Altarejos vs COMELEC
proper civil registry and in the Bureau of Immigration.
Facts:
• Petitioner Altarejos was a candidate for mayor in the
Municipality of San Jacinto, Masbate in the May 10, 2004 national
and local elections.
• January 15, 2004 - Private respondents Jose Almiñe
Altiche and Vernon Versoza, registered voters of San Jacinto,
Masbate, filed with the COMELEC, a petition to disqualify and to
deny due course or cancel the certificate of candidacy of
petitioner on the ground that he is not a Filipino citizen and that he
made a false representation in his certificate of candidacy that
"[he] was not a permanent resident of or immigrant to a foreign
country." Private respondents alleged that based on a letter from
the Bureau of Immigration dated June 25, 2001, petitioner was a
holder of a permanent U.S. resident visa, an Alien Certificate of
Registration issued on November 3, 1997, and an Immigration
Certificate of Residence issued on November 3, 1997 by the Bureau
of Immigration.2
• January 26, 2004 - Petitioner filed an Answer stating,
among others, that he did not commit false representation in his
application for candidacy as mayor because as early as
December 17, 1997, he was already issued a Certificate of
Repatriation by the Special Committee on Naturalization, after he
filed a petition for repatriation pursuant to Republic Act No. 8171.
Thus, petitioner claimed that his Filipino citizenship was already
restored, and he was qualified to run as mayor in the May 10, 2004
elections. Petitioner sought the dismissal of the petition.
• Atty. Zacarias C. Zaragoza, Jr., regional election director
for Region V and hearing officer of this case, recommended that
petitioner Altarejos be disqualified from being a candidate for the
position of mayor on the following grounds:
The Local Government Code of 1991 requires that an
elective local official must be a citizen of the Philippines, and he
must not have a dual citizenship; must not be a permanent
resident in a foreign country or must not have acquired the right to
reside abroad
It has been established by clear and convincing
evidence that respondent is a citizen of the United States of
America. Such fact is proven by his Alien Certificate of Registration
and Immigration Certificate of Residence (ICR) issued on 3
November 1997 by the Alien Registration Division, Bureau of
Immigration and Deportation. This was further confirmed in a letter
dated 25 June 2001 of then Commissioner ANDREA D. DOMINGO
of the Bureau of Immigration and Deportation.
Although respondent had petitioned for his repatriation as
a Filipino citizen under Republic Act No. 8171 on 17 December
1997, this did not restore to respondent his Filipino citizenship,
because Section 2 of the aforecited Republic Act No. 8171
specifically provides that “repatriation shall be effected by taking
the necessary oath of allegiance to the Republic of the Philippines
and registration in the proper civil registry and in the Bureau of
Immigration.”
Respondent has not submitted any document to prove
that he has taken his oath of allegiance to the Republic of the
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Philippines and that he has registered his fact of repatriation in the
• COMELEC First Division adopted the recommendations of
Atty. Zaragosa and disqualified petitioner.
• Petitioner filed a motion of reconsideration, attaching
documents that gave proof to his repatriation. This was
subsequently denied by COMELEC en banc, on the grounds that it
should have been submitted during the hearing.
• On May 2004, election day itself, petitioner filed for
certiorari, with prayer for the issuance of a temporary restraining
order and/or a writ of prohibitory and mandatory injunction, to set
aside the Resolution promulgated by the COMELEC.
Issues:
• WON registration of petitioner’s repatriation with the
proper civil registry and with the Bureau of Immigration a
prerequisite in effecting repatriation
• WON the COMELEC en banc committed grave abuse of
discretion amounting to excess or lack of jurisdiction in affirming the
Resolution of the COMELEC, First Division.
SC Ruling:
On the first issue
• Yes. Section 2 of RA 8171 is clear that repatriation is
effected "by taking the oath of allegiance to the Republic of the
Philippines and registration in the proper civil registry and in the
Bureau of Immigration."
• As to when citizenship would apply, the Court's ruling in
Frivaldo v. Commission on Elections that repatriation retroacts to
the date of filing of one's application for repatriation subsists.
• Petitioner was, therefore, qualified to run for a mayoralty
position in the government in the May 10, 2004 elections.
Apparently, the COMELEC was cognizant of this fact since it did
not implement the assailed Resolutions disqualifying petitioner to
run as mayor of San Jacinto, Masbate.
On the second issue
• The Court cannot fault the COMELEC en banc for
affirming the decision of the COMELEC, First Division, considering
that petitioner failed to prove before the COMELEC that he had
complied with the requirements of repatriation. Petitioner
submitted the necessary documents proving compliance with the
requirements of repatriation only during his motion for
reconsideration, when the COMELEC en banc could no longer
consider said evidence.
Petition is Denied.
Pundaodaya –versus- Comelec & Noble, G.R.179313, Sept.17, 2009
Facts:
Petitioner ran against Noble for municipal mayor of
Kinoguitan, Misamis Oriental in the 2007 elections. Pundaodaya
filed a petition for disqualification against Noble alleging that the
latter lacks the residency qualification. Pundaodaya claimed that
Noble is a resident of Lapasan, Cagayan de Oro City. Noble
averred that he is a registered voter and resident of Barangay
Esperanza, Kinoguitan, Misamis Oriental. In a resolution, the Second
Division of the COMELEC ruled and disqualified Noble from running
as mayor.
Noble filed a motion for reconsideration of the resolution. In
the meantime, he garnered the highest number of votes and was
proclaimed the winning candidate. Pundaodaya then filed an
Urgent Motion to Annul Proclamation. The COMELEC En Banc
reversed the decision of the Second Division and declared Noble
qualified to run for the mayoralty position. Pundaodaya filed the
instant petition for certiorari.
Issue: Should “residence” and “domicile” be construed as referring
to “dwelling”? Did Noble effectively change his domicile?
HELD:
The Court found that Noble failed to convince that he
successfully effected a change of domicile. To establish a new
domicile of choice, personal presence in the place must be
coupled with conduct indicative of that intention. It requires not
only such bodily presence in that place but also a declared and
probable intent to make it one’s fixed and permanent place of
abode.
In Japzon v. Commission on Elections, it was held 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, 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).”
BENJAMIN P. ABELLA vs COMELEC and ADELINA Y. LARRAZABAL |
G.R. No. 100710
ADELINA Y. LARRAZABAL vs COMELEC and SILVESTRE DE LA CRUZ |
G.R. No. 100739
3 September 1991 | Gutierrez, Jr.,J.
FACTS:
• Benjamin P. Abella was the official candidate of the
Liberal Party for provincial governor of Leyte in the local election
held on February 1, 1988.
• Adelina Y. Larrazabal is the wife of Emeterio V. Larrazabal,
the original candidate of the Lakas ng Bansa-PDP-Laban who was
disqualified by the Commission on Elections for lack of residence
(the day before the election, she filed her own certificate of
candidacy in substitution of her husband.)
• Silvestre de la Cruz, a registered voter of Tacloban City,
filed a petition with the provincial election supervisor of Leyte to
disqualify Adelina for alleged false statements in her certificate of
candidacy regarding her residence.
• De la Cruz then came to the SC, which issued a TRO
enjoining the provincial board of canvassers of Leyte 'from
proclaiming Adelina Larrazabal as the winning candidate for the
Office of the Governor in the province of Leyte.
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• In the meantime, Abella, seasonably elevated various
objections to the Commission on Elections in ten separate appeals.
Pending resolution of these cases, Abella intervened in the
disqualification case, and filed a complaint with the Law
Department of the COMELEC charging the Adelina Y. Larrazabal
with falsification and misrepresentation of her residence in her
certificate of candidacy.
• COMELEC, upon motion of Larrazabal, lifted its TRO
against her proclamation paving Larrazabal's proclamation and
her assumption to the Office of Governor of Leyte while the
hearings in the disqualification case continued.
• Eventually, COMELEC found that petitioner Larrazabal
was neither a resident of Kananga, Leyte nor a registered voter
thereat. With these findings, the COMELEC disqualified the
petitioner as governor of the province of Leyte.
ISSUE:
1. W/N Larrazabal meets the residence requirement to run
for Governor of the Province of Leyte? NO. She does NOT meet the
residence requirement.
2. W/N the prohibition against the 'city's registered voters'
electing the provincial officials necessarily mean, a prohibition of
the registered voters to be elected as provincial officials?
RATIO:
1. Adelina Larrazabal lacks the required residence on the
evidence of record to the effect that despite protestations to the
contrary made by the petitioner, she has established her residence
at Ormoc City from 1975 to the present and not at Kananga, Leyte.
Her attempt to purportedly change her residence one year before
the election by registering at Kananga, Leyte to qualify her to ran
for the position of governor of the province of Leyte clearly shows
that she considers herself already a resident of Ormoc City. In the
absence of any evidence to prove otherwise, the reliance on the
provisions of the Family Code was proper and in consonance with
human experience. The petitioner did not present evidence to
show that she and her husband maintain separate residences, she
at Kananga, Leyte and her husband at Ormoc City.
As for ANIMUS REVERTENDI: “Mere absence from one's residence or
origin-domicile-to pursue studies, engage in business, or practice
his avocation, is not sufficient to constitute abandonment or loss of
such residence.' ... The determination of a person’s legal residence
or domicile largely depends upon intention which may be inferred
from his acts, activities and utterances. The party who claims that a
person has abandoned or left his residence or origin must show
and prove pre-ponderantly such abandonment or loss.” BUT there
is no evidence to prove that Larrazabal temporarily left her
residence in Kananga, Leyte in 1975 to pursue any calling,
profession or business. What is clear is that she established her
residence in Ormoc City with her husband and considers herself a
resident therein. The intention of animus revertendi not to abandon
her residence in Kananga, Leyte therefore, is nor present. The fact
that she occasionally visits Kananga, Leyte through the years does
not signify an intention to continue her residence therein. It is
common among us Filipinos to often visit places where we formerly
resided specially so when we have left friends and relatives therein
although for intents and purposes we have already transferred our
residence to other places.
As for being a REGISTERED VOTER: The evidence shows that Adelina
Larrazabal’s supposed cancellation of registration in Ormoc City
and transfer of registration in Kananga, Leyte, is not supported by
the records. She was not in the list of voters.The certification of the
Election Registrar of Kananga that as of that date Mrs. Adelina
Larrazabal was not a registered voter in any of the' precincts in
Kananga. It was only on February 15, 1988, or two weeks after the
election day that the same Registrar certified for the first time that
there were two voters lists, the first without the names of the
Larrazabals and the second, which appeared only after February
1, submitted by the Chairman of the Board for Precinct 17 which
contained the spouses Larrazabals' names.
