that the officials must not have
agree that their fathers or mothers or relatives of the second degree s
served a total of more than a number of years in their lifetime.
hould not run. But let us not bar them for life after serving the public f
or a number of years.

Third, we are saying that by putting people to pasture, we are creating

a reserve of statesmen, but the future participation of these statesmen is
x x x x x x x x x
limited. Their skills may only be in some areas, but we are saying that
they are going to be barred from running for the same position.

MR. OPLE. . . . The principle involved is really whether this Commission

shall impose a temporary or a perpetual disqualification on those who h
Madam President, the ability and capacity of a statesman depend as wel
ave served their terms in accordance with the limits on consecutive servi
l on the day-to-day honing of his skills and competence, in intellectual c
ce as decided by the Constitutional Commission. I would be very wary a
ombat, in concern and contact with the people, and here we are saying
bout the Commission exercising a sort of omnipotent power in order to
that he is going to be barred from the same kind of public service.
disqualify those who will already have served their terms from perpetuati
ng themselves in office. I think the Commission achieves its purpose in
establishing safeguards against the excessive accumulation of power as a
I do not think it is in our place today to make such a very important a
result of consecutive terms. We do put a gap on consecutive service -
nd momentous decision with respect to many of our countrymen in the
in the case of the President, six years; in the case of the Vice-President,
future who may have a lot more years ahead of them in the service of
unlimited; and in the case of the Senators, one reelection. In the case o
their country.
f the Members of Congress, both from the legislative districts and from
the party list and sectoral representation, this is now under discussion a
nd later on the policy concerning local officials will be taken up by the
Committee on Local Governments. The principle remains the same. I thin
k 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 position
s and to accumulate those powers and perquisites that permit them to
stay on indefinitely or to transfer these posts to members of their famili
es in a subsequent election. I think that is taken care of because we pu
t a gap on the continuity or unbroken service of all of these officials. B
ut were we now (to) decide to put these prospective servants of the pe
ople or politicians, if we want to use the coarser term, under a perpetu
al disqualification, I have a feeling that we are taking away too much fr
om the people, whereas we should be giving as much to the people as
we can in terms of their own freedom of choice.
I think the veterans of the Senate and of the House of Representatives
here will say that simply getting nominated on a party ticket is a very p
oor assurance that the people will return them to the Senate or to the
House of Representatives. There are many casualties along the way of th
ose who want to return to their office, and it is the people's decision th
at matters. They judge whether or not a Soc Rodrigo, a Sumulong, a Pa
dilla, an Alonto and a Rosales, after a first and second term, should go
back to the Senate. That is a prerogative of the people that we should
not take away from them -the right to judge those who have served. In
any case, we already take away from the people the freedom to vote f
or the third termers because we say that a Senator, say, Mr. Rodrigo, is
only good for twelve years. But if he wants to be like Cincinnatus, if he
is called back by his people to serve again, let us say for a period of si
x years – which Commissioner Davide called a period of hibernation whi
ch is spent at his fishpond in Bulacan, Bulacan - because there is a new
situation in the country that fairly impels the people to summon him b
ack, like Cincinnatus in the past, then there will no longer be any Cincin
natus.
That is not perhaps a very important point, but I think we already have
succeeded in striking a balance of policies, so that the structures, about
which Commissioner Garcia expressed a very legitimate concern, could h
enceforth develop to redistribute opportunities, both in terms of political
and economic power, to the great majority of the people, because very
soon, we will also discuss the multiparty system. We have unshackled th
e Philippine politics from the two-party system, which really was the mo
st critical support for the perpetuation of political dynasties in the Philip
pines. That is quite a victory, but at the same time, let us not despise t
he role of political parties. The strength of democracy will depend a lot
on how strong our democratic parties are, and a splintering of all these
parties so that we fall back on, let us say, nontraditional parties entirely
will mean a great loss to the vitality and resiliency of our democracy...
x x x x x x x x x
BISHOP BACANI. . . . I think when we voted on the provision that the il
literate be allowed to vote and when we proposed in this Constitutional
Commission for initiative as a way also of empowering our people to en
gage in the legislative exercise, we are really presupposing the political
maturity of our people. Why is it that that political maturity seems now
to be denied by asking that we should put a constitutional bar to a furt
her election of any Representative after a term of three years? Why sho
uld we not leave that to the premise accepted by practically everybody
here that our people are politically mature? Should we use this assumpti
on 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 t
o serve longer?
x x x x x x x x x
MR. GARCIA. I would like to answer Commissioner Bacani. We put a co
nstitutional bar to reelection of any Representative basically because of t
he undue advantage of the incumbent. It is not because of lack of trust
in the people. We realize from history that Mexico fought a revolution
simply because of the issue of reelection. No reeleccion, sufragio univers
al. Basically, it is because of the undue advantage of the incumbent that
he accumulates power, money, party machine or patronage. As regards
what Commissioner Aquino has said, politics is not won by ideals alone;
it is won by solid organizing work by organizations that have the capaci
ty to do so; and normally the incumbent has all the advantages. . .
x x x x x x x x x
THE SECRETARY-GENERAL. Madam President, we have here 43 ballots ca
st. We will now start the counting.
Alternative No. 1 - no further election after a total of three terms: /////-
/////-/////-//
Alternative No. 2 - no immediate reelection after three successive terms:
/////-/////-/////-/////-/////-/"6 (emphasis supplied)
 smissing the petition, we considered the historical background of Art. X,
Sec. 8 of the Constitution, viz:
In several cases, this Court was guided by the proceedings of the ConC
om in construing Art. X, Sec. 8 of the Constitution in relation to Section
43(b) of the Local Government Code of 1991. Different from the issue
"…a consideration of the historical background of Article X, §8 of the Co
presented by the cases at bar, however, the question in those cases was
nstitution reveals that the members of the Constitutional Commission we
what constitutes a "term" for purposes of counting the three consecutiv
re as much concerned with preserving the freedom of choice of the pe
e terms allowed under Art. X, Sec. 8. It is apropos to revisit these cases
ople as they were with preventing the monopolization of political power.
to aid us in extracting the intent behind said Constitutional provision an
Indeed, they rejected a proposal put forth by Commissioner Edmundo
d properly apply it to the unique case of private respondent Hagedorn.
F. Garcia that after serving three consecutive terms or nine years there s
hould be no further reelection for local and legislative officials. Instead, t
hey adopted the alternative proposal of Commissioner Christian Monsod
The maiden case was Borja, Jr. v. Commission on Elections and Jose T.
that such officials be simply barred from running for the same position i
Capco7 which involved the 1998 mayoralty election in Pateros. In 1989, p
n the succeeding election following the expiration of the third consecutiv
rivate respondent Capco became mayor by operation of law upon the d
e term (2 RECORD OF THE CONSTITUTIONAL COMMISSION 236-243 [S
eath of the incumbent, Cesar Borja. In 1992, he was elected mayor for a
ession of July 25, 1986] . . .). Monsod warned against 'prescreening cand
term ending in 1995. In 1995, he was reelected mayor for another term
idates [from] whom the people will choose' as a result of the proposed
of three years ending in June 1998. In March 1998, he filed his certifica
absolute disqualification, considering that the draft constitution contained
te of candidacy for the May 1998 mayoralty election of Pateros. Petition
provisions 'recognizing people's power.'
er Borja, Jr., another candidate for mayor, sought Capco's disqualification
on the ground that by June 30, 1998, Capco would have already serve
d as mayor for three consecutive terms and would therefore be ineligibl
x x x x x x x x x
e to serve for another term. The COMELEC en banc declared Capco elig
ible to run for mayor, thus Borja, Jr. sought recourse in this Court. In di
Two ideas thus emerge from a consideration of the proceedings of the
Constitutional Commission. The first is the notion of service of term, deri
Yes, because although he has already first served as mayor by successio
ved from the concern about the accumulation of power as a result of a
n and subsequently resigned from office before the full term expired, he
prolonged stay in office. The second is the idea of election, derived fro
has not actually served three full terms in all for the purpose of applyi
m the concern that the right of the people to choose whom they wish
ng the term limit. Under Art. X, §8, voluntary renunciation of the office i
to govern them be preserved. (emphasis supplied)
s not considered as an interruption in the continuity of his service for th
e full term only if the term is one "for which he was elected." Since A i
s only completing the service of the term for which the deceased and n
x x x x x x x x x
ot he was elected, A cannot be considered to have completed one term
. His resignation constitutes an interruption of the full term.

