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It is evident that under the 1987 Constitution the President and the Congress act in tandem in exercising the power to proclaim martial
law or suspend the privilege of the writ of habeas corpus. They exercise the power, not only sequentially, but in a sense jointly since, after the
President has initiated the proclamation or the suspension, only the Congress can maintain the same based on its own evaluation of the
situation on the ground, a power that the President does not have.
Consequently, although the Constitution reserves to the Supreme Court the power to review the sufficiency of the factual basis of the
proclamation or suspension in a proper suit, it is implicit that the Court must allow Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress defaults in its express duty to defend the Constitution through such review should the
Supreme Court step in as its final rampart. The constitutional validity of the President’s proclamation of martial law or suspension of the writ
of habeas corpus is first a political question in the hands of Congress before it becomes a justiciable one in the hands of the Court. (Fortun, et
al. v. Arroyo, et al., G.R. No. 190293, March 20, 2012 & companion cases).
Power of the President to remove Deputy Ombudsman is implied in the power to appoint.
In Emilio Gonzales III v. Office of the President, et al., G.R. No. 196231; Wendell Barreras-Sulit v. Ochoa, Jr., et al., G.R. No. 196232,
September 4, 2012, the SC once again ruled that the power to appoint implies with it the power to remove.
The Ombudsman's administrative disciplinary power over a Deputy Ombudsman and Special Prosecutor is not exclusive.
It is true that the authority of the Office of the Ombudsman to conduct administrative investigations proceeds from its constitutional mandate to
be an effective protector of the people against inept and corrupt government officers and employees, and is subsumed under the broad powers
“explicitly conferred” upon it by the 1987 Constitution and R.A. No. 6770.
While the Ombudsman's authority to discipline administratively is extensive and covers all government officials, whether appointive or elective,
with the exception only of those officials removable by impeachment, the members of congress and the judiciary, such authority is by no means
exclusive. Petitioners cannot insist that they should be solely and directly subject to the disciplinary authority of the Ombudsman. For, while
Section 21 declares the Ombudsman's disciplinary authority over all government officials, Section 8(2), on the other hand, grants the President
express power of removal over a Deputy Ombudsman and a Special Prosecutor.
Indubitably, the manifest intent of Congress in enacting both provisions - Section 8(2) and Section 21 - in the same Organic Act was to provide
for an external authority, through the person of the President, that would exercise the power of administrative discipline over the Deputy
Ombudsman and Special Prosecutor without in the least diminishing the constitutional and plenary authority of the Ombudsman over all
government officials and employees. Such legislative design is simply a measure of “check and balance” intended to address the lawmakers'
real and valid concern that the Ombudsman and his Deputy may try to protect one another from administrative liabilities.
This would not be the first instance that the Office of the President has locked horns with the Ombudsman on the matter of disciplinary
jurisdiction. An earlier conflict had been settled in favor of shared authority in Hagad v. Gozo Dadole. In said case, the Mayor and Vice-Mayor
of Mandaue City, and a member of the Sangguniang Panlungsod, were charged before the Office of the Deputy Ombudsman for the Visayas
with violations of R.A. No. 3019, R.A. No. 6713, and the Revised Penal Code. The pivotal issue raised therein was whether the Ombudsman
had been divested of his authority to conduct administrative investigations over said local elective officials by virtue of the subsequent
enactment of the Local Government Code of 1991 (R.A. No. 7160), the pertinent provision of which states:
Sec. 61. Form and Filing of Administrative Complaints. — A verified complaint against any erring local elective official shall be prepared as
follows:
(a) A complaint against any elective official of a province, a highly urbanized city, an independent component city or component city shall be
filed before the Office of the President.
The Court resolved said issue in the negative, upholding the ratiocination of the Solicitor General that R.A. No. 7160 should be viewed as
having conferred on the Office of the President, but not on an exclusive basis, disciplinary authority over local elective officials. Despite the fact
that R.A. No. 7160 was the more recent expression of legislative will, no repeal of pertinent provisions in the Ombudsman Act was inferred
therefrom. Thus said the Court:
Indeed, there is nothing in the Local Government Code to indicate that it has repealed, whether expressly or impliedly, the pertinent provisions
of the Ombudsman Act. The two statutes on the specific matter in question are not so inconsistent, let alone irreconcilable, as to compel us to
only uphold one and strike down the other. Well settled is the rule that repeals of laws by implication are not favored, and that courts must
generally assume their congruent application. The two laws must be absolutely incompatible, and a clear finding thereof must surface, before
the inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et concordare legibus est optimus interpretendi,
i.e., every statute must be so interpreted and brought into accord with other laws as to form a uniform system of jurisprudence. The fundament
is that the legislature should be presumed to have known the existing laws on the subject and not to have enacted conflicting statutes. Hence,
all doubts must be resolved against any implied repeal, and all efforts should be exerted in order to harmonize and give effect to all laws on the
subject.
While Hagad v. Gozo Dadole upheld the plenary power of the Office of the Ombudsman to discipline elective officials over the same
disciplinary authority of the President under R.A. No. 7160, the more recent case of the Office of the Ombudsman v. Delijero tempered the
exercise by theOmbudsman of such plenary power invoking Section 23(2) of R.A. No. 6770, which gives the Ombudsman the option to “refer
certain complaints to the proper disciplinary authority for the institution of appropriate administrative proceedings against erring public officers
or employees.”
The Court underscored therein the clear legislative intent of imposing “a standard and a separate set of procedural requirements in connection
with administrative proceedings involving public school teachers”41 with the enactment of R.A. No. 4670, otherwise known as “The Magna
Carta for Public School Teachers.” It thus declared that, while the Ombudsman's administrative disciplinary authority over a public school
teacher is concurrent with the proper investigating committee of the Department of Education, it would have been more prudent under the
circumstances for the Ombudsman to have referred to the DECS the complaint against the public school teacher.
Unquestionably, the Ombudsman is possessed of jurisdiction to discipline his own people and mete out administrative sanctions upon them,
including the extreme penalty of dismissal from the service. However, it is equally without question that the President has concurrent authority
with respect to removal from office of the Deputy Ombudsman and Special Prosecutor, albeit under specified conditions. Considering the
principles attending concurrence of jurisdiction where the Office of the President was the first to initiate a case against petitioner Gonzales,
prudence should have prompted the Ombudsman to desist from proceeding separately against petitioner through its Internal Affairs Board, and
to defer instead to the President's assumption of authority, especially when the administrative charge involved "demanding and soliciting a sum
of money" which constitutes either graft and corruption or bribery, both of which are grounds reserved for the President's exercise of his
authority to remove a Deputy Ombudsman.
In any case, assuming that the Ombudsman's Internal Affairs Board properly conducted a subsequent and parallel administrative action against
petitioner, its earlier dismissal of the charge of graft and corruption against petitioner could not have the effect of preventing the Office of the
President from proceeding against petitioner upon the same ground of graft and corruption. After all, the doctrine of res judicata applies only to
judicial or quasi-judicial proceedings, not to the exercise of administrative powers. In Montemayor v. Bundalian,43 the Court sustained the
President's dismissal from service of a Regional Director of the Department of Public Works and Highways (DPWH) who was found liable for
unexplained wealth upon investigation by the now defunct Philippine Commission Against Graft and Corruption (PCAGC). The Court
categorically ruled therein that the prior dismissal by the Ombudsman of similar charges against said official did not operate as res judicata in
the PCAGC case.
By granting express statutory power to the President to remove a Deputy Ombudsman and a Special Prosecutor, Congress merely
filled an obvious gap in the law.
Section 9, Article XI of the 1987 Constitution confers upon the President the power to appoint the Ombudsman and his Deputies, viz:
Section 9. The Ombudsman and his Deputies shall be appointed by the President from a list of at least six nominees prepared by the Judicial
and Bar Council, and from a list of three nominees for every vacancy thereafter. Such appointments shall require no confirmation. All vacancies
shall be filled within three months after they occur.
While the removal of the Ombudsman himself is also expressly provided for in the Constitution, which is by impeachment under Section 244 of
the same Article, there is, however, no constitutional provision similarly dealing with the removal from office of a Deputy Ombudsman, or a
Special Prosecutor, for that matter. By enacting Section 8(2) of R.A. 6770, Congress simply filled a gap in the law without running afoul of any
provision in the Constitution or existing statutes. In fact, the Constitution itself, under Section 2, authorizes Congress to provide for the removal
of all other public officers, including the Deputy Ombudsman and Special Prosecutor, who are not subject to impeachment.
The Power of the President to Remove a Deputy Ombudsman and a Special Prosecutor is Implied from his Power to Appoint.
Under the doctrine of implication, the power to appoint carries with it the power to remove. As a general rule, therefore, all officers appointed by
the President are also removable by him. The exception to this is when the law expressly provides otherwise – that is, when the power to
remove is expressly vested in an office or authority other than the appointing power. In some cases, the Constitution expressly separates the
power to remove from the President's power to appoint. Under Section 9, Article VIII of the 1987 Constitution, the Members of the Supreme
Court and judges of lower courts shall be appointed by the President. However, Members of the Supreme Court may be removed after
impeachment proceedings initiated by Congress (Section 2, Article XI), while judges of lower courts may be removed only by the Supreme
Court by virtue of its administrative supervision over all its personnel (Sections 6 and 11, Article VIII). The Chairpersons and Commissioners of
the Civil Service Commission [Section 1(2), Article IX(B)], the Commission on Elections [Section 1(2), Article IX(C)], and the Commission on
Audit [Section 1(2), Article IX(D)] shall likewise be appointed by the President, but they may be removed only by impeachment (Section 2,
Article XI). As priorly stated, the Ombudsman himself shall be appointed by the President (Section 9, Article XI) but may also be removed only
by impeachment (Section 2, Article XI).
In giving the President the power to remove a Deputy Ombudsman and Special Prosecutor, Congress simply laid down in express terms an
authority that is already implied from the President's constitutional authority to appoint the aforesaid officials in the Office of the Ombudsman.
Granting the President the Power to Remove a Deputy Ombudsman does not Diminish the Independence of the Office of the
Ombudsman.
The claim that Section 8(2) of R.A. No. 6770 granting the President the power to remove a Deputy Ombudsman from office totally frustrates, if
not resultantly negates the independence of the Office of the Ombudsman is tenuous. The independence which the Office of the Ombudsman
is vested with was intended to free it from political considerations in pursuing its constitutional mandate to be a protector of the people. What
the Constitution secures for the Office of the Ombudsman is, essentially, political independence. This means nothing more than that “the terms
of office, the salary, the appointments and discipline of all persons under the office” are “reasonably insulated from the whims of politicians.”
And so it was that Section 5, Article XI of the 1987 Constitution had declared the creation of the independent Office of the Ombudsman,
composed of the Ombudsman and his Deputies, who are described as “protectors of the people” and constitutionally mandated to act promptly
on complaints filed in any form or manner against public officials or employees of the Government [Section 12, Article XI]. Pertinent provisions
under Article XI prescribes a term of office of seven years without reappointment [Section 11], prohibits a decrease in salaries during the term
of office Section 10], provides strict qualifications for the office [Section 8], grants fiscal autonomy [Section 14] and ensures the exercise of
constitutional functions [Section 12 and 13]. The cloak of independence is meant to build up the Office of the Ombudsman's institutional
strength to effectively function as official critic, mobilizer of government, constitutional watchdog53 and protector of the people. It certainly
cannot be made to extend to wrongdoings and permit the unbridled acts of its officials to escape administrative discipline.
Nature of co-terminous appointment; temporary in nature.
Once again, the SC in Samuel Ong v. Office of the President, et al., G.R. No. 184219, January 30, 2012, the SC held that if an appointee to the
position Director III, NBI does not possess CES eligibility, his appointment is merely co-terminous with the appointing authority. His
appointment being both temporary and co-terminous, it can be revoked by the President even without cause and at a short notice.
It is established that no officer or employee in the Civil Service shall be removed or suspended except for cause provided by law. (Mita
Pardode Tavera v. Phil. Tuberculosis Society, Inc., 197 Phil. 919 (1982)). However, this admits of exceptions for it is likewise settled that the
right to security of tenure is not available to those employees whose appointments are contractual and co-terminous in nature. (CSC v.
Magnaye, Jr., G.R. No. 183337, April 23, 2010, 619 SCRA 347).
In Amores v. Civil Service Commission, et al., G.R. No. 170093, April 29, 2009, 587 SCRA 160 the SC ruled that an appointment is permanent
where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed,
and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility.
x x x x
x x x Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career executive service a
permanent one. x x x
Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government in the absence
of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government. But in all such cases,
the appointment is at best merely temporary as it is said to be conditioned on the subsequent obtention of the required CES eligibility. x x x
x x x
Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES
examinations administered by the CES Board. x x x
Q – As an appointee holding a position “co-terminus with the appointing authority,” is he entitled to remain as Director III until the
end of the President's tenure on June 30, 2010? Why?