2. Larrazabal’s ALTERNATIVE POSITION is that her being a
registered voter in Ormoc City was no impediment to her
candidacy for the position of governor of the province of Leyte:
Section 12, Article X of the Constitution provides:
Cities that are highly urbanized, as determined by law, and
component cities whose charters prohibit their voters from voting
for provincial elective officials, shall be independent of the
province. The voters of component cities within a province, whose
charters contain no such prohibition, shall not be deprived of their
right to vote for elective provincial officials.
Section 89 of Republic Act No. 179 creating the City of Ormoc
provides:
Election of provincial governor and members of the Provincial
Board of the members of the Provincial Board of the Province of
Leyte — The qualified voters of Ormoc City shall not be qualified
and entitled to vote in the election of the provincial governor and
the members of the provincial board of the Province of Leyte.
Relating therefore, section 89 of R.A. 179 to section 12, Article X of
the Constitution one comes up with the following conclusion: that
Ormoc City when organized was not yet a highly-urbanned city
but is, nevertheless, considered independent of the province of
Leyte to which it is geographically attached because its charter
prohibits its voters from voting for the provincial elective officials.
Larrazabal submits that "while a Component City whose charter
prohibits its voters from participating in the elections for provincial
office, is indeed independent of the province, such independence
cannot be equated with a highly urbanized city; rather it is limited
to the administrative supervision aspect, and nowhere should it
lead to the conclusion that said voters are likewise prohibited from
running for the provincial offices." THIS IS UNATTENABLE.
Section 12, Article X of the Constitution is explicit in that aside from
highly-urbanized cities, component cities whose charters prohibit
their voters from voting for provincial elective officials are
independent of the province. In the same provision, it provides for
other component cities within a province whose charters do not
provide a similar prohibition. Necessarily, component cities like
Ormoc City whose charters prohibit their voters from voting for
provincial elective officials are treated like highly urbanized cities
which are outside the supervisory power of the province to which
they are geographically attached. This independence from the
province carries with it the prohibition or mandate directed to thei r
registered voters not to vote and be voted for the provincial
elective offices. The resolution in Peralta vs The Commission on
Elections, et al. dated December 10, 1987 applies to this case.
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While the cited case involves Olongapo City which is classified as a
highly urbanized city, the same principle is applicable.
Moreover, Section 89 of Republic Act 179, independent of the
constitutional provision, prohibits registered voters of Ormoc City
from voting and being voted for elective offices in the province of
Leyte. We agree with the COMELEC en banc that "the phrase 'shall
not be qualified and entitled to vote in the election of the
provincial governor and the members of the provincial board of
the Province of Leyte' connotes two prohibitions — one, from
running for and the second, from voting for any provincial elective
official."
JALOVER vs. OSMENA
GR 209286 September 23, 2014
DOCTRINE:
To establish a new domicile of choice, personal presence in the
place must be coupled with conduct indicative of this intention. It
requires not only such bodily presence in that placebut also a
declared and probable intent to make it one’s fixed and
permanent place of abode. In a choice between provisions on
material qualifications of elected officials, on the one hand, and
the will of the electorate in any given locality, on the other, the
Court believes and so hold that it cannot choose the electorate’s
will.
FACTS:
On October 3, 2012, Osmeña filed his Certificate of Candidacy
(COC) for the position of mayor, Toledo City, Cebu. In his COC,
Osmeña indicated that he had been a resident of Toledo City for
15 years prior to the May 2013 elections. Soon thereafter, the
petitioners filed before the COMELEC a "Petition to Deny Due
Course and to Cancel Certificate of Candidacy and to Disqualify a
Candidate for Possessing Some Grounds for Disqualification." The
petitioners alleged before the COMELEC that Osmeña made
material misrepresentations of fact in the latter’s COC and likewise
failed to comply with the residency requirement under Sec. 39 of
the Local Government Code. In particular, the petitioners claimed
that Osmeña falsely declared under oath in his COC that he had
already been a resident of Toledo City 15 years prior to the
scheduled May 13, 2013 local elections. In his defense, Osmeña
argued that even prior to his actual transfer of residence to Ibo,
Toledo City, in 2004, he had been able to establish ties with Toledo
City in view of his family’s business interests and his political
linkages. According to Osmeña, in 1995, he bought a piece of land
in Ibo, Toledo City, where he built two (2) houses from 1998 to 2002
and became a permanent resident thereof in 2004. Osmeña
further averred that he became a registered voter of Toledo City in
2006 and that he leased at least 2 properties in Toledo City for his
headquarters. In addition, he claimed that in December 2011, he
bought a 5 hectare parcel of land in Das, Toledo City. The
COMELEC Second Division dismissed the petition on the ground
that Osmeña did not commit any material misrepresentation in his
COC. The COMELEC en banc subsequently denied the petitioners’
motion for reconsideration and stated that it is not required that a
candidate should have his own house in order to establish his
residence or domicile in a place. ISSUE: WON Osmeña committed
misrepresentation in his certificate HELD: NO. To establish a new
domicile of choice, personal presence in the place must be
coupled with conduct indicative of this intention. It requires not
only such bodily presence in that place but also a declared and
probable intent to make it one’s fixed and permanent place of
abode. Osmeña’s actual physical presence in Toledo City is
established not only by the presence of a place (Ibo, Toledo City,
house and lot) he can actually live in, but also the affidavits of
various persons in Toledo City. Osmeña’s substantial and real
interest in establishing his domicile of choice in Toledo City is also
sufficiently shown not only by the acquisition of additional property
in the area and the transfer of his voter registration and
headquarters, but also his participation in the community’s
sociocivic and political activities. To successfully challenge a
winning candidate’s qualifications, the petitioner must clearly
demonstrate that the ineligibility is so patently antagonistic to
constitutional and legal principles that overriding such ineligibility
and thereby giving effect to the apparent will of the people would
ultimately create greater prejudice to the very democratic
institutions and juristic traditions that our Constitution and laws so
zealously protect and promote. Where a material COC
misrepresentation under oat his made, thereby violating both our
election and criminal laws, we are faced as well with an assault on
the will of the people of the Philippines as expressed in our laws. In
a choice between provisions on material qualifications of elected
officials, on the one hand, and the will of the electorate in any
given locality, on the other, we believe and so hold that we
cannot choose the electorate’s will. With the conclusion that
Osmeña did not commit any material misrepresentation in his
COC, the Court sees no reason in this case to appeal to the
primacy of the electorate’s will.
MORENO vs. COMELEC
GR 201796, June 15, 2013
DOCTRINE:
Those who have not served their sentence by reason of the grant
of probation which, we reiterate, should not be equated with
service of sentence, should not likewise be disqualified from
running for a local elective office because the two (2)-year period
of ineligibility under Sec. 40(a) of the Local Government Code
does not even begin to run.
FACTS:
Urbano M. Moreno (Moreno) assails the Resolution that disqualified
him from running for the elective office of Punong Barangay of
Barangay Cabugao, Daram, Samar in the July 15, 2002
Synchronized Barangay and Sangguniang Kabataan Elections.
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from
running for Punong Barangay on the ground that the latter was
convicted by final judgment of the crime of Arbitrary Detention
and was sentenced to suffer imprisonment of Four (4) Months and
One (1) Day to Two (2) Years and Four (4) Months. Moreno filed an
answer aver that 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 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 including the right to vote and be
voted for in the July 15, 2002 elections.
After due proceedings, the Investigating Officer recommended
that Moreno be disqualified from running for Punong Barangay.
According to the Comelec en banc, the Local Government Code
provides that 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, are disqualified from running for any elective local
position. The grant of probation to Moreno merely suspended the
execution of his sentence but did not affect his disqualification
from running for an elective local office. Moreno argues that the
disqualification under the Local Government Code applies only to
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those who have served their sentence and not to probationers
because the latter do not serve the adjudged sentence. The
Probation Law should allegedly be read as an exception to the
Local Government Code because it is a special law which applies
only to probationers. Further, even assuming that he is disqualified,
his subsequent election as Punong Barangay allegedly constitutes
an implied pardon of his previous misconduct.
ISSUE:
WON Moreno should be disqualified
HELD:
The resolution of the present controversy being whether Morenos
sentence was in fact served. 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 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. 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.
The fact that the trial court already issued an order finally
discharging Moreno fortifies his position. Sec. 16 of the Probation
Law provides that [t]he final discharge of the probationer shall
operate to restore to him all civil rights lost or suspended as a result
of his conviction and to fully discharge his liability for any fine
imposed as to the offense for which probation was granted. Thus,
when Moreno was finally discharged upon the courts finding that
he has fulfilled the terms and conditions of his probation, his case
was deemed terminated and all civil rights lost or suspended as a
result of his conviction were restored to him, including the right to
run for public office.
Probation is not a right of an accused but a mere privilege, an act
of grace and clemency or immunity conferred by the state, which
is granted to a deserving defendant who thereby escapes the
extreme rigors of the penalty imposed by law for the offense of
which he was convicted.Thus, the Probation Law lays out rather
stringent standards regarding who are qualified for probation.
It is important to note that the disqualification under Sec. 40(a) of
the Local Government Code covers offenses punishable by one (1)
year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not
specifically disqualify probationers from running for a local elective
office. This omission is significant because it offers a glimpse into the
legislative intent to treat probationers as a distinct class of
offenders not covered by the disqualification.
On this score, we agree with Moreno that the Probation Law should
be construed as an exception to the Local Government Code.
While the Local Government Code is a later law which sets forth
the qualifications and disqualifications of local elective officials, the
Probation Law is a special legislation which applies only to
probationers.
Likewise, petitioners pray for the issuance of a writ of mandamus
directing respondent COMELEC to conduct a special registration
of new voters and to admit for registration petitioners and other
similarly situated young Filipinos to qualify them to vote in the May
14, 2001 General Elections.
URBANO M. MORENO v. COMMISSION ON ELECTIONS AND NORMA
L. MEJES
G.R. NO.168550, August 10, 2006, TINGA, J.
CASE Petition to disqualify Moreno from running for
Punong Barangay on the ground that the latter was
convicted by final judgment of the crime of
Arbitrary Detention
ACCUSED Urbano Moreno
VICTIM
LOCATION Catbalogan, Samar
OUTCOME Moreno was not disqualified to run for Punong
Barangay.
Those who have not served their sentence by
reason of the grant of probation should not be
equated with service of sentence. Should not
likewise be disqualified from running for a local
elective office because the two (2)-year period of
ineligibility under Sec. 40(a) of the Local
Government Code does not even begin to run.
Probation Law should be construed as an
exception to the Local Government Code.
Facts:
Norma L. Mejes (Mejes) filed a petition to disqualify Moreno from
running for Punong Barangay on the ground that the latter was
convicted by final judgment of the crime of Arbitrary Detention
and was sentenced to suffer imprisonment of Four (4) Months and
One (1) Day to Two (2) Years and Four (4) Months by the RTC of
Catbalogan, Samar.
