G.R. No.

112889 April 18, 1995

BIENVENIDO O. MARQUEZ, JR., Petitioner, v. COMMISSION ON ELECTIONS and
EDUARDO T. RODRIGUEZ, Respondents. chanrobles virtual law library

VITUG, J.:
The Court is called upon, in this petition for certiorari, to resolve the conflicting claims of the parties
on the meaning of the term "fugitive from justice as that phrase is so used under the provisions of
Section 40(e) of the Local Government Code (Republic Act No. 7160). That law states:
Sec. 40. Disqualifications. The following persons are disqualified from running for any
elective local position:

xxx xxx xxxchanrobles virtual law library

(e) Fugitive from justice in criminal or non-political cases here or abroad(.)

Bienvenido Marquez, a defeated candidate for the elective position for the elective position in the
Province of Quezon in the 11th May 1992 elections filed this petition for certiorari praying for the
reversal of the resolution of the Commission on Elections ("COMELEC") which dismissed his petition
for quo warranto against the winning candidate, herein private respondent Eduardo Rodriguez, for
being allegedly a fugitive from justice. chanrobl esvirtualawlibrarychanrobles virtual law library

It is averred that at the time private respondent filed his certificate of candidacy, a criminal charge
against him for ten (10) counts of insurance fraud or grand theft of personal property was still pending
before the Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of
California, U.S.A. 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. chanroblesvirtualawlibrary chanrobl es virtual law library

Before the 11th May 1992 elections, a petition for cancellation (SPA 92-065) of respondent's certificate
of candidacy, on the ground of the candidate's disqualification under Section 40(e) of the Local
Government Code, was filed by petitioner with the COMELEC. On 08 May 1992, the COMELEC
dismissed the petition. chanrobl esvirtualawlibrarychanrobles virtual law library

Petitioner's subsequent recourse to this Court (in G.R. No. 105310) from the 08th May 1992 resolution
of COMELEC was dismissed without prejudice, however, to the filing in due time of a possible post-
election quo warranto proceeding against private respondent. The Court, in its resolution of 02 June
1992, held:
Evidently, the matter elevated to this Court was a pre-proclamation controversy. Since the
private respondent had already been proclaimed as the duly elected Governor of the
Province of Quezon, the petition below for disqualification has ceased to be a pre-
proclamation controversy. In Casimiro vs. Commission on Elections, G.R. Nos. 84462-63
and Antonio vs. Commission on Elections, G.R. Nos. 84678-79, jointly decided on 29
March 1989, 171 SCRA 468, this court held that a pre-proclamation controversy is no
longer viable at this point of time and should be dismissed. The proper remedy of the
petitioner is to pursue the disqualification suit in a separate proceeding. chanrobl esvirtualawlibrarychanrobles virtual law library

ACCORDINGLY, the Court Resolved to DISMISS the petition, without prejudice to the
filing of the appropriate proceedings in the proper forum, if so desired, within ten (10) days
from notice. 1chanrobles virtual law library
Private respondent was proclaimed Governor-elect of Quezon on 29 May 1992. Forthwith, petitioner
instituted quo warranto proceedings (EPC 92-28) against private respondent before the COMELEC. In
its 02 February 1993 resolution, the COMELEC (Second Division) dismissed the petition. The
COMELEC En Banc, on 02 December 1993, denied a reconsideration of the resolution. chanroblesvirtualawlibrary chanrobl es virtual law library

Hence, this petition for certiorari, the core issue of which, such as to be expected, focuses on whether
private respondent who, at the time of the filing of his certificate of candidacy (and to date), is said to
be facing a criminal charge before a foreign court and evading a warrant for his arrest comes within the
term "fugitive from justice" contemplated by Section 40(e) of the Local Government Code and,
therefore, disqualified from being a candidate for, and thereby ineligible from holding on to, an elective
local office.
chanroblesvirtualawlibrary chanrobl es virtual law library

Petitioner's position is perspicuous and to the point. The law, he asseverates, needs no further
interpretation and construction. Section 40(e) of Republic Act No. 7160, is rather clear, he submits, and
it disqualifies "fugitive from justice" includes not only those who flee after conviction to avoid
punishment but likewise those who, after being charged flee to avoid prosecution. This definition truly
finds support from jurisprudence (Philippine Law Dictionary, Third Edition, p. 399, by F.B. Moreno;
Black's Law Dictionary, Sixth Edition, p. 671; King vs. Noe, 244 S.C. 344, 137 S.E. 2d 102, 103;
Hughes vs. PFlanz, 138 Federal Reporter 980; Tobin vs. Casaus, 275 Pacific Reporter, 2d., p. 792), and
it may be so conceded as expressing the general and ordinary connotation of the term. chanroblesvirtualawlibrary chanrobl es virtual law library

In turn, private respondent would have the Court respect the conclusions of the Oversight Committee
which, conformably with Section 533 2of R.A. 7160, was convened by the President to "formulate and
issue the appropriate rules and regulations necessary for the efficient and effective implementation of
any and all provisions of the Code to ensure compliance with the principles of Local Autonomy. chanroblesvirtualawlibrary chanrobl es virtual law library

Here are some excerpts from the committee's deliberations:

CHAIRMAN MERCADO. Session is resumed. chanrobl esvirtualawlibrarychanrobles virtual law library

So, we are in agreement to retain Line 12, Page 36, as is. So next, Page 39. chanrobl esvirtualawlibrarychanrobles virtual law library

CHAIRMAN DE PEDRO. Kay Benny Marquez. chanrobl esvirtualawlibrarychanrobles virtual law library

REP. CUENCO: What does he want? chanrobl es virtual law library

CHAIRMAN DE PEDRO. Kung puwede i-retain lang iyan. Bahala na kung

kuwestiyunin ang constitutionality nito before the Supreme Court later on. chanrobl esvirtualawlibrarychanrobles virtual law library

REP. CUENCO. Anong nakalagay diyan? chanrobl es virtual law library

CHAIRMAN DE PEDRO. Iyong disqualification to run for public office. chanroblesvirtualawlibrary chanrobl es virtual law library

Any person who is a fugitive from justice in criminal or nonpolitical cases here
or abroad. chanrobl esvirtualawlibrarychanrobles virtual law library

Mabigat yung abroad. One who is facing criminal charges with the warrant of
arrest pending, unserved. . . chanrobl esvirtualawlibrarychanrobles virtual law library

HONORABLE SAGUISAG. I think that is even a good point, ano - what is a

fugitive? It is not defined. We have loose understanding. . . chanroblesvirtualawlibrary chanrobl es virtual law library
CHAIRMAN DE PEDRO. So isingit na rin sa definition of terms iyong
fugitive.
chanrobl esvirtualawlibrarychanrobles virtual law library

Si Benny umalis na, with the understanding na okay na sa atin ito. chanrobl esvirtualawlibrarychanrobles virtual law library

THE CHAIRMAN. Whether we have this rule or not she can run. She is not a
fugitive from justice. Mrs. Marcos can run at this point and I have held that for
a long time ago. So can. . . chanrobl esvirtualawlibrarychanrobles virtual law library

MS. DOCTOR. Mr. Chairman. . . chanrobl esvirtualawlibrarychanrobles virtual law library

THE CHAIRMAN. Yes. chanrobl esvirtualawlibrarychanrobles virtual law library

MS. DOCTOR. Let's move to. . . chanrobl esvirtualawlibrarychanrobles virtual law library

THE CHAIRMAN. Wait, wait, wait. Can we just agree on the wording, this is
very important. Manny, can you come up? chanrobl es virtual law library

MR. REYES. Let's use the word conviction by final judgment. chanroblesvirtualawlibrary chanrobl es virtual law library

THE CHAIRMAN. Fugitive means somebody who is convicted by final

judgment. Okay,. Fugitive means somebody who is convicted by final
judgment. Insert that on Line 43 after the semi-colon. Is that approved? No
objection, approved (TSN, Oversight Committee, 07 May 1991).

xxx xxx xxx

THE CHAIRMAN. Andy, saan ba naman itong amendment on page 2? Sino ba

ang gumawa nito? Okay, on page 2, lines 43 and 44, "fugitive from justice".
What "fugitive"? Sino ba ang gumawa nito, ha? chanrobl es virtual law library

MR. SANCHEZ. Yes, I think, well, last time, Mr. Chairman, we agree to clarify
the word "fugitive". chanrobl esvirtualawlibrarychanrobles virtual law library

THE CHAIRMAN. "Fugitive from justice means a person" ba ito, ha? chanrobl es virtual law library

MR. SANCHEZ. Means a person... chanroblesvirtualawlibrary chanrobl es virtual law library

THE CHAIRMAN. Ha? chanrobles virtual law library

HON. REYES. A person who has been convicted. chanroblesvirtualawlibrary chanrobl es virtual law library

THE CHAIRMAN; Yes, fugitive from justice, oo. Fugitive from justice shall
mean or means one who has been convicted by final judgment. It means one
who has been convicted by final judgment. chanrobl esvirtualawlibrarychanrobles virtual law library

HON. DE PEDRO. Kulang pa rin ang ibig sabihin niyan. chanrobl esvirtualawlibrarychanrobles virtual law library
 THE CHAIRMAN. Ano? Sige, tingnan natin. chanroblesvirtualawlibrary chanrobl es virtual law library

HON. DE PEDRO. Kung nasa loob ng presuhan, fugitive pa rin siya? chanrobles virtual law library

THE CHAIRMAN. O, tama na yan, fugitive from justice. He has been

convicted by final judgment, meaning that if he is simply in jail and because he
put up, post bail, but the case is still being reviewed, that is not yet conviction
by final judgment. 3

The Oversight Committee evidently entertained serious apprehensions on the possible constitutional
infirmity of Section 40(e) of Republic Act No. 7160 if the disqualification therein meant were to be so
taken as to embrace those who merely were facing criminal charges. A similar concern was expressed
by Senator R. A. V. Saguisag who, during the bicameral conference committee of the Senate and the
House of Representatives, made this reservation: chanrobles virtual law library

. . . de ipa-refine lang natin 'yung language especially 'yung, the scope of fugitive. Medyo bothered ako
doon, a. 4
The Oversight Committee finally came out with Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991. It provided:
Art. 73. Disqualifications. - The following persons shall be disqualified from running for
any elective local position: chanrobles virtual law library

(a) . . . chanroblesvirtualawlibrary chanrobl es virtual law library

(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. 5(Emphasis supplied)

Private respondent reminds us that the construction placed upon law by the officials in charge of its
enforcement deserves great and considerable weight (Atlas Consolidated Mining and Development
Corp. vs. CA, 182 SCRA 166, 181). The Court certainly agrees; however, when there clearly is no
obscurity and ambiguity in an enabling law, it must merely be made to apply as it is so written. An
administrative rule or regulation can neither expand nor constrict the law but must remain congruent to
it. The Court believes and thus holds, albeit with some personal reservations of the ponente (expressed
during the Court's en banc deliberations), that Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991, to the extent that it confines the term "fugitive from justice" to
refer only to a person (the fugitive) "who has been convicted by final judgment." is an inordinate and
undue circumscription of the law. chanrobl esvirtualawlibrarychanrobles virtual law library

Unfortunately, the COMELEC did not make any definite finding on whether or not, in fact, private
respondent is a "fugitive from justice" as such term must be interpreted and applied in the light of the
Court's opinion. The omission is understandable since the COMELEC dismissed outrightly the petition
for quo warranto on the basis instead of Rule 73 of the Rules and Regulations promulgated by the
Oversight Committee. The Court itself, not being a trier of facts, is thus constrained to remand the case
to the COMELEC for a determination of this unresolved factual matter. chanroblesvirtualawlibrary chanrobl es virtual law library

WHEREFORE, the questioned resolutions of the Commission on Elections are REVERSED and SET
ASIDE, and the case is hereby REMANDED to the Commission which is DIRECTED to proceed and
resolve the case with dispatch conformably with the foregoing opinion. No special pronouncement on
costs.
chanroblesvirtualawlibrary chanrobl es virtual law library
SO ORDERED.
Feliciano, Padilla, Melo, Quiason, Puno, Kapunan and Francisco, JJ., concur.
chanrobles virtual law library

chanrobles virtual law library

Separate Opinions
DAVIDE JR., J., concurring: chanrobl es virtual law library

Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective
provincial, city, municipal, and barangay officials shall be those provided for in the Local Government
Code. The quondam Local Government Code was B.P. Blg. 337, which was superseded by R.A. No.
7160, otherwise known as the Local Government Code of 1991. Section 39 of the latter provides for
the qualifications and election of local elective officials. Section 40 enumerates those who are
disqualified from running for any elective local position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment
but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose
C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been
convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree.
law library
chanrobl esvirtualawlibrarychanrobles virtual

But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the
disqualification in the 1991 Local Government Code because it disqualifies all those who have been
convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have
served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for
another country. The definition thus disregards the true and accepted meaning of the word fugitive. This
new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the
clear language of the law leaves no room for a re-examination of the meaning of the term. chanroblesvirtualawlibrary chanrobl es virtual law library

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the
presumption of innocence clause of the Bill of Rights. There are certain fundamental considerations
which do not support the applications of the presumption chanrobl es virtual law library

Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who
are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate
for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary
power to determine who are disqualified to seek election for a public office. chanrobl esvirtualawlibrarychanrobles virtual law library

Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides:
Sec. 1. Public office is public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN
BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing
Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus
be required by law. chanrobl esvirtualawlibrarychanrobles virtual law library

Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption of
innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an
information or criminal complaint against him. He is disqualified because he is a "fugitive from
justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded
arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has
successfully evaded service of sentence because he had jumped bail or escaped. The disqualification
then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of
guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the
presumption of innocence but rather the disqualified person himself who has proven his guilt. chanroblesvirtualawlibrary chanrobl es virtual law library

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity
of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of
innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of
charges for the commission of such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did
in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in
violation of the constitutional right to presumption of innocence.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.
Separate Opinions
DAVIDE JR., J., concurring:
Section 65 of the Omnibus Election Code (B.P. Blg. 881) states that the qualifications for elective
provincial, city, municipal, and barangay officials shall be those provided for in the Local Government
Code. The quondam Local Government Code was B.P. Blg. 337, which was superseded by R.A. No.
7160, otherwise known as the Local Government Code of 1991. Section 39 of the latter provides for
the qualifications and election of local elective officials. Section 40 enumerates those who are
disqualified from running for any elective local position, among whom is a:
(e) Fugitive from justice in criminal or non-political cases here or abroad.