To recapitulate, the term limit for elective local officials must be taken t
o refer to the right to be elected as well as the right to serve in the sa
x x x x x x x x x
me elective position. Consequently, it is not enough that an individual h
as served three consecutive terms in an elective local office, he must als
o have been elected to the same position for the same number of time
...the mayor is entitled to run for reelection because the two conditions
s before the disqualification can apply. This point can be made clearer b
for the application of the disqualification provisions have not concurred,
y considering the following cases or situations:
namely, that the local official concerned has been elected three consecut
ive times and that he has fully served three consecutive terms. In the fir
st case, even if the local official is considered to have served three full t
Case No. 1. Suppose A is a vice-mayor who becomes mayor by reason
erms notwithstanding his resignation before the end of the first term, th
of the death of the incumbent. Six months before the next election, he
e fact remains that he has not been elected three times. . .
resigns and is twice elected thereafter. Can he run again for mayor in t
he next election?
Case No. 3. The case of vice-mayor C who becomes mayor by successio
n involves a total failure of the two conditions to concur for the purpos
e 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, interrupt
ed 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 ch
oose whom they wish to govern them. If the vice-mayor turns out to b
e a bad mayor, the people can remedy the situation by simply not reel
ecting 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 offic
e (even if it is just the third time he is standing for reelection) if his ser
vice 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 und
erstanding of the Constitutional Commission that while the people shoul
d be protected from the evils that a monopoly of political power may b
ring about, care should be taken that their freedom of choice is not un
duly curtailed."8 (emphasis supplied)
We reiterated the Borja ruling in Lonzanida v. Commission on Elections,
et al.9 which involved the election for mayor of San Antonio, Zambales.
Prior to the May 8, 1995 elections, petitioner Romeo Lonzanida served t
wo consecutive terms as municipal mayor of San Antonio, Zambales. In
the May 1995 elections, he ran for mayor, was proclaimed winner, and a
ssumed office. His proclamation was, however, contested by his opponen
t Juan Alvez in an election protest filed before the Regional Trial Court
of Zambales which rendered a decision declaring a failure of elections.
Upon appeal of the decision to the COMELEC, Alvez was declared the d
uly elected mayor of San Antonio. In February 1998, the COMELEC issue
d a writ of execution ordering Lonzanida to vacate the post, and Alvez
served the remainder of the term.
Lonzanida filed his certificate of candidacy for the May 11, 1998 election
for mayor of San Antonio. His opponent Eufemio Muli filed with the CO
MELEC a petition to disqualify Lonzanida on the ground that he had alr
eady served three consecutive terms in the same office and was thus pr
ohibited from running in the upcoming election. On May 13, 1998, Lonz
anida was proclaimed winner. COMELEC ruled that Lonzanida was disqua
lified as his assumption to office in 1995, although he was unseated bef
ore the expiration of the term, was considered one full term for purpos
es of counting the three term limit under the Constitution and the Local
Government Code of 1991.
On appeal to this Court, we ruled, viz:
"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 assum
ed office and discharged the rights and duties of mayor until March 199
8 when he was ordered to vacate the post by reason of the COMELEC
decision dated November 13, 1997 on the election protest against the p
etitioner which declared his opponent Juan Alvez, the duly elected mayo
r 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 voluntary relinquish
ment of office. After a re-appreciation and revision of the contested ball
ots the COMELEC itself declared by final judgment that petitioner Lonza
nida lost in the May 1995 mayoral elections and his previous proclamati
on as a winner was declared null and void. His assumption of office as
mayor cannot be deemed to have been by reason of a valid election b
ut by reason of a void proclamation...
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 exp
iration of the term. The respondents' contention that the petitioner shoul
d be deemed to have served one full term from May 1995- 1998 becau
se he served the greater portion of that term has no legal basis to sup
port it; it disregards the second requisite for the application of the disq
ualification, i.e., that he has fully served three consecutive terms.
In sum, the petitioner was not the duly elected mayor and he did not h
old office for the full term; hence, his assumption of office from May 19
95 to March 1998 cannot be counted as a term for purposes of comput
ing the three term limit."10 (emphasis supplied)
Finally, in the recent case of Adormeo v. COMELEC, et al.,11 we ruled th
at a mayor who assumed office via a recall election and served the une
xpired portion of the mayoralty term is not considered to have served a
full term for purposes of applying the three term limit. In this case, the
rein private respondent Ramon Talaga, Jr. was elected mayor in May 199
2 and served the full term. In 1995, he was reelected and again served
the full term. In 1998, he lost to Bernard G. Tagarao. About two years l
ater, a recall election was held where Talaga, Jr. ran against Tagarao. He
(Talaga, Jr.) won and served the remainder of Tagarao's term.
In view of the upcoming May 2001 mayoralty election, Talaga, Jr. filed hi
s certificate of candidacy. On March 2, 2001, therein petitioner Adormeo
sought the cancellation of Talaga, Jr.'s certificate of candidacy and/or his
disqualification on the ground that he had been thrice elected and had
served three consecutive terms as city mayor. Talaga, Jr., however, was
declared qualified for the position of city mayor. Adormeo thus sought r
ecourse before this Court.
Citing the Borja and Lonzanida rulings, we ruled that Talaga, Jr. was not
disqualified as the two conditions for disqualification, namely (1) the ele
ctive official concerned was elected for three consecutive terms in the sa
me post and (2) he has fully served three consecutive terms, were not
met. We did not consider Talaga, Jr.'s service of the unexpired portion o
f Tagarao's term as service of a full term for purposes of the three ter