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 Sec. 16 of the
Probation Law of 1976 (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 in the elections.
The case was forwarded to the Office of the Provincial Election
Supervisor of Samar for preliminary hearing. After due proceedings,
the Investigating Officer recommended that Moreno be
disqualified from running for Punong Barangay.
The Comelec First Division adopted this recommendation. On
motion for reconsideration filed with the Comelecen banc, the
Resolution of the First Division was affirmed.
According to the Comelecen banc, Sec. 40(a) of the Local
Government Code provides that 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, are disqualified from running for any
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elective local position.Since Moreno was released from probation
on December 20, 2000, disqualification shall commence on this
date and end two (2) years thence. The grant of probation to
Moreno merely suspended the execution of his sentence but did
not affect his disqualification from running for an elective local
office.
In this petition, Moreno argues that the disqualification under the
Local Government Code applies only to those who have served
their sentence and not to probationers because the latter do not
serve the adjudged sentence. The Probation Law should allegedly
be read as an exception to the Local Government Code because
it is a special law which applies only to probationers.
Issue: Since Moreno was granted probation and never served a
day of his sentence, would the disqualification under Sec. 40(a) of
the Local Government Code apply to him?
Held: No.
The resolution of the present controversy depends on the
application of the phrase "within two (2) years after serving
sentence" found in Sec. 40(a) of the Local Government Code,
which reads:
Sec. 40.Disqualifications. – The following persons are disqualified
from 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;
[Emphasis supplied.]
....
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. We thus deleted from the order granting
probation the paragraph which required that petitioner refrain
from continuing with her teaching profession.
Applying this doctrine to the instant case, the accessory penalties
of 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 prisioncorreccional in its minimum
periodimposed 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.
Those who have not served their sentence by reason of the grant
of probation which, we reiterate, should not be equated with
service of sentence, should not likewise be disqualified from
running for a local elective office because the two (2)-year period
of ineligibility under Sec. 40(a) of the Local Government Code
does not even begin to run.
The fact that the trial court already issued an order finally
discharging Moreno fortifies his position. Sec. 16 of the Probation
Law provides that "[t]he final discharge of the probationer shall
operate to restore to him all civil rights lost or suspended as a result
of his conviction and to fully discharge his liability for any fine
imposed as to the offense for which probation was granted." Thus,
when Moreno was finally discharged upon the court's finding that
he has fulfilled the terms and conditions of his probation, his case
was deemed terminated and all civil rights lost or suspended as a
result of his conviction were restored to him, including the right to
run for public office.
It is important to note that the disqualification under Sec. 40(a) of
the Local Government Code covers offenses punishable by one (1)
year or more of imprisonment, a penalty which also covers
probationable offenses. In spite of this, the provision does not
specifically disqualify probationers from running for a local elective
office. This omission is significant because it offers a glimpse into the
legislative intent to treat probationers as a distinct class of
offenders not covered by the disqualification.
Probation Law should be construed as an exception to the Local
Government Code. While the Local Government Code is a later
law which sets forth the qualifications and disqualifications of local
elective officials, the Probation Law is a special legislation which
applies only to probationers. It is a canon of statutory construction
that a later statute, general in its terms and not expressly repealing
a prior special statute, will ordinarily not affect the special
provisions of such earlier statute.
Hence, We rule that Moreno was not disqualified to run for Punong
Barangay of Barangay Cabugao, Daram, Samar in the July 15,
2002 Synchronized Barangay and SangguniangKabataan
Elections.
Petition was GRANTED.
MAGNO VS. COMELEC
Facts: Carlos Montes filed a petition for the disqualification of
Nestor Magno as mayoralty candidate of San Isidro, Nueva Ecija
during the May 14, 2001 elections on the ground that the latter was
previously convicted by the Sandiganbayan of four counts of
direct bribery.
COMELEC granted the petition and declared Magno disqualified
from running for the position of mayor since direct bribery is a crime
involving moral turpitude, citing Section 12 of the Omnibus Election
Code which provides as follows:
Sec. 12. Disqualifications. – Any person who has been declared by
competent authority insane or incompetent, or has been
sentenced by final judgment for subversion, insurrection, rebellion
or for any offense for which he has been sentenced to a penalty of
more than eighteen (18) months, or for a crime involving moral
turpitude, shall be disqualified to be a candidate and to hold any
office, unless he has been given plenary pardon, or granted
amnesty.
According to the COMELEC, inasmuch as Magno completed the
service of his sentence on March 5, 1998 when was discharged
from probation, his five-year disqualification will end only on March
5, 2003. COMELEC denied the motion for reconsideration. Hence,
this petition.
Magno argued that direct bribery is not a crime involving moral
turpitude. Likewise, he claims that Section 40 of RA 7160, otherwise
known as the Local Government Code of 1991, is the law
6|Pa ge
applicable to the case, not the Omnibus Election Code as claimed
by the COMELEC. Said provision reads:
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.
xxx
Magno insists that he had already served his sentence as of March
5, 1998 when he was discharged from probation. Such being the
case, the two-year disqualification period imposed by Section 40 of
the Local Government Code expired on March 5, 2000. Thus, he
was qualified to run in the 2001 elections.
Issue: Whether or not direct bribery is a crime involving moral
turpitude
Held: Moral turpitude is defined as “an act of baseness, vileness, or
depravity in the private duties which a man owes his fellow men, or
to society in general, contrary to the accepted and customary rule
of right and duty between man and woman or conduct contrary
to justice, honesty, modesty, or good morals.”
However, not every criminal act involves moral turpitude. It
frequently depends on the circumstances surrounding the violation
of the law. In this case, by applying for probation, Magno in effect
admitted all the elements of the crime of direct bribery:
1. The offender is a public officer;
2. The offender accepts an offer or promise or receives a gift or
present by himself or through another;
3. Such offer or promise be accepted or gift or present be received
by the public officer with a view to committing some crime, or in
consideration of the execution of an act which does not constitute
a crime but the act must be unjust, or to refrain from doing
something which it is his official duty to do; and
4. The act which the offender agrees to perform or which he
executes is connected with the performance of his official duties.
Moral turpitude can be inferred from the third element. The fact
that the offender agrees to accept a promise or gift and
deliberately commits an unjust act or refrains from performing an
official duty in exchange for some favors, denotes a malicious
intent on the part of the offender to renege on the duties which he
owes his fellowmen and society in general.
Also, the fact that the offender takes advantage of his office and
position is a betrayal of the trust reposed on him by the public. It is
a conduct clearly contrary to the accepted rules of right and duty,
justice, honesty and good morals. In all respects, direct bribery is a
crime involving moral turpitude.
Issue: What law should apply in the case?
Held: The Local Government Code.
The Omnibus Election Code was enacted in 1985 while the Local
Government Code became a law in 1992. It is basic in statutory
construction that in case of irreconcilable conflict between two
laws, the later enactment must prevail, being the more recent
expression of legislative will. Legis posteriores priores contrarias
abrogant. In enacting the later law, the legislature is presumed to
have knowledge of the older law and intended to change it.
Furthermore, the repealing clause of Section 534 of the Local
Government Code states that: (f) All general and special laws,
acts, city charters, decrees, executive orders, proclamations and
administrative regulations, or part or parts thereof which are
inconsistent with any provisions of this Code are hereby repealed
or modified accordingly. In accordance therewith, Section 40 of
the LGC is deemed to have repealed Section 12 of the OEC.
Furthermore, Article 7 of the Civil Code provides that laws are
repealed only by subsequent ones, and not the other way around.
When a subsequent law entirely encompasses the subject matter
of the former enactment, the latter is deemed repealed. The intent
of the legislature to reduce the disqualification period of
candidates for local positions from five to two years is evident. The
cardinal rule in the interpretation of all laws is to ascertain and give
effect to the intent of the law. The reduction of the disqualification
period from five to two years is the manifest intent.
Therefore, although his crime of direct bribery involved moral
turpitude, petitioner nonetheless could not be disqualified from
running in the 2001 elections. Article 12 of the Omnibus Election
Code (BP 881) must yield to Article 40 of the Local Government
Code (RA 7160). Petitioner’s disqualification ceased as of March
2000. (G.R. No. 147904, October 4, 2002)
Mercado vs Manzano G.R. No. 135083, 26 May 1999 [Dual
Citizenship; Dual Allegiance]
FACTS:
Petition for disqualification was filed against Edu Manzano to hold
elective office on the ground that he is both an American citizen
and a Filipino citizen, having been born in the United States of
Filipino parents. COMELEC granted the petition and disqualified
Manzano for being a dual citizen pursuant to the Local
Government Code RA 7160, that those with dual citizenship are
disqualified from running any public position.
ISSUE: Whether or not dual citizenship is a ground for
disqualification to hold or run office in the local position.
RULING: No. Dual citizenship is different from dual allegiance. What
is inimical is not dual citizenship 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
must be understood as referring to “dual allegiance”.
Consequently, persons with mere dual citizenship do not fall under
this disqualification.
RODRIGUEZ V. COMELEC
Facts: In the May 1995 elections for governor, Marquez questioned
Rodriguez’s candidacy via a petition for disqualification before the
COMELEC, based on the allegation that Rodriguez is a "fugitive
from justice" for leaving the US where a charge against him for
fraudulent insurance claims, grand theft and attempted grand
theft of personal property was pending. Marquez claims that
Rodriguez should be disqualified or held ineligible under Section
40(e) of the Local Government Code.
7|Pa ge
COMELEC then promulgated a Consolidated Resolution
for EPC No. 92-28 (quo warranto case filed by Marquez in 1992
elections) and SPA No. 95-089 (present disqualification case),
where it found Rodriguez a fugitive from justice in line with the
MARQUEZ Decision’s (1995) definition of "fugitive from justice.” With
Rodriguez’s walk-out during the hearing of the case, COMELEC
considered him as having waived his right to disprove the
authenticity of Marquez' documentary evidence.
Nevertheless, Rodriguez emerged as the victorious
candidate in the May 8, 1995 election for the position of governor.
However, COMELEC also made a report entitled "EVIDENCE OF THE
PARTIES and COMMISSION'S EVALUATION" wherein the COMELEC,
after calibrating the parties' evidence, declared that Rodriguez is
NOT a "fugitive from justice" as defined in the main opinion of the
MARQUEZ Decision, thus making a 180-degree turnaround from its
finding in the Consolidated Resolution. COMELEC opined that
intent to evade is a material element of the MARQUEZ Decision
definition. Such intent to evade is absent in Rodriguez' case
because evidence has established that Rodriguez arrived in the
Philippines (June 25, 1985) long before the criminal charge was
instituted in the Los Angeles Court (November 12, 1985).
Issue: Is Rodriguez a fugitive from justice as defined by the Court in
the MARQUEZ Decision?