The term "fugitive from justice" refers not only to those who flee after conviction to avoid punishment
but also to those who, after being charged, flee to avoid prosecution. In his ponencia, Mr. Justice Jose
C. Vitug finds the definition given to it by the Oversight Committee, i.e., "a person who has been
convicted by final judgment," as appearing in Article 73 of the Rules and Regulations Implementing
the Local Government Code of 1991, as inordinate and as undue circumscription of the law. I agree. chanrobl es virtual law library

But this is only one side of the coin. I further submit that it also unreasonably expands the scope of the
disqualification in the 1991 Local Government Code because it disqualifies all those who have been
convicted by final judgment, regardless of the extent of the penalty imposed and of whether they have
served or are serving their sentences or have evaded service of sentence by jumping bail or leaving for
another country. The definition thus disregards the true and accepted meaning of the word fugitive. This
new definition is unwarranted for nothing in the legislative debates has been shown to sustain it and the
clear language of the law leaves no room for a re-examination of the meaning of the term. chanrobles virtual law library

I do not share the doubt of Mr. Justice Vitug on the constitutionality of the disqualification based on the
presumption of innocence clause of the Bill of Rights. There are certain fundamental considerations
which do not support the applications of the presumption
Firstly, Section 1, Article V of the Constitution recognizes the authority of Congress to determine who
are disqualified from exercising the right of suffrage. Since the minimum requirement of a candidate
for a public office is that he must be a qualified voter, it logically follows that Congress has the plenary
power to determine who are disqualified to seek election for a public office. chanrobl es virtual law library
Secondly, a public office is a public trust. Section 1, Article XI of the Constitution expressly provides:
Sec. 1. Public office is public trust. Public officers and employees must at all times be
accountable to the people, serve them with utmost responsibility, integrity, loyalty, and
efficiency, act with patriotism and justice, and lead modest lives.

A public office is not property. (ISAGANI A. CRUZ, Constitutional Law, 1993 ed., 101; JOAQUIN
BERNAS, The Constitution of the Republic of the Philippines, A Commentary, 1987 ed., 40, citing
Cornejo vs. Gabriel, 41 Phil. 188 [1920]). Accordingly, stricter qualifications for public office may thus
be required by law. chanrobl es virtual law library

Thirdly, the disqualification in guestion does not, in reality, involve the issue of presumption of
innocence. Elsewise stated, one is not disqualified because he is presumed guilty by the filing of an
information or criminal complaint against him. He is disqualified because he is a "fugitive from
justice," i.e., he was not brought within the jurisdiction of the court because he had successfully evaded
arrest; or if he was brought within the jurisdiction of the court and was tried and convicted, he has
successfully evaded service of sentence because he had jumped bail or escaped. The disqualification
then is based on his flight from justice. In the face of the settled doctrine that flight is an indication of
guilt, it may even be truly said that it is not the challenged disqualifying provision which overcomes the
presumption of innocence but rather the disqualified person himself who has proven his guilt. chanrobles virtual law library

Finally, Dumlao vs. COMELEC (95 SCRA 392 [1980]) cannot be invoked to cast doubt on the validity
of the challenged disqualification. Dumlao struck out as violative of the constitutional presumption of
innocence that portion of the second paragraph, Section 4 of B.P. Blg. 52 providing that "the filing of
charges for the commission of such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact." It is clear that the law challenged therein did
in fact establish a presumption of guilt from the mere filing of the information or criminal complaint, in
violation of the constitutional right to presumption of innocence.
Narvasa, C.J., Romero, Bellosillo and Mendoza, JJ., concur.

MARQUEZ versus COMELEC (243 SCRA 538)

Disqualification case on the ground of “fugitive from justice”

MARQUEZ versus COMELEC (243 SCRA 538)

Facts:
Marquez, a candidate for an elective position in Quezon Province during the 1998
elections, filed a petition praying for the cancellation of the certificate of candidacy of
Rodriguez on the ground of disqualification under section 40 of the Local Government
Code Section 40. Disqualification.
The following persons are disqualified from running for any local elective position… (e)
Fugitive from justice in criminal or non-political cases here or abroad.
Rodriguez is allegedly criminally charged with insurance fraud or grand theft of personal
property in the United States and that his arrest is yet to be served because of his flight
from the country. The COMELEC dismissed Marquez’s Petition. Rodriguez was
proclaimed the Governor-elect of Quezon.

Issue:
Whether or not private respondent, who at the time of the filing of his COC is said to be
facing criminal charges before a foreign court and evading a warrant of arrest comes
within the term “fugitive from justice”.

Held:
No. Although it is provided in Article 73 of the Rules and Regulations implementing the
Local Government Code of 1991 that for a person to be considered a fugitive from
justice, he or she has to be convicted by final judgment, but such definition is an
ordinate and under circumscription of the law. For the term fugitive from justice
includes not only those who after conviction to avoid punishment but likewise those
who, after being charged, flee to avoid prosecution. This definition truly finds support
from jurisprudence, and it may be conceded as expressing the general and ordinary
connotation of the term.

MARQUEZ vs. COMELEC Case Digest

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

Facts:

Bienvenido Marquez and Eduardo Rodriguez were candidates for Governor of the
province of Quezon in 1992. Rodriguez won, and this prompted Marquez to file a
quo warranto proceedings against Marquez for being disqualified as a candidate
because he is a “fugitive from justice” which is against Sec. 40 (e) of the Local
Government Code.

Sec. 40. Disqualifications. The following persons are disqualified from

running for any elective local position:
xxx
(e) Fugitive from justice in criminal or non-political cases here or
abroad

Allegedly, at the time Rodriguez filed his certificate of candidacy, a criminal

charge against him for 10 counts of insurance fraud or grand theft of personal
property was still pending before the Municipal Court of Los Angeles, USA. A
warrant was issued for his arrest, but which remained unserved because he
already went to the Philippines then.

Marquez argued that Section 40(e) of RA 7160 is rather clear. "Fugitive from
justice" includes not only those who flee after conviction to avoid punishment but
likewise those who, after being charged flee to avoid prosecution.

Rodriguez, on the other hand, cites the Congressional Oversight Committee who
drafted the IRR for the Local Government Code. In the deliberations, it could be
seen that there was confusion as to the implications of defining what a fugitive
from justice really is. There was a pronouncement from the Chairman that
fugitive means somebody who is convicted by final judgment, and this was
adapted verbatim in Art. 73 of the IRR.
Issue:

What is the definition of “fugitive from justice” that should be followed?

Held:

"Fugitive from justice" includes not only those who flee after conviction to
avoid punishment but likewise those who, after being charged flee to avoid
prosecution. This definition truly finds support from jurisprudence and it may be
so conceded as expressing the general and ordinary connotation of the term.

Article 73 of the Rules and Regulations Implementing the Local Government Code
of 1991, to the extent that it confines the term "fugitive from justice" to refer
only to a person (the fugitive) "who has been convicted by final judgment" is an
inordinate and undue circumscription of the law.

Private respondent reminds us that the construction placed upon law by the
officials in charge of its enforcement deserves great and considerable weight. The
Court certainly agrees; however, when there clearly is no obscurity and ambiguity
in an enabling law, it must merely be made to apply as it is so written. An
administrative rule or regulation can neither expand nor constrict the law but
must remain congruent to it.

There was no clear ruling on the instance of Rodriguez because Comelec never
made a determination as to his status as a fugitive from justice. Case was
remanded to Comelec. (G.R. No. 112889, April 18, 1995)

Marquez v COMELEC

Facts:

Marquez, a candidate for an elective position in Quezon Province during the 1998 elections, filed a
petition praying for the cancellation of the certificate of candidacy of Rodriguez on the ground of
disqualification under section 40 of the Local Government Code (Section 40. Disqualification. The
following persons are disqualified from running for any local elective position... (e) Fugitive from
justice in criminal or non-political cases here or abroad.)

Rodriguez is allegedly criminally charged with insurance fraud in the United States and that his arrest
is yet to be served because of his flight from the country.

The COMELEC dismissed Marquez’s Petition.

Rodriguez was proclaimed the Governor-elect of Quezon.

Issues:

WON Rodriguez, at the time of filing his certificate of candidacy, is said to be a fugitive from justice as
provided for in section 40 of the Local Government Code.

Held:

“Fugitive from justice” does not mean a person convicted by final judgment. It includes those who after
being charged flee to avoid prosecution. The COMELEC is directed to proceed and settle the case in
conformity of the given clarification with the term “fugitive from justice”.

[G.R. No. 118577. March 7, 1995.]

JUANITO MARIANO, JR., Et Al., Petitioners, v. THE COMMISSION ON ELECTIONS, THE

MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, THE MUNICIPAL TREASURER,
AND SANGGUNIANG BAYAN OF MAKATI, Respondents.

[G.R. No. 118627. March 7, 1995.]

JOHN R. OSMEÑA, Petitioner, v. THE COMMISSION ON ELECTIONS, THE

MUNICIPALITY OF MAKATI, HON. JEJOMAR BINAY, MUNICIPAL TREASURER, AND
SANGGUNIANG BAYAN NG MAKATI, Respondents.

Villamor Legarda & Associates for petitioner in G.R. No. 118627.

Acosta & Corvera Law Offices for petitioners in G.R. No. 118577.

Emmanuel P.J . Tamase for Private Respondents.

The Solicitor General for public Respondent.

SYLLABUS

1. ADMINISTRATIVE LAW; LOCAL GOVERNMENT CODE; DRAWING OF TERRITORIAL,

BOUNDARIES; REQUIRED; RATIONALE. — The importance of drawing with precise strokes the
territorial boundaries of a local unit of government cannot be overemphasized. The boundaries must be
clear for they define the limits of the territorial jurisdiction of a local government unit. It can
legitimately exercise powers of government only within the limits of its territorial jurisdiction. Beyond
these limits its acts are ultra vires. Needless to state, any uncertainty in the boundaries of local
government units will sow costly conflicts in the exercise of governmental powers which ultimately
will prejudice the people’s welfare. This is the evil sought to be avoided by the Local Government
Code in requiring that the land area of a local government unit must be spelled out in metes and
bounds, with technical descriptions.

2. STATUTORY CONSTRUCTION; RULE THAT LAW MUST BE ENFORCED WHEN

ASCERTAINED, ALTHOUGH IT MAY NOT BE CONSISTENT WITH THE STRICT LETTER OF
THE STATUTE; APPLICATION IN CASE AT BAR. — Congress did not intend that laws creating
new cities must contain therein detailed technical descriptions similar to those appearing in Torrens
titles, as petitioners seem to imply. To require such description in the law as a condition sine qua non
for its validity would be to defeat the very purpose which the Local Government seeks to serve. The
manifest intent of the Code is to empower local government units and to give them their rightful due. It
seeks to make local governments more responsive to the needs of their constituents while at the same
time serving as a vital cog in national development. To invalidate R.A. No. 7854 on the mere ground
that no cadastral type of description was used in the law would serve the letter but defeat the spirit of
the Code. It then becomes a case of the master serving the slave, instead of the other way around. This
could not be the intendment of the law. Too well settled is the rule that laws must be enforced when
ascertained, although it may not be consistent with the strict letter of the statute. Courts will not follow
the letter of the statute when to do so would depart from the true intent of the legislature or would
otherwise yield conclusions inconsistent with the general purpose of the act (Torres v. Limjap, 56 Phil.
141; Tañada v. Cuenco, 103 Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active
instrument of government which, for purposes of interpretation, means that laws have ends to achieve,
and statutes should be so construed as not to defeat but to carry out such ends and purposes (Bocobo v.
Estanislao, 72 SCRA 520).

3. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF LAW, WHEN CHALLENGED;

REQUIREMENTS. — The requirements before a litigant can challenge the constitutionality of a law
are well-delineated. They are: (1) there must be an actual case or controversy; (2) The question of
constitutionality must be raised by the proper party, (3) the constitutional question must be raised at the
earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to
the determination of the case itself (Dumlao v. COMELEC, 95 SCRA 392 [1980]; Cruz, Constitutional
Law, 1991 ed., p. 24)

4. ID.; REAPPORTIONMENT OF LEGISLATIVE DISTRICT; RULE; APPLICATION IN CASE AT

BAR. — In the recent case of Tobias v. Abalos, G.R. No. 114783, December 8, 1994, this Court ruled
that reapportionment of legislative districts may be made through a special law, such as in the charter of
a new city. The Constitution (Section 5(1), Article VI) clearly provides that Congress shall be
composed of not more than two hundred fifty (250) members, unless otherwise fixed by law. As thus
worded, the Constitution did not preclude Congress from increasing its membership by passing a law,
other than a general reapportionment law. This is exactly what was done by Congress in enacting R.A.
No. 7854 and providing for an increase in Makati’s legislative district. Moreover, to hold that
reapportionment can only be made through a general apportionment law, with a review of all the
legislative districts allotted to each local government unit nationwide, would create an unequitable
situation where a new city or province created by Congress will be denied legislative representation for
an indeterminate period of time. That intolerable situation will deprive the people of a new city or
province a particle of their sovereignty. Sovereignty cannot admit of any kind of subtraction. It is
indivisible. It must be forever whole or it is not sovereignty.

DAVIDE, JR., J., concurring opinion: chanrob1es virtual 1aw library

1. CONSTITUTIONAL LAW; LOCAL GOVERNMENT CODE OF 1991 (R.A. No. 7160);

REQUIREMENT THAT TERRITORIAL BOUNDARIES BE IDENTIFIED BY METES AND
BOUNDS WITH TECHNICAL DESCRIPTION; WHEN NOT APPLICABLE; CASE AT BAR. —
Section 10, Article X of the Constitution provides that" [n]o province, city, municipality or barangay
may be created; divided, merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code and subject to the approval by a majority of
the votes cast in a plebiscite in the political units directly affected." These criteria are now se forth in
Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial
jurisdiction of the local government unit to be created or converted should be properly identified by
metes and bounds with technical descriptions. The omission of R.A. No. 7854 (An Act Converting the
Municipality of Makati Into a Highly Urbanized City to be Known as the City of Makati) to describe
the territorial boundaries of the city by metes and bounds does not make R.A. No. 7854
unconstitutional or illegal. The Constitution does not provide for a description by metes and bounds as
a condition sine qua non for the creation of a local government unit or its conversion from one level to
another. The criteria provided for in Section 7 of R.A. No. 7854 are not absolute, for, as a matter of
fact, the section starts with the clause "as a general rule." The petitioners’ reliance on Section 450 of
R.A. No. 7160 is unavailing. Said section only applies to the conversion of a municipality or a cluster
of barangays into a COMPONENT CITY, not a highly urbanized city.

