ARQUERO vs.

COURT OF APPEALS
G.R. No. 168053 September 21, 2011

This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner Rebecca
T. Arquero against public respondents Edilberto C. De Jesus (De Jesus), in his capacity as Secretary of
Education, Dr. Paraluman Giron (Dr. Giron), Department of Education (DepEd) Director, Regional Office
IV-MIMAROPA, Dr. Eduardo Lopez (Lopez), Schools Division Superintendent, Puerto Princesa City, and
private respondent Norma Brillantes. Petitioner assails the Court of Appeals (CA) Decision[1] dated
December 15, 2004 and Resolution[2] dated May 3, 2005 in CA-G.R. SP No. 85899. The assailed
decision reversed and set aside the Judgment by Default[3] of the Regional Trial Court (RTC), Branch 95,
Puerto Princesa City, while the assailed resolution denied petitioners motion for reconsideration.

The facts of the case are as follows:

On October 13, 1989, Congress approved Republic Act (RA) No. 6765, or An Act Integrating Certain
High Schools in the City of Puerto Princesa and in the Province of Palawan with the Palawan National
School and Appropriating Funds Therefor. Under the law, the following schools were converted into
national schools and integrated with the Palawan National School (PNS) in the City of Puerto Princesa,
Province of Palawan, as branches thereof: (1) Puerto Princesa School of Philippine Craftsmen; (2) San
Jose Barangay High School; (3) Inagawan Barangay High School; (4) Puerto Princesa Rural High School;
all in the City of Puerto Princesa and (5) Plaridel Barangay High School in the Municipality of Aborlan;
(6) Narra Barangay High School in the Municipality of Narra; (7) Quezon Municipal High School in the
Municipality of Quezon; (8) Pulot Barangay High School in the Municipality of Brookes Point; (9)
Bataraza Barangay High School in the Municipality Bataraza; and (10) Balabac Barangay High School in
the Municipality of Balabac; all in the Province of Palawan.[4]

Section 2 of the law provides that the PNS shall, in addition to general secondary education program,
offer post-secondary technical-vocational and other relevant courses to carry out its objectives. The PNS
shall thus be considered the mother unit and the integrated schools should benefit from a centralized
curriculum planning to eliminate duplication of functions and efforts relative to human resource
development for the province.[5] The law also provides that the Palawan Integrated National Schools
(PINS) shall be headed by a Vocational School Superintendent (VSS) who shall be chosen and appointed
by the Secretary of the Department of Education, Culture, and Sports (now the DepEd).[6] Except for
Puerto Princesa School of Philippine Craftsmen, which shall be headed by the Home Industries Training
Supervisor, the PNS and each of its units or branches shall be headed either by a Principal or Secondary
School Head Teacher to be chosen in accordance with the DepEd Rules and Regulations.[7]

However, no VSS was appointed. Instead, then DECS Region IV Office designated then PNS Principal
Eugenio J. dela Cuesta in a concurrent capacity as Officer-in-Charge (OIC) of the PINS. After the
retirement of Dela Cuesta, petitioner took over as Secondary School Principal of the PNS.[8] On March
18, 1993, then DECS-Region IV Director IV Desideria Rex (Director Rex) designated petitioner as OIC
of the PINS.[9]
On December 1, 1994, Director Rexs successor, Pedro B. Trinidad placed all satellite schools of the
PINS under the direct supervision of the Schools Division Superintendent for Palawan effective January
1, 1995.[10] This directive was later approved by the DepEd in September 1996. Petitioner was instructed
to turn over the administration and supervision of the PINS branches or units.[11] In another
memorandum, Schools Division Superintendent Portia Gesilva was designated as OIC of the PINS. These
events prompted different parties to institute various actions restraining the enforcement of the DepEd
orders.

Pursuant to RA 8204, separate City Schools Division Offices were established for the City of Puerto
Princesa and the Province of Palawan. [12]

On March 14, 2000, Regional Director Belen H. Magsino issued an Order addressed to the Schools
Division Superintendent of Palawan and Puerto Princesa City, and petitioner stating that the PINS satellite
schools shall be under the supervision of the division schools superintendents concerned, while petitioner
should concentrate on the supervision and administration of the PNS.[13] Again, this prompted the filing
of various court actions.

On May 14, 2002, then DECS Undersecretary Jaime D. Jacob issued an Order[14] addressed to Dr. Giron,
OIC, DepEd Regional Office No. 4, stating that there being no more legal impediment to the integration,
he ordered that the secondary schools integrated with the PNS be under the direct administrative
management and supervision of the schools division superintendents of the divisions of Palawan and
Puerto Princesa City, as the case may be, according to their geographical and political boundaries.
Consequently, Dr. Giron instructed the secondary schools principals concerned of the assumption of
jurisdiction by the superintendent of the schools division offices of the city and province, and that their
fiscal and financial transaction as turned over will be effected in July 1, 2002. However, then DepEd
Undersecretary Ramon C. Bacani (Bacani) ordered that the status quo be maintained and that no turn over
of schools be made.[15] In the meantime, petitioner remained as the OIC of the PINS.

On September 19, 2002, Dr. Giron withdrew the designation of petitioner as OIC of the PINS, enjoining
her from submitting to the Regional Office all appointments and personnel movement involving the PNS
and the satellite schools. On November 7, 2002, petitioner appealed to the Civil Service Commission
assailing the withdrawal of her designation as OIC of the PINS.[16]

On March 28, 2003, then DepEd Secretary Edilberto C. De Jesus designated Assistant Schools Division
Superintendent Norma B. Brillantes (hereafter referred to as private respondent) in concurrent capacity as
OIC of the PINS entitled to representation and transportation allowance, except the salary of the position.
[17] Petitioner filed a Motion for Reconsideration and/or Clarification[18] before the Office of the DepEd
Secretary as to the designation of private respondent.

On September 18, 2003, Dr. Giron filed a formal charge[19] against petitioner who continued to defy the
orders issued by the Regional Office relative to the exercise of her functions as OIC of the PINS despite
the designation of private respondent as such. The administrative complaint charged petitioner with grave
misconduct, gross insubordination and conduct prejudicial to the best interest of the service. Petitioner
was also preventively suspended for ninety (90) days.[20]

On October 2, 2003, petitioner filed the Petition for Quo Warranto with Prayer for Issuance of Temporary
Restraining Order and/or Injunctive Writ[21] before the RTC of Palawan[22] against public and private
respondents. The case was docketed as Civil Case No. 3854. Petitioner argued that the designation of
private respondent deprived her of her right to exercise her function and perform her duties in violation of
her right to security of tenure. Considering that petitioner was appointed in a permanent capacity, she
insisted that private respondents designation as OIC of the PNS is null and void there being no vacancy to
the position. Petitioner thus prayed that the RTC issue an order granting the writ of quo
warranto enjoining private respondent from assuming the position of OIC of the PNS, declaring the
questioned designation null and void and without operative effect, and declaring petitioner to be entitled
to the office of the principal of the PNS.[23]

On October 6, 2003, the Executive Judge issued a 72-Hour TRO[24] enjoining and restraining private
respondent from assuming the position of OIC and performing the functions of the Office of the Principal
of the PNS; and restraining public respondents from giving due course or recognizing the assailed
designation of private respondent. The RTC later issued the writ of preliminary injunction.[25]

Respondents failed to file their Answer. Hence, on motion[26] of petitioner, the Court declared
respondents in default in an Order[27] dated December 15, 2003. In the same order, petitioner was
allowed to present her evidence ex parte.

On June 14, 2004, the RTC rendered a Judgment by Default,[28] the dispositive portion of which reads:

WHEREFORE, premises considered and by preponderance of evidence, judgment is

hereby rendered:

1. Declaring petitioner Rebecca T. Arquero as the lawful Principal and

Head of the Palawan Integrated National High School who is lawfully
entitled to manage the operation and finances of the school subject to
existing laws;

2. Declaring the formal charge against petitioner, the preventive

suspension, the investigating committee, the proceedings therein and any
orders, rulings, judgments and decisions that would arise therefrom as null,
void and of no effect;

3. Ordering respondent Norma Brillantes, or any person acting in her

behalf, to cease and desist from assuming and exercising the functions of the
 Office of the Principal of Palawan Integrated National High School, and
respondents Edilberto C. De Jesus, Paraluman R. Giron and Eduardo V.
Lopez, or any person acting in their behalf, from giving due course or
recognizing the same; and

4. Making the writ of preliminary injunction issued in this case

permanent.

IT IS SO ORDERED.[29]

The RTC held that considering that the integrated school failed to offer post-secondary technical-
vocational courses, the VSS position became functus officio. The PNS, therefore, remains to be a general
secondary school under the jurisdiction of the DepEd.[30] Consequently, supervision of the integrated
school was automatically vested with the principal of the PNS without the necessity of appointment or
designation. As to the administrative case filed against petitioner, the RTC opined that the formal charge
and preventive suspension are illegal for lack of due process.[31]

On appeal, the CA reversed and set aside the RTC decision, the dispositive portion of which reads:

WHEREFORE, premises considered, the present appeal is hereby GRANTED. The

appealed decision of the court a quo in Civil Case No. 3854 is hereby REVERSED and
SET ASIDE. A new judgment is hereby entered DISMISSING the petition for quo
warranto filed by appellee Rebecca T. Arquero.

No pronouncement as to costs.

SO ORDERED.[32]

Applying the rules on statutory construction, the appellate court emphasized the need to harmonize the
laws. The CA held that the PINS and its satellite schools remain under the complete administrative
jurisdiction of the DepEd and not transferred to the Technical Education and Skills Development
Authority (TESDA). It also explained that by providing for a distinct position of VSS with a higher
qualification, specifically chosen and appointed by the DepEd Secretary that is separate from the school
head of the PNS offering general secondary education program, RA 6765 intended that the functions of a
VSS and School Principal of PNS be discharged by two separate persons.[33] The CA added that if we
follow the RTC conclusion, petitioner would assume the responsibilities and exercise the functions of a
division schools superintendent without appointment and compliance with the qualifications required by
law.[34] The appellate court likewise held that petitioner failed to establish her clear legal right to the
position of OIC of the PINS as she was not appointed but merely designated to the position in addition to
her functions as incumbent school principal of the PNS.[35] Clearly, there was no violation of her right to
due process and security of tenure when private respondent replaced her. As to the validity of filing the
administrative charge against her and the subsequent imposition of preventive suspension, the CA refused
to rule on the matter due to the pendency of the administrative case which is within the jurisdiction of the
DepEd.

Hence, this petition raising the following issues:

A. THE COURT OF APPEALS DECISION DATED THE 15TH DECEMBER

2004, AND THE RESOLUTION OF 3RD MAY 2005, HAVE DECIDED A
QUESTION OF SUBSTANCE, NOT THERETOFORE DETERMINED BY THE
SUPREME COURT, OR THE APPELLATE COURT HAS DECIDED IT IN A WAY
PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE HIGHEST COURT; OR THE RESPONDENT COURT OF
APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL
COURSE OF JUDICIAL PROCEEDINGS AS TO CALL FOR AN EXERCISE OF
THE POWER OF SUPERVISION.

B. THE CHALLENGED DECISION WAS RENDERED ON THE BASIS OF

MERE UNSUBSTANTIATED ARGUMENTATIONS OF THE INDIVIDUAL
RESPONDENTS.

NO IOTA OF EVIDENCE, TESTIMONIAL OR DOCUMENTARY, WERE

PRESENTED AND OFFERED FOR A SPECIFIC PURPOSE BY THE
RESPONDENTS (WHO WERE DECLARED IN DEFAULT).

THEREFORE, THE CONCLUSION OF THE IMPUGNED DECISION IS NOT

SUPPORTED BY RECORDED EVIDENCE.[36]
The petition is without merit.