Held: No. A fugitive from justice is defined as “not only those who
flee after conviction to avoid punishment but likewise who, after
being charged, flee to avoid prosecution.” This indicates that the
intent to evade is the compelling factor that makes a person leave
a particular jurisdiction, and there can only be intent to evade
prosecution or punishment when the fleeing person knows of an
already instituted indictment, or of a promulgated judgment of
conviction. Intent to evade on the part of a candidate must
therefore be established by proof that there has already been a
conviction or at least, a charge has already been filed, at the time
of flight.
This cannot be applied in the case of Rodriguez. Rodriguez arrived
in the Philippines on June 25, 1985, five months before the filing of
the felony complaint in the Los Angeles Court on November 12,
1985 and of the issuance of the arrest warrant by that same foreign
court. It was clearly impossible for Rodriguez to have known about
such felony complaint and arrest warrant at the time he left the US,
as there was in fact no complaint and arrest warrant — much less
conviction — to speak of yet at such time.
The Court also agrees with the COMELEC that:
-The voluminous copy of an investigation report presented by
Marquez in order to establish the fact that it was impossible for
petitioner not to have known of said investigation due to its
magnitude is misleading because investigations of this nature, no
matter how extensive or prolonged, are shrouded with utmost
secrecy to afford law enforcers the advantage of surprise and
effect the arrest of those who would be charged.
- The circumstantial fact that it was 17 days after Rodriguez'
departure that charges against him were filed cannot overturn the
presumption of good faith in his favor. The evidence presented by
Rodriguez even proves that his compulsion to return to the
Philippines was due to his desire to join and participate vigorously in
the political campaigns against former President Ferdinand E.
Marcos. And being a figure in the events leading to the EDSA
Revolution, Rodriguez began serving his home province as OIC-
Board Member of the Sangguniang Panlalawigan ng Quezon in
1986, Governor in 1988, re-elected Governor in 1992 and the
disputed re-election in 1995.
- When, in good faith, a person leaves the territory of a state not his
own, homeward bound, and learns subsequently of charges filed
against him while in the relative peace and service of his own
country, the fact that he does not subject himself to the jurisdiction
of the former state does not qualify him outright as a fugitive from
justice. Besides, there is no law requiring petitioner to travel to the
United States and subject himself to the monetary burden and
tedious process of defending himself before the country's courts.
During that time, Rodriguez was also in public service. He could not
have gone back to the United States in the middle of his term nor
could he have traveled intermittently thereto without jeopardizing
the interest of the public he serves.
TORRES, JR., J., concurring opinion:
In the case at bar, the following circumstances must be
taken into consideration: that petitioner was not aware of the
imminent filing of charges against him; the same was filed after he
has returned home; it is impractical and unjust to require petitioner
to subject himself to the jurisdiction of the United States while
already in this country or else be disqualified from office; and that
the subject provision appears to have been a 'camaraderie
provision' proposed by the House for the sake of private
respondent who was then a Congressman.
The fact that he remains here even after he was formally accused
cannot be construed as an indication of an intent to flee, there
being no compelling reason for him to go to the United States and
face his accusers. On the contrary, it is his official duty, as an
incumbent Governor of Quezon, to remain in the country and
perform his duties as the duly elected public official.
VITUG, J., dissenting opinion:
Court's ruling in G.R. No. 112889 is misconstrued.
COMELEC’s conclusion was correct. The mere fact that there are
pending charges in the United States and that petitioner Rodriguez
is in the Philippines make petitioner a fugitive from justice within the
intent and meaning of Section 40(e) of the Local Government
Code of 1991.
CAASI vs. COMELEC
191 SCRA 229
DOCTRINE:
To qualify to run for elective office in the Philippines, the law
requires that the candidate who is a green card holder must have
"waived his status as a permanent resident or immigrant of a
foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent resident or
immigrant of the United States. The waiver of his green card should
be manifested by some act or acts independent of and done prior
to filing his candidacy for elective office in this country. Without
such prior waiver, he was "disqualified to run for any elective
office."
FACTS:
The case is about the disqualification of Merito Miguel under
Section 68 of the Omnibus Election Code for the position of
municipal mayor of Bolinao, Pangasinan, to which he was elected
in the local elections of January 18, 1988, on the ground that he is
a green card holder, hence, a permanent resident of the United
States (US), not of Bolinao.
Miguel admitted that he holds a green card issued to him by the
US Immigration Service, but he denied that he is a permanent
resident of the US. He allegedly obtained the green card for
convenience in order that he may freely enter the US for his
periodic medical examination and to visit his children there. He
alleged that he is a permanent resident of Bolinao, Pangasinan,
that he voted in all previous elections, including the plebiscite on
February 2, 1987 for the ratification.of the 1987 Constitution, and
the congressional elections on May 18,1987.
The green card that was subsequently issued by the United States
Department of Justice and Immigration and Registration Service to
the respondent Merito C. Miguel identifies him in clear bold letters
as a RESIDENT ALIEN.
In the “Application for Immigrant Visa and Alien Registration”,
Miguel’s answer in one of the questions regarding his length of
intended stay was “permanently.”
Consequently, the COMELEC, except for one Commissioner,
dismissed the petitions on the ground that “the possession of a
green card by Miguel does not sufficiently establish that he has
abandoned his residence in the Philippines.”
8|Pa ge
ISSUE:
WON Miguel is qualified to run for mayor in the local elections on
January 18, 1988
HELD:
No. Miguel's immigration to the US in 1984 constituted an
abandonment of his domicile and residence in the Philippines
because he did not go to the US merely to visit his children or his
doctor there; he entered the US with the intention to have there
permanently as evidenced by his application for an immigrant's
(not a visitor's or tourist's) visa. Based on that application of his, he
was issued by the U.S. Government the requisite green card or
authority to reside there permanently.
Section 18, Article XI of the 1987 Constitution which provides that
"any public officer or employee who seeks to change his citizenship
or acquire the status of an immigrant of another country during his
tenure shall be dealt with by law" is not applicable to Merito Miguel
for he acquired the status of an immigrant of the United States
before he was elected to public office, not "during his tenure" as
mayor of Bolinao, Pangasinan.
The law applicable to him is Section 68 of the Omnibus Election
Code (B.P. Blg. 881), which provides that “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 such person has waived his status as permanent resident or
immigrant of a foreign country in accordance with the residence
requirement provided for in the election laws.”
To be "qualified to run for elective office" in the Philippines, the law
requires that the candidate who is a green card holder must have
"waived his status as a permanent resident or immigrant of a
foreign country." Therefore, his act of filing a certificate of
candidacy for elective office in the Philippines, did not of itself
constitute a waiver of his status as a permanent resident or
immigrant of the United States. The waiver of his green card should
be manifested by some act or acts independent of and done prior
to filing his candidacy for elective office in this country. Without
such prior waiver, he was "disqualified to run for any elective office"
(Sec. 68, Omnibus Election Code).
Respondent Merito Miguel admits that he holds a green card,
which proves that he is a permanent resident or immigrant it of the
United States, but the records of this case are starkly bare of proof
that he had waived his status as such before he ran for election as
municipal mayor of Bolinao on January 18, 1988. We, therefore,
hold that he was disqualified to become a candidate for that
office.
The reason for Section 68 of the Omnibus Election Code is not hard
to find. Residence in the municipality where he intends to run for
elective office for at least one (1) year at the time of filing his
certificate of candidacy, is one of the qualifications that a
candidate for elective public office must possess (Sec. 42, Chap. 1,
Title 2, Local Government Code). Miguel did not possess that
qualification because he was a permanent resident of the United
States and he resided in Bolinao for a period of only three (3)
months (not one year) after his return to the Philippines in
November 1987 and before he ran for mayor of that municipality
on January 18, 1988.
Absent clear evidence that he made an irrevocable waiver of that
status or that he surrendered his green card to the appropriate U.S.
authorities before he ran for mayor of Bolinao in the local elections
on January 18, 1988, our conclusion is that he was disqualified to
run for said public office, hence, his election thereto was null and
void.
CAASI V. CA
GR No. 88831, 84508 November 8, 1990
DOCTRINE: To be qualified to run for elective office in the
Philippines, the law requires that the candidate who is a green
card holder must have “waived his status as a permanent resident
or immigrant of a foreign country.
NATURE: Petition for review of the decision of the CA and Petition
for certiorari to review the decision of the Commission on Election
FACTS:
• Merito Miguel was elected as municipal mayor of Bolinao,
Pangasinan in the local elections of 1988.
• Petitions were filed for his disqualification under Sec 68 of
the Omnibus Election Code, on the ground that he is a green card
holder, hence, a permanent resident of the US, not of Bolinao
o One of the petitioners is Mateo Caasi, his rival
candidate for the position of mayor
• Miguel admitted that he holds a green card issued to him
by the US Immigration Service, but he denied that he is a
permanent resident of the US
o He allegedly obtained the green card for convenience
in order that he may freely enter the US for his periodic medical
examination and to visit his children there.
o He alleged that he is a permanent resident of Bolinao,
Pangasinan that he voted in all previous elections.
• COMELEC dismissed the petitions, except for
Commissioner Anacleto Badoy, Jr.
o According to COMELEC, the possession of a green
card by Miguel does not sufficiently establish that he had
abandoned his residence in the Philippines
o COMELEC said that as the respondent meets the basic
requirements of citizenship and residence for candidates to
elective local officials under Sec 42 of Local Govt. Code, there is
no legal obstacle to his candidacy for mayor.
o In the dissenting opinion of Commissioner Badoy, he
opined that a green card holder, being a permanent resident of or
an immigrant of a foreign country, under Sec. 68 of the Omnibus
Election Code, has to prove that he has waived his status as a
permanent resident or immigrant to be qualified to run for election
office.
ISSUE: Is green card a proof that the holder is a permanent
resident of the US? Yes.
Did Miguel waive his status as permanent resident or
immigrant to US prior to the local elections? No.
Is he disqualified to become a candidate of municipal
mayor? Yes.
RULING:
• Miguel’s immigration to the US in 1984 constituted an
abandonment of his domicile and residence in the Philippines
o The intention to live there permanently is evidenced by
his application for an immigrant’s visa.
o Immigration – removing into one place from
another/entering into a country with the intention of residing in it.
o Immigrant – person who removes into a country for the
purpose of permanent residence
• As a resident alien in the US, Miguel owes temporary and
local allegiance to the US, in return for the protection given to him
during the period of his residence.
