G.R. No.
92299 April 19, 1991 most qualified since she was the only Certified Public Accountant
REYNALDO R. SAN JUAN, petitioner,
vs.
CIVIL SERVICE COMMISSION, DEPARTMENT OF BUDGET AND
MANAGEMENT and CECILIA ALMAJOSE,respondents.
GUTIERREZ, JR., J.:
In this petition for certiorari pursuant to Section 7, Article IX (A) of
the present Constitution, the petitioner Governor of the Province
of Rizal, prays for the nullification of Resolution No. 89-868 of the
Civil Service Commission (CSC) dated November 21, 1989 and its
Resolution No. 90-150 dated February 9, 1990.
The dispositive portion of the questioned Resolution reads:
WHEREFORE, foregoing premises considered, the
Commission resolved to dismiss, as it hereby dismisses
the appeal of Governor Reynaldo San Juan of Rizal.
Accordingly, the approved appointment of Ms. Cecilia
Almajose as Provincial Budget Officer of Rizal, is
upheld. (Rollo, p. 32)
The subsequent Resolution No. 90-150 reiterates CSC's position
upholding the private respondent's appointment by denying the
petitioner's motion for reconsideration for lack of merit.
The antecedent facts of the case are as follows:
On March 22, 1988, the position of Provincial Budget Officer
(PBO) for the province of Rizal was left vacant by its former
holder, a certain Henedima del Rosario.
In a letter dated April 18, 1988, the petitioner informed Director
Reynaldo Abella of the Department of Budget and Management
(DBM) Region IV that Ms. Dalisay Santos assumed office as Acting
PBO since March 22, 1988 pursuant to a Memorandum issued by
the petitioner who further requested Director Abella to endorse
the appointment of the said Ms. Dalisay Santos to the contested
position of PBO of Rizal. Ms. Dalisay Santos was then Municipal
Budget Officer of Taytay, Rizal before she discharged the
functions of acting PBO.
In a Memorandum dated July 26, 1988 addressed to the DBM
Secretary, then Director Abella of Region IV recommended the
appointment of the private respondent as PBO of Rizal on the
basis of a comparative study of all Municipal Budget Officers of
the said province which included three nominees of the
petitioner. According to Abella, the private respondent was the
Subsequently, public respondent CSC issued the questioned
among the contenders.
On August 1, 1988, DBM Undersecretary Nazario S. Cabuquit, Jr.
signed the appointment papers of the private respondent as PBO
of Rizal upon the aforestated recommendation of Abella.
In a letter dated August 3, 1988 addressed to Secretary Carague,
the petitioner reiterated his request for the appointment of
Dalisay Santos to the contested position unaware of the earlier
appointment made by Undersecretary Cabuquit.
On August 31, 1988, DBM Regional Director Agripino G. Galvez
wrote the petitioner that Dalisay Santos and his other
recommendees did not meet the minimum requirements under
Local Budget Circular No. 31 for the position of a local budget
officer. Director Galvez whether or not through oversight further
required the petitioner to submit at least three other qualified
nominees who are qualified for the position of PBO of Rizal for
evaluation and processing.
On November 2, 1988, the petitioner after having been informed
of the private respondent's appointment wrote Secretary Carague
protesting against the said appointment on the grounds that
Cabuquit as DBM Undersecretary is not legally authorized to
appoint the PBO; that the private respondent lacks the required
three years work experience as provided in Local Budget Circular
No. 31; and that under Executive Order No. 112, it is the
Provincial Governor, not the Regional Director or a Congressman,
who has the power to recommend nominees for the position of
PBO.
On January 9, 1989 respondent DBM, through its Director of the
Bureau of Legal & Legislative Affairs (BLLA) Virgilio A. Afurung,
issued a Memorandum ruling that the petitioner's letter-protest is
not meritorious considering that public respondent DBM validly
exercised its prerogative in filling-up the contested position since
none of the petitioner's nominees met the prescribed
requirements.
On January 27, 1989, the petitioner moved for a reconsideration
of the BLLA ruling.
On February 28, 1989, the DBM Secretary denied the petitioner's
motion for reconsideration.
On March 27, 1989, the petitioner wrote public respondent CSC
protesting against the appointment of the private respondent and
reiterating his position regarding the matter.
resolutions which prompted the petitioner to submit before us
the following assignment of errors:
A. THE CSC ERRED IN UPHOLDING THE APPOINTMENT
BY DBM ASSISTANT SECRETARY CABUQUIT OF CECILIA
ALMAJOSE AS PBO OF RIZAL.
B. THE CSC ERRED IN HOLDING THAT CECILIA ALMA
JOSE POSSESSES ALL THE REQUIRED QUALIFICATIONS.
C. THE CSC ERRED IN DECLARING THAT PETITIONER'S
NOMINEES ARE NOT QUALIFIED TO THE SUBJECT
POSITION.
D. THE CSC AND THE DBM GRAVELY ABUSED THEIR
DISCRETION IN NOT ALLOWING PETITIONER TO
SUBMIT NEW NOMINEES WHO COULD MEET THE
REQUIRED QUALIFICATION (Petition, pp. 7-8,Rollo, pp.
15-16)
All the assigned errors relate to the issue of whether or not the
private respondent is lawfully entitled to discharge the functions
of PBO of Rizal pursuant to the appointment made by public
respondent DBM's Undersecretary upon the recommendation of
then Director Abella of DBM Region IV.
The petitioner's arguments rest on his contention that he has the
sole right and privilege to recommend the nominees to the
position of PBO and that the appointee should come only from his
nominees. In support thereof, he invokes Section 1 of Executive
Order No. 112 which provides that:
Sec. 1. All budget officers of provinces, cities and
municipalities shall be appointed henceforth by the
Minister of Budget and Management upon
recommendation of the local chief executive
concerned, subject to civil service law, rules and
regulations, and they shall be placed under the
administrative control and technical supervision of the
Ministry of Budget and Management.
The petitioner maintains that the appointment of the private
respondent to the contested position was made in derogation of
the provision so that both the public respondents committed
grave abuse of discretion in upholding Almajose's appointment.
There is no question that under Section 1 of Executive Order No.
112 the petitioner's power to recommend is subject to the
qualifications prescribed by existing laws for the position of PBO.
Consequently, in the event that the recommendations made by
the petitioner fall short of the required standards, the appointing
authority, the Minister (now Secretary) of public respondent DBM
is expected to reject the same.
In the event that the Governor recommends an unqualified
person, is the Department Head free to appoint anyone he fancies
? This is the issue before us.
Before the promulgation of Executive Order No. 112 on December
24, 1986, Batas Pambansa Blg. 337, otherwise known as the Local
Government Code vested upon the Governor, subject to civil
service rules and regulations, the power to appoint the PBO (Sec.
216, subparagraph (1), BP 337). The Code further enumerated the
qualifications for the position of PBO. Thus, Section 216,
subparagraph (2) of the same code states that:
(2) No person shall be appointed provincial budget
officer unless he is a citizen of the Philippines, of good
moral character, a holder of a degree preferably in law,
commerce, public administration or any related course
from a recognized college or university, a first grade
civil service eligibility or its equivalent, and has
acquired at least five years experience in budgeting or
in any related field.
The petitioner contends that since the appointing authority with
respect to the Provincial Budget Officer of Rizal was vested in him
before, then, the real intent behind Executive Order No. 112 in
empowering him to recommend nominees to the position of
Provincial Budget Officer is to make his recommendation part and
parcel of the appointment process. He states that the phrase
"upon recommendation of the local chief executive concerned"
must be given mandatory application in consonance with the
state policy of local autonomy as guaranteed by the 1987
Constitution under Art. II, Sec. 25 and Art. X, Sec. 2 thereof. He
further argues that his power to recommend cannot validly be
defeated by a mere administrative issuance of public respondent
DBM reserving to itself the right to fill-up any existing vacancy in
case the petitioner's nominees do not meet the qualification
requirements as embodied in public respondent DBM's Local
Budget Circular No. 31 dated February 9, 1988.
The questioned ruling is justified by the public respondent CSC as
follows:
As required by said E.O. No. 112, the DBM Secretary
may choose from among the recommendees of the
Provincial Governor who are thus qualified and eligible
for appointment to the position of the PBO of Rizal.
Notwithstanding, the recommendation of the local
chief executive is merely directory and not a
conditionsine qua non to the exercise by the Secretary
of DBM of his appointing prerogative. To rule
otherwise would in effect give the law or E.O. No. 112
a different interpretation or construction not intended
therein, taking into consideration that said officer has
been nationalized and is directly under the control and
supervision of the DBM Secretary or through his duly
authorized representative. It cannot be gainsaid that
said national officer has a similar role in the local
government unit, only on another area or concern, to
that of a Commission on Audit resident auditor. Hence,
to preserve and maintain the independence of said
officer from the local government unit, he must be
primarily the choice of the national appointing official,
and the exercise thereof must not be unduly hampered
or interfered with, provided the appointee finally
selected meets the requirements for the position in
accordance with prescribed Civil Service Law, Rules
and Regulations. In other words, the appointing official
is not restricted or circumscribed to the list submitted
or recommended by the local chief executive in the
final selection of an appointee for the position. He may
consider other nominees for the position vis a vis the
nominees of the local chief executive. (CSC Resolution
No. 89-868, p. 2; Rollo, p. 31)
The issue before the Court is not limited to the validity of the
appointment of one Provincial Budget Officer. The tug of war
between the Secretary of Budget and Management and the
Governor of the premier province of Rizal over a seemingly
innocuous position involves the application of a most important
constitutional policy and principle, that of local autonomy. We
have to obey the clear mandate on local autonomy. Where a law
is capable of two interpretations, one in favor of centralized
power in Malacaang and the other beneficial to local autonomy,
the scales must be weighed in favor of autonomy.
The exercise by local governments of meaningful power has been
a national goal since the turn of the century. And yet, inspite of
constitutional provisions and, as in this case, legislation
mandating greater autonomy for local officials, national officers
cannot seem to let go of centralized powers. They deny or water
down what little grants of autonomy have so far been given to
municipal corporations.
President McKinley's Instructions dated April 7, 1900 to the
Second Philippine Commission ordered the new Government "to
devote their attention in the first instance to the establishment of
municipal governments in which natives of the Islands, both in the
cities and rural communities, shall be afforded the opportunity to
manage their own local officers to the fullest extent of which they
are capable and subject to the least degree of supervision and
control which a careful study of their capacities and observation
of the workings of native control show to be consistent with the
maintenance of law, order and loyalty.
In this initial organic act for the Philippines, the Commission which
combined both executive and legislative powers was directed to
give top priority to making local autonomy effective.
The 1935 Constitution had no specific article on local autonomy.
However, in distinguishing between presidential control and
supervision as follows:
The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all local governments as may be
provided by law, and take care that the laws be
faithfully executed. (Sec. 11, Article VII, 1935
Constitution)
the Constitution clearly limited the executive power over local
governments to "general supervision . . . as may be provided by
law." The President controls the executive departments. He has
no such power over local governments. He has only supervision
and that supervision is both general and circumscribed by statute.