Petitioner insists that respondents could not have appealed the RTC decision having been declared in
default. She explains that the only issue that could have been raised is a purely legal question, therefore,
the appeal should have been filed with the Court and not with the CA.

In Martinez v. Republic,[37] the Court has clearly discussed the remedies of a party declared in default in
light of the 1964 and 1997 Rules of Court and a number of jurisprudence applying and interpreting said
rules. Citing Lina v. Court of Appeals,[38] the Court enumerated the above-mentioned remedies, to wit:

a) The defendant in default may, at any time after discovery thereof and before
judgment, file a motion, under oath, to set aside the order of default on the ground
that his failure to answer was due to fraud, accident, mistake or excusable neglect,
and that he has meritorious defenses; (Sec. 3, Rule 18)
 b) If the judgment has already been rendered when the defendant discovered the
default, but before the same has become final and executory, he may file a motion for
new trial under Section 1 (a) of Rule 37;
c) If the defendant discovered the default after the judgment has become final and
executory, he may file a petition for relief under Section 2 of Rule 38; and

d) He may also appeal from the judgment rendered against him as contrary to
the evidence or to the law, even if no petition to set aside the order of default has
been presented by him. (Sec. 2, Rule 41)[39]

The Court explained in Martinez that the fourth remedy, that of appeal, is anchored on Section 2, Rule 41
of the 1964 Rules. Even after the deletion of that provision under the 1997 Rules, the Court did not
hesitate to expressly rely on the Lina doctrine, including the pronouncement that a defaulted defendant
may appeal from the judgment rendered against him. Moreover, in Rural Bank of Sta. Catalina v. Land
Bank of the Philippines,[40] the Court provided a comprehensive restatement of the remedies of the
defending party declared in default:

It bears stressing that a defending party declared in default loses his standing in court and
his right to adduce evidence and to present his defense. He, however, has the right to
appeal from the judgment by default and assail said judgment on the ground, inter alia,
that the amount of the judgment is excessive or is different in kind from that prayed for,
or that the plaintiff failed to prove the material allegations of his complaint, or that the
decision is contrary to law. Such party declared in default is proscribed from seeking a
modification or reversal of the assailed decision on the basis of the evidence submitted by
him in the Court of Appeals, for if it were otherwise, he would thereby be allowed to
regain his right to adduce evidence, a right which he lost in the trial court when he was
declared in default, and which he failed to have vacated. In this case, the petitioner sought
the modification of the decision of the trial court based on the evidence submitted by it
only in the Court of Appeals.[41]

Undoubtedly, a defendant declared in default retains the right to appeal from the judgment by default on
the ground that the plaintiff failed to prove the material allegations of the complaint, or that the decision is
contrary to law, even without need of the prior filing of a motion to set aside the order of default except
that he does not regain his right to adduce evidence.[42] The appellate court, in turn, can review the
assailed decision and is not precluded from reversing the same based solely on the evidence submitted by
the plaintiff.

The next question to be resolved is whether petitioner has the right to the contested public office and to
oust private respondent from its enjoyment. We answer in the negative.
A quo warranto proceeding is the proper legal remedy to determine the right or title to the contested
public office and to oust the holder from its enjoyment.[43] It is brought against the person who is alleged
to have usurped, intruded into, or unlawfully held or exercised the public office.[44] It may be brought by
the Republic of the Philippines or by the person claiming to be entitled to such office.[45]

In quo warranto, the petitioner who files the action in his name must prove that he is entitled to the
subject public office. In other words, the private person suing must show a clear right to the contested
position.[46] Otherwise, the person who holds the same has a right to undisturbed possession and the
action for quo warranto may be dismissed.[47] It is not even necessary to pass upon the right of the
defendant who, by virtue of his appointment, continues in the undisturbed possession of his office.[48]

On the basis of the evidence presented solely by petitioner and without considering the arguments and
attachments made by respondents to rebut petitioners claims, we find that petitioner failed to prove that
she is entitled to the contested position.

It is undisputed that petitioner was appointed as the principal of the PNS. In addition, she was designated
as the OIC of the PINS. Said designation was, however, withdrawn. Private respondent was, thereafter,
designated as the new OIC. This prompted petitioner to file the quo warranto petition before the court a
quo.

The contested position was created by RA 6765. Section 3 of the law provides:

Section 3. The school shall be headed by a Vocational School Superintendent. He shall be

chosen and appointed by the Secretary of Education, Culture and Sports [now Secretary
of Education].

Moreover, Section 4 thereof states:

Section 4. The Home Industries Training Supervisor of the Puerto Princesa School of
Philippine Craftsmen shall continue to serve as such. The main school and each of its
units or branches shall be headed either by a Principal or Secondary School Head Teacher
to be chosen in accordance with the rules and regulations of the Department of
Education, Culture and Sports [now the Department of Education].

As aptly observed by the CA, the law created two positions the VSS and the principal or secondary school
head teacher of each of the units or branches of the integrated school. The legislators clearly intended that
the integrated schools shall be headed by a superintendent. Admittedly, petitioner did not possess the
qualifications to hold the position and she was merely designated by the DepEd as the OIC of the
PINS. At that time, she held in a concurrent capacity, the permanent position of principal of the PNS.
Having been appointed as OIC without the necessary qualifications, petitioner held the position only in a
temporary capacity. The purpose of an acting or temporary appointment is to prevent a hiatus in the
discharge of official functions by authorizing a person to discharge those functions pending the selection
of a permanent or another appointee. An acting appointee accepts the position on the condition that he
shall surrender the office once he is called to do so by the appointing authority. Therefore, his term of
office is not fixed, but endures at the pleasure of the appointing authority.[49] The essence of an acting
appointment is its temporariness and its consequent revocability at any time by the appointing authority.
[50]

Thus, under RA 6765, petitioner can only insist on her security of tenure as principal of the PNS but not
as OIC of the integrated school. Upon the withdrawal of her designation, her right to the contested
position ceased to exist.

Petitioner also bases her right to the contested position on the enactment of RA 7796, or An Act Creating
the Technical Education and Skills Development Authority, Providing for its Powers, Structure and for
Other Purposes, and RA 9155, or An Act Instituting a Framework of Governance for Basic Education,
Establishing Authority and Accountability, Renaming the Department of Education Culture and Sports as
the Department of Education, and for Other Purposes. She contends that under RA 7796, the position of
VSS could no longer be filled up by the DepEd having been absorbed by TESDA. As such, the right to
manage the operation and finances of the integrated schools is automatically vested with petitioner being
the principal of the PNS without further appointment or designation.

Again, we do not agree.

As found by the RTC and affirmed by the CA, the PINS failed to implement its technical-vocational
education program. Consequently, the PNS and the other satellite schools never came under the
jurisdiction of the Bureau of Technical and Vocational Education of the DepEd nor the technical-
vocational education in DepEds regional offices.Thus, except for the Puerto Princesa School of Philippine
Craftsmen, which is now within the jurisdiction of the TESDA, the PNS and the other units remained
under the complete administrative jurisdiction of the DepEd. Although the technical-vocational education
program was not implemented, it does not alter the laws intent that the main school, which is the PNS and
the other units integrated with it, shall be headed either by a principal or secondary school head teacher;
while the PINS or the integrated school shall be headed by another. We cannot subscribe to petitioners
insistence that the principal automatically heads the PINS without appointment or designation. As clearly
explained by the CA, by providing for a distinct position with a higher qualification (that of a
superintendent), specifically chosen and appointed by the DepEd Secretary, separate from the school head
of the PNS offering general secondary education program, the law clearly intended the functions of a VSS
and school principal of the PNS to be discharged and performed by two different individuals.[51]

Neither can petitioner rely on the enactment of RA 9155. The law, in fact, weakens petitioners claim. RA
9155 provides the framework for the governance of basic education. It also emphasizes the principle of
shared governance which recognizes that every unit (which includes the national, regional, division,
school district, and school levels) in the education bureaucracy has a particular role, task and
responsibility. The school shall be headed by a [principal] or school head; a school district by a schools
district supervisor; a division by a schools division superintendent; a region by a director; and the national
level by the Secretary of Education. It must be recalled that the integration under RA 6765 involved
certain high schools in different municipalities of the Province of Palawan and the City of Puerto
Princesa. We also note that RA 6765 intended that the integrated school shall be headed by a
superintendent. Nowhere in the above laws can we find justification for petitioners insistence that she,
and not private respondent, has a better right to hold the contested position.
Clearly, petitioner failed to establish her right to the contested position. Therefore, the dismissal of
her quo warranto petition is in order. It must be emphasized, however, that this declaration only involves
the position of petitioner as OIC of the PINS. It does not in any way affect her position as principal of the
PNS which she holds in a permanent capacity.

WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of Appeals
Decision dated December 15, 2004 and Resolution dated May 3, 2005 in CA-G.R. SP No. 85899,
are AFFIRMED.

SO ORDERED.

G.R. No. 184980 March 30, 2011

MORO vs. DEL CASTILLO, JR.