m limit. We also ruled that he did not serve for three consecutive terms
as there was a break in his service when he lost to Tagarao in the 199
8 elections. We held, viz:
"COMELEC's ruling that private respondent was not elected for three (3)
consecutive terms should be upheld. For nearly two years, he was a priv
ate citizen. The continuity of his mayorship was disrupted by his defeat i
n the 1998 elections.
Patently untenable is petitioner's contention that COMELEC in allowing re
spondent Talaga, Jr. to run in the May 1998 election violates Article X, S
ection 8 of the 1987 Constitution. (footnote omitted) To bolster his case,
respondent adverts to the comment of Fr. Joaquin Bernas, a Constitutio
nal Commission member, stating that in interpreting said provision 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.'
As pointed out by the COMELEC en banc, Fr. Bernas' comment is pertin
ent only to members of the House of Representatives. Unlike local gover
nment officials, there is no recall election provided for members of Con
gress. (Rollo, pp. 83-84)"12 (emphasis supplied)
The deliberations of the ConCom and the ruling case law of Borja, Lonz
anida and Adormeo show that there are two principal reasons for the t
hree term limit for elective local officials: (1) to prevent political dynasties
perpetuated by the undue advantage of the incumbent and (2) to broa
den the choice of the people by allowing candidates other than the inc
umbent to serve the people. Likewise evident in the deliberations is the
effort to balance between two interests, namely, the prevention of politic
al dynasties and broadening the choice of the people on the one hand,
and respecting the freedom of choice and voice of the people, on the
other; thus, the calibration between perpetual disqualification after three
consecutive terms as proposed by Commissioner Garcia, and setting a li
mit on immediate reelection and providing for a hibernation period.
In all three cases - Borja, Lonzanida and Adormeo - we ruled that the "
term" referred to in the three term limit is service of a full term of thre
e years for elective local officials. This ruling furthers the intent of the C
onCom to prevent political dynasties as it is the service of consecutive f
ull terms that makes service continuous and which opens the gates to p
olitical dynasties limiting the people's choice of leaders. In the words Of
Commissioner Ople, ". . . we want to prevent future situations where, as
a result of continuous service and frequent reelections, officials from th
e President down to the municipal mayor tend to develop a proprietary
interest in their positions and to accumulate those powers and perquisite
s 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 unbroken service of
all of these officials. (emphasis supplied)" Thus, ConCom set the limit on
consecutive full terms to no more than three. Otherwise stated, it is a f
ourth consecutive full term that is prohibited.
In the cases at bar, however, private respondent Hagedorn will not serve
a prohibited fourth consecutive full term as he will be serving only the
unexpired portion of the 2001-2004 mayoralty term. Similar to Talaga, Jr.
in the Adormeo case, Hagedorn's service as mayor will not be continuo
us from the third to a fourth consecutive full term as it was broken wh
en Socrates was elected in the 2001 regular mayoralty election and serv
ed for one year. In the same vein that Talaga, Jr. was elected into office
by recall election and his service of the unexpired portion of the incum
bent's term was not considered a consecutive full term for purposes of
applying the three term limit, Hagedorn's service of the unexpired portio
n of Socrates' term should not also be counted as a prohibited fourth c
onsecutive full term. It should not make a difference whether the recall
election came after the second consecutive full term as in the Adormeo
case or after the third consecutive term as in the cases at bar because
the intent to create a hiatus in service is satisfied in both instances.
Even a textual analysis of Art. X, Sec. 8 will yield the interpretation that
what is prohibited is the service of a fourth consecutive full term. Petitio
ners are correct in foisting the view that "term" is a fixed and definite p
eriod of time prescribed by law or the Constitution during which the pu
blic officer may claim to hold the office as a right. It is a fixed and defi
nite period of time to hold office, perform its functions, and enjoy its pr
ivileges and emoluments until the expiration of the period.13 In ascertain
ing what "term" means for elective local officials, the Constitution itself p
rovides in Art. X, Sec. 8 that it means a fixed, definite, and full period o
f three years, viz: "Sec. 8. The term of office of elective local officials, ex
cept barangay officials, which shall be determined by law, shall be three
years ..." Although one or more persons may discharge the duties of th
e office during this fixed three-year period, the term is not divided into
smaller terms by the number of incumbents who may fill the office. It is
one and indivisible, and term follows term in successive cycles of three
years each. If the incumbent or the one elected to the office fills a high
er vacant office, refuses to assume office, fails to qualify, dies, is remove
d from office, voluntarily resigns or is otherwise permanently incapacitate
d to discharge the functions of his office, thereby creating a permanent
vacancy,14 the term would remain unbroken until the recurring election f
or the office.15
The provisions on voluntary renunciation under Art. X, Sec. 8 and other
articles of the Constitution bolster the interpretation that for purposes of
applying the three term limit, service of a full term of three years is co
ntemplated, viz:
"Art. X, Sec. 8. The term of office of elective local officials, except baran
gay officials, which shall be determined by law, shall be three years and
no such official shall serve for more than three consecutive terms. Volun
tary renunciation of the office for any length of time shall not be consid
ered as an interruption in the continuity of the service for the full term
for which he was elected."
"Art. VI, Sec. 4. . . . No Senator shall serve for more than two consecuti
ve terms. Voluntary renunciation of the office for any length of time sha
"Sec. 43(b) . . . No local elective official shall serve for more than three
ll be considered as an interruption in the continuity of his service for th
(3) consecutive terms in the same position. Voluntary renunciation of the
e full term for which he was elected.
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 officia
l concerned was elected." (emphasis supplied)
x x x x x x x x x