In Tecson v. Salas, 34 SCRA 275, 282 (1970), this Court stated:
. . . Hebron v. Reyes, (104 Phil. 175 [1958]) with the
then Justice, now Chief Justice, Concepcion as
theponente, clarified matters. As was pointed out, the
presidential competence is not even supervision in
general, but general supervision as may be provided by
law. He could not thus go beyond the applicable
statutory provisions, which bind and fetter his
discretion on the matter. Moreover, as had been
earlier ruled in an opinion penned by Justice Padilla in
Mondano V. Silvosa, (97 Phil. 143 [1955]) referred to
by the present Chief Justice in his opinion in the
Hebron case, supervision goes no further than
"overseeing or the power or authority of an officer to
see that subordinate officers perform their duties. If
the latter fail or neglect to fulfill them the former may
take such action or step as prescribed by law to make
them perform their duties." (Ibid, pp. 147-148) Control,
on the other hand, "means the power of an officer to
alter or modify or nullify or set aside what a
subordinate had done in the performance of their
duties and to substitute the judgment of the former for
that of the latter." It would follow then, according to
the present Chief Justice, to go back to the Hebron
opinion, that the President had to abide by the then
provisions of the Revised Administrative Code on
suspension and removal of municipal officials, there
 being no power of control that he could rightfully
exercise, the law clearly specifying the procedure by
which such disciplinary action would be taken.
Pursuant to this principle under the 1935 Constitution, legislation
implementing local autonomy was enacted. In 1959, Republic Act
No. 2264, "An Act Amending the Law Governing Local
Governments by Increasing Their Autonomy and Reorganizing
Local Governments" was passed. It was followed in 1967 when
Republic Act No. 5185, the Decentralization Law was enacted,
giving "further autonomous powers to local governments
governments."
The provisions of the 1973 Constitution moved the country
further, at least insofar as legal provisions are concerned, towards
greater autonomy. It provided under Article II as a basic principle
of government:
Sec. 10. The State shall guarantee and promote the
autonomy of local government units, especially the
barangay to ensure their fullest development as self-
reliant communities.
An entire article on Local Government was incorporated into the
Constitution. It called for a local government code defining more
responsive and accountable local government structures. Any
creation, merger, abolition, or substantial boundary alteration
cannot be done except in accordance with the local government
code and upon approval by a plebiscite. The power to create
sources of revenue and to levy taxes was specifically settled upon
local governments.
The exercise of greater local autonomy is even more marked in
the present Constitution.
Article II, Section 25 on State Policies provides:
Sec. 25. The State shall ensure the autonomy of local
governments
The 14 sections in Article X on Local Government not only
reiterate earlier doctrines but give in greater detail the provisions
making local autonomy more meaningful. Thus, Sections 2 and 3
of Article X provide:
Sec. 2. The territorial and political subdivisions shall
enjoy local autonomy.
Sec. 3. The Congress shall enact a local government
code which shall provide for a more responsive and
accountable local government structure instituted Council. The President makes the appointments from the list of
through a system of decentralization with effective nominees submitted to her by the Council. She cannot apply the
mechanisms of recall, initiative, and referendum, DBM procedure, reject all the Council nominees, and appoint
allocate among the different local government units another person whom she feels is better qualified. There can be
their powers, responsibilities, and resources, and no reservation of the right to fill up a position with a person of the
provide for the qualifications, election, appointment appointing power's personal choice.
and removal, term, salaries, powers and functions and
duties of local officials, and all other matters relating to
The public respondent's grave abuse of discretion is aggravated by
the organization and operation of the local units.
the fact that Director Galvez required the Provincial Governor to
submit at least three other names of nominees better qualified
When the Civil Service Commission interpreted the than his earlier recommendation. It was a meaningless exercise.
recommending power of the Provincial Governor as purely The appointment of the private respondent was formalized
directory, it went against the letter and spirit of the constitutional before the Governor was extended the courtesy of being
provisions on local autonomy. If the DBM Secretary jealously informed that his nominee had been rejected. The complete
hoards the entirety of budgetary powers and ignores the right of disregard of the local government's prerogative and the smug
local governments to develop self-reliance and resoluteness in the belief that the DBM has absolute wisdom, authority, and
handling of their own funds, the goal of meaningful local discretion are manifest.
autonomy is frustrated and set back.
In his classic work "Philippine Political Law" Dean Vicente G. Sinco
The right given by Local Budget Circular No. 31 which states: stated that the value of local governments as institutions of
democracy is measured by the degree of autonomy that they
enjoy. Citing Tocqueville, he stated that "local assemblies of
Sec. 6.0 The DBM reserves the right to fill up any
citizens constitute the strength of free nations. . . . A people may
existing vacancy where none of the nominees of the
establish a system of free government but without the spirit of
local chief executive meet the prescribed
municipal institutions, it cannot have the spirit of liberty." (Sinco,
requirements.
Philippine Political Law, Eleventh Edition, pp. 705-706).
is ultra vires and is, accordingly, set aside. The DBM may appoint
Our national officials should not only comply with the
only from the list of qualified recommendees nominated by the
constitutional provisions on local autonomy but should also
Governor. If none is qualified, he must return the list of nominees
appreciate the spirit of liberty upon which these provisions are
to the Governor explaining why no one meets the legal
based.
requirements and ask for new recommendees who have the
necessary eligibilities and qualifications.
WHEREFORE, the petition is hereby GRANTED. The questioned
resolutions of the Civil Service Commission are SET ASIDE. The
The PBO is expected to synchronize his work with DBM. More
appointment of respondent Cecilia Almajose is nullified. The
important, however, is the proper administration of fiscal affairs
Department of Budget and Management is ordered to appoint the
at the local level. Provincial and municipal budgets are prepared
Provincial Budget Officer of Rizal from among qualified nominees
at the local level and after completion are forwarded to the
submitted by the Provincial Governor.
national officials for review. They are prepared by the local
officials who must work within the constraints of those budgets.
They are not formulated in the inner sanctums of an all-knowing SO ORDERED.
DBM and unilaterally imposed on local governments whether or
not they are relevant to local needs and resources. It is for this
reason that there should be a genuine interplay, a balancing of
viewpoints, and a harmonization of proposals from both the local
and national officials. It is for this reason that the nomination and
appointment process involves a sharing of power between the
two levels of government.
It may not be amiss to give by way of analogy the procedure
followed in the appointments of Justices and
Judges.1wphi1 Under Article VIII of the Constitution,
nominations for judicial positions are made by the Judicial and Bar
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA, ROGELIO T. PALO,
DOMINGO A. JADLOC, CARLITO T. CRUZ and MANUEL P.
REYES, petitioner,
vs.
HON. FRANKLIN M. DRILON, Executive Secretary, and RICHARD J.
GORDON, respondents.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A. 7227, 1 otherwise
known as the "Bases Conversion and Development Act of 1992,"
under which respondent Mayor Richard J. Gordon of Olongapo
City was appointed Chairman and Chief Executive Officer of the
Subic Bay Metropolitan Authority (SBMA), is challenged in this
original petition with prayer for prohibition, preliminary injunction
and temporary restraining order "to prevent useless and
unnecessary expenditures of public funds by way of salaries and
other operational expenses attached to the office . . .
." 2 Paragraph (d) reads
(d) Chairman administrator The
President shall appoint a professional
manager as administrator of the Subic
Authority with a compensation to be
determined by the Board subject to the
approval of the Secretary of Budget, who
shall be the ex oficio chairman of the Board
and who shall serve as the chief executive
officer of the Subic Authority: Provided,
however, That for the first year of its
operations from the effectivity of this Act,
the mayor of the City of Olongapo shall be
appointed as the chairman and chief
executive officer of the Subic
Authority (emphasis supplied).
Petitioners, who claim to be taxpayers, employees of the U.S.
Facility at the Subic, Zambales, and officers and members of the
Filipino Civilian Employees Association in U.S. Facilities in the
Philippines, maintain that theproviso in par. (d) of Sec. 13 herein-
above quoted in italics infringes on the following constitutional
and statutory provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall be
eligible for appointment or designation in any capacity to any
public officer or position during his tenure," 3 because the City
Mayor of Olongapo City is an elective official and the subject posts
are public offices; (b) Sec. 16, Art. VII, of the Constitution, which
provides that "[t]he President shall . . . . appoint all other officers
of the Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint", 4 since it was Congress through the
questioned proviso and not the President who appointed the
Mayor to the subject posts; 5 and, (c) Sec. 261, par. (g), of the
Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. The following shall be
guilty of an election offense: . . . (g) Appointment
of new employees, creation of new position,
promotion, or giving salary increases. During
the period of forty-five days before a regular
election and thirty days before a special election,
(1) any head, official or appointing officer of a
government office, agency or instrumentality,
whether national or local, including government-
owned or controlled corporations, who appoints or
hires any new employee, whether provisional,
temporary or casual, or creates and fills any new
position, except upon prior authority of the
Commission. The Commission shall not grant the
authority sought unless it is satisfied that the
position to be filled is essential to the proper
functioning of the office or agency concerned, and
that the position shall not be filled in a manner
that may influence the election. As an exception to
the foregoing provisions, a new employee may be
appointed in case of urgent
need:Provided, however, That notice of the
appointment shall be given to the Commission
within three days from the date of the
appointment. Any appointment or hiring in
violation of this provision shall be null and void. (2)
Any government official who promotes, or gives
any increase of salary or remuneration or privilege
to any government official or employee, including
those in government-owned or controlled
corporations . . . .
for the reason that the appointment of respondent Gordon to the
subject posts made by respondent Executive Secretary on 3 April
1992 was within the prohibited 45-day period prior to the 11 May
1992 Elections.
The principal question is whether the proviso in Sec. 13, par. (d),
of R.A. 7227 which states, "Provided, however,That for the first
year of its operations from the effectivity of this Act, the mayor of
the City of Olongapo shall be appointed as the chairman and chief
executive officer of the Subic Authority," violates the
constitutional proscription against appointment or designation of
elective officials to other government posts.
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for
appointment or designation in any capacity
to any public office or position during his
tenure.
Unless otherwise allowed by law or by the
primary functions of his position, no
appointive official shall hold any other
office or employment in the Government or
any subdivision, agency or instrumentality
thereof, including government-owned or
controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration of
several public positions in one person, so that a public officer or
employee may serve full-time with dedication and thus be
efficient in the delivery of public services. It is an affirmation that
a public office is a full-time job. Hence, a public officer or
employee, like the head of an executive department described
in Civil Liberties Union v. Executive Secretary, G.R. No. 83896,
and Anti-Graft League of the Philippines, Inc. v. Philip Ella C. Juico,
as Secretary of Agrarian Reform, G.R. No. 83815, 6 ". . . . should
be allowed to attend to his duties and responsibilities without the
distraction of other governmental duties or employment. He
should be precluded from dissipating his efforts, attention and
energy among too many positions of responsibility, which may
result in haphazardness and inefficiency . . . ."
Particularly as regards the first paragraph of Sec. 7, "(t)he basic
idea really is to prevent a situation where a local elective official
will work for his appointment in an executive position in
government, and thus neglect his constituents . . . ." 7
In the case before us, the subject proviso directs the President to
appoint an elective official, i.e., the Mayor of Olongapo City, to
other government posts (as Chairman of the Board and Chief
Executive Officer of SBMA). Since this is precisely what the
constitutional proscription seeks to prevent, it needs no
stretching of the imagination to conclude that
the proviso contravenes Sec. 7, first par., Art. IX-B, of the
Constitution. Here, the fact that the expertise of an elective
official may be most beneficial to the higher interest of the body
politic is of no moment.