Answer: No. A co-terminous appointment as one co-existent with the tenure of the appointing authority or at his pleasure.
In Mita Pardo de Tavera v. Philippine Tuberculosis Society, Inc. the SC sustained the replacement of an incumbent, who held an
appointment at the pleasure of the appointing authority. Such appointment was in essence temporary in nature. The incumbent's replacement
is not a removal but rather as an expiration of term and no prior notice, due hearing or cause were necessary to effect the same. In Decano v.
Edu, ruled that the acceptance of a temporary appointment divests an appointee of the right to security of tenure against removal without
cause. Further, in Carillo vs. CA, L-24554, May 31, 1967, 77 SCRA 170, it was said that “one who holds a temporary appointment has no fixed
tenure of office; his employment can be terminated at the pleasure of the appointing authority, there being no need to show that the termination
is for cause.”
ARTICLE VIII – JUDICIARY
Power of judicial review; requisites.
Like almost all powers conferred by the Constitution, the power of judicial review is subject to limitations, to wit: (1) there must be an actual
case or controversy calling for the exercise of judicial power; (2) the person challenging the act must have the standing to question the validity
of the subject act or issuance; otherwise stated, he must have a personal and substantial interest in the case such that he has sustained, or will
sustain, direct injury as a result of its enforcement; (3) the question of constitutionality must be raised at the earliest opportunity; and (4) the
issue of constitutionality must be the very lis mota of the case. (Senate of the Phil. v. Ermita, G.R. No. 169777, April 20, 2006, 488 SCRA 1).
An aspect of the “case-or-controversy” requirement is the requisite of “ripeness.” In the United States, courts are centrally concerned with
whether a case involves uncertain contingent future events that may not occur as anticipated, or indeed may not occur at all. Another concern
is the evaluation of the twofold aspect of ripeness: first, the fitness of the issues for judicial decision; and second, the hardship to the parties
entailed by withholding court consideration. In our jurisdiction, the issue of ripeness is generally treated in terms of actual injury to the
plaintiff. Hence, a question is ripe for adjudication when the act being challenged has had a direct adverse effect on the individual challenging
it. (Lozano v. Nograles, G.R. Nos. 187883 and 187910, June 16, 2009, 589 SCRA 356, citing Guingona, Jr. v. Court of Appeals, 354 Phil. 415).
In this case, the petitioner contested the implementation of an alleged unconstitutional statute, as citizens and taxpayers. According to LAMP,
the practice ofdirect allocation and release of funds to the Members of Congress and the authority given to them to propose and select projects
is the core of the law’s flawed execution resulting in a serious constitutional transgression involving the expenditure of public funds. Undeniably,
as taxpayers, LAMP would somehow be adversely affected by this. A finding of unconstitutionality would necessarily be tantamount to a
misapplication of public funds which, in turn, cause injury or hardship to taxpayers. This affords “ripeness” to the present controversy.
Further, the allegations in the petition do not aim to obtain sheer legal opinion in the nature of advice concerning legislative or executive action.
The possibility of constitutional violations in the implementation of PDAF surely involves the interplay of legal rights susceptible of judicial
resolution. For LAMP, this is the right torecover public funds possibly misapplied by no less than the Members of Congress. Hence, without
prejudice to other recourse against erring public officials, allegations of illegal expenditure of public funds reflect a concrete injury that may
have been committed by other branches of government before the court intervenes. The possibility that this injury was indeed committed
cannot be discounted. The petition complains of illegal disbursement of public funds derived from taxation and this is sufficient reason to say
that there indeed exists a definite, concrete, real or substantial controversy before the Court.
Anent locus standi, “the rule is that the person who impugns the validity of a statute must have a personal and substantial interest in the case
such that he has sustained, or will sustained, direct injury as a result of its enforcement. (People v. Vera, 65 Phil. 56 (1937)). The gist of the
question of standing is whether a party alleges “such a personal stake in the outcome of the controversy as to assure that concrete
adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional
questions.” (Navarro v. Ermita, G.R. No. 180050, April 12, 2011, 648 SCRA 400). In public suits, the plaintiff, representing the general public,
asserts a “public right” in assailing an allegedly illegal official action. The plaintiff may be a person who is affected no differently from any other
person, and could be suing as a “stranger,” or as a “citizen” or “taxpayer.” (David v. Macapagal-Arroyo, G.R. Nos. 171396, 171409, 171485,
171483, 171400, 171489 and 171424, May 3, 2006, 489 SCRA 160). Thus, taxpayers have been allowed to sue where there is a claim that
public funds are illegally disbursed or that public money is being deflected to any improper purpose, or that public funds are wasted through the
enforcement of an invalid or unconstitutional law. (Public Interest Center, Inc. v. Honorable Vicente Q. Roxas, in his capacity as Presiding
Judge, RTC of Quezon City, Branch 227, G.R. No. 125509, January 31, 2007, 513 SCRA 457, 470) Of greater import than the damage
caused by the illegal expenditure of public funds is the mortal wound inflicted upon the fundamental law by the enforcement of an invalid
statute. (People v. Vera, 65 Phil. 56 (1937)).
Here, the sufficient interest preventing the illegal expenditure of money raised by taxation required in taxpayers’ suits is established. Thus, in
the claim that PDAF funds have been illegally disbursed and wasted through the enforcement of an invalid or unconstitutional law, LAMP
should be allowed to sue. The case of Pascual v. Secretary of Public Works, 110 Phil. 331 (1960), is authority in support of the petitioner:
In the determination of the degree of interest essential to give the requisite standing to attack the constitutionality of a statute, the general rule
is that not only persons individually affected, but also taxpayers have sufficient interest in preventing the illegal expenditures of moneys
raised by taxation and may therefore question the constitutionality of statutes requiring expenditure of public moneys. (11 Am. Jur.
761) (Lawyers Against Monopoly & Poverty (LAMP), et al., G.R. No. 164987, April 24, 2012).
Q – In dismissing MERALCO’s petition for review of the resolution of the Office of the City Prosecutor of Pasig City, the Secretary of
Justice ruled that after carefully examining the petition and its attachments, no error on the part of the handling prosecutor was
found to have been committed which would warrant a reversal of the challenged resolution. It concluded that the challenged
resolution was in accord with the evidence and the law on the matter.
MERALCO contended that the resolution was invalid because of the absence of any statement of facts and law upon which it is
based, as required under Section 14, Article VIII of the Constitution and Section 14, Chapter III, Book VII of the Administrative Code of
1987. It claimed that the requirement to state the facts and the law in a decision is a mandatory requirement and the DOJ is not
exempt from complying with the same. Is the contention correct? Why?
Answer: No. MERALCO failed to note that Section 14, Article VIII of the Constitution refers to “courts,” thereby excluding the DOJ Secretary
and prosecutors who are not members of the Judiciary. In Odchigue-Bondoc v. Tan Tiong Bio, G.R. No. 186652, October 6, 2010, 632 SCRA
457, it was ruled that “Section 4, Article VIII of the Constitution does not x x x extend to resolutions issued by the DOJ Secretary,” because the
DOJ is not a quasi-judicial body and the action of the Secretary of Justice in reviewing a prosecutor’s order or resolution via appeal or petition
for review cannot be considered a quasi-judicial proceeding.
In Spouses Balangauan v. Court of Appeals, Special Nineteenth Division, Cebu City, G.R. No. 174350, August 13, 2008, 562 SCRA 184, it was
said that a preliminary investigation is not a quasi-judicial proceeding, and the DOJ is not a quasi-judicial agency exercising a quasi-judicial
function when it reviews the findings of a public prosecutor regarding the presence of probable cause. A quasi-judicial agency performs
adjudicatory functions when its awards determine the rights of parties, and its decisions have the same effect as a judgment of a court. “[This]
is not the case when a public prosecutor conducts a preliminary investigation to determine probable cause to file an information against a
person charged with a criminal offense, or when the Secretary of Justice [reviews] the former's order[s] or resolutions” on determination of
probable cause. (Manila Electric Co. v. Atilano, et al., G.R. No. 166758, June 27, 2012, Brion, J).
Note:
When the public prosecutor conducts preliminary investigation, he thereby exercises investigative or inquisitorial powers. Investigative or
inquisitorial powers include the powers of an administrative body to inspect the records and premises, and investigate the activities of persons
or entities coming under his jurisdiction, or to secure, or to require the disclosure of information by means of accounts, records, reports,
statements, testimony of witnesses, and production of documents. This power is distinguished from judicial adjudication which signifies the
exercise of power and authority to adjudicate upon the rights and obligations of concerned parties. Indeed, it is the exercise of investigatory
powers which sets a public prosecutor apart from the court.
The public prosecutor exercises investigative powers in the conduct of preliminary investigation to determine whether, based on the evidence
presented to him, he should take further action by filing a criminal complaint in court. In doing so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him. Since the power exercised by the public prosecutor in this instance is merely investigative or
inquisitorial, it is subject to a different standard in terms of stating the facts and the law in its determinations. This is also true in the case of the
DOJ Secretary exercising her review powers over decisions of public prosecutors. Thus, it is sufficient that in denying a petition for review of a
resolution of a prosecutor, the DOJ resolution state the law upon which it is based. (Manila Electric Co. v. Atilano, et al., G.R. No. 166758, June
27, 2012, Brion, J).
Note:
When the public prosecutor conducts preliminary investigation, he thereby exercises investigative or inquisitorial powers. Investigative or
inquisitorial powers include the powers of an administrative body to inspect the records and premises, and investigate the activities of persons
or entities coming under his jurisdiction, or to secure, or to require the disclosure of information by means of accounts, records, reports,
statements, testimony of witnesses, and production of documents. This power is distinguished from judicial adjudication which signifies the
exercise of power and authority to adjudicate upon the rights and obligations of concerned parties. Indeed, it is the exercise of investigatory
powers which sets a public prosecutor apart from the court.
The public prosecutor exercises investigative powers in the conduct of preliminary investigation to determine whether, based on the evidence
presented to him, he should take further action by filing a criminal complaint in court. In doing so, he does not adjudicate upon the rights,
obligations or liabilities of the parties before him. Since the power exercised by the public prosecutor in this instance is merely investigative or
inquisitorial, it is subject to a different standard in terms of stating the facts and the law in its determinations. This is also true in the case of the
DOJ Secretary exercising her review powers over decisions of public prosecutors. Thus, it is sufficient that in denying a petition for review of a
resolution of a prosecutor, the DOJ resolution state the law upon which it is based. (Manila Electric Co. v. Atilano, et al., G.R. No. 166758, June
27, 2012, Brion, J).
It was ruled that the DOJ resolution satisfactorily complied with constitutional and legal requirements when it stated its legal basis for denying
MERALCO’s petition for review which is Section 7 of Department Circular No. 70, which authorizes the Secretary of Justice to dismiss a petition
outright if he finds it to be patently without merit or manifestly intended for delay, or when the issues raised therein are too insubstantial to
require consideration.
The DOJ resolution noted that MERALCO failed to submit a legible true copy of the confirmation of sale dated May 30, 2000 and considered
the omission in violation of Section 5 of Department Circular No. 70. MERALCO assails the dismissal on this ground as an overly technical
application of the rules and claims that it frustrated the ends of substantial justice. We note, however, that the failure to attach the document
was not the sole reason of the DOJ’s denial of MERALCO’s petition for review. As mentioned, the DOJ resolution dismissed the petition
primarily because the prosecutor’s resolution is in accord with the evidence and the law on the matter.
At this point, it becomes unnecessary to decide the legality of Section 7 of DOJ Department Circular No. 70 allowing the outright dismissal of
MERALCO’s petition for review. It is basic that this Court will not pass upon a constitutional question although properly presented by the record
if the case can be disposed of on some other ground.
Also, DOJ Department Circular No. 70 is an enactment of an executive department of the government and is designed for the expeditious and
efficient administration of justice; before it was enacted, it is presumed to have been carefully studied and determined to be constitutional. Lest
we be misunderstood, we do not hereby evade our duty; in the absence of any grave abuse of discretion, we merely accord respect to the
basic constitutional principle of separation of powers, which has long guided our system of government.
The determination of probable cause for the filing of an information in court is an executive function
“The determination of probable cause for the filing of an information in court is an executive function which pertains at the first instance to the
public prosecutor and then to the Secretary of Justice.” As a rule, in the absence of any grave abuse of discretion, “courts are not empowered
to substitute their own judgment for that of the executive branch”; (Cruzvale, Inc. v. Eduque, G.R. Nos. 172785-86, June 18, 2009, 589 SCRA
534) the public prosecutor alone determines the sufficiency of evidence that will establish probable cause in filing a criminal information
and courts will not interfere with his findings unless grave abuse of discretion can be shown. (Sanrio Co. Ltd. V. Lim, G.R. No. 168662,
February 19, 2008; Manila Electric Co. v. Atilano, et al., G.R. No. 166758, June 27, 2012, Brion, J).