This case is about the right of the petitioner to be reinstated through an action for quo warranto against
the present holder meantime that petitioner has appealed from the Ombudsmans decision dismissing him
from the service for, among other grounds, misconduct in office.
The Facts and the Case
On December 7, 2005 the Ombudsman charged respondent Generoso Reyes Del Castillo, Jr. (Del
Castillo), then Chief Accountant of the General Headquarters (GHQ) Accounting Center of the Armed
Forces of the Philippines (AFP), with dishonesty, grave misconduct and conduct prejudicial to the best
interest of the service in OMB-P-A-06-0031-A. The Ombudsman alleged that Del Castillo made false
statements in his Statement of Assets and Liabilities from 1996 to 2004 and that he acquired properties
manifestly out of proportion to his reported salary.
On April 1, 2006 the GHQ reassigned Del Castillo to the Philippine Air Force (PAF) Accounting Center
by virtue of GHQ AFP Special Order 91 (SO 91).1 Through the same order, petitioner Danilo Moro
(Moro), then Chief Accountant of the Philippine Navy, took over the position of Chief Accountant of the
GHQ Accounting Center.
Meantime, on August 30, 2006 the Ombudsman placed Del Castillo under preventive suspension for six
months and eventually ordered his dismissal from the service on February 5, 2007.2 The penalty imposed
on him included cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification
from reemployment in the government. Del Castillo filed a motion for reconsideration, which is pending
to this date.
Following the lapse of his six-month suspension or on March 12, 2007 Del Castillo attempted to reassume
his former post of GHQ Chief Accountant. But, he was unable to do so since Moro declined to yield the
position. Consequently, on April 4, 2007 Del Castillo filed a petition for quo warranto3 against Moro with
the Regional Trial Court4 (RTC) of Paraaque City in Civil Case 07-0111.
Del Castillo claimed that Moro was merely detailed as GHQ Chief Accountant when the Ombudsman
placed Del Castillo under preventive suspension. Since the latters period of suspension already lapsed, he
was entitled to resume his former post and Moro was but a usurper. 5
For his part, Moro pointed out in his Answer6 that his appointment under SO 91 as GHQ Chief
Accountant was a permanent appointment. Indeed, the GHQ had already reassigned Del Castillo to the
PAF Accounting Center even before the Ombudsman placed him under preventive suspension. Del
Castillo was, therefore, not automatically entitled to return to his former GHQ post despite the lapse of his
suspension.
During the pendency of the quo warranto case before the RTC, Del Castillo refused to report at the PAF
Accounting Center despite a memorandum from the AFP Acting Deputy Chief of Staff for Personnel that
carried the note and approval of the AFP Chief of Staff.7 Del Castillo insisted that he could not be placed
under the PAF since he was the GHQ Chief Accountant.8
On October 10, 2007 the RTC dismissed Del Castillos petition,9 holding that Moro held the position of
GHQ Chief Accountant pursuant to orders of the AFP Chief of Staff. Moreover, the RTC found Del
Castillos reassignment to the PAF Accounting Center valid. Under the Civil Service Commission (CSC)
Rules, a reassignment may be made for a maximum of one year. Since Del Castillos preventive
suspension kept him away for only six months, he had to return to the PAF to complete his maximum
detail at that posting. Besides, said the trial court, the Ombudsmans February 5, 2007 Order, which
directed Del Castillos dismissal from the service for grave misconduct, among others, rendered the
petition moot and academic. The RTC denied Del Castillos motion for reconsideration.
Instead of appealing from the order of dismissal of his action, Del Castillo filed a petition for certiorari
with the Court of Appeals (CA) in CA-G.R. SP 103470. On October 13, 2008 the CA reversed the RTC
Decision.10Notwithstanding the procedural error, the CA gave due course to the petition on grounds of
substantial justice and fair play. It held that Del Castillos reassignment exceeded the maximum of one
year allowed by law and that SO 91 was void since it did not indicate a definite duration for such
reassignment. Further, the CA held as non-executory the Ombudsmans dismissal of Del Castillo in view
of his appeal from that dismissal. With the denial of his motion for reconsideration, Moro filed this
petition via Rule 45 of the Rules of Court.
The Issue Presented
The key issue in this case is whether or not respondent Del Castillo is entitled to be restored to the
position of Chief Accountant of the GHQ Accounting Center that he once held.
The Courts Ruling
An action for quo warranto under Rule 66 of the Rules of Court may be filed against one who usurps,
intrudes into, or unlawfully holds or exercises a public office.11 It may be brought by the Republic of the
Philippines or by the person claiming to be entitled to such office.12 In this case, it was Del Castillo who
filed the action, claiming that he was entitled as a matter of right to reassume the position of GHQ Chief
Accountant after his preventive suspension ended on March 11, 2007. He argues that, assuming his
reassignment to the PAF Accounting Center was valid, the same could not exceed one year. Since his
detail at the PAF took effect under SO 91 on April 1, 2006, it could last not later than March 31, 2007. By
then, Moro should have allowed him to return to his previous posting as GHQ Chief Accountant.
But, as Moro points out, he had been authorized under SO 91 to serve as GHQ Chief Accountant. Del
Castillo, on the other hand, had been ordered dismissed from the service by the Ombudsman in OMB-P-
A-06-0031-A. Consequently, he cannot reassume the contested position.
Del Castillo of course insists, citing Lapid v. Court of Appeals,13 that only decisions of the Ombudsman
that impose the penalties of public censure, reprimand, or suspension of not more than a month or a fine
of one month salary are final, executory, and unappealable. Consequently, when the penalty is dismissal
as in his case, he can avail himself of the remedy of appeal and the execution of the decision against him
would, in the meantime, be held in abeyance.1avvphi1
But, the Lapid case has already been superseded by In the Matter to Declare in Contempt of Court Hon.
Simeon A. Datumanong, Secretary of DPWH.14 The Court held in Datumanong that Section 7, Rule III
of Administrative Order 7, as amended by Administrative Order 17,15 clearly provides that an appeal
shall not stop a decision of the Ombudsman from being executory. The Court later reiterated this ruling in
Office of the Ombudsman v. Court of Appeals.16
In quo warranto, the petitioner who files the action in his name must prove that he is entitled to the
subject public office. Otherwise, the person who holds the same has a right to undisturbed possession and
the action for quo warranto may be dismissed.17
Here, Del Castillo brought the action for quo warranto in his name on April 4, 2007, months after the
Ombudsman ordered his dismissal from service on February 5, 2007. As explained above, that dismissal
order was immediately executory even pending appeal. Consequently, he has no right to pursue the action
for quo warranto or reassume the position of Chief Accountant of the GHQ Accounting Center.
WHEREFORE, the Court GRANTS the petition, REVERSES and SETS ASIDE the decision dated
October 13, 2008 of the Court of Appeals in CA-G.R. SP 103470, and REINSTATES the October 10,
2007 decision of the Regional Trial Court in Civil Case 07-0111, which dismissed the complaint for quo
warranto.
SO ORDERED.

VILANDO vs. HRET

G.R. No. 192147 August 23, 2011

This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the March 24, 2010
Decision[1] of the House of Representatives Electoral Tribunal (HRET) dismissing the petitions for quo
warranto and declaring private respondent Jocelyn Sy Limkaichong (Limkaichong) not disqualified as
Member of the House of Representatives representing the First District of Negros Oriental and its
Resolution[2] dated May 17, 2010, denying the motion for reconsideration.

In the May 14, 2007 elections, Limkaichong filed her certificate of candidacy for the position of
Representative of the First District of Negros Oriental. She won over the other contender, Olivia Paras.

On May 25, 2007, she was proclaimed as Representative by the Provincial Board of Canvassers on the
basis of Comelec Resolution No. 8062[3] issued on May 18, 2007.

On July 23, 2007, she assumed office as Member of the House of Representatives.

Meanwhile, petitions involving either the disqualification or the proclamation of Limkaichong were filed
before the Commission on Elections (COMELEC) which reached the Court.

The petitions, which questioned her citizenship, were filed against Limkaichong by her detractors: Louis
Biraogo (G.R. No. 179120);[4] Olivia Paras (G.R. Nos. 179132-33);[5] and Renald F. Vilando (G.R. Nos.
179240-41).[6] These three (3) petitions were consolidated with the petition for certiorari filed by
Limkaichong (G.R. Nos. 178831-32) assailing the Joint Resolution issued by the COMELEC which
resolved the disqualification cases against her.

On April 1, 2009, the Court granted the aforesaid petition of Limkaichong, reversed the Joint Resolution
of the Comelec, dismissed the three (3) other petitions, and directed the petitioners to seek relief before
the HRET by way of a petition for Quo Warranto.

On April 21, 2009 and May 27, 2009, petitioner Renald F. Vilando (Vilando), as taxpayer; and Jacinto
Paras, as registered voter of the congressional district concerned, filed separate petitions for Quo
Warranto against Limkaichong before the HRET. These petitions were consolidated by the HRET as they
both challenged the eligibility of one and the same respondent. Petitioners asserted that Limkaichong was
a Chinese citizen and ineligible for the office she was elected and proclaimed. They alleged that she was
born to a father (Julio Sy), whose naturalization had not attained finality, and to a mother who acquired
the Chinese citizenship of Julio Sy from the time of her marriage to the latter. Also, they invoked the
jurisdiction of the HRET for a determination of Limkaichongs citizenship, which necessarily included an
inquiry into the validity of the naturalization certificate of Julio Sy.
For her defense, Limkaichong maintained that she is a natural-born Filipino citizen. She averred that the
acquisition of Philippine citizenship by her father was regular and in order and had already attained the
status of res judicata. Further, she claimed that the validity of such citizenship could not be assailed
through a collateral attack.

On March 24, 2010, the HRET dismissed both petitions and declared Limkaichong not disqualified as
Member of the House of Representatives. Pertinent portions of the HRET decision reads:
By and large, petitioners failed to satisfy the quantum of proof to sustain their theory that
respondent is not a natural-born Filipino citizen and therefore not qualified as
Representative of the First District, Negros Oriental. This being so, their petitions must
fail.

WHEREFORE, the Tribunal DISMISSES the instant petition for lack of merit and
declares that respondent Jocelyn Sy Limkaichong is not disqualified as Member of the
House of Representatives representing the First District, Negros Oriental.

As soon as the Decision becomes final and executory, notice of copies thereof shall be
sent to the President of the Philippines, the House of Representatives through the
Speaker, the Commission on Audit through the Chairman, pursuant to Rule 96 of the
2004 Rules of the House of Representatives Electoral Tribunal. Let a copy of this
Decision be furnished the Chairman, Commission on Elections, for his information and
appropriate action.

SO ORDERED.[7]

The petitioners sought reconsideration of the aforesaid decision, but it was denied by the HRET in its
Resolution dated May 17, 2010.

Hence, this petition for certiorari filed by Vilando anchored on the following

GROUNDS:
THE ONE-SIDED RESOLUTION OF THE SUBJECT PETITION FOR QUO
WARRANTO AND THE UTTER FAILURE OF THE HRET TO DISQUALIFY
LIMKAICHONG AS MEMBER OF THE HOUSE OF REPRESENTATIVES
DESPITE MANIFEST EVIDENCE THAT SHE IS NOT A NATURAL-BORN
FILIPINO CITIZEN IS WHIMSICAL, CAPRICIOUS AND ARBITRARY
BECAUSE:

1. THE PETITION FOR QUO WARRANTO DOES NOT OPERATE

AS A COLLATERAL ATTACK ON THE CITIZENSHIP OF
LIMKAICHONGS FATHER FOR THE REASON THAT HER
 FATHERS CERTIFICATE OF NATURALIZATION IS OF NO FORCE
AND EFFECT FROM THE VERY BEGINNING, HENCE, THERE IS
ACTUALLY NOTHING BEING ATTACKED OR ASSAILED BY THE
SAME.

2. LIMKAICHONG CANNOT DERIVE PHILIPPINE

CITIZENSHIP FROM HER MOTHER GIVEN THAT AT THE TIME
OF HER BIRTH, HER MOTHER IS NOT ALREADY A FILIPINO
CITIZEN AS A RESULT OF HER MARRIAGE TO HER FATHER AS
PROVIDED FOR UNDER SECTION 1 (7) OF COMMONWEALTH
ACT NO. 63 IN RELATION TO ARTICLE 2 (1) CHAPTER II OF THE
CHINESE REVISED NATIONALITY LAW OF FEBRUARY 5, 1959.

3. HAVING THE PLENARY, ABSOLUTE AND EXCLUSIVE

JURISDICTION TO DETERMINE, AMONG OTHERS, THE
QUALIFICATIONS OF MEMBERS OF THE HOUSE OF
REPRESENTATIVES, THE HRET CAN LOOK INTO THE
ELIGIBILITY OF LIMKAICHONG EVEN IF, AS AN INCIDENT
THERETO, IT WOULD MEAN LOOKING INTO THE VALIDITY OF
THE CERTIFICATE OF NATURALIZATION.[8]

It should be noted that Limkaichongs term of office as Representative of the First District of Negros
Oriental from June 30, 2007 to June 30, 2010 already expired. As such, the issue questioning her
eligibility to hold office has been rendered moot and academic by the expiration of her term. Whatever
judgment is reached, the same can no longer have any practical legal effect or, in the nature of things, can
no longer be enforced.[9] Thus, the petition may be dismissed for being moot and academic.

Moreover, there was the conduct of the 2010 elections, a supervening event, in a sense, has also rendered
this case moot and academic. A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon would be of no practical value.
As a rule, courts decline jurisdiction over such case, or dismiss it on ground of mootness. [10]

Citizenship, being a continuing requirement for Members of the House of Representatives, however, may
be questioned at anytime.[11] For this reason, the Court deems it appropriate to resolve the petition on the
merits. This position finds support in the rule that courts will decide a question, otherwise moot and
academic, if it is capable of repetition, yet evading review.[12] The question on Limkaichongs citizenship
is likely to recur if she would run again, as she did run, for public office, hence, capable of repetition.

In any case, the Court is of the view that the HRET committed no grave abuse of discretion in finding that
Limkaichong is not disqualified to sit as Member of the House of Representatives.
Vilandos argument, that the quo warranto petition does not operate as a collateral attack on the citizenship
of Limkaichongs father as the certificate of naturalization is null and void from the beginning, is devoid
of merit.