It is argued that Sec. 94 of the Local Government Code (LGC)
permits the appointment of a local elective official to another
post if so allowed by law or by the primary functions of his
office. 8 But, the contention is fallacious. Section 94 of the LGC is
not determinative of the constitutionality of Sec. 13, par. (d), of
R.A. 7227, for no legislative act can prevail over the fundamental
law of the land. Moreover, since the constitutionality of Sec. 94 of
LGC is not the issue here nor is that section sought to be declared
unconstitutional, we need not rule on its validity. Neither can we
invoke a practice otherwise unconstitutional as authority for its
validity.
In any case, the view that an elective official may be appointed to
another post if allowed by law or by the primary functions of his
office, ignores the clear-cut difference in the wording of the two
(2) paragraphs of Sec. 7, Art.
IX-B, of the Constitution. While the second paragraph authorizes
holding of multiple offices by an appointiveofficial when allowed
by law or by the primary functions of his position, the first
paragraph appears to be more stringent by not providing any
exception to the rule against appointment or designation of
an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the
President as head of the economic and planning agency; 9 the
Vice-President, who may be appointed Member of the
Cabinet; 10 and, a member of Congress who may be
designated ex officio member of the Judicial and Bar Council. 11
The distinction between the first and second paragraphs of Sec. 7,
Art. IX-B, was not accidental when drawn, and not without
reason. It was purposely sought by the drafters of the
Constitution as shown in their deliberation, thus
MR. MONSOD. In other words, what then
Commissioner is saying, Mr. Presiding
Officer, is that the prohibition is more strict
with respect to elective officials, because in
the case of appointive officials, there may
be a law that will allow them to hold other
positions.
MR. FOZ. Yes, I suggest we make that
difference, because in the case of
appointive officials, there will be certain
situations where the law should allow them
to hold some other positions. 12
The distinction being clear, the exemption allowed to appointive
officials in the second paragraph cannot be extended to elective
officials who are governed by the first paragraph.
It is further argued that the SBMA posts are merely ex officio to
the position of Mayor of Olongapo City, hence, an excepted
circumstance, citing Civil Liberties Union v. Executive
Secretary, 13 where we stated that the prohibition against the
holding of any other office or employment by the President, Vice-
President, Members of the Cabinet, and their deputies or
assistants during their tenure, as provided in Sec. 13, Art. VII, of
the Constitution, does not comprehend additional duties and
functions required by the primary functions of the officials
concerned, who are to perform them in an ex officio capacity as
provided by law, without receiving any additional compensation
therefor.
This argument is apparently based on a wrong premise. Congress
did not contemplate making the subject SBMA posts as ex
officio or automatically attached to the Office of the Mayor of
Olongapo City without need of appointment. The phrase "shall be
appointed" unquestionably shows the intent to make the SBMA
posts appointive and not merely adjunct to the post of Mayor of
Olongapo City. Had it been the legislative intent to make the
subject positions ex officio, Congress would have, at least, avoided
the word "appointed" and, instead, "ex officio" would have been
used. 14
Even in the Senate deliberations, the Senators were fully aware
that subject proviso may contravene Sec. 7, first par., Art. IX-B,
but they nevertheless passed the bill and decided to have the
controversy resolved by the courts. Indeed, the Senators would
not have been concerned with the effects of Sec. 7, first par., had
they considered the SBMA posts as ex officio.
Cognizant of the complication that may arise from the way the
subject proviso was stated, Senator Rene Saguisag remarked that
"if the Conference Committee just said "the Mayor shall be the
Chairman" then that should foreclose the issue. It is a legislative
choice." 15 The Senator took a view that the constitutional
proscription against appointment of elective officials may have
been sidestepped if Congress attached the SBMA posts to the
Mayor of Olongapo City instead of directing the President to
appoint him to the post. Without passing upon this view of
Senator Saguisag, it suffices to state that Congress intended the
posts to be appointive, thus nibbling in the bud the argument that
they are ex officio.
The analogy with the position of Chairman of the Metro Manila
Authority made by respondents cannot be applied to uphold the
constitutionality of the challenged proviso since it is not put in
issue in the present case. In the same vein, the argument that if
no elective official may be appointed or designated to another
post then Sec. 8, Art. IX-B, of the Constitution allowing him to
receive double compensation 16 would be useless, is non
sequitur since Sec. 8 does not affect the constitutionality of the
subject proviso. In any case, the Vice-President for example, an
elective official who may be appointed to a cabinet post under
Sec. 3, Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by law.
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d), itself
vests in the President the power to appoint the Chairman of the
Board and the Chief Executive Officer of SBMA, although he really
has no choice under the law but to appoint the Mayor of
Olongapo City.
As may be defined, an "appointment" is "[t]he designation of a
person, by the person or persons having authority therefor, to
discharge the duties of some office or trust," 17 or "[t]he selection
or designation of a person, by the person or persons having
authority therefor, to fill an office or public function and discharge
the duties of the same. 18 In his treatise, Philippine Political
Law, 19 Senior Associate Justice Isagani A. Cruz defines
appointment as "the selection, by the authority vested with the
power, of an individual who is to exercise the functions of a given
office."
Considering that appointment calls for a selection, the appointing
power necessarily exercises a discretion. According to Woodbury,
J., 20 "the choice of a person to fill an office constitutes the
essence of his appointment," 21 and Mr. Justice Malcolm adds
that an "[a]ppointment to office is intrinsically an executive act
involving the exercise of discretion." 22 In Pamantasan ng
Lungsod ng Maynila v. Intermediate Appellate Court 23 we held:
The power to appoint is, in essence,
discretionary. The appointing power has the
right of choice which he may exercise freely
according to his judgment, deciding for
himself who is best qualified among those
who have the necessary qualifications and
eligibilities. It is a prerogative of the
appointing power . . . .
Indeed, the power of choice is the heart of the power to appoint.
Appointment involves an exercise of discretion of whom to
appoint; it is not a ministerial act of issuing appointment papers
to the appointee. In other words, the choice of the appointee is a
fundamental component of the appointing power.
Hence, when Congress clothes the President with the power to
appoint an officer, it (Congress) cannot at the same time limit the
choice of the President to only one candidate. Once the power of
appointment is conferred on the President, such conferment
necessarily carries the discretion of whom to appoint. Even on the
pretext of prescribing the qualifications of the officer, Congress
may not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own choice.
Consequently, when the qualifications prescribed by Congress can
only be met by one individual, such enactment effectively
eliminates the discretion of the appointing power to choose and
constitutes an irregular restriction on the power of
appointment. 24
In the case at bar, while Congress willed that the subject posts be
filled with a presidential appointee for the first year of its
operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to only
one eligible, i.e., the incumbent Mayor of Olongapo City. Since
only one can qualify for the posts in question, the President is
precluded from exercising his discretion to choose whom to
appoint. Such supposed power of appointment, sans the essential
element of choice, is no power at all and goes against the very
nature itself of appointment.
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of operations of
SBMA, i.e., he must be the Mayor of Olongapo City, it is manifestly
an abuse of congressional authority to prescribe qualifications
where only one, and no other, can qualify. Accordingly, while the
conferment of the appointing power on the President is a
perfectly valid legislative act, the proviso limiting his choice to one
is certainly an encroachment on his prerogative.
Since the ineligibility of an elective official for appointment
remains all throughout his tenure or during his incumbency, he
may however resign first from his elective post to cast off the
constitutionally-attached disqualification before he may be
considered fit for appointment. The deliberation in the
Constitutional Commission is enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the
substitution of the word "term" with TENURE.
MR. FOZ. The effect of the proposed amendment is to
make possible for one to resign from his position.
MR. DAVIDE. Yes, we should allow that prerogative.
MR. FOZ. Resign from his position to accept an
executive position.
MR. DAVIDE. Besides, it may turn out in a given case
that because of, say, incapacity, he may leave the
service, but if he is prohibited from being appointed
within the term for which he was elected, we may be
depriving the government of the needed expertise of an
individual. 25
Consequently, as long as he is an incumbent, an elective official
remains ineligible for appointment to another public office.
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility, appointed to
other government posts, he does not automatically forfeit his
elective office nor remove his ineligibility imposed by the
Constitution. On the contrary, since an incumbent elective official
is not eligible to the appointive position, his appointment or
designation thereto cannot be valid in view of his disqualification
or lack of eligibility. This provision should not be confused with
Sec. 13, Art. VI, of the Constitution where "(n)o Senator or
Member of the House of Representatives may hold any other
office or employment in the Government . . . during his term
without forfeiting his seat . . . ." The difference between the two
provisions is significant in the sense that incumbent national
legislators lose their elective posts only after they have been
appointed to another government office, while other incumbent
elective officials must first resign their posts before they can be
appointed, thus running the risk of losing the elective post as well
as not being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office. ". . . .
The effect is quite different where it is expressly provided by law
that a person holding one office shall be ineligible to another.
Such a provision is held to incapacitate the incumbent of an office
from accepting or holding a second office (State ex rel. Van
Antwerp v Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v
Neal, 130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v Sutton,
63 Minn 147, 65 NW 262. Annotation: 40 ALR 945) or voidable
(Baskin v State, 107 Okla 272, 232 p 388, 40 ALR 941)." 26 "Where
the constitution, or statutes declare that persons holding one
office shall be ineligible for election or appointment to another
office, either generally or of a certain kind, the prohibition has
been held to incapacitate the incumbent of the first office to hold
the second so that any attempt to hold the second is void (Ala.
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283 Ala
445)." 27
As incumbent elective official, respondent Gordon is ineligible for
appointment to the position of Chairman of the Board and Chief
Executive of SBMA; hence, his appointment thereto pursuant to a
legislative act that contravenes the Constitution cannot be
sustained. He however remains Mayor of Olongapo City, and his
acts as SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not those
of a lawful officer, the law, upon principles of policy and justice,
will hold valid so far as they involve the interest of the public and
third persons, where the duties of the office were exercised . . . .
under color of a known election or appointment, void because the
officer was not eligible, or because there was a want of power in
the electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power or
defect being unknown to the public . . . . [or] under color of an
election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such (State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5 Wendell
[N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case, 122 Mass, 445, 23
Am. Rep., 323)." 28
Conformably with our ruling in Civil Liberties Union, any and
all per diems, allowances and other emoluments which may have
been received by respondent Gordon pursuant to his
appointment may be retained by him.
The illegality of his appointment to the SBMA posts being now
evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said respondent
made pursuant thereto need no longer be discussed.
In thus concluding as we do, we can only share the lament of Sen.
Sotero Laurel which he expressed in the floor deliberations of S.B.
1648, precursor of R.A. 7227, when he articulated
. . . . (much) as we would like to have the
present Mayor of Olongapo City as the
Chief Executive of this Authority that we are
creating; (much) as I, myself, would like to
because I know the capacity, integrity,
industry and dedication of Mayor Gordon;
(much) as we would like to give him this
terrific, burdensome and heavy
responsibility, we cannot do it because of
the constitutional prohibition which is very
clear. It says: "No elective official shall be
appointed or designated to another
position in any capacity." 29
For, indeed, "a Constitution must be firm and immovable, like a
mountain amidst the strife of storms or a rock in the ocean amidst
the raging of the waves." 30 One of the characteristics of the
Constitution is permanence, i.e., "its capacity to resist capricious
or whimsical change dictated not by legitimate needs but only by
passing fancies, temporary passions or occasional infatuations of
the people with ideas or personalities . . . . Such a Constitution is
not likely to be easily tampered with to suit political expediency,
personal ambitions or ill-advised agitation for change." 31
Ergo, under the Constitution, Mayor Gordon has a choice. We
have no choice.
