REPUBLIC v. ATTY. RICHARD B.
RAMBUYONG, GR arrive at an amicable settlement, respondent issued a
No. 167810, 2010-10-04
Facts
Alfredo (Chu) filed a case for collection of a sum of money
against the National Power Corporation (NPC)
Appearing as counsel for Chu is Atty. Rambuyong who
was then the incumbent Vice-Mayor of Ipil, Zamboanga
Sibugay.
NPC filed a Motion for Inhibition of Atty. Rambuyong
arguing that under Local Government Code, sanggunian
members are prohibited "to appear as counsel before any
court wherein x x x any office, agency or instrumentality of
the government is the adverse party." NPC contended that
being a government-owned or controlled corporation, it is
embraced within the term "instrumentality."
The Regional Trial Court is DENIED defendant's motion in
due course and declares that:
(1) R.A. 7160 does not include government-owned
or controlled corporations as among the political
units against which lawyer members of the
Sanggunian cannot appear as counsel of the
adverse party
(2) Atty. Rambuyong is not disqualified to continue
acting as counsel for the plaintiff in this case
Issues:
Whether Atty. Rambuyong, as a sanggunian member,
should not appear as counsel
Ruling:
Section 446 of the Local Government Code provides that
"[t]he sanggnniang bayan, the legislative body of the
municipality, shall be composed of the municipal vice
mayor as the presiding officer x x x." Thus, pursuant to
Sec. 90 (b), (1) of the Local Government Code, Atty.
Rambuyong, as sanggunian member, cannot appear as
counsel of a party adverse to the NPC, which is an
instrumentality of government.
petition is GRANTED.
WILFREDO M. CATU v. ATTY. VICENTE G.
RELLOSA, AC. No. 5738, 2008-02-19
Facts:
Complainant Wilfredo M. Catu is a co-owner of a lot and
the building erected at Malate, Manila.
His mother and brother, Regina and Antonio contested the
possession of Elizabeth C. Diaz-Catu and Antonio Pastor of
one of the units in the building.
Respondent, as punong barangay of Barangay, summoned
the parties to conciliation meetings. When parties failed to
certification for the filing of the appropriate action in court.
Thereafter, Regina and Antonio filed a complaint for
ejectment against Elizabeth and Pastor
Respondent entered his appearance as counsel for the
defendants in that case.
Because of this, complainant filed the instant administrative
complaint, claiming that respondent committed an act of
impropriety as a lawyer and as a public officer when he
stood as counsel for the defendants despite the fact that he
presided over the conciliation proceedings between the
litigants as punong barangay.
Issues:
Whether respondent may enter his appearance as counsel to
the defendants
Ruling:
YES
Accordingly, as punong barangay, respondent was not
forbidden to practice his profession. However, he should
have procured prior permission or authorization from the
head of his Department, as required by civil service
regulations.
Section 7(b)(2) of RA 6713 prohibits public officials and
employees, during their incumbency, from engaging in the
private practice of their profession "unless authorized by
the Constitution or law, provided that such practice will not
conflict or tend to conflict with their official functions."
This is the general law which applies to all public officials
and employees.
Under RA 7160, elective local officials of provinces, cities,
municipalities and barangays are the following: the
governor, the vice governor and members of the
sangguniang panlalawigan for provinces; the city mayor,
the city vice mayor and the members of the sangguniang
panlungsod for cities; the municipal mayor, the municipal
vice mayor and the members of the sangguniang bayan for
municipalities and the punong barangay, the members of
the sangguniang barangay and the members of the
sangguniang kabataan for barangays.
Of these elective local officials, governors, city mayors 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. This is
because they are required to render full time service. They
should therefore devote all their time and attention to the
performance of their official duties.
On the other hand, members of the sangguniang
panlalawigan, sangguniang panlungsod or sangguniang
bayan may practice their professions, engage in any
occupation, or teach in schools except during session hours.