Likewise, because "term" is understood to be a fixed, definite, and full p

Sec. 7. . . . No Member of the House of Representatives shall serve for
eriod, the Constitution, in Art. Vi, Sec. 9, uses the qualifier "unexpired te
more than three consecutive terms. Voluntary renunciation of the office f
rm" to refer to only a portion of a term, viz:
or 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.

"Art. VI, Sec. 9. In case of vacancy in the Senate or in the House of Re

presentatives, a special election may be called to fill such vacancy in the
x x x x x x x x x
manner prescribed by law, but the Senator or Member of the House o
f Representatives thus elected shall serve only for the unexpired term." (

Art. VII, Sec. 4. . . . No Vice-President shall serve more than two succes emphasis supplied)

sive terms. Voluntary renunciation of the office for any length of time sh
all not be considered as an interruption in the continuity of the service
Similarly, Sec. 44 of the Local Government Code of 1991 uses the phrase
for the full term for which he was elected." (emphasis supplied)
"unexpired term" to mean the remainder of the term, viz:

Similarly, the Local Government Code of 1991 provides in Sec. 43(b), viz:
"Sec. 44(d). The successors as defined herein shall serve only the unexpir
ed terms of his predecessors. . ." (emphasis supplied)
Thus, when Art. X, Sec. 8 of the Constitution states that "...no such (loca
l elective) official shall serve for more than three consecutive terms," it c
onsistently means that it allows service of a maximum of three consecuti
ve full terms and prohibits service of a minimum fourth consecutive full
term.
In putting a cap on the number of consecutive full terms an elective loc
al official can serve, the ConCom sought to curb the undue advantage
of the incumbent over other aspirants, which advantage makes it easier
to found a political dynasty. At the time of the September 24, 2002 rec
all election, however, Hagedorn was not the incumbent favored with this
feared "undue advantage of the incumbent." On the contrary, he ran a
gainst the incumbent Mayor Socrates who alone could be the subject of
recall election and who, by law, was automatically a candidate in the el
ection.16 Hagedorn did not run in the 2001 regular mayoralty election of
Puerto Princesa City which Socrates won, precisely because he was awa
re of the three term limit.
It is my respectful submission that the Constitution and the Local Gover
nment Code of 1991 proscribe a local official who has been thrice conse
cutively elected in regular elections and has served three full terms in th
e same position, from running in the regular election succeeding his thir
d consecutive term. It is this situation that is prohibited because it make
s possible service of more than three consecutive and continuous full ter
ms, i.e., service of a fourth consecutive full term. We cannot overstress t
hat it is this continuousness that the ConCom feared would open the g
ates to the two evils sought to be avoided: the incumbent's use of his
undue advantage to put up a political dynasty and limiting the people's
choice of leaders. It is in this context of regular elections that our obiter
dictum in the Lonzanida case, which petitioners harp on, should be un
derstood. In that case, we opined that "[a]s finally voted upon, it was a
greed that an elective local government official should be barred from r
unning for the same post after three consecutive terms. After a hiatus o
f at least one term, he may again run for the same office."17 Indeed, in
sofar as regular local elections are concerned, which were the elections i
nvolved in that case, there should be a hiatus of at least one full term
of three years.
On the other hand, in the case of a local official who assumes office thr
ough a recall election - whether after his first, second, or third consecuti
ve term- there is a break in his service caused by the election of the in
cumbent who was recalled. Even in the case of a local official who initia
lly assumes office via recall election, then wins the two succeeding regul
"MR. SUAREZ. . . May we ask a clarificatory question regarding the inter
ar elections and serves two full terms in the same post, he is not prohi
pretation of the provisions in Sections 3 and 6 in relation to Section 9 r
bited from seeking another reelection and serving another full term. This
egarding the disqualification on the part of the Senator to run for two c
is so because his service of the remainder of the incumbent's term via
onsecutive terms, and in the case of the Members of the House of Repr
recall election is not, in reality and in law, a full term continuing on to
esentatives, for three consecutive terms. For example, a special election i
his three succeeding full terms. Local officials who assume office via reca
s called for a Senator, and the Senator newly elected would have to ser
ll election serve only the unexpired portion of the incumbent's term and
ve the unexpired portion of the term. Would that mean that serving the
this service is not counted as a full term, despite the Constitutional ma
unexpired portion of the term is already considered one term? So, half
ndate that the term of office of elective local officials is three years. Suc
a term, which is actually the correct statement, plus one term would dis
h is the design because Art. XVIII, Secs. 2 and 5 of the Constitution also
qualify the Senator concerned from running? Is that the meaning of this
prescribe synchronization of regular national and local elections beginni
provision on disqualification, Madam President?
ng on the second Monday of May 1992,18 which is accomplished if the
local official who assumes office through recall election serves only the i
ncumbent's unexpired term. MR. 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 te
rm plus one more term for the Senator and two terms for the Members
It is only in the case of Representatives (and Senators) that "if one is el
of the Lower House."20
ected Representative to serve the unexpired term of another, that unexpi
red term will be considered one term for purposes of computing the nu
mber of successive terms allowed."19 The election herein contemplated is As we ruled in the Adormeo case, service of an unexpired term is consi
a special election thus this Constitutional intent does not apply to a rec dered service of a full term only with respect to Representatives (and Se
all election which involves only elective local officials. The Record bear t nators) because unlike local government officials, Representatives cannot
his out, viz: be recalled. It is continuous prolonged stay in office that breeds political
 dynasties. Understandably therefore, insofar as Representatives who can
not be recalled are concerned, service of an unexpired term is strictly co
unted as service of a full term because the purpose of the ConCom wa
s to limit the right to run and be elected in Congress.21
In allowing Hagedorn to participate in the September 24 recall election,
we are not unmindful of the intent of the ConCom to broaden the peo
ple's choice of leaders. The three term limit was adopted to allow the el
ectorate to choose from other candidates in the regular election succeed
ing the incumbent's third consecutive term. This is clear in the Commissi
oners' alternatives for voting on the term limit for Representatives and t
he outcome of their voting where 17 voted for "no further election after
a total of three terms" and 26 voted for "no immediate reelection after
three successive terms." A reelection is immediate if a local official wins
in the election succeeding the third consecutive term.22 This is not the
case with Hagedorn who did not run in the 2001 regular mayoralty elect
ion and left that political arena to other contenders, thereby upholding t
he intent of the ConCom to broaden the choice of the electorate.
The intent of the ConCom to create a hiatus in the service of elective l
ocal officials after three consecutive full terms cannot be undermined thr
ough abuse of the power of recall. The Local Government Code of 1991
provides limitations on recall in Section 74, viz:
"Section 74. Limitations on Recall. (a) any elective local official may be t
he subject of a recall election only once during his term of office for lo
ss of confidence.
(b) No recall shall take place within one (1) year from the date of the o
fficial's assumption to office or one (1) year immediately preceding a reg
ular local election." (emphasis supplied)
Thus, an elective local official cannot perpetually hold on to his office th
rough the mechanism of recall as at the very least, there will be a hiatu
s of one year after an unbroken service of three terms. He could not si
mply create, in the words of Commissioner Monsod, "structures that will
perpetuate him (them)" in power with the assurance that they will not b
e exposed because after serving three consecutive full terms, he will cert
ainly be replaced. Within the one-year period under Sec. 74, his success
or could discover and begin to dismantle these manipulative structures.
This one year period also provides a reasonable basis for the electorate
to judge the performance of the incumbent successor, thus obviating fea
r of political maneuvering through initiation of recall proceedings by a P
reparatory Recall Assembly dominated by minions of the previous local
official.23 In Claudio v. COMELEC, et al., 24 we held, viz:
"In the Bower case (in re Bower 41 I11. 777, 242 N.E. 2d 252 [1968]) cite
d by this Court in Angobung v. COMELEC (269 SCRA 245, 256 [1997]), i
t was held that 'The only logical reason which we can ascribe for requiri
ng the electors to wait one year before petitioning for 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 soundne
ss of his policies and decisions.'"25
If, after one year in office, the incumbent proves himself to be worthy o
f his position, then his constituents will confirm this should a recall electi
on be called, as in the case of Mayor Reynaldo Malonzo of Caloocan Ci
ty. If, on the other hand, the incumbent turns out to be an ineffective l
eader, there is no reason why the electorate should not be allowed to
make a Cincinnatus of their past leader.
The imagined fear of abuse of the power of recall does not suffice to d
isqualify private respondent Hagedorn and should not prevail over the r
esounding voice of the people of Puerto Princesa City. They have spoke
n and there is no mistaking that Hagedorn is their overwhelming choice.
We cannot subscribe to the petitioners' position and allow an overly lit
eral reading of the law to mute the electorate's cry and curtail their free
dom to choose their leaders. This freedom was as much a concern of t
he ConCom as was the prevention of political dynasties and broadening
the choice of the people. This Court has not just once admonished agai
nst a too literal reading of the law as this is apt to constrict rather than
fulfill its purpose and defeat the intention of the authors.26
In sum, private respondent Hagedorn is not disqualified from running in
the September 24, 2002 recall election as the disqualification under Art.
X, Sec. 8 of the Constitution applies to the regular mayoralty election su
cceeding the third consecutive term served. Nor is he precluded from se
rving the unexpired portion of the 2001-2004 mayoralty term as this is n
ot service of a prohibited fourth consecutive full term.
I vote to deny the petition, giving due consideration to the tenet of rep
resentative democracy that the people should be allowed to choose who
m they wish to govern them.27 In the end, ". . . more than judgments
of courts of law, the judgment of the tribunal of the people is final for
'sovereignty resides in the people and all government authority emanate
s from them.'"28
Footnotes 6 Ricardo J. Romulo, Commissioner of the 1986 Constitutional Conventio
n.

1 Filed under Rule 65 in relation to Rule 64 of the 1997 Rules of Civil P

rocedure with prayers for preliminary injunction and temporary restrainin
g orders.
Today is Thursday, September 12, 2019home

Custom Search
Pursuant to the provisions of Republic Act 7160 or the Local Governmen
t Code of 1991, Chapter 5, Sections 69 to 75.

3 Composed of Benjamin S. Abalos, Sr. as Chairman with Commissioners

Luzviminda G. Tancangco, Rufino S.B. Javier, Ralph C. Lantion, Mehol K. EN BANC

Sadain, Resurreccion Z. Borra and Florentino A. Tuason, Jr.