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A. 7227, which
states: ". . . Provided, however, That for the first year of its
operations from the effectivity of this Act, the Mayor of the City of
Olongapo shall be appointed as the chairman and chief executive
officer of the Subic Authority," is declared unconstitutional;
consequently, the appointment pursuant thereto of the Mayor of
Olongapo City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.
However, all per diems, allowances and other emoluments
received by respondent Gordon, if any, as such Chairman and
Chief Executive Officer may be retained by him, and all acts
otherwise legitimate done by him in the exercise of his authority
as officer de facto of SBMA are hereby UPHELD.
SO ORDERED.
[G.R. No. 122197. June 26, 1998]
ZOSIMO M. DIMAANDAL, petitioner, vs. COMMISSION ON
AUDIT, respondent.
DECISION
MARTINEZ, J.:
This petition for certiorari seeks the reversal of the decision
of the Commission on Audit dated September 7, 1995,[1] the
dispositive portion of which reads, to wit:
Foregoing premises considered, the instant appeal cannot be
given due course. Accordingly, the disallowance in question in the
total amount of P52,908.00 is hereby affirmed. Considering that
the claim for the RATA differential in the amount of P8,400.00 is
devoid of any legal basis, the same is also disallowed. Hence,
appellant Zosimo M. Dimaandal is hereby directed to refund the
salary and RATA differential in the amount of P61,308.00 he had
received from the Provincial Government of Batangas.[2]
The undisputed facts:
On November 23, 1992, petitioner Zosimo M. Dimaandal,
then holding the position of Supply Officer III, was designated
Acting Assistant Provincial Treasurer for Administration by then
Governor Vicente A. Mayo of Batangas. Pursuant to the
designation, petitioner filed a claim for the difference in salary
and Representation and Transportation Allowance (RATA) of
Assistant Provincial Treasurer and Supply Officer III for the whole
year of 1993 in the total amount of P61,308.00.
However, the Provincial Auditor disallowed in
audit P52,908.00 of the claim. What was allowed was only the
amount of P8,400.00 which corresponds to the difference in the
allowances attached to the designation and the position occupied
by the appellant. The disallowance was premised on the following
reasons:
1. The provisions of Section 2077 of the Revised Administrative
Code is not applicable in the instant case as the power to fill the
position of Assistant Provincial Treasurer rests on the Secretary of
Finance.
2. The designation is temporary in nature and does not amount to
the issuance of an appointment as could entitle the designee to
receive the salary of the position to which he is designated
(Opinion of the Director, Office for Legal Affairs, Civil Service
Commission dated January 25, 1994).
On August 3, 1994, Governor Mayo wrote to the Provincial
Auditor requesting reconsideration of the subject disallowance,
interposing the following reasons:
1. That Section 2077 of the Revised Administrative Code is
applicable in the instant case as the same provides that the
Governor General or the officer having the power to fill-up a
temporary absence or disability in the provincial office has the
power to order or authorize payment of compensation to any
government officer or employee designated or appointed
temporarily to fill the place;
2. That the budget containing an appropriation for the position of
Assistant Provincial Treasurer for Administration was already
approved by the Provincial Board; and
3. That Mr. Dimaandal at the time of his designation as Acting
Provincial Treasurer for Administration was no longer performing
the duties and functions of Supply Officer III."
The Provincial Auditor, however, denied the request for
reconsideration. Appellant was required to refund the amount
of P52,908.00 which was disallowed.
Petitioner appealed to the respondent Commission on
Audit which sustained the stand of the Provincial Auditor of
Batangas as valid and proper. The respondent Commission was of
the view that the petitioner was merely designated as an
Assistant Provincial Treasurer for Administration in addition to his
regular duties. As such, he is not entitled to receive an additional
salary. The Commission further opined that petitioner was
likewise not entitled to receive the difference in RATA provided
for under the Local Budget Circular issued by the Department of
Budget and Management considering that the party designating
him to such position is not the duly competent authority,
provided for under Section 471 of the Local Government Code.
Notably, petitioner was appointed as Assistant Provincial
Treasurer for Administration by the Secretary of Finance only on
July 8, 1994.
Thus, the respondent Commission not only affirmed the
disallowance of the amount of P52,908.00 but likewise disallowed
the claim for the RATA differential in the amount ofP8,400.00, for
being devoid of any legal basis. Petitioner was, therefore, directed
to refund the salary and RATA differential in the amount
of P61,308.00.
Hence, this petition.
The issue here is whether or not an employee who is
designated in an acting capacity is entitled to the difference in
salary between his regular position and the higher position to
which he is designated.
Petitioner avers that the respondent Commissions decision
is probably not in accordance with applicable decisions of the
Supreme Court.[3] He cites the cases of Cui, et. al. vs. Ortiz, et.
al.,[4] April 29, 1960; and, Menzon vs. Petilla, May 20,
1991,[5] which laid down the rule that de facto officers are
entitled to salary for services actually rendered. Petitioner
contends that he may be considered as a de facto officer by
reason of services rendered in favor of the Province of
Batangas. He then posits the view that to disallow his
compensation and in the process allow the Province of Batangas
to keep and enjoy the benefits derived from his services actually
rendered would be tantamount to deprivation of property
without due process of law, and impairment of obligation of
contracts duly enshrined in the Constitution.
On the other hand, the respondent Commission, through
the Office of the Solicitor General, maintains that the decisions
cited by petitioner do not find application in petitioners case. In
the case of Menzon, what was extended was an appointment to
the vacant position of Vice-Governor. Here, what was extended to
petitioner was not an appointment but a mere designation. Thus,
the nature of petitioners designation and in the absence of
authority of the Governor to authorize the payment of the
additional salary and RATA without the appropriate resolution
from the Sangguniang Panlalawigan does not make the ruling on
de facto officers applicable in this case.
We find the petition to be without merit.
We are not persuaded by petitioners insistence that he
could still claim the salary and RATA differential because he
actually performed the functions pertaining to the office of Acting
Assistant Provincial Treasurer and, therefore, entitled to the
salary and benefits attached to it despite the fact that the
Governor of Batangas had no authority to designate him to the
said position.
The law applicable is Section 471(a) of RA 7160 otherwise
known as the Local Government Code which mandates that:
Sec. 471. Assistant Treasurers. - (a) An assistant treasurer may be
appointed by the Secretary of Finance from a list of at least three
(3) ranking eligible recommendees of the governor or mayor,
subject to civil service law, rules and regulations.
xxxxxxxxx
In fact, the appointing officer is authorized by law to order
the payment of compensation to any government officer or
employee designated or appointed to fill such vacant position, as
provided under Section 2077 of the Revised Administrative Code
which states that:
"Section 2077. Compensation for person appointed to temporary
service.
xxxxxxxxx
In case of the temporary absence or disability of a provincial
officer or in case of a vacancy in a provincial office, the President
of the Philippines or officer having the power to fill such position
may, in his discretion, order the payment of compensation, or
additional compensation, to any Government officer or employee
designated or appointed temporarily to fill the place, but the total
compensation paid shall not exceed the salary authorized by law
for the position filled.
Undoubtedly, the aforecited laws do not authorize the
Provincial Governor to appoint nor even designate one
temporarily in cases of temporary absence or disability or a
vacancy in a provincial office. That power resides in the President
of the Philippines or the Secretary of Finance.
Necessarily, petitioners designation as Assistant Provincial
Treasurer for Administration by Governor Mayo being defective,
confers no right on the part of petitioner to claim the difference in
the salaries and allowances attached to the position occupied by
him.
Moreover, what was extended to petitioner by Governor
Mayo was merely a designation not an appointment. The
respondent Commission clearly pointed out the difference
between an appointment and designation, thus:
There is a great difference between an appointment and
designation. While an appointment is the selection by the proper
authority of an individual who is to exercise the powers and
functions of a given office, designation merely connotes an
imposition of additional duties, usually by law, upon a person
already in the public service by virtue of an earlier appointment
(Santiago vs. COA, 199 SCRA 125).
Designation is simply the mere imposition of new or additional
duties on the officer or employee to be performed by him in a
special manner. It does not entail payment of additional benefits
or grant upon the person so designated the right to claim the
salary attached to the position (COA Decision No. 95-087 dated
February 2, 1995). As such, there being no appointment issued,
designation does not entitle the officer designated to receive the
salary of the position. For the legal basis of an employees right to
claim the salary attached thereto is a duly issued and approved
appointment to the position (Opinion dated January 25, 1994 of
the Office for Legal Affairs, Civil Service Commission, Re: Evora,
Carlos, A. Jr., Designation).[6]
This Court has time and again ruled that:
Although technically not binding and controlling on the courts, the
construction given by the agency or entity charged with the
enforcement of a statute should be given great weight and
respect (In re Allen, 2 Phil. 630, 640), particularly so if such
construction, as in the case at bar, has been uniform, and
consistent, and has been observed and acted on for a long period
of time (Molina vs. Rafferty, 38 Phil. 167; Madrigal vs. Rafferty, 38
Phil. 414; Philippine Sugar Central vs. Collector of Customs, 51
Phil. 143).[7]
We see no justifiable reason to sustain petitioners Petitioners appointments on December 1 and 12, 1955 by the
argument that non-payment of his salary differential and RATA then mayor of the municipality were legal and in order, the
would be a violation of his constitutional right against deprivation appointing mayor still in possession of his right to appoint. For
of property without due process of law and the non-impairment such appointments to be complete, the approval of the President
of obligation of contracts clause in the Constitution. of the Philippines is required. The law provides that pending
approval of said appointment by the President, the appointee
The right to the salary of an Assistant Provincial Treasurer is may assume office and receive salary for services actually
based on the assumption that the appointment or designation rendered. Accordingly, therefore, in that duration until the
thereof was made in accordance with law. Considering that appointment is finally acted upon favorably or unfavorably, the
petitioners designation was without color of authority, the right appointees may be considered as de facto officers and entitled to
to the salary or an allowance due from said office never salaries for services actually rendered.
existed. Stated differently, in the absence of such right, there can
be no violation of any constitutional right nor an impairment of
Finally, the appointment signed by Finance Undersecretary
the obligation of contracts clause under the Constitution.
Juanita D. Amatong is dated July 8, 1994. Petitioners claim that
The nature of petitioners designation and the absence of the appointment retro-acts to his assumption of office is not
authority of the Governor to authorize the payment of the confirmed by the express phraseology of the appointment itself,
additional salary and RATA without the appropriate resolution which states:
from the Sangguniang Panlalawigan does not make him a de facto
Kayo ay nahirang na ASSISTANT PROVINCIAL TREASURER FOR
officer.