In other words, they may practice their professions, engage
in any occupation, or teach in schools outside their session
hours. Unlike governors, city mayors and municipal
mayors, members of the sangguniang panlalawigan,
sangguniang panlungsod or sangguniang bayan are required
to hold regular sessions only at least once a week.
Since the law itself grants them the authority to practice
their professions, engage in any occupation or teach in
schools outside session hours, there is no longer any need
for them to secure prior permission or authorization from
any other person or office for any of these purposes.
While, certain local elective officials (like governors,
mayors, provincial board members and councilors) are
expressly subjected to a total or partial proscription to
practice their profession or engage in any occupation,
no such interdiction is made on the punong barangay
and the members of the sangguniang barangay.
Expressio unius est exclusio alterius. Since they are
excluded from any prohibition, the presumption is that they
are allowed to practice their profession.
And this stands to reason because they are not mandated to
serve full time. In fact, the sangguniang barangay is
supposed to hold regular sessions only twice a month.
FLORES V DRILON
FACTS
Petitioners, taxpayers and employees of U.S facilities at
Subic, challenge the constitutionality of Sec. 13 (d) of the
Bases Conversion and Development Act of 1992 which
directs the President to appoint a professional manager as
administrator of the Subic Bay Metropolitan Authority
(SBMA)provided that for the 1st year of its operations,
the mayor of Olongapo City (Richard Gordon) shall be
appointed as the chairman and the CEO of the Subic
Authority.
ISSUES
(1) Whether the proviso violates the constitutional
proscription against appointment or designation of elective
officials to other government posts.
(2) Whether or not the SBMA posts are merely ex officio to
the position of Mayor of Olongapo City and thus an
excepted circumstance.
(3) Whether or not the Constitutional provision allowing an
elective official to receive double compensation (Sec. 8, Art.
IX-B) would be useless if no elective official may be
appointed to another post.
(4) Whether there is legislative encroachment on the
appointing authority of the President.
(5) Whether Mayor Gordon may retain any and all per
diems, allowances and other emoluments which he may have
received pursuant to his appointment.
HELD
(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure. Unless otherwise allowed by law or by the
primary functions of his position, no appointive official shall
hold any other office or employment in the Government or
any subdivision, agency or instrumentality thereof,
including government-owned or controlled corporations or
their subsidiaries. The subject proviso directs the President
to appoint an elective official i.e. the Mayor of Olongapo
City, to other government post (as Chairman and CEO of
SBMA). This is precisely what the Constitutionprohibits. It
seeks to prevent a situation where a local elective official
will work for his appointment in an executive position in
government, and thus neglect his constitutents.
(2) NO, Congress did not contemplate making the SBMA
posts as automatically attached to the Office of the Mayor
without need of appointment. The phrase shall be
appointed unquestionably shows the intent to make the
SBMA posts appointive and not merely adjunct to the
post of Mayor of Olongapo City.
(3) NO, Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example,
an elective official who may be appointed to a cabinet post,
may receive the compensation attached to the cabinet
position if specifically authorized by law.
(4) YES, although Section 13(d) itself vests in the President
the power to appoint the Chairman of SBMA, he really has
no choice but to appoint the Mayor of Olongapo City. The
power of choice is the heart of the power
to appoint. Appointment involves an exercise of discretion
of whom to appoint. Hence, when Congress clothes the
President with the power to appoint an officer, it cannot at
the same time limit the choice of the President to only
one candidate. Such enactment effectively eliminates the
discretion of the appointing power to choose and constitutes
an irregular restriction on the power of appointment. While
it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of Olongapo
City, it is manifestly an abuse of congressional authority to
prescribe qualifications where only one, and no other, can
qualify. Since the ineligibility of an elective official
for appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his
elective post to cast off the constitutionally-attached
disqualification before he may be considered fit
for appointment. Consequently, as long as he is an
incumbent, an elective official remains ineligible
for appointment to another public office.
(5) YES, as incumbent elective official, Gordon is ineligible
for appointment to the position of Chairman and CEO of
SBMA; hence, his appointment thereto cannot be sustained.