2. ID.; R.A. NO. 7854; INCREASE IN THE NUMBER OF LEGISLATIVE SEATS; JUSTIFIED. —
Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause contemplates of the reapportionment mentioned in
the succeeding paragraph (4) of the said Section which reads in full as follows: "Within three years
following the return of every census, the Congress shall make a reapportionment of legislative districts
based on the standards provided in this section." In short, the clause refers to a general reapportionment
law. The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the
Ordinance appended to the Constitution.

DECISION

PUNO, J.:

At bench are two (2) petitions assailing certain provisions of Republic Act No. 7859 as
unconstitutional. R.A. No. 7854 is entitled, "An Act Converting the Municipality of Makati Into a
Highly Urbanized City to be known as the City of Makati." 1

G.R. No. 118577 involves a petition for prohibition and declaratory relief. It was filed by petitioners
Juanito Mariano, Jr., Ligaya S. Bautista, Teresita Abang, Valentina Pitalvero, Rufino Caldoza, Florante
Alba, and Perfecto Alba. Of the petitioners, only Mariano, Jr., is a resident of Makati. The others are
residents of Ibayo Ususan, Taguig, Metro Manila. Suing as taxpayers, they assail as unconstitutional
sections 2, 51 and 52 of R.A. No. 7854 on the following grounds: jgc:chanrobl es.com.ph

"1. Section 2 of R.A. No. 7854 did not properly identify the land area or territorial jurisdiction of
Makati by metes and bounds, with technical descriptions, in violation of Section 10, Article X of the
Constitution, in relation to Sections 7 and 450 of the Local Government Code;

2. Section 51 of R.A. No. 7854 attempts to alter or restart the "three-consecutive term" limit for local
elective officials, in violation of Section 8, Article X and Section 7, Article VI of the Constitution.

3. Section 52 of R.A. No. 7854 is unconstitutional for: chanrob1es virtual 1aw library
(a) it increased the legislative district of Makati only by special law (the Charter in violation of the
constitutional provision requiring a general reapportionment law to be passed by Congress within three
(3) years following the return of every census; chanrobl esvirtual|awlibrary

(b) the increase in legislative district was not expressed in the title of the bill; and

(c) the addition of another legislative district in Makati is not in accord with Section 5 (3), as of the
latest survey (1990 census), the population of Makati stands at only 450,000.

G.R. No. 118627 was filed by petitioner John H. Osmeña as senator, taxpayer, and concerned citizen.
Petitioner assails section 52 of R.A. No. 7854 as unconstitutional on the same grounds as aforestated.

We find no merit in the petitions.

Section 2, Article I of R.A. No. 7854 delineated the land area of the proposed city of Makati, thus: chanrob1es virtual 1aw library

Sec. 2. The City of Makati. — The Municipality of Makati shall be converted into a highly urbanized
city to be known as the City of Makati, hereinafter referred to as the City, which shall comprise the
present territory of the Municipality of Makati in Metropolitan Manila Area over which it has
jurisdiction bounded on the northeast by Pasig River and beyond by the City of Mandaluyong and the
Municipality of Pasig; on the southeast by the municipalities of Pateros and Taguig; on the southwest
by the City of Pasay and the Municipality of Taguig; and the northwest, by the City of Manila.

The foregoing provision shall be without prejudice to the resolution by the appropriate agency or forum
of existing boundary disputes or cases involving questions of territorial jurisdiction between the City of
Makati and the adjoining local government units. (Emphasis supplied)

In G.R. No. 118577, petitioners claim that this delineation violates sections 7 and 450 of the Local
Government Code which require that the area of a local government unit should be made by metes and
bounds, with technical descriptions. 2

The importance of drawing with precise strokes the territorial boundaries of a local unit of government
cannot be overemphasized. The boundaries must be clear for they define the limits of the territorial
jurisdiction of a local government unit. It can legitimately exercise powers of government only within
the limits of its territorial jurisdiction. Beyond these limits of its acts are ultra vires. Needless to state,
any uncertainty in the boundaries of local government units will sow costly conflicts in the exercise of
governmental powers which ultimately will prejudice the people’s welfare. This is the evil sought to be
avoided by the local government unit requiring that the land area of local government unit must be
spelled out in metes and bounds, with technical descriptions.

Given the facts of the cases at bench, we cannot perceive how this evil can be brought about by the
description made in section 2 of R.A. No. 7854. Petitioners have not demonstrated that the delineation
of the land area of the proposed City of Makati will cause confusion as to its boundaries. We note that
said delineation did not change even by an inch the land area previously covered by Makati as a
municipality. Section 2 did not add, subtract, divide, or multiply the established land area of Makati. In
language that cannot be any cleared, section 2 stated that the city’s land area "shall comprise the
present territory of the municipality." cral aw virtua1aw library

The deliberations of Congress will reveal that there is a legitimate reason why the land area of the
proposed City of Makati was not defined by metes and bounds, with technical descriptions. At the time
of the consideration of R.A. No. 7854, the territorial dispute between the municipalities of Makati and
Taguig over Fort Bonifacio was under court litigation. Out of a becoming sense of respect to a co-equal
department of government, the legislations felt that the dispute should be left to the courts to decide.
They did not want to foreclose the dispute by making a legislative finding of fact which could decide
the issue. This would have ensued if they defined the land area of the proposed city by its exact metes
and bounds, with technical descriptions. 3 We take judicial notice of the fact that Congress has also
refrained from using the metes and bounds description of land areas of other local government units
with unsettled boundary disputes. 4

We hold that the existence of a boundary dispute does not per se present an unsurmountable difficulty
which will prevent Congress form defining with reasonable certitude the territorial jurisdiction of as
local government unit. In the cases at bench, Congress maintained the existing boundaries of the
proposed City of Makati but as an act of fairness, made them subject to the ultimate resolution by the
courts. Considering these peculiar circumstances, we are not prepared to hold that section 2 of R.A.
7854 is unconstitutional. We sustain the submission of the Solicitor General in this regard, viz: jgc:chanrobl es.com.ph

"Going now to Sections 7 and 450 of the Local Government Code, it is beyond cavil that the
requirement stated therein, viz: ‘the territorial jurisdiction of newly created or converted cities should
be described by metes and bounds, with technical descriptions’ — was made in order to provide a
means by which the area of said cities may be reasonably ascertained. In other words, the requirement
on metes and bounds was meant merely as tool in the establishment of local government units. It is not
an end in itself. Ergo, so long as the territorial jurisdiction of a city may be reasonably ascertained, i.e.,
by referring to common boundaries with neighboring municipalities, as in this case, then, it may be
concluded that the legislative intent behind the law has been sufficiently served.

Certainly, Congress did not intend that laws creating new cities must contain therein detailed technical
descriptions similar to those appearing in Torrens titles, as petitioners seem to imply. To require such
description in the law as a condition sine qua non for its validity would be to defeat the very purpose
which the Local Government Code seeks to serve. The manifest intent of the Code is to empower local
government units and to give them their rightful due. It seeks to make local governments more
responsive to the needs of their constituents while at the same time serving as a vital cog No. 7854 on
the mere ground that no cadastral type of description was used in the law would serve the letter but
defeat the spirit of the Code. It then becomes a case of a master serving the slave, instead of the other
way around. This could not be the intendment of the law.

Too well settled is the rule that laws must be enforced when ascertained, although it may not be
consistent with the strict letter of the statute. Courts will not follow the letter of the statute when to do
so would depart from the true intent of the legislature or would otherwise yield conclusions
inconsistent with the general purpose of the act (Torres v. Limjap, 56 Phil., 141; Tañada v. Cuenco, 103
Phil. 1051; Hidalgo v. Hidalgo, 33 SCRA 1105). Legislation is an active instrument of government
which, for purposes of interpretation, means that laws have ends to achieve, and statutes should be so
construed as not to defeat but to carry out such ends and purposes (Bocobo v. Estanislao, 72 SCRA
520). The same rule must indubitable apply to the case at bar.

II
Petitioners in G.R. No. 118577 also assail the constitutionality of section 51, Article X of R.A. No.
7854. Section 51 states: jgc:chanrobles.com.ph

"Sec. 51. Officials of the City of Makati. — The present elective officials of the Municipality of Makati
shall continue as the officials of the City of Makati and shall exercise their powers and functions until
such time that a new election is held and the duly elected officials shall have already qualified and
assume their offices: Provided, The new city will acquire a new corporate existence. The appointive
officials and employees of the City shall likewise continue exercising the functions and duties and they
shall be automatically absorbed by the city government of the City of Makati." cral aw virtua1aw library

They contend that this section collides with section 8, Article X and section 7, Article VI of the
Constitution which provide: jgc:chanrobles.com.ph

"Sec. 8. The term of office of elective local officials, except barangay officials, which shall be
determined by law, shall be three years and no such official shall serve for more than three consecutive
terms. Voluntary renunciation of the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for which he was elected.

x x x

Sec. 7. The members of the House of Representatives shall be elected for a term of three years which
shall begin, unless otherwise provided by law, at noon on the thirtieth day of June next following their
election.

No member of the House of Representatives 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." chanroblesvirtualawlibrary

Petitioners stress that under these provisions, elective local officials, including Members of the House
of Representatives, have a term of three (3) years and are prohibited from serving for more than three
(3) consecutive terms. They argue that by providing that the new city shall acquire a new corporate
existence, section 51 of R.A. No. 7854 restarts the term of the present municipal elective officials of
Makati and disregards the terms previously serve by them. In particular, petitioners point that section
51 favors the incumbent Makati mayor, respondent Jejomar Binay, who was already served for two (2)
consecutive terms. They further argue that should Mayor Binay decide to run and eventually win as city
mayor in the coming elections, he can still run for the same position in 1998 and seek another three-
year consecutive term since his previous three-year consecutive term as municipal mayor would not be
counted. Thus, petitioners conclude that said section 51 has been conveniently crafted to suit the
political ambitions of respondent Mayor Binay.

We cannot entertain this challenge to the constitutionality of section 51. The requirements before a
litigant can challenge the constitutionality of a law are well-delineated. They are: (1) there must be an
actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3)
the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on
the constitutional question must be necessary to the determination of the case itself. 5
Petitioners have far from complied with these requirements. The petition is premised on the occurrence
of many contingent events, i.e., that Mayor Binay will run again in this coming mayoralty elections;
that he would be re-elected in said elections; and that he would seek re-election for the same post in the
1998 elections. Considering that these contingencies may or may not happen, petitioners merely pose a
hypothetical issue which has yet to ripen to an actual case or controversy. Petitioners who are residents
of Taguig (except Mariano) are not also the proper parties to raise this abstract issue. Worse, they hoist
this futuristic issue in a petition for declaratory relief over which this Court has no jurisdiction.

III

Finally, petitioners in two (2) cases at bench assail the constitutionality of section 52, Article X of R.A.
7854. Section 52 of the Charter provides: jgc:chanrobles.com.ph

"Sec. 52. Legislative Districts. — Upon its conversion into a highly-urbanized city, Makati shall
thereafter have at least two (2) legislative districts that shall initially correspond to the two (2) existing
districts created under section 3(a) of republic Act No. 7166 as implemented by the Commission on
Elections to commence at the next national elections to be held after the effectivity of this Act.
Henceforth, barangays Magallanes, Dasmariñas, and Forbes shall be with the first district, in lieu of
Barangay Guadalupe-Viejo which shall form part of the second district." (Emphasis supplied)

They contend that the addition of another legislative district in Makati is unconstitutional for: (1)
reapportionment 6 cannot made by a special law; (2) the addition of a legislative district is not
expressed in the title of the bill; 7 and (3) Makati’s population, as per the 1990 census, stands at only
four hundred fifty thousand (450,000).

These issues have been laid to rest in the recent case of Tobias v. Abalos. 8 In said case, we ruled that
reapportionment of legislative districts may be made through a special law, such as in the charter of a
new city. The Constitution 9 clearly provides that Congress shall be composed of not more than two
hundred fifty (250) members, unless otherwise fixed by law. As thus worded, the Constitution did not
preclude Congress from increasing its membership by passing a law, other than a general
reapportionment law. This is exactly what was done by Congress in enacting R.A. No. 7854 and
providing for an increase in Makati’s legislative district. Moreover, to hold that reapportionment can
only be made through a general apportionment law, with a review of all the legislative districts allotted
to each local government unit nationwide, would create an inequitable situation where a new city or
province created by Congress will be denied legislative representation for an indeterminate period of
time. 10 That intolerable situation will deprive the people of a new city or province a particle of their
sovereignty. 11 Sovereignty cannot admit of any kind of subtraction. It is indivisible. It must be forever
whole or it is not sovereignty.

Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
section 5(3); Article VI 12 of the Constitution for as of the latest survey (1990 census), the population
of Makati stands at only four hundred fifty thousand (450,000). 13 Said Section provides, inter alia,
that a city with a population of at least two hundred fifty thousand (250,000) shall have at least one
representative. Even granting that the population of Makati as of the 1990 census stood at four hundred
fifty thousand (450,000), its legislative district may still be increased since it has met the minimum
population requirement of two hundred fifty thousand (250,000). In fact, section 3 of the Ordinance
appended to the Constitution provides that a city whose population has increased to more than two
hundred fifty thousand (250,000) shall be entitled to at least one congressional representative. 14
Finally, we do not find merit in petitioners’ contention that the creation of an additional legislative
district in Makati should have been expressly stated in the title of the bill. In the same case of Tobias v.
Abalos, op cit, we reiterated the policy of the Court favoring a liberal construction of the "one title-one
subject" rule so as not to impede legislation. To be sure, the Constitution does not command that the
title of a law should exactly mirror, fully index, or completely catalogue all its details. Hence, we ruled
that "it should be sufficient compliance if the title expresses the general subject and all the provisions
are germane to such general subject." cral aw virtua1aw library

WHEREFORE. the petitions are hereby DISMISSED for lack of merit. No costs.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason,
Vitug, Kapunan, Mendoza and Francisco, JJ., concur.

