VII.

Requirements and prohibitions

ERWIN B. JAVELLANA v. DILG & SEC. LUIS SANTOS

G.R. No. 102549, 10 August 1992, EN BANC, (Grino-Aquino, J.)
Atty. Erwin B. Javellana was an elected City Councilor of Bago City, Negros Occidental.
City Engineer Ernesto C. Divinagracia filed an administrative case against Javellana averring
that Javellana, an incumbent member of the Sanggunian Panglungsod of Bago City, and a
lawyer by profession, has continuously engaged in the practice of law without securing authority
for that purpose from the Regional Director. Javellana, as counsel for Antonio Javiero and
Rolando Catapang, filed a case against City Engineer Ernesto C. Divinagracia of Bago City for
"Illegal Dismissal and Reinstatement with Damages" putting him in public ridicule. Javellana
also appeared as counsel in several criminal and civil cases in the city, without prior authority of
the DLG Regional Director, in violation of various DLG memorandum circulars for such purpose.
Javellana requested the DLG for a permit to continue his practice of law for the reasons
stated in his letter-request. Secretary Santos replied in favor of Javellana. During the pendency
of the case, the LG Code was signed into law, Section 90 of which allows exercise of profession
subject to some limitations and exceptions.
ISSUE:
Did Javellana violate the LG Code and other pertinent DLG Memo circulars when it
acted as counsel against the City Engineer and on various cases without permission from the
DLG?
RULING:
YES.
By serving as counsel for the complaining employees and assisting them to prosecute
their claims against City Engineer Divinagracia, Javellana violated Memorandum Circular No.
74-58 prohibiting a government official from engaging in the private practice of his profession, if
such practice would represent interests adverse to the government.
Petitioner's contention that Section 90 of the Local Government Code of 1991 and DLG
Memorandum Circular No. 90-81 violate Article VIII. Section 5 of the Constitution is completely
off tangent. Neither the statute nor the circular trenches upon the Supreme Court's power and
authority to prescribe rules on the practice of law. The Local Government Code and DLG
Memorandum Circular No. 90-81 simply prescribe rules of conduct for public officials to avoid
conflicts of interest between the discharge of their public duties and the private practice of their
profession, in those instances where the law allows it.
Section 90 of the Local Government Code does not discriminate against lawyers
and doctors. It applies to all provincial and municipal officials in the professions or
engaged in any occupation. Section 90 explicitly provides that sanggunian members "may
practice their professions, engage in any occupation, or teach in schools except during session
hours." If there are some prohibitions that apply particularly to lawyers, it is because of all the
professions, the practice of law is more likely than others to relate to, or affect, the area of public
service.
RAUL A. VILLEGAS, PETITIONER, VS. ASSEMBLYMAN VALENTINO L. LEGASPI
These two cases were filed which involves the prohibition in Section 11, Article VIII of
the 1973 Charter, which used to read:
"Sec. 11. No member of the National Assembly shall appear as counsel before any court inferior
to a court with appellate jurisdiction, x x x"

First case:
A complaint for annulment of bank checks and damages was filed by Raul A. Villegas against
the Vera Cruz spouses and Primitivo Cania, Jr. (private respondents) before the Court of First
Instance of Cebu. An answer was filed by private respondents through their counsel,
Assemblyman Valentino L. Legaspi, a member of the Batasang Pambansa from the province of
Cebu. Raul A. Villegas "challenged" the appearance of Assemblyman Legaspi as counsel of
record on the ground that he is barred under the Constitution from appearing before Courts of
First Instance, which are essentially trial Courts or Courts of original jurisdiction.
Second case:
Edgardo P. Reyes filed before the Court of First Instance of Rizal (Pasig) against N. V.
Verenigde Buinzenfabrieken Excelsior-De Maas and private respondent Eustaquio T. C. Acero
to annul the sale of Excelsior's shares in the International Pipe Industries Corporation (IPI) to
Eustaquio T. C. Acero, allegedly on the ground that, prior thereto, the same shares had already
been sold to him (Reyes). Assemblyman Estanislao Fernandez entered his appearance as
counsel for Excelsior. This appearance was questioned on the ground that it was barred by
Section 11, Article VIII of the 1973 Constitution, above-quoted.
Issue:
Whether or not members of the Batasang Pambansa, like Attorneys Valentino L.
Legaspi and Estanislao A. Fernandez, can appear as counsel before Courts of First Instance?
Held:
No. Under the amendment to Article VIII of the 1973 Constitution, ratified in a national
plebiscite held on April 7, 1981, Section 11 now reads:
"SEC. 11. No member of the Batasang Pambansa shall appear as counsel before any
court without appellate jurisdiction, x x x"
Clearly, what is prohibited to a Batasang Pambansa member is "appearance as
counsel" "before any Court without appellate jurisdiction."
By law, Courts of First Instance are Courts of general original jurisdiction. However,
under the same statute, their jurisdiction has been stated to be of two kinds: (a) original and (b)
appellate. They have appellate jurisdiction over all cases arising in City and Municipal Courts.
It is contended, however, that the Courts of First Instance in these two cases took
cognizance of the suits in the exercise of their exclusive original and not appellate jurisdiction,
hence, Assemblymen Fernandez and Legaspi are still prohibited from appearing before said
Courts as counsel. There is merit to this contention.
The objective of the prohibition, then and now, is clearly to remove any possibility of
undue influence upon the administration of justice, to eliminate the possible use of office for
personal gain, to ensure impartiality in trials and thus preserve the independence of the
Judiciary. The possible influence of an Assemblyman on a single Judge of the Court of First
Instance, though not entirely removed, is definitely diminished where the latter Court acts in the
exercise of its appellate instead of original jurisdiction. The upper hand that a party represented
by an Assemblyman by virtue of his office possesses is more felt and could be more feared in
original cases than in appealed cases because the decision or resolution appealed from in the
latter situation has already a presumption not only of regularity but also of correctness in its
favor.
In fine, "appellate practice" is an intended qualification dictated by principles of reason,
justice and public interest.

Attorneys Estanislao A. Fernandez and Valentino Legaspi were declared prohibited from
appearing as counsel before the Court of First Instance of Rizal (Pasig), Branch XXI, in Civil
Case No. 33739, and before the Court of First Instance of Cebu, Branch II, in Civil Case No. R18857, respectively.

HERMINIO R. NORIEGA, complainant, vs. ATTY. EMMANUEL R. SISON, respondent.

A.M. No. 2266 October 27, 1983
FACTS:
In 1981, Noriega filed a disbarment case against Sison. Noriega alleged that Sison as a
hearing officer of the Securities and Exchange Commission is not allowed to engage in the
private practice of law; yet Noriega alleged that Sison has created another identity under the
name Manuel Sison in order for him to engage in private practice and represent one Juan
Sacquing before a trial court in Manila.
Sison, in his defense, argued that he is in fact representing Juan Sacquing but the same
is with the permission of the SEC Commissioner; that he never held himself out to the public as
a practicing lawyer; that he provided legal services to Sacquing in view of close family friendship
and for free; that he never represented himself deliberately and intentionally as Atty. Manuel
Sison in the Manila JDRC where, in the early stages of his appearance, he always signed the
minutes as Atty. Emmanuel R. Sison, and in one instance, he even made the necessary
correction when the court staff wrote his name as Atty. Manuel Sison; that due to the inept and
careless work of the clerical staff of the JDRC, notices were sent to Atty. Manuel Sison,
ISSUE:
Whether or not the disbarment case should prosper.
RULING:
NO. Examining the facts of this case, We hold that the allegations in the complaint do
not warrant disbarment of the respondent. There is no evidence that the respondent has
committed an act constituting deceit, immoral conduct, violation of his oath as a lawyer, wilful
disobedience of any lawful order of the court, or corruptly and willfully appearing as an attorney
to a part to a case without attorney to do so.
The only case DRC Case No. E-01978 wherein respondent appeared as counsel for the
defendant. It being an isolated case, the same does not constitute the practice of law, more so
since respondent did not derive any pecuniary gain for his appearance because respondent and
defendant therein were close family friends. Such act of the respondent in going out of his way
to aid as counsel to a close family friend should not be allowed to be used as an instrument of
harrassment against respondent.
The ruling in Zeta vs. Malinao (87 SCRA 303) wherein the respondent was dismissed
from the service because being a government employee, he appeared as counsel in a private
case, cannot be applied in the case at bar because the respondent in said Zeta case had
appeared as counsel without permission from his superiors.
Although the complaint alleges violation of civil service rules, the complainant however
states that the basis of his complaint for disbarment is not the respondent's act of appearing as
counsel but the unauthorized use of another name.

A perusal of the records however, reveals that whereas there is indeed a pleading
entitled "Objection/Opposition to the 2 Formal Offer of Evidence" (Annex "C" to the Complaint
for Disbarment, which is signed as "Manuel Sisori", counsel for defendant, 605 EDSA, Cubao,
Quezon City, p. 7 of the Records), there is, however, no showing that respondent was thus
motivated with bad faith or malice, for otherwise lie would not have corrected the spelling of his
name when the court staff misspelled it in one of the minutes of the proceeding. Moreover, We
find no reason or motive for respondent to conceal his true name when he have already given
express authority by his superior to act as counsel for Juan Sacquing in the latter's case
pending before the JDRC And while it may be True that subsequent errors were made in
sending notices to him under the name "Atty. Manuel Sison, ' the errors were attributable to the
JDRC clerical staff and not to the respondent.
At most, this Court would only counsel the respondent to be more careful and cautious in
signing his name so as to avoid unnecessary confusion as regards his Identity.
WHEREFORE, this case is hereby DISMISSED for lack of merit.
EDGAR Y. TEVES AND TERESITA Z. TEVES V. THE SANDIGANBAYAN
G.R. No. 154182, December 17, 2004, EN BANC, (DAVIDE JR., CJ.)
Facts
Edgar Y. Teves, former Mayor of Valencia, Negros Oriental, and his wife Teresita Z.
Teves were convicted for violation of Section 3(h) of Republic Act No. 3019, otherwise known
as the Anti-Graft and Corrupt Practices Act for issuing of the appropriate business
permit/license to operate the Valencia Cockpit and Recreation Center in favor of one Daniel
Teves, said accused Edgar Y. Teves having a direct financial or pecuniary interest therein
considering the fact that said cockpit arena is actually owned and operated by him and
accused Teresita Teves. This pecuniary interest is prohibited under Section 89(2) of R.A. No.
7160, otherwise known as the Local Government Code (LGC) of 1991, and thus falls under the
prohibited acts penalized in Section 3(h) of the Anti-Graft Law.
The Sandiganbayan, however, absolved the petitioners of the charge of causing the
issuance of a business permit or license to operate the Valencia Cockpit and Recreation Center
for not being well-founded. However, they were convicted for violation of violation of Section
3(h) of Republic Act No. 3019. The petitioners filed the instant petition for review on certiorari.
ISSUE:
Whether a public official charged with violation of Section 3(h) of Republic Act No. 3019,
may be convicted, together with his spouse?
HELD:
No. Wife should be acquitted not being a public official and conspiracy has not been
proven.
Section 89. Prohibited Business and Pecuniary Interest. (a) It shall be unlawful for any local
government official or employee, directly or indirectly, to:
(2) Hold such interests in any cockpit or other games licensed by a local government unit.
[Emphasis supplied].
The offense proved, therefore, is the second mode of violation of Section 3(h) of the
Anti-Graft Law, which is possession of a prohibited interest. But can the petitioners be convicted
thereof, considering that it was not charged in the information?

The answer is in the affirmative in view of the variance doctrine embodied in Section 4,
in relation to Section 5, Rule 120, Rules of Criminal Procedure.
The elements of the offense charged in this case, which is unlawful intervention in the
issuance of a cockpit license in violation of Section 3(h) of the Anti-Graft Law, are:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract, or
transaction, whether or not prohibited by law; and
3. He intervenes or takes part in his official capacity in connection with such interest.
On the other hand, the essential ingredients of the offense proved, which is possession of
prohibited interest in violation of Section 3(h) of the Anti-Graft Law, are as follows:
1. The accused is a public officer;
2. He has a direct or indirect financial or pecuniary interest in any business, contract or
transaction; and
3. He is prohibited from having such interest by the Constitution or any law.
It is clear that the essential ingredients of the offense proved constitute or form part of
those constituting the offense charged. Put differently, the first and second elements of the
offense charged, as alleged in the information, constitute the offense proved. Hence, the
offense proved is necessarily included in the offense charged, or the offense charged
necessarily includes the offense proved. The variance doctrine thus finds application to this
case, thereby warranting the conviction of petitioner Edgar Teves for the offense proved.
The next question we have to grapple with is under what law should petitioner Edgar
Teves be punished. It must be observed that Section 3(h) of the Anti-Graft Law is a general
provision, it being applicable to all prohibited interests; while Section 89(2) of the LGC of 1991 is
a special provision, as it specifically treats of interest in a cockpit.
It is a rule of statutory construction that where one statute deals with a subject in general
terms, and another deals with a part of the same subject in a more detailed way, the two should
be harmonized if possible; but if there is any conflict, the latter shall prevail regardless of
whether it was passed prior to the general statute.[23] Or where two statutes are of contrary tenor
or of different dates but are of equal theoretical application to a particular case, the one
designed therefor specially should prevail over the other.
Conformably with these rules, the LGC of 1991, which specifically prohibits local officials
from possessing pecuniary interest in a cockpit licensed by the local government unit and which,
in itself, prescribes the punishment for violation thereof, is paramount to the Anti-Graft Law,
which penalizes possession of prohibited interest in a general manner. Moreover, the latter took
effect on 17 August 1960, while the former became effective on 1 January 1991. Being the
earlier statute, the Anti-Graft Law has to yield to the LGC of 1991, which is the later
expression of legislative will.
In the imposition on petitioner Edgar Teves of the penalty provided in the LGC of 1991,
we take judicial notice of the fact that under the old LGC, mere possession of pecuniary interest
in a cockpit was not among the prohibitions enumerated in Section 41 [26] thereof. Such
possession became unlawful or prohibited only upon the advent of the LGC of 1991, which took
effect on 1 January 1992. Petitioner Edgar Teves stands charged with an offense in connection
with his prohibited interest committed on or about 4 February 1992, shortly after the maiden
appearance of the prohibition. Presumably, he was not yet very much aware of the prohibition.
Although ignorance thereof would not excuse him from criminal liability, such would justify the
imposition of the lighter penalty of a fine of P10,000 under Section 514 of the LGC of 1991.

Petitioner Teresita Teves must, however, be acquitted. The charge against her is
conspiracy in causing the issuance of the appropriate business permit/license to operate the
Valencia Cockpit and Recreation Center. For this charge, she was acquitted. But as discussed
earlier, that charge also includes conspiracy in the possession of prohibited interest.
Conspiracy must be established separately from the crime itself and must meet the
same degree of proof, i.e., proof beyond reasonable doubt. While conspiracy need not be
established by direct evidence, for it may be inferred from the conduct of the accused before,
during, and after the commission of the crime, all taken together, the evidence must reasonably
be strong enough to show community of criminal design.
Certainly, there is no conspiracy in just being married to an erring spouse. For a spouse
or any person to be a party to a conspiracy as to be liable for the acts of the others, it is
essential that there be intentional participation in the transaction with a view to the furtherance
of the common design. Except when he is the mastermind in a conspiracy, it is necessary that a
conspirator should have performed some overt act as a direct or indirect contribution in the
execution of the crime planned to be committed. The overt act must consist of active
participation in the actual commission of the crime itself or of moral assistance to his coconspirators.
ASEAN PACIFIC PLANNERS (APP), et al. v. CITY OF URDANETA, et al.
G.R. No. 162525, September 23, 2008, SECOND DIVISION (Quisumbing, J.)
Facts
Del Castillo alleged that then Urdaneta City Mayor Rodolfo Parayno entered into 5
contracts for the preliminary design, construction and management of a 4-storey twin cinema
commercial center and hotel involving a massive expenditure of public funds amounting to P250
million, funded by a loan from PNB. For minimal work, the contractor was allegedly paid P95
million. Del Castillo also claimed that all the contracts are void because the object is outside the
commerce of men. The object is a piece of land belonging to the public domain and which
remains devoted to a public purpose as a public elementary school. Additionally, he claimed
that the contracts, from the feasibility study to management and lease of the future building, are
also void because they were all awarded solely to the Goco family. APP and APPCDC claimed
that the contracts are valid. Urdaneta City Mayor Amadeo Perez, Jr., asserted that the contracts
were properly executed by Parayno with prior authority from the Sangguniang Panlungsod.
After pre-trial, the Lazaro Law Firm entered its appearance as counsel for Urdaneta City
and filed an Omnibus Motion. Urdaneta City allegedly wanted to rectify its position and claimed
that inadequate legal representation caused its inability to file the necessary pleadings in
representation of its interests. The RTC admitted the entry of appearance of the Lazaro Law
Firm and granted the withdrawal of appearance of the City Prosecutor.
ISSUE:
Did the RTC err and commit grave abuse of discretion in allowing a private law firm to
represent Urdaneta City despite the clear statutory and jurisprudential prohibitions?
HELD:
YES. Its appearance as Urdaneta City's counsel is against the law as it provides
expressly who should represent it. The City Prosecutor should continue to represent the city.
Section 481(a) of the Local Government Code (LGC) mandates the appointment of a city legal
officer. Under Section 481(b)(3)(i) of the LGC, the city legal officer is supposed to represent the
city in all civil actions, as in this case, and special proceedings wherein the city or any of its
officials is a party. In Ramos v. Court of Appeals, city governments may already create the
position of city legal officer to whom the function of the city fiscal (now prosecutor) as legal

adviser and officer for civil cases of the city shall be transferred. In the case of Urdaneta City,
however, the position of city legal officer is still vacant, although its charter was enacted way
back in 1998.
Because of such vacancy, the City Prosecutor's appearance as counsel of Urdaneta City
is proper. The City Prosecutor remains as the city's legal adviser and officer for civil cases, a
function that could not yet be transferred to the city legal officer. Under the circumstances, the
RTC should not have allowed the entry of appearance of the Lazaro Law Firm vice the City
Prosecutor. Notably, the city's Answer was sworn to before the City Prosecutor by Mayor Perez.
The City Prosecutor prepared the city's pre-trial brief and represented the city in the pre-trial
conference. No question was raised against the City Prosecutor's actions until the Lazaro Law
Firm entered its appearance and claimed that the city lacked adequate legal representation.
Moreover, the appearance of the Lazaro Law Firm as counsel for Urdaneta City is
against the law. Section 481(b)(3)(i) of the LGC provides when a special legal officer may be
employed, that is, in actions or proceedings where a component city or municipality is a party
adverse to the provincial government. But this case is not between Urdaneta City and the
Province of Pangasinan. The Court has consistently held that an LGU cannot be represented by
private counsel as only public officers may act for and in behalf of public entities and public
funds should not be spent to hire private lawyers. Pro bono representation in collaboration with
the municipal attorney and prosecutor has not even been allowed.
SOCIAL JUSTICE SOCIETY v. HONORABLE JOSE LINA, in his capacity as Secretary of
the DILG
FACTS.
Petitioner Social Justice Society, a registered political party, filed before the RTC a
petition for declaratory relief against the then DILG Secretary Jose Lina praying for the proper
construction of Section 90 of RA 7160, which provides that: SEC. 90. Practice of Profession.
(a) All governors, city and municipal mayors are prohibited from practicing their profession or
engaging in any occupation other than the exercise of their functions as local chief executives. x
x x
Based on the said provision, specifically paragraph (a) thereof, petitioner posited that
actors who were elected as governors, city and municipal mayors were disallowed by law to
A. Qualifications and Election

appear in movies and television programs as one of the characters therein, for this would give
them undue advantage over their political opponents, and would considerably reduce the time
that they must devote to their constituents. To strengthen its point, petitioner later amended its
petition to implead as additional respondents then Lipa City Mayor Vilma Santos, then
Pampanga Provincial Governor Lito Lapid, and then Paraaque City Mayor Joey Marquez.
DILG Secretary moved for the dismissal of the petition on the grounds that (1) petitioner
has no legal standing to file the petition, because it is not a person whose rights are affected
by the statute; (2) it is not the real party-in-interest; (3) there is no judicial controversy; (4) there
is no need for construction of the subject provision; (5) there is already a breach of the statute
as alleged in the petition itself; and (6) declaratory relief is not the proper remedy. The RTC
sustained the respondents arguments and dismissed the petition for declaratory relief. Hence,
this petition for review on certiorari.
ISSUE.
WON the court erred in not resolving the issue raised in the petition for declaratory relief.
HELD.

NO. Petitioner contends that as a registered political party composed of citizens,

established to relentlessly pursue social justice in the Philippines, and allowed to field
candidates in the elections, it has the legal interest and the right to be informed and enlightened,
on whether or not their public officials, who are paid out of public funds, can, during their tenure,
lawfully appear as heroes or villains in movies, or comedians in television shows, and flaunt
their disdain for legal and ethical standards.
It also argues that a partys legal standing is a procedural technicality which may be set
aside where the issues raised are of paramount public interest. In the instant case, the
importance of the issue can never be minimized or discounted. The appearance of incumbent
city or municipal mayors and provincial governors, who are actors, in movies and television
programs enhances their income but reduces considerably the time that they should devote to
their constituents. This is in violation of Section 90 of R.A. No. 7160 and Section 7 of R.A. No.
6713 or the Code of Conduct and Ethical Standards for Public Officials and Employees. Their
appearance further gives them undue advantage in future elections over their opponents who
are not actors.
The Court agrees with petitioners contentions on locus standi considering the liberal
attitude it has taken in recent decisions.
However, following rules of procedure, we find as proper the trial courts dismissal of the
petition for declaratory relief in Civil Case No. 02-104585. Readily discernable is that the same
is an inappropriate remedy to enforce compliance with Section 90 of R.A. 7160, and to prevent
local chief executives Santos-Recto, Lapid and Marquez from taking roles in movies and
television shows. The Court, thus, grants the OSGs move to dismiss the case.
Indeed, an action for declaratory relief should be filed by a person interested under a
deed, a will, a contract or other written instrument, and whose rights are affected by a statute,
an executive order, a regulation or an ordinance. The purpose of the remedy is to interpret or to
determine the validity of the written instrument and to seek a judicial declaration of the parties
rights or duties thereunder. For the action to prosper, it must be shown that (1) there is a
justiciable controversy; (2) the controversy is between persons whose interests are adverse; (3)
the party seeking the relief has a legal interest in the controversy; and (4) the issue is ripe for
judicial determination.
Suffice it to state that, in the petition filed with the trial court, petitioner failed to allege the
ultimate facts which satisfy these requisites. Not only that, as admitted by the petitioner, the
provision the interpretation of which is being sought has already been breached by the
respondents. Declaratory relief cannot thus be availed of.

JUAN G. FRIVALDO, PETITIONER, VS. COMMISSION ON ELECTIONS, AND RAUL R. LEE,

RESPONDENTS.
G.R. No. 120295, June 28, 1996, EN BANC
Facts
On March 20, 1995, private respondent Juan G. Frivaldo 1 filed his Certificate of
Candidacy for the office of Governor of Sorsogon in the May 8, 1995 elections. On March 23,
1995, petitioner Raul R. Lee, another candidate, filed a petition with the COMELEC docketed as
SPA No. 95-028 praying that Frivaldo "be disqualified from seeking or holding any public office
or position by reason of not yet being a citizen of the Philippines," and that his Certificate of
Candidacy be cancelled. Such was granted by the COMELEC and disqualified Frivaldo. The
MR filed by Frivaldo was unacted upon until the 1995 elections, so his candidacy continued and
he was voted for during the elections and won as Governor of Sorsogon.
On June 9, 1995, Lee filed in said SPA No. 95-028, a (supplemental) petition praying for
his proclamation as the duly-elected Governor of Sorsogon. On June 21, 1995, the COMELEC
en banc directed "the Provincial Board of Canvassers of Sorsogon to reconvene for the purpose
of proclaiming candidate Raul Lee as the winning gubernatorial candidate in the province of
Sorsogon on June 29, 1995. He was proclaimed as governor in the evening of June 30 at
8:30pm.
Frivaldo sought the annulment of the proclamation on the ground that on June 30, 1995,
at 2:00pm, he took his oath of allegiance as a citizen of the Philippines after "his petition for
repatriation under P.D. 725 which he filed with the Special Committee on Naturalization in
September 1994 had been granted." As such, when "the said order of June 21 of the
COMELEC was released and received by Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to the proclamation of Frivaldo as governor. In the
alternative, he averred that pursuant to the two cases of Labo vs. Comelec, the Vice Governor
and not Lee should occupy said position of governor.
On December 19, 1995 the COMELEC granted the petition of Frivaldo.
Issue
WON the repatriation of Frivaldo valid and legal and;
WON it cured the citizenship requirement required to be proclaimed as Governor of
Sorsogon.
Decision
1. Yes, the repatriation of Frivaldo was valid and legal. Under Philippine law, citizenship may be
reacquired by direct act of Congress2, by naturalization or by repatriation. Petitioner now boasts
of having successfully passed through the third and last mode of reacquiring citizenship: by
repatriation under P.D. No. 725, with no less than the Solicitor General himself, who was the
prime opposing counsel in the previous cases he lost, this time, as counsel for co-respondent
Comelec, arguing the validity of his cause (in addition to his able private counsel Sixto S.
Brillantes, Jr.). That he took his oath of allegiance under the provisions of said Decree at 2:00
p.m. on June 30, 1995 is not disputed.
It will be noted that the Sec. 39 of the LGC does not specify any particular date or time
when the candidate must possess citizenship. Philippine citizenship is an indispensable
Frivaldo have been previously elected twice as governor but was disqualified due to his citizenship thus counting the facts o f the case, he had won the
elections thrice. (elected governor by the electorate of Sorsogon, with a margin of 27,000 votes in the 1988 elections, 57,000 in 1992, and 20,000 in
1995)
2 He tried to resume his citizenship by direct act of Congress, but that the bill allowing him to do so "failed to materialize, notwithstanding the
endorsement of several members of the House of Representatives" due, according to him, to the "maneuvers of his political rivals."
1

requirement for holding an elective public office, and the purpose of the citizenship qualification
is none other than to ensure that no alien shall govern our people and our country or a unit of
territory thereof. Now, an official begins to govern or to discharge his functions only upon his
proclamation and on the day the law mandates his term of office to begin. Since Frivaldo reassumed his citizenship on June 30, 1995--the very day the term of office of governor (and
other elective officials) began--he was therefore already qualified to be proclaimed, to hold such
office and to discharge the functions and responsibilities thereof as of said date. In short, at that
time, he was already qualified to govern his native Sorsogon.3 This is the liberal interpretation
that should give spirit, life and meaning to our law on qualifications consistent with the purpose
for which such law was enacted. So too, even from a literal construction, it should be noted that
Section 39 of the Local Government Code speaks of "Qualifications" of "ELECTIVE
OFFICIALS," not of candidates.
But perhaps the more difficult objection was the one raised during the oral argument to
the effect that the citizenship qualification should be possessed at the time the candidate (or for
that matter the elected official) registered as a voter. After all, Section 39, apart from requiring
the official to be a citizen, also specifies as another item of qualification, that he be a "registered
voter." And, under the law a "voter" must be a citizen of the Philippines. So therefore, Frivaldo
could not have been a voter--much less a validly registered one -- if he was not a citizen at the
time of such registration.
The answer to this problem again lies in discerning the purpose of the requirement. If the
law intended the citizenship qualification to be possessed prior to election consistent with the
requirement of being a registered voter, then it would not have made citizenship a SEPARATE
qualification. The law abhors a redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER, even if being a voter presumes
being a citizen first. It also stands to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need for nationality but to require that
the official be registered as a voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the
law states: "a registered voter in the barangay, municipality, city, or province x x x where he
intends to be elected." It should be emphasized that the Local Government Code requires an
elective official to be a registered voter. It does not require him to vote actually. Hence,
registration--not the actual voting--is the core of this "qualification." In other words, the law's
purpose in this second requirement is to ensure that the prospective official is actually
registered in the area he seeks to govern--and not anywhere else. Before this Court, Frivaldo
has repeatedly emphasized--and Lee has not disputed--that he "was and is a registered voter of
Sorsogon, and his registration as a voter has been sustained as valid by judicial declaration x x
x In fact, he cast his vote in his precinct on May 8, 1995 It is thus clear that Frivaldo is a
registered voter in the province where he intended to be elected.
2. Yes, According to the NCC laws shall have no retroactive effect, unless the contrary is
provided." But there are settled exceptions to this general rule, such as when the statute is
CURATIVE or REMEDIAL in nature or when it CREATES NEW RIGHTS. It is remedial in nature
filling certain void in Philippines laws regarding repatriation through creation of new rights and
remedies. P.D. No. 725 was enacted to cure the defect in the existing naturalization law,
specifically C. A. No. 63 wherein married Filipino women are allowed to repatriate only upon the
death of their husbands, and natural-born Filipinos who lost their citizenship by naturalization
and other causes faced the difficulty of undergoing the rigid procedures of C.A. 63 for
reacquisition of Filipino citizenship by naturalization.

Thus the citizenship requirement is reckoned on the date of proclamation and not on the date of election nor filing of certificate of candidacy.

It is but right and just that the mandate of the people, already twice frustrated, should
now prevail. Under the circumstances, there is nothing unjust or iniquitous in treating Frivaldo's
repatriation as having become effective as of the date of his application, i.e., on August 17,
1994. It is not disputed that on January 20, 1983 Frivaldo became an American. Would the
retroactivity of his repatriation not effectively give him dual citizenship, which under Sec. 40 of
the Local Government Code would disqualify him "from running for any elective local position?"
The court answers this question in the negative, as there is cogent reason to hold that
Frivaldo was really STATELESS at the time he took said oath of allegiance and even before
that, when he ran for governor in 1988. In his Comment, Frivaldo wrote that he "had long
renounced and had long abandoned his American citizenship--long before May 8, 1995. At best,
Frivaldo was stateless in the interim -- when he abandoned and renounced his US citizenship
but before he was repatriated to his Filipino citizenship. Quoting the assailed resolution of
December 1995, it states that - By the laws of the United States, petitioner Frivaldo lost his
American citizenship when he took his oath of allegiance to the Philippine Government when he
ran for Governor in 1988, in 1992, and in 1995. Every certificate of candidacy contains an oath
of allegiance to the Philippine Government.
Assailed resolution of COMELEC affirmed.
Note

Lees proclamation was not valid. The ineligibility of a candidate receiving majority votes
does not entitle the eligible candidate receiving the next highest number of votes to be
declared elected. A minority or defeated candidate cannot be deemed elected to the
office.
The court decision contains a part regarding the dissenting opinion of Justice Davide
and the courts refutation of his dissent.
QUITERIO HERMO, PETITIONER, VS. HON. ROSALIO G. DELA ROSA, JUDGE,
RTCBRANCH 28, MANILA, RESPONDENT.
A.M. No. RTJ-92-897, November 24, 1998, EN BANC, QUISUMBING, J.

Facts
On September 20, 1991, Juan G. Frivaldo filed a petition for naturalization 4 before the
sala of the respondent judge of the RTC of Manila. The petition was set for hearing on March
16, 1992 and publication in the Official Gazette and in a newspaper of general circulation were
ordered once a week for three consecutive weeks, the last publication of which should be at
least six months before the date of hearing. Judge de la Rosa likewise required the posting of
the order and of the petition in a public and conspicuous place in the office of the Clerk of Court
of the Manila RTC. Frivaldo caused the publication of respondent's order in the Philippine Star.
On January 20, 1992, Frivaldo filed a motion to set the hearing of his petition ahead of
schedule since he was planning to run in the elections of May 11, 1992 and he had to file his
certificate of candidacy before March 15, 1992, a day before the scheduled hearing.
Respondent judge granted the motion and reset the hearing of February 21, 1992. It does not
appear that the order granting the motion was published or posted. On February 27, 1992,

Aside from this administrative case, three other petitions were filed before this Court in connection with Frivaldo's petition and his reacquisition of
his Filipino citizenship: G.R. No. 104654, G.R. No. 105715, and G.R. No. 105735. This two cases were consolidated in the case of Republic v. De la
Rosa wherein the court held that he naturalization proceedings in SP Proc. No. 91-58645 was full of procedural flaws, rendering the decision an
anomaly.
The proceedings of the trial court was marred by the following irregularities: (1)the hearing of the petition was set ahead of the scheduled
date of hearing, without a publication of the order advancing the date of hearing, and the petition itself; (2)the petition w as heard within six months
from the last publication of the petition, (3)petitioner was allowed to take his oath of allegiance before the finality of judgment; and (4)petitioner took
his oath of allegiance without observing the two-year waiting period.
4

respondent judge rendered his decision granting Frivaldo's petition and on the same day,
Frivaldo took his oath of allegiance.
Herein petitioner charges respondent judge in an administrative case, with gross
ignorance of the law and malfeasance in the performance of his official duties on the following
circumstances: (1) Non-publication of respondent's order of publication in the Official Gazette;
(2) Resetting of the hearing to an earlier date, which date is within six months from the date of
the petition's last publication which was November 21, 1991; (3) Allowance of the petition and of
Frivaldo's taking his oath of allegiance on the same date the petition was heard; (4) Allowing
Frivaldo to take his oath of allegiance before two years had elapsed from the date of the
decision; (5) Non-submission by Frivaldo of the affidavit of two disinterested persons to "testify
on (his) wherewithals"; (6) Allowance of Frivaldo's petition despite the fact that he was convicted
of libel in a case filed in Sorsogon; and (7) An apparent attempt to cover up the proceedings as
shown by Alma Catu's experience when she tried to inquire into the progress of the case.
Issue
WON respondent judge was guilty of gross ignorance of law and malfeasance
Decision
Yes, the court sees no reason to disturb the foregoing findings in the case of Republic v.
De la Rosa. The failure to observe the procedure required by law as regards the date of hearing
the petition and granting the same is clearly attributable to respondent judge. Section 1 of
Republic Act No. 530 clearly provides that ...no petition for Philippine citizenship shall be heard
by the courts until after six months from the publication of the application required by law, nor
shall any decision granting the application become executory until after two years from its
promulgation.
Under Section 2 of the same law, the applicant may only take his oath of allegiance after
the Solicitor General finds that within the period of two years from the date the decision granting
citizenship is promulgated, that the applicant has (1) not left the Philippines, (2) has dedicated
himself continuously to a lawful calling or profession, (3) has not been convicted of any offense
or violation of Government promulgated rules, (4) or committed any act prejudicial to the interest
of the nation or contrary to any Government announced policies.
In the case herein, respondent judge heard Frivaldo's petition before the lapse of six
months from the date the petition was published in a newspaper of general circulation. He
allowed Frivaldo to take his oath of allegiance on the same day the petition was granted,
disregarding the requisite two-year waiting period.
What made the matter more questionable is the fact that six (6) days after the hearing of
the petition was scheduled, a decision was rendered by respondent Judge on February 27,
1992. On that very same day it was rendered, Mr. Frivaldo was allowed to take his oath of
allegiance despite the fact that the decision has not yet become final.
Respondent was found liable for serious procedural lapses with regard to the proceedings in
SP Proc. No. 91-58645, and ordered him to pay a FINE of P5,000.00 to be deducted from
benefits previously withheld from him.
URBANO M. MORENO, PETITIONER, VS. COMELEC and NORMA L. MEJES,
RESPONDENTS.
FACTS
Norma Mejes filed a petition to disqualify Urbano Moreno from running for Punong
Barangay on the ground that the latter was convicted by final judgment of
Arbitrary Detention and was sentenced to suffer imprisonment of 4 months and 1 day to 2 years

and 4 months by the RTC. Moreno filed an answer averring that the petition states no cause of
action because he was already granted probation. Allegedly, following the case of Baclayon v.
Mutia, the imposition of the sentence of imprisonment, as well as the accessory penalties, was
thereby suspended. Moreno also argued that under the Probation Law, the final discharge of the
probation shall operate to restore to him all civil rights lost or suspended as a result of his
conviction and to fully discharge his liability for any fine imposed. The order of the trial court
allegedly terminated his probation and restored to him all the civil rights he lost as a result of his
conviction, including the right to vote and be voted for.
The Investigating Officer of the Office of the Provincial Election Supervisor of Samar
recommended that Moreno be disqualified from running. The Comelec First Division adopted
this recommendation. On motion for reconsideration filed with the Comelec en banc, the
Resolution of the First Division was affirmed.
In this petition, Moreno argues that the disqualification under Sec. 40(a) of the Local
Government Code (LGC) applies only to those who have served their sentence and not to
probationers because the latter do not serve the adjudged sentence. He alleges that he applied
for and was granted probation within the period specified therefore. He never served a day of
his sentence as a result. Hence, the disqualification under the LGC does not apply to him.
ISSUE
Whether or not Moreno is qualified to run, which is dependent on WON his sentence was
served
RULING
YES. The resolution of the present controversy depends on the application of the phrase
within two (2) years after serving sentence found in Sec. 40(a) of the LGC.
In Baclayon v. Mutia, the Court declared that an order placing defendant on probation is not
a sentence but is rather, in effect, a suspension of the imposition of sentence. We held
that the grant of probation to petitioner suspended the imposition of the principal penalty
of imprisonment, as well as the accessory penalties of suspension from public office and
from the right to follow a profession or calling, and that of perpetual special
disqualification from the right of suffrage.
In this case, the accessory penalties of suspension from public office, from the right to
follow a profession or calling, and that of perpetual special disqualification from the right of
suffrage, attendant to the penalty of arresto mayor in its maximum period to prision correccional
in its minimum period imposed upon Moreno were similarly suspended upon the grant of
probation.
It appears then that during the period of probation, the probationer is not even
disqualified from running for a public office because the accessory penalty of suspension
from public office is put on hold for the duration of the probation.
Clearly, the period within which a person is under probation cannot be equated
with service of the sentence adjudged. Sec. 4 of the Probation Law specifically provides
that the grant of probation suspends the execution of the sentence. During the period of
probation, the probationer does not serve the penalty imposed upon him by the court but
is merely required to comply with all the conditions prescribed in the probation order.
Morenos sentence was not served, hence he is qualified to run for Punong Barangay.
------------------Salomon v. Nea -----------------Bautista v. Comelec
Facts:

On 10 June 2002, Bautista filed his certificate of candidacy for Punong Barangay in
Lumbangan for the 15 July 2002 barangay elections. Election Officer Josefina P. Jareo
refused to accept Bautistas certificate of candidacy because he was not a registered voter in
Lumbangan.
During the 15 July 2002 barangay elections, Bautista and private respondent Divina
Alcoreza were candidates for the position of Punong Barangay in Lumbangan. The Lumbangan
Board of Canvassers proclaimed Bautista as the elected Punong Barangay on July 15, 2002.
Meanwhile, COMELEC issued Resolution No. 5404 on 23 July 2002 and Resolution No.
5584 on 10 August 2002. In Resolution No. 5404, the COMELEC en banc resolved to cancel
Bautistas certificate of candidacy. The COMELEC en banc directed the Election Officer to
delete Bautistas name from the official list of candidates.
Issue:
WON Bautista was a registered voter of Barangay Lumabangan when he filed his certificate of
candidacy.
Held:
No.
Bautista was aware when he filed his certificate of candidacy for the office of Punong
Barangay that he lacked one of the qualifications that of being a registered voter in the
barangay where he ran for office. He therefore made a misrepresentation of a material fact
when he made a false statement in his certificate of candidacy that he was a registered voter in
Barangay Lumbangan.[42] An elective office is a public trust. He who aspires for elective office
should not make a mockery of the electoral process by falsely representing himself. The
importance of a valid certificate of candidacy rests at the very core of the electoral
process.[43] Under Section 78 of the Omnibus Election Code, false representation of a material
fact in the certificate of candidacy is a ground for the denial or cancellation of the certificate of
candidacy. The material misrepresentation contemplated by Section 78 refers to qualifications
for elective office. A candidate guilty of misrepresentation may be (1) prevented from running,
or (2) if elected, from serving, or (3) prosecuted for violation of the election laws.
REV. FR. NARDO B. CAYAT, PETITIONER, VS. COMMISSION ON ELECTIONS (FIRST
DIVISION), COMMISSION ON ELECTIONS (EN BANC), AND THOMAS R. PALILENG, SR.,
RESPONDENTS.
Cayat and Palileng were the only candidates for the mayoralty post in Buguias, Benguet
in the 10 May 2004 local elections. ] seeks to disqualify [Cayat] for material misrepresentation in
his certificate of candidacy. This can be deduced from the fact that the petitioner cited in his
petition that the respondent declared that he is eligible for the office he is seeking to be elected
where in fact, [Cayat] is not eligible due to his conviction of a criminal offense ( Forcible Acts of
Lasciviousness).
In COMELECs Resolution of 12 April 2004, the Commission RESOLVED to CANCEL
the Certificate of Candidacy of Respondent REV. FATHER NARDO B. CAYAT.
In an order dated 9 May 2004, the COMELEC First Division dismissed Cayat's motion
for reconsideration for failure to pay the required filing fee. In the local elections held on 10 May
2004, Cayat's name remained on the COMELEC's list of candidates. In the Certificate of
Canvass of Votes dated 12 May 2004, Cayat received 8,164 votes.Palileng, on the other hand,
received 5,292 votes.[11] Cayat was thus proclaimed the duly elected Mayor of Buguias,
Benguet. Cayat took his oath of office on 17 May 2004.