He however remains Mayor of Olongapo City, and his acts
as SBMA official are not necessarily null and void; he may
be considered a de facto officer, and in accordance with
jurisprudence, is entitled to such benefits.
MANUEL B. JAPZON VS COMELEC and JAIME S. TY
G.R. NO. 180088
January 19, 2009
FACTS: Manuel B. Japzon (Japzon) and Jaime S. Ty (Ty)
were candidates for Mayor of the Municipality of
Gen. Macarthur, Eastern Samar in the elections of May 14,
2007. Japzon filed a petition to disqualify Ty on the
ground of material misrepresentation.
Japzon averred that:
1. Ty was a former natural-born Filipino, born in
what was then Pambujan Sur, Hernani Eastern
Samar
(now Gen. Macarthur, Easter Samar) to a Chinese
father and a Filipino mother.
2. Ty migrated to the USA, became a citizen
thereof, and resided therein for the last 25 years.
3. Ty falsely represented in his COC that he was
a resident of Gen. Macarthur for one year prior
to
elections, and was not a permanent resident or
immigrant of any foreign country.
4. While Ty may have applied for reacquisition
of his Philippine citizenship, he never actually
resided
Gen Macarthur, Eastern Samar, for a period of 1
year immediately preceding the date of election
as
required under the Local Government Code.
5. Ty continued traveling to the USA and
comporting himself as a US citizen even after
filing his COC
and taking his Oath of Allegiance.
6. He failed to renounce his foreign citizenship as
required by RA No. 9225 (Citizenship Retention
and
Reacquisition Act of 2003).
Ty responded to wit:
1. He was a natural-born Filipino who went to the
USA to work and subsequently became a
naturalized
American citizen. However, prior to filing his
COC, he already filed with the Philippine
Consulate
General in Los Angeles, California, USA, an
application for the reacquisition of his
Philippine
citizenship.
2. He executed an Oath of Allegiance to the
Republic of the Philippines before the Vice
Consul of the
Philippine Consulate
3. He applied for and was issued a Philippine
passport indicating that his residence in the
Philippines was
at A. Mabini St., Barangay 6, Poblacion, General
Macarthur, Eastern Samar.
4. He personally secured his Community Tax
Certificate (CTC) in Gen. Macarthur, Eastern
Samar.
5. He was registered as a voter at Gen Macarthur,
Eastern Samar.
6. He executed on 19 March 2007 a duly
notarized Renunciation of Foreign Citizenship
Ty won the elections and was proclaimed Mayor of Gen
Macarthur by the BOC in the interim.
The COMELEC found that Ty complied with all the
requirements of RA 9225 and dismissed the petition.
Evidence revealed that Ty executed an Oath of Allegiance
in the USA and a Renunciation of Foreign Citizenship on
March 19, 2007, in compliance with R.A. No. 9225. There
was no material misrepresentation in his COC. Although
Ty has lost his domicile when he was naturalized as U.S.
citizen, the reacquisition of Philippine citizenship and
subsequent acts proved that he has been a resident of
Barangay 6, Poblacion, GeneralMacarthur, Eastern Samar
for at least 1 year prior to elections as stated in his COC.
COMELEC went on to explain that the term residence is to
be understood not in its common acceptation as referring to
dwelling or habitation, but rather to domicile or legal
residence or 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).
A domicile of origin is acquired by every person at birth
until the same is abandoned by acquisition of new domicile
(domicile of choice).
Japzons motion for reconsideration was denied, in the
same manner as his petition with the COMELEC En Banc
failed.
The COMELEC En Banc held that a Natural born Filipino
who obtains foreign citizenship, and subsequently
renounces the same, constitutes acts of repatriation and
hence becomes qualified to run as a candidate for any local
post
ISSUE: Did the COMELEC err in its ruling by
disregarding the parameters for the acquisition of a new
domicile of choice and residence? Did the COMELEC err
in refusing to cancel Tys COC and to declare Japzon as the
duly elected Mayor
Held: No
Ty was a natural-born Filipino. Even if he left to work in
the USA and eventually became an American citizen, he
reacquired his Philippine citizenship by taking his Oath of
Allegiance to the Republic before the Vice Consul in Los
Angeles, California in accordance with RA No. 9225. He
then, became a dual citizen. It was only on March 19, 2007
that he renounced his American citizenship before a notary
public and became a pure Philippine citizen again.