NATIONAL PATRIMONY
Q – A foreigner and a Filipino got married. They acquired real properties, but when their marriage was annulled resulting in the
dissolution of their conjugal partnership, the foreigner contended that he is entitled to a share of the real properties emphasizing that
the money used in the acquisition of the same came from his own funds but registered under the name of his wife because of the
constitutional prohibition against foreign ownership. Is the contention correct? Explain.
Answer: No. Under the Constitution, save in cases of hereditary succession no private lands shall be transferred or conveyed except to
individuals, corporations or associations qualified to acquire or hold lands of the public domain. He was well aware of the constitutional
prohibition and openly admitted the same. His actuations showed his palpable intent t skirt the constitutional prohibition, hence, he cannot be
entitled to a share of the real properties. Contracts that violate the Constitution and the law are null and void, vest not rights, create no
obligations and produce no legal effect at all. The denial of his claim does not amount to injustice. It is the Constitution itself that demarcates
the rights of citizens and non-citizens in owning Philippine land. The purpose of the prohibition is to conserve and develop the national
patrimony. (Beumer vs. Amores, G.R. No. 195670, December 3, 2012).
Q – He contended that he is entitled to reimbursement of the value of the parcels of land. Is his contention correct? Why?
Answer: No. He cannot seek reimbursement on the ground of equity where it is clear that he willingly and knowingly bought the properties
despite the prohibition against foreign ownership of land in the Philippines. In In Re: Petition for Separation of Property – Elena Buenaventura
Muller vs. Helmut Muller, G.R. 149615, August, 29, 2006, 500 SCRA 65, it was held that the time-honored principle is that he who seeks equity
must do equity, and he who comes into equity must come with clean hands. Conversely stated, he who has done inequity shall not be
accorded equity. Thus, a litigant may be denied relief by a court of equity on the ground that his conduct has been inequitable, unfair and
dishonest, or fraudulent, or deceitful. (UP v. Catungal, J., 338 Phil. 728 (1997); Beumer v. Amores, G.R. No. 195670, December 3, 2012).
Even on grounds of equity, he is not entitled to reimbursement.
In any event, the Court cannot, even on the grounds of equity, grant reimbursement to petitioner given that he acquired no righty
whatsoever over the subject properties by virtue of its unconstitutional purchase. It is well-established that equity as a rule will follow the law
and will not permit that to be done indirectly which, because of public policy, cannot be done directly. (Frenzel v. Catito, G.R. No. 143958, July
11, 2003, 406 SCRA 55). Surely, a contract that violates the Constitution and the law is null and void, vests no rights, creates no obligations
and produces no legal effect at all. Corollary thereto, under Article 1412 of the Civil Code, petitioner cannot have the subject properties deeded
to him or allow him to recover the money he had spent for the purchase thereof. The law will not aid either party to an illegal contract or
agreement; it leaves the parties where it finds them. Indeed, one cannot salvage any rights from an unconstitutional transaction knowingly
entered into.
Neither can the Court grant petitioner’s claim for reimbursement on the basis of unjust enrichment. As held in Frenzel v. Catito, a case also
involving a foreigner seeking monetary reimbursement for money spent on
purchase of Philippine land, the provision on unjust enrichment does not apply if the action is proscribed by the Constitution, to wit:
Futile, too, is petitioner's reliance on Article 22 of the New Civil Code which reads:
Art. 22. Every person who through an act of performance by another, or any other means, acquires or comes into possession of something at
the expense of the latter without just or legal ground, shall return the same to him.
The provision is expressed in the maxim: "MEMO CUM ALTERIUS DETER DETREMENTO PROTEST" (No person should unjustly enrich
himself at the expense of another). An action for recovery of what has been paid without just cause has been designated as an accion in rem
verso. This provision does not apply if, as in this case, the action is proscribed by the Constitution or by the application of the pari
delicto doctrine. It may be unfair and unjust to bar the petitioner from filing an accion in rem verso over the subject properties, or from
recovering the money he paid for the said properties, but, as Lord Mansfield stated in the early case of Holman v. Johnson: "The objection that
a contract is immoral or illegal as between the plaintiff and the defendant, sounds at all times very ill in the mouth of the defendant. It is not for
his sake, however, that the objection is ever allowed; but it is founded in general principles of policy, which the defendant has the advantage of,
contrary to the real justice, as between him and the plaintiff." (Marissey v. Bolonga, 123 2d 537 (1960)).
Nor would the denial of his claim amount to an injustice based on his foreign citizenship.35 Precisely, it is the Constitution itself which
demarcates the rights of citizens and non-citizens in owning Philippine land. To be sure, the constitutional ban against foreigners applies only
to ownership of Philippine land and not to the improvements built thereon. Needles to state, the purpose of the prohibition is to conserve the
national patrimony. (Krivenko v. Register of Deeds, 79 Phil. 461 (1947)) and it is this policy which the Court is duty0bound to protect.
FRANCHISE
Sec. 2, Article XII, Constitution
Q – Section 11, Article XII (National Economy and Patrimony) of the 1987 Constitution mandates the Filipinization of public utilities,
where it provides that no franchise, certificate, or any other form of authorization for the operation of a public utility shall be granted
except to citizens of the Philippines or to corporations or associations organized under the laws of the Philippines, at least sixty per
centum of whose capital is owned by such citizens. What is the meaning of the term “capital”? Explain.
Answer: The term capital refers only to shares of stock entitled to vote in the election of directors. Hence, it refers to common shares and not
to the total outstanding capital stock comprising both common and non-voting preferred shares. This interpretation is consistent with the intent
of the framers of the Constitution to place in the hands of Filipino citizens the control and management of public utilities. As revealed in the
deliberations of the Constitutional Commission, “capital” refers to the voting stock or controlling interest of a corporation. (Wilson Gamboa v.
Sec. of Finance Teves, et al., G.R. No. 176579, June 28, 2011).
Indisputably, one of the rights of a stockholder is the right to participate in the control or management of the corporation. This is exercised
through his vote in the election of directors because it is the board of directors that controls or manages the corporation. In the absence of
provisions in the articles of incorporation denying voting rights to preferred shares, preferred shares have the same voting rights as common
shares. However, preferred shareholders are often excluded from any control, that is, deprived of the right to vote in the election of directors
and on other matters, on the theory that the preferred shareholders are merely investors in the corporation for income in the same manner as
bondholders. In fact, under the Corporation Code only preferred or redeemable shares can be deprived of the right to vote. (Sec. 6, BP 68, or
the Corporation Code). Common shares cannot be deprived of the right to vote in any corporate meeting, and any provision in the articles of
incorporation restricting the right of common shareholders to vote is invalid.
Considering that common shares have voting rights which translate to control, as opposed to preferred shares which usually have no voting
rights, the term “capital” in Section 11, Article XII of the Constitution refers only to common shares. However, if the preferred shares also have
the right to vote in the election of directors, then the term “capital” shall include such preferred shares because the right to participate in the
control or management of the corporation is exercised through the right to vote in the election of directors. In short, the term “capital” in Section
11, Article XII of the Constitution refers only to shares of stock that can vote in the election of directors. (Wilson Gamboa v. Sec. of Finance
Teves, et al., G.R. No. 176579, June 28, 2011, Carpio, J).
Meaning and effect of the 60 percent of the capital of a corporation.
The 60 percent of the “capital” assumes, or should result in, “controlling interest” in the corporation. Reinforcing this interpretation of the term
“capital,” as referring to controlling interest or shares entitled to vote, is the definition of a “Philippine national” in the Foreign Investments Act of
1991, to wit:
SEC. 3. Definitions. - As used in this Act:
a. The term “Philippine national” shall mean a citizen of the Philippines; or a domestic partnership or association wholly owned by citizens of
the Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent (60%) of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines; or a corporation organized abroad and registered as
doing business in the Philippines under the Corporation Code of which one hundred percent (100%) of the capital stock outstanding and
entitled to vote is wholly owned by Filipinos or a trustee of funds for pension or other employee retirement or separation benefits, where the
trustee is a Philippine national and at least sixty percent (60%) of the fund will accrue to the benefit of Philippine nationals: Provided, That
where a corporation and its non-Filipino stockholders own stocks in a Securities and Exchange Commission (SEC) registered enterprise, at
least sixty percent (60%) of the capital stock outstanding and entitled to vote of each of both corporations must be owned and held by citizens
of the Philippines and at least sixty percent (60%) of the members of the Board of Directors of each of both corporations must be citizens of the
Philippines, in order that the corporation, shall be considered a “Philippine national.” (Emphasis supplied)
In explaining the definition of a “Philippine national,” the Implementing Rules and Regulations of the Foreign Investments Act of 1991 provide:
b. “Philippine national” shall mean a citizen of the Philippines or a domestic partnership or association wholly owned by the citizens of the
Philippines; or a corporation organized under the laws of the Philippines of which at least sixty percent [60%] of the capital stock
outstanding and entitled to vote is owned and held by citizens of the Philippines; or a trustee of funds for pension or other employee
retirement or separation benefits, where the trustee is a Philippine national and at least sixty percent [60%] of the fund will accrue to the benefit
of the Philippine nationals;Provided, that where a corporation its non-Filipino stockholders own stocks in a Securities and Exchange
Commission [SEC] registered enterprise, at least sixty percent [60%] of the capital stock outstanding and entitled to vote of both corporations
must be owned and held by citizens of the Philippines and at least sixty percent [60%] of the members of the Board of Directors of each of both
corporation must be citizens of the Philippines, in order that the corporation shall be considered a Philippine national. The control test shall be
applied for this purpose.
Compliance with the required Filipino ownership of a corporation shall be determined on the basis of outstanding capital stock
whether fully paid or not, but only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine nationals, mere legal title is not enough to meet the
required Filipino equity. Full beneficial ownership of the stocks, coupled with appropriate voting rights is essential. Thus, stocks, the
voting rights of which have been assigned or transferred to aliens cannot be considered held by Philippine citizens or Philippine
nationals.
Individuals or juridical entities not meeting the aforementioned qualifications are considered as non-Philippine nationals. (Emphasis
supplied)
Mere legal title is insufficient to meet the 60 percent Filipino-owned “capital” required in the Constitution. Full beneficial ownership of 60 percent
of the outstanding capital stock, coupled with 60 percent of the voting rights, is required. The legal and beneficial ownership of 60 percent of the
outstanding capital stock must rest in the hands of Filipino nationals in accordance with the constitutional mandate. Otherwise, the corporation
is “considered as non-Philippine national[s].”
“Capital” does not mean total outstanding capital including common and non-voting preferred shares.
Q – What is the effect if we construe capital as including common and non-voting preferred shares? In the case of PLDT, (1)
foreigners own 64.27% of the common shares of PLDT, which class of shares exercises the sole right to vote in the election of
35.73% of PLDT’s common shares, constituting a minority of the voting stock, and thus do not exercise control over PLDT; (3)
preferred shares, 99.44% owned by Filipinos, have no voting rights; (4) preferred shares earn only 1/70 of the dividends that common
shares earn; (5) preferred shares have twice the par value of common shares; and (6) preferred shares constitute 77.85% of the
authorized capital stock of PLDT and common shares only 22.15%.
PLDT common shares with a par value of P5.00 have a current stock market value of P2,328.00per share, while PLDT
preferred shares with a par value of P10.00 per share have a current stock market value ranging from only P10.92 to P11.06 per
share. Explain the effect of such kind of ownership of the shares of stock of PLDT, a public utility company.
Answer: This kind of ownership and control of a public utility is a mockery of the Constitution. Construing the term “capital” in Section 11,
Article XII of the Constitution to include both voting and non-voting shares will result in the abject surrender of our telecommunications industry
to foreigners, amounting to a clear abdication of the State’s constitutional duty to limit control of public utilities to Filipino citizens. Such an
interpretation certainly runs counter to the constitutional provision reserving certain areas of investment to Filipino citizens, such as the
exploitation of natural resources well as the ownership of land, educational institutions and advertising businesses. The Court should never
open to foreign control what the Constitution has expressly reserved to Filipinos for that would be a betrayal of the Constitution and of the
national interest. The Court must perform its solemn duty to defend and uphold the intent and letter of the Constitution to ensure, in the words
of the Constitution, “a self-reliant and independent national economy effectively controlled by Filipinos.” (Gamboa v. Teves, et al., G.R. No.
176579, June 28, 2011).