Meanwhile, on 13 May 2004, Cayat received a photocopy of the 9 May 2004 order of the
COMELEC First Division denying his motion for reconsideration for his failure to pay the filing
fee.
Issue:
Whether the nullification of Cayat's proclamation as Mayor of Buguias, Benguet, and the
declaration of Palileng as Mayor of Buguias, Benguet, legal?
Held: Yes.
The law expressly declares that a candidate disqualified by final judgment before an
election cannot be voted for, and votes cast for him shall not be counted. This is a mandatory
provision of law. Section 6 of Republic Act No. 6646, The Electoral Reforms Law of 1987,
states:
Sec. 6. Effect of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall
not be counted. If for any reason a candidate is not declared by final judgment before an
election to be disqualified and he is voted for and receives the winning number of votes in
such election, the Court or Commission shall continue with the trial and hearing of the action,
inquiry, or protest and, upon motion of the complainant or any intervenor, may during the
pendency thereof order the suspension of the proclamation of such candidate whenever the
evidence of his guilt is strong.
Section 6 of the Electoral Reforms Law of 1987 covers two situations. The first is when
the disqualification becomes final before the elections, which is the situation covered in the first
sentence of Section 6. The second is when the disqualification becomes final after the
elections, which is the situation covered in the second sentence of Section 6.
The present case falls under the first situation. Section 6 of the Electoral Reforms Law
governing the first situation is categorical: a candidate disqualified by final judgment before
an election cannot be voted for, and votes cast for him shall not be counted. The
Resolution disqualifying Cayat became final on 17 April 2004, way before the 10 May 2004
elections. Therefore, all the 8,164 votes cast in Cayat's favor are stray. Cayat was never a
candidate in the 10 May 2004 elections. Palileng's proclamation is proper because he was the
sole and only candidate, second to none.
Petition was Dismissed.
ATTY. VENANCIO Q. RIVERA III and ATTY. NORMANDICK DE GUZMAN, Petitioners,
vs.COMELEC and MARINO "BOKING" MORALES, Respondents.
G.R. No. 167591, May 9, 2007
FACTS:
A petition for cancelation of the Certificate of Candidacy of Marino Morales as
mayoralty candidate in Mabalacat, Pampanga for the May 2004 mayoralty was filed on the
ground the he already served three consecutive terms in the office he seeks to run. Morales
argues that this is not so because although he really served in 1995-1998 (1st term) and 20042007 (3rd term), he was merely a caretaker or de facto mayor in1998-2001(2nd term) because
his election was declared void by the RTC in its Decision dated April 2, 2001 in Election Protest
Case.
On May 6, 2004, the COMELEC Second Division rendered its Resolution finding
respondent Morales disqualified to run for the position of municipal mayor on the ground that he
had already served three (3) consecutive terms. Accordingly, his Certificate of Candidacy was

cancelled. On May 7, 2004, he filed with the COMELEC En Banc a motion for reconsideration.
The COMELEC En Banc held that since the Decision in EPC No. 98-131 of the RTC, Branch
57, Angeles City declared respondent Morales proclamation void, his discharge of the
duties in the Office of the Mayor in Mabalacat is that of a de facto officer or a de facto
mayor. Therefore, his continuous service for three consecutive terms has been severed.
Hence, this petition for certiorari.
ISSUE:
WON Morales had already served his 3 consecutive terms and if so, who should take his
position?
RULING:
YES. It is undisputed that respondent Morales was elected to the position of mayor of
Mabalacat for the
following consecutive terms:
a) July 1, 1995 to June 30, 1998
b) July 1, 1998 to June 30, 2001
c) July 1, 2001 to June 30, 2004
d) July 1, 2004 to June 30, 2007
Respondent Morales argued and the Comelec held that the July 1, 2003 to June 30,
2007 term is not his fourth because his second term, July 1, 1998 to June 30, 2001 to
which he was elected and which he served, may not be counted since his proclamation
was declared void by the RTC, Branch 57 of Angeles City.
Respondent Morales is wrong. For the three-term limit for elective local government
officials to apply, two conditions or requisites must concur, to wit:(1) that the official
concerned has been elected for three (3) consecutive terms in the same local government
post, and (2) that he has fully served three (3)consecutive terms.
Here, respondent Morales was elected for the term July 1, 1998 to June 30, 2001. He
assumed the position. He served as mayor until June 30, 2001. He was mayor for the entire
period notwithstanding the Decision of the RTC in the electoral protest case filed by
petitioner Dee ousting him (respondent) as mayor. Whether as "caretaker" or "de facto"
officer, he exercises the powers and enjoys the prerequisites of the office which enables him
"to stay on indefinitely".
In the light of the foregoing, respondent Morales can not be considered a candidate in
the May 2004 elections. Not being a candidate, the votes cast for him SHOULD NOT BE
COUNTED and must be considered stray votes.
With regard to the person who will replace Morales, it is a rule that the ineligibility of a
candidate receiving majority votes does not entitle the eligible candidate receiving the next
highest number of votes to be declare delected. A minority or defeated candidate cannot be
deemed elected to the office. Since his disqualification became final and executory after the
elections, the candidate having the second highest number of votes cannot assume the
position.
Hence, it is the petitioner, the elected Vice Mayor Anthony Dee who should be declared
as the mayor.
ROMEO M. JALOSJOS, JR. v. THE COMMISSION ON ELECTIONS AND DAN ERASMO,
SR.

G.R. No. 192474, June 26, 2012, EN BANC, (ABAD, J.)

Romeo M. Jalosjos, Jr., While serving as Tampilisan Mayor, he bought a residential
house and lot in Barangay Veterans Village, Ipil, Zamboanga Sibugay. After eight months,
Jalosjos applied with the Election Registration Board (ERB) of Ipil, Zamboanga Sibugay, for the
transfer of his voters registration record to Precinct 0051F of Barangay Veterans Village. Dan
Erasmo, Sr., opposed the application, ERB granted jalosjos application. Undeterred, Erasmo
filed a petition to exclude Jalosjos from the list of registered voters in MCTC. The latter ruled in
favor of Erasmo. Jalosjos elevated the matter to the Court of Appeals (CA) through a petition
for certiorari with an application for the issuance of a writ of preliminary injunction. [6] On
November 26, 2009 the CA granted his application. Jalosjos filed his Certificate of Candidacy
(COC) for the position of Representative of the Second District of Zamboanga Sibugay for the
May 10, 2010 National Elections. This prompted Erasmo to file a petition to deny to cancel his
COC before the COMELEC,[7] claiming that Jalosjos made material misrepresentations in that
COC when he indicated in it that he resided in Ipil, Zamboanga Sibugay. But the Second
Division of the COMELEC issued a joint resolution, dismissing Erasmos petitions for
insufficiency in form and substance.
While Erasmos motion for reconsideration was pending before the COMELEC En Banc,
the May 10, 2010 elections took place, resulting in Jalosjos winning the elections. Meantime, on
June 2, 2010 the CA rendered judgment in the voters exclusion case before it, holding that the
lower courts erred in excluding Jalosjos from the voters list of Barangay Veterans Village in Ipil
since he was qualified under the Constitution and Republic Act 8189 to vote in that place.
Erasmo filed a petition for review. Several counter cases were filed by the parties after. The
Court ordered the consolidation of the three related petitions.
ISSUE:
Does the Supreme Court has jurisdiction at this time to pass upon the question of
Jalosjos residency qualification for running for the position of Representative of the Second
District of Zamboanga Sibugay considering that he has been proclaimed winner in the election
and has assumed the discharge of that office?
HELD: YES.
While the Constitution vests in the COMELEC the power to decide all questions affecting
elections, such power is not without limitation. It does not extend to contests relating to the
election, returns, and qualifications of members of the House of Representatives and the
Senate. The Constitution vests the resolution of these contests solely upon the appropriate
Electoral Tribunal of the Senate or the House of Representatives
The Court has already settled the question of when the jurisdiction of the COMELEC
ends and when that of the HRET begins. The proclamation of a congressional candidate
following the election divests COMELEC of jurisdiction over disputes relating to the election,
returns, and qualifications of the proclaimed Representative in favor of the HRET.
Here, when the COMELEC En Banc issued its order dated June 3, 2010, Jalosjos had
already been proclaimed on May 13, 2010 as winner in the election. Thus, the COMELEC acted
without jurisdiction when it still passed upon the issue of his qualification and declared him
ineligible for the office of Representative of the Second District of Zamboanga Sibugay.
It is of course argued, as the COMELEC law department insisted, that the proclamation
of Jalosjos was an exception to the above-stated rule. Since the COMELEC declared him
ineligible to run for that office, necessarily, his proclamation was void following the ruling in
Codilla, Sr. v. De Venecia. For Erasmo, the COMELEC still has jurisdiction to issue its June 3,
2010 order based on Section 6 of Republic Act 6646. Section 6 provides:

Section 6. Effects of Disqualification Case. Any candidate who has been declared by
final judgment to be disqualified shall not be voted for, and the votes cast for him shall not be
counted. If for any reason a candidate is not declared by final judgment before an election to be
disqualified and he is voted for and receives the winning number of votes in such election, the
Court or Commission shall continue with the trial and hearing of the action, inquiry, or protest
and, upon motion of the complainant or any intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate whenever the evidence of his guilt is
strong.
Here, however, the fact is that on election day of 2010 the COMELEC En Banc had as
yet to resolve Erasmos appeal from the Second Divisions dismissal of the disqualification case
against Jalosjos. Thus, there then existed no final judgment deleting Jalosjos name from the list
of candidates for the congressional seat he sought. The last standing official action in his case
before election day was the ruling of the COMELECs Second Division that allowed his name to
stay on that list. Meantime, the COMELEC En Banc did not issue any order suspending his
proclamation pending its final resolution of his case. With the fact of his proclamation and
assumption of office, any issue regarding his qualification for the same, like his alleged lack of
the required residence, was solely for the HRET to consider and decide.
Consequently, the Court holds in G.R. 192474 that the COMELEC En Banc exceeded its
jurisdiction in declaring Jalosjos ineligible for the position of representative for the Second
District of Zamboanga Sibugay, which he won in the elections, since it had ceased to have
jurisdiction over his case. Necessarily, Erasmos petitions (G.R. 192704 and G.R. 193566)
questioning the validity of the registration of Jalosjos as a voter and the COMELECs failure to
annul his proclamation also fail. The Court cannot usurp the power vested by the Constitution
solely on the HRET.
WHEREFORE, the Court GRANTS the petition in G.R. 192474, REVERSES and SETS
ASIDE the respondent Commission on Elections En Bancs order dated June 3,
2010, and REINSTATES the Commissions Second Division resolution dated February 23,
2010 in SPA 09-114(DC), entitled Dan Erasmo, Sr. v. Romeo Jalosjos Jr. Further, the Court
DISMISSES the petitions in G.R. 192704 and G.R. 193566 for lack of jurisdiction over the
issues they raise.
B. Disqualifications

ROLANDO DELA TORRE v. COMELEC AND MARCIAL VILLANUEVA

G.R. No. 121592, July 5, 1996, EN BANC (Francisco, J.)
Facts
The first assailed resolution declared Dela Torre disqualified from running for the
position of Mayor of Cavinti, Laguna in the last May 8,1995 elections, citing as the ground
therefor, Section 40(a) of Republic Act No. 7160 which stated 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. COMELEC held that Dela Torre was
found guilty by the MTC for violation of P.D. 1612, the Anti-fencing Law. Thus there exists legal
grounds to disqualify Dela Torre as candidate for Mayor of Cavinti, Laguna this coming
elections. Although there is dearth of jurisprudence involving violation of the Anti-Fencing Law of
1979, the nature of the certainly involves moral turpitude. The second assailed resolution denied
Dela Torres MR. In said motion, Dela Torre claimed that Section 40 (a) of the LGC does not
apply to his case inasmuch as the probation granted him by the MTC which suspended the

execution of the judgment of conviction and all other legal consequences flowing therefrom,
rendered inapplicable Section 40 (a) as well.
ISSUE:
Does the crime of fencing involve moral turpitude which disqualifies Dela Torre from
running as mayor?
HELD:
YES. As to what crime involves moral turpitude, is for the SC to determine. The Court is
guided by one of the general rules that crimes mala in se involve moral turpitude, while crimes
mala prohibita do not. The Court in this case shall nonetheless dispense with a review of the
facts and circumstances surrounding the commission of the crime, inasmuch as petitioner after
all does not assail his conviction. Petitioner has in effect admitted all the elements of the crime
of fencing. At any rate, the determination of whether or not fencing involves moral turpitude can
likewise be achieved by analyzing the elements alone.
Moral turpitude is deducible from the third element of fencing The accused knows or
should have known that the said article, item, object or anything of value has been derived from
the proceeds of the crime of robbery or theft. Actual knowledge by the "fence" of the fact that
property received is stolen displays the same degree of malicious deprivation of ones rightful
property as that which animated the robbery or theft which, by their very nature, are crimes of
moral turpitude. And although the participation of each felon in the unlawful taking differs in
point in time and in degree, both the "fence" and the actual perpetrator/s of the robbery or theft
invaded ones peaceful dominion for gain - thus deliberately reneging in the process "private
duties" they owe their "fellowmen" or "society" in a manner "contrary to x x x accepted and
customary rule of right and duty x x x, justice, honesty x x x or good morals."
Verily, circumstances normally exist to forewarn, for instance, a reasonably vigilant
buyer that the object of the sale may have been derived from the proceeds of robbery or theft.
Such circumstances include the time and place of the sale, both of which may not be in accord
with the usual practices of commerce. The nature and condition of the goods sold, and the fact
that the seller is not regularly engaged in the business of selling goods may likewise suggest the
illegality of their source, and therefore should caution the buyer. This justifies the presumption
found in Section 5 of P.D. No. 1612 that "mere possession of any goods, x x x, object or
anything of value which has been the subject of robbery or thievery shall be prima facie
evidence of fencing"- a presumption that is, according to the Court, "reasonable for no other
natural or logical inference can arise from the established fact of x x x possession of the
proceeds of the crime of robbery or theft." All told, the COMELEC did not err in disqualifying the
petitioner on the ground that the offense of fencing of which he had been previously convicted
by final judgment was one involving moral turpitude.
ERNESTO S. MERCADO v. EDUARDO BARRIOS MANZANO and COMELEC
FACTS
Petitioner Ernesto S. Mercado and private respondent Eduardo B. Manzano were
candidates for vice mayor of the City of Makati in the May 11, 1998 elections. The other
candidate was Gabriel V. Daza III. The results of the election show that Eduardo Manzano got
the highest count of votes, however his proclamation was suspended in view of a pending
petition for disqualification filed by a certain Ernesto Mamaril who alleged that private
respondent was not a citizen of the Philippines but of the United States.

In its resolution, dated May 7, 1998, the Second Division of the COMELEC granted the
petition of Mamaril and ordered the cancellation of the certificate of candidacy of private
respondent on the ground that he is a dual citizen 5 and, under 40(d) of the Local Government
Code, persons with dual citizenship are disqualified from running for any elective position.
COMELEC en banc, however, reversed its previous ruling and declared Manzano as
qualified to run. The pertinent portions of the resolution reads: As aforesaid, respondent
Eduardo Barrios Manzano was born in San Francisco, California, U.S.A. He acquired US
citizenship by operation of the United States Constitution and laws under the principle of jus soli.
He was also a natural born Filipino citizen by operation of the 1935 Philippine
Constitution, as his father and mother were Filipinos at the time of his birth. At the age of six
(6), his parents brought him to the Philippines using an American passport as travel
document. His parents also registered him as an alien with the Philippine Bureau of
Immigration. He was issued an alien certificate of registration. This, however, did not result in
the loss of his Philippine citizenship, as he did not renounce Philippine citizenship and did not
take an oath of allegiance to the United States.
It is an undisputed fact that when respondent attained the age of majority, he registered
himself as a voter, and voted in the elections of 1992, 1995 and 1998, which effectively
renounced his US citizenship under American law. Under Philippine law, he no longer had U.S.
citizenship.
ISSUE.
WON dual citizenship is a ground for disqualification.
HELD.
NO. Dual citizenship is different from dual allegiance. The former arises when, as
a result of the concurrent application of the different laws of two or more states, a person
is simultaneously considered a national by the said states. For instance, such a situation
may arise when a person whose parents are citizens of a state which adheres to the principle
of jus sanguinis is born in a state which follows the doctrine of jus soli. Such a person, ipso
facto and without any voluntary act on his part, is concurrently considered a citizen of both
states. Considering the citizenship clause (Art. IV) of our Constitution, it is possible for the
following classes of citizens of the Philippines to possess dual citizenship:
(1) Those born of Filipino fathers and/or mothers in foreign countries which follow the
principle of jus soli;
(2) Those born in the Philippines of Filipino mothers and alien fathers if by the laws of
their fathers country such children are citizens of that country;
(3) Those who marry aliens if by the laws of the latters country the former are
considered citizens, unless by their act or omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines may, without
performing any act, be also a citizen of another state; but the above cases are clearly possible
given the constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which a person
simultaneously owes, by some positive act, loyalty to two or more states. While dual
citizenship is involuntary, dual allegiance is the result of an individuals volition. With respect to
Respondent admitted that he is registered as a foreigner with the Bureau of Immigration under Alien Certificate of Registration No. B-31632 and
alleged that he is a Filipino citizen because he was born in 1955 of a Filipino father and a Filipino mother. He was born in the United States, San
Francisco, California, on September 14, 1955, and is considered an American citizen under US Laws. But notwithstanding his registration as an
American citizen, he did not lose his Filipino citizenship. Hence, the dual citizenship.
5

dual allegiance, Article IV, 5 of the Constitution provides: Dual allegiance of citizens is inimical
to the national interest and shall be dealt with by law.
Clearly, in including 5 in Article IV on citizenship, the concern of the Constitutional
Commission was not with dual citizens per se but with naturalized citizens who maintain their
allegiance to their countries of origin even after their naturalization. Hence, the phrase dual
citizenship in RA 7160, Sec.40(d) and in RA 7854, Sec.20 must be understood as referring to
dual allegiance.
Consequently, mere dual citizenship does not fall under this
disqualification. Unlike those with dual allegiance, who must be subject to strict process with
respect to the termination of their status, for candidates with dual citizenship, it should suffice if,
upon the filing of their CoC, they elect Philippine citizenship to terminate their status as persons
with dual citizenship considering that their condition is the unavoidable consequence of
conflicting laws of different states.
The COMELEC en bancs ruling was that Manzanos act of registering himself as a
voter was an effective renunciation of his American citizenship. This ruling is in line with
the US Immigration and Nationality Act wherein it is provided that a person who is a national of
the United States, whether by birth or naturalization, shall lose his nationality by: (e) Voting in a
political election in a foreign state or participating in an election or plebiscite to determine the
sovereignty over foreign territory. But this provision was declared unconstitutional by the US
Supreme Court. Nevertheless, our SC held that by filing a certificate of candidacy when he ran
for his present post, private respondent elected Philippine citizenshipand in effect renounced his
American citizenship.
CASAN MACODE MAQUILING, PETITIONER, VS. COMMISSION ON ELECTIONS,
ROMMEL ARNADO Y CAGOCO, LINOG G. BALUA, RESPONDENTS.
G.R. No. 195649, April 16, 2013, EN BANC, SERENO, C.J.
Facts
Respondent Arnado is a natural born Filipino citizen. However, as a consequence of his
subsequent naturalization as a citizen of the United States of America, he lost his Filipino
citizenship. Arnado applied for repatriation under Republic Act (R.A.) No. 9225 before the
Consulate General of the Philippines in San Franciso, USA and took the Oath of Allegiance to
the Republic of the Philippines on July 2008. On April 2009 Arnado again took his Oath of
Allegiance to the Republic and executed an Affidavit of Renunciation of his foreign citizenship.
On November 2009, Arnado filed his Certificate of Candidacy for Mayor of Kauswagan, Lanao
del Norte.
On April 2010, respondent Linog C. Balua (Balua), another mayoralty candidate, filed a
petition to disqualify Arnado and/or to cancel his certificate of candidacy for municipal mayor of
Kauswagan, Lanao del Norte in connection with the 10 May 2010 local and national elections.
Respondent Balua contended that Arnado is not a resident of Kauswagan, Lanao del Norte and
that he is a foreigner, attaching thereto a certification issued by the Bureau of Immigration dated
23 April 2010 indicating the nationality of Arnado as USA-American. However, the COMELEC
only ruled on Baluas petition after Arnado was already proclaimed as Mayor of Kauswagan.
Nevertheless, it ruled to disqualify Arnado as a candidate thus nullifying his proclamation as
mayor.
The COMELEC en banc on appeal6, ruled in favor of Arnado.
Issue

Petitioner Macquiling intervened in the case as he was the candidate with the second highest number of votes next to Arnado. He moves to disqualify
Arnado and declare him as the Mayor of Kauswagan. He was later on, declared as the Mayor of Kauswagan.
6

WON the use of a foreign passport after renouncing foreign citizenship affects ones
qualifications to run for public office.
Decision
Yes, such has the effect of undoing the renunciation of American citizenship making the
respondent a dual citizen. Rommel Arnado took all the necessary steps to qualify to run for a
public office. He took the Oath of Allegiance and renounced his foreign citizenship. There is no
question that after performing these twin requirements required under Section 5(2) of R.A. No.
9225 or the Citizenship Retention and Re-acquisition Act of 2003, he became eligible to run for
public office.
After reacquiring his Philippine citizenship, Arnado renounced his American citizenship
by executing an Affidavit of Renunciation, thus completing the requirements for eligibility to run
for public office. By renouncing his foreign citizenship, he was deemed to be solely a Filipino
citizen, regardless of the effect of such renunciation under the laws of the foreign country.
However, this legal presumption does not operate permanently and is open to attack when, after
renouncing the foreign citizenship, the citizen performs positive acts showing his continued
possession of a foreign citizenship. By using his foreign passport, Arnado positively and
voluntarily represented himself as an American7, in effect declaring before immigration
authorities of both countries that he is an American citizen, with all attendant rights and
privileges granted by the United States of America.
Arnados category of dual citizenship is that by which foreign citizenship is acquired
through a positive act of applying for naturalization. This is distinct from those considered dual
citizens by virtue of birth, who are not required by law to take the oath of renunciation as the
mere filing of the certificate of candidacy already carries with it an implied renunciation of foreign
citizenship. Dual citizens by naturalization, on the other hand, are required to take not only the
Oath of Allegiance to the Republic of the Philippines but also to personally renounce foreign
citizenship in order to qualify as a candidate for public office. By the time he filed his certificate
of candidacy on November 2009, Arnado was a dual citizen enjoying the rights and privileges of
Filipino and American citizenship. He was qualified to vote, but by the express disqualification
under Section 40(d) of the LGC, he was not qualified to run for a local elective position.
Qualifications for public office are continuing requirements and must be possessed not
only at the time of appointment or election or assumption of office but during the officer's entire
tenure. Once any of the required qualifications is lost, his title may be seasonably challenged.
--------------------------------Jacot v. Dal--------------------------ROSELLER DE GUZMAN, PETITIONER, VS. COMMISSION ON ELECTIONS AND
ANGELINA DG. DELA CRUZ, RESPONDENTS.
FACTS
Petitioner De Guzman and private respondent Dela Cruz were candidates for vice-mayor
of Guimba, Nueva Ecija in the May 14, 2007 elections. The latter filed against petitioner a
petition for disqualification alleging that petitioner is an immigrant and resident of the United
States of America.
The petitioner admitted that he was a naturalized American but has already applied for
dual citizenship under R.A. No. 9225 or the Citizenship Retention and Re-Acquisition Act of
2003. Upon approval, he took his oath of allegiance to the Republic of the Philippines on
September 6, 2006. He argued that, having re-acquired Philippine citizenship, he is now
qualified to run as vice-mayor of Guimba, Nueva Ecija. During the May 14, 2007 elections,
7

Note, though it undoes the effect the renunciation of American citizenship, it does not operate to renounce Filipino Citizenship.

private respondent won as vice-mayor. Petitioner filed an election protest on grounds of

irregularities and massive cheating to which the trial court decided in the formers favor,
declaring him the winner for the Vice-Mayoralty.
On the other hand, the COMELEC ruled against the petitioner in the petition for
disqualification filed against the latter as he should have renounced his American citizenship
before he can run for any public elective position. Thus, he is a dual citizen at the time he filed
his certificate of candidacy making him disqualified to run for the said elective position.
ISSUE
WON petitioner is disqualified from running for vice-mayor of Guimba, Nueva Ecija in the
May 14, 2007 elections for having failed to renounce his American citizenship in accordance
with R.A. No. 9225
RULING
YES. R.A. No. 9225 provides:
Section 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine
Citizenship under this Act shall enjoy full civil and political rights and be subject to all attendant
liabilities and responsibilities under existing laws of the Philippines and the following conditions:
x xx x
(2) Those seeking elective public office in the Philippines shall meet the qualifications for
holding such public office as required by the Constitution and existing laws and, at the
time of the filing of the certificate of candidacy, make a personal and sworn renunciation
of any and all foreign citizenship before any public officer authorized to administer an
oath.
Contrary to petitioner's claims, the filing of a certificate of candidacy does not ipso facto
amount to a renunciation of his foreign citizenship under R.A. No. 9225. Our rulings in the cases
of Frivaldo and Mercado are not applicable to the instant case because R.A. No. 9225 provides
for more requirements (passage of R.A. No. 9225 effectively abandoned the Court's rulings in
said cases).
In Jacot v. Dal and COMELEC, the Court ruled that a candidate's Oath and his Certificate
of Candidacy do not substantially comply with the requirement of a personal and sworn
renunciation of foreign citizenship. 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.
In the instant case, petitioner's Oath of Allegiance and Certificate of Candidacy did not
comply with Section 5(2) of R.A. No. 9225 which further requires those seeking elective public
office in the Philippines to make a personal and sworn renunciation of foreign citizenship.
Petitioner failed to renounce his American citizenship; as such, he is disqualified from running
for vice-mayor of Guimba, Nueva Ecija in the May 14, 2007 elections.
CIRILO R. VALLES v. COMELEC & ROSALIND YBASCO LOPEZ
G.R. No. 137000, 9 August 2000, EN BANC, (Purisima, J.)
Facts
Rosalind Ybasco Lopez was born on May 16, 1934 on Napier Terrace, Broome, Western
Australia. Her parents are Telesforo Ybasco, a Filipino citizen, and Theresa Marquez, an

Australian. At the age of 15, she came to settle to PH. She was married to Leopoldo Lopez, a
Filipino citizen.
She served as Provincial Board Member of the Sangguniang Panlalawigan of Davao
Oriental. In 1992, she ran for governor of the province and won. Her elections was contested
when Gil Taojo, Jr. filed a petition for quo warranto alleging that she is an Australian Citizen.
The COMELEC dismissed it. She experienced the same upon her re-election in 1995 when
Francisco Rabat filed the same petition on the same ground. The COMELEC, likewise,
dismissed it.
On her bid for re-election in the 1998 elections, Cirilo Valles filed a petition for
disqualification alleging that she is an Australian citizen. The COMELEC dismissed it. Hence,
this petition.
ISSUE:
Is Rosalind Ybasco Lopez a natural-born Filipino citizen?
RULING:
YES, because his father was a Filipino to which the PH follows the jus sanguinis
principle and that she had renounced her Australian citizenship as reflected in his COC and
Affidavit of Renunciation.
The Philippine law on citizenship adheres to the principle of jus sanguinis. Thereunder, a
child follows the nationality or citizenship of the parents regardless of the place of his/her birth,
as opposed to the doctrine of jus soli which determines nationality or citizenship on the basis of
place of birth.
Under both organic acts, all inhabitants of the Philippines who were Spanish subjects on
April 11, 1899 and resided therein including their children are deemed to be Philippine citizens.
Private respondents father, Telesforo Ybasco, was born on January 5, 1879 in Daet,
Camarines Norte, a fact duly evidenced by a certified true copy of an entry in the Registry of
Births. Thus, under the Philippine Bill of 1902 and the Jones Law, Telesforo Ybasco was
deemed to be a Philippine citizen. By virtue of the same laws, which were the laws in force at
the time of her birth, Telesforos daughter, herein private respondent Rosalind Ybasco Lopez, is
likewise a citizen of the Philippines.
The signing into law of the 1935 Philippine Constitution has established the principle of
jus sanguinis as basis for the acquisition of Philippine citizenship.
So also, the principle of jus sanguinis, which confers citizenship by virtue of blood
relationship, was subsequently retained under the 1973 and 1987 Constitutions. Thus, the
herein private respondent, Rosalind Ybasco Lopez, is a Filipino citizen, having been born to a
Filipino father. The fact of her being born in Australia is not tantamount to her losing her
Philippine citizenship. If Australia follows the principle of jus soli, then at most, private
respondent can also claim Australian citizenship resulting to her possession of dual citizenship.
In order that citizenship may be lost by renunciation, such renunciation must be express.
Petitioners contention that the application of private respondent for an alien certificate of
registration, and her Australian passport, is bereft of merit.
The mere fact that private respondent Rosalind Ybasco Lopez was a holder of an
Australian passport and had an alien certificate of registration are not acts constituting an
effective renunciation of citizenship and do not militate against her claim of Filipino citizenship.
For renunciation to effectively result in the loss of citizenship, the same must be express [A]n
application for an alien certificate of registration does not amount to an express renunciation or
repudiation of ones citizenship.

Moreover, under Commonwealth Act 63, the fact that a child of Filipino parent/s was
born in another country has not been included as a ground for losing ones Philippine
citizenship. Since private respondent did not lose or renounce her Philippine citizenship,
petitioners claim that respondent must go through the process of repatriation does not hold
water.
In the aforecited case of Mercado vs. Manzano, the Court clarified dual citizenship as
used in the Local Government Code and reconciled the same with Article IV, Section 5 of the
1987 Constitution on dual allegiance. Recognizing situations in which a Filipino citizen may,
without performing any act, and as an involuntary consequence of the conflicting laws of
different countries, be also a citizen of another state, the Court explained that dual citizenship as
a disqualification must refer to citizens with dual allegiance.
Thus, the fact that the private respondent had dual citizenship did not automatically
disqualify her from running for a public office. Furthermore, it was ruled that for candidates with
dual citizenship, it is enough that they elect Philippine citizenship upon the filing of their
certificate of candidacy, to terminate their status as persons with dual citizenship. The filing of a
certificate of candidacy sufficed to renounce foreign citizenship, effectively removing any
disqualification as a dual citizen. This is so because in the certificate of candidacy, one declares
that he/she is a Filipino citizen and that he/she will support and defend the Constitution of the
Philippines and will maintain true faith and allegiance thereto. Such declaration, which is under
oath, operates as an effective renunciation of foreign citizenship.
It is significant to note that on January 15 1992, private respondent executed a
Declaration of Renunciation of Australian Citizenship, duly registered in the Department of
Immigration and Ethnic Affairs of Australia on May 12, 1992. And, as a result, on February 11,
1992, the Australian passport of private respondent was cancelled, as certified to by Second
Secretary Richard F. Munro of the Embassy of Australia in Manila. As aptly appreciated by the
COMELEC, the aforesaid acts were enough to settle the issue of the alleged dual citizenship of
Rosalind Ybasco Lopez. Since her renunciation was effective, petitioners claim that private
respondent must go through the whole process of repatriation holds no water.
In order that the doctrine of res judicata may be applied in cases of citizenship, the
following must be present:
1)
A persons citizenship be raised as a material issue in a controversy where said person
is a party;
2)
The Solicitor General or his authorized representative took active part in the resolution
thereof, and
3)

The finding on citizenship is affirmed by this Court.

TEODULO M. COQUILLA, petitioner, vs. THE HON. COMMISSION ON ELECTIONS and

MR. NEIL M. ALVAREZ, respondents.
Facts:
Petitioner Coquilla was born on February 17, 1938 of Filipino parents in Oras, Eastern
Samar. He grew up and resided there until 1965, when he joined the United States Navy. He
was subsequently naturalized as a U.S. citizen.[2] From 1970 to 1973, petitioner thrice visited the
Philippines while on leave from the U.S. Navy. [3] Otherwise, even after his retirement from the
U.S. Navy in 1985, he remained in the United States.
On October 15, 1998, petitioner came to the Philippines and took out a residence
certificate, although he continued making several trips to the United States, the last of which
took place on July 6, 2000 and lasted until August 5, 2000. [4] Subsequently, petitioner applied

for repatriation under R.A. No. 8171 [5] to the Special Committee on Naturalization. His
application was approved on November 7, 2000, and, on November 10, 2000, he took his oath
as a citizen of the Philippines. Petitioner was issued Certificate of Repatriation No. 000737 on
November 10, 2000 and Bureau of Immigration Identification Certificate No. 115123 on
November 13, 2000.
On November 21, 2000, petitioner applied for registration as a voter of Butnga, Oras,
Eastern Samar. His application was approved by the Election Registration Board on January 12,
2001.[6] On February 27, 2001, he filed his certificate of candidacy stating therein that he had
been a resident of Oras, Eastern Samar for two (2) years. [7]
The COMELEC was unable to render judgment on the case before the elections on May
14, 2001. Meanwhile, petitioner was voted for and received the highest number of votes (6,131)
against private respondents 5,752 votes, or a margin of 379 votes. On May 17, 2001, petitioner
was proclaimed mayor of Oras by the Municipal Board of Canvassers. [8] He subsequently took
his oath of office.
Issue:
Whether petitioner had been a resident of Oras, Eastern Samar at least one (1) year
before the elections held on May 14, 2001 as he represented in his certificate of candidacy?
Held:
No. First, 39(a) of the Local Government Code (R.A No. 7160) provides:
Qualifications. - (a) An elective local official must be a citizen of the Philippines; a registered
voter in the barangay, municipality, city, or province or, in the case of a member of the
sangguniang panlalawigan, sangguniang panlungsod, or sangguniang bayan, the district where
he intends to be elected; a resident therein for at least one (1) year immediately preceding the
day of the election; and able to read and write Filipino or any other local language or dialect.
(Emphasis added)
The term residence is to be understood not in its common acceptation as referring to
dwelling or habitation,[21] but rather to domicile or legal residence,[22] that is, the place
where a party actually or constructively has his permanent home, where he, no matter where he
may be found at any given time, eventually intends to return and remain (animus
manendi).[23] A domicile of origin is acquired by every person at birth. It is usually the place
where the childs parents reside and continues until the same is abandoned by acquisition of
new domicile (domicile of choice). [24]
In the case at bar, petitioner lost his domicile of origin in Oras by becoming a U.S. citizen
after enlisting in the U.S. Navy in 1965. From then on and until November 10, 2000, when he
reacquired Philippine citizenship, petitioner was an alien without any right to reside in the
Philippines save as our immigration laws may have allowed him to stay as a visitor or as a
resident alien.
PRISCILA R. JUSTIMBASTE, PETITIONER, VS. COMMISSION ON ELECTIONS AND
RUSTICO B. BALDERIAN, RESPONDENTS.
Facts
Petitioner filed with the Office of the Leyte Provincial Election Supervisor a petition to
disqualify private respondent as a candidate for mayor of Tabontabon, Leyte during the May 14,
2007 elections.
Petitioner asserts that private respondent committed material misrepresentation when he
stated in his certificate of candidacy that he is a Filipino citizen and that his name is Rustico
Besa Balderian, instead of Chu Teck Siao. Further, petitioner asserts that the immigration

records of private respondent who frequently went to the United States from 1998 up to 2006
reflected the acronyms "BB" and "RP" which petitioner takes to STAND FOR "Balikbayan" and
"Re-entry Permit," thus showing that private respondent either harbors dual citizenship or is a
permanent resident of a foreign country in contravention of Section 40 of the LGC:
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 of 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. (Emphasis in the original and supplied)

Upon the other hand, private respondent insists on his Filipino citizenship.
Issue:
Whether or not Balderian should be disqualified as a candidate for mayor due to his
citizenship?
Held:
No. Republic Act 6768 provides that a balikbayan is
1. A Filipino citizen who has been continuously out of the Philippines for a period of at least
one year;
2. A Filipino overseas worker; or
3. A former Filipino citizen and his or her family, who had been naturalized in a foreign
country and comes or returns to the Philippines.
Re-entry permits are, under the Philippine Immigration Act, issued to lawful resident aliens who
depart temporarily from the Philippines.
The record of the case yields no concrete proof to show that private respondent, who
holds a Philippine passport, falls under the third category of a balikbayan (former Filipino
citizen).
Private respondent's Certificate of Live Birth, the entry on the date, as well as the place
of marriage of private respondents' parents, reads "no data available." In his brother's
Certificate of Live Birth, the entry on the same desired information is left blank. In light of these,
absent any proof that private respondent's parents Peter Siao and Zosima Balderian contracted
marriage, private respondent is presumed to be illegitimate, hence, he follows the citizenship of
his mother who is a Filipino.
In fine, petitioner has not shown that public respondent, in issuing the assailed
Resolution, committed grave abuse of discretion amounting to lack or excess of jurisdiction.
WHEREFORE, the petition was DISMISSED.

EMILIANA TORAL KARE, petitioner, vs. COMMISSION ON ELECTIONS, respondent.

G.R. No. 157526. April 28, 2004
FACTS:
Petitioner Moll and Private Respondent Ceriola were candidates for mayor of the
Municipality of Malinao, Albay, during the elections of May 14, 2001. Moll obtained the highest
number of votes cast for the position while Ceriola came in second. Kare was elected vice
mayor in the same election.
On May 18, 2001, Ceriola filed a Petition to Confirm the Disqualification and/or
Ineligibility of Dindo K. Moll to Run for Any Elective Position. The Petition alleged that the latter
had been sentenced by final judgment to suffer the penalty of six (6) months of arresto mayor to
one (1) year and nine (9) months of prision correccional, for the crime of usurpation of authority
or official functions.
In its May 28, 2001 Resolution, the Comelec First Division dismissed the Petition.
Ceriola filed his Motion for Reconsideration with the Comelec en banc which, on August 31,
2001, set aside the said Resolution. It thereafter directed the clerk of the Comelec to remand
the Petition to the provincial election supervisor of Albay for hearing and reception of evidence.
The Comelec ruled that the trial courts final judgment of conviction of Moll disqualified him from
filing his certificate of candidacy and continued to disqualify him from holding office.
Accordingly, the votes cast in his favor were stray or invalid votes, and Ceriola -- the candidate
who had obtained the second highest number of votes -- was adjudged the winner.
ISSUES:
1. Should Moll be disqualified from running and/or holding the position of mayor?
2. If the first issue is answered in the affirmative, who should become the mayor -Ceriola, the second placer in the mayoral election? Or Kare, the elected vice
mayor?
RULING:
1. YES. Moll argues that he cannot be disqualified from running for mayor, since his
judgement of conviction -- the basis of his disqualification -- has allegedly not yet attained
finality. The period for appeal is interrupted by the filing of either a motion for reconsideration or
a motion for a new trial. Moll makes it appear that his filing of a motion for reconsideration
should have stayed the running of the period for filing an appeal. What he did file, however,
was a Motion to Quash the Information; and when it was denied, he filed a Motion for
Reconsideration of the denial.
The Rules of Court mandates that an appeal should be filed within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from. It necessarily
follows that this period is interrupted only by the filing of a motion for reconsideration of
the judgment or of the final order being appealed.
Neither Molls Motion to Quash Information nor his Motion for Reconsideration was
directed at the judgment of conviction. Rather, they both attacked a matter extraneous to the
judgment. Hence, they cannot affect the period of appeal granted by the Rules of Court in
relation to the conviction.
Indubitably, since no appeal of the conviction was seasonably filed by Moll, the judgment
against him has become final. Thus, the Comelec en banc correctly ruled that he was
disqualified from running for mayor, under Section 40(a) of the Local Government Code (RA No.
7160), which provides:

Section 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;
Moll was sentenced to suffer the penalty of six (6) months of arresto mayor to one (1)
year and nine (9) months of prision correccional, a penalty that clearly disqualified him from
running for any elective local position.
2. In every election, the choice of the people is the paramount consideration, and their
expressed will must at all times be given effect. When the majority speaks by giving a
candidate the highest number of votes in the election for an office, no one else can be declared
elected in place of the former. In a long line of cases, this Court has definitively ruled that
the Comelec cannot proclaim as winner the candidate who obtained the second highest
number of votes, should the winning candidate be declared ineligible or disqualified.
When the electorate voted for him as mayor, they were under the belief that he was
qualified. Thus, on the part of those who voted for him, their votes are presumed to have been
cast with a sincere belief that he was a qualified candidate. Thus, their votes cannot be treated
as stray, void, or meaningless.
In Aquino v. Comelec, we said:
x x x To simplistically assume that the second placer would have received the
other votes would be to substitute our judgment for the mind of the voter. The second
placer is just that, a second placer. He lost the elections. He was repudiated by either a
majority or plurality of voters. He could not be considered the first among qualified
candidates because in a field which excludes the disqualified candidate, the conditions
would have substantially changed. We are not prepared to extrapolate the results under
such circumstances.
The law on succession under Section 44 of Republic Act 7160, otherwise known as the
Local Government Code, would then apply. This provision relevantly states:
SECTION 44.
Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice Mayor.
(a) If a permanent vacancy occurs in the office of the governor or mayor, the vicegovernor or vice-mayor concerned shall become the governor or mayor. If a permanent
vacancy occurs in the offices of the governor, vice governor, mayor, or vice-mayor, the
highest ranking sanggunian member or, in case of his permanent inability, the second
highest ranking sanggunian member, shall become governor, vice-governor, mayor or
vice-mayor, as the case may be. Subsequent vacancies in the said office shall be filled
automatically by the other sanggunian members according to their ranking as defined
herein.
Accordingly, when Moll was adjudged to be disqualified, a permanent vacancy was
created for failure of the elected mayor to qualify for the office. In such eventuality, the duly
elected vice mayor shall succeed as provided by law.
SERGIO G. AMORA, JR. v. COMMISSION ON ELECTIONS AND ARNIELO S. OLANDRIA
G.R. No. 192280, January 25, 2011, EN BANC, (NACHURA, J.)
Facts

On December 1, 2009, petitioner Sergio G. Amora, Jr. (Amora) filed his Certificate of
Candidacy (COC) for Mayor of Candijay, Bohol. Respondent Arnielo S. Olandria (Olandria) was
one of the candidates for councilor of the NPC in the same municipality. He filed before the
COMELEC a Petition for Disqualification against Amora. Olandria alleged that Amora's COC
was not properly sworn contrary to the requirements of the Omnibus Election Code (OEC) and
the 2004 Rules on Notarial Practice. Olandria pointed out that, in executing his COC, Amora
merely presented his Community Tax Certificate (CTC) to the notary public, Atty. Oriculo
Granada (Atty. Granada), instead of presenting competent evidence of his identity. Second
Division of the COMELEC granted the petition and disqualified Amora. The COMELEC en banc
denied Amoras MR but he was proclaimed the winner as the mayor of Candijay.
ISSUE:
Did the Comelec err in disqualifying Amora for presenting only a CTC before the notary
public?
HELD:
YES, In this case, it was grave abuse of discretion to uphold Olandria's claim that an
improperly sworn COC is equivalent to possession of a ground for disqualification. Not by any
stretch of the imagination can we infer this as an additional ground for disqualification from the
specific wording of the OEC in Section 68, which reads:
SEC. 68. Disqualifications. - Any candidate who, in an action or protest in which he is
party is declared by final decision of a competent court guilty of, or found by the Commission of
having: (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to
enhance his candidacy; (c) spent in his election campaign an amount in excess of that allowed
by this Code; (d) solicited, received or made any contribution prohibited under Sections 89, 95,
96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86, and 261, paragraphs d, e, k, v,
and cc, sub-paragraph 6, shall be disqualified from continuing as a candidate, or if he has been
elected, from holding the office. Any person who is a permanent resident of or an immigrant to a
foreign country shall not be qualified to run for any elective office under this Code, unless said
person has waived his status as a permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the elections laws.
and of Section 40 of the LGC, which provides:
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 nonpolitical 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.
It is quite obvious that the Olandria petition is not based on any of the grounds for
disqualification as enumerated in the foregoing statutory provisions. Nowhere therein does it
specify that a defective notarization is a ground for the disqualification of a candidate.