G.R. No. 163295 January 23, 2006

4 With Mehol K. Sadain as Presiding Commissioner and Luzviminda G. T

ancangco and Resurreccion Z. Borra as Commissioners.
FRANCIS G. ONG, Petitioner,

vs.
5 269 SCRA 380 (1997).
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Responden Before the Court are these two separate petitions under Rule 65 of the
ts. Rules of Court to nullify and set aside certain issuances of the Commissi
on on Elections (COMELEC) en banc.

x - - - - - - - - - - - - - - - - - - - - - x
The first, docketed as G.R. No. 163295, is a petition for certiorari with p
etitioner Francis G. Ong impugning the COMELEC en banc resolution1 d
G.R. No. 163354 January 23, 2006 ated May 7, 2004 in SPA Case No. 04-048, granting private respondent
Joseph Stanley Alegre's motion for reconsideration of the resolution date
d March 31, 20042 of the COMELEC’s First Division.
ROMMEL G. ONG, Petitioner,

vs.
The second, G.R. No. 163354, is for certiorari, prohibition and mandamus
JOSEPH STANLEY ALEGRE and COMMISSION ON ELECTIONS, Responden
, with application for injunctive relief, filed by petitioner Rommel Ong, br
ts.
other of Francis, seeking, among other things, to stop the COMELEC fro
m enforcing and implementing its aforesaid May 7, 2004 en banc resolu
tion in SPA Case No. 04-048 pending the outcome of the petition in G.
D E C I S I O N
R. No. 163295.