Separate Opinions

DAVIDE, JR. J., concurring: chanrob1es virtual 1aw library

I concur in the well-written opinion of Mr. Justice Reynato S. Puno. I wish, however, to add a few
observations.

I.

Section 10, Article X of the Constitution provides that" [n]o province, city, municipality or barangay
may be created, divided, merged, abolished, or its boundary substantially altered, except in accordance
with the criteria established in the local government code and subject to the approval by a majority of
the votes cast in a plebiscite in the political units directly affected." These criteria are now set forth in
Section 7 of the Local Government Code of 1991 (R.A. No. 7160). One of these is that the territorial
jurisdiction of the local government unit to be created or converted should be properly identified by
metes and bounds with technical descriptions. cral awnad

The omission of R.A. No. 7854 (An Act Converting the Municipality of Makati Into a Highly
Urbanized City to be Known as the City of Makati) to describe the territorial boundaries of the city by
metes and bounds does not make R.A. No. 7854 unconstitutional or illegal. The Constitution does not
provide for a description by metes and bounds as a condition sine qua non for the creation of a local
government unit or its conversion from one level to another. The criteria provided for in Section 7 of
R.A. No. 7854 are not absolute, for, as a matter of fact, the section starts with the clause "as a general
rule." The petitioners’ reliance on Section 450 of R.A. No. 7160 is unavailing. Said section only applies
to the conversion of a municipality or a cluster of barangays into a COMPONENT CITY, not a highly
urbanized city. It pertinently reads as follows: chanrob1es virtual 1aw library

Sec. 450. Requisite for creation. — (a) A municipality or a cluster of barangays may be converted into
a component city if it has an average annual income, as certified by the Department of Finance, of at
least Twenty million pesos (P20,000,000.00) for the last two (2) consecutive years based on 1991
constant prices, and if it has either of the following requisites: chanrob1es virtual 1aw library
 x x x

(b) The territorial jurisdiction of a newly created city shall be properly identified by metes and
bounds. . . .

The Constitution classifies cities as either highly urbanized or component. Section 12 of Article X
thereof provides: jgc:chanrobles.com.ph

"Sec. 12. Cities that are highly urbanized, as determined by law, and component cities whose charters
prohibit their voters form 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." cral aw virtua1aw library

And Section 451 of R.A. No. 7160 provides: jgc:chanrobl es.com.ph

"Sec. 451. Cities Classified. — A city may either be component or highly urbanized: Provided,
however, That the criteria established in this Code shall not affect the classification and corporate state
of existing cities.

Independent component cities are those component cities whose charters prohibit their voters from
voting for provincial elective officials. Independent component cities shall be independent of the
province." cralaw virtua1aw library

II.

Strictly speaking, the increase in the number of legislative seats for the City of Makati provided for in
R.A. No. 7854 is not an increase justified by the clause unless otherwise fixed by law in paragraph 1,
Section 5, Article VI of the Constitution. That clause contemplated of the reapportionment mentioned
in the succeeding paragraph (40 of the said Section which reads in gull as follows: chanrob1es virtual 1aw library

Within three years following the return of every census, the Congress shall make a reapportionment of
legislative districts based on the standards provided in this section.

In short, the clause refers to a general reapportionment law.

The increase under R.A. No. 7854 is a permissible increase under Sections 1 and 3 of the Ordinance
appended to the Constitution which reads: chanrob1es virtual 1aw library

Sec. 1. For purposes of the election of Members of the House of Representatives of the First Congress
of the Philippines under the Constitution proposed by the 1986 Constitutional Commission and
subsequent elections, and until otherwise provided by law, the Members thereof shall be elected from
legislative districts apportioned among the provinces, cities, and the Metropolitan Manila Area as
follows:chanrob1es virtual 1aw library

METROPOLITAN MANILA AREA

x x x
MAKATI, one (1)

x x x

Sec. 3. Any province that may hereafter be created, or any city whose population may hereafter
increase to more than two hundred fifty thousand shall be entitled in the immediately following
election to at least one Member or such number of members as it may be entitled to on the basis of the
number of its inhabitants and according to the standards set forth in paragraph (3). Section 5 of Article
VI of the Constitution. The number of members apportioned to the province out of which such new
province was created, or where the city, whose population has so increased, is geographically located
shall be correspondingly adjusted by the Commission on Elections but such adjustment shall not be
made within one hundred and twenty days before the election. (Emphasis supplied)

Endnotes:

1. R.A. No. 7854 is a consolidation of House Bill No. 12240 sponsored by Congressman
Joker Arroyo and Senate Bill No. 1244 sponsored by Senator Vicente Sotto III.

2. "SECTION 7. Creation and Conversion. — As a general rule, the creation of a local

government unit or its conversion from one level to another level shall be based on
verifiable indicators of viability and projected capacity to provide services, to wit: chanrob1es virtual 1aw library

x x x

‘(c) Land Area. — It must be contiguous, unless it comprises two (2) or more islands or is
separated by a local government unit independent of the government unit independent of
the others; properly identified by metes and bounds with technical descriptions and
sufficient to provide for such basic services and facilities to meet the requirements of its
populace.

Compliance with the foregoing indicators shall be attested to by the Department of Finance
(DOF), the National Statistics Office (NSO), and the Lands Management Bureau (LMB) of
the Department of Environment and Natural Resources (DENR).’

x x x

SECTION 450. Requisites for Creation. — . . .

(b) The territorial jurisdiction of a newly-created city shall be properly identified by metes
and bounds. . . ."
cralaw virtua1aw library

3. August 18, 1994, Senate deliberations on H.B. No. 12240, pp. 23-28.
4. Ibid, citing as example the City of Mandaluyong.

5. Dumlao v. COMELEC, 95 SCRA 392 (1980); Cruz, Constitutional Law, 1991 ed., p. 24.

6. Section 5(4), Article VI of the Constitution provides: jgc:chanrobles.com.ph

"(4) Within three years following the return of every census, the Congress shall make a
reapportionment of legislative districts based on the standards provided in this section." cralaw virtua1aw library

7. Section 26(1), Article VI of the Constitution provides: jgc:chanrobles.com.ph

"Sec. 26(1) Every bill passed by the Congress shall embrace only one subject which shall
be expressed in the title thereof." cralaw virtua1aw library

8. G.R. no. 114783, December 8, 1994.

9. Section 5(1), Article VI.

10. In this connection, we take judicial notice of the fact that since 1986 up to this time,
Congress has yet to pass a general reapportionment law.

11. Section 1, Article II provides that "The Philippines is a democratic and republican state.
Sovereignty resides in the people and all government authority emanate from them." cral aw virtua1aw library

12. SEC. 5. . . .

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and
adjacent territory. Each city with a population of at least two hundred fifty thousand, or
each province, shall have at least one representative." cralaw virtua1aw library

x x x

13. As per the certificate issued by Administrator Tomas Africa of the National Census and
Statistics Office, the population of Makati as of 1994 stood at 508,174; August 4, 1994,
Senate Delineations on House Bill No. 12240 (converting Makati into a highly urbanized
city), p. 15.

14. Sec. 3. provides: "Any province that may hereafter be created, or any city whose
population may hereafter increase to more than two hundred fifty thousand shall be entitled
in the immediately following election to at least one Member or such number of Members
as it may be entitled to on the basis of the number of its inhabitants and according to the
standards setforth in paragraph (3), Section 5 of Article VI of the Constitution. The number
of Members apportioned to the province out of which such new province was created or
where the city, whose population has so increased, is geographically located shall be
correspondingly adjusted by the Commission on Elections but such adjustment shall not be
made within one hundred, and twenty days before the election."
G.R. No. 118627 07 March 1995
Ponente: Puno, J.

FACTS:
Juanito Mariano, a resident of Makati, along with residents of Taguig suing as taxpayers, assail
Sections 2, 51 and 52 of R.A. No. 7854 (“An Act Converting the Municipality of Makati into a Highly
Urbanized City to be known as the City of Makati”). Another petition which contends the
unconstitutionality of R.A. No. 7854 was also filed by John H. Osmena as a senator, taxpayer and
concerned citizen.
ISSUES:
1. Whether Section 2 of R.A. No. 7854 delineated the land areas of the proposed city of Makati
violating sections 7 and 450 of the Local Government Code on specifying metes and bounds
with technical descriptions
2. Whether Section 51, Article X of R.A. No. 7854 collides with Section 8, Article X and Section
7, Article VI of the Constitution stressing that they new city’s acquisition of a new corporate
existence will allow the incumbent mayor to extend his term to more than two executive terms
as allowed by the Constitution
3. Whether the addition of another legislative district in Makati is unconstitutional as the
reapportionment cannot be made by a special law
HELD/RULING:
1. Section 2 of R.A. No. 7854 states that:
Sec. 2. The City of Makati. — The Municipality of Makati shall be converted into a highly
urbanized city to be known as the City of Makati, hereinafter referred to as the City, which
shall comprise the present territory of the Municipality of Makati in Metropolitan
Manila Area over which it has jurisdiction bounded on the northeast by Pasig River and
beyond by the City of Mandaluyong and the Municipality of Pasig; on the southeast by the
municipalities of Pateros and Taguig; on the southwest by the City of Pasay and the
Municipality of Taguig; and, on the northwest, by the City of Manila.

Emphasis has been provided in the provision under dispute. Said delineation did not change even by an
inch the land area previously covered by Makati as a municipality. It must be noted that the
requirement of metes and bounds was meant merely as a tool in the establishment of LGUs. It is not an
end in itself.
Furthermore, at the time of consideration or R.A. No. 7854, the territorial dispute between the
municipalities of Makati and Taguig over Fort Bonifacio was under court litigation. Out of becoming a
sense of respect to co-equal department of government, legislators felt that the dispute should be left to
the courts to decide.
1. Section 51 of R.A. No. 7854 provides that:
Sec. 51. Officials of the City of Makati. — The represent elective officials of the
Municipality of Makati shall continue as the officials of the City of Makati and shall
exercise their powers and functions until such time that a new election is held and the duly
elected officials shall have already qualified and assume their offices: Provided, The new
city will acquire a new corporate existence. The appointive officials and employees of the
 City shall likewise continues exercising their functions and duties and they shall be
automatically absorbed by the city government of the City of Makati.

Section 8, Article X and section 7, Article VI of the Constitution provide the following:
Sec. 8. The term of office of elective local officials, except barangay officials, which shall
be determined by law, shall be three years and no such official shall serve for more than
three consecutive terms. Voluntary renunciation of the office for any length of time shall
not be considered as an interruption in the continuity of his service for the full term for
which he was elected.

xxx xxx xxx

Sec. 7. The Members of the House of Representatives shall be elected for a term of three
years which shall begin, unless otherwise provided by law, at noon on the thirtieth day of
June next following their election.

No Member of the House of Representatives 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 challenge on the controversy cannot be entertained as the premise on the issue is on the
occurrence of many contingent events. Considering that these events may or may not happen,
petitioners merely pose a hypothetical issue which has yet to ripen to an actual case or controversy.
Moreover, only Mariano among the petitioners is a resident of Taguig and are not the proper parties to
raise this abstract issue.
1. Section 5(1), Article VI of the Constitution clearly provides that the Congress may be
comprised of not more than two hundred fifty members, unless otherwise provided by law. As
thus worded, the Constitution did not preclude Congress from increasing its membership by
passing a law, other than a general reapportionment of the law.
Facts: Juanito Mariano, resident of Makati filed a petition for prohibition and declaratory relief,
assailing unconstitutional sections in RA 7854 (“An Act Converting the Municipality of Makati Into a
Highly Urbanized City to be known as the City of Makati”). Petitioners contend that (1) Section 2
Article I of RA 7854 failed to delineate the land areas of Makati by metes and bounds with technical
descriptions, (2) Section 51 Article X of RA 7854 collides with Section 8 Article X and Section 7
Article VI of the Constitution, that the new corporate existence of the new city will restart the term of
the present municipal elective making it favourable to incumbent Mayor Jejomar Binay, and (3)
Section 52 Article X of RA 7854 for adding a legislative district is unconstitutional and cannot be made
by special law.
Issue: Whether or not RA 7854 is unconstitutional.
Decision: Petition dismissed for lack of merit. The said delineation did not change even by an inch the
land area previously covered by Makati as a municipality. Section 2 did not add, subtract, divide, or
multiply the established land area of Makati. In language that cannot be any clearer, section 2 stated
that, the city’s land area “shall comprise the present territory of the municipality.”
The Court cannot entertain the challenge to the constitutionality of Section 51. The requirements before
a litigant can challenge the constitutionality of a law are well delineated. They are: 1) there must be an
actual case or controversy; (2) the question of constitutionality must be raised by the proper party; (3)
the constitutional question must be raised at the earliest possible opportunity; and (4) the decision on
the constitutional question must be necessary to the determination of the case itself. Considering that
these contingencies may or may not happen, petitioners merely pose a hypothetical issue which has yet
to ripen to an actual case or controversy.
In Tobias vs Abalos, Court ruled that reapportionment of legislative districts may be made through a
special law, such as in the charter of a new city.
G.R. No. 118627; 242 SCRA 213, March 7, 1995 (Constitutional Law – Requirements in challenging
the constitutionality of the law)
FACTS: Petitioners suing as tax payers, assail a provision (Sec 51) of RA No. 7859 (An Act
Converting the Municipality of Makati Into a Highly Urbanized City to be known as the City of
Makati) on the ground that the same attempts to alter or restart the “3-consecutive term” limit for local
elective officials disregarding the terms previously served by them, which collides with the
Constitution (Sec 8, Art X & Sec 7, Art VI).
ISSUE: Whether or not challenge to the constitutionality of questioned law is with merit.
HELD: No. The requirements before a litigant can challenge the constitutionality of a law are well-
delineated. They are: (1) there must be an actual case or controversy; (2) the question of
constitutionality must be raised by the proper party; (3) the constitutional question must be raised at the
earliest possible opportunity; and (4) the decision on the constitutional question must be necessary to
the determination of the case itself.

Mariano, Jr. vs. COMELEC G.R. No. 118577, March 7, 1995

Sunday, January 25, 2009 Posted by Coffeeholic Writes
Labels: Case Digests, Political Law

Facts: Two petitions are filed assailing certain provisions of RA 7854, An Act
Converting The Municipality of Makati Into a Highly Urbanized City to be known as
the City of Makati, as unconstitutional.