RA No 9225 imposes no residency requirement for the
reacquisition or retention of Philippine citizenship; nor
does it mention any effect of reacquisition or retention of
Philippine citizenship on the current residence of the
natural-born Filipino. Citizenship and residence are
independently treated in RA No 9225. Residency only
becomes relevant when the natural-born Filipino with dual
citizenship runs for public office. He must:
(1) meet the qualifications for holding such public office as
required by the Constitution and existing laws; and
(2) make a personal and sworn renunciation of any and all
foreign citizenships before any public officer authorized to
administer an oath.
Ty complied with the second requirement when he
personally executed a Renunciation of Foreign Citizenship
on March 19, 2007 before a notary public. By the time he
filed his COC on March 28, 2007, he had already
effectively renounced his American citizenship.
Under Section 39 of the Local Government Code (RA No
7160), it is required that an elective official be a resident of
the independent component cities, component cities, or
municipalites where he intends to be elected for at least 1
year immediately preceding the day of the election.
Ty admitted that he became a naturalized American
citizen, which meant he must have abandoned Gen
Macarthur, Eastern Samar as his domicile of origin and
transferred to the USA as his domicile of choice. His
reacquisition of Philippine citizenship had no impact on his
residence/domicile. He did not necessarily regain his
domicile in Gen. Macarthur, but merely had the option to
establish his domicile of choice therein. The length of his
residence shall be determined from the time he made it his
domicile of choice and shall not retroact to the time of his
birth.
Under Papandayan Jr., vs COMELEC, it is the fact of
residence that is the decisive factor. The principle of
animus revertendi has been used to determine whether a
candidate has an intention to return to the place where he
seeks to be elected. Thus, it is important to determine
whether there has been an abandonment of his former
residence. Absence from residence to pursue studies or
practice his profession does not constitute loss of residence.
In order to acquire a new domicile by choice, there must
concur
(1) residence or bodily presence in the new locality,
(2) an intention to remain there, and
(3) an intention to abandon the old domicile.
There must be animus manendi coupled with animus non
revertendi. The purpose to remain in or at the domicile of
choice must be for an indefinite period of time; the change
of residence must be voluntary; and the residence at the
place chosen for the new domicile must be actual.
The COMELEC found that Ty had been a resident of Gen
Macarthur 1 year prior to the elections. Factual findings of
administrative agencies, such as the COMELEC, are
binding and conclusive on the SC, most especially since the
Constitution intended to place the COMELEC on a level
higher that other administrative organs.
Tys intent to establish a new domicile of choice became
apparent when, immediately after reacquiring his
Philippine citizenship on October 2, 2005, he applied for a
Philippine passport indicating his address at A. Mabini St.,
Barangay 6, Poblacion, Gen Macarthur, Eastern Samar. He
paid his community tax, securing CTCsand stating his
address in Gen Macarthur. Thereafter, Ty applied for and
was registered as a voter on July 17, 2006 in the same
town. He has also been bodily present in the municipality
since his arrival on May 4, 2006. His trips abroad are
further manifestations of his animus manendi and animus
revertendi. Even with his trips to other countries, Ty was
actually present in Gen Macarthur, for at least 9 of the 12
months preceding the local elections.
There is nothing wrong in an individual changing
residences so he could run for an elective post, for as long
as he is able to prove that he has effected a change of
residence for election law purposes for the period required
by law. Ty has proven that he had established
residence/domicile a little over a year prior to the local
elections, in which he ran for Mayor and in which he
garnered the most number of votes
Sobejana-Condon v. Comelec
Facts:
The petitioner is a natural-born Filipino citizen having been
born of Filipino parents on August 8, 1944. On December
13, 1984, she became a naturalized Australian citizen
owing to her marriage to a certain Kevin Thomas Condon.