GARCIA, J.:
Per its en banc Resolution of June 1, 2004, the Court ordered the conso
lidation of these petitions.
The recourse stemmed from the following essential and undisputed factu
al backdrop:
Private respondent Joseph Stanley Alegre (Alegre) and petitioner Francis
Ong (Francis) were candidates who filed certificates of candidacy for may
or of San Vicente, Camarines Norte in the May 10, 2004 elections. Franci
s was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a P
etition to Disqualify, Deny Due Course and Cancel Certificate of Candida
cy3 of Francis. Docketed as SPA Case No. 04-048, the petition to disqua
lify was predicated on the three-consecutive term rule, Francis having, ac
cording to Alegre, ran in the May 1995, May 1998, and May 2001 mayor
alty elections and have assumed office as mayor and discharged the dut
ies thereof for three (3) consecutive full terms corresponding to those el
ections.
To digress a bit, the May 1998 elections saw both Alegre and Francis o
pposing each other for the office of mayor of San Vicente, Camarines N
orte, with the latter being subsequently proclaimed by COMELEC winner
in that contest. Alegre subsequently filed an election protest, docketed a
s Election Case No. 6850 before the Regional Trial Court (RTC) at Daet,
Camarines Norte. In it, the RTC declared Alegre as the duly elected may
or 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 ter
m and was in fact already starting to serve the 2001-2004 term as may
or-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 CO
MELEC rendered on March 31, 2004 a resolution5 dismissing the said pe
tition of Alegre, rationalizing as follows:
We see the circumstances in the case now before us analogous to thos
e obtaining in the sample situations addressed by the Highest Court in t
he Borja case. Herein, one of the requisites for the application of the th
ree 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. Th
e mayoral term however, from 1998 to 2001 cannot be considered his b
ecause 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 dispositi
on 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 Lonz
anida case and applicable in the case at bench, Ong could not be consi
dered as having served as mayor from 1998 to 2001 because "he was n
ot duly elected to the post; he merely assumed office as a presumptive
winner; which presumption was later overturned … when [the RTC] decid
ed with finality that [he] lost in the May 1998 elections." (Words in brack
et 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 a
pplied in the cited cases of Borja vs. Comelec and Lonzanida vs. Comele
c, infra.
On May 7, 2004, the COMELEC en banc issued, in SPA No. 04-048, a r
esolution6 reversing the March 31, 2004 resolution of the COMELEC’s Fir
st Division and thereby (a) declaring Francis "as disqualified to run for m
ayor of San Vicente, Camarines Norte in the …May 10, 2004"; (b) orderin
g 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 af
orecited May 7, 2004 resolution, sending him posthaste to seek the assis
tance of his political party, the Nationalist People’s Coalition, which imm
ediately nominated his older brother, Rommel Ong (Rommel), as substitu
te candidate. At about 5:05 p.m. of the very same day - which is past t
he deadline for filing a certificate of candidacy, Rommel filed his own ce
rtificate of candidacy for the position of mayor, as substitute candidate f
or 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 le
tter7 to Provincial Election Supervisor (PES) of Camarines Norte Liza Z. C
ariño and Acting Election Officer Emily G. Basilonia in which he appealed
that, owing to the COMELEC’s inaction on Alegre's petition to cancel R
ommel’s certificate of candidacy, the name "Rommel Ong" be included i
n the official certified list of candidates for mayor of San Vicente, Camar
ines Norte. The desired listing was granted by the PES Carino.
3. On May 10, 2004, Alegre wrote8 to then COMELEC Commissioner Vir
gilio Garcillano, Commissioner-in-Charge for Regions IV and V, seeking cl
arification on the legality of the action thus taken by the PES Cariño. Re
sponding, Commissioner Garcillano issued a Memorandum under date M
ay 10, 20049 addressed to PES Liza D. Zabala-Cariño, ordering her to i
mplement the resolution of the COMELEC en banc in SPA No. 04-048 p
romulgated on May 7, 2004.10 Said Memorandum partly stated:
The undersigned ADOPTS the recommendation of Atty. Alioden D. Dalai
g [Director IV, Law Department], which he quote your stand, "that substi
tution is not proper if the certificate of the substituted candidacy is deni
ed due course. In the Resolution of the Commission En banc, the Certifi
cate of candidacy of Francis Ong was denied due course," and elaborate
d 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 t
he substitution is approved by the Commission.
In view, thereof, it is recommended that 1) the substitute certificate of c
andidacy 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 ca
ndidates."
The above position of the Commission was in line with the pronouncem
ent 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 fo
r Rommel, prompting the latter to file a protest with that Board.11
5. On May 11, 2004, the Municipal Board of Canvassers proclaimed Alegr
e as the winning candidate for the mayoralty post in San Vicente, Cama
rines 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 p
rivate respondent Alegre’s Petition to Deny Due Course to or Cancel Cer
tificate 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 di
scretion amounting to lack or excess of jurisdiction in issuing its en ban
c resolution dated May 7, 2004 declaring petitioner Francis as disqualifie
d to run for Mayor of San Vicente, Camarines Norte in the May 10, 200
4 elections and consequently ordering the deletion of his name from th
e official list of candidates so that any vote cast in his favor shall be co
nsidered stray.
In G.R. No. 163354, whether the COMELEC committed grave abuse of di
scretion 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 wh
ether or not petitioner Francis’s assumption of office as Mayor of San Vi
cente, 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 a
ssumed office and discharged the duties as Mayor of San Vicente for th
ree consecutive terms, his proclamation as mayor-elect in the May 1998
election was contested and eventually nullified per the decision of the R
TC of Daet, Camarines Norte dated July 4, 2001. Pressing the point, peti
tioner argues, citing Lonzanida vs. Comelec15, that a proclamation subse
quently 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 offic
ials, which shall be determined by law, shall be three years and no such
official shall serve for more than three consecutive terms. Voluntary ren
unciation 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 whic
h 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 l
ength of time shall not be considered an interruption in the continuity o
f service for the full term for which the elective official concerned was el
ected.
For the three-term limit for elective local government officials to apply, t