In this petition, Vilando seeks to disqualify Limkaichong on the ground that she is a Chinese citizen. To
prove his point, he makes reference to the alleged nullity of the grant of naturalization of Limkaichongs
father which, however, is not allowed as it would constitute a collateral attack on the citizenship of the
father. In our jurisdiction, an attack on a person's citizenship may only be done through a direct action for
its nullity.[13]
The proper proceeding to assail the citizenship of Limkaichongs father should be in accordance with
Section 18 of Commonwealth Act No. 473. As held in Limkaichong v. Comelec,[14] thus:
As early as the case of Queto v. Catolico,[15] where the Court of First Instance
judge motu propio and not in the proper denaturalization proceedings called to court
various grantees of certificates of naturalization (who had already taken their oaths of
allegiance) and cancelled their certificates of naturalization due to procedural infirmities,
the Court held that:
x x x It may be true that, as alleged by said respondents, that the
proceedings for naturalization were tainted with certain infirmities, fatal
or otherwise, but that is beside the point in this case. The jurisdiction of
the court to inquire into and rule upon such infirmities must be properly
invoked in accordance with the procedure laid down by law. Such
procedure is the cancellation of the naturalization certificate. [Section
1(5), Commonwealth Act No. 63], in the manner fixed in Section 18 of
Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion
made in the proper proceedings by the Solicitor General or his
representatives, or by the proper provincial fiscal." In other words, the
initiative must come from these officers, presumably after previous
investigation in each particular case.
Clearly, under law and jurisprudence, it is the State, through its representatives
designated by statute, that may question the illegally or invalidly procured certificate of
naturalization in the appropriate denaturalization proceedings. It is plainly not a matter
that may be raised by private persons in an election case involving the naturalized
citizens descendant.
Vilando asserts that as an incident in determining the eligibility of Limkaichong, the HRET, having the
plenary, absolute and exclusive jurisdiction to determine her qualifications, can pass upon the efficacy of
the certificate of naturalization.

True, the HRET has jurisdiction over quo warranto petitions, specifically over cases challenging
ineligibility on the ground of lack of citizenship. No less than the 1987 Constitution vests the HRET the
authority to be the sole judge of all contests relating to the election, returns and qualifications of its
Members. This constitutional power is likewise echoed in the 2004 Rules of the HRET. Rule 14 thereof
restates this duty, thus:

Rule 14. Jurisdiction. The Tribunal is the sole judge of all contests relating to the
election, returns, and qualifications of the Members of the House of Representatives.

Time and again, this Court has acknowledged this sole and exclusive jurisdiction of the HRET.[16] The
power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had
remained originally in the legislature.[17] Such power is regarded as full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any wise restrict it or curtail
it or even affect the same.[18]

Such power of the HRET, no matter how complete and exclusive, does not carry with it the authority to
delve into the legality of the judgment of naturalization in the pursuit of disqualifying Limkaichong. To
rule otherwise would operate as a collateral attack on the citizenship of the father which, as already stated,
is not permissible. The HRET properly resolved the issue with the following ratiocination:

xxx We note that Jocelyn C. Limkaichong, not the father Julio Ong Sy, is the respondent
in the present case. The Tribunal may not dwell on deliberating on the validity of
naturalization of the father if only to pursue the end of declaring the daughter as
disqualified to hold office.

Unfortunately, much as the Tribunal wants to resolve said issue, it cannot do so because
its jurisdiction is limited to the qualification of the proclaimed respondent Limkaichong,
being a sitting Member of the Congress.

Evidently, there is no basis to oblige the Tribunal to reopen the naturalization proceedings
for a determination of the citizenship of the ascendant of respondent. A petition for quo
warranto is not a means to achieve that purpose. To rule on this issue in this quo
warranto proceeding will not only be a clear grave abuse of discretion amounting to a
lack or excess of jurisdiction, but also a blatant violation of due process on the part of the
persons who will be affected or who are not parties in this case.[19]

Thus, the Office of the Solicitor General (OSG) wrote that a collateral attack against a judgment is
generally not allowed, unless the judgment is void upon its face or its nullity is apparent by virtue of its
own recitals.[20] Under the present situation, there is no evidence to show that the judgment is void on its
face:
As to the Order of the CFI, Negros Oriental dated July 9, 1957 and September 21, 1959
that were offered in evidence, far from proving an invalid oath of allegiance and
certificate of naturalization, being public records, they do in fact constitute legitimate
source of authority for the conferment of status of the father of respondent as naturalized
Filipino. Absent any contrary declaration by a competent court, the Tribunal presumes
 the validity of the CFI Orders of July 9, 1957 and September 21, 1959, and the resulting
documentations of Julio Sys acquisition of Filipino citizenship by naturalization as valid
and of legal effect. The oath of allegiance and certificate of naturalization are themselves
proofs of the actual conferment of naturalization.[21]

The HRET, therefore, correctly relied on the presumption of validity of the July 9, 1957 and September
21, 1959 Orders of the Court of First Instance (CFI) Negros Oriental, which granted the petition and
declared Julio Sy a naturalized Filipino absent any evidence to the contrary.
Records disclose that Limkaichong was born in Dumaguete City on November 9, 1959. The governing
law is the citizenship provision of the 1935 Constitution, the pertinent portion thereof, reads:

Article IV

Section 1. The following are citizens of the Philippines:

xxx
(3) Those whose fathers are citizens of the Philippines.

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of
majority, elect Philippine citizenship.

xxx

Indubitably, with Limkaichongs father having been conferred the status as a naturalized Filipino, it
follows that she is a Filipino citizen born to a Filipino father.

Even on the assumption that the naturalization proceedings and the subsequent issuance of certificate of
naturalization were invalid, Limkaichong can still be considered a natural-born Filipino citizen having
been born to a Filipino mother and having impliedly elected Filipino citizenship when she reached
majority age. The HRET is, thus, correct in declaring that Limkaichong is a natural-born Filipino citizen:

Respondent Limkaichong falls under the category of those persons whose fathers are
citizens of the Philippines. (Section 1(3), Article IV, 1935 Constitution) It matters not
whether the father acquired citizenship by birth or by naturalization. Therefore, following
the line of transmission through the father under the 1935 Constitution, the respondent
has satisfactorily complied with the requirement for candidacy and for holding office, as
she is a natural-born Filipino citizen.

Likewise, the citizenship of respondent Limkaichong finds support in paragraph 4,

Section 1, Article IV of the 1935 Constitution.

Having failed to prove that Anesia Sy lost her Philippine citizenship, respondent can be
considered a natural born citizen of the Philippines, having been born to a mother who
was a natural-born Filipina at the time of marriage, and because respondent was able to
elect citizenship informally when she reached majority age. Respondent participated in
the barangay elections as a young voter in 1976, accomplished voters affidavit as of
1984, and ran as a candidate and was elected as Mayor of La Libertad, Negros Oriental in
2004.These are positive acts of election of Philippine citizenship. The case of In
re: Florencio Mallare, elucidates how election of citizenship is manifested in actions
indubitably showing a definite choice. We note that respondent had informally elected
citizenship after January 17, 1973 during which time the 1973 Constitution considered as
citizens of the Philippines all those who elect citizenship in accordance with the 1935
Constitution. The 1987 Constitution provisions, i.e., Section 1(3), Article [IV] and
Section 2, Article [IV] were enacted to correct the anomalous situation where one born of
a Filipino father and an alien mother was automatically accorded the status of a natural-
born citizen, while one born of a Filipino mother and an alien father would still have to
elect Philippine citizenship yet if so elected, was not conferred natural-born status. It was
the intention of the framers of the 1987 Constitution to treat equally those born before the
1973 Constitution and who elected Philippine citizenship upon reaching the age of
majority either before or after the effectivity of the 1973 Constitution. Thus, those who
would elect Philippine citizenship under par. 3, Section 1, Article [IV] of the 1987
Constitution are now, under Section 2, Article [IV] thereof also natural-born
Filipinos. The following are the pertinent provisions of the 1987 Constitution:

Article IV

Section 1. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippines at the time of the
adoption of this Constitution;

(2) Those whose fathers or mothers are citizens of

the Philippines;

(3) Those born before January 17, 1973, of Filipino

mothers, who elect Philippine citizenship upon reaching the
age of majority; and

(4) Those who are naturalized in accordance with law.

Section 2. Natural-born citizens are those who are citizens of

the Philippines from birth without having to perform any act to acquire or perfect
their Philippine citizenship. Those who elect Philippine citizenship in
 accordance with paragraph (3), Section 1 hereof shall be deemed natural-
born citizens.[22]

Vilandos assertion that Limkaichong cannot derive Philippine citizenship from her mother because the
latter became a Chinese citizen when she married Julio Sy, as provided for under Section 1 (7) of
Commonwealth Act No. 63 in relation to Article 2 (1) Chapter II of the Chinese Revised Nationality Law
of February 5, 1959, must likewise fail.

As aptly pointed out by the HRET, Vilando was not able to offer in evidence a duly certified true copy of
the alleged Chinese Revised Law of Nationality to prove that Limkaichongs mother indeed lost her
Philippine citizenship. Verily, Vilando failed to establish his case through competent and admissible
evidence to warrant a reversal of the HRET ruling.

Also, an application for an alien certificate of registration (ACR) is not an indubitable proof of forfeiture
of Philippine citizenship. It is well to quote the ruling of the HRET on this matter, to wit:

An alien certificate of registration is issued to an individual who declares that he is not a

Filipino citizen. It is obtained only when applied for. It is in a form prescribed by the
agency and contains a declaration by the applicant of his or her personal information, a
photograph, and physical details that identify the applicant. It bears no indication of basis
for foreign citizenship, nor proof of change to foreign citizenship. It certifies that a
person named therein has applied for registration and fingerprinting and that such person
was issued a certificate of registration under the Alien Registration Act of 1950 or other
special law. It is only evidence of registration.

Unlike birth certificates registered pursuant to Act 3753 (The Civil Register Law), and
much less like other public records referred to under Section 23, Rule 132, an alien
certificate of registration is not a public document that would be prima facie evidence of
the truth of facts contained therein. On its face, it only certifies that the applicant had
submitted himself or herself to registration. Therefore, there is no presumption of
alienage of the declarant. This is especially so where the declarant has in fact been a
natural-born Filipino all along and never lost his or her status as such.[23]

Thus, obtaining an ACR by Limkaichongs mother was not tantamount to a repudiation of her original
citizenship. Neither did it result in an acquisition of alien citizenship.In a string of decisions, this Court
has consistently held that an application for, and the holding of, an alien certificate of registration is not
an act constituting renunciation of Philippine citizenship.[24] For renunciation to effectively result in the
loss of citizenship, the same must be express.[25] Such express renunciation is lacking in this case.

Accordingly, Limkaichongs mother, being a Filipino citizen, can transmit her citizenship to her daughter.
Well-settled is the principle that the judgments of the HRET are beyond judicial interference. The only
instance where this Court may intervene in the exercise of its so-called extraordinary jurisdiction is upon
a determination that the decision or resolution of the HRET was rendered without or in excess of its
jurisdiction, or with grave abuse of discretion or upon a clear showing of such arbitrary and improvident
use of its power to constitute a denial of due process of law, or upon a demonstration of a very clear
unmitigated error, manifestly constituting such grave abuse of discretion that there has to be a remedy for
such abuse.[26] In this case, there is no showing of any such arbitrariness or improvidence. The HRET
acted well within the sphere of its power when it dismissed the quo warranto petition.

In fine, this Court finds sufficient basis to sustain the ruling of the HRET which resolved the issue of
citizenship in favor of Limkaichong.

WHEREFORE, the petition is DENIED. Accordingly, the Court affirms the March 24, 2010 Decision of
the HRET declaring that Limkaichong is not disqualified as Member of the House of Representatives
representing the First District, Negros Oriental.