Section 52 of RA 7854 is said to be unconstitutional for it increased the legislative

district of Makati only by special law in violation of Art. VI, Sec. 5(4) requiring a
general reapportionment law to be passed by Congress within 3 years following
the return of every census. Also, the addition of another legislative district in
Makati is not in accord with Sec. 5(3), Art. VI of the Constitution for as of the
1990 census, the population of Makati stands at only 450,000.

Issue: Whether or not the addition of another legislative district in Makati is

unconstitutional

Held: Reapportionment of legislative districts may be made through a special

law, such as in the charter of a new city. The Constitution clearly provides that
Congress shall be composed of not more than 250 members, unless otherwise
fixed by law. As thus worded, the Constitution did not preclude Congress from
increasing its membership by passing a law, other than a general
reapportionment law. This is exactly what was done by Congress in enacting RA
7854 and providing for an increase in Makati’s legislative district. Moreover, to
hold that reapportionment can only be made through a general apportionment
law, with a review of all the legislative districts allotted to each local government
unit nationwide, would create an inequitable situation where a new city or
province created by Congress will be denied legislative representation for an
indeterminate period of time. The intolerable situations will deprive the people of
a new city or province a particle of their sovereignty.

Petitioner cannot insist that the addition of another legislative district in Makati is
not in accord with Sec. 5(3), Art. VI of the Constitution for as of the 1990 census,
the population of Makati stands at only 450,000. Said section provides that a city
with a population of at least 250,000 shall have at least one representative. Even
granting that the population of Makati as of the 1990 census stood at 450,000, its
legislative district may still be increased since it has met the minimum population
requirement of 250,000.

[G.R. No. 125955. June 19, 1997.]

WILMER GREGO, Petitioner, v. COMMISSION ON ELECTIONS and HUMBERTO BASCO,

Respondents.

DECISION

ROMERO, J.:

The instant special civil action for certiorari and prohibition impugns the resolution of the Commission
on Elections (COMELEC) en banc in SPA No. 95-212 dated July 31, 1996, dismissing petitioner’s
motion for reconsideration of an earlier resolution rendered by the COMELEC’s First Division on
October 6, 1995, which also dismissed the petition for disqualification 1 filed by petitioner Wilmer
Grego against private respondent Humberto Basco.

The essential and undisputed factual antecedents of the case are as follows: chanrob1es virtual 1aw library

On October 31, 1981, Basco was removed from his position as Deputy Sheriff by no less than this
Court upon a finding of serious misconduct in an administrative complaint lodged by a certain Nena
Tordesillas. The Court held: jgc:chanrobles.com.ph

"WHEREFORE, FINDING THE RESPONDENT DEPUTY SHERIFF HUMBERTO BASCO OF THE

CITY COURT OF MANILA GUILTY OF SERIOUS MISCONDUCT IN OFFICE FOR THE
SECOND TIME, HE IS HEREBY DISMISSED FROM THE SERVICE WITH FORFEITURE OF
ALL RETIREMENT BENEFITS AND WITH PREJUDICE TO REINSTATEMENT TO ANY
POSITION IN THE NATIONAL OR LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND
INSTRUMENTALITIES, OR GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS.
x x x" 2

Subsequently, Basco ran as a candidate for Councilor in the Second District of the City of Manila
during the January 18, 1988, local elections. He won and, accordingly, assumed office.

After his term, Basco sought re-election in the May 11, 1992 synchronized national elections. Again, he
succeeded in his bid and he was elected as one of the six (6) City Councilors. However, his victory this
time did not remain unchallenged. In the midst of his successful re-election, he found himself besieged
by lawsuits of his opponents in the polls who wanted to dislodge him from his position.

One such case was a petition for quo warranto 3 filed before the COMELEC by Cenon Ronquillo,
another candidate for councilor in the same district, who alleged Basco’s ineligibility to be elected
councilor on the basis of the Tordesillas ruling. At about the same time, two more cases were also
commenced by Honorio Lopez II in the Office of the Ombudsman and in the Department of Interior
and Local Government. 4 All these challenges were, however, dismissed, thus, paving the way for
Basco’s continued stay in office.

Despite the odds previously encountered, Basco remained undaunted and ran again for councilor in the
May 8, 1995, local elections seeking a third and final term. Once again, he beat the odds by emerging
sixth in a battle for six councilor seats. As in the past, however, his right to office was again contested.
On May 13, 1995, petitioner Grego, claiming to be a registered voter of Precinct No. 966, District II,
City of Manila, filed with the COMELEC a petition for disqualification, praying for Basco’s
disqualification, for the suspension of his proclamation, and for the declaration of Romualdo S.
Maranan as the sixth duly elected Councilor of Manila’s Second District.

On the same day, the Chairman of the Manila City Board of Canvassers (BOC) was duly furnished with
a copy of the petition. The other members of the BOC learned about this petition only two days later.

The COMELEC conducted a hearing of the case on May 14, 1995, where it ordered the parties to
submit simultaneously their respective memoranda.

Before the parties could comply with this directive, however, the Manila City BOC proclaimed Basco
on May 17, 1995, as a duly elected councilor for the Second District of Manila, placing sixth among
several candidates who vied for the seats. 5 Basco immediately took his oath of office before the
Honorable Ma. Ruby Bithao-Camarista, Presiding Judge, Metropolitan Trial Court, Branch I, Manila.

In view of such proclamation, petitioner lost no time in filing an Urgent Motion seeking to annul what
he considered to be an illegal and hasty proclamation made on May 17, 1995, by the Manila City BOC.
He reiterated Basco’s disqualification and prayed anew that candidate Romualdo S. Maranan be
declared the winner. As expected, Basco countered said motion by filing his Urgent Opposition to:
Urgent Motion (with Reservation to Submit Answer and/or Motion to Dismiss Against Instant Petition
for Disqualification with Temporary Restraining Order).

On June 5, 1995, Basco filed his Motion to Dismiss Serving As Answer pursuant to the reservation he
made earlier, summarizing his contentions and praying as follows: jgc:chanrobles.com.ph

"Respondent thus now submits that the petitioner is not entitled to relief for the following reasons: chanrob1es virtual 1aw library

1. The respondent cannot be disqualified on the ground of Section 40 paragraph b of the Local
Government Code because the Tordesillas decision is barred by laches, prescription, res judicata, lis
pendens, bar by prior judgment, law of the case and stare decisis;

2. Section 4[0] par. B of the Local Government Code may not be validly applied to persons who were
dismissed prior to its effectivity. To do so would make it ex post facto, bill of attainder, and retroactive
legislation which impairs vested rights. It is also a class legislation and unconstitutional on the account.

3. Respondent had already been proclaimed. And the petition being a preproclamation contest under the
Marquez v. Comelec Ruling, supra, it should be dismissed by virtue of said pronouncement.

4. Respondent’s three-time election as candidate for councilor constitutes implied pardon by the people
of previous misconduct (Aguinaldo v. Comelec G.R. 105128; Rice v. State 161 SCRA 401;
Montgomery v. Newell 40 SW 2d 4181; People v Bashaw 130 P. 2nd 237, etc.).

5. As petition to nullify certificate of candidacy, the instant case has prescribed; it was premature as an
election protest and it was not brought by a proper party in interest as such protest.: chanrob1es virtual 1aw library

PRAYER

WHEREFORE it is respectfully prayed that the instant case be dismissed on instant motion to dismiss
the prayer for restraining order denied (sic). If this Honorable Office is not minded to dismiss, it is
respectfully prayed that instant motion be considered as respondent’s answer. All other reliefs and
remedies just and proper in the premises are likewise hereby prayed for." cralaw virtua1aw library

After the parties’ respective memoranda had been filed, the COMELEC’s First Division resolved to
dismiss the petition for disqualification on October 6, 1995, ruling that "the administrative penalty
imposed by the Supreme Court on respondent Basco on October 31, 1981 was wiped away and
condoned by the electorate which elected him" and that on account of Basco’s proclamation on May
17, 1995, as the sixth duly elected councilor of the Second District of Manila, "the petition would no
longer be viable." 6

Petitioner’s motion for reconsideration of said resolution was later denied by the COMELEC en banc
in its assailed resolution promulgated on July 31, 1996. 7 Hence, this petition.

Petitioner argues that Basco should be disqualified from running for any elective position since he had
been "removed from office as a result of an administrative case" pursuant to Section 40 (b) of Republic
Act No. 7160, otherwise known as the Local Government Code (the Code), which took effect on
January 1, 1992. 8

Petitioner wants the Court to likewise resolve the following issues, namely: chanrob1es virtual 1aw library

1. Whether or not Section 40 (b) of Republic Act No. 7160 applies retroactively those removed from
office before it took effect on January 1, 1992;

2. Whether or not private respondent’s election in 1988, 1992 and in 1995 as City Councilor of Manila
wiped away and condoned the administrative penalty against him;

3. Whether or not private respondent’s proclamation as sixth winning candidate on May 17, 1995,
while the disqualification case was still pending consideration by COMELEC, is void ab initio; and
4. Whether or not Romualdo S. Maranan, who placed seventh among the candidates for City Councilor
of Manila, may be declared a winner pursuant to Section 6 of Republic Act No. 6646.

While we do not necessarily agree with the conclusions and reasons of the COMELEC in the assailed
resolution, nonetheless, we find no grave abuse of discretion on its part in dismissing the petition for
disqualification. The instant petition must, therefore, fail.

We shall discuss the issues raised by petitioner in seriatim.

I. Does Section 40 (b) of Republic Act No. 7160 apply retroactively to those removed from office
before it took effect on January 1, 1992?

Section 40 (b) of the Local Government Code under which petitioner anchors Basco’s alleged
disqualification to run as City Councilor states: jgc:chanrobl es.com.ph

"SEC. 40. Disqualifications. — The following persons are disqualified from running for any elective
local position: chanrob1es virtual 1aw library

x x x

(b) Those removed from office as a result of an administrative case;

x x x"

In this regard, petitioner submits that although the Code took effect only on January 1, 1992, Section 40
(b) must nonetheless be given retroactive effect and applied to Basco’s dismissal from office which
took place in 1981. It is stressed that 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, petitioner impresses upon the Court that 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. 9 To him, this interpretation is made more evident by the
manner in which the provisions of Section 40 are couched. Since the past tense is used in enumerating
the grounds for disqualification, petitioner strongly contends that the provision must have also referred
to removal from office occurring prior to the effectivity of the Code. 10

We do not, however, subscribe to petitioner’s view. Our refusal to give retroactive application to the
provision of Section 40 (b) is already a settled issue and there exist no compelling reasons for us to
depart therefrom. Thus, in Aguinaldo v. COMELEC, 11 reiterated in the more recent cases of Reyes v.
COMELEC 12 and Salalima v. Guingona, Jr., 13 we ruled, thus: jgc:chanrobles.com.ph

"The COMELEC applied Section 40 (b) of the Local Government Code (Republic Act 7160) which
provides: chanrob1es virtual 1aw library

‘Sec. 40. The following persons are disqualified from running for any elective local positions: chanrob1es virtual 1aw library

x x x
(b) Those removed from office as a result of an administrative case.

Republic Act 7160 took effect only on January 1, 1992.

The rule is: chanrob1es virtual 1aw library

x x x

‘. . . Well-settled is the principle that 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. . . .’ (Jones v. Summers, 105 Cal. App. 51, 286 Pac. 1093; U.S. v. Whyel 28
(2d) 30; Espiritu v. Cipriano, 55 SCRA 533 [1974], cited in Nilo v. Court of Appeals, 128 SCRA 519
[1974]. See also Puzon v. Abellera, 169 SCRA 789 [1989]; Al-Amanah Islamic Investment Bank of the
Philippines v. Civil Service Commission, Et Al., G.R. No. 100599, April 8, 1992).

There is no provision in the statute which would clearly indicate that the same operates retroactively.

It, therefore, follows that [Section] 40 (b) of the Local Government Code is not applicable to the
present case." (Emphasis supplied).

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 should not deter us from applying the law prospectively.
The basic tenet in legal hermeneutics that laws operate only prospectively and not retroactively
provides the qualification sought by petitioner. 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. 14

II. Did 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 maintains the negative. He quotes the earlier ruling of the Court in Frivaldo v. COMELEC 15
to the effect that a candidate’s disqualification cannot be erased by the electorate alone through the
instrumentality of the ballot. Thus: jgc:chanrobles.com.ph

". . . (T)he qualifications prescribed for elective office cannot be erased by the electorate alone. The
will of the people as expressed through the ballot cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in this case, that the candidate was qualified. . . ." cral aw virtua1aw library

At first glance, there seems to be a prima facie semblance of merit to petitioner’s argument. However,
the issue of whether or not Basco’s triple election to office cured his alleged ineligibility is actually
beside the point because the argument proceeds on the assumption that he was in the first place
disqualified when he ran in the three previous elections. This assumption, of course, is untenable
considering that Basco was NOT subject to any disqualification at all under Section 40 (b) of the Local
Government Code which, as we said earlier, applies only to those removed from office on or after
January 1, 1992. In view of the irrelevance of the issue posed by petitioner, there is no more reason for
the Court to still dwell on the matter at length. chanrobl esvirtuallawlibrary

Anent Basco’s alleged circumvention of the prohibition in Tordesillas against reinstatement to any
position in the national or local government, including its agencies and instrumentalities, as well as
government-owned or controlled corporations, we are of the view that petitioner’s contention is
baseless. Neither does petitioner’s argument that the term "any position" is broad enough to cover
without distinction both appointive and local positions merit any consideration.

Contrary to petitioner’s assertion, the Tordesillas decision did not bar Basco from running for any
elective position. As can be gleaned from the decretal portion of the said decision, the Court couched
the prohibition in this wise: jgc:chanrobles.com.ph

". . . AND WITH PREJUDICE TO REINSTATEMENT TO ANY POSITION IN THE NATIONAL OR

LOCAL GOVERNMENT, INCLUDING ITS AGENCIES AND INSTRUMENTALITIES, OR
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS." cralaw virtua1aw library

In this regard, particular attention is directed to the use of the term "reinstatement." Under the former
Civil Service Decree, 16 the law applicable at the time Basco, a public officer, was administratively
dismissed from office, the term "reinstatement" had a technical meaning, referring only to an
appointive position. Thus: jgc:chanrobles.com.ph

"ARTICLE VIII. PERSONNEL POLICIES AND STANDARDS.