wo conditions or requisites must concur, to wit: (1) that the official conc
erned has been elected for three (3) consecutive terms in the same loca
l 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 prese
nt herein, thus effectively barring petitioner Francis from running for may
or of San Vicente, Camarines Norte in the May 10, 2004 elections. There
 can be no dispute about petitioner Francis Ong having been duly elect
ed mayor of that municipality in the May 1995 and again in the May 20
01 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 election
s and actually served the 1998-2001 mayoral term by virtue of a procla
mation initially declaring him mayor-elect of the municipality of San Vice
nte. The question that begs to be addressed, therefore, is whether or n
ot Francis’s assumption of office as Mayor of San Vicente, Camarines No
rte from July 1, 1998 to June 30, 2001, may be considered as one full te
rm service in the context of the consecutive three-term limit rule.
We hold that such assumption of office constitutes, for Francis, "service f
or the full term", and should be counted as a full term served in conte
mplation of the three-term limit prescribed by the constitutional and stat
utory 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 C
ase No. 6850,17 that it was Francis’ opponent (Alegre) who "won" in the
1998 mayoralty race and, therefore, was the legally elected mayor of Sa
n Vicente. However, that disposition, it must be stressed, was without pr
actical and legal use and value, having been promulgated after the term
of the contested office has expired. Petitioner Francis’ contention that h
e was only a presumptive winner in the 1998 mayoralty derby as his pro
clamation was under protest did not make him less than a duly elected
mayor. His proclamation by the Municipal Board of Canvassers of San Vi
cente 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 servic
e for a full term in contemplation of the three-term rule.
The absurdity and the deleterious effect of a contrary view is not hard t
o discern. Such contrary view would mean that Alegre would – under th
e three-term rule - be considered as having served a term by virtue of
a veritably meaningless electoral protest ruling, when another actually ser
ved 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 r
uling in, Lonzanida vs. Comelec,18 citing Borja vs. Comelec19. In Lonzani
da, petitioner Lonzanida was elected and served for two consecutive ter
ms as mayor of San Antonio, Zambales prior to the May 8, 1995 electio
ns. He then ran again for the same position in the May 1995 elections,
won and discharged his duties as Mayor. However, his opponent contest
ed his proclamation and filed an election protest before the RTC of Za
mbales, which, in a decision dated January 9, 1997, ruled that there was
a failure of elections and declared the position vacant. The COMELEC aff
irmed this ruling and petitioner Lonzanida acceded to the order to vacat
e the post. Lonzanida assumed the office and performed his duties up t
o March 1998 only. Now, during the May 1998 elections, Lonzanida agai
n ran for mayor of the same town. A petition to disqualify, under the t
hree-term rule, was filed and was eventually granted. There, the Court h
eld 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 offi
ce. As the Court pointedly observed, Lonzanida "cannot be deemed to h
ave served the May 1995 to 1998 term because he was ordered to vaca
te [and in fact vacated] his post before the expiration of the term."
The difference between the case at bench and Lonzanida is at once app
arent. For one, in Lonzanida, the result of the mayoralty election was de
clared a nullity for the stated reason of "failure of election", and, as a c
onsequence thereof, the proclamation of Lonzanida as mayor-elect was
nullified, followed by an order for him to vacate the office of mayor. Fo
r another, Lonzanida did not fully serve the 1995-1998 mayoral term, the
re being an involuntary severance from office as a result of legal proces
ses. In fine, there was an effective interruption of the continuity of servic
e.
On the other hand, the failure-of-election factor does not obtain in the
present case. But more importantly, here, there was actually no interrupti
on 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 th
e 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 Ma
y 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 ruli
ng in the Borja and Lonzanida cases in the instant petition will be erron
eous because the factual milieu in those cases is different from the one
obtaining here. Explicitly, the three-term limit was not made applicable i
n the cases of Borja and Lonzanida because there was an interruption i
n the continuity of service of the three consecutive terms. Here, Respon
dent Ong would have served continuously for three consecutive terms, fr
om 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 accoun
t of void proclamation because it would have iniquitous effects producin
g outright injustice and inequality as it rewards a legally disqualified and
repudiated loser with a crown of victory. (Word in bracket added; emp
hasis in the original)
Given the foregoing consideration, the question of whether or not then
Commissioner Virgilio Garcillano overstepped his discretion when he issu
ed the May 10, 2004 Memorandum, ordering the implementation of afor
esaid May 7, 2004 COMELEC en banc resolution even before its finality2
0 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 COMEL
EC's act of not including his name as a substitute candidate in the offici
al list of candidates for the May 10, 2004 elections. As it were, existing
COMELEC policy21 provides for the non-inclusion of the name of substit
ute 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 tha
t a candidate whose certificate of candidacy has been cancelled or not
given due course cannot be substituted by another belonging to the sa
me political party as that of the former, thus:
While there is no dispute as to whether or not a nominee of a register
ed or accredited political party may substitute for a candidate of the sa
me party who had been disqualified for any cause, this does not include
those cases where the certificate of candidacy of the person to be sub
stituted had been denied due course and cancelled under Section 78 of
the Code.
Expressio unius est exclusio alterius. While the law enumerated the occas
ions where a candidate may be validly substituted, there is no mention
of the case where a candidate is excluded not only by disqualification b
ut also by denial and cancellation of his certificate of candidacy. Under t
he foregoing rule, there can be no valid substitution for the latter case,
much in the same way that a nuisance candidate whose certificate of ca
ndidacy is denied due course and/or cancelled may not be substituted. I
f 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
substituted, there demonstrably cannot be any possible substitution of a
person whose certificate of candidacy has been cancelled and denied du
e 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 moo
t and academic.