Yet, the COMELEC would uphold that petition upon the outlandish claim that it is a petition to
disqualify a candidate "for lack of qualifications or possessing some grounds for
disqualification."
A petition for disqualification relates to the declaration of a candidate as ineligible or
lacking in quality or accomplishment fit for the position of mayor. The distinction between a
petition for disqualification and the formal requirement in Section 73 of the OEC that a COC be
under oath is not simply a question of semantics as the statutes list the grounds for the
disqualification of a candidate.
Recently, we have had occasion to distinguish the various petitions for disqualification
and clarify the grounds therefor as provided in the OEC and the LGC. We declared, thus:
To emphasize, a petition for disqualification on the one hand, can be premised on
Section 12 or 68 of the OEC, or Section 40 of the LGC. On the other hand, a petition to deny
due course to or cancel a CoC can only be grounded on a statement of a material
representation in the said certificate that is false. The petitions also have different effects. While
a person who is disqualified under Section 68 is merely prohibited to continue as a candidate,
the person whose certificate is cancelled or denied due course under Section 78 is not treated
as a candidate at all, as if he/she never filed a CoC. Thus, in Miranda v. Abaya, this Court made
the distinction that a candidate who is disqualified under Section 68 can validly be substituted
under Section 77 of the OEC because he/she remains a candidate until disqualified; but a
person whose CoC has been denied due course or cancelled under Section 78 cannot be
substituted because he/she is never considered a candidate.
Our ruling herein does not do away with the formal requirement that a COC be sworn. In
fact, we emphasize that the filing of a COC is mandatory and must comply with the
requirements set forth by law.
Section 2 of the 2004 Rules on Notarial Practice lists the act to which an affirmation or oath
refers:
Sec. 2. Affirmation or Oath. -- The term "Affirmation" or "Oath" refers to an act in which an
individual on a single occasion:
(a) appears in person before the notary public;
(b) is personally known to the notary public or identified by the notary public through competent
evidence of identity as defined by these Rules; and
(c) avows under penalty of law to the whole truth of the contents of the instrument or document.
In this case, however, contrary to the declarations of the COMELEC, Amora complied
with the requirement of a sworn COC. He readily explained that he and Atty. Granada
personally knew each other; they were not just colleagues at the League of Municipal
Mayors, Bohol Chapter, but they consider each other as distant relatives. Thus, the
alleged defect in the oath was not proven by Olandria since the presentation of a CTC turned
out to be sufficient in this instance. On the whole, the COMELEC should not have brushed aside
the affidavit of Atty. Granada and remained inflexible in the face of Amora's victory and
proclamation as Mayor of Candijay, Bohol.
WHEREFORE, the petition is GRANTED.

PEOPLE OF THE PHILS. v. SANDIGANBAYAN AND ALEJANDRO VILLAPANDO

G.R. No. 164185, July 23, 2008, SECOND DIVISION (Quisumbing, J.)
Facts
During the May 11, 1998 elections, Villapando ran for Municipal Mayor of San Vicente,
Palawan. Orlando M. Tiape, a relative of Villapando's wife, ran for Municipal Mayor of Kitcharao,
Agusan del Norte. Villapando won while Tiape lost. Villapando designated Tiape as Municipal
Administrator of the Municipality of San Vicente. A Contract of Consultancy was executed
between the Municipality of San Vicente and Tiape whereby the former employed the services
of Tiape as Municipal Administrative and Development Planning Consultant in the Office of the
Municipal Mayor for a period of 6 months. Solomon Maagad and Renato Fernandez charged
Villapando and Tiape for violation of Article 244 of the RPC8 wherein they alleged that Tiape
lacks the qualification as he is a losing mayoralty candidate, hence is ineligible for appointment
to a public office within 1 year from the date of the elections, to the damage and prejudice of the
government and of public interest.
The law that provides for the legal qualification for the position of municipal administrator
is Section 480, Article X of the LGC.9 It is noteworthy to mention that the prosecution did not
allege much less prove that Tiape lacked any of the qualifications imposed by law on the
position of Municipal Administrator. Prosecution's argument rested on the assertion that since
Tiape lost in the May 11, 1998 election, he necessarily lacked the required legal qualifications. It
bears stressing that temporary prohibition is not synonymous with absence or lack of legal
qualification. A person who possessed the required legal qualifications for a position may be
temporarily disqualified for appointment to a public position by reason of the one year prohibition
imposed on losing candidates. Upon the other hand, one may not be temporarily disqualified for
appointment, but could not be appointed as he lacked any or all of the required legal
qualifications imposed by law.
ISSUE:
Did Sandiganbayan, Fourth Division, acted with grave abuse of discretion amounting to
lack or excess of jurisdiction because its interpretation of Article 244 of the RPC does not
complement the provision on the 1 year prohibition found in the Constitution and the LGC?
HELD:
YES. Villapando's contention and the Sandiganbayan, Fourth Division's interpretation of
the term legal disqualification lack cogency. Article 244 of the Revised Penal Code cannot be
circumscribed lexically. Legal disqualification cannot be read as excluding temporary
disqualification in order to exempt therefrom the legal prohibitions under Section 6, Article IX of
the 1987 Constitution and Section 94(b) of the Local Government Code of 1991.
Sandiganbayan, in disregarding basic rules of statutory construction, acted with grave
abuse of discretion. Its interpretation of the term legal disqualification in Article 244 of the
Revised Penal Code defies legal cogency. Legal disqualification cannot be read as excluding
temporary disqualification in order to exempt therefrom the legal prohibitions under the 1987
Constitution and the LGC. We reiterate the legal maxim ubi lex non distinguit nec nos
distinguere debemus. Basic is the rule in statutory construction that where the law does not

Unlawful appointments.-Any public officer who shall knowingly nominate or appoint to any public office any person lacking the legal qualifications
therefor, shall suffer the penalty of arresto mayor and a fine not exceeding 1,000 pesos.
9 No person shall be appointed administrator unless he is a citizen of the Philippines, a resident of the LGU concerned, of goo d moral character, a
holder of a college degree preferably in public administration, law, or any other related course from a recognized college or university, and a first grade
civil service eligible or its equivalent. He must have acquired experience in management and administration work for at least 5 years in the case of the
provincial or city administrator, and 3 years in the case of the municipal administrator.
8

distinguish, the courts should not distinguish. There should be no distinction in the application of
a law where none is indicated.
C. Term of Office

BORJA v. COMELEC
FACTS.
Private respondent Jose T. Capco, Jr. was elected vice-mayor of Pateros on January 18,
1988 for a term ending in June 30, 1992. On September 2, 1989, he became mayor, by
operation of law, upon the death of the incumbent, Cesar Borja. For the next two succeeding
elections in 1992 and 1995, he was again re-elected as Mayor. On March 27, 1998, private
respondent Capco filed a certificate of candidacy for mayor of Pateros relative to the May 11,
1998 elections.
Petitioner Benjamin U. Borja, Jr., who was also a candidate for mayor, sought Capcos
disqualification on the theory that the latter would have already served as mayor for three
consecutive terms by June 30, 1998 and would therefore be ineligible to serve for another term
after that.
The Second Division of the Commission on Elections ruled in favor of petitioner and
declared private respondent Capco disqualified from running for re-election as mayor of Pateros
but in the motion for reconsideration, majority overturned the original decision.
ISSUE.
WON Capco has served for three consecutive terms as Mayor.
HELD.
NO. Article X, Sec. 8 of the Constitution provides that x x x the term of office of elective
local officials x x x shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
This provision is restated in par. 43(b) of the Local Government Code (R.A. No. 71)
which states that x x x no local elective official shall serve for more than three (3) consecutive
terms in the same position. Voluntary renunciation of the office for any length of time shall not
be considered as an interruption in the continuity of service for the full term for which the
elective official concerned was elected x x x
The term served must therefore be one for which [the official concerned] was
elected. The purpose of this provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. Conversely, if he is not serving a term for which
he was elected because he is simply continuing the service of the official he succeeds, such
official cannot be considered to have fully served the term not withstanding his voluntary
renunciation of office prior to its expiration.
The term limit for elective local officials must be taken to refer to the right to be elected
as well as the right to serve in the same elective position. Consequently, it is not enough that
an individual has served three consecutive terms in an elective local office, he must also have
been elected to the same position for the same number of times before the disqualification can
apply.

ROMEO LONZANIDA v. COMELEC & EUFEMIO MULI

G.R. No. 135150, 28 July 1999, EN BANC, (Gonzaga-Reyes, J.)
Facts
Romeo Lonzanida was duly elected and served two consecutive terms as municipal
mayor of San Antonio, Zambales prior to the May 8, 1995 elections. In the May 1995 elections,
Lonzanida ran for mayor of San Antonio, Zambales and was again proclaimed winner. He
assumed office and discharged the duties thereof. His proclamation in 1995 was contested by
his then opponent Juan Alvez who filed an election protest before the RTC, which declared a
failure of elections and that the office of the mayor was declared vacant. Upon appeal to the
COMELEC, the COMELEC, after a revision and re-appreciation of the contested ballots,
declared Alvez the duly elected mayor of San Antonio, Zambales.
In the May 11, 1998 elections Lonzanida again filed CoC for mayor of San Antonio. His
opponent Eufemio Muli timely filed a petition to disqualify Lonzanida from running for mayor of
San Antonio in the 1998 elections on the ground that he had served three consecutive terms in
the same post. COMELEC granted the petition for disqualification.
ISSUE:
May Lonzanidas assumption of office as mayor of San Antonio Zambales from May
1995-March 1998 be considered as service of one full term for the purpose of applying the
three-term limit for elective local government officials?
RULING:
NO. The scope of the constitutional provision barring elective officials with the exception
of barangay officials from serving more than three consecutive terms was discussed at length in
the case of Benjamin Borja, Jr., vs. COMELEC and Jose Capco, Jr. where the issue raised was
whether a vice-mayor who succeeds to the office of the mayor by operation of law upon the
death of the incumbent mayor and served the remainder of the term should be considered to
have served a term in that office for the purpose of computing the three term limit. The Court
pointed out that from the discussions of the Constitutional Convention it is evident that the
delegates proceeded from the premise that the officials assumption of office is by reason of
election.
Not only historical examination but textual analysis as well supports the ruling of the
COMELEC that Art X, section 8 contemplates service by local officials for three consecutive
terms as a result of election. The first sentence speaks of the term of office of elective local
officials and bars such officials from serving for more than three consecutive terms. The
second sentence, in explaining when an elective official may be deemed to have served his full
term of office, states that voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected. The term served must therefore be one for which the the official concerned was
elected. The purpose of the provision is to prevent a circumvention of the limitation on the
number of terms an elective official may serve. This Court held that two conditions for the
application of the disqualification must concur: 1) that the official concerned has been
elected for three consecutive terms in the same local government post and 2) that he has
fully served three consecutive terms.
The two requisites for the application of the three term rule are absent. First, Lonzanida
cannot be considered as having been duly elected to the post in the May 1995 elections, and
second, the petitioner did not fully serve the 1995-1998 mayoral term by reason of involuntary
relinquishment of office. After a reappreciation and revision of the contested ballots the
COMELEC itself declared by final judgment that petitioner Lonzanida lost in the May 1995

mayoral elections and his previous proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been by reason of a valid election but
by reason of a void proclamation. It has been repeatedly held by this court that a
proclamation subsequently declared void is no proclamation at all and while a proclaimed
candidate may assume office on the strength of the proclamation of the Board of Canvassers he
is only a presumptive winner who assumes office subject to the final outcome of the election
protest. Lonzanida did not serve a term as mayor of San Antonio, Zambales from May 1995 to
March 1998 because he was not duly elected to the post; he merely assumed office as
presumptive winner, which presumption was later overturned by the COMELEC when it decided
with finality that Lonzanida lost in the May 1995 mayoral elections.
Second, Lonzanida cannot be deemed to have served the May 1995 to 1998 term
because he was ordered to vacate his post before the expiration of the term. The second
sentence of the constitutional provision under scrutiny states, Voluntary renunciation of office
for any length of time shall not be considered as an interruption in the continuity of service for
the full term for which he was elected. The clear intent of the framers of the constitution to bar
any attempt to circumvent the three-term limit by a voluntary renunciation of office and at the
same time respect the peoples 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. Lonzanida 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, Lonzanida did not fully serve the 1995-1998
mayoral term.
CORRELATING WITH:
ROMEO LONZANIDA v. PEOPLE
G.R. No. 160243-52, 20 July 2009, FIRST DIVISION, (Leonardo-De Castro, J.)
Facts
The complaints alleged that Lonzanida, as Municipal Mayor of San Antonio, Zambales,
notarized 13 Affidavits of Ownership of parcels of 117-hectare public land, particularly described
as Lot No. 5504. The Affidavits of Ownership appeared to have been executed by Edzel L.
Lonzanida, Leo Lonzanida, Japhet Lonzanida, Peter John Madarang, Leo Madarang, Dolores
Joy Madarang, Elsie de Dios, Medardo Domingo, Pedro Lacorte, Efren Tayag, Cedric Legrama,
Charlie Lacap and Raphael Gonzales (Edzel Lonzanida, et al.). The purported affiants either
denied executing and signing the same or were the minor children of petitioner and of
Madarang. All of this alleged happened during Lonzanidas 1995-1998 mayoral term and before
nullification by the COMELEC.
Thus, ten (10) Informations for Falsification of Public Document against Lonzanida were
filed before the Sandiganbayan. The Sandiganbayan (Fourth Division) convicted Lonzanida of
10 counts of Falsification. 2003, The Sandiganbayan en banc convicted Lonzanida of the
crimes charged. In so ruling, the Sandiganbayan belittled the recantation of the three
prosecution witnesses.
ISSUE:
Is Lonzanida guilty of the charges?
RULING:

YES. Lonzanida is a public officer who has taken advantage of his position to commit the
felonious acts charged against him, i.e. knowingly subscribing or signing the oath as
administering officer the affidavits mentioned in the informations under false circumstances.
Lonzanidas acts of signing the oaths as administering officer in the said affidavits were clearly
in abuse of the powers of his office for hisauthority to do so was granted to him by law as
municipal mayor and only in matters of official business.
As alleged in the Informations and proven during the trial of the cases, Lonzanida was
exercising his authority to administer oath as a municipal mayor when he committed the acts
complained of.
In Lumancas v. Intas, the Court held that in the falsification of public or official
documents, whether by public officials or by private persons, it is unnecessary that there
be present the idea of gain or the intent to injure a third person, for the reason that, in
contradistinction to private documents, the principal thing punished is the violation of the public
faith and the destruction of the truth as therein solemnly proclaimed.
All told, the Court finds no reason to disagree with the Sandiganbayans judgment of
conviction. With the overwhelming evidence presented by the prosecution and applying Sec. 5,
Rule 133 of the Revised Rules of Court, there are more than enough bases to sustain the
findings of the Sandiganbayan that herein petitioner is guilty beyond reasonable doubt of ten
(10) counts of Falsification under Article 171, particularly paragraph 2, causing it to appear that
persons have participated in an act or proceeding when in fact and in truth, they did not
participate in the act or proceeding. and paragraph 4, making untruthful statements in a
narration of facts.
Aratea v. Comelec
Facts:
Romeo D. Lonzanida (Lonzanida) and Estela D. Antipolo (Antipolo)were candidates for
Mayor of San Antonio, Zambales in the May 2010National and Local Elections. Lonzanida filed
his certificate of candidacy on 1 December 2009.4 On 8 December 2009, Dra. Sigrid S.
Rodolfo(Rodolfo) filed a petition under Section 78 of the Omnibus Election Code to disqualify
Lonzanida and to deny due course or to cancel Lonzanidas certificate of candidacy on the
ground that Lonzanida was elected, and had served, as mayor of San Antonio, Zambales for
four (4) consecutive terms immediately prior to the term for the May 2010 elections. Rodolfo
asserted that Lonzanida made a false material representation in his certificate of candidacy
when Lonzanida certified under oath that he was eligible for the office he sought election.
Lonzanidas motion for reconsideration before the COMELEC En Banc remained
pending during the May 2010 elections. Lonzanida and Efren Racel Aratea (Aratea) garnered
the highest number of votes and were respectively proclaimed Mayor and Vice-Mayor.
Aratea assumed the position of Mayor, but Antipolo (garnering the second highest vote
next to Lozanida) asserted that he should be the one to be proclaimed as Mayor.
Issue:
Who, between Aratea and Antipolo, is the rightful occupant to the Office of the Mayor?
Held:
Antipolo is the rightful occupant. We hold that Antipolo, the alleged second placer,
should be proclaimed Mayor because Lonzanidas certificate of candidacy was void ab initio. In
short, Lonzanida was never a candidate at all. All votes for Lonzanida were stray votes. Thus,
Antipolo, the only qualified candidate,actually garnered the highest number of votes for the
position of Mayor.

Sec. 12. Disqualification. Any person who has been declared bycompetent authority insane
or incompetent, or has been sentenced byfinal judgment for subversion, insurrection, rebellion
or for any offensefor which he was sentenced to a penalty of more than eighteen monthsor for a
crime involving moral turpitude, shall be disqualified to be acandidate and to hold any office,
unless he has been given plenary pardonor granted amnesty.
The conviction of Lonzanida by final judgment, with the penalty ofprisin mayor,
disqualifies him perpetually from holding any publicoffice, or from being elected to any public
office. This perpetualdisqualification took effect upon the finality of the judgment ofconviction,
before Lonzanida filed his certificate of candidacy.
FEDERICO T. MONTEBON AND ELEANOR M. ONDOY, PETITIONERS, VS. COMMISSION
ON ELECTION AND SESINANDO F. POTENCIOSO, JR., RESPONDENTS.
Facts
Petitioners Montebon and Ondy and respondent Potencioso, Jr. were candidates for
municipal councilor of the Municipality of Tuburan, Cebu for the May 14, 2007 Synchronized
National and Local Elections. On April 30, 2007, petitioners and other candidates for municipal
councilor filed a petition for disqualification against respondent with the COMELEC alleging that
respondent had been elected and served three consecutive terms as municipal councilor in
1998-2001, 2001-2004, and 2004-2007. Thus, he is proscribed from running for the same
position in the 2007 elections as it would be his fourth consecutive term.
In his answer, respondent admitted that he had been elected for three consecutive terms
as municipal councilor. However, he claimed that the service of his second term in 2001-2004
was interrupted on January 12, 2004 when he succeeded as vice mayor of Tuburan due to the
retirement of Vice Mayor Petronilo L. Mendoza. Consequently, he is not disqualified from vying
for the position of municipal councilor in the 2007 elections.
Petitioners maintained that respondent's assumption of office as vice-mayor in January
2004 should not be considered an interruption in the service of his second term since it was a
voluntary renunciation of his office as municipal councilor. They argued that, according to the
law, voluntary renunciation of the office for any length of time shall not be considered an
interruption in the continuity of service for the full term for which the official concerned was
elected.
On the other hand, respondent alleged that a local elective official is not disqualified from
running for the fourth consecutive time to the same office if there was an interruption in one of
the previous three terms.
Issue:
Whether respondent's assumption of office as vice-mayor in January 2004 interrupted
his 2001-2004 term as municipal councilor?
Held:
NO. The 1987 Constitution bars and disqualifies local elective officials from serving more
than three consecutive terms in the same post. Section 8, Article X thereof states:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law shall be three years and no such officials shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 of the Local Government Code also provides:

Sec. 43. Term of Office.

(b) No local elective official shall serve for more than three consecutive terms in the same
position. Voluntary renunciation of the office for any length of time shall not be considered as
an interruption in the continuity of service for the full term for which the elective official
concerned was elected.
In this case, a permanent vacancy occurred in the office of the vice mayor due to the
retirement of Vice Mayor Mendoza. Respondent, being the highest ranking municipal councilor,
succeeded him in accordance with law. It is clear therefore that his assumption of office as
vice-mayor can in no way be considered a voluntary renunciation of his office as municipal
councilor.
In Lonzanida v. Commission on Elections, the Court explained the concept of voluntary
renunciation as follows:
The second sentence of the constitutional provision under scrutiny states, `Voluntary
renunciation of office for any length of time shall not be considered as an interruption in the
continuity of service for the full term for which he was elected.' The clear intent of the framers of
the constitution to bar any attempt to circumvent the three-term limit by a voluntary renunciation
of office and at the same time respect the people's choice and grant their elected official full
service of a term is evident in this provision. Voluntary renunciation of a term does not cancel
the renounced term in the computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service.
Thus, respondent's assumption of office as vice-mayor in January 2004 was an
involuntary severance from his office as municipal councilor, resulting in an interruption in the
service of his 2001-2004 term. It cannot be deemed to have been by reason of voluntary
renunciation because it was by operation of law. We quote with approval the ruling of the
COMELEC that The legal successor is not given any option under the law on whether to accept the
vacated post or not. Section 44 of the Local Government Code makes no exception. Only if the
highest-ranking councilor is permanently unable to succeed to the post does the law speak of
alternate succession. Under no circumstances can simple refusal of the official concerned be
considered as permanent inability within the contemplation of law. Essentially therefore, the
successor cannot refuse to assume the office that he is mandated to occupy by virtue of
succession. He can only do so if for some reason he is permanently unable to succeed and
occupy the post vacated.
Thus, succession by law to a vacated government office is characteristically not
voluntary since it involves the performance of a public duty by a government official, the nonperformance of which exposes said official to possible administrative and criminal charges of
dereliction of duty and neglect in the performance of public functions. It is therefore more
compulsory and obligatory rather than voluntary.
Petition was Dismissed.
ROBERTO L. DIZON, Petitioner, vs COMMISSION ON ELECTIONS and MARINO P.
MORALES, Respondents.
G.R. No. 182088, January 30, 2009
FACTS:
Roberto L. Dizon, a resident and taxpayer of Mabalacat, Pampanga, filed a case with the
COMELEC to disqualify Marino P. Morales, the incumbent mayor of Mabalacat on the ground

that the latter was elected and had fully served three previous consecutive terms in violation of
Section 43 of the Local Government Code. Dizon alleged that Morales was municipal mayor in
1995, 1998, 2001 and 2004, thus, Morales should not have been allowed to have filed his
Certificate of Candidacy on March 2007 for the same position and same municipality.
COMELEC Second Division ruled in favor of Morales and denied the petition. It took
judicial notice of SCs ruling in the Rivera case promulgated on May 9, 2007 where it was held
that Morales was elected as mayor of Mabalacat in 1995, 1998 and 2001 (notwithstanding the
RTC Decision in an electoral protest case that the then proclamation of Morales was void). The
SC ruled in that case that Morales violated the three-term limit under Section 43 of the LGC.
Hence, Respondents certificate of candidacy for the May 2004 Synchronized National and
Local Elections was cancelled pursuant to the aforementioned Supreme Court decision which
was promulgated on May 9, 2007. As a result, respondent was not only disqualified but was
also not considered a candidate in the May 2004 elections.
The vice-mayor elect then took his oath and has assumed office as mayor of Mabalacat
on May 17, 2007 until the term ended on June 30, 2007. For failure to serve for the full term,
such involuntary interruption in his term of office should be considered a gap which renders the
three-term limit inapplicable.
Dizon filed a motion for reconsideration before the COMELEC En Banc. COMELEC En
Banc: affirmed. The three-term limit is not applicable here for: 1) Morales was not the duly-elected mayor of Mabalacat for the July 1, 2004 to June 30, 2007 term primordially because he
was not even considered a candidate thereat; and 2) Morales has failed to serve the entire
duration of the term of office because he has already relinquished the disputed office on May
16, 2007 which is more than a month prior to the end of his supposed term.
ISSUES: 1. WON the period served by Morales in the 2004-2007 term (although he was
ousted from his office as Mayor on May16, 2007) should be considered his fourth
term.
2. WON the 2007-2010 term of Morales is his 5th term.
RULING:
1. NO. In our decision promulgated on 9 May 2007, this Court unseated Morales during his
fourth term. We cancelled his Certificate of Candidacy dated 30 December 2003. This
cancellation disqualified Morales from being a candidate in the May 2004 elections. The votes
cast for Morales were considered stray votes.
There should be a concurrence of two conditions for the application of the
disqualification: (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.
In the Rivera case, we found that Morales was elected as mayor of Mabalacat for four
consecutive terms: 1 July 1995 to 30 June 1998, 1 July 1998 to 30 June 2001, 1 July 2001 to 30
June 2004, and 1 July 2004 to 30 June 2007. We disqualified Morales from his candidacy in the
May 2004 elections because of the three-term limit. Although the trial court previously ruled that
Morales proclamation for the 1998-2001 term was void, there was no interruption of the
continuity of Morales service with respect to the 1998-2001 term because the trial courts ruling
was promulgated only on 4 July 2001, or after the expiry of the 1998-2001 term.

Our ruling in the Rivera case served as Morales involuntary severance from office with
respect to the 2004-2007 term. 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. Our decision in
the Rivera case was promulgated on 9 May 2007 and was effective immediately. The next day,
Morales notified the vice mayors office of our decision. The vice mayor assumed the office of
the mayor from 17 May 2007 up to 30 June 2007. The assumption by the vice mayor of the
office of the mayor, no matter how short it may seem to Dizon, interrupted Morales continuity of
service. Thus, Morales did not hold office for the full term of 1 July 2004 to 30 June 2007.
2. NO. Morales occupied the position of mayor of Mabalacat for the following periods:
1 July 1995 to 30 June 1998
1 July 1998 to 30 June 2001
1 July 2001 to 30 June 2004, and
1 July 2004 to 16 May 2007.
However, because of his disqualification, Morales was not the duly elected mayor for the
2004-2007 term. Neither did Morales hold the position of mayor of Mabalacat for the full term.
Morales cannot be deemed to have served the full term of 2004-2007 because he was ordered
to vacate his post before the expiration of the term. Morales occupancy of the position of mayor
of Mabalacat from 1 July 2004 to 16 May 2007 cannot be counted as a term for purposes of
computing the three-term limit. Indeed, the period from 17 May 2007 to 30 June 2007 served as
a gap for purposes of the three-term limit rule. Thus, the present 1 July 2007 to 30 June 2010
term is effectively Morales first term for purposes of the three-term limit rule.
NICASIO BOLOS, JR., PETITIONER, VS. THE COMMISSION ON ELECTIONS AND REY
ANGELES CINCONIEGUE, RESPONDENTS.
G.R. No. 184082, March 17, 2009, EN BANC, PERALTA, J.
Facts
Petitioner has been elected for 3 consecutive terms as Punong Barangay of Biking,
Dauis, Bohol in 1994, 1997, and in 2002. In 2004, while sitting as the incumbent Punong
Barangay of Barangay Biking, petitioner ran for Municipal Councilor of Dauis, Bohol and won.
He assumed office as Municipal Councilor on July 1, 2004, leaving his post as Punong
Barangay. He served as a member of the Sangguniang Bayan until 2007, thereafter he filed his
COC for Punong barangay for Biking in Oct. 29, 2007 Barangay elections.
Respondent Rey Angeles Cinconiegue, the incumbent Punong Barangay and candidate
for the same office, filed before the COMELEC a petition for the disqualification of petitioner as
candidate on the ground that he had already served the three-term limit. Hence, petitioner is no
longer allowed to run for the same position in accordance with Section 8, Article X of the
Constitution and Section 43 (b) of R.A. No. 7160. He contends that petitioner's relinquishment of
the position of Punong Barangay in July 2004 was voluntary on his part, as it could be
presumed that it was his personal decision to run as municipal councilor in the May 14, 2004
National and Local Elections. On the other hand, petitioner countered that in the May 14, 2004
National and Local Elections, he ran and won as Municipal Councilor of Dauis, Bohol. By reason
of his assumption of office as Sangguniang Bayan member, his remaining term of office as
Punong Barangay, which would have ended in 2007, was left unserved.
The COMELEC ruled in favor Cinconiegue hence, this petition.
Issue

WON assumption and discharge of the functions as a counselor by petitioner is

considered voluntary, effectively disqualifying him to run as Punong Barangay due to the
three term limit.
Decision
The court answered in the affirmative. As held in David v. COMELEC, the Constitution
did not expressly prohibit Congress from fixing any term of office for barangay officials, thereby
leaving to lawmakers full discretion to fix such term in accordance with the exigencies of public
service. Thus as provided in section 43(b) of the Local Government Code10 barangay officials
are covered by the three-term limit as imposed by congress.
In Socrates v. Commission on Elections, the court held that the rule on the three-term
limit, embodied in the Constitution and the Local Government Code, has two parts: The first part
provides that an elective local official cannot serve for more than three consecutive terms. The
clear intent is that only consecutive terms count in determining the three-term limit rule. The
second part states that voluntary renunciation of office for any length of time does not interrupt
the continuity of service. 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.
As conceded even by him, petitioner had already completed two consecutive terms of
office when he ran for a third term in the Barangay Elections of 2002. When he filed his
certificate of candidacy for the Office of Sangguniang Bayan of Dauis, Bohol, in the May 10,
2004, he was not deemed resigned. Nonetheless, all the acts attending his pursuit of his
election as municipal councilor point out to an intent and readiness to give up his post as
Punong Barangay once elected to the higher elective office, for it was very unlikely that
respondent had filed his Certificate of Candidacy for the Sangguniang Bayan post, campaigned
and exhorted the municipal electorate to vote for him as such and then after being elected and
proclaimed, return to his former position. He knew that his election as municipal councilor
would entail abandonment of the position he held, and he intended to forego of it.
Abandonment, like resignation, is voluntary.
The situation is different if an official simply succeeded an empty seat for he assumed
such position by operation of law which is involuntary; such however is not the case herein.
Petition denied. Assailed resolution affirmed.
RAYMUNDO M. ADORMEO, petitioner, vs. COMMISSION ON ELECTIONS and RAMON Y.
TALAGA, JR., respondents.
FACTS
Adormeo and Talaga, Jr. filed their certificates of candidacy for mayor of Lucena City for
the 2001 elections. Talaga, Jr. was then the incumbent mayor. He was elected mayor in 1992
and was again re-elected in 1995-1998. In the election of 1998, he lost to Tagarao. In the recall
election of May 12, 2000, he again won and served the unexpired term of the latter until 2001.
Adormeo filed a Petition to Cancel Certificate of Candidacy and/or Disqualification of Talaga, Jr.,
on the ground that the latter was elected and had served as city mayor for 3 consecutive terms.
Talaga, Jr. responded that he was not elected City Mayor for 3 consecutive terms but only for 2
consecutive terms since he was defeated in the 1998 election, interrupting the consecutiveness
of his years as mayor.
COMELEC First Division found Talaga, Jr. disqualified for the
position of city mayor. He filed a MR and COMELEC en banc ruled in his favor and held that
(b) No local elective official shall serve for more than three (3) consecutive terms in the same position. Voluntary renuncia tion of the office for any
length of time shall not be considered as an interruption in the continuity of service for the full term for which the elective official conce rned was
elected.
10

respondent was not elected for three (3) consecutive terms because he did not win in the 1998
elections and that his victory in the recall elections was not considered a term of office and is
not included in the 3-term disqualification rule. After canvassing, Talaga, Jr. was proclaimed as
the duly elected Mayor of Lucena City.
ISSUE
WON private respondent, as provided by the Constitution, had already served three
consecutive terms in the said office
RULING
NO.
The issue before us was already addressed in Borja, Jr. vs. COMELEC, where we held:
To recapitulate, the term limit for elective local officials must be taken to refer to the right to be
elected as well as the right to serve in the same elective position. Consequently, it is not
enough that an individual has served three consecutive terms in an elective local office,
he must also have been elected to the same position for the same number of times
before the disqualification can apply. This point can be made clearer by considering the
following case or situation:
xxx
Case No. 2. Suppose B is elected mayor and, during his first term, he is twice suspended for
misconduct for a total of 1 year. If he is twice reelected after that, can he run for one more term
in the next election?
Yes, because he has served only two full terms successively.
xxx
To consider C as eligible for reelection would be in accord with the understanding of the
Constitutional Commission that while the people should be protected from the evils that a
monopoly of political power may bring about, care should be taken that their freedom of choice
is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, we said:
This Court held that the two conditions for the application of the disqualification must
concur: a) that the official concerned has been elected for three consecutive terms in the
same local government post and 2) that he has fully served three consecutive terms.
Accordingly, COMELECs ruling that private respondent was not elected for three (3)
consecutive terms should be upheld. For nearly two years he was a private citizen. The
continuity of his mayorship was disrupted by his defeat in the 1998 elections.
Petition denied.
*Petitioner contended that in allowing respondent to run violates Article X, Section 8 of 1987
Constitution. To bolster his case, respondent adverts to the comment of Fr. Joaquin Bernas that
if one is elected representative to serve the unexpired term of another, that unexpired, no
matter how short, will be considered one term for the purpose of computing the number of
successive terms allowed. But as correctly pointed out by the COMELEC en banc, Fr. Bernas
comment is pertinent only to members of the House of Representatives. Unlike local
government officials, there is no recall election provided for members of Congress.
ARSENIO A. LATASA v. COMMISSION ON ELECTIONS, AND ROMEO SUNGA
G.R. No. 154829, December 10, 2003, EN BANC, (AZCUNA, J.)
Facts

Petitioner Arsenio A. Latasa, was elected mayor of the Municipality of Digos, Davao del
Sur in the elections of 1992, 1995, and 1998. During petitioner's third term, the Municipality of
Digos was declared a component city, to be known as the City of Digos. A plebiscite was
conducted or the Charter of the City of Digos. This event also marked the end of petitioner's
tenure as mayor of the Municipality of Digos. However, under Section 53, Article IX of the
Charter, petitioner was mandated to serve in a hold-over capacity as mayor of the new City of
Digos. Hence, he took his oath as the city mayor.On February 28, 2001, petitioner filed his
certificate of candidacy for city mayor for the May 14, 2001 elections. He stated therein that he
is eligible therefor, and likewise disclosed that he had already served for three consecutive
terms as mayor of the Municipality of Digos and is now running for the first time for the position
of city mayor.
Romeo M. Sunga, also a candidate for city mayor in the said elections, filed before the
COMELEC a Petition to Deny Due Course, Cancel Certificate of Candidacy and/ or For
Disqualification against petitioner Latasa. COMELEC's First Division held that Latasas
Certificate of Candidacy should be cancelled for being a violation of the three (3)-term rule.
Latasa filed an MR but was not acted upon, he was proclaimed winner in the said elections.
ISSUE:
Is Latasa eligible to run as candidate for the position of mayor of the newly-created City
of Digos immediately after he served for three consecutive terms as mayor of the Municipality of
Digos?
HELD:
NO. As a rule, in a representative democracy, the people should be allowed freely to
choose those who will govern them. Article X, Section 8 of the Constitution is an exception to
this rule, in that it limits the range of choice of the people.
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.
An elective local official, therefore, is not barred from running again in for same local
government post, unless two conditions concur: 1.) that the official concerned has been elected
for three consecutive terms to the same local government post, and 2.) that he has fully served
three consecutive terms.
True, the new city acquired a new corporate existence separate and distinct from that of
the municipality. This does not mean, however, that for the purpose of applying the subject
Constitutional provision, the office of the municipal mayor would now be construed as a different
local government post as that of the office of the city mayor. As stated earlier, the territorial
jurisdiction of the City of Digos is the same as that of the municipality. Consequently, the
inhabitants of the municipality are the same as those in the city. These inhabitants are the
same group of voters who elected petitioner Latasa to be their municipal mayor for three
consecutive terms. These are also the same inhabitants over whom he held power and
authority as their chief executive for nine years.
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.
SIMON ALDOVINO, JR., et al. v. COMELEC & WILFREDO ASILO
G.R. No. 184836, December 23, 2009, EN BANC (Brion, J.)
Facts
Asilo was elected councilor of Lucena City for 3 consecutive terms. During his 3 rd term of
office, the Sandiganbayan preventively suspended him for 90 days in relation with a criminal
case he then faced. This Court, however, subsequently lifted theSandiganbayan's suspension
order; hence, he resumed performing the functions of his office and finished his term. In the next
election, Asilo filed his certificate of candidacy (CoC) for the same position. The petitioners
sought to deny due course to Asilo's CoC or to cancel it on the ground that he had been elected
and had served for 3 terms. The COMELEC's 2 nd Division ruled in Asilo's favor and reasoned
out that the 3 term limit rule did not apply, as Asilo failed to render complete service for his 3 rd
term because of the suspension.
ISSUE:
Is Asilos preventive suspension an interruption of his term of office for purposes of the
three-term limit rule?
HELD:
NO. 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 3 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.
To allow a preventively suspended elective official to run for a 4 th 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.
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.
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.
To recapitulate, Asilo's 2004-2007 term was not interrupted by the Sandiganbayanimposed preventive suspension in 2005, as preventive suspension does not interrupt an elective
official's term. Thus, the COMELEC refused to apply the legal command of Section 8, Article X
of the Constitution when it granted due course to Asilo's CoC for a prohibited 4 th term. By so
refusing, the COMELEC effectively committed grave abuse of discretion amounting to lack or
excess of jurisdiction; its action was a refusal to perform a positive duty required by no less than
the Constitution and was one undertaken outside the contemplation of law.
ABUNDO, SR. v. COMELEC
Facts
For four (4) successive regular elections, namely, the 2001, 2004, 2007 and 2010
national and local elections, Petitioner Abelardo Abundo, Sr. (Abundo) vied for the position of
municipal mayor. In both the 2001 and 2007 runs, he emerged and was proclaimed as the
winning mayoralty candidate and accordingly served the corresponding terms as mayor. In the
2004 elections, however, the municipal board of canvassers initially proclaimed as winner one
Jose Torres (Torres), who, in due time, performed the functions of the office of mayor. Abundo
protested Torres election and proclamation. Abundo was eventually declared the winner of the
2004 mayoralty electoral contest, paving the way for his assumption of office starting May 9,
2006 until the end of the 2004-2007 term on June 30, 2007, or for a period of a little over one
year and one month. Then came the May 10, 2010 elections where Abundo and Torres again
opposed each other. When Abundo filed his certificate of candidacy for the mayoralty seat
relative to this electoral contest, Torres sought the formers disqualification to run.
The RTC declared Abundo as ineligible, under the three-term limit rule, to run in the
2010 elections for the position of, and necessarily to sit as, mayor. In its Resolution, the
COMELEC Second Division affirmed the decision of RTC, which was also affirmed by
COMELEC en banc.
ISSUE.