SEC. 24. Personnel Actions. —

x x x

(d) Reinstatement. — Any person who has been permanently APPOINTED to a position in the career
service and who has, through no delinquency or misconduct, been separated therefrom, may be
reinstated to a position in the same level for which he is qualified.

x x x"

(Emphasis supplied).

The Rules on Personnel Actions and Policies issued by the Civil Service Commission on November 10,
1975, 17 provides a clearer definition. It reads: jgc:chanrobl es.com.ph

"RULE VI. OTHER PERSONNEL ACTIONS.

SEC. 7. Reinstatement is the REAPPOINTMENT of a person who was previously separated from the
service through no delinquency or misconduct on his part from a position in the career service to which
he was permanently appointed, to a position for which he is qualified." (Emphasis supplied).

In light of these definitions, there is, therefore, no basis for holding that Basco is likewise barred from
running for an elective position inasmuch as what is contemplated by the prohibition in Tordesillas is
reinstatement to an appointive position.
III. Is private respondent’s proclamation as sixth winning candidate on May 17, 1995, while the
disqualification case was still pending consideration by COMELEC, void ab initio?

To support its position, petitioner argues that Basco violated the provisions of Section 20, paragraph (i)
of Republic Act No. 7166, Section 6 of Republic Act No. 6646, as well as our ruling in the cases of
Duremdes v. COMELEC, 18 Benito v. COMELEC 19 and Aguam v. COMELEC . 20

We are not convinced. The provisions and cases cited are all misplaced and quoted out of context. For
the sake of clarity, let us tackle each one by one.

Section 20, paragraph (i) of Rep. Act 7166 reads: jgc:chanrobl es.com.ph

"SEC. 20. Procedure in Disposition of Contested Election Returns. —

x x x

(i) The board of canvassers shall not proclaim any candidate as winner unless authorized by the
Commission after the latter has ruled on the objections brought to it on appeal by the losing party. Any
proclamation made in violation hereof shall be void ab initio, unless the contested returns will not
adversely affect the results of the election.

x x x"

The inapplicability of the abovementioned provision to the present case is very much patent on its face
considering that the same refers only to a void proclamation in relation to contested returns and NOT to
contested qualifications of a candidate.

Next, petitioner cites Section 6 of Rep. Act 6646 which states: jgc:chanrobles.com.ph

"SEC. 6. Effect of Disqualification Case. — Any candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes cast for him shall not be counted. If for any reason,
a candidate is not declared by final judgment before an election to be disqualified and he is voted for
and receives the winning number of votes in such election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order the suspension of the proclamation of such
candidate whenever the evidence of his guilt is strong." (Emphasis supplied).

This provision, however, does not support petitioner’s contention that the COMELEC, or more
properly speaking, the Manila City BOC, should have suspended the proclamation. The use of the word
"may" indicates that the suspension of a proclamation is merely directory and permissive in nature and
operates to confer discretion. 21 What is merely made mandatory, according to the provision itself, is
the continuation of the trial and hearing of the action, inquiry or protest. Thus, in view of this discretion
granted to the COMELEC, the question of whether or not evidence of guilt is so strong as to warrant
suspension of proclamation must be left for its own determination and the Court cannot interfere
therewith and substitute its own judgment unless such discretion has been exercised whimsically and
capriciously. 22 The COMELEC, as an administrative agency and a specialized constitutional body
charged with the enforcement and administration of all laws and regulations relative to the conduct of
an election, plebiscite, initiative, referendum, and recall, 23 has more than enough expertise in its field
that its findings or conclusions are generally respected and even given finality. 24 The COMELEC has
not found any ground to suspend the proclamation and the records likewise fail to show any so as to
warrant a different conclusion from this Court. Hence, there is no ample justification to hold that the
COMELEC gravely abused its discretion.

It is to be noted that Section 5, Rule 25 of the COMELEC Rules of Procedure 25 states that: jgc:chanrobl es.com.ph

"SEC. 5. Effect of petition if unresolved before completion of canvass. — . . . (H)is proclamation shall
be suspended notwithstanding the fact that he received the winning number of votes in such election."
library
cral aw virtua1aw

However, being merely an implementing rule, the same must not override, but instead remain
consistent with and in harmony with the law it seeks to apply and implement. Administrative rules and
regulations are intended to carry out, neither to supplant nor to modify, the law. 26 Thus, in Miners
Association of the Philippines Inc. v. Factoran, Jr., 27 the Court ruled that: jgc:chanrobl es.com.ph

"We reiterate the principle that the power of administrative officials to promulgate rules and regulations
in the implementation of a statute is necessarily limited only to carrying into effect what is provided in
the legislative enactment. The principle was enunciated as early as 1908 in the case of United States v.
Barrias. The scope of the exercise of such rule-making power was clearly expressed in the case of
United States v. Tupasi Molina, decided in 1914, thus: ‘Of course, the regulations adopted under
legislative authority by a particular department must be in harmony with the provisions of the law, and
for the sole purpose of carrying into effect its general provisions. By such regulations, of course, the
law itself can not be extended. So long, however, as the regulations relate solely to carrying into effect
the provision of the law, they are valid.’

Recently, the case of People v. Maceren gave a brief delineation of the scope of said power of
administrative officials: chanrob1es virtual 1aw library

Administrative regulations adopted under legislative authority by a particular department must be in

harmony with the provisions of the law, and should be for the sole purpose of carrying into effect its
general provisions. By such regulations, of course, the law itself cannot be extended (U.S. v. Tupasi
Molina, supra). An administrative agency cannot amend an act of Congress (Santos v. Estenzo, 109
Phil. 419, 422; Teoxon v. Members of the Board of Administrators, L-25619, June 30, 1970, 33 SCRA
585; Manuel v. General Auditing Office, L-28952, December 29, 1971, 42 SCRA 660; Deluao v.
Casteel, L-21906, August 29, 1969, 29 SCRA 350).

The rule-making power must be confined to details for regulating the mode or proceeding to carry into
effect the law as it has been enacted. The power cannot be extended to amending or expanding the
statutory requirements or to embrace matters not covered by the statute. Rules that subvert the statute
cannot be sanctioned (University of Santo Tomas v. Board of Tax Appeals, 93 Phil. 376, 382, citing 12
C.J. 845-46. As to invalid regulations, see Collector of Internal Revenue v. Villaflor, 69 Phil. 319; Wise
& Co. v. Meer, 78 Phil. 655, 676; Del Mar v. Phil. Veterans Administration, L-27299, June 27, 1973, 51
SCRA 340, 349).

x x x

. . . The rule or regulations should be within the scope of the statutory authority granted by the
legislature to the administrative agency (Davis, Administrative Law, p. 194, 197, cited in Victorias
Milling Co., Inc. v. Social Security Commission, 114 Phil. 555, 558).

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 law (People v. Lim, 108 Phil. 1091)." cralaw virtua1aw library

Since Section 6 of Rep. Act 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.

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 concerned to count the votes based on such returns and declare the result. This
has been the rule as early as in the case of Dizon v. Provincial Board of Canvassers of Laguna 28 where
we clarified the nature of the functions of the Board of Canvassers, viz.: jgc:chanrobles.com.ph

"The simple purpose and duty of the canvassing board is to ascertain and declare the apparent result of
the voting. All other questions are to be tried before the court or other tribunal for contesting elections
or in quo warranto proceedings." (9 R.C.L., p. 1110)

To the same effect is the following quotation: jgc:chanrobl es.com.ph

". . . Where there is no question as to the genuineness of the returns or that all the returns are before
them, the powers and duties of canvassers are limited to the mechanical or mathematical function of
ascertaining and declaring the apparent result of the election by adding or compiling the votes cast for
each candidate as shown on the face of the returns before them, and then declaring or certifying the
result so ascertained. (20 C.J., 200-201)" [Emphasis supplied]

Finally, the cases of Duremdes, Benito and Aguam, supra, cited by petitioner are all irrelevant and
inapplicable to the factual circumstances at bar and serve no other purpose than to muddle the real
issue. These three cases do not in any manner refer to void proclamations resulting from the mere
pendency of a disqualification case.

In Duremdes, the proclamation was deemed void ab initio because the same was made contrary to the
provisions of the Omnibus Election Code regarding the suspension of proclamation in cases of
contested election returns.

In Benito, the proclamation of petitioner Benito was rendered ineffective due to the Board of
Canvassers’ violation of its ministerial duty to proclaim the candidate receiving the highest number of
votes and pave the way to succession in office. In said case, the candidate receiving the highest number
of votes for the mayoralty position died but the Board of Canvassers, instead of proclaiming the
deceased candidate winner, declared Benito, a mere second-placer, the mayor.

Lastly, in Aguam, the nullification of the proclamation proceeded from the fact that it was based only
on advanced copies of election returns which, under the law then prevailing, could not have been a
proper and legal basis for proclamation.
With no precedent clearly in point, petitioner’s arguments must, therefore, be rejected.

IV. May Romualdo S. Maranan, a seventh placer, be legally declared a winning candidate?

Obviously, he may not be declared a winner. In the first place, Basco was a duly qualified candidate
pursuant to our disquisition above. Furthermore, he clearly received the winning number of votes
which put him in sixth place. Thus, petitioner’s emphatic reference to Labo v. COMELEC, 29 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, unsupported as it is by any convincing facts of record to show notoriety of
his alleged disqualification. 30

In sum, we see the dismissal of the petition for disqualification as not having been attended by grave
abuse of discretion. There is then no more legal impediment for private respondent’s continuance in
office as City Councilor for the Second District of Manila.

WHEREFORE, the instant petition for certiorari and prohibition is hereby DISMISSED for lack of
merit. The assailed resolution of respondent Commission on Elections (COMELEC) in SPA 95-212
dated July 31, 1996 is hereby AFFIRMED. Costs against petitioner.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Melo, Puno, Vitug, Mendoza, Hermosisima, Jr., Panganiban and
Torres, Jr., JJ., concur.

Padilla, Bellosillo, Kapunan and Francisco, JJ., are on leave.

WILMER GREGO, petitioner, VS. COMMISSION ON ELECTIONS AND HUMBERTO

BASCO, respondents (DIGEST)
G.R. No. 125955, June 19, 1997

FACTS:
In 1981, Basco was removed from his position as Deputy Sheriff for serious misconduct. Subsequently,
he ran as a candidate for councilor in the Second District of the City of Manila during the 1988, local
elections. He won and assumed office. After his term, Basco sought re-election. Again, he won.
However, he found himself facing lawsuits filed by his opponents who wanted to dislodge him from his
position.
Petitioner argues that Basco should be disqualified from running for any elective position since he had
been “removed from office as a result of an administrative case” pursuant to Section 40 (b) of Republic
Act No. 7160.
For a third time, Basco was elected councilor in 1995. Expectedly, his right to office was again
contested. In 1995, petitioner Grego filed with the COMELEC a petition for disqualification. The
COMELEC conducted a hearing and ordered the parties to submit their respective memoranda.
However, the Manila City BOC proclaimed Basco in May 1995, as a duly elected councilor for the
Second District of Manila, placing sixth among several candidates who vied for the seats. Basco
immediately took his oath of office.
COMELEC resolved to dismiss the petition for disqualification. Petitioner’s motion for reconsideration
of said resolution was later denied by the COMELEC,, hence, this petition.
ISSUE:
Whether or not COMELEC acted in with grave abuse of discretion in dismissing the petition for
disqualification.
RULING:
No. The Supreme Court found no grave abuse of discretion on the part of COMELEC in dismissing the
petition for disqualification, however, the Court noted that they do not agree with its conclusions and
reasons in the assailed resolution.
The Court reiterated that being merely an implementing rule, Sec 25 of the COMELEC Rules of
Procedure must not override, but instead remain consistent with and in harmony with the law it seeks to
apply and implement. Administrative rules and regulations are intended to carry out, neither to supplant
nor to modify, the law. The law itself cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. An administrative agency cannot amend
an act of Congress.
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 law. Since Section 6 of Rep. Act 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.
Still, the Court DISMISSED the petition for lack of merit.

GREGO vs. COMELEC Case Digest

GREGO vs. COMELEC
274 SCRA 481, 1997

Facts: On October 31, 1981, before the effectivity of the Local Government Code of 1991,
private respondent Humberto Basco was removed from his position as Deputy Sheriff by no
less than the Supreme Court upon a finding of serious misconduct in an administrative
complaint.

Subsequently, Basco ran as a candidate for councilor in the Second District of the City of
Manila in the January 18, 1988 local elections. He won and assumed office. He was
successfully re-elected in 1992 and 1995.

It was his latest re-election which is the subject of the present petition on the ground that he is
disqualified under Section 40(b) of the LGC of 1991. Under said section, those removed from
office as a result of an administrative case are disqualified to run for any elective local
position.

Issue: Does Section 40(b) of the Local Government Code of 1991 apply retroactively to those
removed from office before it took effect on January 1, 1992?

Held: The Supreme Court held that its refusal to give retroactive application to the provision
of Section 40(b) is already a settled issue and there exist no compelling reason for the Court
to depart therefrom. 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 should not deter the
Court from applying the law prospectively. 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.