A person without a valid certificate of candidacy cannot be considered a WHEREFORE, the instant petitions are DISMISSED and the assailed en ba
candidate in much the same way as any person who has not filed any nc Resolution dated May 7, 2004 of the COMELEC, in SPA No. 04-048
certificate of candidacy at all can not, by any stretch of the imagination, AFFIRMED.
be a candidate at all.

Costs against petitioners.

xxx xxx xxx

SO ORDERED.
After having considered the importance of a certificate of candidacy, it c
an be readily understood why in Bautista [Bautista vs. Comelec, G.R. No.
133840, November 13, 1998] we ruled that a person with a cancelled ce CANCIO C. GARCIA

rtificate is no candidate at all. Applying this principle to the case at bar Associate Justice
and considering that Section 77 of the Code is clear and unequivocal th
at only an official candidate of a registered or accredited party may be
WE CONCUR: ROMEO J. CALLEJO, SR.

Associate Justice ADOLFO S. AZCUNA

ARTEMIO V. PANGANIBAN Asscociate Justice

Chief Justice DANTE O. TINGA

Associate Justice MINITA V. CHICO-NAZARIO

REYNATO S. PUNO Asscociate Justice

Associate Justice LEONARDO A. QUISUMBING C E R T I F I C A T I O N

Asscociate Justice

CONSUELO YNARES-SANTIAGO Pursuant to Article VIII, Section 13 of the Constitution, and the Division
Chairman's Attestation, it is hereby certified that the conclusions in the a
Associate Justice ANGELINA SANDOVAL-GUTIERREZ
bove decision were reached in consultation before the case was assigne
Asscociate Justice d to the writer of the opinion of the Court.

ANTONIO T. CARPIO

Associate Justice MA. ALICIA AUSTRIA-MARTINEZ ARTEMIO V. PANGANIBAN

Asscociate Justice Chief Justice

RENATO C. CORONA

Associate Justice CONCHITA CARPIO MORALES

Asscociate Justice Footnotes

1 Rollo in G.R. No. 163295, pp. 29-34. 8 Annex "3", Alegre's Comment on Rommel Ong's Petition for Certiorari,
Rollo in G.R. No. 163354, pp. 113-114.

2 Rollo in G.R. No. 163295, pp. 20-28.

9 Annex "4", Alegre's Comment on Rommel Ong's Petition for Certiorari,
Rollo in G.R. No. 163354, pp. 115-116.
3 Annex "A", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 1632
95, pp. 15-19.
10 Vide Note #7, supra.

4 Annex "D", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 1632
95, pp. 35-41. 11 Annex "J", Rommel Ong's Petition, Rollo in G.R. No. 163354, p. 53.

5 Annex "B", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 16329 12 Annex "5" Alegre's Comment on Rommel Ong's Petition for Certiorari,
5, pp. 20-28. Rollo in G. R. No. 163354, p. 117.

6 Annex "C", Francis Ong's Petition for Certiorari, Rollo in G.R. No. 1632 13 Rollo in G.R. No. 163354, p. 63.
95, pp. 29-34.

14 Ibid, pp.124-125.
7 Annex "E", Rommel Ong's Petition for Certiorari, Rollo in G.R. No. 163
354, p. 46.
15 311 SCRA 602 [1999].

(c) Unless a motion for reconsideration is seasonably filed, a decision or

resolution of a Division shall become final and executory after the lapse
16 Adormeo vs. Comelec, 376 SCRA 90 [2002] citing Lonzanida vs. Com
of five (5) days in Special Actions and Special cases and after fifteen (15
elec, 311 SCRA 602 [1999].
) days in all other actions or proceedings, following its promulgation.

17 See Note # 4, supra.

21 Cited in Commissioner Garcillano’s Memorandum of May 10, 2004; se
e Note #9, supra.

18 See Note No. 15, supra.

22 G.R. No. 136351, July 28, 1999, 311 SCRA 617, 624-626.

19 295 SCRA 157 (1998).

20 Section 13, Rule 18 of the COMELEC Rules of Procedure on the Finali The Lawphil Project - Arellano Law Foundation
ty of its Decision provides: Sec. 13. Finality of Decision or Resolutions. -
(a) In ordinary actions, special proceedings, provisional remedies, and sp
ecial reliefs, a decision or resolution of the Commission en banc shall be Constitution Statutes Executive Issuances Judicial Issuances Other Issuanc
come final and executory after thirty (30) days from its promulgation. (b) es Jurisprudence International Legal Resources AUSL Exclusive
In Special Actions and Special cases, [such as a petition to disqualify} a
decision or resolution of the Commission en banc shall become final an
d executory after five (5) days from its promulgation unless restrained b
y the Supreme Court.