SO ORDERED.

HON. LUIS M. GENERAL vs. HON. ALEJANDRO URRO

G.R. No. 191560 March 29, 2011

Before the Court are the Consolidated Petitions for Quo Warranto,1 and Certiorari and/or
Prohibition2 with urgent prayer for the issuance of a temporary restraining order (TRO) and/or
preliminary injunction filed by Atty. Luis Mario General (petitioner). The petitioner seeks to declare
unconstitutional the appointments of Alejandro S. Urro, Constancia P. de Guzman and Eduardo U.
Escueta (collectively, the respondents) as Commissioners of the National Police Commission
(NAPOLCOM), and to prohibit then Executive Secretary Leandro Mendoza and Department of Interior
and Local Government (DILG) Secretary Ronaldo V. Puno from enforcing the respondents oath of office.
Particularly, the petitioner asks that respondent Urro be ousted as NAPOLCOM Commissioner and he be
allowed to continue in office.
THE ANTECEDENTS
On September 20, 2004, then President Gloria Macapagal-Arroyo (PGMA) appointed Imelda C. Roces
(Roces) as acting Commissioner of the NAPOLCOM, representing the civilian sector.3 On January 25,
2006, PGMA reappointed Roces as acting NAPOLCOM Commissioner.4 When Roces died in September
2007, PGMA appointed the petitioner on July 21, 20085 as acting NAPOLCOM Commissioner in place
of Roces. On the same date, PGMA appointed Eduardo U. Escueta (Escueta) as acting NAPOLCOM
Commissioner and designated him as NAPOLCOM Vice Chairman.6
Later, PGMA appointed Alejandro S. Urro (Urro) in place of the petitioner, Constancia P. de Guzman in
place of Celia Leones, and Escueta as permanent NAPOLCOM Commissioners. Urros appointment
paper is dated March 5, 2010; while the appointment papers of De Guzman and Escueta are both dated
March 8, 2010.7 On March 9, 2010, Escueta took his oath of office before Makati Regional Trial Court
Judge Alberico Umali.8
In a letter dated March 19, 2010, DILG Head Executive Assistant/Chief-of-Staff Pascual V. Veron Cruz,
Jr. issued separate congratulatory letters to the respondents. The letter uniformly reads.
You have just been appointed COMMISSIONER xxx National Police Commission. xxx Attached is your
appointment paper duly signed by Her Excellency, President Macapagal Arroyo.9
After being furnished a copy of the congratulatory letters on March 22, 2010, 10 the petitioner filed the
present petition questioning the validity of the respondents appointments mainly on the ground that it
violates the constitutional prohibition against midnight appointments.11
On March 25, 2010 and April 27, 2010, respondents Urro and de Guzman took their oath of office as
NAPOLCOM Commissioners before DILG Secretary Puno and Sandiganbayan Associate Justice Jose R.
Hernandez, respectively.12
On July 30, 2010, the newly elected President of the Republic of the Philippines, His Excellency Benigno
S. Aquino III, issued Executive Order No. 2 (E.O. No. 2) "Recalling, Withdrawing, and Revoking
Appointments Issued by the Previous Administration in Violation of the Constitutional Ban on Midnight
Appointments." The salient portions of E.O. No. 2 read:
SECTION 1. Midnight Appointments Defined. The following appointments made by the former
President and other appointing authorities in departments, agencies, offices, and instrumentalities,
including government-owned or controlled corporations, shall be considered as midnight appointments:
(a) Those made on or after March 11, 2010, including all appointments bearing dates prior to
March 11, 2010 where the appointee has accepted, or taken his oath, or assumed public office on
or after March 11, 2010, except temporary appointments in the executive positions when
continued vacancies will prejudice public service or endanger public safety as may be determined
by the appointing authority.
(b) Those made prior to March 11, 2010, but to take effect after said date or appointments to
office that would be vacant only after March 11, 2010.
(c) Appointments and promotions made during the period of 45 days prior to the May 10, 2010
elections in violation of Section 261 of the Omnibus Election Code.
SECTION 2. Recall, Withdraw, and Revocation of Midnight Appointments. Midnight appointments, as
defined under Section 1, are hereby recalled, withdrawn, and revoked. The positions covered or otherwise
affected are hereby declared vacant. (Emphasis supplied.)
THE PETITION
The petitioner claims that Roces was supposed to serve a full term of six years counted from the date of
her appointment in October (should be September) 2004.13 Since she failed to finish her six-year term,
then the petitioner is entitled to serve this unexpired portion or until October (should be September)
2010.14 The petitioner invokes Republic Act (R.A.) No. 697515 (otherwise known as the Department of
the Interior and Local Government Act of 1990) which requires that vacancies in the NAPOLCOM "shall
be filled up for the unexpired term only."16 Because of the mandatory word "shall," the petitioner
concludes that the appointment issued to him was really a "regular" appointment, notwithstanding what
appears in his appointment paper. As a regular appointee, the petitioner argues that he cannot be removed
from office except for cause.
The petitioner alternatively submits that even if his appointment were temporary, a temporary
appointment does not give the President the license to abuse a public official simply because he lacks
security of tenure.17 He asserts that the validity of his termination from office depends on the validity of
the appointment of the person intended to replace him. He explains that until a presidential appointment is
"officially released," there is no "appointment" to speak of. Since the appointment paper of respondent
Urro, while bearing a date prior to the effectivity of the constitutional ban on appointments,18 was
officially released (per the congratulatory letter dated March 19, 2010 issued to Urro) when the
appointment ban was already in effect, then the petitioners appointment, though temporary in nature,
should remain effective as no new and valid appointment was effectively made.
The petitioner assails the validity of the appointments of respondents De Guzman and Escueta, claiming
that they were also made in violation of the constitutional ban on appointments.
THE COMMENTS OF THE RESPONDENTS and THE OFFICE
OF THE SOLICITOR GENERAL (OSG)
Prefatorily, the respondents characterize Escuetas inclusion in the present petition as an error since his
appointment, acceptance and assumption of office all took place before the constitutional ban on
appointments started. Thus, there is no "case or controversy" as to Escueta.
The respondents posit that the petitioner is not a real party-in-interest to file a petition for quo warranto
since he was merely appointed in an acting capacity and could be validly removed from office at anytime.
The respondents likewise counter that what the ban on midnight appointments under Section 15, Article
VII of the Constitution prohibits is only the making of an appointment by the President sixty (60) days
before the next presidential elections and until his term expires; it does not prohibit the acceptance by the
appointee of his appointment within the same prohibited period.19 The respondents claim that
"appointment" which is a presidential act, must be distinguished from the "acceptance" or "rejection" of
the appointment, which is the act of the appointee. Section 15, Article VII of the Constitution is directed
only against the President and his act of appointment, and is not concerned with the act/s of the appointee.
Since the respondents were appointed (per the date appearing in their appointment papers) before the
constitutional ban took effect, then their appointments are valid.
The respondents assert that their appointments cannot be considered as midnight appointments under the
Dominador R. Aytona v. Andres V. Castillo, et al.20 ruling, as restated in In Re: Appointments dated
March 30, 1998 of Hon. Mateo A. Valenzuela, et al.21 and Arturo M. de Castro v. Judicial and Bar
Council, et al.,22 since the petitioner failed to substantiate his claim that their appointments were made
only "for the purpose of influencing the Presidential elections," or for "partisan reasons."23
The respondents pray for the issuance of a TRO to stop the implementation of E.O. No. 2, and for the
consolidation of this case with the pending cases of Tamondong v. Executive Secretary24 and De Castro
v. Office of the President25 which similarly assail the validity of E.O. No. 2.
On the other hand, while the OSG considers the respondents appointments within the scope of "midnight
appointments" as defined by E.O. No. 2, the OSG nonetheless submits that the petitioner is not entitled to
the remedy of quo warranto in view of the nature of his appointment. The OSG claims that since an
appointment in an acting capacity cannot exceed one year, the petitioners appointment ipso facto expired
on July 21, 2009.26
PETITIONERS REPLY
The petitioner argues in reply that he is the legally subsisting commissioner until another qualified
commissioner is validly appointed by the new President to replace him.27
The petitioner likewise claims that the respondents appeared to have skirted the element of issuance of an
appointment in considering whether an appointment is made. The petitioner asserts that to constitute an
appointment, the Presidents act of affixing his signature must be coupled with the physical issuance of
the appointment to the appointee i.e., the appointment paper is officially issued in favor of the appointee
through the Presidents proper Cabinet Secretary. The making of an appointment is different from its
issuance since prior to the official issuance of an appointment, the appointing authority enjoys the
prerogative to change his mind. In the present case, the respondents appointment papers were officially
issued and communicated to them only on March 19, 2010, well within the period of the constitutional
ban, as shown by the congratulatory letters individually issued to them.
Given this premise, the petitioner claims that he correctly impleaded Escueta in this case since his
appointment also violates the Constitution. The petitioner adds that Escueta was appointed on July 21,
2008, although then as acting NAPOLCOM Commissioner. By permanently appointing him as
NAPOLCOM Commissioner, he stands to be in office for more than six years, in violation of R.A. No.
6975.28
The petitioner argues that even granting that the President can extend appointments in an acting capacity
to NAPOLCOM Commissioners, it may not be done by "successive appointments" in the same capacity
without violating R.A. No. 6975, as amended, which provides a fixed and staggered term of office for
NAPOLCOM Commissioners.29
THE COURTS RULING
We dismiss the petition for lack of merit.
When questions of constitutional significance are raised, the Court can exercise its power of judicial
review only if the following requisites are present: (1) the existence of an actual and appropriate case; (2)
the existence of personal and substantial interest on the part of the party raising the constitutional
question; (3) recourse to judicial review is made at the earliest opportunity; and (4) the constitutional
question is the lis mota of the case.30
Both parties dwelt lengthily on the issue of constitutionality of the respondents appointments in light of
E.O. No. 2 and the subsequent filing before the Court of several petitions questioning this Executive
Order. The parties, however, appear to have overlooked the basic principle in constitutional adjudication
that enjoins the Court from passing upon a constitutional question, although properly presented, if the
case can be disposed of on some other ground.31 In constitutional law terms, this means that we ought to
refrain from resolving any constitutional issue "unless the constitutional question is the lis mota of the
case."
Lis mota literally means "the cause of the suit or action." This last requisite of judicial review is simply an
offshoot of the presumption of validity accorded the executive and legislative acts of our co-equal
branches of the government. Ultimately, it is rooted in the principle of separation of powers. Given the
presumed validity of an executive act, the petitioner who claims otherwise has the burden of showing first
that the case cannot be resolved unless the constitutional question he raised is determined by the Court.32
In the present case, the constitutionality of the respondents appointments is not the lis mota of the case.
From the submitted pleadings, what is decisive is the determination of whether the petitioner has a cause
of action to institute and maintain this present petition a quo warranto against respondent Urro. If the
petitioner fails to establish his cause of action for quo warranto, a discussion of the constitutionality of the
appointments of the respondents is rendered completely unnecessary. The inclusion of the grounds for
certiorari and/or prohibition does not alter the essential character of the petitioners action since he does
not even allege that he has a personal and substantial interest in raising the constitutional issue insofar as
the other respondents are concerned.
The resolution of whether a cause of action exists, in turn, hinges on the nature of the petitioners
appointment. We frame the issues under the following questions:
1. What is the nature of the petitioners appointment as acting NAPOLCOM Commissioner?
2. Does the petitioner have the clear right to be reinstated to his former position and to oust
respondent Urro as NAPOLCOM Commissioner?
I. Nature of petitioners appointment
a. A staggered term of office is not inconsistent with an acting appointment
The petitioner asserts that contrary to what appears in his appointment paper, the appointment extended to
him was really a regular appointment; thus, he cannot be removed from office except for cause. The
petitioner argues that the appointment of an acting NAPOLCOM Commissioner or, at the very least, the
"successive appointments" of NAPOLCOM Commissioners in an acting capacity contravenes the
safeguards that the law - R.A. No. 6975 - intends through the staggered term of office of NAPOLCOM
Commissioners.
Notably, the petitioner does not expressly claim that he was issued a permanent appointment; rather, he
claims that his appointment is actually a regular appointment since R.A. No. 6975 does not allegedly
allow an appointment of a NAPOLCOM Commissioner in an acting capacity.
At the outset, the petitioners use of terms needs some clarification. Appointments may be classified into
two: first, as to its nature; and second, as to the manner in which it is made.34
Under the first classification, appointments can either be permanent or temporary (acting). A basic
distinction is that a permanent appointee can only be removed from office for cause; whereas a temporary
appointee can be removed even without hearing or cause.35 Under the second classification, an
appointment can either be regular or ad interim. A regular appointment is one made while Congress is in
session, while an ad interim appointment is one issued during the recess of Congress. In strict terms,
presidential appointments that require no confirmation from the Commission on Appointments36 cannot
be properly characterized as either a regular or an ad interim appointment.
In this light, what the petitioner may have meant is a permanent (as contrasted to a temporary or acting)
appointment to the office of a NAPOLCOM Commissioner, at least for the duration of the unexpired
portion of his predecessor (Roces).
Generally, the power to appoint vested in the President includes the power to make temporary
appointments, unless he is otherwise specifically prohibited by the Constitution or by the law, or where an
acting appointment is repugnant to the nature of the office involved.37 The Presidents power to issue an
acting appointment is particularly authorized by the Administrative Code of 1987 (Executive Order No.
292).