• Sec 18, Art XI of the 1987 Constitution is not applicable to
Miguel
o “Any public officer or employee who seeks to change
his citizenship or acquire the status of an immigrant of another
country during his tenure shall be dealt with by law”
o not applicable to Miguel for he acquired the status of
an immigrant of US before he was elected to public office, not
“during his tenure” as mayor
• Sec 68 of the Omnibus Election Code is the applicable
law to him
o “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 such person has waived his
status as permanent resident or immigrant of a foreign country in
accordance with the residence requirement provided for in the
election laws”
o Residence in the municipality where he intends to run
for elective office for at least 1 year at the time of filing his
certificate of candidacy is one of the qualifications that a
candidate for elective public office must possess.
He resided in Bolinao for only 3 months after his return to
the Phils and before he ran for mayor
9|Pa ge
Clear policy of excluding from the right to hold elective
public office those Philippine citizens who possess dual loyalties
and allegiance, as such are incapable of the entire devotion to
the interest and welfare of their homeland
• To be qualified to run for elective office in the Philippines,
the law requires that the candidate who is a green card holder
must have “waived his status as a permanent resident or immigrant
of a foreign country.
o His act of filing a certificate of candidacy for elective
office in the Philippines did not of itself constitute a waiver of his
status as a permanent resident or immigrant of US
o The waiver of green card should be manifested by
some act or acts independent of and done prior to filing his
candidacy for elective office
o Without such prior waiver, he was “disqualified to run for
any elective office”
• Miguel’s application for immigrant status and permanent
residence in the US and his possession of a green card attesting to
such status are conclusive proof that he is a permanent resident of
US despite his occasional visits to the Philippines
o Miguel filled up his application for Immigrant Visa in his
own handwriting, answering “Permanently” on the question of his
length of intended stay.
o On its face, the green card identifies Miguel in clear
bold letters as a Resident Alien
• SC annulled the election of Miguel as municipal mayor.
LINGATING VS COMELEC
(G.R. No. 153475, November 13, 2002)
FACTS:
During the first term of Mayor Sulong, an administrative complaint
was filed against him and several other individuals for Dishonesty,
Falsification of Public Documents, Malversation of Public Funds and
violation RA No. 3019. On February 4 1992, the Sangguniang
Panlalawigan of Zamboanga Del Sur found him guilty of the
charges and ordered his removal from office. Mayor Sulong filed a
motion for reconsideration and/or notice of appeal shortly
thereafter. The Sanggunian ordered the complainant in AC No 12-
91 to comment.
Pending appeal, then Vice‐Mayor Vicente Imbing took his oath
and assumed the office of Mayor of Lapuyan on March 3, 1992
pursuant to Section 68 of the Local Gov't Code which allows for
the execution pending appeal of administrative decisions. From
February 1992 to August 2001, no comment was ever filed by the
complainant in AC No 12-91 nor has the Sanggunian resolved
Sulong’s MR/Appeal.
In the May 2001 Elections, Lingating and Sulong both ran for the
position of Mayor of Lapuyan. On May 3, 2001, Lingating file a
petition for disqualification of Sulong on the ground that the latter
is disqualified from running for any elective local position having
been removed from office during his first term (1988-1991) as a
result of an administrative case (AC No 12-91) pursuant to Section
40(b) of the Local Government Code. Respondent Sulong denied
that the decision in AC No 12-91 had ever become final and
executory since up to the filing of the disqualification case, no
comment has been filed nor has the appeal been resolved. After
the parties had filed their memoranda, the case was submitted for
resolution. The COMELEC, however, was unable to render
judgment before the elections of May 14, 2001, where Sulong was
elected and proclaimed Mayor of Lapuyan.
In a resolution dated August 1, 2001, the COMELEC declared
respondent Cesar B. Sulong disqualified adhering to section 40(b)
of the Local Government Code. Respondent Sulong filed an MR
arguing that the decision in AC No. 12-91 has not become final
and executory; that at no time had he been removed by virtue of
the said decision, and that the issue was moot and academic
having been "overtaken by the local elections of May 11, 1992."
Lingating filed an opposition to the MR contending that the fact
that Sulong was succeeded by Vice Mayor Imbing was proof that
AC No. 12-91 had indeed become final. Lingating also prayed that
he be installed as Mayor of Lapuyuan in view of Sulong's
disqualification.
The COMELEC First Division denied Lingating’s motion on the
ground that the disqualification of an elected candidate does not
entitle the candidate who obtained the second highest number of
votes to occupy the office vacated. Lingating then filed a motion
for reconsideration of this order.
The COMELEC en banc reversed the decision of the first division,
citing Aguinaldo v. COMELEC that re-election renders an
administrative case moot and academic. It also ruled that
respondent Sulong was not entitled to occupy the office thus
vacated.
Lingating contends that the COMELEC en banc erred in applying
the ruling in Aguinaldo vs. COMELEC. Instead, Lingating argues
that the applicable case is Reyes v. COMELEC where the court
held that an elective local executive officer, who is removed
before the expiration of the term for which he was elected, is
disqualified from being a candidate for a local elective position
under Section 40(b) of the LGC. Hence, this petition.
ISSUE:
Whether or not Sumulong is disqualified to run for local election
HELD:
The filing of motion for reconsideration by Sulong prevented the
decision of Sangguniang Panlalawigan from becoming final. There
is thus no decision finding Sulong guilty to speak of. Neither can the
succession of the then vice-mayor of Lapuyan, Vicente Imbing, to
the office of mayor be considered proof that the decision in AC
No. 12-91 had become final because it appears to have been
made pursuant to Sec 68 [16] of the Local Government Code,
which makes decisions in administrative cases immediately
executory.
Aguinaldo and Reyes Cases are inapplicable. In Aguinaldo v
COMELEC, the court held that removal cannot extend beyond the
term during which the alleged misconduct was committed. If a
public official is not removed before his term of office expires, he
can no longer be removed if he is thereafter re-elected for another
term. However, Aguinaldo is not applicable as at the time the case
was decided, there was no provision similar to 40(b) of the LGC
and hence, cannot be given retroactive effect. Neither is Reyes vs.
COMELEC applicable as AC No. 12-91 remains to this day, not final.
GREGO VS. COMELEC
GR. No. 125955, June 19,1997
FACTS: On Oct. 31. 1981, private respondent Basco was removed
from office as Deputy sheriff by the court upon finding of serious
misconduct in an administrative complaint. Ran for councilor in the
second district of Manila and had won the race for 3 term. On his
final term, an election protest was filed against him by petitioner
Grego, seeking to disqualify him on the ground that he was
removed previously in an office as a result of an administrative
case. On May 14, 1995, COMELEC ordered the parties to submit
memoranda, but before the parties able to comply the directive,
the Board of Canvassers proclaimed Basco as duly elected
councilor and took his oath of office. Petitioner contends that,
respondent COMELEC should have suspended the proclamation.
Such act according to the petitioner violated the provision of sec.
6 of R.A 6646, which prohibits the proclamation of the elected
candidate by the COMELEC pending final judgment on the case
filed, uses the word may, therefore giving discretion to order the
suspension of the proclamation.
10 | P a g e
ISSUE: Whether or not respondent COMELEC violated the provision
of R.A 6646 when it did not suspend the proclamation of the
petitioner as the elected councilor pending final judgment of the
case filed against it.
HELD: It did not. The use of the word “may” in sec.6 of R.A 6646
indicates that the proclamation is merely directory and permissive
in nature and confers no jurisdiction. What is merely mandatory,
according to the provision itself, is the continuation of trial and
hearing of the action, inquiry or protest. The rule or regulations
should be within the scope of the authority granted by the
legislature to the administrative agency. In case of discrepancy
between the basic law and a rule or regulation issued to
implement said law, the basic law prevails because said rule or
regulations cannot go beyond the terms and provisions of the
basic. Since section 6 of R.A 6646, the law which section 5 of Rule
25 of the COMELEC Rules of Procedure seeks to implement,
employed the word “may”, it is, therefore improper and highly
irregular for the COMELEC to have used instead the word “shall” in
its rules.
GREGO VS COMELEC (1997)
FACTS:
• In 1981, SC found Humberto Basco, then Deputy Sheriff of
the City Court of Manila, guilty of serious misconduct in an
administrative complaint lodged by Nena Tordesillas. SC ordered
Basco dismissed from service with forfeiture of all retirement
benefits and with prejudice to reinstatement to any position in the
national or loca government, including its agencies and
instrumentalities, or GOCCs ("Tordesillas ruling").
• Subsequently, Basco ran for and won as Councilor in the
Second District of the City of Manila during the 1988 local elections.
• He sought reelection in the 1992 election and won again.
• However, a case for quo warranto was filed by Cenon
Ronquillo (another candidate for councilor), who alleged Basco's
ineligibility to be elected councilor on the basis of the Tordesillas
ruling. Other complaints were filed before the Office of the
Ombudsman and in the DILG.
• In 1995, Basco ran for the third time as councilor.
• William Grego, claiming to be a registered voter of District
II, City of Manila, filed with the COMELEC a petition for
disqualification, praying for Basco's disqualification, suspension of
his proclamation, and declaration of Romualdo S. Maranan as the
sixth duly elected Councilor of Manila's Second District. T
• Manila BOC however proclaimed Basco as a duly
elected councilor of the Second District of Manila.
• In view of the proclamation, Grego filed an urgent motion
seeking to annul the illegal proclamation.
• The COMELEC dismissed the petition for disqualification
ruling that the administrative penalty imposed by the SC on Basco
was wiped away and condoned by the electorate who elected
him.
ISSUE 1: WON Section 40 (b) of Republic Act No. 7160 applies
retroactively to those removed from office before it took effect on
January 1, 1992.
PETITIONER:
• Although the Code took effect only on January 1, 1992,
Section 40 (b) must nonetheless be given retroactive effect
because the provision of the law as worded does not mention or
even qualify the date of removal from office of the candidate in
order for disqualification thereunder to attach.
• Hence, as long as a candidate was once removed from
office due to an administrative case, regardless of whether it took
place during or prior to the effectivity of the Code, the
disqualification applies.
• Since the past tense is used in enumerating the grounds
for disqualification, the provision must have also referred to
removal from office occurring prior to the effectivity of the Code
HELD: NO. While the Legislature has the power to pass
retroactive laws which do not impair the obligation of contracts, or
affect injuriously vested rights, it is equally true that statutes are not
to be construed as intended to have a retroactive effect so as to
affect pending proceedings, unless such intent is expressly
declared or clearly and necessarily implied from the language of
the enactment. There is no provision in the statute which would
clearly indicate that the same operates retroactively. That the
provision of the Code in question does not qualify the date of a
candidate’s removal from office and that it is couched in the past
tense are noy deterrents to applying the law prospectively. The
basic tenet in legal hermeneutics that laws operate only
prospectively and not retroactively. A statute, despite the
generality in its language, must not be so construed as to
overreach acts, events or matters which transpired before its
passage. Lex prospicit, non respicit. The law looks forward, not
backward
ISSUE 2: WON private respondent's election to office as City
Councilor of Manila in the 1988, 1992 and 1995 elections wipe
away and condone the administrative penalty against him, thus
restoring his eligibility for public office.