Reservation by the Constitution of certain areas of Investment; self-executory.
Section 11, Article XII of the Constitution, like other provisions of the Constitution expressly reserving to Filipinos specific areas of investment,
such as the development of natural resources and ownership of land, educational institutions and advertising business, is self-executing.
There is no need for legislation to implement these self-executing provisions of the Constitution. The rationale why these constitutional
provisions are self-executing was explained in Manila Prince Hotel v. GSIS, 335 Phil 82 (1997) thus:
x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption now is that
all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation instead of self-executing,
the legislature would have the power to ignore and practically nullify the mandate of the fundamental law. This can be cataclysmic. That is why
the prevailing view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the contrary is clearly
intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the lawmaking
body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute. (Emphasis supplied)
Thus, in numerous cases, Krivenko v. Register of Deeds, 79 Phil. 461 (1947); Rellosa v. Gaw Chee Hun, 93 Phil. 827 (1953); Vasquez v.
Li Seng Giap, 96 Phil. 447 (1955); Soriano v. Ong Hoo, 103 Phil. 829 (1958); Philippine Banking Corporation v. LuiShe, 128 Phil. 53
(1967); Frenzel v. Catito, 453 Phil. 885 (2003), the Court, even in the absence of implementing legislation, applied directly the provisions of the
1935, 1973 and 1987 Constitutions limiting land ownership to Filipinos. In Soriano v. Ong Hoo, the Court ruled:
x x x As the Constitution is silent as to the effects or consequences of a sale by a citizen of his land to an alien, and as both the citizen and the
alien have violated the law, none of them should have a recourse against the other, and it should only be the State that should be allowed to
intervene and determine what is to be done with the property subject of the violation. We have said that what the State should do or could do in
such matters is a matter of public policy, entirely beyond the scope of judicial authority. (Dinglasan, et al. vs. Lee Bun Ting, et al., 6 G. R. No. L-
5996, June 27, 1956.)While the legislature has not definitely decided what policy should be followed in cases of violations against the
constitutional prohibition, courts of justice cannot go beyond by declaring the disposition to be null and void as violative of the
Constitution. x x x (Emphasis supplied)
To treat Section 11, Article XII of the Constitution as not self-executing would mean that since the 1935 Constitution, or over the last 75 years,
not one of the constitutional provisions expressly reserving specific areas of investments to corporations, at least 60 percent of the “capital” of
which is owned by Filipinos, was enforceable. In short, the framers of the 1935, 1973 and 1987 Constitutions miserably failed to effectively
reserve to Filipinos specific areas of investment, like the operation by corporations of public utilities, the exploitation by corporations of mineral
resources, the ownership by corporations of real estate, and the ownership of educational institutions. All the legislatures that convened since
1935 also miserably failed to enact legislations to implement these vital constitutional provisions that determine who will effectively control the
national economy, Filipinos or foreigners. This Court cannot allow such an absurd interpretation of the Constitution. (Gamboa v. Teves, et al.,
G.R. No. 176549, June 28, 2011).
Legal & beneficial ownership of 60% of outstanding capital stock must be owned by Filipinos.
The legal and beneficial ownership of 60 percent of the outstanding capital stock must rest in the hands of Filipinos in accordance with the
constitutional mandate. Full beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60 percent of the voting rights, is
constitutionally required for the State’s grant of authority to operate a public utility. The undisputed fact that the PLDT preferred shares, 99.44%
owned by Filipinos, are non-voting and earn only 1/70 of the dividends that PLDT common shares earn, grossly violates the constitutional
requirement of 60 percent Filipino control and Filipino beneficial ownership of a public utility.
In short, Filipinos hold less than 60 percent of the voting stock, and earn less than 60 percent of the dividends, of PLDT. This directly
contravenes the express command in Section 11, Article XII of the Constitution that “[n]o franchise, certificate, or any other form of
authorization for the operation of a public utility shall be granted except to x x x corporations x x x organized under the laws of the
Philippines, at least sixty per centum of whose capital is owned by such citizens x x x.”
Filipinization provision of the Constitution; meaning and purpose.
Q – What is the meaning and purpose of the Filipinization of public utilities? Explain.
Answer: The Filipinization provision in the 1987 Constitution is one of the products of the spirit of nationalism which gripped the 1935
Constitutional Convention. (Luzon Stevedoring Corp. v. Anti-Dummy Board, 46 SCRA 474 (1972). The 1987 Constitution “provides for
the Filipinization of public utilities by requiring that any form of authorization for the operation of public utilities should be granted only to
‘citizens of the Philippines or to corporations or associations organized under the laws of the Philippines at least sixty per centum of whose
capital is owned by such citizens.’ The provision is an express recognition of the sensitive and vital position of public utilities both in the national
economy and for national security.” The evident purpose of the citizenship requirement is to prevent aliens from assuming control of public
utilities, which may be inimical to the national interest. This specific provision explicitly reserves to Filipino citizens control of public utilities,
pursuant to an overriding economic goal of the 1987 Constitution: to “conserve and develop our patrimony” and ensure “a self-reliant and
independent national economy effectively controlled by Filipinos.”
Any citizen or juridical entity desiring to operate a public utility must therefore meet the minimum nationality requirement prescribed in Section
11, Article XII of the Constitution. Hence, for a corporation to be granted authority to operate a public utility, at least 60 percent of its “capital”
must be owned by Filipino citizens. (Gamboa v. Teves, et al., G.R. No. 176579, June 28, 2011).
LGU
3-term limit; Mayor did not serve the 3-term limit when he was deprived of the right to occupy position although finally proclaimed
winners.
Q – Mayor Abundo was elected Mayor in the local elections of Viga, Catanduanes in 2011, 2004, 2007 and served as Mayor. However,
in the 2004 elections, Torres was proclaimed as the winner, but after the protest was decided Abundo was finally proclaimed as the
winner, hence, he served as Mayor starting May 9, 2006 until the end of the 2004-2007 term on June 30, 2007 or for a period of one
year and one month. In the 2010 local elections, he again filed his certificate of candidacy. The opponent filed a petition for
disqualification because he was running for a fourth term, violating of the 3-term limit rule. Is the contention correct? Why?
Answer: No, because he did not serve the full term in the 2004-2007 elections, when he was initially deprived of title to, and was veritably
disallowed to serve and occupy an office to which he, after due proceedings, was eventually declared to have been the rightful choice of the
electorate. Article X, Sec. 8 of the Constitution and Sec. 43(b) of RA 7160, or the Local Government Code provide that no local elective official
shall serve for more than three (3) consecutive terms in the same position. The 3-term limit has two (2) basic requirements, thus:
(1) That the official concerned has been elected for three consecutive terms in the same local government post; and
(2) That he has fully served three consecutive terms. (Lonzanida v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602).
Abundo could not have served for a full term in 2004-2007 because the opponent was proclaimed as the winner, hence, Abundo was
termporarily unable to discharge his functions as mayor during the pendency of the election protest. The declaration of being the winner in an
election protest grants the local elected official the right to serve the unexpired portion of the term but while was declared the winner for the
2004-2007 term, his full term has been substantially reduced by the actual service by his opponent. Hence, there was involuntary interruption in
the term of Abundo and cannot be considered to have served the full 2004-2007 term. (Mayor Abelardo Abundo, Jr. v. COMELEC, et al., G.R.
No. 201716, January 8, 2013).
Note:
Summary of prevailing jurisprudence on issues affecting consecutiveness of terms and/or involuntary interruption:
When a permanent vacancy occurs in an elective position and the official merely assumed the position pursuant to the rules on
succession under the LGC, then his service for the unexpired portion of the term of the replaced official cannot be treated as one full term as
contemplated under the subject constitutional and statutory provision that service cannot be counted in the application of any term limit
(Borja, Jr. v. COMELEC, et al., G.R. No. 133495, September 3, 1998, 295 SCRA 157). If the official runs again for the same position he
held prior to his assumption of the higher office, then his succession to said position is by operation of law and is considered an involuntary
severance or interruption (Montebon v. COMELEC, G.R. No. 180444, April 8, 2008, 551 SCRA 50).
An elective official, who has served for three consecutive terms and who did not seek the elective position for what could be his
fourth term, but later won in a recall election, had an interruption in the continuity of the official’s service. For, he had become in the interim,
i.e., from the end of the 3rd term up to the recall election, a private citizen (Adormeo v. COMELEC, G.R. No. 147927, February 4, 2002, 376
SCRA 90; Socrates v. COMELEC, G.R. No. 154512, November 12, 2002, 391 SCRA 457).
The abolition of an elective local office due to the conversion of a municipality to a city does not, by itself, work to interrupt the
incumbent official’s continuity of service (Latasa v. COMELEC, G.R. No. 154829, December 10, 2003, 417 SCRA 601).
Preventive suspension is not a term-interrupting event as the elective officer’s continued stay and entitlement to the office remain
unaffected during the period of suspension, although he is barred from exercising the functions of his office during this period (Aldovino, Jr. v.
COMELEC, G.R. No. 184836. December 23, 2009, 609 SCRA 234).
When a candidate is proclaimed as winner for an elective position and assumes office, his term is interrupted when he loses in an
election protest and is ousted from office, thus disenabling him from serving what would otherwise be the unexpired portion of his term of
office had the protest been dismissed (Lonzanida and Dizon). The break or interruption need not be for a full term of three years or for the
major part of the 3-year term; an interruption for any length of time, provided the cause is involuntary, is sufficient to break the continuity of
service (Lonzanida v. COMELEC, G.R. No. 135150, July 28, 1999, 311 SCRA 602).
When an official is defeated in an election protest and said decision becomes final after said official had served the full term for said
office, then his loss in the election contest does not constitute an interruption since he has managed to serve the term from start to finish.
His full service, despite the defeat, should be counted in the application of term limits because the nullification of his proclamation came after
the expiration of the term (Ong v. Alegre, G.R. No. 163295 & 163354, January 23, 2006, 479 SCRA 473; Rivera v. COMELEC, G.R. No.
167571 & 170577, May 9, 2007, 523 SCRA 41; Abundo, Jr. v. COMELEC, et al., G.R. No. 201716, January 8, 2013).
3-term limit; preventive suspension is not interruption of term.
Q – Wilfredo Asilo was elected councilor in Lucena City for three (3) terms, but he was suspended for 90 days by the SB on his third
term. In the 2007 elections, he filed his certificate of candidacy for councilor but there ws a petition to deny due course to his
certificate of candidacy alleging that he was running for a fourth term. The COMELEC ruled in favor of Asilo and denied the petition
to deny due course holding that the preventive suspension was an effective interruption of his term because it rendered him unable
to provide complete service for the full term, hence, such term should not be counted for the purpose for the three-term limit rule. Is
the ruling correct? Explain.
Answer: No, because he has already served three (3) terms as councilor.
Section 8, Article X of the Constitution states:
Section 8. The term of office of elective local officials, except barangay officials, which shall be determined by law, shall be three years and no
such official shall serve for more than three consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was elected.
The constitutional provision fixes the term of a local elective office and limits an elective official’s stay in office to no more than three
consecutive terms. This is the first branch of the rule embodied in Section 8, Article X. (Sec. 43(b) of RA 7160).
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.
In Appari v. Court of Appeals, it was ruled that:
The word “term” in a legal sense means a fixed and definite period of time which the law describes that an officer may hold an
office. According to Mechem, the term of office is the period during which an office may 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 natural 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. (G.R. No. L-30057, January 31, 1984, 127 SCRA 231; Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836, December
23, 2009, Brion, J).
Note:
In Gaminde v. Commission on Audit, 401 Phil. 77 (2000) it was likewise held that the term 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 succeed one another.
The “limitation” under this first branch of the provision is expressed in the negative – “no such official shall serve for more than three
consecutive 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 to the service that a public official may render. In other words, the 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 office “shall not be considered as an interruption in the continuity of
his service for the full term for which he was elected.” This declaration complements the term limitation mandated by the first branch.
A notable feature of the second branch is that it does not textually state that voluntary renunciation is the only actual interruption of service that
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 determining
constitutional intent.
The word “renunciation” carries the meaning of abandonment. To renounce is to give up, abandon, decline, or resign. (Webster’s Third New
International Dictionary (1993), p. 1922). It is an act that emanates from its author, as contrasted to an act that operates from the
outside. Read with the definition of a “term”, renunciation, as mentioned under the second branch of the constitutional provision, cannot 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 own freely exercised will; in other words, a loss of title to office by
conscious 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.
During the deliberations of the Constitutional Commission, it was expressed that abandonment is voluntary. In other words, the
incumbent cannot circumvent the restriction by merely resigning at any given time on the second term. It was also expressed that voluntary
renunciation is more general or embracing than abandonment and resignation. The interpretation of the term voluntary renunciation is that, the
framers’ intended to close all gaps that an elective official may seize to defeat the three-term limit rule, in the way that voluntary renunciation
has been rendered unavailable as a mode of defeating the three-term limit rule.