WON the service of a term less than the full three years by an elected official arising
from his being declared as the duly elected official upon an election protest is considered as full
service of the term for purposes of the application of the three consecutive term limit for elective
local officials.
HELD.
NO. The consecutiveness of what otherwise would have been Abundos three
successive, continuous mayorship was effectively broken during the 2004-2007 term 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.
To constitute a disqualification to run for an elective local office pursuant to the
aforequoted constitutional and statutory provisions, the following requisites must concur:
(1) that the official concerned has been elected for three consecutive terms in the same local
government post; and
(2) that he has fully served three consecutive terms.
As stressed in Socrates v. Commission on Elections, the principle behind the three-term
limit rule covers only consecutive terms and that what the Constitution prohibits is a consecutive
fourth term. Put a bit differently, an elective local official cannot, following his third consecutive
term, seek immediate reelection for a fourth term, albeit he is allowed to seek a fresh term for
the same position after the election where he could have sought his fourth term but prevented to
do so by reason of the prohibition.
There has, in fine, to be a break or interruption in the successive terms of the official
after his or her third term. An interruption usually occurs when the official does not seek a fourth
term, immediately following the third. Of course, the basic law is unequivocal that a voluntary
renunciation of the office for any length of time shall NOT be considered an interruption in the
continuity of service for the full term for which the elective official concerned was elected. This
qualification was made as a deterrent against an elective local official intending to skirt the
three-term limit rule by merely resigning before his or her third term ends. This is a voluntary
interruption as distinguished from involuntary interruption which may be brought about by
certain events or causes.
xxx
Involuntary interruption is claimed to result from any of these events or causes: succession or
assumption of office by operation of law, preventive suspension, declaration of the defeated
candidate as the winner in an election contest, declaration of the proclaimed candidate as the
losing party in an election contest, proclamation of a non-candidate as the winner in a recall
election, removal of the official by operation of law, and other analogous causes.
The Court finds Abundos case meritorious and declares that the two-year period during
which his opponent, Torres, was serving as mayor should be considered as an interruption,
which effectively removed Abundos case from the ambit of the three-term limit rule.
In the present case, during the period of one year and ten months, or from June 30,
2004 until May 8, 2006, Abundo cannot plausibly claim, even if he wanted to, that he could hold
office of the mayor as a matter of right. Neither can he assert title to the same nor serve the
functions of the said elective office. The reason is simple: during that period, title to hold such
office and the corresponding right to assume the functions thereof still belonged to his
opponent, as proclaimed election winner. Accordingly, Abundo actually held the office and
exercised the functions as mayor only upon his declaration, following the resolution of the
protest, as duly elected candidate in the May 2004 elections or for only a little over one year and

one month. Consequently, since the legally contemplated full term for local elected officials is
three (3) years, it cannot be said that Abundo fully served the term 2004-2007. The reality on
the ground is that Abundo actually served less.
Needless to stress, the almost two-year period during which Abundos opponent
actually served as Mayor is and ought to be considered an involuntary interruption of
Abundos continuity of service. An involuntary interrupted term, cannot, in the context of the
disqualification rule, be considered as one term for purposes of counting the three-term
threshold.

D. Vacancies and Succession

JAIME T. PANIS v. CIVIL SERVICE COMMISSION & BELLA V. VELOSO

G.R. No. 102948, 2 Febuuary 1994, EN BANC, (Quiason, J.)
Facts
Panis was employed as Administrative Officer of the Hospital, while Veloso was
Administrative Officer of the City Health Department detailed at the said hospital Cebu City
Medical Center (CCMC), formerly known as the Cebu City Hospital.
The Mayor of Cebu City appointed Veloso to the position of Assistant Chief of Hospital
for Administration of CCMC. Panis, a candidate for the said position, promptly protested the
appointment before the Regional Office of the CSC. The CSC Regional Office indorsed the
matter to the Office of the City Mayor, which in turn referred it to the Office of the City Attorney.
In a decision dated July 26, 1988, the City Attorney, with the approval of the City Mayor,
dismissed Panis protest and upheld the appointment of private respondent. This dismissal was
affirmed by the CSC Regional Office and later on appeal, by CSC. Hence, the present petition.
ISSUE:
Was the appointment of Veloso made in violation of law, existing civil service rules and
established jurisprudence because:
(1) the position of Assistant Chief of Hospital for Administration was not legally created;
(2) assuming that it was, there was no qualification standard nor valid screening
procedure; and
(3) the seniority and next-in-rank rules were disregarded?
RULING:
NO. Ordinance No. 1216, passed by the Cebu City Sangguniang Panglunsod on June
17, 1986, amended the charter of the Cebu City Hospital for the purpose of correcting the
deficiencies and improving the performance of said institution. The hospital's name was
changed to CCMC, and the departments and offices therein were reorganized. The Office of
Hospital Administrator was created and granted such powers as were deemed in line with the
objectives of the Ordinance.
The City Mayor withdrew Veloso's appointment. The title of Hospital Administrator was
later found to be a misnomer and thus was properly classified by the Joint Commission on Local
Government Personnel Administration as one of Assistant Chief of Hospital for Administration.
This classification was subsequently approved by the Department of Budget Management.

The position of Assistant Chief of Hospital for Administration is the very same position of
Hospital Administrator created by Ordinance No. 1216. The Office of Hospital Administrator was
not extinguished, but the designation thereof merely corrected to reflect the proper classification
of the position under existing rules. The Office of Assistant Chief of Hospital for Administration
therefore was created and existed in accordance with law.
As a result of the reclassification, candidates to the position, among whom were Panis
and Veloso, were notified by the Personnel Selection Board. Petitioner however never
appeared before the Board. Neither did he appear, despite due notice, at the final selection
process. The determination, however, who among the qualified candidates should be preferred
belongs to the appointing authority. The Mayor of Cebu City, in the instant case, chose to
appoint Veloso.
The "next in rank" rule specifically applies only in cases of promotion. The instant
controversy, however, involves a new office and a position created in the course of a valid
reorganization. Under the law, a vacancy not filled by promotion may be filled by transfer of
present employees in the government service, by reinstatement, by reemployment of those
separated from the service, and appointment of outsiders who have appropriate civil service
eligibility, but not necessarily in this order.
In other words, one who is "next in rank" to a vacancy is given preferential
consideration for promotion to the vacant position, but it does not necessarily follow that
he alone and no one else can be appointed. There is no vested right granted the next in rank
nor a ministerial duty imposed on the appointing authority to promote the holder to the vacant
position. An appointment, whether to a vacancy or to a newly created position, is
essentially within the discretionary power of whomsoever it is vested. Once a candidate
possesses the minimum qualities required by law, sufficient discretion, if not plenary, is granted
to the appointing authority. After all, the appointing authority is the officer primarily
responsible for the administration of the office, and is likewise in the best position to
determine who among the qualified candidates can efficiently discharge the functions of
the position. Indeed, whom to appoint among those qualified is an administrative
question involving considerations of wisdom for the best interest of the service which only the
administrative question involving considerations of wisdom for the best interest of the service
which only the appointing authority can decide.
LEYTE ACTING VICE-GOVERNOR AURELIO D. MENZON, petitioner,
vs.
LEYTE ACTING GOVERNOR, LEOPOLDO E. PETILLA in his capacity as Chief Executive
of the Province of Leyte and Head of SANGGUNIANG PANLALAWIGAN and Leyte
Provincial Treasurer FLORENCIO LUNA,respondents.
G.R. No. 90762 May 20, 1991
Facts:
On February 16, 1988, by virtue of the fact that no Governor had been proclaimed in the
province of Leyte, the Secretary of Local Government Luis Santos designated the ViceGovernor, Leopoldo E. Petilla as Acting Governor of Leyte.
On March 25, 1988 the petitioner Aurelio D. Menzon, a senior member of the
Sangguniang Panlalawigan was also designated by Secretary Luis Santos to act as the ViceGovernor for the province of Leyte.
On May 29, 1989, the Provincial Administrator, Tente U. Quintero inquired from the
Undersecretary of the Department of Local Government, Jacinto T. Rubillar, Jr., as to the
legality of the appointment of the petitioner to act as the Vice-Governor of Leyte.

The Sangguniang Panlalawigan, in a special session held on July 7, 1989, issued

Resolution No. 505 where it held invalid the appointment of the petitioner as acting ViceGovernor of Leyte.
Issue:
1) Whether or not there was a vacancy?
2) Whether or not the Secretary of Local Government has the authority to make temporary
appointments?
Held:
Yes. The law on Public Officers is clear on the matter. There is no vacancy whenever the office
is occupied by a legally qualified incumbent. A sensu contrario, there is a vacancy when there is
no person lawfully authorized to assume and exercise at present the duties of the office.
(see Stocking v. State, 7 Ind. 326, cited in Mechem. A Treatise on the Law on Public Offices
and Officers, at p. 61)
Applying the definition of vacancy to this case, it can be readily seen that the office of the
Vice-Governor was left vacant when the duly elected Vice-Governor Leopoldo Petilla was
appointed Acting Governor. In the eyes of the law, the office to which he was elected was left
barren of a legally qualified person to exercise the duties of the office of the Vice-Governor.
Yes.
The Local Government Code is silent on the mode of succession in the event of
a temporary vacancy in the Office of the Vice-Governor. However, the silence of the law must
not be understood to convey that a remedy in law is wanting.
The circumstances of the case reveal that there is indeed a necessity for the
appointment of an acting Vice-Governor. For about two years after the governatorial elections,
there had been no de jure permanent Governor for the province of Leyte, Governor Adelina
Larrazabal, at that time, had not yet been proclaimed due to a pending election case before the
Commission on Elections.
Under the circumstances of this case and considering the silence of the Local
Government Code, the Court rules that, in order to obviate the dilemma resulting from an
interregnum created by the vacancy, the President, acting through her alter ego, the Secretary
of Local Government, may remedy the situation. We declare valid the temporary appointment
extended to the petitioner to act as the Vice-Governor. The exigencies of public service
demanded nothing less than the immediate appointment of an acting Vice-Governor.
A vacancy creates an anomalous situation and finds no approbation under the law for it
deprives the constituents of their right of representation and governance in their own local
government.
In a republican form of government, the majority rules through their chosen few, and if
one of them is incapacitated or absent, etc., the management of governmental affairs to that
extent, may be hampered. Necessarily, there will be a consequent delay in the delivery of basic
services to the people of Leyte if the Governor or the Vice-Governor is missing.
SANGGUNIANG BAYAN OF SAN ANDRES, CATANDUANES vs. COURT OF APPEALS and
AUGUSTO T. ANTONIO
Facts
Private Respondent Augusto T. Antonio was elected barangay captain of Sapang Palay,
San Andres, Catanduanes in March 1989. He was later elected president of the Association of
Barangay Councils (ABC) for the Municipality of San Andres, Catanduanes. In that capacity and

pursuant to the Local Government Code of 1983, he was appointed by the President as
member of the Sangguniang Bayan of the Municipality of San Andres.
Meanwhile, then Secretary Luis T. Santos of the Department of Interior and Local
Government (DILG) declared the election for the president of the Federation of the Association
of Barangay Councils (FABC) of the same province, in which private respondent was a voting
member, void for want of a quorum. Hence, a reorganization of the provincial council became
necessary. Conformably, the DILG secretary designated private respondent as a temporary
member of the Sangguniang Panlalawigan of the Province of Catanduanes, effective June 15,
1990.
In view of his designation, private respondent resigned as a member of the Sangguniang
Bayan. He tendered his resignation to Mayor Lydia T. Romano of San Andres, Catanduanes,
with copies furnished to the provincial governor, the DILG and the municipal treasurer. Pursuant
to Section 50 of the 1983 Local Government Code (B.P. Blg. 337), Nenito F. Aquino, then vice
president of the ABC, was subsequently appointed by the provincial governor as member of the
Sangguniang Bayan in place of private respondent. Aquino assumed office after taking his oath.
Subsequently, the ruling of DILG Secretary Santos annulling the election of the FABC
president was reversed by the Supreme Court in Taule vs. Santos. In the same case, the
appointment of Private Respondent Antonio as sectoral representative to the Sangguniang
Panlalawigan was declared void, because he did not possess the basic qualification that he
should be president of the federation of barangay councils. This ruling of the Court became final
and executory on December 9, 1991.
On March 31, 1992, private respondent wrote to the members of the Sangguniang
Bayan of San Andres, advising them of his re-assumption of his "original position, duties and
responsibilities as sectoral representative" therein. In response thereto, the Sanggunian issued
Resolution No. 6, Series of 1992, declaring that Antonio had no legal basis to resume office as a
member of the Sangguniang Bayan.
Issue:
Whether or not respondent's resignation as ex-officio member of Petitioner Sangguniang Bayan
ng San Andres, Catanduanes is deemed complete so as to terminate his official relation
thereto?
Held: No.
In Ortiz vs. COMELEC, defined Resignation as the "act of giving up or the act of an
officer by which he declines his office and renounces the further right to use it. It is an
expression of the incumbent in some form, express or implied, of the intention to surrender,
renounce, and relinquish the office and the acceptance by competent and lawful authority." To
constitute a complete and operative resignation from public office, there must be: (a) an
intention to relinquish a part of the term; (b) an act of relinquishment; and (c) an acceptance by
the proper authority. The last one is required by reason of Article 238 of the Revised Penal
Code.
The records are bereft of any evidence that private respondent's resignation was
accepted by the proper authority. From the time that he was elected as punong barangay up to
the time he resigned as a member of Sangguniang Bayan, the governing law was B.P. 337 or
the Local Government Code of 1983. While said law was silent as to who specifically should
accept the resignation of an appointive member of the Sangguniang Bayan, Sec. 6 of Rule XIX
of its implementing rules states that the "[r]esignation of sanggunian members shall be acted
upon by the sanggunian concerned, and a copy of the action taken shall be furnished the official

responsible for appointing a replacement and the Ministry of Local Government. The position
shall be deemed vacated only upon acceptance of the resignation."
It is not disputed that private respondent's resignation letter was addressed only to the
municipal mayor of San Andres, Catanduanes. It is indicated thereon that copies were furnished
the provincial governor, the municipal treasurer and the DILG. Neither the mayor nor the officers
who had been furnished copies of said letter expressly acted on it.
Section 146 of B.P. Blg. 337 states:
Sec. 146. Composition. (1) The sangguniang bayan shall be the legislative body of
the municipality and shall be composed of the municipal mayor, who shall be the
presiding officer, the vice-mayor, who shall be the presiding officer pro tempore, eight
members elected at large, and the members appointed by the President consisting of
the resident of the katipunang bayan and the president of the kabataang barangay
municipal federation. . . .
Under established jurisprudence, resignations, in the absence of statutory provisions as
to whom they should be submitted, should be tendered to the appointing person or body.
Private respondent, therefore, should have submitted his letter of resignation to the President or
to his alter ego, the DILG secretary. Although he supposedly furnished the latter a copy of his
letter, there is no showing that it was duly received, much less, that it was acted upon. The third
requisite being absent, there was therefore no valid and complete resignation.
ROMEO J. GAMBOA, JR., PETITIONER, VS. MARCELO AGUIRRE, JR., AND JUAN Y.
ARANETA, RESPONDENTS.
G.R. No. 134213, July 20, 1999
FACTS:
In the 1995 elections, Rafael Coscolluela, petitioner Romeo J. Gamboa, Jr. and
respondents Marcelo Aguirre, Jr., and Juan Y. Araneta were elected Negros Occidental
Governor, Vice-Governor and SP members, respectively. Sometime in August of 1995, the
governor designated petitioner as Acting Governor for the duration of the formers official trip
abroad until his return.
When the SP held its regular session on September 6, 1995, respondents questioned
the authority of petitioner to preside therein in view of his designation as Acting Governor and
asked him to vacate the Chair. The latter, however, refused to do so.
On September 22, 1995, respondents filed before the lower court a petition for
declaratory relief and prohibition. In the meantime, on October 2, 1995, the Governor reassumed his office. Later, the trial court rendered a decision and declared petitioner as
temporarily legally incapacitated to preside over the sessions of the SP during the period that
he is the Acting Governor.
Aggrieved, petitioner filed a petition for review raising the issue earlier mentioned.
Although this case is dismissible for having become moot and academic considering the
expiration in 1998 of the terms of office of the local officials involved herein, the Court
nonetheless proceeds to resolve this common controversy but novel issue under the existing
laws on local government.
ISSUE:
While in such capacity as Acting Governor, does he temporarily relinquish the
powers, functions, duties and responsibilities of the Vice- Governor, including the power
to preside over the sessions of the SP?

RULING:
The new Local Government Code is silent on this matter, yet this query should be
answered in the positive. A Vice-Governor who is concurrently an Acting Governor is actually a
quasi-Governor. This means, that for purposes of exercising his legislative prerogatives and
powers, he is deemed as a non-member of the SP for the time being. Unlike under the old
Code, where the Governor is not only the provincial Chief Executive, but also the presiding
officer of the local legislative body, the new Code delineated the union of the executivelegislative powers in the provincial, city and municipal levels except in the Barangay. Under
LGC, the Governor was deprived of the power to preside over the SP and is no longer
considered a member thereof. This is clear from the law, when it provides that local legislative
power shall be vested in the SP, which is the legislative body of the province, and enumerates
therein its membership consisting of the:
1.)
2.)
3.)
4.)

Vice-Governor, as presiding officer,

regular elective SP members,
three elective sectoral representatives, and
those ex-officio members, namely:
a. president of the provincial chapter of the liga ng mga barangay,
b. president of the panlalawigang pederasyon ng mga sangguniang kabataan,
c. president of the provincial federation of sanggunian members of municipalities
and component cities.

Not being included in the enumeration, the Governor is deemed excluded applying
the rule in legal hermeneutics that when the law enumerates, the law necessarily
excludes.
Being the Acting Governor, the Vice-Governor cannot continue to simultaneously
exercise the duties of the latter office, since the nature of the duties of the provincial
Governor call for a full-time occupant to discharge them. Such is not only consistent with
but also appears to be the clear rationale of the new Code wherein the policy of performing dual
functions in both offices has already been abandoned. To repeat, the creation of a temporary
vacancy in the office of the Governor creates a corresponding temporary vacancy in the office of
the Vice-Governor whenever the latter acts as Governor by virtue of such temporary vacancy.
This event constitutes an inability on the part of the regular presiding officer (Vice Governor) to
preside during the SP sessions, which thus calls for the operation of the remedy set in Article
49(b) of the Local Government Code concerning the election of a temporary presiding officer.
The continuity of the Acting Governors (Vice-Governor) powers as presiding officer of the SP is
suspended so long as he is in such capacity. Under Section 49(b), (i)n the event of the inability
of the regular presiding officer to preside at the sanggunian session, the members present and
constituting a quorum shall elect from among themselves a temporary presiding officer.
GOVERNOR RODOLFO C. FARINAS AND AL NACINO, PETITIONERS, VS. MAYOR
ANGELO M. ARBA, VICE MAYOR MANUEL S. HERNANDO, AND EDWARD PALAFOX,
RESPONDENTS.
G.R. No. 116763, April 19, 1996, EN BANC, MENDOZA, J.
Facts
Carlito B. Domingo was a member of the Sangguniang Bayan of San Nicolas, Ilocos
Norte. On March 24, 1994, he resigned after going without leave to the United States. To fill the
vacancy created by his resignation, the mayor, respondent Angelo M. Barba, recommended to
the Governor of the province, petitioner Rodolfo C. Farias, the appointment of respondent
Edward Palafox. A similar recommendation for the appointment of Edward Palafox was made
by the Sangguniang Bayan of San Nicolas but the recommendation was made to Mayor Barba.

The Sangguniang Panlalawigan, purporting to act under this provision of the LGC,
disapproved the resolution "for the reason that the authority and power to appoint Sangguniang
Bayan members are lodged in the Governor, and therefore, the Resolution should be addressed
to the Provincial Governor." Accordingly, the Sangguniang Panlalawigan recommended to the
Governor the appointment of petitioner Al Nacino. On June 8, 1994, the Governor appointed
Nacino while the mayor appointed Palafox.
On June 14, 1994, petitioners filed with the RTC of Ilocos Norte a petition for quo
warranto and prohibition. The RTC ruled in favor of the respondents based on Sec. 45(c) of the
LGC11. The RTC interpreted that the term local chief executive shall mean the mayor of the
respective LGU where the member of the sanggunian (who is not politically affiliated) vacated
his position who shall appoint a new sanggunian member. Hence this petition.
Issue
WON the term local chief executive pertains to the mayor
Decision
No, the court agrees with the lower court that the applicable provision of the LGC is Sec.
45(c), contrary to the claim of the petitioners. This notwithstanding however, the power to
appoint is vested with the governor subject to the recommendation of the Sanggunian
concerned (in this case, the Sangguniang Bayan). The former LGC sheds light into the case
because implicit in these provisions is a policy to vest in the President, the governor and the
mayor in descending order the exercise of an executive power whether to appoint in order to fill
vacancies in local councils or to suspend local officials. Further the meaning of the Sanggunian
concerned shall mean in sec. 45(c) should more properly he understood as referring to the
Sanggunian in which the vacancy is created.
With the exception of the Sangguniang Barangay pars. (a) and (b) must be read as
providing for the filling of vacancies in the various Sanggunians when these vacancies are
created as a result of the cessation from office (other than expiration of term) of members who
belong to political parties. On the other hand, Sec.45(c) must be understood as providing for the
filling of vacancies created by members who do not belong to any political party. Consequently,
45 must be construed to mean that
I. Where the Permanent Vacancy is Caused by a Sanggunian Member belonging to a
Political Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized cities
and independent component cities - The President, through the Executive Secretary,
upon the nomination and certification of the political party to which the member who caused
the vacancy belonged, as provided in 45(b).
B. Sangguniang Panlungsod of component cities and Sangguniang Bayan - The
Governor upon the nomination and certification of the political party to which the member
who caused the vacancy belonged, as provided in Sec. 45(b).
II. Where the Vacancy is Caused by a Sanggunian Member Not Belonging to a Political
Party
A. Sangguniang Panlalawigan and Sangguniang Panlungsod of highly urbanized and
independent component cities - The President, through the Executive Secretary, upon
recommendation of the Sangguniang Panlalawigan or Sangguniang Panlungsod as the
case may be.
11(c)

In case the permanent vacancy is caused by a Sanggunian Member who does not belong to any political party, t he Local Chief Executive shall
upon the recommendation of the Sanggunian concerned, appoint a qualified person to fill the vacancy.

B. Sangguniang Panlungsod of component cities and Sangguniang Bayan - The

Governor upon recommendation of the Sangguniang Panlungsod or Sangguniang Bayan as
the case may be.
III. Where the Vacancy is Caused by a Member of the Sangguniang Barangay - City or
Municipal Mayor upon recommendation of the Sangguniang Barangay.
The upshot of this is that in the case at bar, since neither petitioner Al Nacino nor
respondent Edward Palafox was appointed in the manner indicated in the preceding discussion,
neither is entitled to the seat in the Sangguniang Bayan of San Nicolas, Ilocos Norte which was
vacated by member Carlito B. Domingo. For while petitioner Al Nacino was appointed by the
provincial governor, he was not recommended by the Sangguniang Bayan of San Nicolas. On
the other hand, respondent Edward Palafox was recommended by the Sangguniang Bayan but
it was the mayor and not the provincial governor who appointed him.
MIRANDA, PETITIONER, V. CARREON, et al., RESPONDENTS.
FACTS
Vice Mayor Navarro, while serving as Acting Mayor of the City of Santiago because of
the suspension of Mayor Miranda, appointed the respondents to various positions in the city
government. Their appointments were with permanent status and based on the evaluation made
by the City Personnel Selection and Promotion Board (PSPB). The Civil Service Commission
(CSC) approved the appointments.
When Mayor Miranda reassumed his post he considered the composition of the PSPB
irregular since the majority party, to which he belongs, was not properly represented. He then
formed a three-man special performance audit team to conduct a personnel evaluation audit of
those who were previously screened by the PSPB and those on probation. The audit team
found the respondents wanting in their performance. Mayor Mrianda then issued an order
terminating respondents services because they performed poorly during the probationary
period.
Respondents appealed to the CSC, contending that being employees on probation, they
can be dismissed from the service on the ground of poor performance only after their
probationary period of 6 months, not after 3 months. They also denied that an evaluation on
their performance was conducted, hence, their dismissal from the service violated their right to
due process. Subsequently, the CSC issued a resolution reversing the order of Mayor Miranda
and ordering that respondents be reinstated to their former positions with payment of
backwages.
ISSUE
WON the respondents were illegally dismissed terminated by Mayor Miranda
RULING
YES.
The 1987 Constitution provides that no officer or employee of the civil service shall be
removed or suspended except for cause provided by law.[10] Under the Revised Administrative
Code of 1987, a government officer or employee may be removed from the service on two
(2) grounds: (1) unsatisfactory conduct and (2) want of capacity. While the Code does not
define and delineate the concepts of these two grounds, however, the Civil Service Law
provides specific grounds for dismissing a government officer or employee from the service.
Among these grounds are inefficiency and incompetence in the performance of official
duties. In the case at bar, respondents were dismissed on the ground of poor
performance. Poor performance falls within the concept of inefficiency and incompetence in the

performance of official duties which, as earlier mentioned, are grounds for dismissing a
government official or employee from the service.
But inefficiency or incompetence can only be determined after the passage of
sufficient time, hence, the probationary period of six (6) months for the respondents. Indeed,
to be able to gauge whether a subordinate is inefficient or incompetent requires enough
time on the part of his immediate superior within which to observe his performance. This
condition, however, was not observed in this case. As aptly stated by the CSC, it is quite
improbable that Mayor Jose Miranda could finally determine the performance of respondents for
only the first three months of the probationary period.
Not only that, we find merit in respondents claim that they were denied due process.
They cited Item 2.2 (b), Section VI of the Omnibus Guidelines on Appointments and Other
Personnel Actions (CSC Memorandum Circular No. 38, Series of 1993, as amended by CSC
Memorandum Circular No. 12, Series of 1994) which provides:
2.2. Unsatisfactory or Poor Performance
xxx
An official or employee who, for one evaluation period, is rated poor in performance,
may be dropped from the rolls after due notice. Due notice shall mean that the officer or
employee is informed in writing of the status of his performance not later than the fourth
month of that rating period with sufficient warning that failure to improve his
performance within the remaining period of the semester shall warrant his separation
from the service. Such notice shall also contain sufficient information which shall enable
the employee to prepare an explanation.
Respondents vehemently assert that they were never notified in writing regarding the
status of their performance, neither were they warned that they will be dismissed from the
service should they fail to improve their performance. Significantly, petitioner did not refute
respondents assertion. The records show that what respondents received was only the
termination order from Mayor Jose Miranda. Obviously, respondents right to due process was
violated.
Moreover, respondents contend that the only reason behind their arbitrary dismissal was
Mayor Jose Mirandas perception that they were not loyal to him, being appointees of then
Acting Mayor Navarro. This contention appears to be true considering that all those who were
accepted and screened by the PSPB during the incumbency of Acting Mayor Navarro were
rated to have performed poorly by an audit team whose three members were personally picked
by Mayor Jose Miranda.
Docena vs. Sangguniang Panlalawigan ng Eastern Samar
Facts
Luis Capito, who had been elected to and was serving as a member of the
SangguniangPanlalawigan of Eastern Samar (SPES), died in office. Petitioner Agustin Docena
then was appointed to succeed him through an appointment letter from Luis Santos (Secretary
of the Department of Local Government) dated November 19, 1990. Docena then took his oath
on November 22, 1990 and assumed member of the SPES. On November 27, 1990,
respondent Alar through an appointment by the same Luis Santos was appointed to the position
where Docena was appointed.
On December 18, 1990, the SPES passed Resolution No. 75 recognizing Alar rather
than Docena as thelegitimate successor of the late Board Capito. The following day, December
19, 1990, the SPES was in effect reversed by Secretary Luis Santos when head dressed a letter

to Alar recalling the appointment. This action was affirmed by the Department of Local
Government. The SPES then reacted by passing resolution 1, where it reiterated its previous
recognition of Alar and declared that the recall letter of Santos is void and has no legal basis
and was issued by Santos because of his whimsical, capricious, and wishy-washy desires to the
detriment of decency and due process of law. Santos then issued another recall letter. However,
this time, it was addressed to Docena. Docena then instituted a case to recognize him as a
lawfully appointed member of the SPES.
ISSUE:
Should the appointment of Alar supersede that of Docena?
HELD:
The SC ruled that the appointment of Alar cannot supersede that of Docena. It stated
that the appointment extended to Docena on November 19, 1990 was intended to be
permanent. The appointment being permanent in nature and for the unexpired portion of the late
Capitos term, Docena acquired security of tenure in the position and could be removed only for
any of the causes and conformably to the procedure, prescribed by the Local Government
Code. Therefore, where the Sanggunian members appointment has been issued and accepted,
and he has already assumed office, his appointment cannot be recalled anymore to
accommodate Alar. There is no way that the requirements of the Local Government Code shall
be circumvented by a simple letter of recalling the appointment
NORLAINIE MITMUG LIMBONA v. COMELEC & MALIK BOBBY ALINGAN
G.R. No. 181097, June 25, 2008, EN BANC (Ynares-Santiago, J.)
Facts
Norlainie Mitmug Limbona, her husband, Mohammad Limbona, and Malik "Bobby"
Alingan were mayoralty candidates in Pantar, Lanao del Norte during the 2007 Synchronized
National and Local Elections. After the aforementioned filed their respective certificates of
candidacy (CoC), Alingan filed a petition to disqualify Mohammad for failure to comply with the
residency requirement. Subsequently, Alingan filed another petition to disqualify Norlainie with
the same ground. Norlainie filed for withdrawal of candidacy which the COMELEC granted.
Meanwhile, COMELEC granted Alingans petition to disqualify for failing to satisfy the 1
year residency requirement and for not being a registered voter of Pantar. Consequently,
Norlainie filed a new certificate of candidacy as substitute candidate for Mohammad which was
approved by COMELEC. Relentless, Alingan sought again Norlainies disqualification. Norlainie
subsequently won and assumed office. But her victory was short-lived, for the COMELEC
disqualified her for lack of residency, for not being a registered voter of the place, and nullity of
her CoC for having been filed at a place other than the Office of the Election Officer.
Norlainie argued that the COMELEC had approved the withdrawal of her first CoC and
had given due course to her new CoC as a substitute candidate for Mohammad. As regards
Norlainies residency requirement, her domicile of origin was in Maguing, Lanao del Norte.
When she got married, by operation of law pursuant to the Family Code, her domicile became
Marawi City, Barangay Rapasun. Norlainie claimed that she "has been staying, sleeping and
doing business in her house for more than 20 months" in Lower Kalanganan. There was,
however, no competent evidence that would support such statement. Further, there was no
other act that would indicate Norlainies intention to stay in Pantar for an indefinite period of
time.
ISSUE:
Will Alingan succeed Norlainie as mayor after being disqualified?

HELD:
NO. Considering that Norlainie failed to show that she maintained a separate residence
from her husband, and as there is no evidence to prove otherwise, reliance on these provisions
of the Family Code is proper and is in consonance with human experience. Thus, for failure to
comply with the residency requirement, Norlainie is disqualified to run for the office of mayor of
Pantar, Lanao del Norte. However, Norlainie's disqualification would not result in Alingan's
proclamation who came in second during the special election.
The rules on succession under the Local Government Code shall apply, to wit:
SECTION 44. Permanent Vacancies in the Offices of the Governor, Vice-Governor,
Mayor, and Vice-Mayor. - If a permanent vacancy occurs in the office of the xxx mayor, the xxx
vice-mayor concerned shall become the xxx mayor.
For purposes of this Chapter, a permanent vacancy arises when an elective local official
fills a higher vacant office, refuses to assume office, fails to qualify or is removed from office,
voluntarily resigns, or is otherwise permanently incapacitated to discharge the functions of his
office. x x x x
Considering the disqualification of Norlainie to run as mayor of Pantar, Lanao del Norte,
the proclaimed Vice-Mayor shall then succeed as mayor.
E. Recall

ENRIQUE GARCIA, et al. v. COMELEC and LUCILA PAYUMO

Facts
Enrique T. Garcia was elected governor of Bataan in the 1992 elections. Some mayors,
vice-mayors and members of the Sangguniang Bayan of the twelve (12) municipalities of the
province constituted themselves into a Preparatory Recall Assembly to initiate the recall election
of petitioner Garcia. They issued Resolution No. 1 as formal initiation of the recall proceedings.
Then COMELEC scheduled the recall election for the gubernatorial position of Bataan.
Petitioners then filed a petition for certiorari and prohibition with writ of preliminary injunction to
annul the Resolution of the COMELEC because the PRAC failed to comply with the "substantive
and procedural requirement" laid down in Section 70 of R.A. 7160 (Local Government Code
1991). They pointed out the most fatal defect of the proceeding followed by the PRAC in
passing the Resolution: the deliberate failure to send notices of the meeting to 65 members of
the assembly.
ISSUE.
1) WON the people have the sole and exclusive right to initiate recall proceedings.
2) WON the procedure for recall violated the right of elected local public officials belonging
to the political minority to equal protection of the law.
HELD.
NO. There is nothing in the Constitution that will remotely suggest that the people have
the "sole and exclusive right to decide on whether to initiate a recall proceeding." The
Constitution did not provide for any mode, let alone a single mode, of initiating recall elections.
The mandate given by section 3 of Article X of the Constitution is for Congress to "enact a local
government code which shall provide for a more responsive and accountable local government
structure through a system of decentralization with effective mechanisms of recall, initiative, and
referendum . . ." By this constitutional mandate, Congress was clearly given the power to
choose the effective mechanisms of recall as its discernment dictates.

Using its constitutionally granted discretion, Congress deemed it wise to enact an

alternative mode of initiating recall elections to supplement the former mode of initiation by
direct action of the people. The legislative records reveal there were two principal reasons why
this alternative mode of initiating the recall process thru an assembly was adopted, viz: (a) to
diminish the difficulty of initiating recall thru the direct action of the people; and (b) to cut down
on its expenses.
NO. Under the Sec. 70 of the LGC, all mayors, vice-mayors and sangguniang members
of the municipalities and component cities are made members of the preparatory recall
assembly at the provincial level. Its membership is not apportioned to political parties. No
significance is given to the political affiliation of its members. Secondly, the preparatory recall
assembly, at the provincial level includes all the elected officials in the province concerned.
Considering their number, the greater probability is that no one political party can control its
majority. Thirdly, Sec. 69 of the Code provides that the only ground to recall a locally
elected public official is loss of confidence of the people. The members of the PRAC are in
the PRAC not in representation of their political parties but as representatives of the people. By
necessary implication, loss of confidence cannot be premised on mere differences in political
party affiliation. Indeed, our Constitution encourages multi-party system for the existence of
opposition parties is indispensable to the growth and nurture of democratic system. Clearly
then, the law as crafted cannot be faulted for discriminating against local officials belonging to
the minority.
Moreover, the law instituted safeguards to assure that the initiation of the recall process
by a preparatory recall assembly will not be corrupted by extraneous influences. We held that
notice to all the members of the recall assembly is a condition sine qua non to the
validity of its proceedings. The law also requires a qualified majority of all the preparatory
recall assembly members to convene in session and in a public place. Needless to state,
compliance with these requirements is necessary, otherwise, there will be no valid resolution of
recall which can be given due course by the COMELEC.
FELIPE EVARDONE v. COMELEC, et al.
G.R. No. 94010, 2 December 1991, EN BANC, (Padilla, J.)
Facts
Felipe Evardone is the mayor of the Municipality of Sulat, Eastern Samar, elected to the
position during the 1988 local elections. Alexander R. Apelado, Victorino E. Aclan and Noel A.
Nival filed a petition for the recall of Evardone. COMELEC issued Resolution No. 90-0557,
approving to hold on 14 July 1990 the signing of the petition for recall against Mayor Evardone.
On 12 July 1990, this Court resolved to issue a TRO. On the same day 12 July 1990, the
notice of TRO was received by the Central Office of COMELEC. But it was only on 15 July 1990
that the field agent of the COMELEC received the telegraphic notice of the TRO - a day after the
completion of the signing process sought to be temporarily stopped by the TRO. COMELEC
nullified the signing process held in Sulat, Eastern Samar for being violative of the order (the
TRO) of this Court.
ISSUES:
1. Is COMELEC Resolution No. 2272 (which embodies the general rules and regulations
on the recall of elective provincial, city and municipal officials) within the powers vested
by the Constitution and Batas Pambansa Blg. 337 (Old Local Government Code)?
2. Does the TRO issued by the Court render nugatory the signing process of the petition for
recall held pursuant to Resolution No. 2272?
RULING:

1. YES.
Prior to the enactment of the new Local Government Code, the effectiveness of B.P. Blg.
337 was expressly recognized in the proceedings of the 1986 Constitutional Commission.
Chapter 3 (Sections 54 to 59) of B.P. Blg. 337 provides for the mechanism for recall of
local elective officials. Section 59 expressly authorizes the respondent COMELEC to
conduct and supervise the process of and election on recall and in the exercise of such
powers, promulgate the necessary rules and regulations.
The Election Code contains no special provisions on the manner of conducting elections
for the recall of a local official. Any such election shall be conducted in the manner and under
the rules on special elections, unless otherwise provided by law or rule of the COMELEC. Thus,
pursuant to the rule-making power vested in respondent COMELEC, it promulgated Resolution
No. 2272.
2. NO.
The Court issued a TRO on 12 July 1990 but the signing of the petition for recall took
place just the same on the scheduled date through no fault of the COMELEC and Apelado, et
al. The signing process was undertaken by the constituents of the Municipality of Sulat
and its Election Registrar in good faith and without knowledge of the TRO.
Whether or not the electorate of the Municipality of Sulat has lost confidence in the
incumbent mayor is a political question. It belongs to the realm of politics where only the people
are the judge. "Loss of confidence is the formal withdrawal by an electorate of their trust in a
person's ability to discharge his office previously bestowed on him by the same electorate." The
constituents have made a judgment and their will to recall the incumbent mayor (Evardone) has
already been ascertained and must be afforded the highest respect. Thus, the signing process
held last 14 July 1990 in Sulat, Eastern Samar, for the recall of Mayor Felipe P. Evardone of
said municipality is valid and has legal effect.
However, recall at this time [of the decisions promulgation] is no longer possible
because of the limitation provided in Sec. 55 (2) of B.P. Blg. 337. The Constitution has
mandated a synchronized national and local election prior to 30 June 1992, or more specifically,
as provided for in Article XVIII, Sec. 5 - on the second Monday of May, 1992. Thus, to hold an
election on recall approximately seven (7) months before the regular local election will be
violative of the above provisions of the applicable Local Government Code (B.P. Blg. 337).
DANILO E. PARAS, petitioner, vs. COMMISSION ON ELECTIONS, respondent.
Facts:
Petitioner
Danilo
E.
Paras
is
the
incumbent
Punong
Barangay
of Pula, Cabanatuan City who won during the last regular barangay election in 1994. A petition
for his recall as Punong Barangay was filed by the registered voters of the barangay. Acting on
the petition for recall, public respondent Commission on Elections (COMELEC) resolved to
approve the petition, scheduled the petition signing on October 14, 1995, and set the recall
election on November 13, 1995.[
Petitioners argument is simple and to the point. Citing Section 74 (b) of Republic Act No.
7160, otherwise known as the Local Government Code, which states that no recall shall take
place within one (1) year from the date of the officials assumption to office or one (1) year
immediately preceding a regular local election, petitioner insists that the scheduled January 13,
1996 recall election is now barred as the Sangguniang Kabataan (SK) election was set by
Republic Act No. 7808 on the first Monday of May 1996, and every three years thereafter. In
support thereof, petitioner cites Associated Labor Union v. Letrondo-Montejo, 237 SCRA 621,

where the Court considered the SK election as a regular local election. Petitioner maintains that
as the SK election is a regular local election, hence no recall election can be had for barely four
months separate the SK election from the recall election.
Issue:
WON the SK election is considered as a regular local election.
Held:
No. The subject provision of the Local Government Code provides:
SEC. 74. Limitations on Recall. (a) Any elective local official may be the subject of a recall
election only once during his term of office for loss of confidence.
(b) No recall shall take place within one (1) year from the date of the officials assumption to
office or one (1) year immediately preceding a regular local election.
It is a rule in statutory construction that every part of the statute must be interpreted with
reference to the context, i.e., that every part of the statute must be considered together with the
other parts, and kept subservient to the general intent of the whole enactment. [4] The evident
intent of Section 74 is to subject an elective local official to recall election once during his term
of office. Paragraph (b) construed together with paragraph (a) merely designates the period
when such elective local official may be subject of a recall election, that is, during the second
year of his term of office. Thus, subscribing to petitioners interpretation of the phrase regular
local election to include the SK election will unduly circumscribe the novel provision of the Local
Government Code on recall, a mode of removal of public officers by initiation of the people
before the end of his term. And if the SK election which is set by R.A. No. 7808 to be held every
three years from May 1996 were to be deemed within the purview of the phrase regular local
election, as erroneously insisted by petitioner, then no recall election can be conducted
rendering inutile the recall provision of the Local Government Code.
In the interpretation of a statute, the Court should start with the assumption that the
legislature intended to enact an effective law, and the legislature is not presumed to have done
a vain thing in the enactment of a statute. [5] An interpretation should, if possible, be avoided
under which a statute or provision being construed is defeated, or as otherwise expressed,
nullified, destroyed, emasculated, repealed, explained away, or rendered insignificant,
meaningless, inoperative or nugatory. [6]
It is likewise a basic precept in statutory construction that a statute should be interpreted
in harmony with the Constitution. [7] Thus, the interpretation of Section 74 of the Local
Government Code, specifically paragraph (b) thereof, should not be in conflict with the
Constitutional mandate of Section 3 of Article X of the Constitution to enact a local government
code which shall provide for a more responsive and accountable local government structure
instituted through a system of decentralization with effective mechanisms of recall, initiative, and
referendum x x x.
Moreover, petitioners too literal interpretation of the law leads to absurdity which we
cannot countenance. Thus, in a case, the Court made the following admonition:
We admonish against a too-literal reading of the law as this is apt to constrict rather
than fulfill its purpose and defeat the intention of its authors. That intention is usually found not
in the letter that killeth but in the spirit that vivifieth x x x [8]
The spirit, rather than the letter of a law determines its construction; hence, a statute, as
in this case, must be read according to its spirit and intent.
Finally, recall election is potentially disruptive of the normal working of the local
government unit necessitating additional expenses, hence the prohibition against the conduct of