CHAPTER 5
POWER OF APPOINTMENT
Section 16. Power of Appointment. - The President shall exercise the power to appoint such officials as
provided for in the Constitution and laws.
Section 17. Power to Issue Temporary Designation.
(1) The President may temporarily designate an officer already in the government service or any
other competent person to perform the functions of an office in the executive branch, appointment
to which is vested in him by law, when: (a) the officer regularly appointed to the office is unable
to perform his duties by reason of illness, absence or any other cause; or (b) there exists a
vacancy;
(2) xxx
(3) In no case shall a temporary designation exceed one (1) year.
The purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official
functions by authorizing a person to discharge those functions pending the selection of a permanent or
another appointee. An acting appointee accepts the position on the condition that he shall surrender the
office once he is called to do so by the appointing authority. Therefore, his term of office is not fixed but
endures at the pleasure of the appointing authority. His separation from the service does not import
removal but merely the expiration of his term a mode of termination of official relations that falls
outside the coverage of the constitutional provision on security of tenure38 since no removal from office
is involved.
The power to appoint is essentially executive in nature39 and the limitations on or qualifications in the
exercise of this power are strictly construed.40 In the present case, the petitioner posits that the law itself,
R.A. No. 6975, prohibits the appointment of a NAPOLCOM Commissioner in an acting capacity by
staggering his term of office. R.A. No. 6975, on the term of office, states:
Section 16. Term of Office. The four (4) regular and full-time Commissioners shall be appointed by the
President upon the recommendation of the Secretary. Of the first four (4) commissioners to be appointed,
two (2) commissioners shall serve for six (6) years and the two (2) other commissioners for four (4) years.
All subsequent appointments shall be for a period of six (6) years each, without reappointment or
extension.
Generally, the purpose for staggering the term of office is to minimize the appointing authoritys
opportunity to appoint a majority of the members of a collegial body. It also intended to ensure the
continuity of the body and its policies.41 A staggered term of office, however, is not a statutory
prohibition, direct or indirect, against the issuance of acting or temporary appointment. It does not negate
the authority to issue acting or temporary appointments that the Administrative Code grants.
Ramon P. Binamira v. Peter D. Garrucho, Jr.,42 involving the Philippine Tourism Authority (PTA), is an
example of how this Court has recognized the validity of temporary appointments in vacancies in offices
whose holders are appointed on staggered basis. Under Presidential Decree (P.D.) No. 189,43 (the charter
of the PTA, as amended by P.D. No. 56444 and P.D. No. 140045), the members of the PTAs governing
body are all presidential appointees whose terms of office are also staggered.46 This, notwithstanding, the
Court sustained the temporary character of the appointment extended by the President in favor of the PTA
General Manager, even if the law47 also fixes his term of office at six years unless sooner removed for
cause.
Interestingly, even a staggered term of office does not ensure that at no instance will the appointing
authority appoint all the members of a body whose members are appointed on staggered basis.
The post-war predecessor of the NAPOLCOM was the Police Commission created under R.A. No.
4864.48Pursuant to the 1987 constitutional provision mandating the creation of one national civilian
police force,49Congress enacted R.A. No. 6975 and created the NAPOLCOM to exercise, inter alia,
"administrative control over the Philippine National Police." Later, Congress enacted R.A. No. 8551
which substantially retained the organizational structure, powers and functions of the
NAPOLCOM.50 Under these laws, the President has appointed the members of the Commission whose
terms of office are staggered.
Under Section 16 of R.A. No. 6975, the NAPOLCOM Commissioners are all given a fixed term of six
years (except the two of the first appointees who hold office only for four years). By staggering their
terms of office however, the four regular commissioners would not vacate their offices at the same time
since a vacancy will occur every two years.
Under the NAPOLCOM set up, the law does not appear to have been designed to attain the purpose of
preventing the same President from appointing all the NAPOLCOM Commissioners by staggering their
terms of office. R.A. No. 6975 took effect on January 1, 1991. In the usual course, the term of office of
the first two regular commissioners would have expired in 1997, while the term of the other two
commissioners would have expired in 1995. Since the term of the President elected in the first national
elections under the 1987 Constitution expired on June 30, 1998, then, theoretically, the sitting President
for the 1992-1998 term could appoint all the succeeding four regular NAPOLCOM Commissioners. The
next President, on the other hand, whose term ended in 2004, would have appointed the next succeeding
Commissioners in 2001 and 2003.
It is noteworthy, too, that while the Court nullified the attempt of Congress to consider the terms of office
of the then NAPOLCOM Commissioners as automatically expired on the ground that there was no bona
fide reorganization of the NAPOLCOM,51 a provision on the staggering of terms of office is evidently
absent in R.A. No. 8551 - the amendatory law to R.A. No. 6975. Section 7 of R.A. No. 8551 reads:
Section 7. Section 16 of Republic Act No. 6975 is hereby amended to read as follows:
"SEC. 16. Term of Office. The four (4) regular and full-time Commissioners shall be appointed by the
President for a term of six (6) years without re-appointment or extension."
Thus, as the law now stands, the petitioners claim that the appointment of an acting NAPOLCOM
Commissioner is not allowed based on the staggering of terms of office does not even have any statutory
basis.
Given the wide latitude of the Presidents appointing authority (and the strict construction against any
limitation on or qualification of this power), the prohibition on the President from issuing an acting
appointment must either be specific, or there must be a clear repugnancy between the nature of the office
and the temporary appointment. No such limitation on the Presidents appointing power appears to be
clearly deducible from the text of R.A. No. 6975 in the manner we ruled in Nacionalista Party v.
Bautista.52 In that case, we nullified the acting appointment issued by the President to fill the office of a
Commissioner of the Commission on Elections (COMELEC) on the ground that it would undermine the
independence of the COMELEC. We ruled that given the specific nature of the functions performed by
COMELEC Commissioners, only a permanent appointment to the office of a COMELEC Commissioner
can be made.
Under the Constitution, the State is mandated to establish and maintain a police force to be administered
and controlled by a national police commission. Pursuant to this constitutional mandate, the Congress
enacted R.A. No. 6975, creating the NAPOLCOM with the following powers and functions:53
Section 14. Powers and Functions of the Commission. The Commission shall exercise the following
powers and functions:
(a) Exercise administrative control and operational supervision over the Philippine National
Police which shall mean the power to:
xxxx
b) Advise the President on all matters involving police functions and administration;
c) Render to the President and to the Congress an annual report on its activities and
accomplishments during the thirty (30) days after the end of the calendar year, which shall
include an appraisal of the conditions obtaining in the organization and administration of police
agencies in the municipalities, cities and provinces throughout the country, and recommendations
for appropriate remedial legislation;
d) Recommend to the President, through the Secretary, within sixty (60) days before the
commencement of each calendar year, a crime prevention program; and
 e) Perform such other functions necessary to carry out the provisions of this Act and as the
President may direct. [Emphasis added.]
We find nothing in this enumeration of functions of the members of the NAPOLCOM that would be
subverted or defeated by the Presidents appointment of an acting NAPOLCOM Commissioner pending
the selection and qualification of a permanent appointee. Viewed as an institution, a survey of pertinent
laws and executive issuances54 will show that the NAPOLCOM has always remained as an office under
or within the Executive Department.55 Clearly, there is nothing repugnant between the petitioners acting
appointment, on one hand, and the nature of the functions of the NAPOLCOM Commissioners or of the
NAPOLCOM as an institution, on the other.
b. R.A. No. 6975 does not prohibit the appointment of an acting NAPOLCOM Commissioner in filling up
vacancies in the NAPOLCOM
The petitioner next cites Section 18 of R.A. No. 6975 to support his claim that the appointment of a
NAPOLCOM Commissioner to fill a vacancy due to the permanent incapacity of a regular Commissioner
can only be permanent and not temporary:
Section 18. Removal from Office. The members of the Commission may be removed from office for
cause. All vacancies in the Commission, except through expiration of term, shall be filled up for the
unexpired term only: Provided, That any person who shall be appointed in this case shall be eligible for
regular appointment for another full term.
Nothing in the cited provision supports the petitioners conclusion. By using the word "only" in Section
18 of R.A. No. 6975, the laws obvious intent is only to prevent the new appointee from serving beyond
the term of office of the original appointee. It does not prohibit the new appointee from serving less than
the unexpired portion of the term as in the case of a temporary appointment.
While the Court previously inquired into the true nature of a supposed acting appointment for the purpose
of determining whether the appointing power is abusing the principle of temporary appointment,56 the
petitioner has not pointed to any circumstance/s which would warrant a second look into and the
invalidation of the temporary nature of his appointment.57
Even the petitioners citation of Justice Punos58 dissenting opinion in Teodoro B. Pangilinan v.
Guillermo T. Maglaya, etc.59 is inapt. Like the petitioner, Pangilinan was merely appointed in an acting
capacity and unarguably enjoyed no security of tenure. He was relieved from the service after exposing
certain anomalies involving his superiors. Upon hearing his plea for reinstatement, the Court unanimously
observed that Pangilinans relief was a punitive response from his superiors. The point of disagreement,
however, is whether Pangilinans lack of security of tenure deprives him of the right to seek
reinstatement. Considering that the law (Administrative Code of 1987) allows temporary appointments
only for a period not exceeding twelve (12) months, the majority considered Pangilinan to be without any
judicial remedy since at the time of his separation, he no longer had any right to the office. Justice Puno
dissented, arguing that Pangilinans superiors abuse of his temporary appointment furnishes the basis for
the relief he seeks.
In the present case, the petitioner does not even allege that his separation from the office amounted to an
abuse of his temporary appointment that would entitle him to the incidental benefit of reinstatement.60 As
we did in Pangilinan,61 we point out that the petitioners appointment as Acting Commissioner was time-
limited. His appointment ipso facto expired on July 21, 2009 when it was not renewed either in an acting
or a permanent capacity. With an expired appointment, he technically now occupies no position on which
to anchor his quo warranto petition.
c. The petitioner is estopped from claiming that he was permanently appointed
The petitioners appointment paper is dated July 21, 2008. From that time until he was apprised on March
22, 2010 of the appointment of respondent Urro, the petitioner faithfully discharged the functions of his
office without expressing any misgivings on the character of his appointment. However, when called to
relinquish his office in favor of respondent Urro, the petitioner was quick on his feet to refute what
appeared in his appointment papers.
Under these facts, the additional circumstance of estoppel clearly militates against the petitioner. A person
who accepts an appointment in an acting capacity, extended and received without any protest or
reservation, and who acts by virtue of that appointment for a considerable time, cannot later on be heard
to say that the appointment was really a permanent one so that he could not be removed except for
cause.62
II. An acting appointee has no cause of action for quo warranto against the new appointee
The Rules of Court requires that an ordinary civil action must be based on a cause of action, 63 which is
defined as an act or omission of one party in violation of the legal right of the other which causes the
latter injury. While a quo warranto is a special civil action, the existence of a cause of action is not any
less required since both special and ordinary civil actions are governed by the rules on ordinary civil
actions subject only to the rules prescribed specifically for a particular special civil action.64
Quo warranto is a remedy to try disputes with respect to the title to a public office. Generally, quo
warranto proceedings are commenced by the Government as the proper party-plaintiff. However, under
Section 5, Rule 66 of the Rules of Court, an individual may commence such action if he claims to be
entitled to the public office allegedly usurped by another. We stress that the person instituting the quo
warranto proceedings in his own behalf must show that he is entitled to the office in dispute; otherwise,
the action may be dismissed at any stage.65 Emphatically, Section 6, Rule 66 of the same Rules requires
the petitioner to state in the petition his right to the public office and the respondents unlawful possession
of the disputed position.
As early as 1905,66 the Court already held that for a petition for quo warranto to be successful, the suing
private individual must show a clear right to the contested office.67 His failure to establish this right
warrants the dismissal of the suit for lack of cause of action; it is not even necessary to pass upon the right
of the defendant who, by virtue of his appointment, continues in the undisturbed possession of his
office.68
Since the petitioner merely holds an acting appointment (and an expired one at that), he clearly does not
have a cause of action to maintain the present petition.69 The essence of an acting appointment is its
temporariness and its consequent revocability at any time by the appointing authority.70 The petitioner in
a quo warranto proceeding who seeks reinstatement to an office, on the ground of usurpation or illegal
deprivation, must prove his clear right71 to the office for his suit to succeed; otherwise, his petition must
fail.
From this perspective, the petitioner must first clearly establish his own right to the disputed office as a
condition precedent to the consideration of the unconstitutionality of the respondents appointments. The
petitioners failure in this regard renders a ruling on the constitutional issues raised completely
unnecessary. Neither do we need to pass upon the validity of the respondents appointment. These latter
issues can be determined more appropriately in a proper case.
WHEREFORE, the petition is DISMISSED.
SO ORDERED.