On December 2, 2005, she filed an application to re-acquire
Philippine citizenship before the Philippine Embassy in
Canberra, Australia pursuant to Section 3 of R.A. No. 9225
otherwise known as the "Citizenship Retention and Re-
Acquisition Act of 2003."5 The application was approved
and the petitioner took her oath of allegiance to the
Republic of the Philippines on December 5, 2005.
On September 18, 2006, the petitioner filed an unsworn
Declaration of Renunciation of Australian Citizenship
before the Department of Immigration and Indigenous
Affairs, Canberra, Australia, which in turn issued the Order
dated September 27, 2006 certifying that she has ceased to
be an Australian citizen.
The petitioner ran for Mayor in her hometown of Caba, La
Union in the 2007 elections. She lost in her bid. She again
sought elective office during the May 10, 2010 elections
this time for the position of Vice-Mayor. She obtained the
highest numbers of votes and was proclaimed as the
winning candidate. She took her oath of office on May 13,
2010.
Soon thereafter, private respondents Robelito V. Picar,
Wilma P. Pagaduan7 and Luis M. Bautista,8 (private
respondents) all registered voters of Caba, La Union, filed
separate petitions for quo warranto questioning the
petitioners eligibility before the RTC. The petitions
similarly sought the petitioners disqualification from
holding her elective post on the ground that she is a dual
citizen and that she failed to execute a "personal and sworn
renunciation of any and all foreign citizenship before any
public officer authorized to administer an oath" as imposed
by Section 5(2) of R.A. No. 9225.
The petitioner denied being a dual citizen and averred that
since September 27, 2006, she ceased to be an Australian
citizen. She claimed that the Declaration of Renunciation of
Australian Citizenship she executed in Australia
sufficiently complied with Section 5(2), R.A. No. 9225 and
that her act of running for public office is a clear
abandonment of her Australian citizenship.
The trial decision ordered by the trial court declaring
Condon disqualified and ineligible to hold office of vice
mayor of Caba La union and nullified her proclamation as
the winning candidate.
After that the decision was appealed to the comelec, but the
appeal was dismissed y the second division and affirmed
the decision of the trial court.
The petitioner contends that since she ceased to be an
Australian citizen on September 27, 2006, she no longer
held dual citizenship and was only a Filipino citizen when
she filed her certificate of candidacy as early as the 2007
elections. Hence, the "personal and sworn renunciation of
foreign citizenship" imposed by Section 5(2) of R.A. No.
9225 to dual citizens seeking elective office does not apply
to her.
Issue: W/N petitioner disqualified from running for
elective office due to failure to renounce her Australian
Citizenship in accordance with Sec. 5 (2) of R.A 9225
Ruling:
R.A. No. 9225 allows the retention and re-acquisition of
Filipino citizenship for natural-born citizens who have lost
their Philippine citizenship18 by taking an oath of allegiance
to the Republic.
Natural-born citizens of the Philippines who, after the
effectivity of this Act, become citizens of a foreign country
shall retain their Philippine citizenship upon taking the
aforesaid oath.
The oath is an abbreviated repatriation process that restores
ones Filipino citizenship and all civil and political rights
and obligations concomitant therewith, subject to certain
conditions imposed in Section 5.
Section 5, paragraph 2 provides:
(2) Those seeking elective public office in the
Philippines shall meet the qualification 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.
On September 18, 2006, or a year before she initially
sought elective public office, she filed a renunciation of
Australian citizenship in Canberra, Australia. Admittedly,
however, the same was not under oath contrary to the
exact mandate of Section 5(2) that the renunciation of
foreign citizenship must be sworn before an officer
authorized to administer oath.
The supreme court said that, the renunciation of her
Australian citizenship was invalid due to it was not oath
before any public officer authorized to administer it
rendering the act of Condon void.
WHEREFORE, in view of all the foregoing, the petition is
hereby DISMISSED. The Resolution dated September 6,
2011 of the Commission on Elections en banc in EAC
(AE).