recall election one year immediately preceding the regular local election. The proscription is
due to the proximity of the next regular election for the office of the local elective official
concerned. The electorate could choose the officials replacement in the said election who
certainly has a longer tenure in office than a successor elected through a recall election. It
would, therefore, be more in keeping with the intent of the recall provision of the Code to
construe regular local election as one referring to an election where the office held by the local
elective official sought to be recalled will be contested and be filled by the electorate.
JOSE M. MERCADO VS. BOARD OF ELECTION SUPERVISORS OF THE MUNICIPALITY
OF IBAAN, PROVINCE OF BATANGAS
Facts
Jose Mercado was proclaimed SK chairman of Barangay Mabalor, Ibaan Batangas
during the 1992 elections. Immediately after Mercado's proclamation as the winner by the BET,
Pangilinan filed a formal protest with the Board of Election Supervisor (BES) questioning the
results of the election. He alleged that the Board of Election Tellers (BET) Chairman, drinking
gin and Coke during the counting, had invalidated some votes without consulting the other
board members. The BES ordered the reopening of the ballot box and the recount of the votes
for SK Chairman. The recount reversed the earlier tally in favor of Pangilinan, who was
thereupon proclaimed the duly elected SK Chairman by the BES, which issued for that purpose
its own Certificate of Canvass and Proclamation.
The petitioner contends that COMELEC Resolution No. 2499 is illegal and
unconstitutional because it makes the BES the final arbiter of election contests involving the SK
in contravention of Section 252 of the Omnibus Election Code which vests in the proper
metropolitan or municipal trial court original jurisdiction over such contests and, on a more
fundamental ground; in contravention of Section 2, Article IX-C of the Constitution which lodges
on such courts exclusive original jurisdiction over contests involving elective barangay officials.
Issue:
1. Whether or not Boards of Election Supervisors (BES) have jurisdiction to act on the protest
involving Sangguniang Kabataan (SK)?
Held: 1. Yes.
Section 252 of the Omnibus Election Code and that portion of paragraph (2), Section 2,
Article IX--C of the Constitution on the COMELEC's exclusive appellate jurisdiction over
contests involving elective barangay officials refer to the elective barangay officials under the
pertinent laws in force at the time the Omnibus Election Code was enacted and upon the
ratification of the Constitution. That law was B.P. Blg. 337, otherwise known as the Local
Government Code, and the elective barangay officials referred to were the punong barangay
and the six sangguniang bayan members. They were to be elected by those qualified to
exercise the right of suffrage. They are also the same officers referred to by the provisions of
the Omnibus Election Code of the Philippines on election of barangay officials. Metropolitan
and municipal trial courts had exclusive original jurisdiction over contests relating to their
election. The decisions of these courts were appealable to the Regional Trial Courts.
Elections of SK (formerly KB) officials do not fall within Section 252 of the Omnibus
Election Code and paragraph 2, Section 2, Article IX-C of the Constitution and that no law in
effect prior to the ratification of the Constitution had made the SK chairman an elective
barangay official. His being an ex-officio member of the sangguniang barangay does not make
him one for the law specifically provides who are its elective members, viz., the punong
barangay and the seven regular sangguniang barangay members who are elected at large by

those who are qualified to exercise the right of suffrage under Article V of the Constitution and
who are duly registered voters of the barangay.
MAYOR RICARDO M. ANGOBUNG, petitioner, vs. COMMISSSION ON ELECTIONS EN
BANC, and ATTY. AURORA S. DE ALBAN, respondents.
G.R. No. 126576, March 5, 1997
FACTS:
Petitioner won as the duly elected Mayor of the Municipality of Tumauini, Isabela in the
local elections of 1995. Private respondent de Alban was also a candidate in said elections.
Sometime in early September, 1996, private respondent filed a Petition for Recall against
petitioner.
Acting on the petition, Deputy Executive Director for Operations Pio Jose Joson
submitted to the COMELEC En Banc, a Memorandum dated October 8, 1996 recommending
approval of the petition for recall filed by private respondent and its signing by other qualified
voters in order to garner at least 25% of the total number of registered voters.
In turn acting on the abovementioned Memorandum of Deputy Executive Director Joson,
the COMELEC en banc issued the herein assailed Resolution.
Petitioner now attacks the aforementioned resolution as being unconstitutional and
therefore invalid, on two main grounds: (1) that the resolution approved the Petition for Recall
albeit same was signed by just one person in violation of the statutory 25% minimum
requirement as to the number of signatures supporting and petition for recall; and (2) that the
resolution scheduled the recall election within one (1) year from the May 12, 1997 Barangay
Elections.
On October 25, 1996, this court issued a Temporary Restraining Order enjoining public
respondent COMELEC from implementing and enforcing Resolution No. 96-2951.
In at least three (3) urgent motions, private respondent has sought the lifting of the
Temporary Retraining Order (1) that the issue of the one-year bar on recall elections has been
resolved in the case of Paras v. COMELEC promulgated on November 4, 1996; and (2) that the
procedure prescribed by Resolution No. 96-2951 involving petition signing upon initiation of
even just one person, is no different from that provided for in COMELEC Resolution No. 2272
which was upheld as constitutional in the 1991 cases of Sanches, et al. v. COMELEC and
Evardone v. COMELEC
ISSUE:
1. WON the May 12, 1997 Election is a bar to the Election recall scheduled on December
2, 1996?
2. WON the resolution approved signed by one person has violated the statutory 25%
minimum requirement as to the number of signatures
RULING:
1. Private respondent is correct in saying that in the light of our pronouncement in Paras
v. COMELEC, the recall election scheduled on December 2, 1996 in the instant case cannot be
said to be barred by the May 12, 1997 Barangay Elections. In construing the meaning of the
term, regular local election in Section 74 of the Local Government Code of 1991 which
provides that no recall shall take place within one (1) year x x x immediately preceding a
regular local election, we ruled that for the time bar to apply, the approaching regular local
election must be one where the position of the official to be recalled, is to be actually contested
and filled by the electorate. Thus, in the instant case where the time bar is being invoked by

petitioner mayor in view of the approaching Barangay Elections in May 1997, there can be no
application of the one year bar, hence no invalidity may be ascribed to Resolution No. 96-2951
on this ground.
2. The law is plain and unequivocal as to what initiates recall proceedings: only a petition
of at least 25% of the total number of registered voters, may validly initiate recall proceedings.
We take careful note of the phrase, petition of at least twenty-five percent (25%) and point out
that the law does not state that the petition must be signed by at least 25% of the registered
voters; rather, the petition must be of or by, at least 25% of the registered voters, i.e., the
petition must be filed, not by one person only, but by at least 25% of the total number of
registered voters. This is understandable, since the signing of the petition is statutorily required
to be undertaken before the election registrar or his representative, and in the presence of a
represetantive of the official sought to be recalled, and in public place in the x x x municipality x
x x. Hence, while the initiatory recall petition may not yet contain the signatures of at least 25%
of the total number of registered voters, the petition must contain the names of at least 25% of
the total number of registered voters in whose behalf only one person may sign the petition in
the meantime.
We cannot sanction the procedure of the filing of the recall petition by a number of
people less than the foregoing 25% statutory requirement, much less, the filing thereof by just
one person, as in the instant case, since this is indubitably violative of clear and categorical
provisions of subsisting law.
JOVITO O. CLAUDIO, PETITIONER, VS. COMMISSION ON ELECTIONS, DEPARTMENT OF
BUDGET AND MANAGEMENT, COMMISSION ON AUDIT AND RICHARD ADVINCULA,
RESPONDENTS.
Facts
Petitioner Claudio was the duly elected mayor of Pasay City in the May 11, 1998
elections and assumed office on July 1, 1998. During the second week of May 1999, the chairs
of several barangays in Pasay City gathered to discuss the possibility of filing a petition for recall
against Mayor Claudio for loss of confidence. On May 19, 1999, at the residence of barangay
chair Benjamin Lim, Jr. several barangay chairs formed an ad hoc committee for the purpose of
convening the Preparatory Recall Assembly (PRA). Richard Advincula was designated chair.
On May 29, 1999, 1,073 members of the PRA composed of barangay chairs, kagawads, and
sangguniang kabataan chairs of Pasay City, adopted Resolution No. 01, S-1999, entitled
RESOLUTION TO INITIATE THE RECALL OF JOVITO O. CLAUDIO AS MAYOR OF PASAY
CITY FOR LOSS OF CONFIDENCE. The petition for recall was filed on July 2, 1999,
accompanied by an affidavit of service of the petition on the Office of the City Mayor 12.
On October 18, 1999, the COMELEC granted the petition for recall and dismissed the
oppositions against it. On the issue of whether the PRA was constituted by a majority of its
members, the COMELEC held that the 1,073 members who attended the May 29, 1999 meeting
were more than necessary to constitute the PRA, considering that its records showed the total
membership of the PRA was 1,790, while the statistics of the (DILG) showed that the total
membership of the PRA was 1,876. On the case filed by Trinidad, it ruled that it does not
constitute a prejudicial question. Further, the proceedings does not violate the 1 year prohibitive
Claudio alleged procedural and substantive defects in the petition: (1) the signatures affixed to the resolution were actuall y meant to show attendance
at the PRA meeting; (2) most of the signatories were only representatives of the parties concerned who were sent there merely to observe the
proceedings; (3) the convening of the PRA took place within the one-year prohibited period; (4) the election case, filed by Wenceslao Trinidad, seeking
the annulment of the proclamation of petitioner Claudio as mayor of Pasay City, should first be decided before recall proceedings against petitioner
could be filed; and (5) the recall resolution failed to obtain the majority of all the members of the PRA, considering that 1 0 were actually double
entries, 14 were not duly accredited members of the barangays, 40 sangguniang kabataan officials had withdrawn their support, and 60 barangay chairs
executed affidavits of retraction.
12

period for recall is a process which starts with the filing of the petition for recall. Since the
petition was filed on July 2, 1999, exactly one year and a day after petitioner Claudio's
assumption of office, it was held that the petition was filed on time.
Issue
WON the COMELEC erred in granting the petition for recall for as contended by the petitioner,
the PRA was held within the 1 year prohibitive period as provided for Sec. 74 of the LGC
Held
No, The bone of contention in this case is Sec. 74 of the LCG which provides:
Limitations on Recall. - (a) Any elective local official may be the subject of a recall election
only once during his term of office for loss of confidence. (b) No recall shall take place within
one (1) year from the date of the official's assumption to office or one (1) year immediately
preceding a regular local election.
Coverage of the word "recall" in paragraph (b) (whether it covers a process which
includes the convening of the Preparatory Recall Assembly and its approval of the recall
resolution).
Recall is a process which begins with the convening of the preparatory, recall assembly
or the gathering of the signatures at least 25% of the registered voters of a local government
unit, and then proceeds to the filing of a recall resolution or petition with the COMELEC, the
verification of such resolution or petition, the fixing of the date of the recall election, and the
holding of the election on the scheduled date. However, as used in paragraph (b) of Sec. 74,
"recall" refers to the election itself by means of which voters decide whether they should retain
their local official or elect his replacement. Several reasons can be cited in support of this
conclusion.
The term "recall" in paragraph (b) refers to the recall election and not to the preliminary
proceedings to initiate recall
1. Because Sec. 74 speaks of limitations on "recall" which, according to Sec. 69, is a
power which shall be exercised by the registered voters of a local government unit. Since the
voters do not exercise such right except in an election, it is clear that the initiation of recall
proceedings is not prohibited within the one-year period provided in paragraph (b). There may
be several PRAs held or petitions for recall filed with the COMELEC - there is no legal limit on
the number of times such processes may be resorted to. These are merely preliminary steps for
the purpose of initiating a recall. The limitations in Sec. 74 apply only to the exercise of the
power of recall which is vested in the registered voters. It is this - and not merely, the
preliminary steps required to be taken to initiate a recall - which paragraph (b) of Sec. 74 seeks
to limit by providing that no recall shall take place within one year from the date of assumption of
office of an elective local official (as PRA is not recall itself).
2. Because the purpose of the first limitation in paragraph (b) is to provide voters a
sufficient basis for judging an elective local official, and final judging is not done until the day of
the election. Hence, in this case, as long as the election is held outside the one-year period, the
preliminary proceedings to initiate a recall can be held even before the end of the first year in
office of a local official.
3. Because to construe the limitation in paragraph (b) as including the initiation of recall
proceedings would unduly curtail freedom of speech and of assembly guaranteed in the
Constitution. The crystallization and formation of an informed public opinion takes time. To hold,
therefore, that the first limitation in paragraph (b) includes the holding of assemblies for the

exchange of ideas and opinions among citizens is to unduly curtail one of the most cherished
rights in a free society.
As the recall election in Pasay City is set on April 15, 2000, more than one year after
petitioner assumed office as mayor of that city, we hold that there is no bar to its holding on that
date.
Coverage of "regular local election" in the last clause of paragraph (b) (whether it
includes the election period for that regular election or simply the date of such election).
Petitioner argues that in the same paragraph (b), Regular local election shall also
include the election period as well. This contention is untenable. The law is unambiguous in
providing that "no recall shall take place within . . . one (1) year immediately preceding a regular
local election." Had Congress intended this limitation to refer to the campaign period, which
period is defined in the Omnibus Election Code, it could have expressly said so.
Moreover, petitioner's interpretation would severely limit the period during which a recall
election may be held. Actually, because no recall election may be held until one year after the
assumption of office of an elective local official, presumably on June 30 following his election,
the free period is only the period from July 1 of the following year to about the middle of May of
the succeeding year. This is a period of only nine months and 15 days, more or less. To
construe the second limitation in paragraph (b) as including the campaign period would reduce
this period to eight months. Such an interpretation must be rejected, because it would devitalize
the right of recall which is designed to make local government units" more responsive and
accountable."
Indeed, there is a distinction between election period and campaign period. Under the
Omnibus Election Code, unless otherwise fixed by the COMELEC, the election period
commences ninety (90) days before the day of the election and ends thirty (30) days thereafter.
Thus, to follow petitioner's interpretation that the second limitation in paragraph (b) includes the
"election period" would emasculate even more a vital right of the people.
PETITION DENIED.
MANUEL H. AFIADO, JASMINIO B. QUEMADO, JR. AND GLESIE L. TANGONAN,
PETITIONERS, VS. COMMISSION ON ELECTIONS (COMELEC), RESPONDENT.
FACTS
During the May 11,1998 elections in Santiago City, Joel Miranda won as Mayor while
Amelita Navarro won as vice-mayor. The defeated candidate, Antonio Abaya, filed before the
COMELEC against Joel Miranda a Petition for the declaration of the certificate of candidacy of
Jose Miranda, the father of Joel, as null and void. Miranda was removed from office after it was
held that the certificate of candidacy of his father Antonio Abaya (whom Joel substituted) was
not valid thus Joel Miranda could not be validly proclaimed as the winner in the mayoralty
elections. By virtue of the law on succession, Navarro became the new mayor. On the other
hand when she was still a vice-mayor, petitioners convened the barangay officials of Santiago
City who compose the Preparatory Recall Assembly (PRA) which then passed and adopted
Preparatory Recall Assembly Resolution No. 1 for the recall of Vice- Mayor Navarro by
invoking the rescission of her electoral mandate as vice-mayor for loss of confidence, through a
recall election.
ISSUE
WON an elective official who became City Mayor by legal succession can be the subject
of a recall election by virtue of a PRA Resolution which was passed when the said elective
official was still the Vice-Mayor

RULING
NO.
On March 31, 2000 respondent COMELEC issued and promulgated a Resolution which
denied due course to the subject PRA Resolution No. 1. This development therefore rendered
the present petition for mandamus moot and academic. The record shows that herein
petitioners' counsel of record was furnished copies of the COMELEC's Resolution.
Anent the corollary issue as to whether or not Mayor Navarro can be the subject of recall
election by virtue of Resolution No. 1 of the PRA which was passed when she was still the
elected City Vice-Mayor, the same has become moot and academic. We quote below the
pertinent portion of the COMELEC's Resolution to which we agree, to wit: The assumption by
legal succession of the petitioner as the new Mayor of Santiago City is a supervening event
which rendered the recall proceeding against her moot and academic. A perusal of the said
Resolution reveals that the person subject of the recall process is a specific elective official in
relation to her specific office. The said resolution is replete with statements, which leave no
doubt that the purpose of the assembly was to recall petitioner as Vice Mayor for her official acts
as Vice Mayor. The title itself suggests that the recall is intended for the incumbent Vice Mayor
of Santiago City. The third paragraph of the resolution recounted "the official acts of City Vice
Mayor Navarro that brought forth the loss of confidence in her capacity and fitness to discharge
the duties and to perform the functions of her public office." And because of such acts, the
assembly "RESOLVED to invoke the rescission of the electoral mandate of the incumbent City
Vice Mayor." Clearly, the intent of the PRA as expressed in the said Resolution is to
remove the petitioner as Vice Mayor for they already lost their confidence in her by
reason of her official acts as such. To recall, then, the petitioner when she is already the
incumbent City Mayor is to deviate from the expressed will of the PRA. Having, thus,
succeeded to the position of City Mayor, the petitioner was placed beyond the reach of the
effects of the PRA Resolution.
The specific purpose of the PRA was to remove Amelita S. Navarro as the elected ViceMayor of Santiago City. However, the said PRA Resolution No. 1 is no longer applicable to her
inasmuch as she has already vacated the office of Vice-Mayor on October 11, 1999 when she
assumed the position of City Mayor of Santiago City.
Even if the PRA were to reconvene to adopt another resolution for the recall of Amelita
Navarro, this time as Mayor of Santiago City, the same would still not prosper in view of Section
74 (b) of the Local Government Code of 1991 which provides that "No recall shall take place
within one (1) year from the date of the official's assumption of office or one (1) year
immediately preceding a regular election." There is no more allowable time in the light of that
law within which to hold recall elections for that purpose. The then Vice- Mayor Amelita S.
Navarro assumed office as Mayor of Santiago City on October 11, 1999. One year after her
assumption of office as Mayor will be October 11, 2000 which is already within the one (1) year
prohibited period immediately preceding the next regular election in May 2001.
FRANCIS ONG v. JOSEPH STANLEY ALEGRE and COMELEC.
Facts
Joseph Stanley Alegre (Alegre) and Francis Ong (Francis) were candidates who filed
certificates of candidacy for mayor of San Vicente, Camarines Norte in the May 10, 2004
elections. Francis was then the incumbent mayor.
On January 9, 2004, Alegre filed with the COMELEC Provincial Office a Petition to
Disqualify, Deny Due Course and Cancel Certificate of Candidacy of Francis. The petition to
disqualify was predicated on the three-consecutive term rule, Francis having, according to

Alegre, ran in the May 1995, May 1998, and May 2001 mayoralty elections and have
assumed office as mayor and discharged the duties thereof for three (3) consecutive full terms
corresponding to those elections.
In the May 1998 elections, Francis was proclaimed by COMELEC winner in that contest.
Alegre subsequently filed an election protest before the Regional Trial Court (RTC). RTC
declared Alegre as the duly elected mayor in that 1998 mayoralty contest, albeit the decision
came out only on July 4, 2001, when Francis had fully served the 1998-2001 mayoralty term
and was in fact already starting to serve the 2001-2004 term as mayor-elect of the
municipality of San Vicente. The First Division of the COMELEC rendered on March 31, 2004 a
resolution dismissing the said petition of Alegre. Alegre filed a timely motion for reconsideration.
COMELEC en banc revered the decision and declared Francis as disqualified to run in the May
2004 elections. Rommel Ong (Rommel) became the substitute candidate but was not approved
by the Comelec. Alegre was proclaimed winner of the 2004 May elections. Francis filed before
the Court a petition for certiorari and his brother Rommel's petition were consolidated.
ISSUE:
Is petitioner Francis's assumption of office as Mayor of San Vicente, Camarines
Norte for the mayoralty term 1998 to 2001 should be considered as full service for the
purpose of the three-term limit rule?
HELD.
YES. The three-term limit rule for elective local officials is found in Section 8,
Article X of the 1987 Constitution, which provides:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of his service for the full term for which he was
elected.
Section 43 (b) of the Local Government Code restates the same rule as follows:
Sec. 43. Term of Office.
(b) No local elective official shall serve for more than three consecutive years in the
same position. Voluntary renunciation of the office for any length of time shall not be
considered an interruption in the continuity of service for the full term for which the elective
official concerned was elected.
For the three-term limit for elective local government officials to apply, two conditions or
requisites must concur, to wit:
(1) that the official concerned has been elected for three (3) consecutive terms in the same local
government post, and
(2) that he has fully served three (3) consecutive terms.
We hold that such assumption of office constitutes, for Francis, "service for the full term",
and should be counted as a full term served in contemplation of the three-term limit prescribed
by the constitutional and statutory provisions, supra, barring local elective officials from being
elected and serving for more than three consecutive term for the same position.
It is true that the RTC-Daet, Camarines Norte ruled in Election Protest Case No. 6850,
that it was Francis' opponent (Alegre) who "won" in the 1998 mayoralty race and, therefore, was
the legally elected mayor of San Vicente. However, that disposition, it must be stressed, was
without practical and legal use and value, having been promulgated after the term of the

contested office has expired. Petitioner Francis' contention that he was only a presumptive
winner in the 1998 mayoralty derby as his proclamation was under protest did not make
him less than a duly elected mayor. His proclamation by the Municipal Board of Canvassers
of San Vicente as the duly elected mayor in the 1998 mayoralty election coupled by his
assumption of office and his continuous exercise of the functions thereof from start to finish of
the term, should legally be taken as service for a full term in contemplation of the three-term
rule.
The absurdity and the deleterious effect of a contrary view is not hard to discern. Such
contrary view would mean that Alegre would under the three-term rule - be considered as
having served a term by virtue of a veritably meaningless electoral protest ruling, when another
actually served such term pursuant to a proclamation made in due course after an election.
VICTORINO DENNIS SOCRATES v. COMELEC, et al.
G.R. No. 154512, November 12, 2002, EN BANC (Carpio, J.)
Facts
312 out of 528 members of the incumbent barangay officials of the Puerto Princesa
convened themselves into a Preparatory Recall Assembly (PRA). The PRA was convened to
initiate the recall of Socrates who assumed office as Puerto Princesas mayor. The PRA passed
a Recall Resolution which declared its loss of confidence in Socrates and called for his recall.
The PRA requested the COMELEC to schedule the recall election for mayor within 30 days from
receipt of the Recall Resolution. Socrates filed with the COMELEC a petition to nullify and deny
due course to the Recall Resolution but was dismissed. The COMELEC fixed the campaign
period for 10 days for the recall election. Edward Hagedorn filed his certificate of candidacy for
mayor in the recall election but disqualifications were filed against him on the ground that he has
served as mayor for 3 consecutive terms immediately prior to the recall election for the same
post. Later, COMELEC declared that he is qualified to run. Meanwhile, Socrates argues that the
COMELEC committed grave abuse of discretion in upholding the Recall Resolution despite the
absence of notice to 130 PRA members and the defective service of notice to other PRA
members.
ISSUE:
1. Is the Recall Resolution valid?
2. Is Hagedorn qualified to run for mayor in the recall election?
HELD:
1. YES. The Court does not find any valid reason to hold that the COMELECs findings of
fact are patently erroneous.
Socrates claims that the PRA members had no authority to adopt the Recall Resolution
on July 2, 2002 because a majority of PRA members were seeking a new electoral mandate in
the barangay elections scheduled on July 15, 2002. This argument deserves scant
consideration considering that when the PRA members adopted the Recall Resolution their
terms of office had not yet expired. They were all de jure sangguniang barangay members with
no legal disqualification to participate in the recall assembly under Section 70 of the Local
Government Code. Thus, the Court rules that the COMELEC did not commit grave abuse of
discretion in upholding the validity of the Recall Resolution and in scheduling the recall election.
2. YES. In the case of Hagedorn, his candidacy in the recall election on September 24,
2002 is not an immediate reelection after his third consecutive term which ended on

June 30, 2001. The immediate reelection that the Constitution barred Hagedorn from
seeking referred to the regular elections in 2001. Hagedorn did not seek reelection in the
2001 elections.
Hagedorn was elected for 3 consecutive terms in the 1992, 1995 and 1998 elections and
served in full his 3 consecutive terms as mayor of Puerto Princesa. Under the Constitution and
the LGC, Hagedorn could no longer run for mayor in the 2001 elections. The Constitution and
the LGC disqualified Hagedorn, who had reached the maximum three-term limit, from running
for a 4th consecutive term as mayor. Thus, Hagedorn did not run for mayor in the 2001
elections. Socrates ran and won as mayor of Puerto Princesa in the 2001 elections. After
Hagedorn ceased to be mayor on June 30, 2001, he became a private citizen until the recall
election when he won by 3,018 votes over his closest opponent, Socrates.
From June 30, 2001 until the recall election, the mayor of Puerto Princesa was Socrates.
During the same period, Hagedorn was simply a private citizen. This period is clearly an
interruption in the continuity of Hagedorns service as mayor, not because of his voluntary
renunciation, but because of a legal prohibition. Hagedorns three consecutive terms ended on
June 30, 2001. Hagedorns new recall term from September 24, 2002 to June 30, 2004 is not a
seamless continuation of his previous consecutive terms as mayor. One cannot stitch together
Hagedorns previous three-terms with his new recall term to make the recall term a fourth
consecutive term because factually it is not. An involuntary interruption occurred from June 30,
2001 to September 24, 2002 which broke the continuity or consecutive character of Hagedorns
service as mayor.
In Hagedorns case, the nearly 15-month period he was out of office, although short of a
full term of three years, constituted an interruption in the continuity of his service as mayor. The
Constitution does not require the interruption or hiatus to be a full term of three years. The clear
intent is that interruption for any length of time, as long as the cause is involuntary, is sufficient
to break an elective local officials continuity of service.
LA CARLOTA CITY, NEGROS OCCIDENTAL v. ATTY. REX ROJO
FACTS.
On March 18, 2004, Vice Mayor Rex Jalandoon appointed Atty. Rex Rojo as
Sangguniang Panlungsod Secretary. The day preceding such appointment, Atty. Rojo had just
tendered his resignation as member during their session where Vice-Mayor Rex Jalandoon
(Jalandoon), as presiding officer, and six members of a twelve-member sanggunian were
present.
The status of the appointment was permanent.
Then the Vice-Mayor
submitted Rojos appointment papers to the Civil Service Commission Negros Occidental Field
Office (CSCFO-Negros Occidental) for attestation. The said CSCFO wrote to Jalandoon to
inform him of the infirmities the office found on the appointment documents, i.e. the Chairman of
the Personnel Selection Board and the Human Resource Management Officer did not sign the
certifications, the latter relative to the completeness of the documents as well as to the
publication requirement. In view of the failure of the appointing authority to comply with the
directive, the said CSCFO considered the appointment of Rojo permanently recalled or
withdrawn, in a subsequent Letter to Jalandoon.
ISSUE.
To whom does the LGC vests the power to accept the resignation of a member of the
sanggunian?
HELD.
The resolution of this case requires the application and interpretation of certain
provisions of Republic Act No. 7160 (RA 7160), otherwise known as the Local Government

Code of 1991. The pertinent provisions read:

Officials.

Section 82. Resignation of Elective Local

(a) Resignations by elective local officials shall be deemed effective only upon acceptance
by the following authorities:
(1) The President, in the case of governors, vice-governors, and mayors and vicemayors of highly urbanized cities and independent component cities;
(2) The governor, in the case of municipal mayors, municipal vice-mayors, city mayors
and city vice-mayors of component cities;
(3) The sanggunian concerned, in case of sanggunian members; and
(4) The city or municipal mayor, in the case of barangay officials.
(b) Copies of the resignation letters of elective local officials, together with the action taken
by the aforesaid authorities, shall be furnished the Department of Interior and Local
Government.
(c) The resignation shall be deemed accepted if not acted upon by the authority concerned
within fifteen (15) working days from receipt thereof.
(d) Irrevocable resignations by sanggunian members shall be deemed accepted upon
presentation before an open session of the sanggunianconcerned and duly
entered in its records: Provided, however,That this subsection does not apply
to sanggunian members who are subject to recall elections or to cases where existing
laws prescribe the manner of acting upon such resignations.
Section 49. Presiding Officer. (a) The vice-governor shall be the presiding officer of
the sangguniang panlalawigan; the city vice-mayor, of the sangguniang panlungsod; the
municipal
vice-mayor,
of
the sangguniang bayan;
and
the punong barangay,
of
the sangguniang barangay. The presiding officer shall vote only to break a tie.
(b) In the event of the inability of the regular presiding officer to preside at
a sanggunian session, the members present and consisting a quorum shall elect from among
themselves a temporary presiding officer. He shall certify within ten (10) days from the passage
of ordinances enacted and resolutions adopted by the sanggunian in the session over which he
temporarily presided.
Under RA 7160, the city vice-mayor, as presiding officer, is a member of
the Sangguniang Panlungsod. It 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. Blacks 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.
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,
the Sangguniang 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 theSangguniang 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.
F. Local Initiative and Referendum

ENRIQUE T. GARCIA, et al. v. COMELEC & SANGGUNIANG BAYAN OF MORONG

G.R. No. 111230, 30 September 1994, EN BANC, (Puno, J.)
Facts
In its Pambayang Kapasyahan Blg. 10, Serye 1993, the Sangguniang Bayan ng Morong,
Bataan agreed to the inclusion of the municipality of Morong as part of the Subic Special
Economic Zone in accord with Republic Act No. 7227.
The municipality of Morong did not take any action on the petition to annul by Garcia, et
al. Garcia, et al. then resorted to their power of initiative under the Local Government Code of
1991. They started to solicit the required number of signatures to cause the repeal of said
resolution. Unknown to the Garcia, et al., the Edilberto M. de Leon, Vice Mayor and Presiding
Officer of the Sangguniang Bayan ng Morong, wrote a letter to the Executive Director of
COMELEC requesting the denial of the petition for a local initiative and/or referendum because
the exercise will just promote divisiveness, counter productiveness and futility.
The COMELEC en banc resolved to deny the petition for local initiative on the ground
that its subject is "merely a resolution and not an ordinance." and to direct Provincial Election
Supervisor to hold action on the authentication of signatures being gathered by Garcia, et al.
ISSUE:
Can Pambayang Kapasyahan Blg. 10, serye 1993 of the Sangguniang Bayan of
Morong, Bataan be proper subject of an initiative?
RULING:
YES. The Constitution clearly includes not only ordinances but resolutions as
appropriate subjects of a local initiative. The constitutional command to include acts (i.e.,
resolutions) as appropriate subjects of initiative was implemented by Congress when it enacted
R.A. 6735 (An Act Providing for a System of Initiative and Referendum and Appropriating Funds
Therefor). Thus, its section 3(a) expressly includes resolutions as subjects of initiatives
on local legislations.
Resolutions are not normally subject to referendum for it may destroy the efficiency
necessary to the successful administration of the business affairs of a city.
In the case at bench, however, it can not be argued that the subject matter of the
resolution of the municipality of Morong merely temporarily affects the people of Morong for it
directs a permanent rule of conduct or government. The inclusion of Morong as part of the Subic
Special Economic Zone has far reaching implications in the governance of its people.
Considering the lasting changes that will be wrought in the social, political, and
economic existence of the people of Morong by the inclusion of their municipality in the Subic
Special Economic Zone, it is but logical to hear their voice on the matter via an initiative. It is not
material that the decision of the municipality of Morong for the inclusion came in the form of a
resolution for what matters is its enduring effect on the welfare of the people of Morong.
Worse, respondent COMELEC granted the petition without affording Garcia, et al. any
fair opportunity to oppose it. This procedural lapse is fatal for at stake is not an ordinary right but

the sanctity of the sovereignty of the people, their original power to legislate through the process
of initiative.
SUBIC BAY METROPOLITAN AUTHORITY vs. COMELEC G.R. No. 125416 September 26,
1996
Facts:
On March 13, 1992, Congress enacted RA. 7227 (The Bases Conversionand
Development Act of 1992), which created the Subic EconomicZone. RA 7227 likewise created
SBMA to implement the declared national policy of converting the Subic military reservation into
alternative productive uses.
On April 1993, the Sangguniang Bayan of Morong , Bataan passed Pambayang
Kapasyahan Bilang 10 , Serye 1993 , expressing therein its absolute concurrence, as required
by said Sec. 12 of RA 7227, to join the Subic Special Economic Zone and submitted such to the
Office of the President.
Respondents Garcia filed a petition with theSangguniang Bayan of Morong to annul
Pambayang Kapasyahan Blg.10, Serye 1993 .The petition prayed for the following: a) to nullify
Pambayang Kapasyang Blg. 10 for Morong to join the Subic Special Economi Zone,b) to allow
Morong to join provided conditions are met. Not satisfied, respondents resorted to their power
initiative under the LGC of 1991.
Comelec denied the petition for local initiative on the ground that the subject thereof was
merely a resolution and not an ordinance. Comelec issued Resolution No. 2845and 2848 ,
adopting a "Calendar of Activities for local referendum and providing for "the rules and
guidelines to govern the conduct of thereferendum. SBMA instituted a petition for certiorari
contestingthe validity of Resolution No. 2848 alleging that public respondents intent on
proceeding with a local initiative that proposes an amendment of a national law.
Issue:
Whether the respondent Comelec committed grave abuse of discretion in promulgating
and implementing its Resolution No. 2848 which "govern(s) the conduct of the referendum
proposing to annul or repeal Pambayang Kapasyahan Blg. 10, Serye 1993 of the Sangguniang
Bayan of Morong, Bataan;" and
Held:
Yes. To begin with, the process started by private respondents was an INITIATIVE but
respondent Comelec made preparations for a REFERENDUM only. In fact, in the body of the
Resolution[11] as reproduced in the footnote below the word "referendum" is repeated at least
27 times, but "initiative" is not mentioned at all. The Comelec labeled the exercise as a
"Referendum"; the counting of votes was entrusted to a "Referendum Committee"; the
documents were called "referendum returns"; the canvassers, "Referendum Board of
Canvassers" and the ballots themselves bore the description "referendum". To repeat, not once
was the word "initiative" used in said body of Resolution No. 2848. And yet, this exercise is
unquestionably an INITIATIVE.
There are statutory and conceptual demarcations between a referendum and an
initiative. In enacting the "Initiative and Referendum Act, Congress differentiated one term from
the other, thus:
(a) "Initiative" is the power of the people to propose amendments to the Constitution or to
propose and enact legislations through an election called for the purpose.
There are three (3) systems of initiative, namely:

a.1. Initiative on the Constitution which refers to a petition proposing amendments to

the Constitution;
a.2. Initiative on statutes which refers to a petition proposing to enact a national
legislation; and
a.3. Initiative on local legislation which refers to a petition proposing to enact a
regional, provincial, city, municipal, or barangay law, resolution or ordinance.
(b) "Indirect initiative" is exercise of initiative by the people through a proposition sent to
Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate to approve or reject a legislation through an
election called for the purpose. It may be of two classes, namely:
c.1. Referendum on statutes which refers to a petition to approve or reject an act or
law, or part thereof, passed by Congress; and
c.2. Referendum on local law which refers to a petition to approve or reject a law,
resolution or ordinance enacted by regional assemblies and local legislative bodies.
Along these statutory definitions, Justice Isagani A. Cruz[13] defines initiative as the "power
of the people to propose bills and laws, and to enact or reject them at the polls independent of
the legislative assembly." On the other hand, he explains that referendum "is the right reserved
to the people to adopt or reject any act or measure which has been passed by a legislative body
and which in most cases would without action on the part of electors become a law."
Prescinding from these definitions, we gather that initiative is resorted to (or initiated) by the
people directly either because the law-making body fails or refuses to enact the law, ordinance,
resolution or act that they desire or because they want to amend or modify one already
existing. Under Sec. 13 of R.A. 6735, the local legislative body is given the opportunity to enact
the proposal. If its refuses/neglects to do so within thirty (30) days from its presentation, the
proponents through their duly-authorized and registered representatives may invoke their power
of initiative, giving notice thereof to the local legislative body concerned. Should the proponents
be able to collect the number of signed conformities within the period granted by said statute,
the Commission on Elections "shall then set a date for the initiative (not referendum) at which
the proposition shall be submitted to the registered voters in the local government unit
concerned x x x".
On the other hand, in a local referendum, the law-making body submits to the registered
voters of its territorial jurisdiction, for approval or rejection, any ordinance or resolution which is
duly enacted or approved by such law-making authority. Said referendum shall be conducted
also under the control and direction of the Commission on Elections.
In other words, while initiative is entirely the work of the electorate, referendum is begun
and consented to by the law-making body. Initiative is a process of law-making by the people
themselves without the participation and against the wishes of their elected representatives,
while referendum consists merely of the electorate approving or rejecting what has been drawn
up or enacted by a legislative body. Hence, the process and the voting in an initiative are
understandably more complex than in a referendum where expectedly the voters will simply
write either "Yes" or "No" in the ballot.
RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952
REGISTERED VOTERS VS. THE COMMISSION ON ELECTIONS
Facts
Petitioners Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with other
groups and individuals, commenced gathering signatures for an initiative petition to change the

1987 Constitution. They filed a petition with the COMELEC to hold a plebiscite that will ratify
their initiative petition under Section 5(b) and (c) and Section 7 of Republic Act No. 6735 or the
Initiative and Referendum Act ("RA 6735"). The Lambino Group alleged that their petition had
the support of 6,327,952 individuals constituting at least twelve per centum (12%) of all
registered voters, with each legislative district represented by at least three per centum (3%) of
its registered voters. The Lambino Group also claimed that COMELEC election registrars had
verified the signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department) and Sections 1-4 of Article VII (Executive
Department) and by adding Article XVIII entitled "Transitory Provisions." These proposed
changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary
form of government. The Lambino Group prayed that after due publication of their petition, the
COMELEC should submit the following proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987
CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT
BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY SYSTEM, AND
PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT
FROM ONE SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC
indicating modifications in the proposed Article XVIII (Transitory Provisions) of their initiative.
COMELEC issued its Resolution denying due course to the Lambino Group's petition for
lack of an enabling law governing initiative petitions to amend the Constitution.
Issue:
Does the Lambino Group's initiative constitute a valid amendment of the Constitution?
Held:
No. Article XVII of the Constitution speaks of three modes of amending the Constitution.
The first mode is through Congress upon three-fourths vote of all its Members. The second
mode is through a constitutional convention. The third mode is through a people's initiative.
The framers of the Constitution intended, and wrote, a clear distinction between
"amendment" and "revision" of the Constitution. The framers intended, and wrote, that only
Congress or a constitutional convention may propose revisions to the Constitution. The framers
intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people
the power to propose revisions to the Constitution, the people cannot propose revisions even as
they are empowered to propose amendments.
The very term "constitution" implies an instrument of a permanent and abiding nature,
and the provisions contained therein for its revision indicate the will of the people that
the underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature. On the other hand, the
significance of the term "amendment" implies such an addition or change within the lines of the
original instrument as will effect an improvement, or better carry out the purpose for which it was
framed.
Revision broadly implies a change that alters a basic principle in the constitution, like
altering the principle of separation of powers or the system of checks-and-balances. There is
also revision if the change alters the substantial entirety of the constitution, as when the
change affects substantial provisions of the constitution. On the other hand, amendment

broadly refers to a change that adds, reduces, or deletes without altering the basic
principle involved. Revision generally affects several provisions of the constitution, while
amendment generally affects only the specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the quantitative
test and the qualitative extensive in its provisions as to change directly the 'substantial entirety'
of the constitution by the deletion or alteration of numerous existing provisions." The court
examines only the number of provisions affected and does not consider the degree of the
change. The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will "accomplish such far reaching changes
in the nature of our basic governmental plan as to amount to a revision." Whether there is an
alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the
nature of [the] basic governmental plan" includes "change in its fundamental framework or the
fundamental powers of its Branches." A change in the nature of the basic governmental plan
also includes changes that "jeopardize the traditional form of government and the system of
check and balances."
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. A change in the structure of government is a revision of
the Constitution, as when the three great co-equal branches of government in the present
Constitution are reduced into two. This alters the separation of powers in the Constitution.
A shift from the present Bicameral-Presidential system to a Unicameral-Parliamentary system is
a revision of the Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.
Lambino Group's initiative is a revision and not an amendment. Thus, the present
initiative is void and unconstitutional because it violates Section 2, Article XVII of the
Constitution limiting the scope of a people's initiative to "[A]mendments to this Constitution."
G. Disciplinary Action

GOVERNOR BENJAMIN I. ESPIRITU, petitioner, vs. NELSON B. MELGAR and HON.

JUDGE MARCIANO T. VIROLA, respondents.
G.R. No. 100874 February 13, 1992
FACTS:
Three complaints were filed against Mayor Nelson Melgar of Naujan, Oriental Mindoro,
charging him with grave misconduct, oppression, abuse of authority, culpable violation of the
Constitution and conduct prejudicial to the best interest of the public service. It was alleged that
Melgar, with abuse of official function, did then and there wilfully, unlawfully and feloniously
attack, assault and use personal violence upon the person of Ramir Garing, by then and there
boxing and kicking thereby inflicting upon the latter physical injuries on different parts of his
body and not being contented ordered his arrest and detention in the municipal jail of Naujan,
Oriental Mindoro without filing any charges.
In his answer, Mayor Melgar attested that during his speech at the Naujan Public
Gymnasium, a person in the name of Ramir Garing was found to be the culprit in the
disturbance made during the ceremony by a prolonged but nonetheless loud and intermittent
clapping which made the audience visibly disturbed as well as him in the gathering of his
thoughts. He was drunk. He did not hurt him as can be gathered from his medical certificate.
The Mayor as well was informed that said Ramir Garing was momentarily placed in custody for
his own protection because he was drunk and an open knife (balisong) was taken from him.