ADMINISTRATION na may katayuang PERMANENT sa OFFICE OF
A de facto officer is defined as one who derives his THE PROVINCIAL TREASURER OF BATANGAS sa pasahod na ONE
appointment from one having colorable authority to appoint, if HUNDRED TWENTY ONE THOUSAND SIX HUNDRED TWENTY
the office is an appointive office, and whose appointment is valid (P121,620.00) P.A. piso. Ito ay magkakabisa sa petsa ng pagganap
on its face. It is likewise defined as one who is in possession of an ng tungkulin subalit di aaga sa petsa ng pagpirma ng puno ng
office, and is discharging its duties under color of authority, by tanggapan o appointing authority.[12]
which is meant authority derived from an appointment, however
irregular or informal, so that the incumbent be not a mere The subsequent appointment of petitioner to the position
volunteer.[8] Then a de facto officer is one who is in possession of on July 8, 1994, cannot justify petitioners retention of the excess
an office in the open exercise of its functions under color of an amount of P61,308.00, which corresponds to the amount
election or an appointment, even though such election or disallowed and ordered refunded by COA representing the salary
appointment may be irregular.[9] and RATA in excess of what was due him in 1993.
Petitioner invokes in his favor the ruling in Menzon vs. WHEREFORE, premises considered, the petition is hereby
Petilla,[10] that a de facto officer is entitled to receive the salary DISMISSED for lack of merit.
for services actually rendered. However, his reliance on
theMenzon case is misplaced. In Menzon, what was extended was SO ORDERED.
an appointment to the vacant position of Vice-Governor, in
petitioners case, he was designated. The appointment of Menzon
had the color of validity. This Court said:
And finally, even granting that the President, acting through the
Secretary of Local Government, possesses no power to appoint
the petitioner, at the very least, the petitioner is a de facto officer
entitled to compensation. There is no denying that the petitioner
assumed the Office of the Vice-Governor under a color of a known
appointment. As revealed by the records, the petitioner was
appointed by no less than the alter ego of the President, The
Secretary of Local Government, after which he took his oath of
office before Senator Alberto Romulo in the Office of Department
of Local Government Regional Director Res
Salvatierra. Concededly, the appointment has the color of validity.
Likewise, the doctrine in Cui, et. al. vs. Ortiz, et. al.[11] does
not apply in petitioners case. In Cui, this Court held:
[G.R. No. 127631. December 17, 1999]
Atty. ANGEL AGUIRRE JR. as City Legal Officer of Manila; Atty.
DOMINADOR MAGLALANG, Atty. MA. THERESA
BALAGTAS and Atty. ANALYN T. MARCELO, all
members of the Legal Panel of the Office of the City
Legal Officer of Manila, petitioners, vs. EVANGELINE
C. DE CASTRO, respondents.
DECISION
PANGANIBAN, J.:
The city legal officer of Manila has no disciplinary authority
over the chief of the Legal Affairs and Complaint Services of the
Division of City Schools of Manila. Inasmuch as the said official
was appointed by and is a subordinate of the regional director of
the Department of Education, Culture and Sports, she is subject to
the supervision and control of said director. The power to appoint
carries the power to remove or to discipline. The mere fact that
her salary is sourced from city funds does not ipso facto place her
under the city legal officer's disciplinary jurisdiction, absent any
clear statutory basis therefor.
The Case
Before this Court is a Petition for Review on
Certiorari[1] under Rule 45 of the Rules of Court seeking reversal
of the October 22, 1996 Decision[2] of the Court of Appeals
(CA)[3] in CA-GR SP No. 40183, the dispositive portion of which
reads:
WHEREFORE, premises considered, the petition is GRANTED and
the public respondent City Legal Office of Manila is directed to
permanently cease and desist from further proceeding with
Administrative Case CLO No. 24-96.[4]
Likewise assailed is the CAs December 23, 1996
Resolution[5]denying reconsideration.
The Facts
The undisputed facts of the case are summarized by the
Court of Appeals as follows:
[Respondent][6] Atty. Evangeline C. De Castro is the Chief of the
Legal Affairs and Complaint Services of the Division of City Schools
of Manila. On February 1, 1996, [respondent] received a letter
from public respondent Angel Aguirre, Jr., City Legal Officer of
Manila accompanied by copies of alleged complaints against her.
[Respondent] was required in the said letter to explain within
seventy two (72) hours upon receipt why no administrative
sanctions shall be imposed upon her for gross misconduct and
conduct unbecoming x x x a public officer in violation of the Civil
Service Law, Rules and Regulations.
"On February 6, 1996, [Respondent] Evangeline de Castro filed her
answer-affidavit which was received on the same day by the
Office of the City Legal Officer.
"Subsequently, on February 13, 1996, City Legal Officer Angel
Aguirre, Jr. notified the [respondent] that her answer-affidavit
was found unsatisfactory for which reason she was summoned to
appear before the said City Legal Officer for the purpose of
conducting a formal investigation.
"Two (2) days later or on February 15, 1996, [respondent] filed a
motion to dismiss. She claimed that she [was] a subordinate of
the Secretary of the Department of Education, Culture and Sports
(DECS).Thus, the case should be endorsed to the Office of the
DECS Secretary or its legal division as nowhere in RA 409, Charter
of the City of Manila is there a provision conferring upon the
Office of the City Legal Officer jurisdiction to try and investigate
personnel of the DECS in general, or the Division of City Schools
where petitioner is under, in particular.
"This motion to dismiss of [respondent] was denied in a resolution
of the City Legal Officer dated February 21, 1996 citing Sec. 455
b(1) and (V) of the Local Government Code and Section 3(c) of the
same code. In the said resolution it was held that the records of
the personnel office disclose[d] that [respondent was] included in
the plantilla of the City of Manila and therefore her salary derived
wholly and mainly from the funds of the City for which reason she
[was] subject to the disciplinary authority of the said City Legal
Officer.
"Thereafter, on February 26, 1996, [respondent] was notified to
appear before the panel formed by the City Legal Officer (CLO
Panel) to hear administrative case CLO 24-96 filed against her for
grave misconduct and conduct unbecoming x x x a public officer.
"[Respondent] filed a motion to reconsider the resolution dated
February 21, 1996. This motion was again denied by the CLO
panel in its order dated March 6, 1996.
"Again, [respondent] moved to reconsider the above order which
was likewise denied in the resolution of the CLO panel dated
March 18, 1996."[7]
Consequently, respondent elevated the matter to the Court
of Appeals via a Petition for Certiorari and Prohibition.
Ruling of the Court of Appeals
Citing the Administrative Code of 1987,[8] the Court of
Appeals ruled that the authority to discipline herein respondent
rests with the regional director for the National Capital Region of
the Department of Education, Culture and Sports (DECS), not with
the city legal officer of Manila. It also held that the Local
Government Code (LGC) did not repeal the pertinent provisions of
the Administrative Code.Hence, absent any contrary provision of
the LGC, the CA opined that disciplinary authority over petitioner
must remain with the DECS.
The CA also noted that officers and staff members of the
Division of City Schools were not among those whom the city
mayor was authorized to appoint under the LGC. Hence, it ruled
that respondent was not an employee of the City of Manila, and
that the city legal officer had no authority to investigate her for
administrative neglect or misconduct in office.
Assuming arguendo that the city mayor was authorized to
make a subsequent appointment to the respondents position
should it become vacant, the CA held that this power was not
retroactive and could not apply to respondent who had been
appointed by the regional director of the DECS.
Dissatisfied, the city legal officer of Manila lodged this
Petition before this Court on January 21, 1997.[9]
Issue
The solitary issue presented for the Courts consideration is
whether or not the Office of the City Legal Officer of Manila has
jurisdiction to investigate the complaint for grave misconduct filed
against the respondent.[10]
This Courts Ruling
The Petition is bereft of merit.
Sole Issue: Jurisdiction of the City Legal Officer
Petitioners contend that respondent is a city employee
under the supervision of the city mayor, because her salary is paid
by the City of Manila. They base this argument on Section 455 (b-
1-v)[11] of the Local Government Code (LGC), which authorizes
the city mayor to appoint city employees whose salaries and
wages are wholly or mainly paid out of city funds; and on Section
455 (b-1-x),[12] which states that the mayor may institute
administrative or judicial proceedings against erring city officials
or employees.
Petitioners contentions are not persuasive. Under Book IV,
Chapter V, Section 7(4) of the Administrative Code of 1987, the
power to appoint and discipline first-level employees, which
includerespondent, is specifically lodged with the regional
director of the Department of Education, Culture and Sports.
xxxxxxxxx
(4) Appoint personnel to positions in the first level and casual and
seasonal employees; and exercise disciplinary actions over them
in accordance with the Civil Service Law."
This is also clear in Book V, Section 47 (2) of the same Code;
and in Section 32, Rule XIV of the Omnibus Rules Implementing
Book V of the Administrative Code of 1987.
SEC. 32. The Secretaries and heads of agencies and
instrumentalities, provinces, cities, and municipalities shall have
jurisdiction to investigate and decide matters involving
disciplinary action against officers and employees under their
jurisdiction. x x x.
We agree with the CA that the LGC did not automatically
repeal the provisions in the 1987 Administrative Code, contrary to
petitioners argument. There is no provision in the LGC expressly
rescinding the authority of the DECS regional director to appoint
and exercise disciplinary authority over first-level employees. On
the other hand, implied repeals are not lightly presumed in the
absence of a clear and unmistakable showing of such
intention.[13]
Furthermore, respondents position as senior legal officer in
the Division of City Schools is not one of the offices covered by the
city mayors power of appointment under the LGC.
SEC. 454. Officials of the City Government. --- (a) There shall be in
each city a mayor, a vice-mayor, sangguniang panlungsod
members, a secretary to the sangguniang panlungsod, a city
treasurer, a city assessor, a city accountant, a city budget officer,
a city planning and development coordinator, a city engineer, a
city health officer, a city civil registrar, a city administrator, a city
legal officer, a city veterinarian, a city social welfare and
development officer, and a city general services officer.
We are not convinced. First, the above provision applies to
devolved personnel, and there is no proof whatsoever that
respondent is one of them. Second, even if respondent can be
considered as a devolved personnel, the cited paragraph of EO
503 must not be read in isolation from but in conjunction with the
other paragraphs in Section 2 (a).
Thus, paragraph 12 -- along with paragraphs 5, 6, 8, 13 and
14[15]of EO 503 -- deals with safeguards against termination,
reduction of pay and diminution in rank of existing personnel; it is
not about the power of the mayor to discipline personnel of the
Division of City Schools. In effect, the said provision serves more
to limit the appointing authority of the city mayor, whose acts
must be circumscribed by the aforecited conditions. It is not
incompatible and can exist with aforecited provisions of the
Administrative Code. Indeed, it cannot be deemed to have
divested the regional director of his disciplining power.
As to petitioners argument that respondents salary is
wholly or mainly paid out of city funds, suffice it to say that the
source of the wages is not the only criteria in determining
whether the payor may be deemed the employer. In fact, the
most important factor is the control test; that is, who has the
power to supervise and direct the work of the employee
concerned?

(b) In addition thereto, the city mayor may appoint a city
architect, a city information officer, a city agriculturist, a city
population officer, a city environment and natural resources
officer, and a city cooperatives officer.
x x x x x x x x x.[14]
Moreover, petitioners failed to show a specific provision in
the LGC showing that the power to discipline officials in the
Division of City Schools has been devolved from the regional
director of the DECS to the city mayor. All that Section 17 (4) of
the Local Government Code states is that the city must provide
support for education and other such services and facilities.