Cordora vs Comelec
Carpio, J:
FACTS:
Cordora filed a complaint affidavit before Comelec law
department against Tambunting asserting that Gustavo
Tambunting made false assertion in his certificate of
candidacy by claiming that Natural Born Filipino and
resident before the election in 2001and 2004. Cordora
alleged that Tambunting was not eligible to run for local
public office because Tambunting lacked therequired
citizenship and residency requirements.Cordora presented a
certification from the Bureau of Immigration which
statedthat, in two instances, Tambunting claimed that he is
an American: upon arrival in the Philippines on 16
December 2000 andupon departure from the Philippines on
17 June 2001. According to Cordora, these travel dates
confirmed that Tambunting acquired American citizenship
through naturalization in Honolulu, Hawaii on 2 December
2000.Tambunting, on the other hand,maintained that he did
not make any misrepresentation in his certificates of
candidacy.
To refute Cordoras claim that Tambunting is not a natural-
born Filipino, Tambunting presented a copy of his birth
certificate which showed that he was born of a Filipino
mother and an American father. Tambunting further
denied that he was naturalized as an American citizen. The
certificate of citizenship conferred by the US government
after Tambuntings father petitioned him through INS
Form I-130(Petition for Relative) merely confirmed
Tambuntings citizenship which he acquired at birth.
Tambuntings possession of an American passport did not
mean that Tambunting is not a Filipino citizen. Tambunting
also took an oath of allegiance on 18November 2003
pursuant to Republic Act No. 9225 (R.A. No. 9225), or the
Citizenship Retention and Reacquisition Act of 2003.The
Comelec law department recommended the dismissal of
complaint because it failed to substantiate the charges.
The COMELEC En Banc affirmed the findings and the
resolution of the COMELEC Law Department. The
COMELEC
En Banc was convinced that Cordora failed to support his
accusation against Tambunting by sufficient and
convincing evidence.Commissioner Sarmiento wrote a
separate opinion which concurred with the findings of the
En Banc Resolution.
Commissioner Sarmiento pointed out that Tambunting
could be considered a dual citizen. Moreover, Tambunting
effectively renounced hisAmerican citizenship when he
filed his certificates of candidacy in 2001 and 2004 and ran
for public office. Petitioner filed a MR but was denied,
hence, this petition
.ISSUE:
Whether or not Tambunting is natural born Filipino.
HELD:
Tambunting does not deny that he is born of a Filipino
mother and an American father. Neither does he deny that
he underwentthe process involved in INS Form I-130
(Petition for Relative) because of his fathers citizenship.
Tambunting claims thatbecause of his parents differing
citizenships, he is both Filipino and American by birth.
Cordora, on the other hand, insists thatTambunting is a
naturalized American citizen.
We agree with Commissioner Sarmientos observation that
Tambunting possesses dual citizenship. Because of the
circumstances of his birth, it was no longer necessary for
Tambunting to undergo the naturalization process to
acquire Americancitizenship. The process involved in INS
Form I-130 only served to confirm the American
citizenship which Tambunting acquiredat birth.
The certification from the Bureau of Immigration which
Cordora presented contained two trips where Tambunting
claimed that he is an American. However, the same
certification showed nine other trips where Tambunting
claimed that he is Filipino.
Clearly, Tambunting possessed dual citizenship prior to the
filing of his certificate of candidacy before the
2001elections. The fact that Tambunting had dual
citizenship did not disqualify him from running for public
office.
Dual citizenship is involuntary and 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. Thus, like any other natural-
born Filipino, it is enough for a person with dual
citizenship who seeks public office to file his certificate of
candidacy and swear to the oath of allegiance contained
therein.
Dual allegiance, on the other hand, is brought about by the
individuals active participation in the naturalization
process. AASJS
states that, under R.A. No. 9225, a Filipino who becomes a
naturalized citizen of another country is allowed to retain
his Filipino citizenship by swearing to the supreme
authority of the Republic of the Philippines. The act of
taking an oath of allegiance is an implicit renunciation of a
naturalized citizens foreign citizenship