This examination of the wording of the constitutional provision and of the circumstances surrounding its formulation impresses upon us the
clear intent to make term limitation a high priority constitutional objective whose terms must be strictly construed and which cannot be defeated
by, nor sacrificed for, values of less than equal constitutional worth. (Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836,
December 23, 2009, Brion, J).
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
the “interruption in the continuity of service for the full term” that it speaks of.
Lonzanida v. Commission on Elections, G.R. No. 135150, July 28, 1999, 311 SCRA 602, presented the question of whether the
disqualification on the basis of the three-term limit applies if the election of the public official (to be strictly accurate, the proclamation as winner
of the public official) for his supposedly third term had been declared invalid in a final and executory judgment. It was ruled that the two
requisites for the application of the disqualification (viz., 1. that the official concerned has been elected for three consecutive terms in the same
local government post; and 2. that he has fully served three consecutive terms) were not present. In so ruling, it was said that:
The clear intent of the framers of the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation of office and
at the same time respect the people’s choice and grant their elected official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the computation of the three term limit; conversely, involuntary severance from
office for any length of time short of the full term provided by law amounts to an interruption of continuity of service. The petitioner vacated his
post a few months before the next mayoral elections, not by voluntary renunciation but in compliance with the legal process of writ of execution
issued by the COMELEC to that effect. Such involuntary severance from office is an interruption of continuity of service and thus, the petitioner
did not fully serve the 1995-1998 mayoral term. [Emphasis supplied]
The intended meaning under this ruling is clear: it is severance from office, or to be exact, loss of title, that renders the three-term limit rule
inapplicable.
Ong v. Alegre, 479 SCRA 473 (January 23, 2006) and Rivera v. COMELEC, G.R. No. 167591, May 9, 2007, 523 SCRA 41, like Lonzanida,
also involved the issue of whether there had been a completed term for purposes of the three-term limit disqualification. These cases, however,
presented an interesting twist, as their final judgments in the electoral contest came after the term of the contested office had expired so that
the elective officials in these cases were never effectively unseated.
Despite the ruling that Ong was never entitled to the office (and thus was never validly elected), the Court concluded that there was
nevertheless an election and service for a full term in contemplation of the three-term rule based on the following premises: (1) the final
decision that the third-termer lost the election was without practical and legal use and value, having been promulgated after the term of the
contested office had expired; and (2) the official assumed and continuously exercised the functions of the office from the start to the end of the
term. The Court noted in Ong the absurdity and the deleterious effect of a contrary view – that the official (referring to the winner in the election
protest) would, under the three-term rule, be considered to have served a term by virtue of a veritably meaningless electoral protest ruling,
when another actually served the term pursuant to a proclamation made in due course after an election. This factual variation led the Court to
rule differently from Lonzanida.
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
office” or a mere “de facto officer.” The Court obeserved that Section 8, Article X of the Constitution is violated and its purpose defeated when
an official fully served in the same position for three consecutive terms. Whether as “caretaker” or “de facto” officer, he exercised the powers
and enjoyed the perquisites of the office that enabled him “to stay on indefinitely.”
Ong and Rivera are important rulings for purposes of the three-term limitation because of what they directly imply. Although the election
requisite was not actually present, the Court still gave full effect to the three-term limitation because of the constitutional intent to strictly limit
elective officials to service for three terms. By so ruling, the Court signalled how zealously it guards the three-term limit rule. Effectively, these
cases teach us to strictly interpret the term limitation rule in favor of limitation rather than its exception.
Adormeo v. Commission on Elections, 426 Phil. 472 (2002) 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 election for the supposed third term, but was
elected in a recall election covering that term. The Court upheld the COMELEC’s ruling that the official was not elected for three (3)
consecutive terms. The Court reasoned out 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 for the third term.
Socrates v. Commission on Elections, 440 Phil. 106 (2002) also tackled recall vis-à-vis the three-term limit disqualification. Edward Hagedorn
served three full terms as mayor. As he was disqualified to run for a fourth term, he did not participate 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 for a recall election. Hagedorn filed his
certificate of candidacy for mayor in the recall election, but Socrates sought his disqualification on the ground that he (Hagedorn) had fully
served three terms prior to the recall election and was therefore disqualified to run because of the three-term limit rule. We decided in
Hagedorn’s favor, ruling that:
After three consecutive terms, an elective local official cannot seek immediate reelection for a fourth term. The prohibited election refers to
the next regular election for the same office following the end of the third consecutive term. Any subsequent election, like a recall election, is
no longer covered by the prohibition for two reasons. First, a subsequent election like a recall election is no longer an immediate
reelection after three consecutive terms. Second, the intervening period constitutes an involuntary interruption in the continuity of
service.
When the framers of the Constitution debated on the term limit of elective local officials, the question asked was whether there would be no
further election after three terms, or whether there would be “no immediate reelection” after three terms.
x x x x
Clearly, what the Constitution prohibits is an immediate reelection for a fourth term following three consecutive terms. The Constitution,
however, does not prohibit a subsequent reelection for a fourth term as long as the reelection is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following the third consecutive term is a subsequent election but not an immediate
reelection after the third term.
Neither does the Constitution prohibit one barred from seeking immediate reelection to run in any other subsequent election involving the same
term of office. What the Constitution prohibits is a consecutive fourth term.
Latasa v. Commission on Elections, G.R. No. 154829, December 10, 2003, 417 SCRA 601, presented the novel question of whether
a municipal mayor who had fully served for three consecutive terms could run as city mayor in light of the intervening conversion of the
municipality into a city. During the third term, the municipality was converted into a city; the cityhood charter provided that the elective officials
of the municipality shall, in a holdover capacity, continue to exercise their powers and functions until elections were held for the new city
officials. The Court ruled that the conversion of the municipality into a city did not convert the office of the municipal mayor into a local
government post different from the office of the city mayor – the territorial jurisdiction 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 nine years. The Court said:
This Court reiterates that the framers of the Constitution specifically included an exception to the people’s freedom to choose those
who will govern them in order to avoid the evil of a single person accumulating excessive power over a particular territorial
jurisdiction as a result of a prolonged stay in the same office. To allow petitioner Latasa to vie for the position of city mayor after having
served for three consecutive terms as a municipal mayor would obviously defeat the very intent of the framers when they wrote this
exception. Should he be allowed another three consecutive terms as mayor of the City of Digos, petitioner would then be possibly holding
office as chief executive over the same territorial jurisdiction and inhabitants for a total of eighteen consecutive years. This is the very scenario
sought to be avoided by the Constitution, if not abhorred by it.
Latasa instructively highlights, after a review of Lonzanida, Adormeo and Socrates, that no three-term limit violation results if a rest period or
break in the service between terms or tenure in a given elective post intervened. In Lonzanida, the petitioner was a private citizen with no title
to any elective office for a few months before the next mayoral elections. Similarly, in Adormeo and Socrates, the private respondents lived as
private citizens for two years and fifteen months, respectively. Thus, these cases establish that the law contemplates a complete break from
office during which the local elective official steps down and ceases to exercise power or authority over the inhabitants of the territorial
jurisdiction of a particular local government unit.
Seemingly differing from these results is the case of Montebon v. Commission on Elections, G.R. No. 180444, April 9, 2008, 551 SCRA 50,
where the highest-ranking municipal councilor succeeded to the position of vice-mayor by operation of law. The question posed when he
subsequently ran for councilor was whether his assumption as vice-mayor was an interruption of his term as councilor that would 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 councilor. This
result seemingly deviates from the results in the cases heretofore discussed since the elective official continued to hold public office and did not
become a private citizen during the interim. The common thread that identifies Montebon with the rest, however, is that the elective
official vacated the office of councilor and assumed the higher post of vice-mayor by operation of law. Thus, for a time he ceased to be
councilor – an interruption that effectively placed him outside the ambit of the three-term limit rule.
Conclusion Based on Law and Jurisprudence
From all the above, we conclude that the “interruption” of a term exempting an elective official from the three-term limit rule is one that
involves 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 thrust 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 than three consecutive terms, using “voluntary renunciation” as an
example and standard of what does not constitute an interruption.
Thus, based on this standard, loss of office by operation of law, being involuntary, is an effective interruption of service within a term, as held
in Montebon. On the other hand, temporary inability or disqualification to exercise the functions of an elective post, even if involuntary, should
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 from exercising the functions of his office for a reason provided by law.
An interruption occurs when the term is broken because the office holder lost the right to hold on to his office, and cannot be equated with the
failure to render service. The latter occurs during an office holder’s term when he retains title to the office but cannot exercise his functions for
reasons established by law. Of course, the term “failure to serve” cannot be used once the right to office is lost; without the right to hold office
or to serve, then no service can be rendered so that none is really lost.
To put it differently although at the risk of repetition, Section 8, Article X– fixes an elective official’s term of office and limits his stay in
office to three consecutive terms as an inflexible rule that is stressed, no less, by citing voluntary renunciation as an example of a
circumvention. The provision should be read in the context of interruption of term, not in the context of interrupting the full continuity of the
exercise of the powers of the elective position. The “voluntary renunciation” it speaks of refers only to the elective official’s voluntary
relinquishment of office and loss of title to this office. It does not speak of the temporary “cessation of the exercise of power or authority” that
may occur for various reasons, with preventive suspension being only one of them. To quote Latasa v. Comelec:
Indeed, [T]he law contemplates a rest period during which the local elective official steps down from office and ceases to exercise power or
authority over the inhabitants of the territorial jurisdiction of a particular local government unit. [Emphasis supplied].
Preventive Suspension and the Three-Term Limit Rule
a. Nature of Preventive Suspension
Preventive suspension – whether under the Local Government Code, the Anti-Graft and Corrupt Practices Act, or the Ombudsman Act –
is aninterim remedial measure to address the situation of an official who have been charged administratively or criminally, where the evidence
preliminarily indicates the likelihood of or potential for eventual guilt or liability.
Preventive suspension is imposed under the Local Government Code “when the evidence of guilt is strong and given the gravity of the offense,
there is a possibility that the continuance in office of the respondent could influence the witnesses or pose a threat to the safety and integrity of
the records and other evidence.” Under the Anti-Graft and Corrupt Practices 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
evidence of guilt is strong; and (a) the charge involves dishonesty, oppression 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 barred from performing the functions of his office and does not receive
salary in the meanwhile, but does not vacate and lose title to his office; loss of office is a consequence that only results upon an eventual
finding 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 service 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 reinstated to the exercise of his position as soon as the
preventive suspension is lifted. Thus, while a temporary incapacity in the exercise of power results, no position is vacated when a public official
is preventively suspended. 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
Constitution and the laws. The imposition of preventive suspension, however, is not an unlimited power; there are limitations built into the laws
themselves that the courts can enforce when these limitations are transgressed, particularly when grave abuse of discretion is present. In light
of this well-defined parameters in the imposition of preventive suspension, we should not view preventive suspension from the extreme
situation – that it can totally deprive an elective office holder of the prerogative to serve and is thus an effective interruption of an election
official’s term.
Term limitation and preventive suspension are two vastly different aspects of an elective officials’ service in office and they do not overlap. As
already 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 the 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
preventive suspension and term limitation or interruption have any commonality at all, this common point may be with respect to the
discontinuity of service that may occur in both. But even on this point, they merely run parallel to each other and never intersect; preventive
suspension, by its nature, is a temporary incapacity to render service during an unbroken term; in the context of term limitation, interruption of
service occurs after there has been a break in the term.
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 allows an elective official’s stay in office beyond three terms. A preventive suspension 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 appoint one since no vacancy exists.
Q – State the reason why a preventively suspended elective public officer cannot run for a fourth term. Explain.
Answer: To allow a preventively suspended elective official to run for a fourth and prohibited term is to close our eyes to this reality and to
allow a constitutional violation through sophistry by equating the temporary inability to discharge the functions of office with the interruption of
term that the 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 holder from exercising the functions of his office in the way
that preventive suspension does. A serious extended illness, inability through force majeure, or the enforcement of a suspension as a penalty,
to cite some involuntary examples, may prevent an office holder from exercising the functions of his office for a time without forfeiting title to
office. Preventive suspension is no different because it disrupts actual delivery of service for a time within a term. Adopting such interruption of
actual service as the standard to determine effective interruption of term under the three-term rule raises at least the possibility of confusion in
implementing this rule, given the many modes and occasions when actual service may be interrupted in the course of serving a term of
office. The standard may reduce the enforcement of the three-term limit rule to a case-to-case and possibly see-sawing determination of what
an effective interruption is. (Simon Aldovino, Jr., et al. v. COMELEC, et al., G.R. No. 184836, December 23, 2009, Brion, J).