After evaluating the complaint and its supporting documents, as well as the Mayor's
answer and the affidavits of his witnesses, the Sangguniang Panlalawigan of Oriental Mindoro
passed a resolution recommending to the Provincial Governor that respondent Mayor be
preventively suspended for forty-five (45) days pending the investigation of the administrative
complaint.
Governor Espiritu placed Mayor Melgar under preventive suspension on the ground that
there is reasonable ground to believe that respondent Mayor has committed the acts stated in
the complaint and affidavit of Ramir Garing.
Melgar filed a "Petition for Certiorari with Preliminary Injunction with prayer for
Restraining Order" before the RTC whereby a writ of preliminary injunction enjoining Governor
Espiritu from implementing the Order of suspension against Mayor Melgar was issued.
Governor Espiritu filed a motion to dismiss and/or for reconsideration. Hence, this petition for
certiorari and prohibition.
ISSUE:
WON a preventive suspension against Mayor Melgar should be imposed.
RULING:
Clearly, the provincial governor of Oriental Mindoro is authorized by law to preventively
suspend the municipal mayor of Naujan at anytime after the issues had been joined and any of
the following grounds were shown to exist:
1. When there is reasonable ground to believe that the respondent has committed the act
or acts complained of;
2. When the evidence of culpability is strong;
3. When the gravity of the offense so warrants; or
4. When 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.
There is nothing improper in suspending an officer before the charges against him are
heard and before he is given an opportunity to prove his innocence ( era vs
arcia and
lica o 1
hil 1 1) Preventive suspension is allowed so that the respondent may not
hamper the normal course of the investigation through the use of his influence and authority
over possible witnesses (Lacson vs. Roque, 92 Phil. 456).
Since respondent mayor believed that his preventive suspension was unjustified and
politically motivated, he should have sought relief first from the Secretary of Interior and Local
Government, not from the courts. Mayor Melgar's direct recourse to the courts without
exhausting administrative remedies was premature.
There may exist honest differences of opinion with regard to the seriousness of the
charges, or as to whether they warrant disciplinary action. However, as a general rule, the office
or body that is invested with the power of removal or suspension should be the sole judge of the
necessity and sufficiency of the cause. So, unless a flagrant abuse of the exercise of that
power is shown, public policy and a becoming regard for the principle of separation of powers
demand that the action of said officer or body should be left undisturbed.
However, in this particular case, since the 60-day preventive suspension of Mayor
Melgar was maintained by the Temporary Restraining Order which we issued on August 6,
1991, and therefore has already been served, he is deemed reinstated in office without
prejudice to the continuation of the administrative investigation of the charges against him

RODOLFO D. LLAMAS, PETITIONER, VS. EXECUTIVE SECRETARY OSCAR ORBOS AND

MARIANO UN OCAMPO III, RESPONDENTS.
G.R. No. 99031, October 15, 1991, EN BANC, PARAS, J.
Facts
In August 1988, respondent governor, as Provincial Governor of Tarlac, entered into and
executed a Loan Agreement with the Lingkod Tarlac Foundation, Inc., a non-stock and nonprofit organization headed by the governor himself as chairman and controlled by his brother-inlaw as executive director, trustee, and secretary; that the said Loan Agreement was never
authorized and approved by the Provincial Board, in direct contravention of the provisions of the
LGC. Thereafter the Secretary of the Department of Local Government (DLG) rendered a
decision finding the respondent guilty of violating the Anti-Graft and Corrupt Practices Act and
suspended him for a period of 90 days. The office of the president through the executive
secretary, likewise affirmed the decision
Thereafter, on March 1, 1991, took his oath of office as acting governor. Under the
administrative suspension order, petitioner had up to May 31, 1991 as acting governor. On May
15, 1991, the executive secretary issued a resolution granting executive clemency to the
respondent governor13. By virtue of the aforequoted Resolution, respondent governor
reassumed the governorship of the province, allegedly without any notification made to the
petitioner.
Issues
(1) WON the grant of executive clemency and the reason thereof, are political questions
beyond judicial review,
(2) WON the President of the Philippines has the power to grant executive clemency in
administrative cases.
Held
(1) No, the court my exercise its power of judicial review. While it is true that courts cannot
inquire into the manner in which the President's discretionary powers are exercised or into the
wisdom for its exercise, it is also a settled rule that when the issue involved concerns the validity
of such discretionary powers or whether said powers are within the limits prescribed by the
Constitution, the court will not decline to exercise the power of judicial review. What is generally
meant, when it is said that a question is political, and not judicial, is that it is a matter which is to
be exercised by the people in their primary political capacity, or that it has been specifically
delegated to some other department or particular officer of the government, with discretionary
power to act.
Besides, under the 1987 Constitution, the Supreme Court has been conferred an
"expanded jurisdiction" to review the decisions of the other branches and agencies of the
government to determine whether or not they have acted within the bounds of the Constitution
(Art. VIII, Sec. 1). Yet, in the exercise thereof, the Court is to merely check whether or not the
governmental branch or agency has gone beyond the constitutional limits of its jurisdiction, not
that it erred or has a different view.

In his letter petition to the Exec. Secretary, petitioner submitted documents and letters from his constituents tending
to show the relative success of his livelihood loan program pursued under the aegis of the LTFI and/or the
Foundation's credible loan repayment record. Petitioner (governor) submitted documents and letters from his
constituents tending to show the relative success of his livelihood loan program pursued under the aegis of the LTFI
and/or the Foundation's credible loan repayment record.
13

(2) Yes, applying the doctrine Ubi lex non distinguit, nec nos distinguire debemos (Where the
law does not distinguish, neither should we distinguish. The court cannot sustain the view of the
petitioner that the grant of executive clemency applies only to criminal cases. Based on Article
VII, Section 1914 of the constitution, it does not distinguish between which cases executive
clemency may be exercised by the President, with the sole exclusion of impeachment cases.
By the same token, if executive clemency may be exercised only in criminal cases, it would
indeed be unnecessary to provide for the exclusion of impeachment cases from the coverage of
Article VII, Section 19 of the Constitution. In the same vein, the court does not clearly see any
valid and convincing reason why the President cannot grant executive clemency in
administrative cases. It is the courts considered view that if the President can grant reprieves,
commutations and pardons, and remit fines and forfeitures in criminal cases, with much more
reason can she grant executive clemency in administrative cases, which are clearly less serious
than criminal offenses.
Note:

It is evident from the intent of the Constitutional Commission, therefore, that the
President's executive clemency powers may not be limited in terms of coverage, except
as already provided in the Constitution, that is, "no pardon, amnesty, parole, or
suspension of sentence for violation of election laws, rules and regulations shall be
granted by the President without the favorable recommendation of the COMELEC 15
The court also made a discussion on supervision and control. Under the administrative
code of 1987, Supervision and control shall include authority to act directly whenever a
specific function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve, reverse or modify
acts and decisions of subordinate officials or units; determine priorities in the execution
of plans and programs.
Implicit in this authority, however, is the "supervision and control" power of the President
to reduce, if circumstances so warrant, the imposable penalty or to modify the
suspension or removal order, even "in the sense" of granting executive clemency.
"Control," within the meaning of the Constitution, is the power to substitute one's own
judgment for that of a subordinate. Under the doctrine of Qualified Political Agency,
the different executive departments are mere adjuncts of the President. Their acts are
presumptively the acts of the President until countermanded or reprobated by her
(Aquino).
President, in the exercise of her power of supervision and control over all executive
departments, may substitute her decision for that of her subordinate, most especially
where the basis therefor would be to serve the greater public interest. It is clearly within
the power of the President not only to grant "executive clemency" but also to reverse or
modify a ruling issued by a subordinate against an erring public official, where a
reconsideration of the facts alleged would support the same. It is in this sense that the
alleged executive clemency was granted, after adducing reasons that subserve the
public interest. "the relative success of . . . livelihood loan program
The court made a qualification that when it ruled the President can grant executive
clemency in administrative cases, it refers only to all administrative cases in the
Executive branch, not in the Judicial or Legislative branches of the government.

Sec. 19. Except in cases of impeachment, or as otherwise provided in this Constitution, the President may grant
reprieves, commutations, and pardons, and remit fines and forfeitures, after conviction by final judment.
15 Although originally intended to prevent the President from protecting his cronies, the ConCom opted to do away with
the provision the power to grant executive clemency for violation of corrupt practices laws may be limited by
legislation for it will chip away the power of the president
14

In the dissenting opinion of Justice Padilla, the appellate jurisdiction of the President to
review, reverse or modify the decision of the Sec. of DILG does not carry with it the
power to grant executive clemency. Neither does the Local Government Code expressly
vest upon the President the power to commute or lift the administrative sanctions
imposed upon erring, local elective officials after the decision has become final.
o Further he disagrees that executive clemency cannot apply to administrative
cases for the reason that the philosophy behind the grant of power to the
President to grant executive clemency is founded on the recognition that human
institutions are imperfect and that there are infirmities, deficiencies or flaws in the
administration of justice. The power exists as an instrument or means for
correcting these infirmities and also for mitigating whatever harshness might be
generated by a too strict an application of the law. Such principle applies to all
criminal offenses committed against the state.

RODOLFO E. AGUINALDO, PETITIONER, VS. HON. LUIS SANTOS, AS SECRETARY OF

THE DEPARTMENT OF LOCAL GOVERNMENT, AND MELVIN VARGAS, AS ACTING
GOVERNOR OF CAGAYAN, RESPONDENTS.
FACTS
Petitioner was the duly elected Governor of the province of Cagayan, having
been elected to said position during the local elections held on January 17, 1988, to serve a
term of 4 years therefrom. On December 7, 1989, a sworn complaint for disloyalty to the
Republic and culpable violation of the Constitution was filed by Mayor Agatep of Gattaran,
Mayor Mamba of Tuao and Mayor Agatep of Lasam, all in Cagayan, against petitioner for acts
the latter committed during the coup. In response, petitioner denied being privy to the
planning of the coup or actively participating in its execution, though he admitted that he was
sympathetic to the cause of the rebel soldiers.
On the basis of his reply, respondent Secretary suspended petitioner from
office for 60 days from notice, pending the outcome of the formal investigation into the charges
against him. During the hearing conducted on the charges against petitioner, complainants
presented testimonial and documentary evidence to prove the charges. Petitioner neither
presented evidence nor even cross-examined the complainant's witnesses, choosing instead to
move that respondent Secretary inhibit himself from deciding the case, which motion was
denied. Thereafter, respondent Secretary rendered the questioned decision finding
petitioner guilty as charged and ordering his removal from office.
One of the three grounds petitioner relies on for this petition is that the alleged
act of disloyalty committed by petitioner should be proved by proof beyond reasonable doubt,
and not be a mere preponderance of evidence, because it is an act punishable as rebellion
under the RPC.
While this case was pending before this Court, petitioner filed his certificate of
candidacy for the position of Governor of Cagayan for the May 11, 1992 elections. 3 separate
petitions for his disqualification were then filed against him, all based on the ground that he had
been removed from office by virtue of the resolution of respondent Secretary. The Commission
on Elections granted the petitions by way of a resolution dated May 9, 1992 but also ruled that
inasmuch as their resolutions become final and executory only after five (5) days from
promulgation, petitioner may still be voted upon as a candidate for governor pending the
final outcome of the disqualification cases with this Court. Thereafter, a resolution was
issued by the SC annulling the said resolution of the Commission on the ground that the
decision of respondent Secretary has not yet attained finality and is still pending review with this
Court. As petitioner won by a landslide margin in the elections, the SCs resolution paved the

way for his eventual proclamation as Governor of Cagayan.

ISSUE
WON petitioner should be removed from office on the ground of disloyalty to the
Republic
RULING
NO. Petitioner's re-election to the position of Governor of Cagayan has rendered the
administrative case pending before us moot and academic. It appears that after the canvassing
of votes, petitioner garnered the most number of votes among the candidates for governor of
Cagayan province. As held by this Court in Aguinaldo v. Comelec et al., supra,:
xxx
'Considering the facts narrated, the expiration of petitioner's term of office during which the acts
charged were allegedly committed, and his subsequent reelection, the petition must be
dismissed for the reason that the issue has become academic. In Pascual v. Provincial Board of
Nueva Ecija, L-11959, October 31, 1959, this Court has ruled:
'The weight of authority, however, seems to incline to the rule denying the right to
remove from office because of misconduct during a prior term to which we fully subscribe.
'Offenses committed, or acts done, during a previous term are generally held not
to furnish cause for removal and this is especially true where the Constitution provides
that the penalty in proceeding for removal shall not extend beyond the removal from
office, and disqualification from holding office for a term for which the officer was
elected or appointed.
'The underlying theory is that each term is separate from other terms, and that the
reelection to office operates as a condonation of the officer's misconduct to the extent of
cutting off the right to remove him therefor.
'The Court should never remove a public officer for acts done prior to his present
term of office. To do otherwise would be to deprive the people of their right to elect their
officers. When the people have elected a man to office, it must be assumed that they did
this with knowledge of his life and character, and that they disregarded or forgave his
fault or misconduct, if he had been guilty of any. It is not for the court, by reason of such
fault or misconduct, to practically overrule the will of the people.'
Clearly then, the rule is that a public official can not be removed for administrative
misconduct committed during a prior term, since his re-election to office operates as a
condonation of the officer's previous misconduct to the extent of cutting off the right to remove
him therefor. The foregoing rule, however, finds no application to criminal cases pending against
petitioner for acts he may have committed during the failed coup.
Petition granted and the decision of public respondent Secretary of Local Government,
dismissing petitioner as Governor of Cagayan, is hereby reversed.
*Petitioner also contends that the power of respondent Secretary to suspend or remove
local government officials as alter ego of the President, and as embodied in B.P. Blg. 337 has
been repealed by the 1987 Constitution and which is now vested in the courts. The Court do not
agree. The power of respondent Secretary to remove local government officials is anchored on
both the Constitution and a statutory grant from the legislative branch. The constitutional basis
is provided by Articles VII (17) and X (4) of the 1987 Constitution which vest in the President the
power of control over all executive departments, bureaus and offices and the power of general
supervision over local governments, and by the doctrine that the acts of the department head
are presumptively the acts of the President unless expressly rejected by him. Inasmuch as the

power and authority of the legislature to enact a local government code, which provides for the
manner of removal of local government officials, is found in the 1973 Constitution as well as in
the 1987 Constitution, then it can not be said that B.P. Blg. 337 was repealed by the effectivity
of the present Constitution. Moreover, in Bagabuyo et al. vs. Davide, Jr., et al., this Court had
the occasion to state that B.P. Blg. 337 remained in force despite the effectivity of the present
Constitution, until such time as the proposed Local Government Code of 1991 is approved. The
power of respondent Secretary of the Department of Local Government to remove local elective
government officials is found in Secs. 60 and 61 of B.P. Blg. 337.
PEOPLE OF THE PHILIPPINES v. ROMEO G. JALOSJOS
G.R. Nos. 132875-76, February 03, 2000, EN BANC, (YNARES-SANTIAGO, J.)
Facts
The accused-appellant, Romeo G. Jalosjos is a full-fledged member of Congress who is
now confined at the national penitentiary while his conviction for statutory rape on two counts
and acts of lasciviousness on six counts is pending appeal. The accused-appellant filed this
motion asking that he be allowed to fully discharge the duties of a Congressman, including
attendance at legislative sessions and committee meetings despite his having been convicted in
the first instance of a non-bailable offense. The primary argument of the movant is the "mandate
of sovereign will." He states that the sovereign electorate of the First District of Zamboanga del
Norte chose him as their representative in Congress. Having been re-elected by his
constituents, he has the duty to perform the functions of a Congressman. He calls this a
covenant with his constituents made possible by the intervention of the State. He adds that it
cannot be defeated by insuperable procedural restraints arising from pending criminal cases.
ISSUE:
Does membership in Congress exempt an accused from statutes and rules which apply
to validly incarcerated persons in general?
HELD:
NO. The immunity from arrest or detention of Senators and members of the House of
Representatives, the latter customarily addressed as Congressmen, arises from a provision of
the Constitution. The history of the provision shows that the privilege has always been granted
in a restrictive sense. The provision granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It may not be extended by intendment,
implication or equitable considerations.
The 1973 Constitution broadened the privilege of immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang Pambansa shall, in all offenses
punishable by not more than six years imprisonment, be privileged from arrest during his
attendance at its sessions and in going to and returning from the same.
For offenses punishable by more than six years imprisonment, there was no immunity
from arrest. The restrictive interpretation of immunity and the intent to confine it within carefully
defined parameters is illustrated by the concluding portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender the member involved to the custody of the law
within twenty four hours after its adjournment for a recess or for its next session, otherwise such
privilege shall cease upon its failure to do so.
The present Constitution adheres to the same restrictive rule minus the obligation of
Congress to surrender the subject Congressman to the custody of the law. The requirement that
he should be attending sessions or committee meetings has also been removed. For relatively
minor offenses, it is enough that Congress is in session.

No less than accused-appellant himself admits that like any other member of the House
of Representatives "[h]e is provided with a congressional office situated at Room N-214, North
Wing Building, House of Representatives Complex, Batasan Hills, Quezon City, manned by a
full complement of staff paid for by Congress. Through [an] inter-department coordination, he is
also provided with an office at the Administration Building, New Bilibid Prison, Muntinlupa City,
where he attends to his constituents." Accused-appellant further admits that while under
detention, he has filed several bills and resolutions. It also appears that he has been receiving
his salaries and other monetary benefits. Succinctly stated, accused-appellant has been
discharging his mandate as a member of the House of Representative consistent with the
restraints upon one who is presently under detention. Being a detainee, accused-appellant
should not even have been allowed by the prison authorities at the National Pentientiary to
perform these acts.
When the voters of his district elected the accused-appellant to Congress, they did so
with full awareness of the limitations on his freedom of action. They did so with the knowledge
that he could achieve only such legislative results which he could accomplish within the confines
of prison. To give a more drastic illustration, if voters elect a person with full knowledge that he
is suffering from a terminal illness, they do so knowing that at any time, he may no longer serve
his full term in office.
We, therefore, find that election to the position of Congressman is not a reasonable
classification in criminal law enforcement. The functions and duties of the office are not
substantial distinctions which lift him from the class of prisoners interrupted in their freedom and
restricted in liberty of movement. Lawful arrest and confinement are germane to the purposes of
the law and apply to all those belonging to the same class.
VICENTE SALUMBIDES, JR. & GLENDA ARAA v. OFFICE OF THE OMBUDSMAN, et al.
G.R. No. 180917, April 23, 2010, EN BANC (Carpio Morales, J.)
Facts
Salumbides and Araa were appointed as Municipal Legal Officer/Administrator and
Municipal Budget Officer, respectively, of Tagkawayan, Quezon. Mayor Salumbides III saw the
urgent need to construct a two-classroom building with fence for the Tagkawayan Municipal
High School (TMHS) since the public school in the poblacion area would no longer admit high
school freshmen. The mayor consulted Salumbides who suggested that the construction of the
two-classroom building be charged to the account of the Maintenance and Other Operating
Expenses/ Repair and Maintenance of Facilities (MOOE/RMF) and implemented "by
administration," as had been done in a previous classroom building project of the former mayor.
Upon consultation, Glenda advised Salumbides, that there were no more available funds that
could be taken from the MOOE/RMF, but the savings of the municipal government were
adequate to fund the projects. She added, however, that the approval by the Sangguniang
Bayan of a proposed supplemental budget must be secured however the members of the
Sangguniang Bayan are already on recess. Glenda and Salumbides advised the mayor to
source the funds from the P1M MOOE/RMF allocation in the approved Municipal Annual
Budget. The mayor thus ordered Municipal Engr. Aquino to proceed with the construction of the
projects based on the program of work and bill of materials he prepared. The mayor included
the projects in the list of local government projects scheduled for bidding.
The construction of the projects commenced without any approved appropriation and
ahead of the public bidding. Salumbides was of the opinion that the projects were regular and
legal, based on an earlier project that was "implemented in the same manner, using the same
source of fund and for the same reason of urgency" which was allowed "because the building
was considered merely temporary as the TMHS is set to be transferred to an 8-hectare lot which

the municipal government is presently negotiating to buy." Meanwhile, Aquino suggested to the
Sangguniang Bayan the adoption of "model guidelines" in the implementation of infrastructure
projects to be executed "by administration," while Councilor Sandro sponsored a Resolution to
ratify the projects and to authorize the mayor to enter into a negotiated procurement. Both
actions did not merit the approval of the Sangguniang Bayan. The petitioners were charged with
Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct Prejudicial to the Best Interest
of the Service, and violation of the COA Rules and the LGC.
ISSUE:
Is it valid to expand the doctrine of condonation to cover coterminous appointive officials
who were administratively charged along with the reelected official/appointing authority with
infractions allegedly committed during their preceding term?
HELD:
NO. The doctrine of condonation cannot be applied to appointive officials for there lies a
substantial distinction between appointive and elective officials.
Simple neglect of duty is defined as the failure to give proper attention to a task
expected from an employee resulting from either carelessness or indifference. In the present
case, petitioners fell short of the reasonable diligence required of them, for failing to exercise
due care and prudence in ascertaining the legal requirements and fiscal soundness of the
projects before stamping their imprimatur and giving their advice to their superior.
The CA correctly ruled that as municipal legal officer, petitioner Salumbides "failed to
uphold the law and provide a sound legal assistance and support to the mayor in carrying out
the delivery of basic services and provisions of adequate facilities when he advised [the mayor]
to proceed with the construction of the subject projects without prior competitive bidding." As
pointed out by the OSG, to absolve Salumbides is tantamount to allowing with impunity the
giving of erroneous or illegal advice, when by law he is precisely tasked to advise the mayor on
"matters related to upholding the rule of law." Indeed, a legal officer who renders a legal opinion
on a course of action without any legal basis becomes no different from a lay person who may
approve the same because it appears justified.
As regards petitioner Glenda, the appellate court held that the improper use of
government funds upon the direction of the mayor and prior advice by the municipal legal officer
did not relieve her of liability for willingly cooperating rather than registering her written objection
as municipal budget officer.
When a public officer takes an oath of office, he or she binds himself or herself to
faithfully perform the duties of the office and use reasonable skill and diligence, and to act
primarily for the benefit of the public. Thus, in the discharge of duties, a public officer is to use
that prudence, caution, and attention which careful persons use in the management of their
affairs.
Public service requires integrity and discipline. For this reason, public servants must
exhibit at all times the highest sense of honesty and dedication to duty. By the very nature of
their duties and responsibilities, public officers and employees must faithfully adhere to hold
sacred and render inviolate the constitutional principle that a public office is a public trust; and
must at all times be accountable to the people, serve them with utmost responsibility, integrity,
loyalty and efficiency.
MAYOR JESUS MIGUEL YULO v. CIVIL SERVICE COMMISSION, APOLONIO ELASIGUE,
AND TEOFILO MAMPLATA et al.
FACTS.

On November 24, 1986, private respondent Apolonio A. Elasigue, Officer in-Charge of

the Municipality of Calamba, Laguna terminated the services of private respondents Mamplata
and 43 other employees of said municipality based on the reorganization and approval of the
new staffing pattern thereof.
Private respondents Mamplata and the other separated employees assailed the action of
respondent Elasigue before the Inter-Agency Review Committee created under EO No. 17.
Since the private respondents were not removed pursuant to Executive Order No. 17 and there
is no showing that the reorganization was undertaken to circumvent the said statute, the
Committee referred the case to the Merit Systems Protection Board (MSPB) of respondent Civil
Service Commission. Pending disposition of the case by the MSPB, Elasigue lost in the
mayoralty election in 1988 to petitioner Yulo.
The MSPB, finding that there is no sufficient evidence to prove the guilt of private
respondents, ordered the reinstatement of Mamplata and 28 other employees and the payment
of their backwages by the municipality.
Petitioner Yulo, as the elected mayor filed a Motion for Reconsideration but to no avail.
On appeal, respondent Commission affirmed the decision of the MSPB. The MR filed later on
by petitioner was denied by respondent Commission which upheld its earlier ruling but reduced
the number of employees to be reinstated to 21 the reason being that during the pendency of
the case before the MSPB and respondent Commission, some were re-employed while two of
the dismissed employees, Cresencia Belarmino and Marcial Manila died. Their untimely death
notwithstanding, respondent Commission ordered the payment of their backwages up to the
time of their respective demise.
ISSUE.
WON the removal of private respondents Mamplata, et al. from office due to the
reorganization and approval of a new staffing pattern of the municipal government of Calamba
is valid.
HELD.
NO. In his narration of facts, petitioner himself admitted that private respondents'
services were terminated pursuant to the reorganization and approval of the new staffing pattern
of Calamba on November 3, 1986 (Rollo, pp. 4-5). Petitioner's argument to the effect that
respondents were separated from the service by virtue of the Freedom Constitution or Executive
Order No. 17 is palpably an afterthought. That is why when the respondents appealed their
dismissal to the Inter-Agency Review Committee created under Executive Order No. 17, said
Committee refused to take cognizance of said appeal on the ground that the dismissal was not
made pursuant to the Freedom Constitution or Executive Order No. 17 and instead referred the
case on appeal to the MSPB.
It is thus crystal clear that private respondents were not separated from the service
based on Section 2, Article III of the Freedom Constitution or Executive Order No. 17
implementing the then basic law. On the contrary, their services were terminated as a "result of
the reorganization and approval of the new staffing pattern of the municipality of Calamba on
November 3, 1986" stated in the individual notices of termination served upon them by the then
OIC Mayor.
Petitioner Yulo's argument that private respondents were separated by virtue of the
Freedom Constitution is therefore erroneous. Not only that. As records further indicate, the
MSPB found that there was no sufficient evidence to prove the guilt of private respondents. As
to what were the charges levelled against the dismissed employees, petitioner Yulo could
merely insinuate that some of said employees were of "questionable integrity". It is glaringly

obvious, therefore, that at the time private respondents were dismissed from the service on
November 24, l986, there was no evidence to substantiate the claim of questionable integrity.
Simply stated, respondents were removed without cause.
Aside from petitioner's unproven allegation of "questionable integrity", neither has he
shown that respondents herein were removed for cause much less that the supposed
reorganization was undertaken on the ground of economy or redundancy. While there may be a
decrease in the number of positions, i.e., from 285 to 266 as a result of the reorganization, the
number of regular employees, on the other hand, increased from 231 to 263 brought about by
the appointment of forty-eight (48) new employees. As found by the MSPB, the separated
employees were holding permanent appointments at the time of their removal and as such, they
enjoy preference in reappointment to a similar position in the new staffing pattern (Rollo, p.
21, citing CSC MC 5, s. 1988).
Be that as it may, it is undeniable that private respondents' employment with the
municipality was unlawfully terminated. On this score alone, the dismissed employees ought to
and must be reinstated. Illegal removal of career civil service employees in violation of their
constitutional right to security of tenure will not be condoned under the guise of reorganization
WILMER GREGO v. COMELEC & HUMBERTO BASCO
G.R. No. 125955, 19 June 1997, EN BANC, (Romero, J.)
Facts
On 1981, Basco was removed from his position as Deputy Sheriff by no less than this
Court upon a finding of serious misconduct in an administrative complaint lodged by a certain
Nena Tordesillas.
Subsequently, Basco ran for Councilor in the Second District of the City of Manila during the
1988 local elections.
He won and assumed office. After his term, Basco sought re-election in the 1992
synchronized national elections. Again, he succeeded in his bid and he was elected as one of
the 6 City Councilors. However, Cenon Ronquillo, another candidate for councilor in the same
district, alleged Bascos ineligibility to be elected councilor on the basis of the Tordesillas ruling.
At about the same time, two more cases were also commenced by Honorio Lopez II in the
Office of the Ombudsman and in the Department of Interior and Local Government. All these
challenges were, however, dismissed.
Basco remained undaunted and ran again for councilor in the 1995 local elections
seeking a third and final term. Once again, he emerged sixth for six councilor seats. Grego filed
a petition for disqualification of Bascos disqualification due to the Tordesillas ruling. Manila City
Board of Canvassers (BOC) proclaimed Basco as a duly elected councilor for the Second
District of Manila, placing sixth among several candidates who vied for the seats. Basco
immediately took his oath of office.
ISSUE:
Should Basco be disqualified from running for any elective position since he had been
removed from office as a result of an administrative case pursuant to Section 40 (b) of the LG
Code ?
RULING:
NO. There is no provision in the statute which would clearly indicate that the same
operates retroactively. It, therefore, follows that [Section] 40 (b) of the Local Government
Code is not applicable to the present case. That the provision of the Code in question does

not qualify the date of a candidates removal from office and that it is couched in the past tense
should not deter us from the applying the law prospectively. The basic tenet in legal
hermeneutics that laws operate only prospectively and not retroactively provides the
qualification sought by Grego.
The issue of whether or not Bascos triple election to office cured his alleged
ineligibility is actually beside the point because the argument proceeds on the
assumption that he was in the first place disqualified when he ran in the three previous
elections. This assumption, of course, is untenable considering that Basco was NOT subject to
any disqualification at all under Section 40 (b) of the Local Government Code which, as we said
earlier, applies only to those removed from office on or after January 1, 1992. In view of the
irrelevance of the issue posed by petitioner, there is no more reason for the Court to still dwell
on the matter at length.
Anent Bascos alleged circumvention of the prohibition in Tordesillas against
reinstatement to any position in the national or local government, including its agencies and
instrumentalities, as well as government-owned or controlled corporations, we are of the view
that petitioners contention is baseless. Neither does petitioners argument that the term any
position is broad enough to cover without distinction both appointive and local positions merit
any consideration. Contrary to Gregos assertion, the Tordesillas decision did not bar Basco
from running for any elective position.
In this regard, particular attention is directed to the use of the term reinstatement.
Under the former Civil Service Decree,the law applicable at the time Basco, a public officer, was
administratively dismissed from office, the term reinstatement had a technical meaning,
referring only to an appointive position.
Section 6 of Rep. Act 6646 does not support Gregos contention that the COMELEC, or
more properly speaking, the Manila City BOC, should have suspended the proclamation. The
use of the word may indicates that the suspension of a proclamation is merely
directory and permissive in nature and operates to confer discretion. What is merely made
mandatory, according to the provision itself, is the continuation of the trial and hearing of the
action, inquiry or protest. Thus, in view of this discretion granted to the COMELEC, the question
of whether or not evidence of guilt is so strong as to warrant suspension of proclamation must
be left for its own determination and the Court cannot interfere therewith and substitute its own
judgment unless such discretion has been exercised whimsically and capriciously.
The COMELEC has not found any ground to suspend the proclamation and the records
likewise fail to show any so as to warrant a different conclusion from this Court. Hence, there is
no ample justification to hold that the COMELEC gravely abused its discretion.
MAYOR EDGARDO G. FLORES, petitioner vs. SANGGUNIANG PANLALAWIGAN OF
PAMPANGA
Facts:
On December 19, 2001, an administrative complaint for dishonesty and gross
misconduct against then Mayor Edgardo G. Flores of Minalin, Pampanga, petitioner, was filed
with the Sangguniang Panlalawigan of the same province, one of the respondents herein.
The administrative complaint against petitioner alleged that on August 1, 2001, he
executed Purchase Request No. 1 for the acquisition of a communication equipment amounting
to P293,000.00 without any Resolution or Ordinance enacted by the Sangguniang Bayan of
Minalin. The winning bidder was one Kai Electronics. On August 6, 2001, or while the bidding
was still being conducted, Kai Electronics delivered the communication equipment to the
municipality of Minalin. The Notice of Award of Bid to Kai Electronics states that the bidding

took place also on August 1, 2001 when respondent executed the Purchase Request No.
1. The communication equipment delivered by Kai Electronics was overpriced by more than
one hundred percent (100%) or in the amount of P129,600.00.
In ruling against the petitioner, the Court of Appeals held that he failed to exhaust all
administrative remedies before going to court. Moreover, respondent Sangguniang
Panlalawigan of Pampanga did not gravely abuse its discretion when it issued the challenged
Order considering that the allegation of overpricing is supported by documentary
evidence. There is also sufficient evidence to prove that the bidding and the awarding of the
contract to Kai Electronics were done under questionable circumstances.
Issue:
Whether the Court of Appeals erred in holding that the petition in CA-G.R. SP No. 72958 was
prematurely filed as petitioner failed to exhaust first all administrative remedies.
Held:
No. Section 61 of Republic Act No. 7160 (the Local Government Code of 1991) partly
provides:
SEC. 61. Form and Filing of Administrative Complaints. A verified complaint against any
erring local elective official shall be prepared as follows:
x x x;
(b) A complaint against any elective official of a municipality shall be filed before
the Sangguniang Panlalawigan whose decision may be appealed to the Office of the
President; and
x x x.
The administrative complaint against petitioner was filed with respondent Sangguniang
Panlalawigan of Pampanga in accordance with the above provision. After receiving the Order of
respondent Sangguniang Panlalawigan preventively suspending him from office, petitioner
should have filed a motion for reconsideration in order to give the latter the opportunity to
correct itself if there was any error on its part. Such motion is a condition sine qua non before
filing a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended.
We must add that petitioner, before filing with the Court of Appeals his petition for certiorari,
should have waited for respondent Governor Lapids action on the recommendation of
respondent Sangguniang Panlalawigan that he be preventively suspended from office; and on
his letter requesting the Governor to veto the questioned Order, considering that the latter is the
one empowered by law to impose preventive suspension upon him. Section 63 of the Local
Government Code of 1991 partly provides:
SEC 63. Preventive Suspension.
(a)

Preventive suspension may be imposed:

(2) By the governor, if the respondent is an elective official of a component city

or municipality; or
Petitioner has not shown any valid and compelling reason why, without waiting for the
Governors action on the matter, he immediately filed with the Court of Appeals a petition
for certiorari. By doing so, petitioner effectively deprived the Governor of his duty to take
appropriate action on the controversy.
It is a well-settled rule that where, as here, the petitioner has available remedies within the
administrative machinery against the action of an administrative board, body, or officer, the

intervention of the courts can be resorted to by him only after having exhausted all such
remedies.[10] The rationale of this rule rests upon the presumption that the administrative body, if
given the chance to correct its mistake or error, may amend its decision on a given matter and
decide it properly. The strict application of the doctrine of exhaustion of administrative remedies
will also prevent unnecessary and premature resort to the court. [11] We cannot countenance
petitioners utter disregard of this procedural norm and frustrate its purpose of attaining a just,
speedy, inexpensive and orderly judicial proceedings.
MAYOR ALVIN B. GARCIA, PETITIONER, VS. HON. ARTURO C. MOJICA, IN HIS
CAPACITY AS DEPUTY OMBUDSMAN FOR THE VISAYAS
Facts
On May 7, 1988, Cebu city mayor Alvin Garcia signed a contract with F.E. Zuellig for the
supply of asphalt to the city, 4 days later national elections were held and Mayor Garcia won
reelection contract, in the other hand, took effect on September 1998.
On march, 1999, news reports came out that the said purchase of asphalt was
anomalous investigation but the special prosecution officer of the office of the Ombudsman
revealed that (1) the contract for supply of asphalt to Cebu city was designed to favor F.E.
Zuellig, (2) the amount quoted on the contract was too expensive compared for the amount for
which asphalt may be bought from local suppliers such as Shell and Petron, particularly
considering that the amount was fixed in dollars and was payable in pesos, thus exposing the
city government to the risk attendance to a fluctuating exchange rate, and (3) the interest of the
city under the administrative cases be filed against Mayo Garcia.
The deputy Ombudsman handled Garcias case and recommended 6 moths preventive
suspension against the latter the maximum imposable under RA 6770, the Ombudsman Law.
Issues:
Is the Ombudsman correct in applying the Ombudsman Law rather than the Local
Government Code?
Held:
Yes. There is nothing in the LGC 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 the Court to
only uphold one and strike down the other. The decision of the Ombudsman (6 month
suspension) will prevail over the LGC (60day suspension) if the evidence of guilt is strong.
The determination of whether or not the evidence of guilt is strong as to warrant
preventive suspension rests with the Ombudsman. The discretion as regards the period of such
suspension also necessarily belongs to the Ombudsman, except that he cannot extend the
period of suspension beyond that provided by law.
It is pertinent to note here that the inquiry that preceded the filing of an administrative
case against petitioner was prompted by newspaper reports regarding the allegedly anomalous
contract entered into by petitioner. Given the findings, the Court cannot say that there is no
evidence sufficiently strong to justify the imposition of preventive suspension against petitioner.
But considering its purpose and the circumstances in the case brought before the Court, it does
appear to the Court that the imposition of the maximum period of six months is unwarranted.
CORAZON C. GONZAGA, petitioner, vs. THE HONORABLE SANDIGANBAYAN (FIRST
DIVISION), THE PEOPLE OF THE PHILIPPINES, and THE DEPARTMENT OF EDUCA

PETITION CULTURE AND SPORTS, respondents.

G.R. No. 96131, September 6, 1991
FACTS:
A complaint for malversation of public funds was filed against Gonzaga, in her capacity
as School Principal of the Malabon Municipal High School, Malabon, Metro Manila. The
complaint was filed before the Ombudsman by the Municipal Administrator of the Municipality of
Malabon, based on the audit report of the Commission on Audit, wherein petitioner as an
accountable officer is alleged to have incurred a shortage of P15,188.37.
An information was thereafter filed against petitioner before the Sandiganbayan for the
crime of malversation of public funds and that before she could be arraigned, accused-petitioner
filed with respondent court a motion for re- investigation, which motion was denied by said court
in its resolution.
During the arraignment, accused-petitioner pleaded not guilty to the crime charged; and
that on the same date, the prosecution filed a motion seeking to suspend, pendente lite, the
accused as school principal of the above-named school. The resolution dated 10 September
1990 granted the prosecutions motion to suspend the accused, pendente lite, from her position
as Principal and from such other public positions that she maybe holding, effective immediately
upon notice hereof.
Petitioner's motion for reconsideration of the above-quoted resolution was, denied by the
respondent court. Hence, this petition questioning the validity of the suspension imposed on her
as school principal. Petitioner at the outset contends that Section 13 of Rep. Act 3019, as
amended, is unconstitutional as the suspension provided thereunder partake of a penalty even
before a judgment of conviction is reached, and is thus violative of her constitutional right to be
presumed innocent.
ISSUE:
1. WON Sec 13 of RA 3019 is unconstitutional.
2. WON the suspension imposed upon the petitioner is invalid.
RULING:
1. We do not accept the contention because: firstly, under Section 13, RA 3019, suspension
of a public officer upon the filing of a valid information is mandatory. What the Constitution
rejects is a preventive suspension of indefinite duration as it raises, at the very least, questions
of denial of due process and equal protection of the laws; in other words, preventive suspension
is justifiable for as long as its continuance is for a reasonable length of time; secondly,
preventive suspension is not a penalty; a person under preventive suspension, especially in a
criminal action, remains entitled to the constitutional presumption of innocence as his culpability
must still be established established; thirdly, the rule is that every law has in its favor the
presumption of validity, and that to declare a law unconstitutional, the basis for such a
declaration must be clearly established.
2. It is worthy to note that even prior to the cases of Deloso (1988) and Doromal (1989), to be
discussed shortly, pronouncements had already been made by the Court in the cases of Garcia
(1962) and Layno (1985) to the effect that a preventive suspension lasting for an
unreasonable length of time violates the Constitution. In the more recent cases of Deloso
vs. Sandiganbayan, and Doromal vs. Sandiganbayan, suspension under Section 13 of Rep.
Act 3019 was held as limited to a maximum period of ninety (90) days, in consonance with
Section 42 of Pres. Decree No. 807 (otherwise known as the "Civil Service Decree"). We see no
cogent reason why the same rule should not apply to herein petitioner.