Likewise, Section 455 (b-1-x) of the Local Government
Code, which provides that the city mayor may cause to be
instituted administrative or judicial proceedings against any
official or employee of the city, is not necessarily incompatible
with the provisions of the Administrative Code of 1987
authorizing the regional director to discipline national education
employees. Nothing prohibits the mayor from filing complaints
against respondent before the DECS.
Absent any contrary statutory provision, the power to
appoint carries with it the power to remove or to
discipline.[16] Since respondent was appointed by the regional
director of DECS, she may be disciplined or removed by the latter
pursuant to law.
Finally, respondents primary duty is to conduct
investigations of cases involving teaching and nonteaching
personnel of the Division of City Schools of Manila. The report on
the results of her investigations is then submitted for final
evaluation to the DECS regional director, who may approve,
disapprove or allow respondent to modify it. This fact clearly
shows that supervision over respondent is lodged with the
regional director, not the mayor.
All in all, petitioners have not convinced us that the Court
of Appeals committed any reversible error.
WHEREFORE, the Petition is hereby DISMISSED and the
assailed Decision AFFIRMED. Costs against petitioners.
SO ORDERED.

Petitioners cite paragraph 12, Section 2 (a) of Executive

Order (EO) 503, which states that devolved personnel are
automatically reappointed by the local chief executive. Since
respondent was deemed reappointed by the city mayor, it follows
that the latter can exercise disciplinary authority over her.
G.R. No. 167472
CIVIL SERVICE COMMISSION, Petitioner,
- versus -
ENGR. ALI P. DARANGINA,Respondent.
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review
on Certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
as amended, seeking to reverse the Resolutions of the Court of
Appeals dated October 7, 2004[1] and March 18, 2005[2] in CA-
G.R. SP No. 71353.
The undisputed facts are:
Engr. Ali P. Darangina, respondent, was a development
management officer V in the Office of Muslim Affairs
(OMA). On September 25, 2000, he was extended a temporary
promotional appointment as director III, Plans and Policy Services,
in the same office. On October 11, 2000, the Civil Service
Commission (CSC), petitioner, approved this temporary
appointment effective for one (1) year from the date of its
issuance unless sooner terminated.
On October 31, 2000, newly appointed OMA Executive
Director Acmad Tomawis terminated the temporary appointment
of respondent on the ground that he is not a career executive
service eligible. Tomawis then appointed Alongan Sani as director
III. But he is not also a career executive service eligible. Thus, the
CSC disapproved his appointment, stating that respondent could
only be replaced by an eligible.
On appeal by respondent, the CSC issued Resolution No. 01-1543
dated September 18, 2001 sustaining the termination of his
temporary appointment but ordering the payment of his salaries
from the time he was appointed on September 25, 2000 until his
separation on October 31, 2000.
Respondent filed a motion for reconsideration. On March 20,
2002, the CSC issued Resolution No. 02-439 granting the same
with modification in the sense that respondent should be paid his
backwages from the time his employment was terminated
on October 11, 2000 until September 24, 2001, the expiration of
his one year temporary appointment.
On April 3, 2002, respondent filed a motion for partial
reconsideration, praying for his reinstatement as director III and
payment of backwages up to the time he shall be reinstated.
On June 5, 2002, the CSC issued Resolution No. 02-782 denying
respondents motion for partial reconsideration being a second
motion for reconsideration which is prohibited.
Respondent then filed a petition for review with the Court of
Appeals, docketed as CA-G.R. SP No. 71353. But in its Resolution
of February 27, 2004, the petition was dismissed for his failure
to implead the OMA Executive Director and the incumbent of the
disputed position.
Respondent filed a motion for reconsideration.
In a Resolution dated October 7, 2004, the Court of Appeals
reconsidered its Decision of February 27, 2004, thus:
ACCORDINGLY, our Decision of February
27, 2004 is RECONSIDERED and the
assailed CSC resolutions are hereby
MODIFIED in that the petitioner is
reinstated to his post to finish his 12-
month term with backwages from the
date of his removal until reinstatement.
SO ORDERED.
The CSC filed a motion for reconsideration but it was denied by
the Court of Appeals in a Resolution dated March 28, 2005.
Section 27, Chapter 5, Subtitle A, Title I, Book V of the
Administrative Code of 1987, as amended, classifying the
appointment status of public officers and employees in the career
service, reads:
SEC. 27. Employment Status. Appointment
in the career service shall be permanent
or temporary.
(1) Permanent status. A permanent
appointment shall be issued to
a person who meets all the
requirements for the position
to which he is being appointed,
including appropriate eligibility
prescribed, in accordance with
the provisions of law, rules and
standards promulgated in
pursuance thereof.
(2) Temporary appointment. In the
absence of
appropriate eligibles and it
becomes necessary in the
public interest to fill a vacancy,
a temporary appointment shall
be issued to a person who
meets all the requirements for
the position to which he is
being appointed except the
appropriate civil service
eligibility: Provided, That such
temporary appointment shall
not exceed twelve months, but
the appointee may be replaced
sooner if a qualified civil
service eligible becomes
available.
It is clear that a permanent appointment can issue only to a
person who possesses all the requirements for the position to
which he is being appointed, including the appropriate
eligibility.[3] Differently stated, as a rule, no person may be
appointed to a public office unless he or she possesses the
requisite qualifications. The exception to the rule is where, in the
absence of appropriate eligibles, he or she may be appointed to it
merely in a temporary capacity. Such a temporary appointment is
not made for the benefit of the appointee. Rather, an acting or
temporary appointment seeks to prevent a hiatus in the discharge
of official functions by authorizing a person to discharge the same
pending the selection of a permanent appointee.[4] In Cuadra v.
Cordova,[5] this Court defined a temporary appointment as one
made in an acting capacity, the essence of which lies in its
temporary character and its terminability at pleasure by the
appointing power. Thus, the temporary appointee accepts the
position with the condition that he shall surrender the office
when called upon to do so by the appointing authority. Under
Section 27 (2), Chapter 5, Subtitle A, Title I, Book V of the same
Code, the term of a temporary appointment shall be 12 months,
unless sooner terminated by the appointing authority. Such pre-
termination of a temporary appointment may be with or without
cause as the appointee serves merely at the pleasure of the
appointing power.[6]
Under the Revised Qualifications Standards prescribed by the CSC,
career executive service eligibility is a necessary qualification for
the position of director III in Plans and Policy Services, OMA. It is
not disputed that on September 25, 2000, when respondent was
extended an appointment, he was not eligible to the position, not
being a holder of such eligibility. Hence, his appointment was
properly designated as temporary. Then on October 31, 2000,
newly-appointed OMA Executive Director Tomawis recalled
respondents temporary appointment and replaced him by
appointing Alongan Sani. It turned out, however, that Sani is not
likewise qualified for the post. A game of musical chairs then
followed. Sani was subsequently replaced by Tapa Umal, who in
turn, was succeeded by Camad Edres, and later, was replaced by
Ismael Amod. All these appointees were also disqualified for lack
of the required eligibility.
The Court of Appeals ruled that such replacements are not valid
as the persons who replaced respondent are not also eligible.
Also, since he was replaced without just cause, he is entitled to
serve the remaining term of his 12-month term with salaries.
This Court has ruled that where a non-eligible holds a temporary
appointment, his replacement by another non-eligible is not
prohibited.[7]

Moreover, in Achacoso[8] cited earlier, this Court held that when

a temporary appointee is required to relinquish his office, he is
being separated precisely because his term has expired. Thus,
reinstatement will not lie in favor of respondent. Starkly put, with
the expiration of his term upon his replacement, there is no
longer any remaining term to be served. Consequently, he can no
longer be reinstated.

As to whether respondent is entitled to back salaries, it is not

disputed that he was paid his salary during the entire twelve-
month period in spite of the fact that he served only
from September 25, 2000 to October 31, 2000, or for only one
month and six days. Clearly, he was overpaid.

WHEREFORE, this Court GRANTS the petition and REVERSES the

assailed Resolutions of the Court of Appeals. Considering that
respondents employment was validly terminated on October 31,
2000, he is ordered to refund the salaries he received from that
date up to September 24, 2001.

No costs.

SO ORDERED.
GR 160791
SALES, petitioner vs CARREON, respondent
DECISION
SANDOVAL-GUTIERREZ, J.:
For our resolution is the instant Petition for Review on Certiorari
assailing the Decision[1] of the Court of Appeals dated September
16, 2003 in CA-G.R. SP No. 75515.
During the May 2001 elections, then Mayor Joseph Cedrick O.
Ruiz of Dapitan City, running for re-election, was defeated by
respondent Rodolfo H. Carreon, Jr.
On June 1, 18 and 27, 2001, his last month in office, then Dapitan
City Mayor Ruiz issued 83 appointments, including those of herein
petitioners.
On July 1, 2001, the newly elected Mayor, Rodolfo H. Carreon, Jr.,
herein respondent, assumed office.
On July 2, 2001, respondent issued Memorandum Orders Nos. 1
and 2 revoking the 83 appointments signed by his predecessor on
the ground that the latter violated Civil Service Commission (CSC)
Resolution No. 01-988 in relation to CSC Memorandum Circular
No. 7, Series of 2001, imposing a ban on issuing appointments in
the civil service during the election period. Thereupon,
respondent prohibited the release of the salaries and benefits of
the 83 appointees.
On July 10, 2001, Patricio Sales, one of herein petitioners, in his
capacity as president of the Dapitan City Government Employees
Association, wrote the CSC Regional Office No. IX requesting its
ruling on the matter.
On July 16 and August 3, 2001, respondent sent the said Office a
position paper justifying his action, contending that the
questioned appointments were not only issued in bulk but that
there was no urgent need to fill those positions.
On August 17, 2001, the CSC Regional Office No. IX issued an
Omnibus Order, the dispositive portion of which reads:
WHEREFORE, all premises considered:
1. The eighty-three (83)
appointments issued by then
Mayor Joseph Cedrick O. Ruiz,
including those issued by the
herein requesting parties, are,
therefore not considered mass
appointments, as defined
under CSC Resolution No. 01-
0988 and are thus, VALID and
EFFECTIVE.
2. Memorandum Orders Nos. 1
and 2, Series of 2001, issued
by Mayor Rodolfo H. Carreon,
Jr., are hereby declared NULL
and VOID, and accordingly,
3. The LGU-Dapitan is hereby
directed to pay the salaries
and other emoluments to
which the 83 appointments
are entitled to pursuant to the
appointments issued to them.
On appeal by respondent, the CSC En Banc, on June 17, 2002,
issued Resolution No. 020828 reversing the assailed Omnibus
Order of the CSC Regional Office No. IX, thus:
WHEREFORE, premises considered, the
Omnibus Order dated August 17, 2001of the
Civil Service Commission Regional Office No.
IX is REVERSED and SET ASIDE. The
Commission hereby rules, as follows:
1. The approval of all 83
appointments issued by then
Mayor J. Cedrick O. Ruiz is
revoked for being violative of
Republic Act No. 7041, CSC
Memorandum Circular No. 18
s. 1988, as amended, CSC
Resolution No. 963332 on its
accreditation and CSC
Resolution No. 01-0988.
2. All promoted employees are
reverted to their previous
position; and
3. Memorandum Order No. 1 and
Memorandum Order No. 2
issued by incumbent Mayor
Rodolfo H. Carreon, Jr. are
hereby declared null and void.