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 that became the basis of the charge against him. From this perspective,
preventive suspension does not have the element of voluntariness that voluntary renunciation embodies. Neither does it contain the element of
renunciation or loss of title to office as it merely involves the temporary incapacity to perform the service that an elective office demands. Thus
viewed, 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 conclusion therefore is that they are, by nature, different and
non-comparable.
But beyond the obvious comparison of their respective natures is the more important consideration of how they affect the three-term limit rule.
Voluntary renunciation, while involving loss of office and the total incapacity to render service, is disallowed by the Constitution as an effective
interruption of a term. It is therefore not allowed as a mode of circumventing the three-term limit rule.
Preventive suspension, by its nature, does not involve an effective interruption of a term and should therefore not be a reason to avoid the
three-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 noted that a preventive suspension is easier to undertake than voluntary renunciation, 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 been imposed. In this sense, recognizing preventive suspension as an effective interruption of a term can serve as a
circumvention more potent than the voluntary renunciation that the Constitution expressly disallows as an interruption.
Renunciation of Filipino citizenship must be under oath.
Q – Teodora Sobejana-Condon, a Filipino citizenship acquired Australian citizenship. In 2006, she filed a renunciation of Australian
citizenship but it was not under oath contrary to the mandate of Section 5(2) of RA 9225. Then, she filed her certificate of candidacy
and was elected. Is she qualified to run for public office? Explain.
Answer: No. The requirement that the renunciation of her foreign citizenship must be under oath is mandatory.
The language of Section 5(2) is free from any ambiguity. In Lopez v. COMELEC, we declared its categorical and single meaning: a Filipino
American or any dual citizen cannot run for any elective public position in the Philippines unless he or she personally swears to a renunciation
of all foreign citizenship at the time of filing the certificate of candidacy. We also expounded on the form of the renunciation and held that to be
valid, the renunciation must be contained in an affidavit duly executed before an officer of the law who is authorized to administer an oath
stating in clear and unequivocal terms that affiant is renouncing all foreign citizenship.
The foreign citizenship must be formally rejected through an affidavit duly sworn before an officer authorized to administer oath. (Teodora
Sobejana-Condon v. COMELEC, et al., G.R. No. 198742, August 10, 2012, Reyes, J, citing De Guzman v. COMELEC, G.R. No. 180048, June
19, 2009, 590 SCRA 149).
In Jacot v. Dal, when we held that Filipinos re-acquiring or retaining their Philippine citizenship under R.A. No. 9225 must explicitly renounce
their foreign citizenship if they wish to run for elective posts in the Philippines, thus:
The law categorically requires persons seeking elective public office, who either retained their Philippine citizenship or those who reacquired it,
to make a personal and sworn renunciation of any and all foreign citizenship before a public officer authorized to administer an oath
simultaneous with or before the filing of the certificate of candidacy.
Hence, Section 5(2) of Republic Act No. 9225 compels naturalborn
Filipinos, who have been naturalized as citizens of a foreign country, but who reacquired or retained their Philippine citizenship (1) to take the
oath of allegiance under Section 3 of Republic Act No. 9225, and (2) for those seeking elective public offices in the Philippines, to additionally
execute a personal and sworn renunciation of any and all foreign citizenship before an authorized public officer prior or simultaneous to the
filing of their certificates of candidacy, to qualify as candidates in Philippine elections.
T]he intent of the legislators was not only for Filipinos reacquiring or retaining their Philippine citizenship under Republic Act No. 9225 to take
their oath of allegiance to the Republic of the Philippines, but also to explicitly renounce their foreign citizenship if they wish to run for elective
posts in the Philippines. To qualify as a candidate in Philippine elections, Filipinos must only have one citizenship, namely, Philippine
citizenship.
Q – She contended that the requirement that the renunciation must be under oath is a mere formal requirement. Is the contention
correct? Explain.
Answer: No, it is a mandatory requirement.
The “sworn renunciation of foreign citizenship” must be deemed a formal requirement only with respect to the re-acquisition of one’s status as a
natural-born Filipino so as to override the effect of the principle that natural-born citizens need not perform any act to perfect their citizenship.
Never was it intended that those who re-acquire their Filipino citizenship and thereafter run for public office has the option of executing an
unsworn affidavit of renunciation.
To hold the oath to be a mere pro forma requirement is to say that it is only for ceremonial purposes; it would also accommodate a mere
qualified or temporary allegiance from government officers when the Constitution and the legislature clearly demand otherwise. (Teodora
Sobejan-Condon v. COMELEC, et al., supra.).
Section 5 was intended complement Section 18, Article XI of the Constitution on public officers’ primary accountability of allegiance and loyalty,
which provides:
Sec. 18. – Public officers and employees owe the State and this Constitution allegiance at all times and any public officer or employee who
seeks to change his citizenship or acquire the status of an immigrant of another country during his tenure shall be dealt with by law.
An oath is a solemn declaration, accompanied by a swearing to God or a revered person or thing, that one’s statement is true or that one will
be bound to a promise. The person making the oath implicitly invites punishment if the statement is untrue or the promise is broken. The legal
effect of an oath is to subject the person to penalties for perjury if the testimony is false. (Black’s Law Dictionary, 8th Edition, p. 1101).
Indeed, the solemn promise, and the risk of punishment attached to an oath ensures truthfulness to the prospective public officer’s
abandonment of his adopted state and promise of absolute allegiance and loyalty to the Republic of the Philippines.
Q – Petitioner contended that the Australian Citizenship Act of 1948, under which she is already deemed to have lost her citizenship,
is entitled to judicial notice. Is the contention correct? Why?
Answer: No. Foreign laws are not a matter of judicial notice. Like any other fact, they must be alleged and proven. (Manufacturers Hanover
Trust Co. v. Guerrero, 445 Phil. 770 (2003)). To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections
24 and 25 of Rule 132 of the Revised Rules of Court which reads:
Sec. 24. Proof of official record. – The record of public documents referred to in paragraph (a) of Section 19, when admissible for anypurpose,
may be evidenced by an official publication thereof or by a copyattested by the officer having the legal custody of the record, or by his deputy,
and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the
record is kept is in a foreign country, the certificate may be made by asecretary of the embassy or legation, consul general, consul,
viceconsul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the
record is kept, and authenticated by the seal of his office. (Emphasis ours)
Sec. 25. What attestation of copy must state. – Whenever a copy of a document or record is attested for the purpose of the evidence, the
attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The
attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of
such court.
The Court has admitted certain exceptions to the above rules and held that the existence of a foreign law may also be established through: (1)
a testimony under oath of an expert witness such as an attorney-at-law in the country where the foreign law operates wherein he quotes
verbatim a section of the law and states that the same was in force at the time material to the facts at hand; and (2) likewise, in several
naturalization cases, it was held by the Court that evidence of the law of a foreign country on reciprocity regarding the acquisition of citizenship,
although not meeting the prescribed rule of practice, may be allowed and used as basis for favorable action, if, in the light of all the
circumstances, the Court is “satisfied of the authenticity of the written proof offered.” Thus, in a number of decisions, mere authentication of the
Chinese Naturalization Law by the Chinese Consulate General of Manila was held to be a competent proof of that law. (Teodora Sobejana-
Condon v. COMELEC, et al., supra.; citing Asiavest Ltd. v. CA, 357 Phil. 536 (1998)).
Q – Is not the act of running for public office an effective act of renunciation of foreign citizenship, thus, a person can run for public
office? Explain.
Answer: No. Her act of running for public office does not suffice to serve as an effective renunciation of her Australian citizenship. While the
Court has previously declared that the filing by a person with dual citizenship of a certificate of candidacy is already considered a renunciation
of foreign citizenship, (Valles v. COMELEC, 392 Phil. 327 (2000); Mercado v. Manzano, 367 Phil. 132 (1999) such ruling was already adjudged
superseded by the enactment of R.A. No. 9225 on August 29, 2003 which provides for the additional condition of a personal and sworn
renunciation of foreign citizenship. (Jacot v. Dal, supra.).
Q – What is the effect of her winning in the election? Explain.
Answer: The fact that she won the elections can not cure the defect of her candidacy. Garnering the most number of votes does not validate
the election of a disqualified candidate because the application of the constitutional and statutory provisions on disqualification is not a matter
of popularity. (Lopez v. COMELEC, G.R. No. 182701, July 23, 2008, 559 SCRA 696; Teodora Sobejana-Condon v. COMELEC, et al., supra.).
Note:
In fine, R.A. No. 9225 categorically demands natural-born Filipinos who re-acquire their citizenship and seek elective office, to execute a
personal and sworn renunciation of any and all foreign citizenships before an authorized public officer prior to or simultaneous to the filing of
their certificates of candidacy, to qualify as candidates in Philippine elections. The rule applies to all those who have re-acquired their Filipino
citizenship, like petitioner, without regard as to whether they are still dual citizens or not. It is a pre-requisite imposed for the exercise of the
right to run for public office.
Stated differently, it is an additional qualification for elective office specific only to Filipino citizens who re-acquire their citizenship under Section
3 of R.A. No. 9225. It is the operative act that restores their right to run for public office. The petitioner's failure to comply therewith in
accordance with the exact tenor of the law, rendered ineffectual the Declaration of Renunciation of Australian Citizenship she executed on
September 18, 2006. As such, she is yet to regain her political right to seek elective office. Unless she executes a sworn renunciation of her
Australian citizenship, she is ineligible to run for and hold any elective office in the Philippines.
Q – RA 10147, otherwise known as the General Appropriations Act (GAA) allocated P21B for the Conditional Cash Transfer Program
(CCTP) headed by the DSWD. Such project provides cash grants to extreme poor households to allow the members of the families to
meet certain human development goals. While admitting the wisdom of the CCTP, petitioners took exception to the manner of its
implementation thru the DSWD instead of the LGUs to which the responsibility and functions of delivering social welfare have been
developed to the LGU under RA 7160. They contended that direct budgeting should be made in favor of the LGUs that would enhance
the delivery of basic services. The practice would result in the recentralization of basic government functions which is contrary to
the precepts of local autonomy and the avowed policy of descentralization. Rule on the contention.
Answer: The contention is not correct. It is true that the essence of this express reservation of power by the national government is that,
unless an LGU is particularly designated as the implementing agency, it has no power over a program for which funding has been provided by
the national government under the annual general appropriations act, even if the program involves the delivery of basic services within the
jurisdiction of the LGU.
As held in Ganzon v. Court of Appeals, G.R. Nos. 93252 & 95245, August 5, 1991, 200 SCRA 271 that while it is through a system of
decentralization that the State shall promote a more responsive and accountable local government structure, the concept of local autonomy
does not imply the conversion of local government units into “mini-states.” With local autonomy, the Constitution did nothing more than “to
break up the monopoly of the national government over the affairs of the local government” and, thus, did not intend to sever “the relation of
partnership and interdependence between the central administration and local government units.” In Pimentel v. Aguirre, the Court defined the
extent of the local government's autonomy in terms of its partnership with the national government in the pursuit of common national goals,
referring to such key concepts as integration and coordination. Thus:
Under the Philippine concept of local autonomy, the national government has not completely relinquished all its powers over local
governments, including autonomous regions. Only administrative powers over local affairs are delegated to political subdivisions. The purpose
of the delegation is to make governance more directly responsive and effective at the local levels. In turn, economic, political and social
development at the smaller political units are expected to propel social and economic growth and development. But to enable the country to
develop as a whole, the programs and policies effected locally must be integrated and coordinated towards a common national goal. Thus,
policy-setting for the entire country still lies in the President and Congress. (Pimentel, Jr., et al. v. Ochoa, et al., G.R. No. 185770, July 17,
2012).
Certainly, to yield unreserved power of governance to the local government unit as to preclude any and all involvement by the national
government in programs implemented in the local level would be to shift the tide of monopolistic power to the other extreme, which would
amount to a decentralization of power explicated in Limbona v. Mangelin, as beyond our constitutional concept of autonomy, thus:
Now, autonomy is either decentralization of administration or decentralization of power. There is decentralization of administration when the
central government delegates administrative powers to political subdivisions in order to broaden the base of government power and in the
process to make local governments „more responsive and accountable‟ and „ensure their fullest development as self-reliant communities and
make them more effective partners in the pursuit of national development and social progress.‟ At the same time, it relieves the central
government of the burden of managing local affairs and enables it to concentrate on national concerns. The President exercises „general
supervision‟ over them, but only to „ensure that local affairs are administered according to law.‟ He has no control over their acts in the sense
that he can substitute their judgments with his own.