PETITIONER: According to Frivaldo v. COMELEC, a candidate’s
disqualification cannot be erased by the electorate alone through
the instrumentality of the ballot.
HELD: ISSUE IS IRRELEVANT. Petitioner's 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 said earlier, applies only to those removed from
office on or after January 1, 1992.
Petitioners' allegations that (1) Basco circumvented the Tordesillas
ruling and that (2) the term "any position" therein is broad enough
to cover without distinction both appointive and local positions
merit any consideration are unmeritorious. Contrary to petitioner's
assertion, the Tordesillas decision did not bar Basco from running for
any elective position. The term used was "reinstatement." Under the
former Civil Service Decree (PD 807), the law applicable at the
time Basco was administratively dismissed, the term "reinstatement"
had a technical meaning, referring only to an appointive position.
Thus, what is contemplated by the prohibition in Tordesillas is
reinstatement to an appointive position.
ISSUE 3: Is Basco's proclamation as sixth winning candidate on May
17, 1995, while the disqualification case was still pending
consideration by COMELEC void ab initio?
PETITIONER: Basco violated the provisions of Section 20, paragraph
(i) of Republic Act No. 7166 , Section 6 of Republic Act No. 6646 , as
well as the rulings in Duremdes v. COMELEC, Benito v.
COMELECand Aguam v. COMELEC.
HELD: NO. RA 7166 Section 20(i) does not apply considering that
the same refers only to a void proclamation in relation to
contested returns and NOT to contested qualifications of a
candidate.
On the other hand, RA 6646 Section 6 does not support petitioner's
contention that 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. Moreover,
there is no reason why the Manila City BOC should not have
proclaimed Basco as the sixth winning City Councilor. Absent any
determination of irregularity in the election returns, as well as an
order enjoining the canvassing and proclamation of the winner, it is
a mandatory and ministerial duty of the Board of Canvassers
11 | P a g e
concerned to count the votes based on such returns and declare
the result.
Finally, the cases of Duremdes, Benito and Aguam cited by
petitioner are all irrelevant and inapplicable, These three cases do
not in any manner refer to void proclamations resulting from the
mere pendency of a disqualification case.
ISSUE 4: WON Romualdo S. Maranan, a seventh placer, be legally
declared a winning candidate
HELD: NO. Basco was a duly qualified candidate. Petitioner's
emphatic reference to Labo v. COMELEC, where we laid down a
possible exception to the rule that a second placer may not be
declared the winning candidate, finds no application in this case.
The exception is predicated on the concurrence of two
assumptions, namely: (1) the one who obtained the highest
number of votes is disqualified; and (2) the electorate is fully aware
in fact and in law of a candidate's disqualification so as to bring
such awareness within the realm of notoriety but would
nonetheless cast their votes in favor of the ineligible candidate.
Both assumptions, however, are absent in this case. Petitioner's
allegation that Basco was well-known to have been disqualified in
the small community where he ran as a candidate is purely
speculative and conjectural.
MARQUEZ VS. COMELEC
243 SCRA 538
FACTS: It is averred that at the time respondent Rodriguez filed his
certificate of candidacy, a criminal charge against him for ten
counts of insurance fraud or grand theft of personal property was
still pending before the Municipal Court of Los Angeles, USA. A
warrant issued by said court for his arrest, it is claimed, has yet to be
served on private respondent on account of his alleged “flight”
from that country.
Before the May 1992 elections, a petition for cancellation of
respondent’s certificate of candidacy on the ground of the
candidate’s disqualification was filed by petitioner, but COMELEC
dismissed the petition.
Private respondent was proclaimed Governor-elect of Quezon.
Petitioner instituted quo warranto proceedings against private
respondent before the COMELEC but the latter dismissed the
petition.
ISSUE: Whether private respondent, who at the time of the filing of
his certificate of candidacy is said to be facing a criminal charge
before a foreign court and evading a warrant of arrest comes
within the term “fugitive from justice.”
HELD: The Supreme Court ruled that Article 73 of the Rules and
Regulations implementing the Local Government Code of 1991
provides:
“Article 73. Disqualifications – The following persons shall be
disqualified from running for any elective local position:
“(a) xxxx
“(e) Fugitives from justice in criminal or non-political cases here or
abroad. Fugitive from justice refers to a person who has been
convicted by final judgment.”
It is clear from this provision that fugitives from justice refer only to
persons who has been convicted by final judgment. However,
COMELEC did not make any definite finding on whether or not
private respondent is a fugitive from justice when it outrightly
denied the petition for quo warranto. The Court opted to remand
the case to COMELEC to resolve and proceed with the case.
Abundo vs. Comelec, G.R. No. 201716, Jan. 8, 2013
FACTS:
Abundo vied for the position of municipal mayor of Viga,
Catanduanes. 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 electoral derby, however, the Viga 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 lost no time in seeking the former’s disqualification to run, the
corresponding petition, predicated on the three-consecutive term
limit rule.
ISSUE #1: Is the service of a term less than the full three years by
Mayor Abundo, in view of an election protest, considered as full
service of the term for purposes of the application of the three
consecutive term limit for elective local officials?
RULING: No. Abundo cannot plausibly claim,even if he wanted to,
that he could hold office of the mayor as a matterof right during
the period of one year and ten months, or from June 30, 2004 until
May 8, 2006. Neither can heassert title to the same nor serve the
functions ofthe said elective office. The reason is that 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.
ISSUE #2: Under what instances are the consecutive terms not
“involuntary broken or interrupted”?
RULING: The instanceswherein such consecutive terms are not
considered as having been “involuntarily interrupted or broken”
are as follows:
(1) Assumption of Office by Operation of Law;
(2) Recall Election;
(3) Conversion of a Municipality into a City;
(4) Period of Preventive Suspension; and
(5) Election Protest
BORJA VS COMELEC CASE DIGEST
G.R. No. 133495, September 3, 1998
Three-Term Limit
FACTS:
Jose T. Capco, Jr. was elected as Vice-Mayor of Pateros on
January 18, 1988 for a term ending on June 30, 1992. On
September 2, 1989, he became Mayor, by operation of law, upon
the death of the incumbent, Cesar Borja. Thereafter, Capco was
elected and served as Mayor for two more terms, from 1992 to
1998. On March 27, 1998, Capco filed a Certificate of Candidacy
for Mayor of Pateros in the May 11, 1998 elections. Petitioner
Benjamin U. Borja, Jr., who was also a candidate for mayor, sought
Capco’s disqualification on the ground that Capco would have
already served as Mayor for 3 consecutive terms by June 30, 1998;
hence, he would be ineligible to serve for another term. The
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Second Division of the Comelec declared Capco disqualified but
the Comelec en banc reversed the decision and declared Capco
eligible to run for mayor. Capco was subsequently voted and
proclaimed as mayor.
ISSUE:
Whether or not a vice-mayor who succeeds to the office of mayor
by operation of law and serves the remainder of the term is
considered to have served a term in that office for the purpose of
the three-term limit.
HELD:
No. 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 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. Capco was
qualified to run again as mayor in the next election because he
was not elected to the office of mayor in the first term but simply
found himself thrust into it by operation of law. Neither had he
served the full term because he only continued the service,
interrupted by the death, of the deceased mayor. The vice-
mayor’s assumption of the mayorship in the event of the vacancy
is more a matter of chance than of design. Hence, his service in
that office should not be counted in the application of any term
limit.
The policy embodied in the constitutional provision (Art. X, §8) is not
only to prevent the establishment of political dynasties but also to
enhance the freedom of choice of the people. A consideration of
the historical background of Art. X, §8 of the Constitution reveals
that the members of the Constitutional Commission were as much
concerned with preserving the freedom of choice of the people as
they were with preventing the monopolization of political power. In
discussing term limits, the drafters of the Constitution did so on the
assumption that the officials concerned were serving by reason of
election. To consider Capco to have served the first term in full and
therefore ineligible to run a third time for reelection would be not
only to falsify reality but also to unduly restrict the right of the
people to choose whom they wish to govern them.
Adormeo vs Comelec
February 4, 2002
FACTS:
Petitioner and private respondent were the only candidates for
mayor of Lucena City in the May 14, 2001 elections. Talaga, Jr. was
elected mayor in May 1992. He served the full term. Again, he was
re-elected in 1995-1998. In the election of 1998, he lost to Bernard
G. Tagarao. In the recall election of May 12, 2000, he again won
and served the unexpired term of Tagarao until June 30, 2001.
Petitioner filed with the Office of the Provincial Election Supervisor,
Lucena City a Petition to Deny Due Course to or Cancel Certificate
of Candidacy and/or Disqualification of Ramon Y. Talaga, Jr., on
the ground that the latter was elected and had served as city
mayor for three (3) consecutive terms as follows: (1) in the election
of May 1992, where he served the full term; (2) in the election of
May 1995, where he again served the full term; and, (3) in the
recall election of May 12, 2000, where he served only the
unexpired term of Tagarao after having lost to Tagarao in the 1998
election. Petitioner contended that Talaga’s candidacy as Mayor
constituted a violation of Section 8, Article X of the 1987
Constitution.
On March 9, 2001, private respondent responded that he was not
elected City Mayor for three (3) consecutive terms but only for two
(2) consecutive terms. He pointed to his defeat in the 1998
election by Tagarao. Because of his defeat the consecutiveness of
his years as mayor was interrupted, and thus his mayorship was not
for three consecutive terms of three years each. Respondent
added that his service from May 12, 2001 until June 30, 2001 for 13
months and eighteen (18) days was not a full term, in the
contemplation of the law and the Constitution.
The Comelec found Talaga disqualified for the position of city
mayor. The Comelec en banc reversed and ruled that 1)
respondent was not elected for three (3) consecutive terms
because he did not win in the May 11, 1998 elections; 2) that he
was installed only as mayor by reason of his victory in the recall
elections; 3) that his victory in the recall elections was not
considered a term of office and is not included in the 3-term
disqualification rule, and 4) that he did not fully serve the three (3)
consecutive terms, and his loss in the May 11, 1998 elections is
considered an interruption in the continuity of his service as Mayor
of Lucena City.
ISSUE: WON Talaga is disqualified to run for mayor
HELD: No
RATIO: The issue before us was already addressed in Borja, Jr. vs.
COMELEC, 295 SCRA 157, 169 (1998), where we held,
To recapitulate, the term limit for elective local officials must be
taken to refer to the right to be elected as well as the right to serve
in the same elective position. 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:
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.
To consider C as eligible for reelection would be in accord with the
understanding of the Constitutional Commission that while the
people should be protected from the evils that a monopoly of
political power may bring about, care should be taken that their
freedom of choice is not unduly curtailed.