The CSC En Banc held that the positions in question were
published and declared vacant prior to the existence of any
vacancy.
Petitioners filed a motion for reconsideration but it
was denied in Resolution No. 030049 dated January 16, 2003 by
the CSC En Banc.
On February 13, 2003, petitioners filed with the Court of Appeals
a petition for review. On September 16, 2003, the appellate court
rendered its Decision dismissing the petition, sustaining the CSCs
finding that the positions to which the petitioners were appointed
were already reported and published even before they had been
declared vacant, in violation of Sections 2 and 3 of Republic Act
(R.A.) No. 7041;[2] and that there was no first level representative
to the Personnel Section Board who should have participated in
the screening of candidates for vacancy in the first level.
Petitioners filed a motion for reconsideration, but this was denied
by the Court of Appeals in its Resolution dated November 17,
2003.
Hence, the instant petition.
This case is a typical example of the practice of outgoing local
chief executives to issue midnight appointments, especially after
their successors have been proclaimed. It does not only cause
animosities between the outgoing and the incoming officials, but
also affects efficiency in local governance. Those appointed tend
to devote their time and energy in defending their appointments
instead of attending to their functions. However, not
all midnight appointments are invalid.[3] Each appointment must
be judged on the basis of the nature, character, and merits of the
individual appointment and the circumstances surrounding the
same.[4] It is only when the appointments were made en
masse by the outgoing administration and shown to have been
made through hurried maneuvers and under circumstances
departing from good faith, morality, and propriety that this Court
has struck down midnight appointments.[5]
It is State policy that opportunities for government employment
shall be open to all qualified citizens and employees shall be
selected on the basis of fitness to perform the duties and assume
the responsibilities of the positions.[6] It was precisely in order to
ensure transparency and equal opportunity in the recruitment
and hiring of government personnel, that Republic Act No. 7041
was enacted. Section 2 provides:
SEC. 2. Duty of Personnel Officers. It shall
be the duty of all Chief Personnel or
Administrative Officers of all branches,
subdivisions, instrumentalities and
agencies of the Government, including
government-owned or controlled
corporations with original charters, and
local government units, to post in three
(3) conspicuous places of their offices for a
period ten (10) days a complete list of all
existing vacant positions in their
respective offices which are authorized to
be filled, and to transmit a copy of such
list and the corresponding qualification
standards to the Civil Service Commission
not later than the tenth day of every
month. Vacant positions shall not be
 filled until after publication: Provided, applicants to the 43 first-level positions. Petitioners contend,
however, that vacant and unfilled Here, the publication of vacancies was made even before the however, that although there was no such representative, the
positions that are: positions involved actually became vacant. Clearly, respondents action of the Board is still valid.
action violated Section 2 of R.A. No. 7041 cited earlier.
a) primarily confidential; Petitioners contention lacks merit.
b) policy-determining; Moreover, the CSC found that there was no first-level
c) highly technical; representative appointed to the Personnel Selection Board, which Section 20, Rule VI of the Omnibus Rules Implementing
d) co-terminous with that of the deliberated on the appointments to first-level positions. Book V-A of the Administrative Code of 1987 (also known as the
appointing authority; or Civil Service Law), provides:
e) limited to the duration of a CSC Memorandum Circular No. 18, series of 1988, as amended,
particular project, provides that the Personnel Selection Board shall be composed of SEC. 20. Notwithstanding the initial
the following: approval of an appointment, the same
shall be excluded from the list required by may be recalled on any of the following
law. a. Official of department/agency grounds:
directly responsible for
SEC. 3. Publication of Vacancies. The personnel management; a) non-compliance with the
Chairman and members of the Civil procedures/criteria provided in
Service Commission shall publish once b. Representative of the agencys Merit Promotion
every quarter a complete list of all the management; Plan;
existing vacant positions in the
Government throughout the country, c. Representative of b) failure to pass through the
including the qualification standards organizational unit which may agencys Selection/Promotion
required for each position and, thereafter, be an office, department, or Board;
certify under oath to the completion of division where the vacancy is;
publication. Copies of such publication c) violation of the existing
shall be sold at cost to the public and d. Representative of rank-and- collective bargaining
distributed free of charge to the various file employees, one (1) for the agreement between
personnel office of the government where first-level and one (1) for the management and employees
they shall be available for inspection by second-level, who shall both relative to promotion; or
the public:Provided, That said publication be chosen by duly
shall be posted by the Chief Personnel or registered/accredited d) violation of other existing civil
Administrative Officer of all local employees association in the service laws, rules and
government units in at least three (3) department or agency. The regulations.
public and conspicuous places in their former shall sit during the
respective municipalities and screening of candidates for Verily, in deliberating and recommending to former Mayor Ruiz
provinces: Provided, further, That any vacancy in the first-level, the appointments of herein petitioners to the vacant
vacant position published therein shall be while the latter shall positions sans the required representation, the Board violated the
open to any qualified person who does participate in the screening of above CSC Rules. Hence, the appointments he issued are not
not necessarily belong to the same office candidates for vacancy in the valid. They may be recalled. In Mathay, Jr. v. Civil Service
with the vacancy or who occupies a second level. In case where Commission,[7] this Court upheld the authority of the CSC to take
position next-in-rank to the there is no employees appropriate action on all appointments, including its authority to
vacancy: Provided, finally, That the Civil association in the department recall appointments made in disregard of the applicable
Service Commission shall not act on any or agency, the representative provisions of Civil Service Law and regulations.
appointment to fill up a vacant position shall be chosen at large by the
unless the same has been reported to employees through a general In sum, for being in violation of Section 2, R.A. No. 7041, CSC
and published by the Commission. election to be called for the Memorandum Circular No. 18, as amended, and Section 20, Rule
purpose. VI of the Omnibus Rules Implementing Book V-A of the
Administrative Code of 1987, the appointments of the above-
The foregoing provisions are clear and need no named petitioners are declared void.
interpretation. The CSC is required to publish the lists of vacant Petitioners admitted that after the retirement on April 22, 2000 of
positions and such publication shall be posted by the chief Beltran Faconete, the first-level representative to the Personnel WHEREFORE, the Court DENIES the petition and AFFIRMS the
personnel or administrative officer of all local government units in Selection Board, no other first-level representative to replace him assailed Decision of the Court of Appeals in CA-G.R. SP No.
the designated places. The vacant positions may only be filled by was chosen by the Dapitan City Government Employees 755151.SO ORDERED.
the appointing authority after they have been reported to the CSC Association. Yet, the city government Personnel Selection Board ATTY. VICENTE E. SALUMBIDES, JR., and GLENDA ARAA,
as vacant and only after publication. proceeded to deliberate and recommend the appointments of Petitioners,- versus -
OFFICE OF THE OMBUDSMAN, RICARDO AGON, RAMON
VILLASANTA, ELMER DIZON,SALVADOR ADUL, and AGNES
FABIAN,
Respondents,
DECISION
CARPIO MORALES, J.:
Petitioners Vicente Salumbides, Jr. (Salumbides) and Glenda Araa
(Glenda) challenge the October 11, 2007 Decision and the
December 13, 2007 Resolution of the Court of Appeals[1] in CA-
G.R. SP No. 96889 affirming the Office of the Ombudsmans
decision finding them guilty of Simple Neglect of Duty.
Salumbides and Glenda were appointed in July 2001 as
Municipal Legal Officer/Administrator and Municipal Budget
Officer, respectively, of Tagkawayan, Quezon.
Towards the end of 2001, Mayor Vicente Salumbides III
(the mayor) saw the urgent need to construct a two-classroom
building with fence (the projects) for the Tagkawayan Municipal
High School[2] (TMHS) since the public school in the poblacion
area would no longer admit high school freshmen starting school
year 2002-2003. On how to solve the classroom shortage, the
mayor consulted Salumbides who suggested that the construction
of the two-classroom building be charged to the account of the
Maintenance and Other Operating Expenses/ Repair and
Maintenance of Facilities (MOOE/RMF) and implemented by
administration, as had been done in a previous classroom building
project of the former mayor.
Upon consultation, Glenda advised Salumbides in
December 2001, that there were no more available funds that
could be taken from the MOOE/RMF, but the savings of the
municipal government were adequate to fund the projects. She
added, however, that the approval by the Sangguniang Bayan of a
proposed supplemental budget must be secured.
The members of the Sangguniang Bayan having
already gone on recess for the Christmas holidays, Glenda and
Salumbides advised the mayor to source the funds from
theP1,000,000 MOOE/RMF allocation in the approved Municipal
Annual Budget for 2002.[3]
The mayor thus ordered on January 8, 2002 Municipal
Engineer Jose Aquino (Aquino) to proceed with the construction
of the projects based on the program of work and bill of materials
he (Aquino) prepared with a total cost estimate of P222,000.
Upon advice of Municipal Planning and Development
Officer Hernan Jason (Jason), the mayor included the projects in
the list of local government projects scheduled for bidding
on January 25, 2002 which, together with the January 31,
2002 public bidding, failed.
The mayor was to admit later his expectation or
assumption of risk on reimbursement:
x x x It was my thinking that even
if a bidder emerges and gets these 2 projects
which were at the time on-going (although it
was also my thinking then that no bidder
would possibly bid for these 2 projects as
these were cost-estimated very low-
P150,000 for the 2-room school building
P72,000 for the fencing) he (bidder) would
be reasonable enough to reimburse what I
had so far spen[t] for the project. I said I
because up to the time of the failed 2
biddings I have shouldered the vale of the
laborers and I requisitioned some materials
on credit on my own personal account, and
not a single centavo was at the time
disbursed by our municipal treasury until all
requirements for negotiated purchase of the
materials for the project had been
accomplished. As a matter of fact, payments
for the expenses on these 2 projects have
been made only starting 19 March 2002. x x
x[4] (underscoring supplied)
The construction of the projects commenced without
any approved appropriation and ahead of the public
bidding. Salumbides was of the opinion that the projects were
regular and legal, based on an earlier project that was
implemented in the same manner, using the same source of fund
and for the same reason of urgency which was allowed because
the building was considered merely temporary as the TMHS is set
to be transferred to an 8-hectare lot which the municipal
government is presently negotiating to buy.[5]
Meanwhile, Aquino suggested to the Sangguniang
Bayan the adoption of model guidelines in the implementation of
infrastructure projects to be executed by administration, while
Councilor Coleta Sandro (Coleta) sponsored a Resolution to ratify
the projects and to authorize the mayor to enter into a negotiated
procurement. Both actions did not merit the approval of
the Sangguniang Bayan.
On May 13, 2002, herein respondents Ricardo Agon,
Ramon Villasanta, Elmer Dizon, Salvador Adul and Agnes
Fabian, all members of the Sangguniang Bayan of Tagkawayan,
filed with the Office of the Ombudsman a complaint[6] against
Salumbides and Glenda (hereafter petitioners), the mayor, Coleta,
Jason and Aquino.
The administrative aspect of the case, docketed as
Case No. OMB-L-A-02-0276-E, charged petitioners et al. with
Dishonesty, Grave Misconduct, Gross Neglect of Duty, Conduct
Prejudicial to the Best Interest of the Service, and violation of the
Commission on Audit (COA) Rules and the Local Government
Code.