GREGO V COMELEC
FACTS
Basco was removed from his position as Deputy Sheriff by the SC upon finding of serious misconduct,
for the second time, in an administrative complaint lodged by Nena Tordesillas. His retirement benefits
were forfeited and the decision of the court included this statement: “with prejudice to reinstatement to
any position in the national or local government, including its agencies and instrumentalities or
GOCCs. In 1988, he ran as a candidate for Councilor in Manila and won.
He sought re-election in 1992 and won again. However, his victory was contested. Another candidate
alleged his ineligibility to be elected on the basis of the Tordesillas ruling. This was dismissed.
Basco, for the third time, ran again for councilor in 1995. His right to office was contested by Grego
who filed a petition for disqualification against Basco and prayed for the suspension of Basco’s
proclamation and Maranan’s declaration as the city’s 6th duly elected councilor. The COMELEC
conducted a hearing of the case.
Before the parties were able to submit their respective memoranda, the Board of Canvassers
proclaimed Basco as a duly elected councilor for the Second District of Manila (6th place.) Due to the
said proclamation, Grego filed an urgent motion seeking to annul what he considered to be an illegal
and hasty proclamation. COMELEC’s first division dismissed the petion for disqualification ruling that
the administrative penalty imposed by the SC on Basco was wiped away and condoned by the
electorate which elected him. COMELEC en banc dismissed Grego’s MR.
ISSUE
Whether the Tordesilla’s decision barred Basco from running for any elective position.
HELD
NO. Under the former Civil Service Decree, the law applicable at the time Basco, a public officer, was
administratively dismissed from office, the term “reinstatement” had a technical meaning, referring
only to an appointive position. Reinstatement is the reappointment of a person who was previously
separated from the service through no delinquency or misconduct on his part from a position in the
career service to which he was permanently appointed, to a position for which he is qualified.
In light of this definition, there is no basis for holding that Basco is likewise barred from running for an
elective position inasmuch as what is contemplated by the prohibition in Tordesillas is reinstatement to
an appointive position.
Grego vs COMELEC [274 SCRA 481]
Posted by Pius Morados on November 6, 2011
(Municipal Government, Disqualification, Non-Retroactive effect)
Facts: Sec 40 (b) of Republic Act 7160 (the Local Government Code) which took effect on January 1,
1992, disqualifies a person for any elective position on the ground that “had been removed from office
as a result of an administrative case”.
On October 31, 1981, Basco was removed from his position as Deputy Sheriff upon a finding of
serious misconduct in an administrative complaint.
He ran as a candidate for Councilor, won and assumed office for three terms during the Elections of
January 18, 1988; May 11, 1992 and May 8, 1995. As in the past, respondent’s right to office was
contested.
On May 13, 1995, petitioner, seeks for the respondent’s disqualification, pursuant to the above
provision, contending that 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.
Respondent contends that the petitioner is not entitled to said relief because Section 40 par. b of the
LGC may not be validly applied to persons who were dismissed prior to its effectivity. To do so would
make it ex post facto, bill of attainder, and retroactive legislation which impairs vested rights
Issue: WON Section 40 (b) of Republic Act No. 7160 applies retroactively to those removed from
office before it took effect on January 1, 1992.
Held: No. It is a settled issue that Section 40 (b) of Republic Act No. 7160 does not have any
retroactive effect. 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.

G.R. No. 104732 June 22, 1993

ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO, DOMINGO A.
JADLOC, CARLITO T. CRUZ and MANUEL P. REYES, Petitioner, vs. HON. FRANKLIN M.
DRILON, Executive Secretary, and RICHARD J. GORDON, Respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel Famularcano, Jr. and Virgilio E. Acierto for
petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged in this original petition with prayer for prohibition, preliminary injunction and temporary
restraining order "to prevent useless and unnecessary expenditures of public funds by way of salaries
and other operational expenses attached to the office . . . ." 2Paragraph (d) reads -
(d) Chairman administrator - The President shall appoint a professional manager as
 administrator of the Subic Authority with a compensation to be determined by the Board
subject to the approval of the Secretary of Budget, who shall be the ex oficio chairman of
the Board and who shall serve as the chief executive officer of the Subic Authority:
Provided, however, That for the first year of its operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority (emphasis supplied).

Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that the proviso in par. (d) of Sec. 13 herein-above quoted in italics infringes on
the following constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be eligible for appointment or designation in
any capacity to any public officer or position during his tenure," 3because the City Mayor of Olongapo
City is an elective official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the
Constitution, which provides that "[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not otherwise provided for by law, and those whom he may be
authorized by law to appoint", 4since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts; 5and, (c) Sec. 261, par. (g), of the Omnibus
Election Code, which says:
Sec. 261. Prohibited Acts. - The following shall be guilty of an election offense: . . . (g)
Appointment of new employees, creation of new position, promotion, or giving salary
increases. - During the period of forty-five days before a regular election and thirty days
before a special election, (1) any head, official or appointing officer of a government office,
agency or instrumentality, whether national or local, including government-owned or
controlled corporations, who appoints or hires any new employee, whether provisional,
temporary or casual, or creates and fills any new position, except upon prior authority of
the Commission. The Commission shall not grant the authority sought unless it is satisfied
that the position to be filled is essential to the proper functioning of the office or agency
concerned, and that the position shall not be filled in a manner that may influence the
election. As an exception to the foregoing provisions, a new employee may be appointed in
case of urgent need: Provided, however, That notice of the appointment shall be given to
the Commission within three days from the date of the appointment. Any appointment or
hiring in violation of this provision shall be null and void. (2) Any government official who
promotes, or gives any increase of salary or remuneration or privilege to any government
official or employee, including those in government-owned or controlled corporations . . . .

for the reason that the appointment of respondent Gordon to the subject posts made by respondent
Executive Secretary on 3 April 1992 was within the prohibited 45-day period prior to the 11 May 1992
Elections.chanrobl esvirtualawlibrarychanrobles virtual law library

The principal question is whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided,
however, That for the first year of its operations from the effectivity of this Act, the mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority,"
violates the constitutional proscription against appointment or designation of elective officials to other
government posts. chanroblesvirtualawlibrary chanrobl es virtual law library

In full, Sec. 7 of Art. IX-B of the Constitution provides:

No elective official shall be eligible for appointment or designation in any capacity to any
 public office or position during his tenure. chanroblesvirtualawlibrary chanrobl es virtual law library

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform, G.R. No. 83815, 6". . . . should be allowed to attend to his
duties and responsibilities without the distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and inefficiency . . . ." chanrobles virtual law library

Particularly as regards the first paragraph of Sec. 7, "(t)he basic idea really is to prevent a situation
where a local elective official will work for his appointment in an executive position in government,
and thus neglect his constituents . . . ." 7
chanrobles virtual law library

In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs
no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the
higher interest of the body politic is of no moment. chanroblesvirtualawlibrary chanrobl es virtual law library

It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office. 8But, the
contention is fallacious. Section 94 of the LGC is not determinative of the constitutionality of Sec. 13,
par. (d), of R.A. 7227, for no legislative act can prevail over the fundamental law of the land.
Moreover, since the constitutionality of Sec. 94 of LGC is not the issue here nor is that section sought
to be declared unconstitutional, we need not rule on its validity. Neither can we invoke a practice
otherwise unconstitutional as authority for its validity. chanroblesvirtualawlibrary chanrobl es virtual law library

In any case, the view that an elective official may be appointed to another post if allowed by law or by
the primary functions of his office, ignores the clear-cut difference in the wording of the two (2)
paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes holding of multiple offices by an
appointive official when allowed by law or by the primary functions of his position, the first paragraph
appears to be more stringent by not providing any exception to the rule against appointment or
designation of an elective official to the government post, except as are particularly recognized in the
Constitution itself, e.g., the President as head of the economic and planning agency; 9the Vice-
President, who may be appointed Member of the Cabinet; 10and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council. 11 chanrobles virtual law library

The distinction between the first and second paragraphs of Sec. 7, Art. IX-B, was not accidental when
drawn, and not without reason. It was purposely sought by the drafters of the Constitution as shown in
their deliberation, thus -
 MR. MONSOD. In other words, what then Commissioner is saying, Mr. Presiding Officer,
is that the prohibition is more strict with respect to elective officials, because in the case of
appointive officials, there may be a law that will allow them to hold other positions. chanroblesvirtualawlibrary chanrobl es virtual law library

MR. FOZ. Yes, I suggest we make that difference, because in the case of appointive
officials, there will be certain situations where the law should allow them to hold some
other positions. 12 chanrobl es virtual law library

The distinction being clear, the exemption allowed to appointive officials in the second paragraph
cannot be extended to elective officials who are governed by the first paragraph. chanroblesvirtualawlibrary chanrobl es virtual law library

It is further argued that the SBMA posts are merely ex officio to the position of Mayor of Olongapo
City, hence, an excepted circumstance, citing Civil Liberties Union v. Executive Secretary, 13where we
stated that the prohibition against the holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or assistants during their tenure, as provided in
Sec. 13, Art. VII, of the Constitution, does not comprehend additional duties and functions required by
the primary functions of the officials concerned, who are to perform them in an ex officio capacity as
provided by law, without receiving any additional compensation therefor. chanrobl esvirtualawlibrarychanrobles virtual law library

This argument is apparently based on a wrong premise. Congress did not contemplate making the
subject SBMA posts as ex officio or automatically attached to the Office of the Mayor of Olongapo
City without need of appointment. The phrase "shall be appointed" unquestionably shows the intent to
make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo City. Had it
been the legislative intent to make the subject positions ex officio, Congress would have, at least,
avoided the word "appointed" and, instead, "ex officio" would have been used. 14 chanrobl es virtual law library

Even in the Senate deliberations, the Senators were fully aware that subject proviso may contravene
Sec. 7, first par., Art. IX-B, but they nevertheless passed the bill and decided to have the controversy
resolved by the courts. Indeed, the Senators would not have been concerned with the effects of Sec. 7,
first par., had they considered the SBMA posts as ex officio. chanroblesvirtualawlibrary chanrobl es virtual law library

Cognizant of the complication that may arise from the way the subject proviso was stated, Senator
Rene Saguisag remarked that "if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative choice." 15The Senator took a view
that the constitutional proscription against appointment of elective officials may have been sidestepped
if Congress attached the SBMA posts to the Mayor of Olongapo City instead of directing the President
to appoint him to the post. Without passing upon this view of Senator Saguisag, it suffices to state that
Congress intended the posts to be appointive, thus nibbling in the bud the argument that they are ex
officio.
chanrobl esvirtualawlibrarychanrobles virtual law library

The analogy with the position of Chairman of the Metro Manila Authority made by respondents cannot
be applied to uphold the constitutionality of the challenged proviso since it is not put in issue in the
present case. In the same vein, the argument that if no elective official may be appointed or designated
to another post then Sec. 8, Art. IX-B, of the Constitution allowing him to receive double compensation
16would be useless, is non sequitur since Sec. 8 does not affect the constitutionality of the subject
proviso. In any case, the Vice-President for example, an elective official who may be appointed to a
cabinet post under Sec. 3, Art. VII, may receive the compensation attached to the cabinet position if
specifically authorized by law. chanroblesvirtualawlibrary chanrobl es virtual law library

Petitioners also assail the legislative encroachment on the appointing authority of the President. Section
13, par. (d), itself vests in the President the power to appoint the Chairman of the Board and the Chief
Executive Officer of SBMA, although he really has no choice under the law but to appoint the Mayor
of Olongapo City. chanroblesvirtualawlibrary chanrobl es virtual law library

As may be defined, an "appointment" is "[t]he designation of a person, by the person or persons having
authority therefor, to discharge the duties of some office or trust," 17or "[t]he selection or designation of
a person, by the person or persons having authority therefor, to fill an office or public function and
discharge the duties of the same. 18In his treatise, Philippine Political
19
Law, Senior Associate Justice Isagani A. Cruz defines appointment as "the selection, by the authority
vested with the power, of an individual who is to exercise the functions of a given office." chanrobles virtual law library

Considering that appointment calls for a selection, the appointing power necessarily exercises a
discretion. According to Woodbury, J., 20"the choice of a person to fill an office constitutes the essence
of his appointment," 21and Mr. Justice Malcolm adds that an "[a]ppointment to office is intrinsically an
executive act involving the exercise of discretion." 22In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23we held:
The power to appoint is, in essence, discretionary. The appointing power has the right of
choice which he may exercise freely according to his judgment, deciding for himself who is
best qualified among those who have the necessary qualifications and eligibilities. It is a
prerogative of the appointing power . . . .

Indeed, the power of choice is the heart of the power to appoint. Appointment involves an exercise of
discretion of whom to appoint; it is not a ministerial act of issuing appointment papers to the appointee.
In other words, the choice of the appointee is a fundamental component of the appointing power. chanroblesvirtualawlibrary chanrobl es virtual law library

Hence, when Congress clothes the President with the power to appoint an officer, it (Congress) cannot
at the same time limit the choice of the President to only one candidate. Once the power of appointment
is conferred on the President, such conferment necessarily carries the discretion of whom to appoint.
Even on the pretext of prescribing the qualifications of the officer, Congress may not abuse such power
as to divest the appointing authority, directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can only be met by one individual, such
enactment effectively eliminates the discretion of the appointing power to choose and constitutes an
irregular restriction on the power of appointment. 24 chanrobles virtual law library

In the case at bar, while Congress willed that the subject posts be filled with a presidential appointee for
the first year of its operations from the effectivity of R.A. 7227, the proviso nevertheless limits the
appointing authority to only one eligible, i.e., the incumbent Mayor of Olongapo City. Since only one
can qualify for the posts in question, the President is precluded from exercising his discretion to choose
whom to appoint. Such supposed power of appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of appointment. chanroblesvirtualawlibrary chanrobl es virtual law library

While it may be viewed that the proviso merely sets the qualifications of the officer during the first year
of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his
prerogative.chanrobl esvirtualawlibrarychanrobles virtual law library

Since the ineligibility of an elective official for appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the substitution of the word "term"
with TENURE. chanroblesvirtualawlibrary chanrobl es virtual law library

MR. FOZ. The effect of the proposed amendment is to make possible for one to resign from
his position. chanroblesvirtualawlibrary chanrobl es virtual law library

MR. DAVIDE. Yes, we should allow that prerogative. chanrobl esvirtualawlibrarychanrobles virtual law library

MR. FOZ. Resign from his position to accept an executive position. chanrobl esvirtualawlibrarychanrobles virtual law library

MR. DAVIDE. Besides, it may turn out in a given case that because of, say, incapacity, he
may leave the service, but if he is prohibited from being appointed within the term for
which he was elected, we may be depriving the government of the needed expertise of an
individual. 25 chanrobles virtual law library

Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to

another public office. chanrobl esvirtualawlibrarychanrobles virtual law library

Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution. On the contrary, since an incumbent elective
official is not eligible to the appointive position, his appointment or designation thereto cannot be valid
in view of his disqualification or lack of eligibility. This provision should not be confused with Sec. 13,
Art. VI, of the Constitution where "(n)o Senator or Member of the House of Representatives may hold
any other office or employment in the Government . . . during his term without forfeiting his seat . . . ."
The difference between the two provisions is significant in the sense that incumbent national legislators
lose their elective posts only after they have been appointed to another government office, while other
incumbent elective officials must first resign their posts before they can be appointed, thus running the
risk of losing the elective post as well as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . . The effect is quite different where it is
expressly provided by law that a person holding one office shall be ineligible to another. Such a
provision is held to incapacitate the incumbent of an office from accepting or holding a second office
(State ex rel. Van Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal, 130 Ga 733, 61
SE 721) and to render his election or appointment to the latter office void (State ex rel. Childs v Sutton,
63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable (Baskin v State, 107 Okla 272, 232 p
388, 40 ALR 941)." 26"Where the constitution, or statutes declare that persons holding one office shall
be ineligible for election or appointment to another office, either generally or of a certain kind, the
prohibition has been held to incapacitate the incumbent of the first office to hold the second so that any
attempt to hold the second is void (Ala. - State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala
445)." 27chanrobles virtual law library