Likewise, in the case of Lonzanida vs. COMELEC, 311 SCRA 602, 611
(1999), we said,
This Court held that the two conditions for the application of the
disqualification must concur: a) that the official concerned has
been elected for three consecutive terms in the same local
government post and 2) that he has fully served three consecutive
terms.
Accordingly, COMELEC’s ruling that private respondent was not
elected for three (3) consecutive terms should be upheld. For
nearly two years he was a private citizen. The continuity of his
mayorship was disrupted by his defeat in the 1998 elections.
Patently untenable is petitioner’s contention that COMELEC in
allowing respondent Talaga, Jr. to run in the May 1998 election
violates Article X, Section 8 of 1987 Constitution. To bolster his case,
respondent adverts to the comment of Fr. Joaquin Bernas, a
Constitutional Commission member, stating that in interpreting said
provision that “if one is elected representative to serve the
unexpired term of another, that unexpired, no matter how short,
will be considered one term for the purpose of computing the
number of successive terms allowed.”
As pointed out by the COMELEC en banc, Fr. Bernas’ comment is
pertinent only to members of the House of Representatives. Unlike
local government officials, there is no recall election provided for
members of Congress.
Neither can respondent’s victory in the recall election be deemed
a violation of Section 8, Article X of the Constitution as “voluntary
renunciation” for clearly it is not. In Lonzanida vs. COMELEC, we
said:
…The second sentence of the constitutional provision under
scrutiny states, “Voluntary renunciation of office for any length of
time shall not be considered as an interruption in the continuity of
service for the full term for which he was elected.” The clear intent
of the framers of the constitution to bar any attempt to circumvent
the three-term limit by a voluntary renunciation of office and at the
same time respect the people’s choice and grant their elected
official full service of a term is evident in this provision. Voluntary
renunciation of a term does not cancel the renounced term in the
13 | P a g e
computation of the three term limit; conversely, involuntary
severance from office for any length of time short of the full term
provided by law amounts to an interruption of continuity of service.
The petitioner vacated his post a few months before the next
mayoral elections, not by voluntary renunciation but in compliance
with the legal process of writ of execution issued by the COMELEC
to that effect. Such involuntary severance from office is an
interruption of continuity of service and thus, the petitioner did not
fully serve the 1995-1998 mayoral term.
SOCRATES VS COMELEC
391 SCRA 457; G.R. No. 154512, November 12, 2002
(Local Government, Recall Election: Exception to the 3 term limit)
FACTS:
COMELEC gave due course to the Recall Resolution against Mayor
Socrates of the City of Puerto Princesa, and scheduled the recall
election on September 7, 2002.
On August 23, 2002, Hagedorn filed his COC for mayor in the recall
election.
Different petitioners filed their respective petitions, which were
consolidated seeking the disqualification of Hagedorn to run for
the recall election and the cancellation of his COC on the ground
that the latter is disqualified from running for a fourth consecutive
term, having been elected and having served as mayor of the city
for three (3) consecutive full terms in 1992, 1995 and 1998
immediately prior to the instant recall election for the same post.
COMELEC’s First Division dismissed in a resolution the petitioner for
lack of merit. And COMELEC declared Hagedorn qualified to run in
the recall election.
ISSUE: WON one who has been elected and served for 3
consecutive full terms is qualified to run for mayor in the recall
election.
HELD:
Yes. The three-term limit rule for elective local officials is found in
Section 8, Article X of the Constitution, which states:
“Section 8. The term of office of elective local officials, except
barangay officials, which shall be determined by law, shall be
three years and no such official shall serve for more than three
consecutive terms. Voluntary renunciation of the office for any
length of time shall not be considered as an interruption in the
continuity of his service for the full term for which he was elected.”
This three-term limit rule is reiterated in Section 43 (b) of RA No.
7160, otherwise known as the Local Government Code, which
provides:
“Section 43. Term of Office. – (a) x x x
(b) No local elective official shall serve for more than three (3)
consecutive terms in the same position. Voluntary renunciation of
the office for any length of time shall not be considered as an
interruption in the continuity of service for the full term for which the
elective official was elected.”
The first part provides that an elective local official cannot serve for
more than three consecutive terms. The clear intent is that only
consecutive terms count in determining the three-term limit rule.
The second part states that voluntary renunciation of office for any
length of time does not interrupt the continuity of service. The clear
intent is that involuntary severance from office for any length of
time interrupts continuity of service and prevents the service before
and after the interruption from being joined together to form a
continuous service or consecutive terms.
After three consecutive terms, an elective local official cannot
seek immediate re-election for a fourth term. The prohibited
election refers to the next regular election for the same office
following the end of the third consecutive term. Any subsequent
election, like a recall election, is no longer covered by the
prohibition for two reasons. First, a subsequent election like a recall
election is no longer an immediate re-election after three
consecutive terms. Second, the intervening period constitutes an
involuntary interruption in the continuity of service.
Based from the deliberations of a Constitutional Commission, what
the Constitution prohibits is an immediate re-election for a fourth
term following three consecutive terms. The Constitution, however,
does not prohibit a subsequent re-election for a fourth term as long
as the re-election is not immediately after the end of the third
consecutive term. A recall election mid-way in the term following
the third consecutive term is a subsequent election but not an
immediate re-election after the third term.
Neither does the Constitution prohibit one barred from seeking
immediate re-election to run in any other subsequent election
involving the same term of office. What the Constitution prohibits is
a consecutive fourth term.
In the case of Hagedorn, his candidacy in the recall election on
September 24, 2002 is not an immediate re-election after his third
consecutive term which ended on June 30, 2001. The immediate
re-election that the Constitution barred Hagedorn from seeking
referred to the regular elections in 2001.
G.R. No. 163295 January 23, 2006
FRANCIS G. ONG vs. JOSEPH STANLEY ALEGRE and COMMISSION
ON ELECTIONS
FACTS:
Alegre and Ong 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 the petition to disqualify Ong
which was predicated on the three-consecutive term rule. Francis
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.
The May 1998 elections, both Alegre and Ong ran for the office of
mayor, with Ong was proclaimed winner. Alegre filed an election
protest. In it, the RTC declared Alegre as the duly elected mayor in
that 1998 mayoralty contest, but the decision came out only when
Francis had fully served the 1998-2001 mayoralty term and starting
to serve the 2001-2004 term as mayor-elect.
Acting on Alegre’s petition to disqualify and to cancel Francis’
certificate of candidacy for the May 10, 2004 elections, the First
Division of the COMELEC rendered on March 31, 2004 a resolution5
dismissing the said petition of Alegre.
Alegre filed a motion for reconsideration. The COMELEC en banc
issued, a resolution6 reversing the resolution of the COMELEC’s First
Division and thereby (a) declaring Francis "as disqualified to run for
mayor in the May 10, 2004"; (b) ordering the deletion of Francis’
name from the official list of candidates; and (c) directing the
concerned board of election inspectors not to count the votes
cast in his favor.
The following day, May 8 at about 5:05 p.m. of the very same day -
which is past the deadline for filing a certificate of candidacy,
Rommel Ong filed his own certificate of candidacy for the position
of mayor, as substitute candidate for his brother Francis. However,
it is recommended that the substitute certificate of candidacy of
Rommel Ong should be denied due course and the election
officer be directed to delete his name from the list of candidates.
ISSUE:
a) whether or not petitioner Francis’s assumption of office for the
mayoralty term 1998 to 2001 should be considered as full service for
the purpose of the three-term limit rule.
14 | P a g e
b) whether the COMELEC acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in declaring petitioner
Francis as disqualified to run
c) whether the COMELEC committed grave abuse of discretion
when it denied due course to Rommel’s certificate of candidacy in
the same mayoralty election as substitute for his brother Francis.
HELD:
a) Respondent COMELEC resolved the question in the affirmative.
The three-term limit rule for elective local officials is found in Section
8, Article X of the 1987 Constitution. 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 consecutive terms in the same local
government post, and (2) that he has fully served three (3)
consecutive terms.
The disqualifying requisites are present herein, thus effectively
barring petitioner Francis from running for 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.
b) The ascription of grave abuse of discretion on the part of the
COMELEC en banc when it disqualified Francis from running in the
May 10, 2004 elections for the mayoralty post cannot be sustained.
c) A person without a valid certificate of candidacy cannot be
considered a candidate in much the same way as any person who
has not filed any certificate of candidacy at all can not, by any
stretch of the imagination, be a candidate at all.
WHEREFORE, the instant petitions are DISMISSED and the assailed
en banc Resolution dated May 7, 2004 of the COMELEC, in SPA No.
04-048 AFFIRMED.
DIZON VS COMELEC AND MORALES
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.
Morales, on the other hand, contended that he is still eligible and
qualified to run as mayor of Mabalacat because he was not
elected for the said position in the 1998 elections. He averred that
the COMELEC en banc affirmed the decision of the RTC declaring
Anthony D. Dee as the duly elected Mayor of Mabalacat in the
1998 elections. Thus, he was not elected for the said position in the
1998 elections. His term should be reckoned from 2001. He added
that his election in 2004 is only for his second term.
COMELEC Second Division ruled in favor of Morales and denied the
petition. It took judicial notice of SC’s 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, Morales was considered not a candidate in the
2004 elections, and this failure to qualify for the 2004 elections is a
gap and allows him to run again for the same position in 2007
elections.
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
HELD:
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.
Both Article X, Section 8 of the Constitution and Section 43(b) of the
Local Government Code state that the term of office of elective
local officials, except barangay officials, 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.
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 th e
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 court’s 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 mayor’s 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. (4th term)
2. Dizon claims that the 2007-2010 term is Morales’ fifth term in
office. 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
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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.
● Dizon alleges that Morales "was able to serve his fourth term as
mayor through lengthy litigations. In other words, he was violating
the rule on three-term limit with impunity by the sheer length of
litigation and profit from it even more by raising the technicalities
arising therefrom." To this, we quote our ruling in Lonzanida v.
COMELEC:
“The respondents harp on the delay in resolving the election
protest between petitioner and his then opponent Alvez which
took roughly about three years and resultantly extended the
petitioner’s incumbency in an office to which he was not lawfully
elected. We note that such delay cannot be imputed to the
petitioner. There is neither specific allegation nor proof that the
delay was due to any political maneuvering on his part to prolong
his stay in office. Moreover, protestant Alvez, was not without legal
recourse to move for the early resolution of the election protest
while it was pending before the regional trial court or to file a
motion for the execution of the regional trial court’s decision
declaring the position of mayor vacant and ordering the vice-
mayor to assume office while the appeal was pending with the
COMELEC. Such delay which is not here shown to have been
intentionally sought by the petitioner to prolong his stay in office
cannot serve as basis to bar his right to be elected and to serve his
chosen local government post in the succeeding mayoral
election.”