In fact, the recommendation of the Solicitor General (counsel for public respondent) is
that, inasmuch as the suspension mentioned under Section 13 of Rep. Act 3019 is
understood as limited to a maximum duration of ninety (90) days, the order of
suspension imposed on petitioner, having been rendered on 10 September 1990, should
now be lifted, as suspension has already exceeded the maximum period of ninety (90)
days.
All told, preventive suspension is not violative of the Constitution as it is not a penalty. In
fact, suspension particularly under Section 13 of Rep. Act 3019 is mandatory once the validity of
the information is determined. 18 What the Constitution abhors is an indefinite preventive
suspension as it violates the due process and equal protection clauses, and the right of public
officers and employees to security of tenure.
HON. RICARDO T. GLORIA, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT
OF EDUCATION, CULTURE, AND SPORTS, PETITIONER, VS. COURT OF APPEALS,
AMPARO A. ABAD, VIRGILIA M. BANDIGAS, ELIZABETH A. SOMEBANG AND NICANOR
MARGALLO, RESPONDENTS.
G.R. No. 131012, April 21, 1999, EN BANC, MENDOZA, J.
Facts
Respondents are public school teachers. On various dates in September and October
1990, during the teachers' strikes, they did not report for work. For this reason, they were
administratively charged16 and placed under preventive suspension. The investigation was
concluded before the lapse of their 90-day suspension and private respondents were found
guilty as charged. Respondent Margallo was ordered dismissed from the service effective
October 29, 1990, while respondents Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang
were ordered suspended for six months effective December 4, 1990.
Margallo appealed to the Merit Systems and Protection Board (MSPB) which found him
guilty of conduct prejudicial to the best interest of the service and imposed on him a six-month
suspension. On appeal, the Civil Service Commission (CSC) affirmed the decision of the MSPB
with respect to Margallo, but found the other three (Abad, Bandigas, and Somebang) guilty only
of violation of reasonable office rules and regulations by failing to file applications for leave of
absence and, therefore, reduced the penalty imposed on them to reprimand and ordered them
reinstated to their former positions. The CA rendered a decision (1) affirming the decision of the
CSC with respect to Amparo Abad, Virgilia Bandigas, and Elizabeth Somebang but (2) reversing
it insofar as the CSC ordered the suspension of Nicanor Margallo. The appellate court found
him guilty of violation of reasonable office rules and regulations only and imposed on him the
penalty of reprimand.
Private respondents moved for reconsideration, contending that they should be
exonerated of all charges against them and that they be paid salaries during their suspension.
In its resolution, the CA, while maintaining its finding that private respondents were guilty of
violation of reasonable office rules and regulations for which they should be reprimanded, ruled
that private respondents were entitled to the payment of salaries during their suspension
"beyond ninety (90) days." Petitioner contends that the administrative investigation of
respondents was concluded within the 90-day period of preventive suspension, implying that the
continued suspension of private respondents is due to their appeal, hence, the government
should not be held answerable for payment of their salaries

Charges against private respondents: (1) grave misconduct, (2) gross neglect of duty, (3) gross violation of Civil Service Law Rules
and Regulations and reasonable office regulations, (4) refusal to perform official duty, (5) gross insubordination, (6) conduct
prejudicial to the best interest of the service, and (7) absence without leave (AWOL),
16

Issues
WON private respondents are entitled to backwages (a) Pending Investigation and (b)
Pending Appeal
WON private respondents are entitled to backwages though exonerated from the charges
but found guilty of violation of office rules and regulations and reprimanded
Held
(1) There are two kinds of preventive suspension of civil service employees who are charged
with offenses punishable by removal or suspension: (1) preventive suspension pending
investigation (Sec. 51 of the EO 29217) and (2) preventive suspension pending appeal if the
penalty imposed by the disciplining authority is suspension or dismissal and, after review, the
respondent is exonerated (Sec. 47(4) of the same law18) Preventive suspension pending
investigation is not a penalty. It is a measure intended to enable the disciplining authority to
investigate charges against respondent by preventing the latter from intimidating or in any way
influencing witnesses against him. If the investigation is not finished and a decision is not
rendered within that period, the suspension will be lifted and the respondent will automatically
be reinstated.
A. No Right to Compensation for Preventive Suspension Pending Investigation Even if
Employee is Exonerated
The Civil Service Act of 1959 (R.A. No. 2260) provided for the payment of such salaries
in case of exoneration with the provision If the respondent officer or employee is exonerated,
he shall be restored to his position with full pay for the period of suspension however such
provision was not included in the law was revised in 1975 and the provision on the payment of
salaries during suspension was deleted. Sec. 42 of the Civil Service Decree (P.D. No. 807). As
a rule, the amendment by deletion of certain words or phrases in a statute indicates that the
legislature intended to change the meaning of the statute, for the presumption is that the
legislature would not have made the deletion had the intention been not in effect a change in its
meaning.
For one to be entitled to a salary for preventive suspension pending investigation, his
suspension must be unjustified. It is not enough that he is exonerated from the charges. In this
case, the preventive suspension of civil service employees charged with dishonesty, oppression
or grave misconduct, or neglect of duty is authorized by the Civil Service Law. It cannot,
therefore, be considered "unjustified.
B. Right to Compensation for Preventive Suspension Pending Appeal if Employee is
Exonerated
Preventive suspension pending appeal is actually punitive although it is in effect
subsequently considered illegal if respondent is exonerated and the administrative decision
finding him guilty is reversed. Hence, he should be reinstated with full pay for the period of the
suspension. Thus, Sec. 47(4) states that respondent "shall be considered as under preventive
suspension during the pendency of the appeal in the event he wins." On the other hand, if his
conviction is affirmed, i.e., if he is not exonerated, the period of his suspension becomes part of
the final penalty of suspension or dismissal.
SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or
employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression
or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges
which would warrant his removal from the service.
18 SEC. 47. Disciplinary Jurisdiction. - (4) An appeal shall not stop the decision from being executory, and in case the penalty is
suspension or removal, the respondent shall be considered as having been under preventive suspension during the pendency of the
appeal in the event he wins an appeal.
17

It is precisely because respondent is penalized before his sentence is confirmed that he

should be paid his salaries in the event he is exonerated. It would be unjust to deprive him of his
pay as a result of the immediate execution of the decision against him and continue to do so
even after it is shown that he is innocent of the charges for which he was suspended. Indeed, to
sustain the government's theory would be to make the administrative decision not only
executory but final and executory.
(2) Yes, such is similar case of Banglisan which likewise involved a teacher found not guilty in
participating in mass actions but guilty of having violated reasonable office rules and
regulations (for being absent without leave) by the Civil Service Commission. In the case, the
court ruled that under Section 23 of the Rules Implementing Book V of Executive Order No. 292
and other pertinent civil service laws, in violations of reasonable office rules and regulations, the
first offense is punishable by reprimand. To deny petitioner Mariano his back wages during his
suspension would be tantamount to punishing him after his exoneration from the charges which
caused his dismissal from the service.
CALINGIN, PETITIONER. VS CA, et al., RESPONDENTS.
FACTS
The Office of the President issued a Resolution suspending Gov. Calingin for 90
days. On April 30, 2001, DILG Undersecretary Soliman issued a Memorandum implementing
the said Resolution of the OP. The DILG Memorandum bore the authority of the COMELEC
which granted an exemption to the election ban in the movement of any public officer in its
Resolution promulgated on April 24, 2001. This was in pursuance to COMELEC Resolution No.
3401 which provides in part that
Section 1. Prohibited Acts (a) During the election period from January 2, 2001 until
July 13, 2001, no public official shall make or cause any transfer/detail whatsoever of any officer
or employee in the civil service, including public school teachers, or suspend elective provincial,
city, municipal or barangay official, except upon prior written approval of the Commission.
Thereafter, Gov. Calingin filed a petition for prohibition before the Court of Appeals to
prevent the DILG from executing the assailed suspension order however, the CA dismissed the
said petition and denied the subsequent MR.
ISSUE
(1) Was the decision of the Office of the President already final and executory? and (2)
Was the exemption from the election ban in the movement of any public officer granted by
COMELEC valid?
RULING
1. NO. Petitioner contends that decisions of the OP on cases where it has original jurisdiction
become final and executory only after the lapse of 15 days from the receipt thereof and that the
filing of a Motion for Reconsideration shall suspend the running of the said period in accordance
with Section 15, Chapter 3, Book VII of the Administrative Code of 1987.
Even though appeal to the Court of Appeals is granted under Sec. 1, [15]Rule 43 of the
Revised Rules of Court, Sec. 12, Rule 43 of the Revised Rules of Court in relation to Sec. 68 of
the Local Government Code provides for the immediate execution pending appeal. Under the
same case of Lapid v. Court of Appeals, we enunciated that the decisions of the Office of the
President under the Local Government Code are immediately executory even pending appeal
because the pertinent laws under which the decisions were rendered mandated them to be so.
In sum, the decisions of the Office of the President are final and executory. No motion
for reconsideration is allowed by law but the parties may appeal the decision to the Court of

Appeals. The appeal, however, does not stay the execution of the decision. Thus, the DILG
Secretary may validly move for its immediate execution.
2. YES. As to the validity of the exemption granted by COMELEC in its Resolution No.
3992, petitioner claims that the exemption was invalid for being based on a mere draft
resolution. According to him, a draft resolution does not operate as a final resolution of a case
until the proper resolution is duly signed and promulgated. Petitioner maintains that a draft
cannot produce any legal effect.
A perusal of the records, however, reveals that the Resolution in O.P. Case No. 00-1-9220
was approved and signed on March 22, 2001 by Executive Secretary Renato de Villa by the
authority of the President. Hence, the approval was before the promulgation of COMELEC
Resolution No. 3992 on April 24, 2001. The record also shows that the request to implement
the said suspension order was filed on March 22, 2001 by the Senior Deputy Executive
Secretary of the Office of the President pursuant to the requirements stated in the Resolution.
Moreover, COMELEC Resolution No. 3529 which may be applied by analogy and in
relation to Sec. 2 of COMELEC Resolution No. 3401 merely requires the request to be in
writing indicating the office and place from which the officer is removed, and the reason for said
movement, and submitted together with the formal complaint executed under oath and
containing the specific charges and the answer to said complaint. The request for the
exemption was accompanied with the Affidavit of Complaint, Affidavit of Controversion, Reply
and Draft Resolution. The pertinent documents required by the COMELEC to substantiate the
request were submitted. There being a proper basis for its grant of exemption, COMELEC
Resolution No. 3992 is valid.
DINDO C. RIOS v. THE SECOND DIVISION OF THE SANDIGANBAYAN
G.R. No. 129913, September 26, 1997, THIRD DIVISION, (ROMERO, J.)
Facts
On March 6, 1996, an information was filed against petitioner who is the incumbent
Mayor of the Municipality of San Fernando, Romblon for alleged unauthorized disposition of
confiscated lumber, in violation of Republic Act No. 3019, otherwise known as Anti-Graft and
Corrupt Practices Act by selling the confiscated lumber without the prior approval of the DENR
through its Community Environment and Natural Resources Office and without a resolution from
the Sangguniang Bayan.
Before his arraignment, petitioner filed a Motion to Quash Information and Recall
Warrant of Arrest, on the ground that the information was invalid as there was no probable
cause to hold him liable for violation of Section 3(e), R.A. No. 3019. OSP filed a Motion to
Suspend Accused (herein petitioner) Pendente Lite, to which petitioner filed an Opposition.
On March 24, 1997, the Sandiganbayan granted the OSPs motion to suspend petitioner for a
period of ninety (90) days. Petitioner filed a motion for reconsideration which was subsequently
denied. Hence, this petition.
ISSUE:
Was the penalty of suspension proper?
HELD: YES.
We cannot agree more with the Sandiganbayan. This Court would like to stress
adherence to the doctrine that public office is a public trust. Public officers and employees must
at all times be accountable to the people, serve them with utmost responsibility, integrity, loyalty
and efficiency, act with patriotism and justice, and lead modest lives. Public servants must bear
in mind this constitutional mandate at all times to guide them in their actions during their entire

tenure in the government service. [4] The good of the service and the degree of morality which
every official and employee in the public service must observe, if respect and confidence are to
be maintained by the Government in the enforcement of the law, demand that no untoward
conduct on his part, affecting morality, integrity and efficiency while holding office should be left
without proper and commensurate sanction, all attendant circumstances taken into account.
The suspension pendente lite meted out by the Sandiganbayan is, without doubt, a
proper and commensurate sanction against petitioner. Having ruled that the information filed
against petitioner is valid, there can be no impediment to the application of Section 13 of R.A.
No. 3019 which states, inter alia:
Sec. 13. Suspension and loss of benefits. - Any incumbent public officer against whom
any criminal prosecution under a valid information under this Act or under Title 7, Book II of the
Revised Penal Code or for any offense involving fraud upon government or public funds or
property, whether as a simple or as a complex offense and in whatever stage of execution and
mode of participation, is pending in court, shall be suspended from office.
It is settled jurisprudence that the aforequoted provision makes it mandatory for the
Sandiganbayan to suspend any public officer who has been validly charged with a violation of
R.A. No. 3019, Book II, Title 7 of the Revised Penal Code, or any offense involving fraud upon
government or public funds or property.
The court trying a case has neither discretion nor duty to determine whether preventive
suspension is required to prevent the accused from using his office to intimidate witnesses or
frustrate his prosecution or continue committing malfeasance in office.This is based on the
presumption that unless the public officer is suspended, he may frustrate his prosecution or
commit further acts of malfeasance or both.
On the other hand, we find merit in petitioners second assigned error. The
Sandiganbayan erred in imposing a 90 day suspension upon petitioner for the single
case filed against him. Under Section 63 (b) of the Local Government Code, any single
preventive suspension of local elective officials shall not extend beyond sixty (60) days.
EDUARDO NONATO JOSON v. RUBEN TORRES, et al.
G.R. No. 131255, May 20, 1998, SECOND DIVISION (Puno, J.)
Facts
Private respondents alleged that they were at the session hall for a scheduled session of
the Sangguniang Panlalawigan (SP) when Joson, governor of Nueva Ecija, belligerently barged
into the Hall, angrily kicked the door and chairs and uttered threatening words at them. Behind
Joson, there were several armed men who encircled the area. Private respondents claim that
this incident was an offshoot of their resistance to a pending legislative measure supported by
Joson that the Nueva Ecija obtain a loan of P150M from the Philippine National Bank and that
Joson's acts were intended to harass them into approving this loan; fortunately. Thus, the
private respondents file a complaint in the Office of the President charging Joson with grave
misconduct and abuse of authority.
A peace agreement was made between the parties however it was not respected and
the private respondents reiterated their complaint. Joson was again ordered to file his answer
and later he requested for an extension of 30 days to submit his answer because he was "trying
to secure the services of legal counsel experienced in administrative law practice. The
extension was granted by DILG. When Joson was again ordered to file his answer, he asked for
extension twice. 3 months later, DILG issued an order declaring Joson in default and to have
waived his right to present evidence. Later, Joson was placed in a preventive suspension for 60
days. Joson filed for a formal investigation of his case pursuant to the provisions of the LGC and

AO No. 23 but was denied. Meanwhile, the proceedings before the DILG continued and Joson
was found guilty with a penalty of suspension for 6 months. Joson claims that the suspension
was made without formal investigation pursuant to the provisions of Rule 7 of A.O. No. 23.
ISSUE:
Is the resolution of the Executive Secretary finding Joson guilty and imposing on him the
penalty of suspension from office for 6 months from office without pay valid?
HELD:
NO. The denial of Joson's Motion to Conduct Formal Investigation is erroneous. The
rejection of Joson's right to a formal investigation denied him procedural due process. Section 5
of A. O. No. 23 provides that at the preliminary conference, the Investigating Authority (IA) shall
summon the parties to consider whether they desire a formal investigation. This provision does
not give the IA the discretion to determine whether a formal investigation would be conducted.
The records show that Joson filed a motion for formal investigation.
An erring elective local official has rights akin to the constitutional rights of an accused.
These rights are essentially part of procedural due process. The local elective official has the (1)
right to appear and defend himself in person or by counsel; (2) the right to confront and crossexamine the witnesses against him; and (3) the right to compulsory attendance of witness and
the production of documentary evidence. These rights are reiterated in the Rules Implementing
the LGC and in A.O. No. 23. Well to note, Joson formally claimed his right to a formal
investigation after his Answer Ad Cautelam has been admitted by Undersecretary Sanchez.
Joson's right to a formal investigation was not satisfied when the complaint against him
was decided on the basis of position papers. There is nothing in the LGC and its IRR nor in A.O.
No. 23 that provide that administrative cases against elective local officials can be decided on
the basis of position papers. A.O. No. 23 states that the IA may require the parties to submit
their respective memoranda but this is only after formal investigation and hearing. A.O. No. 23
does not authorize the IA to dispense with a hearing especially in cases involving allegations of
fact which are not only in contrast but contradictory to each other. These contradictions are best
settled by allowing the examination and cross-examination of witnesses. Position papers are
often-times prepared with the assistance of lawyers and their artful preparation can make the
discovery of truth difficult. The jurisprudence cited by the DILG in its order denying Joson's
motion for a formal investigation applies to appointive officials and employees. Administrative
disciplinary proceedings against elective government officials are not exactly similar to those
against appointive officials. In fact, the provisions that apply to elective local officials are
separate and distinct from appointive government officers and employees. This can be gleaned
from the LGC itself.
The provisions for administrative disciplinary actions against elective local
officials are markedly different from appointive officials. The rules on the removal and
suspension of elective local officials are more stringent. The procedure of requiring position
papers in lieu of a hearing in administrative cases is expressly allowed with respect to
appointive officials but not to those elected. An elective official, elected by popular vote, is
directly responsible to the community that elected him. The official has a definite term of office
fixed by law which is relatively of short duration. Suspension and removal from office definitely
affects and shortens this term of office. When an elective official is suspended or removed, the
people are deprived of the services of the man they had elected. Implicit in the right of suffrage
is that the people are entitled to the services of the elective official of their choice. Suspension
and removal are thus imposed only after the elective official is accorded his rights and the
evidence against him strongly dictates their imposition.
MARIA LUPO v. ADMINISTRATIVE ACTION BOARD and JUSTICE ONOFRE VILLALUZ

FACTS.
Fructuoso B. Arroyo, OIC/CDO, Message Center and then CDO of Telecom Office at
Buhi, Camarines Sur, filed a complaint for Dishonesty Thru Falsification (Multiple) of Official
Documents against Maria B. Lupo as Chief of Personnel Section, Telecom Office, Region V at
Legaspi City. The said complaint was actually triggered off by the inquiry of Ignacio B. Arroyo,
brother of complainant, into the alleged illegal termination of the former's niece, Nenita Arroyo
Noceda, as a daily wage clerk at Buhi Telecom Exchange.
It appears that the basis for the complaint of Fructuoso from whom Ignacio sought
assistance was petitioner's exclusion of certain names of newly hired employees in Region V
who appeared related to certain ranking officials of the region, for the purpose of keeping under
wraps the appointment of said employees from Ignacio Arroyo who had previously complained
of the alleged illegal termination of his niece Nenita A. Noceda. Petitioner had to falsify the list
which she submitted in compliance with Regional Director Morante's Confidential Memorandum
to the alleged prejudice of Noceda and for the purpose of protecting her future interest in the
sense that those excluded (who should have been included) were close relatives of ranking
officials of the Telecommunications Office of Region V. Telecom Investigator Florencio
Calapano, acting on the unverified complaint of Fructuoso Arroyo, conducted an informal factfinding inquiry and came out with a Memorandum recommending that petitioner be sternly
warned that a repetition of a similar offense in the future would be dealt with more drastically
and that the case should be considered closed.
Based solely on the aforesaid Memorandum, the Secretary of the Department of
Transportation and Communications handed down a Resolution finding petitioner "guilty as
charged" and suspending her for one year and disqualify her for promotion for a period of one
year. Petitioner moved for reconsideration of the resolution but the same was denied. She thus
appealed the resolution and order of denial of the motion for reconsideration to the CSC for
review, anchoring her appeal on lack of due process in the proceedings.
CSC, thru its Merit Systems Board, issued the Order setting aside the resolution of the
Department of Transportation and Communications and remanded the case to the Telecom
Office of Region V for further investigation to conform with the procedural requirements of due
process.
Instead of complying with the above order, respondent Chairman Villaluz of the AAB
issued an order setting the case for trial on August 3, 1989. On August 2, 1989, petitioner filed
a Manifestation and Motion informing respondent Villaluz that no formal charge had been
instituted by the Telecommunications Office against her and respondents, therefore, had no
jurisdiction over the case. Respondents denied said manifestation and motion for lack of merit
and again set the case for hearing on August 23, 1989.
ISSUE.
WON respondent AAB acquired jurisdiction over the Administrative Case.
HELD.
NO. Petitioners contention that AAB never acquired jurisdiction over the case is
meritorious because of the absence of a formal charge against her and the proceedings
conducted by Regional Investigator Florencio Calapano was a mere fact-finding inquiry.
It should be noted that under Section 37(b), the decisions of heads of departments
become final only in cases where the penalty imposed is suspension for not more than
30 days or fine in an amount not exceeding 30 days' salary. In the case at bar, where

petitioner had been made to suffer the penalty of suspension for one 1 year, such penalty
should not have been implemented without the appeal to the Civil Service Commission for
proper review.
Notably, paragraph (a) of the above Section explicitly provides that the Commission shall
decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of
suspension for more than 30 days, or fine in an amount exceeding 30 days' salary. Clearly, the
enforcement of the penalty imposed upon petitioner under the resolution of the Secretary of the
Department of Transportation and Communications was premature.
From the very start, the basis upon which this case was investigated had been defective
and irregular. For, the letter-complaint of Fructuoso Arroyo was not verified and yet, the same
was haphazardly made the basis of the informal inquiry. It should be stressed that Sec. 38(a)
mandates that administrative proceedings may be commenced against an employee by
the head of the department or office of equivalent rank or upon sworn written complaint
of any other person. It should also be noted that under paragraph (b) of said Section, a
respondent is given the option to elect a formal investigation of the charge against him if his
answer is not found satisfactory. In the case of petitioner, it appears that when her answer to
the unverified complaint was found unsatisfactory, she was never given a chance to decide
whether or not to submit herself to a formal investigation.
The Memorandum of Telecom Investigator Calapano to the Regional Director is merely
recommendatory since it was only the outcome of a fact finding investigation based on the
unverified complaint. Note that the informal investigation was only an inquiry into the alleged
dishonest acts of petitioner in which case, the Memorandum could not be made as the basis for
any final resolution of the case.

The requirements of due process in administrative proceedings and these are:

(1) the right to a hearing which includes, the right to present one's case and submit
evidence in support thereof;
(2) the tribunal must consider the evidence presented;
(3) the decision must have something to support itself,
(4) the evidence must be substantial, and substantial evidence means such evidence as a
reasonable mind must accept as adequate to support a conclusion;
(5) the decision must be based on the evidence presented at the hearing, or at least
contained in the record and disclosed to the parties affected;
(6) the tribunal or body or any of its judges must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of
a subordinate;
(7) the board or body should in all controversial questions, render its decision in such
manner that the parties to the proceeding can know the various issues involved, and the
reason for the decision rendered.
H. The Ombudsman Act (RA 6770)

GOV. MANUEL M. LAPID v. COURT OF APPEALS, et al.

G.R. No. 142261, 29 June 2000, THIRD DIVISION, (Gonzaga-Reyes, J.)
Facts
From an unsigned letter allegedly originating from the Mga Mamamayan ng Lalawigan
ng Pampanga, addressed to the NBI, it initiated an open probe on the alleged illegal quarrying

in Pampanga & exaction of exorbitant fees purportedly perpetrated by unscrupulous individuals

with the connivance of high-ranking government officials. The NBI Report was endorsed to the
respondent Ombudsman.
Then, a complaint was filed charging Gov. Lapid, and other local officilas with
Dishonesty, Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service for
allegedly having conspired in demanding and collecting from various quarrying operators in
Pampanga a control fee, control slip, or monitoring fee of P120.00 per truckload of sand, gravel,
or other quarry material, without a duly enacted provincial ordinance authorizing its collection
and without issuing receipts for its collection. They were also accused of giving unwarranted
benefits to Nestor Tadeo, Rodrigo Rudy Fernandez & Conrado Pangilinan who are neither
officials/employees of the Provincial Government. of Pampanga nor quarry operators by
allowing them to collect the said amount which was over and above the P40.00 prescribed
under the present provincial ordinance and in allowing Tadeo, Fernandez and Pangilinan to sell
and deliver to various quarry operators booklets of official receipts which were pre-stamped with
SAND FEE P40.00.
The Ombudsman rendered a decision in the administrative case finding Lapid
administratively liable for misconduct and is meted out the penalty of 1 year suspension without
pay pursuant to section 25 (2) of R.A. 6770 (Ombudsman Act of 1989).
Proceeding from the premise that the decision of the Ombudsman had not yet become
final, Lapid argued that the writs of prohibition and mandamus may be issued against the DILG
for prematurely implementing the assailed decision.
The Court finds that the Ombudsman and the DILG failed to establish the existence of a
law mandating the immediate execution of a decision of the Ombudsman in an administrative
case where the penalty imposed is suspension for one year. Hence, this MR.
ISSUE:
Is the decision of the Ombudsman finding Lapid administratively liable for misconduct
and imposing upon him a penalty of 1 year suspension without pay immediately executory
pending appeal?
RULING:
NO.
Section 27 states that all provisionary orders of the Office of the Ombudsman are
immediately effective and executory; and that any order, directive or decision of the said
Office imposing the penalty of censure or reprimand or suspension of not more than one
months salary is final and unappealable. As such the legal maxim inclusion unius est
exclusio alterus finds application. The express mention of the things included excludes those
that are not included. The clear import of these statements taken together is that all other
decisions of the Office of the Ombudsman which impose penalties that are not enumerated in
the said section 27 are not final, unappealable and immediately executory. An appeal timely
filed, such as the one filed in the instant case, will stay the immediate implementation of
the decision. This finds support in the Rules of Procedure issued by the Ombudsman itself
which states that (I)n all other cases, the decision shall become final after the expiration of ten
(10) days from receipt thereof by the respondent, unless a motion for reconsideration or petition
for certiorari (should now be petition for review under Rule 43) shall have been filed by him as
prescribed in Section 27 of R.A. 6770.
The Courts ruling in the case of Fabian vs. Desierto invalidated Section 27 of Republic
Act No. 6770 and Section 7, Rule III of Administrative Order No.07 and any other provision of
law implementing the aforesaid Act only insofar as they provide for appeals in administrative

disciplinary cases from the Office of the Ombudsman to the Supreme Court. The only provision
affected by the Fabian ruling is the designation of the Court of Appeals as the proper forum and
of Rule 43 of the Rules of Court as the proper mode of appeal. All other matters included in
said section 27, including the finality or non-finality of decisions, are not affected and still stand.
A judgment becomes final and executory by operation of law. Section 27 of the
Ombudsman Act provides that any order, directive or decision of the Office of the Ombudsman
imposing a penalty of public censure or reprimand, or suspension of not more than one months
salary shall be final and unappealable. In all other cases, the respondent therein has the
right to appeal to the Court of Appeals within ten (10) days from receipt of the written
notice of the order, directive or decision. In all these other cases therefore, the judgment
imposed therein will become final after the lapse of the reglementary period of appeal if no
appeal is perfected or, an appeal therefrom having been taken, the judgment in the appellate
tribunal becomes final. It is this final judgment which is then correctly categorized as a final
and executory judgment in respect to which execution shall issue as a matter of right. In other
words, the fact that the Ombudsman Act gives parties the right to appeal from its
decisions should generally carry with it the stay of these decisions pending
appeal. Otherwise, the essential nature of these judgments as being appealable would
be rendered nugatory.
Lapid was charged administratively before the Ombudsman and accordingly
the provisions of the Ombudsman Act should apply in his case. Section 68 of the Local
Government Code only applies to administrative decisions rendered by the Office of the
President or the appropriate Sanggunian against elective local government officials. Similarly,
the provision in the Administrative Code of 1987 mandating execution pending review applies
specifically to administrative decisions of the Civil Service Commission involving members of
the Civil Service.
There is no basis in law for the proposition that the provisions of the Administrative Code
of 1987 and the Local Government Code on execution pending review should be applied
suppletorily to the provisions of the Ombudsman Act as there is nothing in the Ombudsman Act
which provides for such suppletory application. Courts may not, in the guise of interpretation,
enlarge the scope of a statute and include therein situations not provided or intended by the
lawmakers. An omission at the time of enactment, whether careless or calculated, cannot be
judicially supplied however later wisdom may recommend the inclusion.
MAYOR FELIPE K. CONSTANTINO, petitioner, vs. Hon. OMBUDSMAN ANIANO
DESIERTO
Facts:
Mayor Felipe K. Constantino of Malungon, Sarangani Province, seeks invalidation of the
Resolution of the Ombudsman dated October 22, 1996, finding him guilty of grave misconduct
prejudicial to the best interest of the service, and/or gross neglect of duty, and on that account
dismissing him from the service.
On February 22, 1996, the Sangguniang Bayan of Malungon, Sarangani Province, adopted
and issued Resolution No. 21 [1] which authorized Mayor Constatino to enter into a negotiated
contract represthere were filed with the Deputy Ombudsman for Mindanao in Davao City,[10] a
Letter-Complaint[11] and a Joint Affidavit,[12] accusing the Mayor and the President of the
Lessor company, Norberto Lindong, [13] of a Violation of Section 3 [e] and [g] of R.A. No. 3019
otherwise known as the Anti-Graft and Corrupt Practices Actenting the Municipality ** (with) any
company dealing with heavy equipment for having entered into the agreement without authority
and thereby caused and inflicted undue injury to the Municipality.

Aan information for Violation of the Anti-Graft and Corrupt Practices Act against both Mayor
Constantino and Norberto Lindong, was filed before the Sandiganbayan on August 8, 1996, also
with due approval of Ombudsman Desierto. [25]
Under date of October 22, 1996, Graft Investigation Officer Buena handed down a
Resolution finding the petitioner GUILTY of grave misconduct, prejudicial to the best interest of
the service, and gross neglect of duty, and ordering his dismissal from the service.
Issue:
WON the Ombudsman erred in his decision.
Held:
Yes.
More persuasive is the Mayors second contention that no liability, whether criminal or
administrative, may be imputed to him since he merely complied with the mandate of
Resolution No. 21, series of 1996 and Resolution No. 38, series of 1996, of the Municipal
Council; and that the charges leveled against him are politically motivated. A thorough
examination of the records convinces this Court that the evidence against him is inadequate to
warrant his dismissal from the service on the specified grounds of grave misconduct, conduct
prejudicial to the best interest of the service and gross neglect of duty.
The explicit terms of Resolution No. 21, Series of 1996 clearly authorized Mayor Constantino
to lease/purchase one (1) fleet of heavy equipment composed of seven (7) generally
described units, through a negotiated contract. That resolution, as observed at the outset,
contained no parameters as to rate of rental, period of lease, purchase price. Pursuant thereto,
Mayor Constantino, representing the Municipality of Malungon, and Norbeto Lindong,
representing the Norlivanian Corporation, executed two written instruments of the same date
and occasion,
In light of the foregoing facts, which appear to the Court to be quite apparent on the record,
it is difficult to perceive how the Office of the Ombudsman could have arrived at a conclusion of
any wrongdoing by the Mayor in relation to the transaction in question. It is difficult to see how
the transaction between the Mayor and Norlovanian Corporation -- entered into pursuant to
Resolution No. 21 -- and tacitly accepted and approved by the town Council through its
Resolution No. 38 -- could be deemed an infringement of the same Resolution No. 21. In truth,
an examination of the pertinent writings (the resolutions, the two (2) instruments constituting the
negotiated contract, and the certificate of delivery) unavoidably confirms their integrity and
congruity. It is, in fine, difficult to see how those pertinent written instruments, could establish
a prima facie case to warrant the preventive suspension of Mayor Constantino. A person with
the most elementary grasp of the English language would, from merely scanning those material
documents, at once realize that the Mayor had done nothing but carry out the expressed wishes
of the Sangguniang Bayan.
It would appear that Graft Investigator Buena, who drew up the Resolution (eventually
approved by the Ombudsman) -- finding Mayor Constantino guilty of grave misconduct or gross
neglect of duty -- might have been carried away by his disapproval of what he thought to be
various dubious maneuvers to delay the early and expedient disposition of ** (the) case
resorted to by the Mayor through his various counsels. How those maneuvers (assuming
their description as dilatory to be correct) could affect the intrinsic character of the evidence
submitted by the parties is, however, quite beyond the Court.
The investigator also opined that Resolution No. 21 should be interpreted in light of other
official documents, executed a year earlier. He does not explain why he did not adopt the more
obvious construction of Resolution No. 21 indicated by the elementary doctrine that it is within

the power and prerogative of the town council to repeal its prior acts, either expressly, or by the
passage of essentially inconsistent resolutions. When the town council passed Resolution No.
21 without any mention whatever of those prior official documents respecting the acquisition to
heavy equipment, the evident intention was to supersede them and to have such acquisition
governed solely by Resolution No. 21. This conclusion is strongly supported by the fact that the
Sangunian expressly admitted -- in the Second Whereas Clause of its Resolution No. 21 -- that
there had been a failure of bidders to submit bids despite of two biddings ... public
announcement (sic) -- the two biddings being obviously related to said earlier official acts of the
town council. The conclusion is further bolstered by the fact that the Council, with full awareness
of said negotiated contract and of the delivery of equipment thereunder, had requested the
Mayor to put the equipment into operation for the town projects. The Court is thus satisfied
that it was in fact the Councils intention, which it expressed in clear language, to confer on the
Mayor ample discretion to execute a negotiated contract with any interested party, without
regard to any official acts of the Council prior to Resolution No. 21.
I. The Courts

MIRANDA, PETITIONER, VS. HON. SANDIGANBAYAN

Facts
The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of
Santiago City, Isabela, under preventive suspension for six months from 25 July 1997 to 25
January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of
Conduct and Ethical Standards for Public Officials and Employees. Subsequently, then Vice
Mayor Amelita S. Navarro (Vice Mayor Navarro) filed a Complaint with the Office of the
Ombudsman (Ombudsman) on 1 December 1997. In the said Complaint, Vice Mayor Navarro
alleged that Mayor Miranda committed the following acts on 24 November 1997 despite the
continuing effectivity of the Ombudsman's preventive suspension order: (a) issued a
memorandum addressed to Navarro advising her that he was assuming his position as City
Mayor; (b) gave directives to the heads of offices and other employees; (c) issued Office Order
No. 11-021 which authorized certain persons to start work; and (d) insisted on performing the
functions and duties of Mayor despite Navarrro's requests to desist from doing so without a valid
court order and in spite of the order of Department of Interior and Local Government (DILG)
Undersecretary Manuel Sanchez directing him to cease from reassuming the position. Vice
Mayor Navarro contended that Mayor Miranda committed the felony of usurpation of authority or
official functions under Article 177 of the Revised Penal Code (RPC).
In a Resolution dated 4 February 2002, the Sandiganbayan preventively
suspended Mayor Miranda from office for 90 days. The anti-graft court held that a violation of
Article 177 of the RPC involves fraud "which in a general sense is deemed to comprise anything
calculated to deceive, including all acts, omissions, and concealment involving a breach of legal
or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which
an undue and unconscious advantage is taken of another." It further ruled that Miranda's act fell
within the catch-all provision "x x x or for any offense involving fraud upon government."
ISSUE:
ISSUE: Whether Ombudsmans authority to preventively suspend local elective officials for 6
months is limited by Section 63(b) of the Local Government Code?
Held: No.

SECTION 63. Preventive Suspension. (a)

(b)

(c)

Preventive suspension may be imposed:

(1)

By the President, if the respondent is an elective official of a

province, a highly urbanized or an independent component city;

(2)

By the governor, if the respondent is an elective official of a

component city or municipality; or

(3)

By the mayor, if the respondent is an elective official of the

barangay.

Preventive suspension may be imposed at any time after the issues are
joined, when the evidence of guilt is strong, and given the gravity of the
offense, there is great probability 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: Provided, That, any
single preventive suspension of local elective officials shall not extend
beyond sixty (60) days: Provided, further, That in the event that several
administrative cases are filed against an elective official, he cannot be
preventively suspended for more than ninety (90) days within a single
year on the same ground or grounds existing and known at the time of the
first suspension.
Upon expiration of the preventive suspension, the suspended elective
official shall be deemed reinstated in office without prejudice to the
continuation of the proceedings against him, which shall be terminated
within one hundred twenty (120) days from the time he was formally
notified of the case against him. However, if the delay in the proceedings
of the case is due to his fault, neglect, or request, other than the appeal
duly filed, the duration of such delay shall not be counted in computing
the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the
President, governor and mayor to impose excessively long preventive suspensions. The
Ombudsman is not mentioned in the said provision and was not meant to be governed thereby.
Indeed, the reason is not hard to distill. The President, governor and mayor are political
personages. As such, the possibility of extraneous factors influencing their decision to impose
preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to
political pressure given the independence of the office which is protected by no less than the
Constitution.
To accord with the intent of the law, it bears emphasis that Senator Pimentel explained during
the Senate deliberations that the purpose of Section 63 of the Code is to prevent the abuse of
the power of preventive suspension by members of the executive branch.
Section 63 of the Local Government Code does not govern preventive suspensions imposed by
the Ombudsman, which is a constitutionally created office and independent from the Executive
branch of government. The Ombudsmans power of preventive suspension is governed by
Republic Act No. 6770, otherwise known as The Ombudsman Act of 1989.

SECTION 24. Preventive Suspension. The Ombudsman or his

Deputy may preventively suspend any officer or employee under his authority
pending an investigation, if in his judgment the evidence of guilt is strong, and (a)
the charge against such officer or employee involves dishonesty, oppression or
grave misconduct or neglect in the performance of duty; (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.
The preventive suspension shall continue until the case is terminated by
the Office of the Ombudsman but not more than six months, without pay,
except when the delay in the disposition of the case by the Office of the
Ombudsman is due to the fault, negligence or petition of the respondent, in which
case the period of such delay shall not be counted in computing the period of
suspension herein provided.
The six-month period of preventive suspension imposed by the Ombudsman was indubitably
within the limit provided by its enabling law. This enabling law has not been modified by the
legislature.

ANTONIO PROSPERO ESQUIVEL and MARK ANTHONY ESQUIVEL, petitioners, vs. THE
HON. OMBUDSMAN, THE SANDIGANBAYAN (THIRD DIVISION), THE PEOPLE OF THE
PHILIPPINES and HERMINIGILDO EDUARDO, respondents.
G.R. No. 137237. September 17, 2002
FACTS:
Antonio Prospero Esquivel, municipal mayor of Jaen and his brother, Mark Anthony
Eboy Esquivel, barangay captain of barangay Apo, Jaen, were charged with alleged illegal
arrest, arbitrary detention, maltreatment, attempted murder, and grave threats by several police
officers in their complain-affidavits filed before the Philippine National Police Criminal
Investigation and Detection Group (PNP-CIDG).
The initial investigation conducted showed Eduardo was about to eat lunch at his
parents house when petitioners arrived. SPO1 Espiritu, SPO2 Almayda, LTO Officer Diaz, and
several unidentified persons accompanied them. Petitioners disarmed PO2 Eduardo of his
service pistol, which was covered by a Memorandum Receipt and COMELEC Gun Ban
Exemption. They then forced him to board petitioners vehicle and brought him to the Jaen
Municipal Hall. While they were on their way to the town hall, Mayor Esquivel mauled him with
the use of a firearm and threatened to kill him. PO2 Eduardo told the PNP-CIDG investigators
that he was most likely maltreated and threatened because of jueteng and tupada. He said the
mayor believed he was among the law enforcers who raided a jueteng den in Jaen that same
day.
After the initial investigation, the PNP-CIDG Third Regional Office forwarded the
pertinent records to the Office of the Deputy Ombudsman for Luzon for appropriate action.
After the preliminary investigation, the Deputy Ombudsman for Luzon issued a resolution
recommending that both petitioners be indicted for less serious physical injuries and Mayor
Esquivel alone for grave threats. The Ombudsman approved the resolution. Informations were
filed with the Sandiganbayan. Petitioners pleaded not guilty to the charges.

Petitioners elevated the matter to this Court alleging grave abuse of discretion on the
part of public respondents in rendering the resolution and the order.
ISSUE:
WON THE RESPONDENT SANDIGANBAYAN HAS JURISDICTION OVER THE OFFENSES
FILED AGAINST PETITIONERS.
RULING:
Petitioners claim lacks merit. In Rodrigo, Jr. vs. Sandiganbayan, Binay vs.
Sandiganbayan, and Layus vs. Sandiganbayan, we already held that municipal mayors fall
under the original and exclusive jurisdiction of the Sandiganbayan. Nor can Barangay
Captain Mark Anthony Esquivel claim that since he is not a municipal mayor, he is
outside the Sandiganbayans jurisdiction. R.A. 7975, as amended by R.A. No. 8249,
provides that it is only in cases where none of the accused (underscoring supplied) are
occupying positions corresponding to salary grade 27 or higher that exclusive
original jurisdiction shall be vested in the proper regional trial court, metropolitan trial
court, municipal trial court, and municipal circuit court, as the case may be, pursuant to
their respective jurisdictions as provided in Batas Pambansa Blg. 129, as amended.
Note that under the 1991 Local Government Code, Mayor Esquivel has a salary grade of
27. Since Barangay Captain Esquivel is the co-accused in Criminal Case No. 24777 of Mayor
Esquivel, whose position falls under salary grade 27, the Sandiganbayan committed no grave
abuse of discretion in assuming jurisdiction over said criminal case, as well as over Criminal
Case No. 24778, involving both of them. Hence, the writ of certiorari cannot issue in petitioners
favor.
VIII. KATARUNGANG PAMBARANGAY LAW
1. OBJECTIVE OF LAW

AVELINA ZAMORA, EMERITA ZAMORA-NICOL, ET AL., PETITIONERS, VS. HEIRS OF

CARMEN IZQUIERDO, REPRESENTED BY THEIR ATTORNEY-IN-FACT, ANITA F.
PUNZALAN, RESPONDENTS
G.R. No. 146195, November 18, 2004, THIRD DIVISION, SANDOVAL-GUTIERREZ, J.
Facts
In 1973, Carmen Izquierdo and Pablo Zamora entered into a verbal lease whereby the
former leased to the latter one of her apartment units in Caloocan City under the agreed rental
of 3,000/month, it is only for residence, and that only one family is allowed to occupy it. After the
death of Carmen (lessor) in 1996 her attorney-in-fact, Anita Punzalan, representing the heirs,
prepared a new contract of lease wherein the rental was increased to P3,600.00/month,
petitioners however, refused to sign it. In January 1997, Pablo (lessee) died. His wife, Avelina
Zamora, and their children (two of whom have their own families), continued to reside in the
apartment unit and operated a photocopying business. Meanwhile, petitioner Avelina Zamora
applied with the MWSS for a water line installation in the premises and she needed a written
consent for such. Punzalan declined because petitioners refused to pay the new rental rate and
violated the restrictions on the use of the premises by using a portion thereof for photocopying
business and allowing three families to reside therein. This prompted petitioner Avelina Zamora
to file with the Office of the Punong Barangay of Barangay 16, Caloocan City, a complaint
against Anita Punzalan. Despite several barangay conciliation sessions, the parties failed to
settle their dispute amicably. Hence, the Barangay Chairman issued a Certification to File
Action dated September 14, 1997. Consequently, on October 2, 1997, respondents,

represented by Anita Punzalan, filed with the Metropolitan Trial Court (MTC), a complaint for
unlawful detainer and damages against petitioners.
Petitioners filed a motion to dismiss the complaint on the ground that the controversy
was not referred to the barangay for conciliation. First, they alleged that the barangay
Certification to File Action is fatally defective because it pertains to another dispute, i.e., the
refusal by respondents attorney-in-fact to give her written consent to petitioners request for
installation of water facilities in the premises. And, second, when the parties failed to reach an
amicable settlement before the Lupong Tagapamayapa, the Punong Barangay (as Lupon
Chairman), did not constitute the Pangkat ng Tagapagkasundo before whom mediation or
arbitration proceedings should have been conducted, in violation of Section 410(b), of the LGC.
The MTC denied the motion to dismiss and rendered a decision in favor of the respondents.
RTC and CA affirmed.
Issue
WON the lower court erred in not granting the motion to dismiss of the petitioners
Held
No, Sec. 19(a) permits the filing of a motion to dismiss only when the ground for
dismissal of the complaint is anchored on lack of jurisdiction over the subject matter, or failure
by the complainant to refer the subject matter of his/her complaint to the Lupon for conciliation
prior to its filing with the court. The primordial objective of PD 1508 (the Katarungang
Pambarangay Law), now included under LGC is to reduce the number of court litigations and
prevent the deterioration of the quality of justice which has been brought about by the
indiscriminate filing of cases in the courts. To attain this objective, Section 412(a) of the LGC 19
requires the parties to undergo a conciliation process before the Lupon Chairman or the
Pangkat as a precondition to filing a complaint in court.
Contrary to petitioners contention, the complaint does not only allege, as a cause of
action, the refusal of respondents attorney-in-fact to give her consent to the installation of water
facilities in the premises, but also petitioners violation of the terms of the lease, specifically their
use of a portion therein for their photocopying business and their failure to pay the increased
rental. As the lower court found from the confrontations before the barangay held from January
to August 1997, not only the issue of water installation was discussed but also the terms of the
lease and the proposed execution of a written contract relative thereto. It appears, however,
that no settlement was reached despite a total of nine meetings at the barangay level. It is of no
moment that the complaint was initially made by defendant-appellant Avelina Zamora because
herein plaintiff-appellee was given by the Sangguniang Barangay the authority to bring her
grievance to the Court for resolution. While it is true that the Sertifikasyon dated September 14,
1997 is entitled Ukol Sa Hindi Pagbibigay Ng Pahintulot Sa Pagpapakabit Ng Tubig, this title
must not prevail over the actual issues discussed in the proceedings.
Hence, to require another confrontation at the barangay level as a sine qua non for the
filing of the instant case would not serve any useful purpose anymore since no new issues
would be raised therein and the parties have proven so many times in the past that they cannot
get to settle their differences amicably.