MUNDER vs. COMELEC

G.R. No. 194076 October 19, 2011

Jurisprudence has clearly established the doctrine that a petition for disqualification and a petition to deny
due course to or to cancel a certificate of candidacy, are two distinct remedies to prevent a candidate from
entering an electoral race. Both remedies prescribe distinct periods to file the corresponding petition, on
which the jurisdiction of the Commission on Elections (Comelec) over the case is dependent. The present
case, assailing a resolution of the Comelec En Banc, is not an exception. It must follow the rule set by law
and jurisprudential doctrine.
The consolidated cases before us stem from a controversy resolved by the Comelec En Banc in SPA No.
10-086(DC) in its Resolution*promulgated on 04 October 2010.[1]The Comelec En Banc reversed the
earlier Resolution[2] of the Comelec Second Division and disqualified petitioner Alfais T.
Munder (Munder) from holding office as Mayor of Bubong, Lanao del Sur.

The Antecedents

In the last national election, which included the election of local elective officials, petitioner Munder ran
as mayor of Bubong, Lanao del Sur, and filed his certificate of candidacy (CoC) on 26 November
2009. The last day for filing the certificate of candidacy was on 30 November 2009.[3] Under Sec. 4(A)
(1) of Comelec Resolution 8696, a petition to deny due course or to cancel a certificate of candidacy must
be filed within five days from the last day of the filing of the certificate of candidacy but not later than
twenty-five days from the filing thereof.[4] Respondent Atty. Tago Sarip (Sarip) likewise filed a
certificate of candidacy and vied for the same position in the same municipality.
On 13 April 2010, Sarip filed a Petition for Disqualification [5]with the Comelec on the ground that
Munder was not a registered voter of Bubong, Lanao del Sur, and that the latters application for candidacy
was not accomplished in full.

Sarip corroborated his allegation that Munder was not a registered voter by presenting a Certification
from Amerah M. Hadji Sarip - Election Officer of Bubong, Lanao del Sur that, in the election list, there
was no Alfais T. Munder born on 7 May 1987. [6]He also presented a copy of a Voter Certification of one
Munder, Alfais Tocalo, residing at Rogero, Bubong, Lanao del Sur, whose date of birth was 05/07/1984,
and who was registered as a voter on 7/26/2003. The said person was 18 years old at that time. [7] On the
other hand, petitioner Munders CoC for Mayor contained the name of a candidate as Munder, Alfais
Tocalo, 22 years old, with residence at Barangay Montia-an, Bubong, Lanao del Sur, and whose date of
birth was 05-07-1987.[8]

Capitalizing on the seeming inconsistencies, Sarip argued that the candidate Munder was different from
the registered voter Munder, since they had different birth years. Consequently, according to Sarip,
Munder did not possess the qualification to run as elective official and should be disqualified. Sarip also
maintained that Munder had committed dishonesty and falsity in stating that the latter was a registered
voter of Bubong, Lanao del Sur. Sarip filed his Petition for Disqualification pursuant to Resolution No.
8696, Section 4 (B) 1 and argued that he had timely filed the petition. Munder, on the other hand,
countered that he was a registered voter of Precinct No. 0033, Barangay Rogero, Municipality of Bubong,
Lanao del Sur.[9]

In the 10 May 2010 elections, Munder won overwhelmingly. Garnering 4,793 votes, he had more than
twice the number obtained by Sarip, who came in second with 2,356 votes. The Municipal Board of
Canvassers of Bubong, Lanao del Sur, thus proclaimed Munder as mayor on 15 May 2010. He filed his
answer on 22 May 2010.

In his Answer with Affirmative Defenses, [10]Munder denied committing any misrepresentation in his
CoC. He also argued that false representations, dishonesty and mockery of justice were not grounds for
disqualification of a candidate under Comelec Resolution No. 8696. In effect, he argued that Sarip had
availed himself of the wrong remedy and that the latters petition should be treated as a Petition to Deny
Due Course to or to Cancel Certificate of Candidacy. At the time Sarip filed his petition, the said period
had already lapsed. Munder thus prayed for the dismissal of the formers petition against him.

On 29 June 2010, the Comelec Second Division sustained Munders arguments and dismissed Sarips
Petition. It agreed with Munder that the grounds invoked by Sarip were not proper for a petition for
disqualification, and that the latters petition was actually seeking the purging of Munders CoC. It partly
held:

...[I]t appears that the nucleus of petitioners cause of action to sustain his petition are
the misrepresentations (respondent not being a registered voter of Municipality of
Bubong, Lanao del Sur and the respondent was still a minor when he registered as a
voter of the said municipality) allegedly perpetrated by the respondent, and the failure
of the respondent to accomplish the formalities of his COC (the respondents failure to
indicate his precinct and to affix his thumbprint therein). We view all these disputations
raised by the petitioner inappropriate for the petition for disqualification. These are not
grounds for the petition for disqualification contemplated by the rules. In quintessence
(sic) of the action taken the petitioner is actually seeking the denial or cancellation
of the respondents COC invoking false material representation of the respondents
 qualification(s). However, the filing of a petition under this remedy has a prescriptive
period which must be strictly followed. Under the rules, a verified petition to deny due
course or to cancel certificate of candidacy may be filed by any person within five (5)
days from the last day for the filing of certificate of candidacy but not later than twenty-
five (25) days from the filing of certificate of candidacy under Section 78 of the
Omnibus Election Code. Pursuant to the above rule, the petitioner has twenty-five
(25) days after the filing the assailed COC or until December 21, 2009 to file the
petition. Since the instant petition was filed only on March 13, 2010 or one hundred-
seven (107) days beyond the reglementary period to file a petition to deny due course or
to cancel the respondents COC, the petitioner miserably failed to file his petition within

the prescribed period. A petition to deny due course or to cancel a certificate of

candidacy filed beyond the required period is filed out of time and may be not
entertained.An attempt to circumvent the rules on prescription of period to file a
petition to deny due course or to cancel COC in disguise of a petition for qualification
will not be countenanced in this jurisdiction.

Anent the contention of the petitioner vis-a-vis the failure of the respondent to comply
with the formalities of the COC, the law governing the contents of the COC is Section
74 of the Omnibus Election Code. The alleged defect on the COC of the respondent,
which is, failure to indicate therein his precinct and his failure to affix his thumbprint
are not among those mandatory requirements enumerated under the aforementioned
law. Hence, those assailed flaw in the formalities of the respondents COC does not
warrant the invalidation of the same. At most, it can only be considered as a minor
inadvertence on the part of the respondent which does not necessarily nullify his COC.
It has been held that when the law does not provide otherwise, a departure from the
requirements of law which has been due to honest mistake or misinterpretation of the
law on the part of him who is obligated to observe it and such departure has not been
used as a means for fraudulent practices, will he held directory and such departure will
be considered a harmless irregularity.[11] (Emphases supplied)

The outcome was, however, different when the Comelec En Banc, upon Sarips Motion for
Reconsideration,[12]reversed the ruling of the Second Division and disqualified Munder in its 4 October
2010 Resolution. The Comelec ruled directly on the substantive merit of the case, and not on the propriety
of the remedy taken by Sarip. It thus ruled on the question of the continuing possession by Munder of one
of the qualifications of the office of the Mayor being a registered voter of the municipality where he runs
as a candidate.

The Comelec En Banc decided the case on a single issue whether the person described in the CoC and in
the Certificate of Live Birth referred to the same person in the Voters Certification, petitioner Alfais
Tocalo Munder. The Comelec En Banc ruled on this factual issue, stating that the said persons were not
one and the same, as they had different birth years. The Comelec held thus:
 ...It is difficult to reconcile that the ALFAIS TOCALO MUNDER who filed his COC,
showing his intent to run as municipal mayor of Bubong, Lanao del Sur is one and the
same person as that of ALFAIS TOCALO MUNDER who registered as voter
of Barangay Rogero, Bubong, Lanao del Sur when records show that the ALFAIS
TOCALO MUNDER who filed his COC indicated his date of birth as MAY 7, 1987
(as supported by the Certificate of Live Birth issued by the NSO) while the ALFAIS
TOCALO MUNDER who registered as voter of Barangay Rogero, Bubong, Lanao del
Sur indicated his date of birth as MAY 7, 1984. No person can be born twice.[13]

The Comelec also disregarded the fact that Munder had already been proclaimed as mayor of Bubong,
Lanao del Sur. Consequently, it ruled against him and proceeded to declare him disqualified to hold the
office of the mayor, for which he had been elected. The Comelec En Banc held:

The Supreme Court has time and again ruled that qualifications for an elective office are
continuing requirements and once any of them is lost, title to the office is
forfeited. Munder lacking the requisite qualification of being a registered voter, should
be removed from office.[14]

It ordered Munder to vacate the Office of the Mayor, and the elected vice-mayor to assume the position of
mayor. It further directed the Department of Interior and Local Government and the Philippine National
Police (PNP) to implement the Resolution against Munder. From this Resolution originated the two
petitions filed by the two rivals for the mayoral position.