Decentralization of power, on the other hand, involves an abdication of political power in the [sic] favor of local governments [sic] units declared
to be autonomous. In that case, the autonomous government is free to chart its own destiny and shape its future with minimum intervention
from central authorities. According to a constitutional author, decentralization of power amounts to 'selfimmolation,' since in that¥ event,
the autonomous government becomes accountable not to the central authorities but to its constituency.
Indeed, a complete relinquishment of central government powers on the matter of providing basic facilities and services cannot be implied
as the Local Government Code itself weighs against it. The national government is, thus, not precluded from taking a direct hand in the
formulation and implementation of national development programs especially where it is implemented locally in coordination with the
LGUs concerned.
Every law has in its favor the presumption of constitutionality, and to justify its nullification, there must be a clear and unequivocal
breach of the Constitution, not a doubtful and argumentative one. Petitioners have failed to discharge the burden of proving the invalidity of the
provisions under the GAA of 2011. The allocation of a P21 billion budget for an intervention program formulated by the national
government itself but implemented in partnership with the local government units to achieve the common national goal development and
social progress can by no means be an encroachment upon the autonomy of local governments. (Pimentel, Jr., et al. v. Ochoa, et al., G.R.
No. 195770, July 17, 2012).
Vice-Mayor is included in computing the quorum.
Q – Petitioners alleged that Atty. Rex Rojo’s appointment as Sangguniang Panlungsod Secretary is void. They maintained that
respondent’s irrevocable resignation as aSangguniang Panlungsod member was not deemed accepted during the regular session of
the Sangguniang Panlungsodof La Carlota City, Negros Occidental for lack of quorum. Consequently, respondent was still an
incumbent regular Sangguniang Panlungsod member when then Vice Mayor Jalandoon appointed him
as Sangguniang Panlungsod Secretary on 18 March 2004, which contravenes Section 7, Article IX-B of the Constitution.
They contended that the vice-mayor, as presiding officer of the Sangguniang Panlungsod, should not be counted in
determining whether a quorum exists. Excluding the vice-mayor, there were only six (6) out of the twelve (12) members of
the Sangguniang Panlungsod who were present on 17 March 2004. Since the required majority of seven (7) was not reached to
constitute a quorum, then no business could have validly been transacted on that day including the acceptance of respondent’s
irrevocable resignation.
On the other hand, Atty. Rojo maintained that the Sangguniang Panlungsod consists of the presiding officer, ten (10) regular
members, and two (2) ex-officio members, or a total of thirteen (13) members, hence there was a quorum as the Vice-Mayor should be
included in the computation of the quorum. Whose contention is correct? Explain.
Answer: The contention of Atty. Rojo is correct. The Vice-Mayor is a member of the Sanggunian, hence, he should be included in the
computation of the quorum.
RA 7160 clearly states that the Sangguniang Panlungsod “shall be composed of the city vice-mayor as presiding officer, the
regular sanggunian members, the president of the city chapter of the liga ng mga barangay, the president of
the panlungsod na pederasyon ng mga sangguniang kabataan, and the sectoral representatives, as members.” Black’s Law Dictionary defines
“composed of” as “formed of” or “consisting of.” As the presiding officer, the vice-mayor can vote only to break a tie. In effect, the presiding
officer votes when it matters the most, that is, to break a deadlock in the votes. Clearly, the vice-mayor, as presiding officer, is a “member” of
the Sangguniang Panlungsod considering that he is mandated under Section 49 of RA 7160 to vote to break a tie. To construe otherwise would
create an anomalous and absurd situation where the presiding officer who votes to break a tie during a Sanggunian session is not considered a
“member” of the Sanggunian. (La Carlota City, Negros Occidental, etc. v. Atty. Rex Rojo, G.R. No. 181367, April 24, 2012, Carpio, J).
Note:
In the 2004 case of Zamora v. Governor Caballero, 464 Phil. 471 (2004) the Court interpreted Section 53 of RA 7160 to mean that the entire
membership must be taken into account in computing the quorum of the sangguniang panlalawigan. The Court held:
“Quorum” is defined as that number of members of a body which, when legally assembled in their proper places, will enable the body to
transact its proper business or that number which makes a lawful body and gives it power to pass upon a law or ordinance or do any valid
act. “Majority,” when required to constitute a quorum, means the number greater than half or more than half of any total. In fine, the entire
membership must be taken into account in computing the quorum of the sangguniang panlalawigan, for while the constitution merely states that
“majority of each House shall constitute a quorum,” Section 53 of the LGC is more exacting as it requires that the “majority of all members of
the sanggunian . . . elected and qualified” shall constitute a quorum.
In the same manner, a quorum of the Sangguniang Panlungsod should be computed based on the total composition of
the Sangguniang Panlungsod. In this case, theSangguniang Panlungsod of La Carlota City, Negros Occidental is composed of the presiding
officer, ten (10) regular members, and two (2) ex-officio members, or a total of thirteen (13) members. A majority of the 13 “members” of
the Sangguniang Panlungsod, or at least seven (7) members, is needed to constitute a quorum to transact official business. Since seven (7)
members (including the presiding officer) were present on the 17 March 2004 regular session of the Sangguniang Panlungsod, clearly there
was a quorum such that the irrevocable resignation of respondent was validly accepted. (La Carlota City, etc. v. Atty. Rex Rojo, G.R. No.
181367, April 24, 2012, Carpio, J).
PARTY-LIST
Party list organization that advocates violence cannot be accredited.
Q – MAGDALO sought registration and accreditation as a Party-List Organization but it was denied by the COMELEC due to its
advocacy of the use of force or violence. The COMELEC took into consideration the circumstances surrounding the Oakwood
standoff. MAGDALO claimed that it did not resort to violence when it took over Oakwood because (a) no one, either civilian or
military, was held hostage; (b) its members evacuated the guests and staff of the hotel; and (c) not a single shot was fired during the
incident. Is the contention of MAGDALO correct? Why?
Answer: No. Under Article IX-C, Section 2(5) of the 1987 Constitution, parties, organizations and coalitions that “seek to achieve their goals
through violence or unlawful means” shall be denied registration. This disqualification is reiterated in Section 61 of B.P. 881, which provides
that “no political party which seeks to achieve its goal through violence shall be entitled to accreditation.”
The assertions of MAGDALO that no one was held hostage or that no shot was fired do not mask its use of impelling force to take over and
sustain the occupation of Oakwood. Neither does its express renunciation of the use of force, violence and other unlawful means in its Petition
for Registration and Program of Government obscure the actual circumstances surrounding the encounter. The deliberate brandishing of
military power, which included the show of force, use of full battle gear, display of ammunitions, and use of explosive devices, engendered an
alarming security risk to the public. At the very least, the totality of these brazen acts fomented a threat of violence that preyed on the
vulnerability of civilians. Hence, the COMELEC did not err in denying accreditation. (Magdalo Para sa Pagbabago v. COMELEC, G.R. No.
190793, June 19, 2012, Sereno, J).
Effect of subsequent grants of amnesty.
Q – After the resolution denying the accreditation of MAGDALO as a party-list organization, the members were granted amnesty.
State the effect of such grant of amnesty. Explain.
Answer: It has no effect on the accreditation because the amnesty was a mere supervening fact which could not change the resolution. This is
despite the fact that the Court took judicial notice of the grant of amnesty.
In People v. Patriarca, 395 Phil. 690 (2000), citing People v. Casido, 336 Phil. 344 (1997), the concept of amnesty was once again explained,
thus:
Amnesty commonly denotes a general pardon to rebels for their treason or other high political offenses, or the forgiveness which one sovereign
grants to the subjects of another, who have offended, by some breach, the law of nations. Amnesty looks backward, and abolishes and
puts into oblivion, the offense itself; it so overlooks and obliterates the offense with which he is charged, that the person released by
amnesty stands before the law precisely as though he had committed no offense.
x x x x x x x x x
In the case of People vs. Casido, the difference between pardon and amnesty is given:
“Pardon is granted by the Chief Executive and as such it is a private act which must be pleaded and proved by the person pardoned, because
the courts take no notice thereof; while amnesty by Proclamation of the Chief Executive with the concurrence of Congress, is a public
act of which the courts should take judicial notice. x x x”
COMELEC
Q – COMELEC Resolution No. 9266 approved the creation of a committee jointly with the DOJ which shall conduct preliminary
investigation on the alleged election offenses and anomalies committed during the 2004 & 2007 elections. Petitioners questioned the
validity of the creation of the Committee alleging that it violated the equal protection clause. They contended that the Committee
targeted only the Arroyo Administration. The respondents contended that the investigation has a wide array of the possible election
offenses and broad spectrum of individuals who may have committed them, not only the officials of the Arroyo Administration. Rule
on the contention. Explain.
Answer: The contention is not correct, because not all the respondents were linked to the Arroyo Administration. Private individuals were also
subjected to the investigation by the Joint Committee.
The concept of equal protection has been laid down in Biraogo v. Philippine Truth Commission of 2010 where it was said:
The equal protection of the laws is embraced in the concept of due process, as every unfair discrimination offends the requirements of justice
and fair play. It has been embodied in a separate clause, however, to provide for a more specific guaranty against any form of undue favoritism
or hostility from the government. Arbitrariness in general may be challenged on the basis of the due process clause. But if the particular act
assailed partakes of an unwarranted partiality or prejudice, the sharper weapon to cut it down is the equal protection clause. (Biraogo v. Phil.
Truth Commission, G.R. Nos. 192935 & 193036, December 7, 2010, 637 SCRA 78).
Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. It requires public bodies and institutions to treat similarly-situated individuals in a similar manner. The purpose of the
equal protection clause is to secure every person within a state's jurisdiction against intentional and arbitrary discrimination, whether
occasioned by the express terms of a statute or by its improper execution through the state's duly-constituted authorities. In other words, the
concept of equal justice under the law requires the state to govern impartially, and it may not draw distinctions between individuals solely on
differences that are irrelevant to a legitimate governmental objective. (Biraogo v. PTC, supra.; Arroyo v. DOJ, et al., G.R. No. 199082 &
companion cases, September 18, 2011).
The equal protection guarantee exists to prevent undue favor or privilege. It is intended to eliminate discrimination and oppression based on
inequality. Recognizing the existence of real differences among men, it does not demand absolute equality. It merely requires that all persons
under like circumstances and conditions shall be treated alike both as to privileges conferred and liabilities enforced. (Santos v. People, G.R.
No. 173176, April 26, 2008, 563 SCRA 341).
We once held that the Office of the Ombudsman is granted virtually plenary investigatory powers by the Constitution and by law and thus may,
for every particular investigation, whether commenced by complaint or on its own initiative, decide how best to pursue each investigation.
Since the Office of the Ombudsman is granted such latitude, its varying treatment of similarly situated investigations cannot by itself be
considered a violation of any of the parties’ rights to the equal protection of the laws. (Dimayuga v. Office of the Ombudsman, G.R. No. 129099,
July 20, 2008). This same doctrine should likewise apply in the present case.
Thus, as the constitutional body granted with the broad power of enforcing and administering all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum and recall, and tasked to ensure free, orderly, honest, peaceful, and credible elections, the
Comelec has the authority to determine how best to perform such constitutional mandate. Pursuant to this authority, the Comelec issues
various resolutions prior to every local or national elections setting forth the guidelines to be observed in the conduct of the elections. This
shows that every election is distinct and requires different guidelines in order to ensure that the rules are updated to respond to existing
circumstances. (Arroyo v. DOJ, et al., G.R. No. 199082 & companion cases, September 18, 2012).
Q – Petitioners claimed that the Joint Panel does not possess the required cold neutrality of an impartial judge because it is all at
once the evidence- gatherer, prosecutor and judge. They explained that since the Fact-Finding Team has found probable cause to
subject them to preliminary investigation, it is impossible for the Joint Committee to arrive at an opposite conclusion. Petitioners
likewise expressed doubts of any possibility that the Joint Committee will be fair and impartial to them as Secretary De Lima and
Chairman Brillantes had repeatedly expressed prejudgment against petitioners through their statements captured by the media.
For their part, respondents contended that assuming that said statements were made, there was no showing that Secretary De Lima
had tried to intervene in the investigation to influence its outcome nor was it proven that the Joint Committee itself had prejudged
the case. Is the contention correct?
Answer: No. It is settled that the conduct of preliminary investigation is, like court proceedings, subject to the requirements of both substantive
and procedural due process. Preliminary investigation is considered as a judicial proceeding wherein the prosecutor or investigating officer, by
the nature of his functions, acts as a quasi-judicial officer. The authority of a prosecutor or investigating officer duly empowered to preside over
or to conduct a preliminary investigation is no less than that of a municipal judge or even an RTC Judge. Thus, as emphasized by the Court in
Ladlad v. Velasco:
x x x We cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is
being used or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamental
objective of serving the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong,
powerless or mighty. Only by strict adherence to the established procedure may public's perception of the impartiality of the prosecutor be
enhanced.