SECTION 412. Conciliation. (a) Pre-condition to Filing of Complaint in Court. No complaint, petition, action, or
proceeding involving any matter within the authority of the lupon shall be filed or instituted directly in court or any
other government office for adjudication, unless there has been a confrontation between the parties before the lupon
chairman or the pangkat, and that no conciliation or settlement has been reached as certified by the lupon or pangkat
secretary and attested to by the lupon or pangkat chairman
19

Further, the contention that the Lupon conciliation alone, without the proceeding before
the Pangkat ng Tagapagkasundo, contravenes the law on Katarungang Pambarangay is
erroneous. Section 412(a), clearly provides that, as a precondition to filing a complaint in court,
the parties shall go through the conciliation process either before the Lupon Chairman (as what
happened in the present case), or the Pangkat.
Moreover, in Diu vs. Court of Appeals, we held that notwithstanding the mandate in
Section 410(b) of R.A. No. 7160 that the Barangay Chairman shall constitute a Pangkat if he
fails in his mediation efforts, the same Section 410(b) should be construed together with
Section 412(a) of the same law (quoted earlier), as well as the circumstances obtaining in and
peculiar to the case. Here, while the Pangkat was not constituted, however, the parties met
nine (9) times at the Office of the Barangay Chairman for conciliation wherein not only the issue
of water installation was discussed but also petitioners violation of the lease contract. It is thus
manifest that there was substantial compliance with the law which does not require strict
adherence thereto.
LEO WEE, PETITIONER, VS. GEORGE DE CASTRO (ON HIS BEHALF AND AS
ATTORNEY-IN-FACT OF ANNIE DE CASTRO AND FELOMINA UBAN) AND MARTINIANA
DE CASTRO, RESPONDENTS.
FACTS
Respondents rented out the subject property, a two-storey building erected on a parcel of
land in Pangasinan, to petitioner on a monthly basis for P9000/month. Both parties agreed that
effective 1 October 2001, the rental payment shall be increased from P9000 to P15000.
Petitioner, however, failed or refused to pay the corresponding increase on rent when his rental
obligation became due. The rental dispute was brought to the Lupon Tagapagpamayapa of
Poblacion, Alaminos, Pangasinan, in an attempt to amicably settle the matter but the parties
failed to reach an agreement, resulting in the issuance by the Barangay Lupon of a Certification
to file action in court. Thereafter, respondent sent a letter to petitioner terminating their lease
agreement and demanding that the latter vacate and turn over the subject property to the latter.
Since petitioner stubbornly refused to comply with said demand letter, respondents filed the
Complaint for ejectment before the MTC.
Petitioner, on the other hand, countered that there was no agreement between the parties
to increase the monthly rentals and respondents' demand for an increase was exorbitant. He
then argued that respondents failed to comply with the jurisdictional requirement of conciliation
before the Barangay Lupon prior to the filing of the ejectment case, meriting its dismissal. The
Certification to file action issued by the Barangay Lupon appended to the respondents'
Complaint merely referred to the issue of rental increase and not the matter of ejectment.
The MTC ruled in favor of petitioner and on appeal, the RTC affirmed the MTCs ruling.
But, subsequently on another appeal, the CA reversed RTCs decision and granted the
respondents' petition and ordered petitioner to vacate the subject property and turn over the
same to respondents.
ISSUE
WON the Certification issued by the Barangay Lupon stating that no settlement was
reached by the parties on the matter of rental increase sufficient to comply with the prior
conciliation requirement under the Katarungang Pambarangay Law to authorize the
respondents to institute the ejectment suit against petitioner
RULING
YES. The barangay justice system was established primarily as a means of easing
up the congestion of cases in the judicial courts. This could be accomplished through a

proceeding before the barangay courts which, according to the one who conceived of the
system, the late Chief Justice Fred Ruiz Castro, is essentially arbitration in character;
and to make it truly effective, it should also be compulsory. With this primary objective of
the barangay justice system in mind, it would be wholly in keeping with the underlying
philosophy of Presidential Decree No. 1508 (Katarungang Pambarangay Law), which
would be better served if an out-of-court settlement of the case is reached voluntarily by
the parties. To ensure this objective, Section 6 of Presidential Decree No. 1508 requires
the parties to undergo a conciliation process before the Lupon Chairman or the Pangkat
ng Tagapagkasundo as a precondition to filing a complaint in court subject to certain
exceptions. The said section has been declared compulsory in nature.
While it is true that the Certification to file action dated 18 January 2002 of the Barangay
Lupon refers only to rental increase and not to the ejectment of petitioner from the subject
property, the submission of the same for conciliation before the Barangay Lupon constitutes
sufficient compliance with the provisions of the Katarungang Pambarangay Law. Given the
particular circumstances of the case at bar, the conciliation proceedings for the amount of
monthly rental should logically and reasonably include also the matter of the possession
of the property subject of the rental, the lease agreement, and the violation of the terms
thereof.
The rentals being paid monthly, the period of such lease is deemed terminated at the end
of each month. Thus, respondents have every right to demand the ejectment of petitioners at
the end of each month, the contract having expired by operation of law.
2. THREE NEW FEATURES

FELICIDAD UY v. HON. MAXIMO C. CONTRERAS, G.R. No. 111416 September 26, 1994,
FIRST DIVISION, (DAVIDE, JR., J.)
Facts
Petitioner subleased from respondent Susanna Atayde the other half of the second floor
of a building for the latters beauty parlor located at Makati, Metro Manila. The sublease contract
expired. However, the petitioner was not able to remove all her movable properties. On 17 April
1993, an argument arose between the petitioner and Atayde when the former sought to
withdraw from the subleased premises her remaining movable properties such as cabinets,
shelves, frames, a mirror, a shampoo bowl, and an airconditioning casing.The argument
degenerated into a scuffle between the petitioner, on the one hand, and Atayde and several of
Atayde's employees, including private respondent Winnie Javier on the other. On 23 April 1993,
the private respondents filed a complaint with the barangay captain of Valenzuela, Makati.The
confrontation of the parties was scheduled by the barangay captain for 28 April 1993. On the
said date, only the petitioner appeared. The barangay captain then reset the confrontation to 26
May 1993. On 11 May 1993, the Office of the Provincial Prosecutor of Rizal filed two
informations for slight physical injuries against the petitioner with the MTC of Makati. Petitioner
specifically alleged the prematurity of the filing of the criminal cases for failure to undergo
conciliation proceedings. She then filed a petition to dismiss but was denied because the court
applied Section 6 of PD 1508 and not the LGC. Hence, a petition on certiorari.
ISSUE:
Was the judge correct in saying that conciliation proceedings are not indispensible prior
to filing a criminal complaint in court?
HELD: NO.

It may thus be observed that the revised katarungang pambarangay law has at least three new
significant features, to wit:
1. It increased the authority of the lupon in criminal offenses from those punishable by
imprisonment not exceeding thirty days or a fine not exceeding P200.00 in P.D. No. 1508 to
those offenses punishable by imprisonment not exceeding one year or a fine not exceeding
P5,000.00.
2. As to venue, it provides that disputes arising at the workplace where the contending parties
are employed or at the institution where such parties are enrolled for study, shall be brought
in the barangay where such workplace or institution is located.
3. It provides for the suspension of the prescriptive periods of offenses during the pendency of
the mediation, conciliation, or arbitration process. Paragraph (c) of Section 410 of the law,
however, suffers from some ambiguity when it provides that the prescriptive periods "shall
resume upon receipt by the complainant of the complaint or the certificate of repudiation or
of the certification to file action issued by the lupon or pangkat secretary." What is referred to
as receipt by the complainant of the complaint is unclear; obviously, it could have been a
drafting oversight. Accordingly, in the above quoted Section 11 of the Rules and Regulations
issued by the Secretary of Justice, the phrase "the complaint or" is not found, such that the
resumption of the running of the prescriptive period shall, properly, be from receipt by the
complainant of the certificate of repudiation or the certification to file action issued by
the lupon or the pangkat secretary. Such suspension, however, shall not exceed sixty days.
While P.D. No. 1508 has been repealed by the Local Government Code of 1991, the
jurisprudence built thereon regarding prior referral to the lupon as a pre-condition to the filing of
an action in court remains applicable because its provisions on prior referral were substantially
reproduced in the Code.
In view of the private respondents' failure to appear at the first scheduled mediation on
28 April 1993 for which the mediation was reset to 26 May 1993, no complaint for slight physical
injuries could be validly filed with the MTC of Makati at any time before such date. The filing
then of Criminal Cases Nos. 145233 and 145234 with the said court on 11 May 1993 was
premature and, pursuant to paragraph (a), Section 412 of the Local Government Code,
respondent Judge Contreras should have granted the motion to dismiss the criminal cases. He
cannot justify its denial by taking refuge under Section 6 of P.D. No. 1508 (more properly,
Section 412(b)(4) of the Local Government Code of 1991) which states that the parties may go
directly to court where the action is about to prescribe. This is because, as earlier stated,
pursuant to paragraph (c), Section 410 of the Code, the prescriptive period was automatically
suspended for a maximum period of sixty days from 23 April 1993 when the private respondents
filed their complaints with the lupon of Valenzuela Makati.
Moreover, having brought the dispute before the lupon of barangay Valenzuela, Makati,
the private respondents are estopped from disavowing the authority of the body which they
themselves had sought.
Before closing these cases, this Court wishes to emphasize the vital role which the
revised katarungang pambarangay law plays in the delivery of justice at the barangay level, in
promoting peace, stability, and progress therein, and in effectively preventing or reducing
expensive and wearisome litigation. Parties to disputes cognizable by the lupon should, with
sincerity, exhaust the remedies provided by that law, government prosecutors should exercise
due diligence in ascertaining compliance with it, and trial courts should not hesitate to impose
the appropriate sanctions for non-compliance thereof.
3. LAWYERS CANNOT APPEAR BEFORE THE LUPON

ATTY. EVELYN MAGNO v. ATTY. OLIVIA VELASCO-JACOBA

A.C. No. 6296, November 22, 2005, THIRD DIVISION (Garcia, J.)
A disagreement happened between Magno and her uncle, Lorenzo Inos, over a
landscaping contract they had entered into. In a bid to have the stand-off between them settled,
Magno addressed a letter to Bonifacio Alcantara, barangay captain of their place. At the
barangay conciliation/confrontation proceedings Jacoba, on the strength of a Special Power of
Attorney signed by Lorenzo Inos, appeared for the latter, accompanied by his son, Lorenzito.
Magno's objection to Jacoba's appearance elicited the response that Lorenzo Inos is entitled to
be represented by a lawyer inasmuch as Magno is herself a lawyer. And as to Magno's retort
that her being a lawyer is merely coincidental, Jacoba countered that she is appearing as an
attorney-in-fact, not as counsel, of Lorenzo Inos. Magno enumerated specific instances, with
supporting documentation, tending to prove that Jacoba had, in the course of the conciliation
proceedings before the Punong Barangay (PB), acted as Inos Lorenzo's counsel instead of as
his attorney-in-fact. Jacoba alleged that the administrative complaint was filed with the Office of
the PB, instead of before the Lupong Tagapamayapa (LT), and heard by Alcantara alone,
instead of the collegial Lupon or a conciliation panel known as pangkat. Prescinding from this
premise, Jacoba submits that the prohibition against a lawyer appearing to assist a client in
katarungan pambarangay (KP) proceedings does not apply. Further, she argued that her
appearance was not as a lawyer, but only as an attorney-in-fact.
ISSUE:
Did Jacoba violate Section 415 of the LGC which expressly prohibits the presence and
representation by lawyers in the Katarungan Pambarangay?
HELD:
YES. Section 415 provides In all katarungang pambarangay proceedings, the parties
must appear in person without the assistance of the counsel or representative, except for
minors and incompetents who may be assisted by their next of kin who are not lawyers. The
above-quoted provision clearly requires the personal appearance of the parties in KP
conciliation proceedings, unassisted by counsel or representative. The rationale behind the
personal appearance requirement is to enable the lupon to secure first hand and direct
information about the facts and issues, the exception being in cases where minors or
incompetents are parties. There can be no quibbling that laymen of goodwill can easily agree to
conciliate and settle their disputes between themselves without what sometimes is the
unsettling assistance of lawyers whose presence could sometimes obfuscate and confuse
issues. Worse still, the participation of lawyers with their penchant to use their analytical skills
and legal knowledge tend to prolong instead of expedite settlement of the case.
The prohibition against the presence of a lawyer in a barangay conciliation proceeding
was not, to be sure, lost on Jacoba. Her defense that Section 415 of the LGC does not apply
since Magno addressed her Sumbong to Alcantara who thereafter proceeded to hear the same
is specious at best. In this regard, suffice it to state that Magno wrote her Sumbong with the end
in view of availing herself of the benefits of barangay justice. That she addressed her Sumbong
to the brgy. capt. is really of little moment since the latter chairs the LT. Lest it be overlooked,
the prohibition in question applies to all katarungan barangay proceedings. Section 412(a)
provides that, as a precondition to filing a complaint in court, the parties shall go through the
conciliation process either before the lupon chairman or the lupon or pangkat. As what
happened in this case, the PB, as chairman of the LT, conducted the conciliation proceedings to
resolve the disputes between the two parties.
Given the above perspective, we join the IBP Commission on Bar Discipline in its
determination that Jacoba transgressed the prohibition prescribed in Section 415 of the LGC.

However, its recommended penalty of mere admonition must have to be modified. Doubtless,
Jacoba's conduct tended to undermine the laudable purpose of the katarungan pambarangay
system. What compounded matters was when Jacoba repeatedly ignored Magno's protestation
against her continued appearance in the barangay conciliation proceedings.
4. PROCEDURAL MATTERS

WILSON DIU and DORCITA DIU v. COURT OF APPEALS, PETER LYNDON BUSHNELL,
and PATRICIA PAGBA
FACTS.
On several occasions from January 8, 1988 up to and until April 18, 1989, private
respondent Patricia Pagba purchased on credit various articles of merchandise from petitioners'
store at Naval, Biliran, all valued at P7,862.55, as evidenced by receipts of goods. Private
respondent failed to pay despite repeated demands. Petitioner then brought the matter before
the Barangay Chairman of Naval and the latter set the case for hearing, but private respondents
failed to appear. When the case was again set for hearing, the parties appeared but they failed
to reach an amicable settlement. Accordingly, the barangay chairman issued a Certification to
File Action.
The MTC dismissed the complaint by ruling against the admissibility of the receipts of
goods. On appeal to the RTC, the court held that the case should have proceeded to its
conclusion under the Revised Rules on Summary Procedure. The case could have been
decided based on affidavits of the witnesses and other evidence on the factual issues.
Accordingly, the court ruled in favor of petitioners. CA however ruled in favor of Pagba,
agreeing with her contention that there was no substantial compliance with the procedure
outlined in Katarungang Barangay Law because of the failure of the Barangay Chairman to
constitute a pangkat to resolve the parties differences (PD No. 1508).
ISSUE.
WON the confrontations before the Barangay Chairman of Naval satisfied the requirement
therefor in Presidential Decree No. 1508.
HELD.
YES. It must be noted that PD No. 1508 has been repealed by codification in the Local
Government Code of 1991. The basic complaint was filed by petitioners before the trial court
before the effectivity of the Local Government Code. Nevertheless, Sections 4 and 6 of the
former law have been substantially reproduced in Sections 410(b) and 412, respectively, of the
latter law. The pertinent provisions read as follows:
Sec. 410. PROCEDURE FOR AMICABLE SETTLEMENT. (b) x x x If he
(lupon chairman) fails in his mediation effort within fifteen (15) days from the first
meeting of the parties before him, he shall forthwith set a date for the constitution
of the pangkat in accordance with the provisions of this chapter.
Sec. 412. CONCILIATION. (a) Precondition to filing of Complaint in Court.
No complaint shall be filed or instituted in court . . . unless there has been a
confrontation of the parties before the lupon chairman or the pangkat, and that no
conciliation or settlement has been reached as certified by the lupon secretary or
pangkat secretary as attested to by the lupon or pangkat chairman x x x
In the case at bar, while no pangkat was constituted, it is not denied that the parties met
at the office of the barangay chairman for possible settlement. The efforts of
the barangay chairman, however, proved futile as no agreement was reached. Although

no pangkat was formed, we believe that there was substantial compliance with the law. It
is noteworthy that under Section 412 of the Local Government Code aforequoted, the
confrontation before the lupon chairman OR the pangkat is sufficient compliance with the precondition for filing the case in court. This is true notwithstanding the mandate of Section 410 (b)
of the same law that the barangay chairman shall constitute a pangkat if he fails in his mediation
efforts. Section 410 (b) should be construed together with Section 412, as well as the
circumstances obtaining in and peculiar to the case. On this score, it is significant that the
barangay chairman or punong barangay is himself the chairman of the lupon under the Local
Government Code.
From the foregoing facts, it is undeniable that there was substantial compliance with
Presidential Decree No. 1508 which does not require strict technical compliance with its
procedural requirements. Under the factual antecedents, it cannot be said that the failure of the
parties to appear before the pangkat caused any prejudice to the case for private respondents
considering that they already refused conciliation before the barangay chairman and, as will
hereafter be discussed, their sham insistence for a meeting before the pangkat is merely a ploy
for further delay. We are thus forced to remind them that technicalities should not be made to
desert their true role in our justice system, and should not be used as obstructions therein. To
indulge private respondents in their stratagem will not only result in a circuitous procedure but
will necessarily entail undue and further delay and injustice. This is inevitable if this Court should
dismiss the complaint and require the parties to meet before the pangkat, only to bring the case
all over again through the hierarchy of courts and ultimately back to us for decision on the
merits.
Petition granted. CAs decision is hereby set aside and RTCs judgment reinstated.
ESTELA L. BERBA, PETITIONER, VS. JOSEPHINE PABLO AND THE HEIRS OF CARLOS
PALANCA, RESPONDENTS.
G.R. No. 160032, November 11, 2005, CALLEJO, SR., J., SECOND DIVISION
Facts
Estela L. Berba, owned a house and lot in Sta. Ana, Manila which she leased to
Josephine Pablo and the Heirs of Carlos Palanca sometime in 1976. By 1999, the monthly
rental on the property was P3,450.00. The lessees failed to pay the rentals due, and by May
1999, their arrears amounted to P81,818. Berba then filed a complaint for eviction and
collection of unpaid rentals only against Pablo in the Office of the Punong Barangay. Both
parties came to an agreement approved by the pangkat 20. As of May 1, 2001, the total
arrearages of the lessees amounted to P135,115.63. On May 2, 2001, Berba, demanded
payment of the said amount and to vacate the house within 30 days from notice, otherwise she
will sue them. The lessees ignored the demand. On June 21, 2001, Berba filed a complaint
against respondents in the Metropolitan Trial Court (MTC) of Manila for unlawful detainer.
Petitioner however, failed to append to her complaint a certification from the Lupon ng
Tagapamayapa that no conciliation or settlement had been reached.
The MTC ruled in favor of Berba but on appeal, it was reversed by RTC whose decision
was affirmed by the CA for the reason that Berba's action in the MTC was premature because of
the absence of Certificate to File Action issued by the Lupon.
Issue
WON after the agreement approved by the pangkat (violated by the respondents), the
requirement of certification issued by the Lupon before filing an action in court subsists

20

Josephine was to pay P3,000 every 10th day of the month in addition to the monthly rentals.

Held
Yes, petitioners complain is premature. petitioner and respondent Pablo executed an
Agreement on June 5, 1999, which was approved by the Lupon. Respondent Josephine Pablo
did not repudiate the agreement; hence, such agreement of the parties settling the case had the
force and effect of a final judgment and such may be enforced through the punong barangay
within 6 months as provided in Sec. 41721 of the LGC.
Section 417 of the Local Government Code provides a mechanism for the enforcement
of a settlement of the parties before the Lupon. It provides for a two-tiered mode of
enforcement of an amicable settlement executed by the parties before the Lupon, namely, (a)
by execution of the Punong Barangay which is quasi-judicial and summary in nature on mere
motion of the party/parties entitled thereto; and (b) by an action in regular form, which remedy
is judicial. Under the first remedy, the proceedings are covered by the LGC and the
Katarungang Pambarangay IRR. The Punong Barangay is called upon during the hearing to
determine solely the fact of non-compliance of the terms of the settlement and to give the
defaulting party another chance at voluntarily complying with his obligation under the settlement.
Under the second remedy, the proceedings are governed by the Rules of Court, as amended.
The cause of action is the amicable settlement itself, which, by operation of law, has the force
and effect of a final judgment.
Section 417 of the LGC grants a period of six months to enforce the amicable settlement
by the Lupon through the Punong Barangay before such party may resort to filing an action with
the MTC to enforce the settlement. The raison d'etre of the law is to afford the parties during
the six-month time line, a simple, speedy and less expensive enforcement of their settlement
before the Lupon. In the present case, respondent Josephine Pablo failed to comply with her
obligation of repaying the back rentals of P81,818.00 and the current rentals for the house.
Hence, the petitioner had the right to enforce the Agreement against her and move for her
eviction from the premises. However, instead of filing a motion before the Lupon for the
enforcement of the agreement, or (after six months), an action in the Metropolitan Trial Court
(MTC) for the enforcement of the settlement, the petitioner filed an action against respondent
Josephine Pablo for unlawful detainer and the collection of unpaid rentals, inclusive of those
already due before the June 5, 1999 Agreement was executed. The action of the petitioner
against respondent Pablo was barred by the Agreement of June 5, 1999.
Petition Denied.
SPS. VIRGILIO F. SANTOS & ESPERANZA LATI SANTOS, SPS.VICTORINO F. SANTOS, &
LAGRIMAS SANTOS, ERNESTO F. SANTOS, AND TADEO F. SANTOS, PETITIONERS, VS.
SPS. JOSE LUMBAO AND PROSERFINA LUMBAO, RESPONDENTS.
FACTS
On two separate occasions during her lifetime, Rita sold to respondents Spouses
Lumbao the subject property which is a part of her share in the estate of her deceased mother
who died intestate. After acquiring the subject property, respondents took actual possession
thereof and erected thereon a house which they have been occupying as exclusive owners up
to the present. As the exclusive owners of the subject property, respondents made several
verbal demands upon Rita, during her lifetime, and thereafter upon herein petitioners (Ritas
legitimate heirs), for them to execute the necessary documents to effect the issuance of a
separate title in favor of respondents insofar as the subject property is concerned. The
SEC. 417. Execution. The amicable settlement or arbitration award may be enforced by execution by the Lupon within six (6) months from the
date of the settlement. After the lapse of such time, the settlement may be enforced by action in the proper city or municipa l court.
21

petitioners executed a Deed of Extrajudicial Settlement after Ritas death, adjudicating and
partitioning among themselves and the other heirs, the estate which included the subject
property already sold to respondents. After petitioners refused to reconvey the subject property
to respondents despite a formal demand letter was sent to the former, the latter filed a
Complaint for Reconveyance with Damages before the RTC of Pasig City.
Petitioners filed their Answer denying the allegations that the subject property had been
sold to the respondents. On the contrary, they prayed for the dismissal of the complaint for lack
of cause of action because respondents failed to comply with the Revised Katarungang
Pambarangay Law under RA 7160 requiring first resort to barangay conciliation.
The RTC denied the complaint, but the CA granted the respondents appeal and
reversed the RTCs ruling.
ISSUE
WON the Complaint for Reconveyance filed by respondents is dismissible for failure to
comply with the mandate of the Revised Katarungang Pambarangay Law
RULING
NO.
Section 408 of the aforesaid law and Administrative Circular No. 14-93 provide that all
disputes between parties actually residing in the same city or municipality are subject to
barangay conciliation. A prior recourse thereto is a pre-condition before filing a complaint in
court or any government offices. Non-compliance with the said condition precedent could
affect the sufficiency of the plaintiff's cause of action and make his complaint vulnerable
to dismissal on ground of lack of cause of action or prematurity; but the same would not
prevent a court of competent jurisdiction from exercising its power of adjudication over
the case before it, where the defendants failed to object to such exercise of jurisdiction.
While it is true that the present case should first be referred to the Barangay Lupon for
conciliation because the parties involved herein actually reside in the same city (Pasig City) and
the dispute between them involves a real property, hence, the said dispute should have been
brought in the city in which the real property, subject matter of the controversy, is located, which
happens to be the same city where the contending parties reside. In the event that respondents
failed to comply with the said condition precedent, their Complaint for Reconveyance with
Damages can be dismissed. Although petitioners alleged in their answer that the Complaint for
Reconveyance with Damages filed by respondents should be dismissed for their failure to
comply with the condition precedent, which in effect, made the complaint prematurely instituted
and the trial court acquired no jurisdiction to hear the case, yet, they did not file a Motion to
Dismiss the said complaint.
Emphasis must be given to the fact that the petitioners could have prevented the trial
court from exercising jurisdiction over the case had they filed a Motion to Dismiss.
However, instead of doing so, they invoked the very same jurisdiction by filing an answer
seeking an affirmative relief from it. Worse, petitioners actively participated in the trial of the
case by presenting their own witness and by cross-examining the witnesses presented by the
respondents. It is elementary that the active participation of a party in a case pending
against him before a court is tantamount to recognition of that court's jurisdiction and a
willingness to abide by the resolution of the case which will bar said party from later on
impugning the court's jurisdiction. It is also well-settled that the non- referral of a case for
barangay conciliation when so required under the law is not jurisdictional in nature and
may therefore be deemed waived if not raised seasonably in a motion to dismiss. Hence,
herein petitioners can no longer raise the defense of non- compliance with the barangay

conciliation proceedings to seek the dismissal of the complaint filed by the respondents,
because they already waived the said defense when they failed to file a Motion to Dismiss.
NENA GIMENA SOLWAY, Complainant, vs. ARIEL R. PASCASIO, Respondent.
Facts:
Ely Palenzuela (Palenzuela) is the owner of a building in Baloy Beach, Bo. Barretto,
Olongapo City. She leased it to complainant, who opened at the premises an establishment
called Mynes Inn and Restaurant.
Before the Lupon, the parties signed an Amicable Settlement dated 28 January 2004,
wherein it was agreed that the monthly rental is P20,000.00; that complainant will
pay P240,000.00 as rental for one year after the finalization of the contract, and; that the
contract will be renewed yearly.
She produced a copy of a Notice of Execution signed by Barangay Chairman Carlito A.
Baloy, who turned out to be Palenzuelas brother, and forced complainant to sign the same.
Complainant refused to do so. The following day, Pascasio and Uclaray, with the same copy of
the Notice of Execution in tow, also forced and threatened complainant to sign. Out of fear,
complainant relented and signed the Notice of Execution.
In the morning of 20 February 2004, Pascasio and Uclaray, accompanied by Isagani
Saludo and Tulio, returned to complainants restaurant. They introduced themselves as sheriffs
and ordered complainant to take all her properties out of the restaurant. The latter refused,
insisting that there was no court order authorizing the execution and that an agreement for the
renewal of the lease contract had already been reached. At around 3:00 p.m. on the same day,
the barangay chairman ordered respondents to take complainants stuff out of the restaurant
and into the street. Respondents complied. Thereafter, respondents padlocked all the rooms
and ordered all customers to get out of the establishment.
Issue:
WON the respondents presence on the premises was valid, considering that there was no court
order to eject Palenzuela.
Held:
No.
The Amicable Settlement reached by the parties before the Barangay Lupon is
susceptible to legal enforcement. However, the Local Government Code mandates that it is the
Lupon itself which is tasked to enforce by execution the amicable settlement or arbitration award
within six (6) months from the date of settlement. Upon the lapse of such time, the settlement
may only be enforced by filing an action before the appropriate court. Section 417 of the Local
Government Code reads:
SEC. 417. Execution.The amicable settlement or arbitration award may be enforced by
execution by the [L]upon within six (6) months from the date of the settlement. After the lapse of
such time, the settlement may be enforced by action in the proper city or municipal court. The
OCA correctly stated that there is no justiciable case filed before the MTCC that could have
prompted respondents to act accordingly.
Mere presence of a sheriff in a place of execution where the court has no business is
frowned upon. Such act elicits the appearance of impropriety. The situation at bar did not
involve any court order. The execution was undertaken only under the authority of the barangay
chairman, not even that of the Lupon. Even if it was done under the auspices of the Lupon, the
presence of respondents would still not be warranted. Both the barangay chairman and the
Lupon are components of the local government unit which, in turn, is subsumed under the

executive branch of government. As the intended execution of the settlement in this instance
was inherently executive in nature and, therefore, extrajudicial, it necessarily follows that judicial
officers cannot participate in the exercise. The misdeeds of respondents unnecessarily put the
integrity of the court to which they are assigned and the dignity of the institution that is the
judiciary on the line.
The fact of willful participation is penalized especially when the acts of the judicial officer
concerned are not within his or her legal authority. Complainant alleged that respondents
actually participated in the execution of the Amicable Settlement and the OCA observed that
these allegations were not sufficiently refuted by respondents. 15More tellingly, the defense of
respondents that they were acting under the order of the Clerk of Court is belied by the
directive16 issued by the latter directing respondents to explain their presence at the site of the
implementation of the Notice of Execution.
Nothing in this Rule justifies their participation in the implementation of the Notice of
Execution. Clearly, respondents were not acting within their authority. This further lends
credence to complainants claim that their presence was only meant to instill fear on her to
make her sign the Notice of Execution.
Respondents have exceeded their mandated duties when they interfered with functions
that should have been exercised only by barangay officials. Their actions run counter to the
Code of Conduct of Court Personnel which provides that court personnel shall expeditiously
enforce rules and implement orders of the court within the limits of their authority. As we have
so reiterated in a previous ruling, a court employee is expected to do no more than what duty
demands and no less than what privilege permits. Though he may be of great help to specific
individuals, but when that help frustrates and betrays the publics trust in the system, it cannot
and should not remain unchecked. 17
Sheriffs play an important role in the administration of justice since they are called upon
to serve court writs, execute all processes, and carry into effect the orders of the court with due
care and utmost diligence. As officers of the court, sheriffs are duty-bound to use reasonable
skill and diligence in the performance of their duties, and conduct themselves with propriety and
decorum and act above suspicion. 18
In the instant case, respondents failed to uphold the standard of integrity and prudence
ought to be exercised by officers of the court. Based on the foregoing, we are constrained to
reverse the recommendation of the OCA in dismissing the complaint.
ANGEL L. BOLEYLEY v. JUDGE CLARENCE J. VILLANUEVA & ALBERT S. SURLA
G.R. No. 128734, 14 September 1999, FIRST DIVISION, Pardo
Facts
Boleyley filed with the RTC-Baguio City a complaint against Surla for collection of a sum
of money. Surla filed with the trial court a motion to dismiss the complaint on the ground that
Boleyley did not comply with the Revised Katarungan Pambarangay Law requiring as a
condition for the filing of a complaint in court referral of the matter to the barangay lupon
chairman or the pangkat, for conciliation or settlement. Boleyley filed an opposition to motion to
dismiss on the ground that Surla was not a resident of Baguio City so that the dispute involving
the parties was not within the authority of the lupon to bring together for conciliation or
settlement. The trial court dismissed the case for being premature, for not having been referred
to the barangay lupon.
ISSUE:
Was Boleyley bound to refer the dispute to the barangay lupon or pangkat for
conciliation or settlement before he could file an action for collection with the RTC?

RULING:
NO.
It is a basic rule of procedure that jurisdiction of the court over the subject matter of the
action is determined by the allegations of the complaint, irrespective of whether or not the
plaintiff is entitled to recover upon all or some of the claims asserted therein. The jurisdiction of
the court can not be made to depend upon the defenses set up in the answer or upon the
motion to dismiss, for otherwise, the question of jurisdiction would almost entirely depend upon
the defendant.
The parties do not reside in the same city or municipality, and hence, the dispute is
excepted from the requirement of referral to the barangay lupon or pangkat for conciliation or
settlement prior to filing with the court.
In procedural law, however, specifically for purposes of venue it has been held that the
residence of a person is his personal, actual or physical habitation or his actual residence or
place of abode, which may not necessarily be his legal residence or domicile provided he
resides therein with continuity and consistency.
The venue of the action is not affected by the filing of defendants (respondents) motion
to dismiss stating that he also resided in Baguio City. That is not decisive to determine the
proper venue.
Consequently, we rule that there is no need of prior referral of the dispute to the
barangay lupon or pangkat in the absence of showing in the complaint itself that the
parties reside in the same city or municipality.
In thus dismissing the complaint for insufficiency of cause of action or pre-maturity, the
trial court committed grave abuse of discretion amounting to lack or excess of jurisdiction,
entitling Boleyley to the relief prayed for.
MARIA L. HAROLD v AGAPITO T. ALIBA
Facts
Sometime in January 1993, Harold engaged the services of respondent Agapito T. Aliba,
a geodetic engineer, to conduct a relocation survey and to execute a consolidation-subdivision
of their properties including that of Harolds sister, Alice Laruan. After completing his work,
Aliba failed to return the certificates of title of the said properties for more than one year, despite
repeated demands to return them. It also appears that sometime in January 1994, Aliba
prevailed upon Harold and her husband to sign a document which was supposedly needed to
facilitate the consolidation-subdivision. Harold and her husband were later informed that Aliba
had sold their lot to a third person.
Thinking that she can no longer recover her property, Harold asked for the payment of
the fair market value of her property but to no avail. The dispute between Harold and Aliba was
referred to Punong Barangay Limson Ogas and the Lupong Tagapamayapa. During the June 8,
1994 barangay conciliation proceedings, the parties herein agreed that Aliba will pay an
additional amount of P75,000 to the initial P500,000 Aliba had already given to Harold. In the
same proceedings, Aliba tendered P70,000, which Harold accepted. The receipt of the amount
given was evidenced by an acknowledgment receipt signed by the parties herein, attested to by
the Lupon chairman, and witnessed by several barangay officials. The following day, Aliba
tendered the remaining P5,000 to Harold to complete their amicable settlement. Unfortunately,
Harold refused to accept the same, saying that P5,000 is not enough and insisted on the
elevation of the case to the court. Thus, a certification to file action was issued by the Office of

the Lupong Tagapamayapa on June 29, 1994. Immediately thereafter, Harold filed a Complaint
against Aliba before the Municipal Trial Court (MTC) of La Trinidad, Benguet.
Issue:
WHETHER OR NOT THE ACKNOWLEDGEMENT RECEIPT SIGNED BY PETITIONER AND
THE MINUTES OF THE PROCEEDINGS IS A SUBSTANTIAL COMPLIANCE WITH THE
REQUIREMENT OF SECTION 411 OF RA 7160, OTHERWISE KNOWN AS THE LOCAL
GOVERNMENT CODE OF 1991 AS CONCLUDED BY THE MUNICIPAL TRIAL COURT, AND
AFFIRMED BY THE REGIONAL TRIAL COURT AND COURT OF APPEALS.
Held: Yes.
The requirements under Section 411 of the LGC had been substantially complied with.
The minutes of the barangay conciliation proceedings readily disclose the terms agreed upon by
the parties for the settlement of their dispute, and that the acknowledgment receipt, which was
written in a language known to the parties, signed by them, attested to by the Lupon Chairman,
and witnessed by several barangay officials, serves as an indubitable proof of the amicable
settlement and of the substantial compliance of its terms by respondent Aliba.
Moreover, even without the minutes of the meeting and the acknowledgment receipt, the
amicable settlement, or more specifically the compromise agreement, entered into by the
parties is undeniably valid, considering that a compromise agreement is a consensual contract,
and as such, it is perfected upon the meeting of' the minds of the parties to the contract.
Furthermore, to rule against the validity of the cited amicable settlement herein would
militate against the spirit and purpose of the Katarungang Pambarangay Law, which is to
encourage the amicable settlement of disputes at the barangay level as an alternative to court
litigation. Harolds refusal to accept the remaining P5,000 that Aliba had tendered cannot
constitute an effective repudiation of the questioned amicable settlement, considering that the
reason for her refusal to accept the said amount or alleged repudiation of the assailed amicable
settlement is not one of the grounds for repudiation clearly specified under Section 418 of the
LGC. As borne out by the records, her refusal to accept the same was based on the alleged
insufficiency of the remaining P5,000 as settlement for the lot, without any reference to vitiation
of her consent by any fraud, violence or intimidation on Alibas part.
The petition was DENIED.
Liga ng mga Barangay

------Galarosa----RAMON ALQUIZOLA, SR., petitioner, vs. GALLARDO OCOL, respondents

Facts
Petitioner Ramon Alquizola, Sr., won the post of Punong Barangay of Barangay Tubod,
Iligan City, in the 12th May 1997 barangay elections. Respondents Gallardo Ocol, Camilo
Penaco, Saturnino Mendoza, Rafael Ardiente, Vicente Caseres, Ricardo Zosa III, and Sirad
Umpa were appointees of the former punong barangay of Barangay Tubod, the first two
occupying the positions of barangay treasurer and barangay secretary, respectively, with the
rest being barangay utility workers.
After the elections, petitioner Alquizola terminated the services of respondents and
appointed his co-petitioners, Marissa Doromal and Adelo Seco, respectively, as barangay
treasurer and as barangay secretary. In consonance with Section 394 and Section 395 of the
Local Government Code, he submitted both appointments to the Sangguniang Barangay for
approval. The Sanggunian rejected the appointments.

Following the action taken by the Sangguniang Barangay, respondents filed a complaint
for quo warranto, mandamus and prohibition with the Regional Trial Court of Lanao Del Norte to
enjoin petitioner from terminating the services of the former. The trial court found in favor of
respondents and ordered petitioner Ramon Alquizola, Sr., to cease and desist from dismissing
respondents on the ground that their dismissal had been effected without the corresponding
approval of the Sangguniang Barangay. It held that Section 389(b)(5) limited the power of
a barangay captain to remove appointive barangay officials by requiring an approval of such act
by a majority of the Sangguniang Barangay. A motion for reconsideration was denied.
Issue:
WON petitioners act of replacing the respondents is valid.
Held:
Yes.
Section 389. Chief Executive: Powers, Duties, and Functions. x x x
(b) For efficient, effective and economical governance, the purpose of which is the general
welfare of the barangay and its inhabitants pursuant to Section 16 of this Code, the punong
barangay shall:
x x x

xxx

xxx

(5) Upon approval by a majority of all the members of the sangguniang barangay, appoint
or replace the barangay treasurer, the barangay secretary, and other appointive barangay
officials;
The term replace would obviously embrace not only the appointment of the
replacement but also the prior removal of, or the vacation by, the official currently occupying the
appointive position concerned. To replace is to take the place of, to serve as a substitute for or
successor of, to put in place of, or to fill the post of an incumbent.[1] In order to provide a
replacement to an office, the prior holder must have first been removed or the office must have,
otherwise, been previously rendered vacant.
Aside from what may be implicit in Section 389, there is no other provision in the Local
Government Code that treats of the power of the Punong Barangay to remove
the barangay secretary, the barangay treasurer, or any other appointivebarangay official from
office. The duration of the term of office of these barangay officials have not been fixed by the
Local Government Code. Where the tenure of the office is not fixed by law, it is a sound and
useful rule to consider the power of removal as being an incident to the power of
appointment.[2] Elsewise stated, the power to remove is deemed implied in the power to appoint.
The Code explicitly vests on the punong barangay, upon approval by a majority of all the
members of the sangguniang barangay, the power to appoint or replace the barangay treasurer,
the barangay secretary, and other appointivebarangay officials. This provision is reinforced, in
the case of the secretary and the treasurer, by the provisions of Section 394 and Section 395 of
the Local Government Code;
Verily, the power of appointment is to be exercised conjointly by the punong
barangay an a majority of all the members of the sangguniang barangay. Without such conjoint
action, neither an appointment nor a replacement can be effectual.
Applying the rule that the power to appoint includes the power to remove, one that the
Court finds no cogent reason to now depart from, the questioned dismissal from office of
the barangay officials by the punong barangay without the concurrence of the majority of all the
members of the Sangguniang Barangay cannot be legally justified. To rule otherwise could also
create an absurd situation of the Sangguniang Barangay members refusing, like here, to give

their approval to the replacements selected by the punong barangay who has unilaterally
terminated the services of the incumbents. It is likely that the legislature did not intend this
absurdity to flow from its enactment of the law.