As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be sustained. He however remains Mayor of
Olongapo City, and his acts as SBMA official are not necessarily null and void; he may be considered a
de facto officer, "one whose acts, though not those of a lawful officer, the law, upon principles of policy
and justice, will hold valid so far as they involve the interest of the public and third persons, where the
duties of the office were exercised . . . . under color of a known election or appointment, void because
the officer was not eligible, or because there was a want of power in the electing or appointing body, or
by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being
unknown to the public . . . . [or] under color of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be such (State vs. Carroll, 38 Conn., 499; Wilcox
vs. Smith, 5 Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23 Am. Rep.,
323)." 28chanrobles virtual law library

Conformably with our ruling in Civil Liberties Union, any and all per diems, allowances and other
emoluments which may have been received by respondent Gordon pursuant to his appointment may be
retained by him. chanroblesvirtualawlibrary chanrobl es virtual law library

The illegality of his appointment to the SBMA posts being now evident, other matters affecting the
legality of the questioned proviso as well as the appointment of said respondent made pursuant thereto
need no longer be discussed. chanroblesvirtualawlibrary chanrobl es virtual law library

In thus concluding as we do, we can only share the lament of Sen. Sotero Laurel which he expressed in
the floor deliberations of S.B. 1648, precursor of R.A. 7227, when he articulated -
. . . . (much) as we would like to have the present Mayor of Olongapo City as the Chief
Executive of this Authority that we are creating; (much) as I, myself, would like to because
I know the capacity, integrity, industry and dedication of Mayor Gordon; (much) as we
would like to give him this terrific, burdensome and heavy responsibility, we cannot do it
because of the constitutional prohibition which is very clear. It says: "No elective official
shall be appointed or designated to another position in any capacity." 29 chanrobles virtual law library

For, indeed, "a Constitution must be firm and immovable, like a mountain amidst the strife of storms or
a rock in the ocean amidst the raging of the waves." 30One of the characteristics of the Constitution is
permanence, i.e., "its capacity to resist capricious or whimsical change dictated not by legitimate needs
but only by passing fancies, temporary passions or occasional infatuations of the people with ideas or
personalities . . . . Such a Constitution is not likely to be easily tampered with to suit political
expediency, personal ambitions or ill-advised agitation for change." 31 chanrobl es virtual law library

Ergo, under the Constitution, Mayor Gordon has a choice. We have no choice. chanrobl esvirtualawlibrarychanrobles virtual law library

WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which states: ". . . Provided, however,
That for the first year of its operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive officer of the Subic Authority," is
declared unconstitutional; consequently, the appointment pursuant thereto of the Mayor of Olongapo
City, respondent Richard J. Gordon, is INVALID, hence NULL and VOID. chanroblesvirtualawlibrary chanrobl es virtual law library

However, all per diems, allowances and other emoluments received by respondent Gordon, if any, as
such Chairman and Chief Executive Officer may be retained by him, and all acts otherwise legitimate
done by him in the exercise of his authority as officer de facto of SBMA are hereby UPHELD. chanr

FLORES V DRILON
FACTS
Petitioners, taxpayers and employees of U.S facilities at Subic, challenge the constitutionality of Sec.
13 (d) of the Bases Conversion and Development Act of 1992 which directs the President to appoint a
professional manager as administrator of the SBMA…provided that “for the 1st year of its operations,
the mayor of Olongapo City (Richard Gordon) shall be appointed as the chairman and the CEO of the
Subic Authority.”
ISSUES
(1) Whether the proviso violates the constitutional proscription against appointment or designation of
elective officials to other government posts.
(2) Whether or not the SBMA posts are merely ex officio to the position of Mayor of Olongapo City
and thus an excepted circumstance.
(3) Whether or not the Constitutional provision allowing an elective official to receive double
compensation (Sec. 8, Art. IX-B) would be useless if no elective official may be appointed to another
post.
(4) Whether there is legislative encroachment on the appointing authority of the President.
(5) Whether Mayor Gordon may retain any and all per diems, allowances and other emoluments which
he may have received pursuant to his appointment.
HELD
(1) YES, Sec. 7 of Art. IX-B of the Constitution Provides: No elective official shall be eligible for
appointment or designation in any capacity to any public office or position during his tenure. Unless
otherwise allowed by law or by the primary functions of his position, no appointive official shall hold
any other office or employment in the Government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled corporations or their subsidiaries. The subject
proviso directs the President to appoint an elective official i.e. the Mayor of Olongapo City, to other
government post (as Chairman and CEO of SBMA). This is precisely what the Constitution prohibits.
It seeks to prevent a situation where a local elective official will work for his appointment in an
executive position in government, and thus neglect his constitutents.
(2) NO, Congress did not contemplate making the SBMA posts as automatically attached to the Office
of the Mayor without need of appointment. The phrase “shall be appointed” unquestionably shows the
intent to make the SBMA posts appointive and not merely adjunct to the post of Mayor of Olongapo
City.
(3) NO, Sec. 8 does not affect the constitutionality of the subject proviso. In any case, the Vice-
President for example, an elective official who may be appointed to a cabinet post, may receive the
compensation attached to the cabinet position if specifically authorized by law.
(4) YES, although Section 13(d) itself vests in the President the power to appoint the Chairman of
SBMA, he really has no choice but to appoint the Mayor of Olongapo City. The power of choice is the
heart of the power to appoint. Appointment involves an exercise of discretion of whom to appoint.
Hence, when Congress clothes the President with the power to appoint an officer, it cannot at the same
time limit the choice of the President to only one candidate. Such enactment effectively eliminates the
discretion of the appointing power to choose and constitutes an irregular restriction on the power of
appointment. While it may be viewed that the proviso merely sets the qualifications of the officer
during the first year of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is
manifestly an abuse of congressional authority to prescribe qualifications where only one, and no other,
can qualify. Since the ineligibility of an elective official for appointment remains all throughout his
tenure or during his incumbency, he may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be considered fit for appointment.
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to
another public office.
(5) YES, as incumbent elective official, Gordon is ineligible for appointment to the position of
Chairman and CEO of SBMA; hence, his appointment thereto cannot be sustained. He however
remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null and void; he
may be considered a de facto officer, and in accordance with jurisprudence, is entitled to such benefits.
Flores v Drilon (223 SCRA 568)

FACTS:

The constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor Richard J. Gordon of Olongapo City was
appointed Chairman and Chief Executive Officer of the Subic Bay Metropolitan Authority (SBMA), is
challenged with prayer for prohibition, preliminary injunction and temporary restraining order. Said
provision provides the President the power to appoint an administrator of the SBMA provided that in
the first year of its operation, the Olongapo mayor shall be appointed as chairman and chief of
executive of the Subic Authority. Petitioners maintain that such infringes to the constitutional provision
of Sec. 7, first par., Art. IX-B, of the Constitution, which states that "no elective official shall be
eligible for appointment or designation in any capacity to any public officer or position during his
tenure," The petitioners also contend that Congress encroaches upon the discretionary power of the
President to appoint.

ISSUE:

Whether or not said provision of the RA 7227 violates the constitutional prescription against
appointment or designation of elective officials to other government posts.

RULING:

The court held the Constitution seeks to prevent a public officer to hold multiple functions since they
are accorded with a public office that is a full time job to let them function without the distraction of
other governmental duties.

The Congress gives the President the appointing authority which it cannot limit by providing the
condition that in the first year of the operation the Mayor of Olongapo City shall assume the
Chairmanship. The court points out that the appointing authority the congress gives to the President is
no power at all as it curtails the right of the President to exercise discretion of whom to appoint by
limiting his choice.

Flores v. Drilon G.R. No. 104732 June 22, 1993

Eligibility and Qualifications, Law on Public
Officers
August 17, 2018
FACTS:
Respondent Mayor Richard J. Gordon of Olongapo City was appointed Chairman and Chief Executive
Officer of the Subic Bay Metropolitan Authority (SBMA).
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at the Subic, Zambales, and
officers and members of the Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, challenge the constitutionality of Sec. 13, par. (d), of R.A. 7227, otherwise known as the
“Bases Conversion and Development Act of 1992,”.
They maintain that the proviso in par. (d) of Sec. 13 infringes on the following constitutional and
statutory provisions:
(a) Sec. 7, first par., Art. IX-B, of the Constitution, which states that “[n]o elective official shall be
eligible for appointment or designation in any capacity to any public officer or position during his
tenure,” because the City Mayor of Olongapo City is an elective official and the subject posts are
public offices;
(b) Sec. 16, Art. VII, of the Constitution, which provides that “[t]he President shall . . . . appoint all
other officers of the Government whose appointments are not otherwise provided for by law, and those
whom he may be authorized by law to appoint”, since it was Congress through the questioned proviso
and not the President who appointed the Mayor to the subject posts; and,
(c) Sec. 261, par. (g), of the Omnibus Election Code, for the reason that the appointment of respondent
Gordon to the subject posts made by respondent Executive Secretary on 3 April 1992 was within the
prohibited 45-day period prior to the 11 May 1992 Elections.
ISSUE:
Whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, “Provided, however, That for the
first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief executive officer of the Subic Authority,” violates the
constitutional proscription against appointment or designation of elective officials to other government
posts.

RULING:
Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or designation in any capacity to any
public office or position during his tenure.

Unless otherwise allowed by law or by the primary functions of his position, no appointive
official shall hold any other office or employment in the Government or any subdivision,
agency or instrumentality thereof, including government-owned or controlled corporations
or their subsidiaries.

The section expresses the policy against the concentration of several public positions in one person, so
that a public officer or employee may serve full-time with dedication and thus be efficient in the
delivery of public services. It is an affirmation that a public office is a full-time job. Hence, a public
officer or employee, like the head of an executive department described in Civil Liberties Union v.
Executive Secretary, G.R. No. 83896, and Anti-Graft League of the Philippines, Inc. v. Philip Ella C.
Juico, as Secretary of Agrarian Reform,
“. . . . should be allowed to attend to his duties and responsibilities without the distraction of other
governmental duties or employment. He should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may result in haphazardness and inefficiency
. . . .”
Particularly as regards the first paragraph of Sec. 7, “(t)he basic idea really is to prevent a situation
where a local elective official will work for his appointment in an executive position in government,
and thus neglect his constituents . . . .”
In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA). Since this is precisely what the constitutional proscription seeks to prevent, it needs
no stretching of the imagination to conclude that the proviso contravenes Sec. 7, first par., Art. IX-B, of
the Constitution. Here, the fact that the expertise of an elective official may be most beneficial to the
higher interest of the body politic is of no moment.
While it may be viewed that the proviso merely sets the qualifications of the officer during the first year
of operations of SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly an abuse of
congressional authority to prescribe qualifications where only one, and no other, can qualify.
Accordingly, while the conferment of the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment remains all throughout his tenure or during
his incumbency, he may however resign first from his elective post to cast off the constitutionally-
attached disqualification before he may be considered fit for appointment.
Consequently, as long as he is an incumbent, an elective official remains ineligible for appointment to
another public office.

ROBERTO A. FLORES v. FRANKLIN M. DRILON, GR No. 104732, 1993-06-22

Facts:
Petitioners, who claim to be taxpayers, employees of the U.S. Facility at Subic, Zambales,... maintain
that the proviso in par. (d) of Sec. 13 herein-above quoted in... italics infringes on the following
constitutional and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the Constitution, which states
that "[n]o elective official shall be eligible for appointment or designation in any capacity to any public
office or position... during his tenure,"... because the City Mayor of Olongapo City is an elective
official and the subject posts are public offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall xxx x... appoint all other officers of the Government whose
appointments are not otherwise provided for by law, and those whom he may be authorized by law to
appoint",... since it was Congress through the questioned proviso and not the
President who appointed the Mayor to the subject posts;... for the reason that the appointment of
respondent Gordon to the subject posts made by respondent Executive Secretary
In the case before us, the subject proviso directs the President to appoint an elective official, i.e., the
Mayor of Olongapo City, to other government posts (as Chairman of the Board and Chief Executive
Officer of SBMA).
It is argued that Sec. 94 of the Local Government Code (LGC) permits the appointment of a local
elective official to another post if so allowed by law or by the primary functions of his office.
Issues:
whether the proviso in Sec. 13, par. (d), of R.A. 7227 which states, "Provided, however, That for the
first year of its operations from the effectivity of this Act, the mayor of the City of Olongapo shall be
appointed as the chairman and chief... executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of elective officials to other government
posts.
Ruling:
Sec. 7 of Art. IX-B of the Constitution provides:
"No elective official shall be eligible for appointment or designation in any capacity to any public
office or position during his tenure.
"Unless otherwise allowed by law or by the primary functions of his position, no appointive official
shall hold any other office or employment in the Government or any subdivision, agency or
instrumentality thereof, including government-owned or controlled... corporations or their
subsidiaries."
Where, as in the case of respondent Gordon, an incumbent elective official was, notwithstanding his
ineligibility, appointed to other government posts, he does not automatically forfeit his elective office
nor remove his ineligibility imposed by the Constitution.
On the... contrary, since an incumbent elective official is not eligible to the appointive position, his
appointment or designation thereto cannot be valid in view of his disqualification or lack of eligibility.
As incumbent elective official, respondent Gordon is ineligible for appointment to the position of
Chairman of the Board and Chief Executive Officer of SBMA; hence, his appointment thereto pursuant
to a legislative act that contravenes the Constitution cannot be sustained.
He... however remains Mayor of Olongapo City, and his acts as SBMA official are not necessarily null
and void; he may be considered a de facto officer, "one whose acts, though not those of a lawful officer,
the law, upon principles of policy and justice, will hold valid... so far as they involve the interest of the
public and third persons, where the duties of the office were exercised x x x x under color of a known
election or appointment, void because the officer was not eligible, or because there was a want of
power in the... electing or appointing body, or by reason of some defect or irregularity in its exercise,
such ineligibility, want of power or defect being unknown to the public x x x x [or] under color of an
election, or appointment, by or pursuant to a public unconstitutional law, before... the same is adjudged
to be such