In this case, as correctly pointed out by respondents, there was no showing that the statements claimed to have prejudged the case against
petitioners were made by Secretary De Lima and Chairman Brillantes or were in the prejudicial context in which petitioners claimed the
statements were made. A reading of the statements allegedly made by them reveals that they were just responding to hypothetical questions in
the event that probable cause would eventually be found by the Joint Committee.
More importantly, there was no proof or even an allegation that the Joint Committee itself, tasked to conduct the requisite preliminary
investigation against petitioners, made biased statements that would convey to the public that the members were favoring a particular party.
Neither did the petitioners show that the President of the Philippines, the Secretary of Justice or the Chairman of the Comelec intervened in the
conduct of the preliminary investigation or exerted undue pressure on their subordinates to tailor their decision with their public declarations
and adhere to a predetermined result. Moreover, insofar as the Comelec is concerned, it must be emphasized that the constitutional body is
collegial. The act of the head of a collegial body cannot be considered as that of the entire body itself. In equating the alleged bias of the
above-named officials with that of the Joint Committee, there would be no arm of the government credible enough to conduct a preliminary
investigation. (Santos-Cancio v. DOJ, G.R. No. 175057, January 28, 2008, 543 SCRA 70; Arroyo v. DOJ, et al., G.R. No. 199082 & companion
cases, September 18, 2012).
Q – Petitioners claimed that the Joint Panel is a new public office as shown by its composition, the creation of its own Rules of
Procedure, and the source of funding for its operation. It is their position that the power of the DOJ to investigate the commission of
crimes and the Comelec’s constitutional mandate to investigate and prosecute violations of election laws do not include the power to
create a new public office in the guise of a joint committee. Thus, in creating the Joint Panel, the DOJ and the Comelec encroached
upon the power of the Legislature to create public office.
Respondents contended that the Joint Committee and Fact-Finding Team are not new public offices, but merely collaborations
between two existing government agencies sharing concurrent jurisdiction. This is shown by the fact that the members of the Joint
Panel are existing officers of the DOJ and the Comelec who exercise duties and functions that are already vested in them. Whose
contention is correct? Why?
Answer: The contention of the petitioners is not correct. The Comelec is granted the power to investigate, and where appropriate, prosecute
cases of election offenses. This is necessary in ensuring free, orderly, honest, peaceful and credible elections. On the other hand, the DOJ is
mandated to administer the criminal justice system in accordance with the accepted processes thereof consisting in the investigation of the
crimes, prosecution of offenders and administration of the correctional system. It is specifically empowered to “investigate the commission of
crimes, prosecute offenders and administer the probation and correction system.”Also, the provincial or city prosecutors and their assistants, as
well as the national and regional state prosecutors, are specifically named as the officers authorized to conduct preliminary investigation.
Recently, the Comelec, through its duly authorized legal offices, is given the power, concurrent with the other prosecuting arms of the
government such as the DOJ, to conduct preliminary investigation of all election offenses.
Undoubtedly, it is the Constitution, statutes, and the Rules of Court and not the assailed Joint Order which give the DOJ and the Comelec the
power to conduct preliminary investigation. No new power is given to them by virtue of the assailed order. As to the members of the Joint
Committee and Fact-Finding Team, they perform such functions that they already perform by virtue of their current positions as prosecutors of
the DOJ and legal officers of the Comelec. Thus, in no way can we consider the Joint Committee as a new public office. (Arroyo v. DOJ, et al.
& companion cases, G.R. No. 199082, September 18, 2012).
Q – Petitioners claimed that in creating the Joint Panel, the Comelec has effectively abdicated its constitutional mandate to
investigate and, where appropriate, to prosecute cases of violation of election laws including acts or omissions constituting election
frauds, offenses, and malpractices in favor of the Executive Department acting through the DOJ Secretary. Under the set-up, the
Comelec personnel is placed under the supervision and control of the DOJ. The chairperson is a DOJ official. Thus, the Comelec has
willingly surrendered its independence to the DOJ and has acceded to share its exercise of judgment and discretion with the
Executive Branch. Is the contention correct? Explain.
Answer: No. Section 1, Article IX-A of the 1987 Constitution expressly describes all the Constitutional Commissions as independent. Although
essentially executive in nature, they are not under the control of the President of the Philippines in the discharge of their respective functions.
The Constitution envisions a truly independent Comelec committed to ensure free, orderly, honest, peaceful, and credible elections and to
serve as the guardian of the people’s sacred right of suffrage – the citizenry’s vital weapon in effecting a peaceful change of government and
in achieving and promoting political stability.
Prior to the amendment of Section 265 of the Omnibus Election Code, the Comelec had the exclusive authority to investigate and prosecute
election offenses. In the discharge of this exclusive power, the Comelec was given the right to avail and, in fact, availed of the assistance of
other prosecuting arms of the government such as the prosecutors of the DOJ. By virtue of this continuing authority, the state prosecutors and
the provincial or city prosecutors were authorized to receive the complaint for election offense and delegate the conduct of investigation to any
of their assistants. The investigating prosecutor, in turn, would make a recommendation either to dismiss the complaint or to file the
information. This recommendation is subject to the approval of the state, provincial or city prosecutor, who himself may file the information with
the proper court if he finds sufficient cause to do so, subject, however, to the accused’s right to appeal to the Comelec. (Arroyo v. DOJ, et al.,
G.R. No. 199082, September 18, 2012).
Moreover, during the past national and local elections, the Comelec issued Resolutions requesting the Secretary of Justice to assign
prosecutors as members of Special Task Forces to assist the Comelec in the investigation and prosecution of election offenses. These Special
Task Forces were created because of the need for additional lawyers to handle the investigation and prosecution of election offenses.
Clearly, the Comelec recognizes the need to delegate to the prosecutors the power to conduct preliminary investigation. Otherwise, the prompt
resolution of alleged election offenses will not be attained. This delegation of power, otherwise known as deputation, has long been recognized
and, in fact, been utilized as an effective means of disposing of various election offense cases. Apparently, as mere deputies, the prosecutors
played a vital role in the conduct of preliminary investigation, in the resolution of complaints filed before them, and in the filing of the
informations with the proper court.
As pointed out by the Court in Barangay Association for National Advancement and Transparency (BANAT) Party-List v. Commission on
Elections, the grant of exclusive power to investigate and prosecute cases of election offenses to the Comelec was not by virtue of the
Constitution but by the Omnibus Election Code which was eventually amended by Section 43 of R.A. 9369. Thus, the DOJ now conducts
preliminary investigation of election offenses concurrently with the Comelec and no longer as mere deputies. If the prosecutors had been
allowed to conduct preliminary investigation and file the necessary information by virtue only of a delegated authority, they now have better
grounds to perform such function by virtue of the statutory grant of authority. If deputation was justified because of lack of funds and legal
officers to ensure prompt and fair investigation and prosecution of election offenses, the same justification should be cited to justify the grant to
the other prosecuting arms of the government of such concurrent jurisdiction.
In view of the foregoing disquisition, we find no impediment for the creation of a Joint Committee. While the composition of the Joint Committee
and Fact-Finding Team is dominated by DOJ officials, it does not necessarily follow that the Comelec is inferior. Under the Joint Order,
resolutions of the Joint Committee finding probable cause for election offenses shall still be approved by the Comelec in accordance with the
Comelec Rules of Procedure. This shows that the Comelec, though it acts jointly with the DOJ, remains in control of the proceedings. In no way
can we say that the Comelec has thereby abdicated its independence to the executive department.
The text and intent of the constitutional provision granting the Comelec the authority to investigate and prosecute election offenses is to give
the Comelec all the necessary and incidental powers for it to achieve the objective of holding free, orderly, honest, peaceful, and credible
elections. The Comelec should be allowed considerable latitude in devising means and methods that will insure the accomplishment of the
great objective for which it was created. We may not agree fully with its choice of means, but unless these are clearly illegal or constitute
gross abuse of discretion, this Court should not interfere. Thus, Comelec Resolution No. 9266, approving the creation of the Joint Committee
and Fact-Finding Team, should be viewed not as an abdication of the constitutional body’s independence but as a means to fulfill its duty of
ensuring the prompt investigation and prosecution of election offenses as an adjunct of its mandate of ensuring a free, orderly, honest, peaceful
and credible elections.
Although it belongs to the executive department, as the agency tasked to investigate crimes, prosecute offenders, and administer the
correctional system, the DOJ is likewise not barred from acting jointly with the Comelec. It must be emphasized that the DOJ and the Comelec
exercise concurrent jurisdiction in conducting preliminary investigation of election offenses. The doctrine of concurrent jurisdiction means equal
jurisdiction to deal with the same subject matter. Contrary to the contention of the petitioners, there is no prohibition on simultaneous exercise
of power between two coordinate bodies. What is prohibited is the situation where one files a complaint against a respondent initially with one
office (such as the Comelec) for preliminary investigation which was immediately acted upon by said officeand the re-filing of substantially the
same complaint with another office (such as the DOJ). The subsequent assumption of jurisdiction by the second office over the cases filed will
not be allowed. Indeed, it is a settled rule that the body or agency that first takes cognizance of the complaint shall exercise jurisdiction to the
exclusion of the others. As cogently held by the Court in Department of Justice v. Hon. Liwag:
To allow the same complaint to be filed successively before two or more investigative bodies would promote multiplicity of proceedings. It
would also cause undue difficulties to the respondent who would have to
appear and defend his position before every agency or body where the same complaint was filed. This would lead hapless litigants at a loss as
to where to appear and plead their cause or defense.
There is yet another undesirable consequence. There is the distinct possibility that the two bodies exercising jurisdiction at the same time
would come up with conflicting resolutions regarding the guilt of the respondents.
Finally, the second investigation would entail an unnecessary expenditure of public funds, and the use of valuable and limited resources of
Government, in a duplication of proceedings already started with the Ombudsman. (Arroyo v. DOJ, et al., G.R. No. 199082, September 18,
2012).
ELECTION/LGU
Candidate convicted of robbery is disqualified to run; petition for cancellation of COC is the remedy.
Q – Dominador Jalosjos, Jr. filed his certificate of candidacy for Mayor of the City of Dapitan, Zamboanga del Sur for the 2010
elections. His opponent Agapito Cardino filed a petition to deny due course and cancel his COC due to a false material
misrepresentation in his certificate when he declared under oath that he was eligible when he has been convicted of the crime of
robbery and sentenced to prison mayor by the RTC. Jalosjos contended that he was granted probation where the COMELEC found
out that the certificate of compliance with the requirement was fraudulently issued. He has not yet served his sentence. The penalty
of prision mayor carries with it perpetual special disqualification to hold public office. Is the COMELEC’s ruling correct? Why?
Answer: Yes. The COMELEC properly cancelled Jalosjos’ certificate of candidacy. A void certificate of candidacy on the ground of ineligibility
that exited at the time of the filing of the certificate of candidacy can never give rise to a valid candidacy, and much less to valid votes. Jalosjos’
certificate of candidacy was cancelled because he was ineligible from the start to run for Mayor. Whether his certificate of candidacy is
cancelled before or after the election is immaterial because the cancellation on such ground means he was never a valid candidate from the
very beginning, his certificate 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 ran unopposed. There was only one qualified
candidate for Mayor in the May 2010 elections -- Cardino – who received the highest number of votes.
Section 74 requires the candidate to state under oath in his certificate of candidacy "that he is eligible for said office." A candidate is eligible if
he has a right to run for the public office. If a candidate is not actually eligible because he is barred by final judgment in a criminal case from
running for public office, and he still states under oath in his certificate of candidacy that he is eligible to run for public office, then the candidate
clearly makes a false material representation that is a ground for a petition under Section 78. (Jalosjos, Jr. v. COMELEC, et al., G.R. No.
193237; Cardino v. Jalosjos, et al., G.R. No. 193237, October 9, 2012).
Note:
A sentence of prisión mayor by final judgment is a ground for disqualification under Section 40 of the Local Government Code and under
Section 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 Election Code. Thus, a person can file a petition under Section 40 of the Local Government Code or under either Section 12 or
Section 78 of the Omnibus Election Code. The pertinent provisions read:
Section 40, Local Government Code:
Sec. 40. Disqualifications. - The following persons are disqualified from running for any elective local position:
(a) Those sentenced by final judgment for an offense involving moral turpitude or for an offense punishable by one (1) year or more of
imprisonment, within two (2) years after serving sentence;
(b) Those removed from office as a result of an administrative case;
(c) Those convicted by final judgment for violating the oath of allegiance to the Republic;
(d) Those with dual citizenship;
(e) Fugitives from justice in criminal or non-political cases here or abroad;
(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
(g) The insane or feeble-minded.
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