At the instance of Munder, we issued on 18 January 2011, a Temporary Restraining Order against the
Comelec, DILG and PNP from implementing the 4 October 2010 Resolution of the Comelec removing
Munder from the office.[15] The impending execution of the Comelecs Resolution created divisiveness
and disorder in the municipality of Bubong such that even the military attested that they were on red alert
due to the volatile political situation in the area brought about by the possible ouster of Munder. The Vice
Mayor also prematurely assumed the office of the mayor and allegedly withdrew the Internal Revenue
Allocation without a resolution from the Sangguniang Bayan. This aggravated the tension that had
already been created by the election dispute between the petitioners of these consolidated petitions. The
Court, thus, deemed a TRO justified to prevent disorder and bloodshed in Bubong.

In his petition, Munder argues that the Comelec acted without or in excess of its jurisdiction in taking
cognizance of Sarips petition which was filed beyond the reglementary period provided by law. Munder
claims that Sarip should have instead filed a petition for quo warranto after the formers proclamation as
the winning candidate. Munder likewise asserts that the Comelec committed grave abuse of discretion in
effectively ruling upon his right to vote, when it attacked his status as a registered voter, in order to
disqualify him from the mayoralty office.
Sarip, on the other hand, argues that the Comelec En Banc also acted with grave abuse of discretion in not
declaring him entitled to assume the office of the municipal mayor of Bubong, Lanao del Sur after the
disqualification of respondent Munder.

Public respondent Comelec, through the Office of the Solicitor General, chose to file its Comment only
with respect to G.R. No. 194160, Sarips Petition. It reiterated the legal doctrine that the second placer
cannot be declared a winner in case the candidate who obtained the highest number of votes is
disqualified. The OSG opposed Sarips prayer that he, instead of the Vice-Mayor, be installed as Mayor of
Bubong, Lanao del Sur.
The Issues
(1) May a petition filed as a Petition for Disqualification properly invoke, as a
ground, that the candidate sought to be disqualified was not a registered voter and
thus not be barred by the earlier prescriptive period applicable to Petition to Deny
Due Course to or to Cancel Certificate of Candidacy?

(2) Did the Comelec commit grave abuse of discretion in concluding that the Alfais
Munder in the voters list is not the same as Alfais Munder the candidate?

(3) Does Sarip have the right to be installed as Mayor of Bubong, Lanao del Sur for
having placed second in the electoral contest therefor?

The Courts Ruling

The Comelec has the constitutional mandate to enforce and administer all laws and regulations relative to
the conduct of an election.[16] It has the power to create its own rules and regulations, a power it
exercised on 11 November 2009 in promulgating Resolution No. 8696, or the Rules on Disqualification
of Cases filed in Connection with the May 10, 2010 Automated National and Local Elections. Section 4
thereof provides for the procedure to be followed in filing the following petitions: 1) Petition to Deny Due
Course to or Cancel Certificate of Candidacy; 2) Petition to Declare a Nuisance Candidate, and 3) petition
to disqualify a candidate pursuant to Section 68 of the Election Code and petition to disqualify for lack of
qualifications or for possessing some grounds for disqualification.

Resolution No. 8696 provides for the venue for the filing of the petitions and the period within which they
should be filed. The validity of the said Resolution has been recognized by this Court in the fairly recent
case of Amora v. Comelec.[17]

Munder alleges that Sarips petition with the Comelec should be considered as one to deny due course to
or to cancel a CoC, and not for disqualification. One of the important differences between the two
petitions is their prescriptive periods. For a Petition to Deny Due Course or to Cancel a Certificate of
Candidacy, the period to file is within five days from the last day of the filing of the certificate of
candidacy, but not later than 25 days from the filing thereof. On the other hand, a petition to disqualify a
candidate may be filed at any day after the last day of filing of the certificate of candidacy, but not later
than the date of proclamation.

It has been argued by Munder, who was earlier sustained by the Comelec Second Division, that the
petition for disqualification should be treated as a petition to deny due course to or to cancel a certificate
of candidacy, which had already prescribed.

We agree with Munder as to the nature of the petition filed by Sarip. The main ground of the said petition
is that Munder committed dishonesty in declaring that he was a registered voter of Barangay Rogero,
Bubong, Lanao del Sur, when in fact he was not. This ground is appropriate for a Petition to Deny Due
Course or to Cancel Certificate of Candidacy.

Amora v. Comelec is applicable to the present controversy. In that case, similar to the present one, a
mayoralty candidate was disqualified by the Comelec pursuant to a Petition for Disqualification. The
petition was filed by one of the candidates for councilor in the same municipality, on the ground that the
CoC had not been properly sworn to. Amora won in the election, but was disqualified by the Comelec
after he was proclaimed as mayor of Candijay, Bohol. One of the issues clarified in the said case was the
distinction between a Petition for Disqualification and a Petition to Deny Due Course or to Cancel
Certificate of Candidacy. The Court, in effect, held that the Comelec should have dismissed the petition
outright, since it was premised on a wrong ground. A Petition for Disqualification has specific grounds
different from those of a Petition to Deny Due Course to or to Cancel Certificate of Candidacy. The latter
is anchored on the false representation by a candidate as to material information in the CoC.[18]

For a petition for disqualification, the law expressly enumerates the grounds in Section 68 of Batas
Pambansa Blg. 881 as amended, and which was replicated in Section 4(b) of Comelec Resolution No.
8696. The grounds stated by respondent in his Petition for Disqualification that Munder was not qualified
to run for not being a registered voter therein was not included in the enumeration of the grounds for
disqualification. The grounds in Section 68 may be categorized into two. First, those comprising
prohibited acts of candidates; and second, the fact of their permanent residency in another country when
that fact affects the residency requirement of a candidate according to the law.
In the earlier case of Fermin v. Comelec[19], the Court clarified the two remedies that may be availed of
by a candidate to prevent another from running in an electoral race. The Court held:

The ground raised in the Dilangalen petition is that Fermin allegedly lacked one of the
qualifications to be elected as mayor of Northern Kabuntalan, i.e., he had not established
residence in the said locality for at least one year immediately preceding the election.
Failure to meet the one-year residency requirement for the public office is not a ground
for the disqualification of a candidate under Section 68. The provision only refers to the
commission of prohibited acts and the possession of a permanent resident status in a
foreign country as grounds for disqualification.
...
 To emphasize, a petition for disqualification, on the one hand, can be premised on
Section 12 or 68 of the [Omnibus Election Code], or Section 40 of the [Local
Government Code]. On the other hand, a petition to deny due course to or cancel a CoC
can only be grounded on a statement of a material representation in the said certificate
that is false. The petitions also have different effects. While a person who is disqualified
under Section 68 is merely prohibited to continue as a candidate, the person whose
certificate is cancelled or denied due course under Section 78 is not treated as a
candidate at all, as if he/she never filed a CoC.[20]

In Fermin, the Court has debunked the interpretation that a petition for disqualification covers the absence
of the substantive qualifications of a candidate (with the exception of the existence of the fact of the
candidate's permanent residency abroad). It has, in effect, even struck down a Comelec
Resolution - Resolution No. 7800, which enumerated the grounds for a petition for disqualification to
include the non-registration of a candidate as voter in the locality where he or she is running as a
candidate. In ruling as such, Resolution No. 7800 which was considered as infringement of the powers of
the legislature, the Court reiterated an earlier ruling:

A COMELEC rule or resolution cannot supplant or vary the legislative enactments that
distinguish the grounds for disqualification from those of ineligibility, and the
appropriate proceedings to raise the said grounds. In other words, Rule 25 and
COMELEC Resolution No. 7800 cannot supersede the dissimilar requirements of the
law for the filing of a petition for disqualification under Section 68, and a petition for the
denial of due course to or cancellation of CoC under Section 78 of the OEC.[21]
Responding to the above ruling, the Comelecs subsequent Resolution on the same matter deleted the
enumerated grounds, interpreted by the Court as improper for a petition for disqualification, found in
Comelec Resolution 7800.[22]

It is thus clear that the ground invoked by Sarip in his Petition for Disqualification against Munder - the
latters alleged status as unregistered voter in the municipality - was inappropriate for the said
petition. The said ground should have been raised in a petition to cancel Munders CoC. Since the two
remedies vary in nature, they also vary in their prescriptive period. A petition to cancel a CoC gives a
registered candidate the chance to question the qualification of a rival candidate for a shorter period:
within 5 days from the last day of their filing of CoCs, but not later than 25 days from the filing of the
CoC sought to be cancelled.[23] A petition for disqualification may be filed any day after the last day of
the filing of CoC but not later than the date of the proclamation.[24]

The Comelec Second Division stated that the last day of filing of the CoCs was on 21 December
2009. Thus, the period to file a Petition to Deny Due Course or to Cancel Certificate of Candidacy had
already prescribed when Sarip filed his petition against Munder.

It was therefore grave abuse of discretion on the part of the Comelec En Banc to gloss over the issue of
whether the petition was one for disqualification or for the cancellation of CoC. The nature of the petition
will determine whether the action has prescribed, and whether the Commission can take cognizance of the
petition. In directly tackling the factual issues without determining whether it can properly take
cognizance of the petition, the Comelec En Banc committed grave abuse of discretion.

Assuming arguendo that the Comelec En Banc could answer the factual issue of Munders non-
registration as a voter in Bubong by considering it as a ground for the disqualification of his candidacy,
we find that the Comelec committed grave abuse of discretion in concluding that Munder the voter was
not Munder the mayoralty candidate. We observe that the Comelec En Banc relied on the Voter's
Certification indicating one Alfaiz Tocalo Munder registering for the first time in 2003, with 7 May 1984
as birth date, and stating therein that he was 18 years old at the time of the
registration. We find this evidence insufficient to impeach the fact that he was a registered voter of
Bubong, Lanao del Sur. In the first place, the registration was in 2003, while the election was in
2010. The said evidence would not negate the fact that in 2010, he had already attained eligibility to run
for mayor. In such a small municipality like Bubong, the likelihood of not being able to know whether
one has a namesake, especially when one is running for a public office, is very slim. Sarip should have
proved that another Alfais Tocalo Munder is in existence, and that the latter is the registered voter and not
herein petitioner. In such a case, Sarip's remedy is not a Petition for Disqualification, but a Petition to
Deny Due Course or to Cancel Certificate of Candidacy which must comply with the prescriptive
period. Otherwise, his remedy, after Munder has been proclaimed is to file a quo warranto action with the
Regional Trial Court to prove that Munder lacks the eligibility required by law.

It may be true that in 2003, Munder, who was still a minor, registered himself as a voter and
misrepresented that he was already of legal age. Even if it was deliberate, we cannot review his past
political acts in this petition. Neither can the Comelec review those acts in an inappropriate remedy. In so
doing, it committed grave abuse of discretion, and the act resulting therefrom must be nullified.

With this conclusion, Sarip's petition has become moot. There is no longer any issue of whether to apply
the rule on succession to an elective office, since Munder is necessarily established in the position for
which the people have elected him.

IN VIEW OF THE FOREGOING, G.R. No. 194076 is hereby GRANTED. The Comelec En Banc
Resolution dated 4 October 2010 which granted the petition to disqualify Alfais Tocalo Munder as Mayor
of Bubong, Lanao del Sur is hereby NULLIFIED and SET ASIDE. The Comelec Second Division
Resolution dated 29 June 2010 dismissing the petition for disqualification filed by Atty. Tago R. Sarip
against Alfais Tocalo Munder is REINSTATED. G.R. No. 194160 is hereby DISMISSED. For having
been rendered moot by this Decision, the Temporary Restraining Order we issued on 18 January 2011 in
favor of Alfais Tocalo Munder is hereby made permanent.

SO ORDERED.