LONZANIDA vs. COMELEC
G.R. No. 135150. July 28, 1999
FACTS:
Romeo Lonzanida was elected and had served as municipal
mayor of San Antonio, Zambales in terms 1989-1992, 1992-1995 and
1995-1998. However, his proclamation relative to the 1995 election
was protested and was eventually declared by the RTC and then
by COMELEC null and void on the ground of failure of elections.
On February 27, 1998, or about three months before the May 1998
elections, Lonzanida vacated the mayoralty post in light of a
COMELEC order and writ of execution it issued. Juan Alvez,
Lonzanida’s opponent assumed office for the remainder of the
term.
In the May 1998 elections, Lonzanida again filed his certificate of
candidacy. His opponent, Efren Muli, filed a petition for
disqualification on the ground that Lonzanida had already served
three consecutive terms in the same post. On May 13, 1998,
petitioner Lonzanida was proclaimed winner.
The COMELEC granted the petition for disqualification.
Petitioner Lonzanida challenged the validity of the COMELEC
resolution maintaining that he was duly elected mayor for only two
consecutive terms and that his assumption of office in 1995 cannot
be counted as service of a term for the purpose of applying the
three term limit for local government officials, because he was not
the duly elected mayor of San Antonio in the May 1995 elections.
He also argued that the COMELEC ceased to have jurisdiction over
the petition for disqualification after he was proclaimed winner in
the 1998 mayoral elections as the proper remedy is a petition for
quo warranto with the appropriate regional trial court under Rule
36 of the COMELEC Rules of Procedure.
The private respondent maintained that the petitioner’s
assumption of office in 1995 should be considered as service of one
full term because he discharged the duties of mayor for almost
three years until March 1, 1998 or barely a few months before the
next mayoral elections.
ISSUES:
1. WON petitioner’s assumption of office as mayor of San Antonio
Zambales from May 1995 to 1998 may be considered as service of
one full term for the purpose of applying the three-term limit for
elective local government officials.
2. WON COMELEC ceased to have jurisdiction over the petition for
disqualification after petitioner was proclaimed winner.
HELD:
1. NO. 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.
“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.”
The two requisites for the application of the three term rule are
absent. First, the petitioner cannot be considered as having been
duly elected to the post in the May 1995 elections, and second,
the petitioner did not fully serve the 1995-1998 mayoral term by
reason of involuntary relinquishment of office.
After a re-appreciation and revision of the contested ballots the
COMELEC itself declared by final judgment that petitioner
Lonzanida lost in the May 1995 mayoral elections and his previous
proclamation as winner was declared null and void. His
assumption of office as mayor cannot be deemed to have been
by reason of a valid election but by reason of a void proclamation.
It has been repeatedly held by this court that a proclamation
subsequently declared void is no proclamation at all 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, the petitioner cannot be deemed to have served the May
1995 to 1998 term because he was ordered to vacate his post
before the expiration of the term. The respondents’ contention
that the petitioner should be deemed to have served one full term
from May 1995-1998 because he served the greater portion of that
term has no legal basis to support it; it disregards the second
requisite for the application of the disqualification, i.e., that he has
fully served three consecutive terms. The second sentence of the
constitutional provision under scrutiny states, “Voluntary
renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service for the full
term for which he was elected. “The clear intent of the framers of
the constitution to bar any attempt to circumvent the three-term
limit by a voluntary renunciation of office and at the same time
respect the people’s choice and grant their elected official full
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service of a term is evident in this provision. Voluntary renunciation
of a term does not cancel the renounced term in the computation
of the three term limit; conversely, involuntary severance from
office for any length of time short of the full term provided by law
amounts to an interruption of continuity of service. The petitioner
vacated his post a few months before the next mayoral elections,
not by voluntary renunciation but in compliance with the legal
process of writ of execution issued by the COMELEC to that effect.
Such involuntary severance from office is an interruption of
continuity of service and thus, the petitioner did not fully serve the
1995-1998 mayoral term.
In sum, the petitioner was not the duly elected mayor and that he
did not hold office for the full term; hence, his assumption of office
from May 1995 to March 1998 cannot be counted as a term for
purposes of computing the three term limit. The Resolution of the
COMELEC finding him disqualified on this ground to run in the May
1998 mayoral elections should therefore be set aside.
2. NO. It was held in the case of Sunga vs. COMELEC that the
proclamation or the assumption of office of a candidate against
whom a petition for disqualification is pending before the
COMELEC does not divest the COMELEC of jurisdiction to continue
hearing the case and to resolve it on the merits.
Section 6 of RA 6646 specifically mandates that:
“Sec. 6. Effects of disqualification Case.- any candidate who has
been declared by final judgment to be disqualified shall not be
voted for, and the votes cast for him shall not be counted. If for
any reason a candidate is not declared by final judgment before
an election to be disqualified and he is voted for and receives the
winning number of votes in such election, the court or commission
shall continue with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any intervenor,
may during the pendency thereof order the suspension of the
proclamation of such candidate whenever the evidence of his
guilt is strong.”
The clear legislative intent is that the COMELEC should continue the
trial and hearing of the disqualification case to its conclusion i.e.,
until judgment is rendered. The outright dismissal of the petition for
disqualification filed before the election but which remained
unresolved after the proclamation of the candidate sought to be
disqualified will unduly reward the said candidate and may
encourage him to employ delaying tactics to impede the
resolution of the petition until after he has been proclaimed.
It must be emphasized that the purpose of a disqualification
proceeding is to prevent the candidate from running or, if elected,
from serving, or to prosecute him for violation of the election laws.
Obviously, the fact that a candidate has been proclaimed elected
does not signify that his disqualification is deemed condoned and
may no longer be the subject of a separate investigation.”
DAMASEN VS TUMAMAO
(G.R. No. 173165, February 17, 2010)
FACTS:
A permanent vacancy occurred in the office of the Vice Mayor of
San Isidro, Isabella when incumbent Vice-Mayor Nelia Tumamao
died on December 2, 2004. Pursuant to Sec. 44 of RA 7160, Ligaya
Alonzo, the highest ranking member of the Sangguniang Bayan
was elevated to the position.
To fill the ensuing vacancy in the Sangguinang Bayan, Mayor Lim
recommended to Governor Padaca the appointment of Oscar
Tumamao, also a member of LDP. Tumamao was appointed, took
his oath and attended sessions.
On May 2005, Atty. Lucky Damasen, became a member of LDP
and got hold of a letter of nomination to the Sanggunian Bayan
from provincial chairman of LDP Balauag addressed to Governor
Padaca. He was appointed to SB and took his oath. Damasen
attended sessions but he was not recognized.
He filed a petition for quo warranto with prayer for writ of
preliminary injunction against Tumamao with the RTC, seeking to
be declared the rightful member of the SB.
As part of his defense, Tumamao presented Atty. Ernest Soberano
who identified a letter dated June 14, 2005, signed by LDP
Provincial Chairman Balauag, which states that the latter was
revoking her nomination of Damasen, and that she was confirming
Tumamao’s nomination made by Mayor Lim. Later, Tumamao
presented Provincial Chairman Balauag who affirmed the contents
of her letter revoking the nomination of Damasen.
RTC ruled in favor of Damasen.
Tumamao appealed the RTC Decision to the Court of Appeals. The
CA held that Damasen was not entitled to assume the vacant
position in the Sangguniang Bayan.
ISSUE:
Who, between Damasen and Tumamao, is entitled
the contested position?
it appears that themembership of Damasen still had to be
approved by the LDP National Council. Thus, notwithstanding
Damasen’s procurement of a Certificate of Membership from LDP
Provincial Chairman Balauag, to this Court’s mind, the same
merely started the process of his membership in the LDP, and it did
not mean automaticmembership thereto. While it may be argued
that Damasen was already a member upon receipt of a
Certificate of Membership from LDP Provincial Chairman Balauag,
this Court cannot impose such view on the LDP. If the LDP
leadership says that themembership of Damasen still had to
be endorsed to the National Council for approval, then this Court
cannot question such requirement in the absence of evidence to
the contrary. It is well settled that the discretion of accepting
members to a political party is a right and a privilege, a purely
internal matter, which this Court cannot meddle in.
Lastly, the records of the case reveal that Tumamao has the
nomination of SenatorEdgardo J. Angara, the Party Chairman and,
therefore, the highest official of the LDP. In addition, he is a
member in good standing of the LDP. Thus, given the foregoing, it is
to this Court’s view that Tumamao has complied with
the requirementsof law.

HELD:
Tumamao is entitled to the contested position.

It is undisputed that the law applicable to herein petition is Sec. 45

(b) of RA 7160, which provides for the rule on succession in cases of
permanent vacancies in the Sanggunian. As can be gleaned from
Sec. 45, the law provides for conditions for the rule of succession to
apply: First, the appointee shall come from the same political party
as that of the Sanggunian member who caused the vacancy.
Second, the appointee must have a nomination and a Certificate
of Membership from the highest official of the political party
concerned. The reason behind the right given to a political party to
nominate a replacement where a permanent vacancy occurs in
the Sanggunian is to maintain the party representation as willed by
the people in the election.

Since the permanent vacancy in the Sanggunian occurred

because of the elevationof LDP member Alonzo to vice-mayor, it
follows that the person to succeed her should also belong to the
LDP so as to preserve party representation. Thus, this Court cannot
countenance Damasen’s insistence in clinging to an appointment
when he is in fact not a bona fide member of the LDP. While the
revocation of the nomination given to Damasen came after the
fact of his appointment, this Court cannot rule in his favor, because
the very first requirement of Sec. 45 (b) is that the appointee must
come from the political party as that of the Sanggunian member
who caused the vacancy. To stress, Damasen is not a bona
fide member of the LDP.

In addition, appointing Damasen would not serve the will of

the electorate. He himself admits that he was previously a member
of the Lakas-CMD, and that he ran for the position of Mayor under
the said party on the May 2004 Elections. Likewise, he did not resign
from the said party when he joined the LDP, and even admitted
that his joining the LDP was not because of party ideals, but
because he just wanted to. How can the will of the electorate be
best served, given the foregoing admissions of Damasen? If this
Court were to grant herein petition, it would effectively diminish the
party representation of the LDP in the Sanggunian, as Damasen
would still be considered a member of the Lakas-CMD, not having
resigned therefrom, a scenario that defeats the purpose of the law,
and that ultimately runs contrary the ratio of Navarro.

What is damning to the cause of Damasen, is the letter of

Demaree J.B. Raval, the Deputy Secretary Counsel of the LDP,
addressed to Governor Padaca wherein it is categorically stated
that Damasen is not a bona fide member of the LDP.

This Court has no reason to doubt the veracity of the letter coming
from the LDP leadership. Quite clearly, from the tenor of the letter,

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