By Order of June 14, 2002, the Office of the Ombudsman, denied
the prayer to place petitioners et al. under preventive suspension
pending investigation. By Order datedFebruary 1, 2005, approved
on April 11, 2005, it denied the motion for reconsideration
but dropped the mayor and Coleta, both elective officials, as
respondents in the administrative case, the 2004 elections having
mooted the case. The parties were thereupon directed to submit
their respective verified position papers to which petitioners,
Jason and Aquino complied by submitting a consolidated position
paper on May 19, 2005.
Meanwhile, in response to the subpoena duces tecum issued by
the Office of the Ombudsman on February 18, 2005 requiring the
regional officer of the COA to submit the post-audit report on the
projects, Celerino Alviar, COA State Auditor II claimed by Affidavit
of May 23, 2005 that the required documents were among those
razed by fire on April 14, 2004 that hit the Office of the Municipal
Accountant where they were temporarily stored due to lack of
space at the Provincial Auditors Office.
On October 17, 2005, the Office of the Ombudsman approved the
September 9, 2005 Memorandum absolving Jason and Aquino,
and finding petitioners guilty of Simple Neglect of Duty, for which
they were meted the penalty of suspension from office for a
maximum period of six months with a stern warning against a
similar repetition. It also approved on November 2,
2006 the March 27, 2006 Order[7] denying the motion for
reconsideration.
Their recourse to the appellate court having failed,
petitioners come before this Court via Rule 45 of the Rules of
Court.
For non-compliance with the rule on certification
against forum shopping, the petition merits outright
dismissal. The verification portion of the petition does not carry a
certification against forum shopping.[8]
The Court has distinguished the effects of non-compliance with
the requirement of verification and that of certification against
forum shopping. A defective verification shall be treated as an
unsigned pleading and thus produces no legal effect, subject to
the discretion of the court to allow the deficiency to be remedied,
while the failure to certify against forum shopping shall be cause
for dismissal without prejudice, unless otherwise provided, and is
not curable by amendment of the initiatory pleading.[9]
Petitioners disregard of the rules was not the
first. Their motion for extension of time to file petition was
previously denied by Resolution of January 15, 2008[10] for non-
compliance with the required showing of competent proof of
identity in the Affidavit of Service. The Court, by Resolution
of March 4, 2008,[11] later granted their motion for
reconsideration with motion to admit appeal (Motion with
Appeal) that was filed on February 18, 2008 or the last day of
filing within the extended period.
Moreover, in their Manifestation/Motion[12] filed a day later,
petitioners prayed only for the admission of nine additional copies
of the Motion with Appeal due to honest inadvertence in earlier
filing an insufficient number of copies. Petitioners were less than
candid when they surreptitiously submitted a Motion with Appeal
which is different from the first set they had submitted. The
second set of Appeal includes specific Assignment of
Errors[13] and already contains a certification against forum
shopping[14] embedded in the Verification. The two different
Verifications were notarized by the same notary public and bear
the same date and document number.[15] The rectified
verification with certification, however, was filed beyond the
reglementary period.
Its lapses aside, the petition just the same merits denial.
Petitioners urge this Court to expand the settled doctrine of
condonation[16] to cover coterminous appointive officials who
were administratively charged along with the reelected
official/appointing authority with infractions allegedly committed
during their preceding term.
The Court rejects petitioners thesis.
More than 60 years ago, the Court in Pascual v. Hon. Provincial
Board of Nueva Ecija[17] issued the landmark ruling that prohibits
the disciplining of an elective official for a wrongful act committed
during his immediately preceding term of office. The Court
explained that [t]he underlying theory is that each term is
separate from other terms, and that the reelection to office
operates as a condonation of the officers previous misconduct to
the extent of cutting off the right to remove him therefor.[18]
The Court should never remove a public
officer for acts done prior to his present term
of office. To do otherwise would be to
deprive the people of their right to elect
their officers. When the people elect[e]d a
man to office, it must be assumed that they
did this with knowledge of his life and
character, and that they disregarded or
forgave his faults or misconduct, if he had
been guilty of any. It is not for the court, by
reason of such faults or misconduct[,] to
practically overrule the will of the
people.[19] (underscoring supplied)
Lizares v. Hechanova, et al.[20] replicated the
doctrine. The Court dismissed the petition in that case for being
moot, the therein petitioner having been duly reelected, is no
longer amenable to administrative sanctions.[21]
Ingco v. Sanchez, et al.[22] clarified that the
condonation doctrine does not apply to
a criminal case.[23] Luciano v. The Provincial Governor, et
al.,[24] Olivarez v. Judge Villaluz,[25] and Aguinaldo v.
Santos[26] echoed the qualified rule that reelection of a public
official does not bar prosecution for crimes committed by him
prior thereto.
Consistently, the Court has reiterated the doctrine in a
string of recent jurisprudence including two cases involving a
Senator and a Member of the House of Representatives.[27]
Salalima v. Guingona, Jr.[28] and Mayor Garcia v. Hon.
Mojica[29] reinforced the doctrine. The condonation rule was
applied even if the administrative complaint was not filed before
the reelection of the public official, and even if the alleged
misconduct occurred four days before the elections,
respectively. Salalima did not distinguish as to the date of filing of
the administrative complaint, as long as the alleged misconduct
was committed during the prior term, the precise timing or period
of which Garcia did not further distinguish, as long as the
wrongdoing that gave rise to the public officials culpability was
committed prior to the date of reelection.
Petitioners theory is not novel.
A parallel question was involved in Civil Service Commission v.
Sojor[30] where the Court found no basis to broaden the scope of
the doctrine of condonation:
Lastly, We do not agree with
respondents contention that his
appointment to the position of president of
NORSU, despite the pending administrative
cases against him, served as a condonation
by the BOR of the alleged acts imputed to
him. The doctrine this Court laid down
in Salalima v. Guingona, Jr. and Aguinaldo v.
Santos are inapplicable to the present
circumstances. Respondents in the
mentioned cases are elective officials, unlike
respondent here who is an appointed
official. Indeed, election expresses the
sovereign will of the people. Under the
principle of vox populi est suprema lex, the
re-election of a public official may, indeed,
supersede a pending administrative
case. The same cannot be said of a re-
appointment to a non-career
position. There is no sovereign will of the
people to speak of when the BOR re-
appointed respondent Sojor to the post of
university president.[31] (emphasis and
underscoring supplied)
Contrary to petitioners asseveration, the non-application of the
condonation doctrine to appointive officials does not violate the
right to equal protection of the law.
In the recent case of Quinto v. Commission on Elections,[32] the
Court applied the four-fold test in an equal protection
challenge[33] against the resign-to-run provision, wherein it
discussed the material and substantive distinctions between
elective and appointive officials that could well apply to the
doctrine of condonation:
The equal protection of the law clause is
against undue favor and individual or class
privilege, as well as hostile discrimination or
the oppression of inequality. It is not
intended to prohibit legislation which is
limited either in the object to which it is
directed or by territory within which it is to
operate. It does not demand absolute
equality among residents; it merely requires
that all persons shall be treated alike, under
like circumstances and conditions both as to
privileges conferred and liabilities
enforced. The equal protection clause is not
infringed by legislation which applies only to
those persons falling within a specified class,
if it applies alike to all persons within such
class, and reasonable grounds exist for
making a distinction between those who fall
within such class and those who do not.
Substantial distinctions clearly exist
between elective officials and appointive
officials. The former occupy their office by
virtue of the mandate of the electorate. They
are elected to an office for a definite term
and may be removed therefrom only upon
stringent conditions. On the other
hand, appointive officials hold their office by
virtue of their designation thereto by an
appointing authority. Some appointive
officials hold their office in a permanent
capacity and are entitled to security of
tenure while others serve at the pleasure of
the appointing authority.
xxxx
An election is the embodiment of the
popular will, perhaps the purest expression
of the sovereign power of the people. It
involves the choice or selection of candidates
to public office by popular vote. Considering
that elected officials are put in office by their
 constituents for a definite term, x x x
complete deference is accorded to the will of
the electorate that they be served by such
officials until the end of the term for which
they were elected. In contrast, there is no
such expectation insofar as appointed
officials are concerned. (emphasis and
underscoring supplied)
The electorates condonation of the previous administrative
infractions of the reelected official cannot be extended to that of
the reappointed coterminous employees, the underlying basis of
the rule being to uphold the will of the people expressed through
the ballot. In other words, there is neither subversion of the
sovereign will nor disenfranchisement of the electorate to speak
of, in the case of reappointed coterminous employees.
stamping their imprimatur and giving their advice to their
superior.
The appellate court correctly ruled that as municipal legal officer,
petitioner Salumbides failed to uphold the law and provide a
sound legal assistance and support to the mayor in carrying out
the delivery of basic services and provisions of adequate facilities
when he advised [the mayor] to proceed with the construction of
the subject projects without prior competitive bidding.[38] As
pointed out by the Office of the Solicitor General, to absolve
Salumbides is tantamount to allowing with impunity the giving of
erroneous or illegal advice, when by law he is precisely tasked to
advise the mayor on matters related to upholding the rule of
law.[39] Indeed, a legal officer who renders a legal opinion on a
course of action without any legal basis becomes no different
from a lay person who may approve the same because it appears
justified.
Public service requires integrity and discipline. For this reason,
public servants must exhibit at all times the highest sense of
honesty and dedication to duty. By the very nature of their duties
and responsibilities, public officers and employees must faithfully
adhere to hold sacred and render inviolate the constitutional
principle that a public office is a public trust; and must at all times
be accountable to the people, serve them with utmost
responsibility, integrity, loyalty and efficiency.[44]
WHEREFORE, the assailed Decision and Resolution of
the Court of Appeals in CA-G.R. SP No. 96889
are AFFIRMED with MODIFICATION, in that petitioners, Vicente
Salumbides, Jr. and Glenda Araa, are suspended from office for
three (3) months without pay.
SO ORDERED.

It is the will of the populace, not the whim of one person who
happens to be the appointing authority, that could extinguish an
administrative liability. Since petitioners hold appointive
positions, they cannot claim the mandate of the electorate. The
people cannot be charged with the presumption of full knowledge
of the life and character of each and every probable appointee of
the elective official ahead of the latters actual reelection.
Moreover, the unwarranted expansion of the Pascual doctrine
would set a dangerous precedent as it would, as respondents
posit, provide civil servants, particularly local government
employees, with blanket immunity from administrative liability
that would spawn and breed abuse in the bureaucracy.
Asserting want of conspiracy, petitioners implore this Court to sift
through the evidence and re-assess the factual findings. This the
Court cannot do, for being improper and immaterial.
Under Rule 45 of the Rules of Court, only questions of law may be
raised, since the Court is not a trier of facts.[34] As a rule, the
Court is not to review evidence on record and assess the
probative weight thereof. In the present case, the appellate court
affirmed the factual findings of the Office of the Ombudsman,
which rendered the factual questions beyond the province of the
Court.
Moreover, as correctly observed by respondents, the lack of
conspiracy cannot be appreciated in favor of petitioners who
were found guilty of simple neglect of duty, for if they conspired
to act negligently, their infraction becomes intentional.[35] There
can hardly be conspiracy to commit negligence.[36]
Simple neglect of duty is defined as the failure to give proper
attention to a task expected from an employee resulting from
either carelessness or indifference.[37] In the present case,
petitioners fell short of the reasonable diligence required of them,
for failing to exercise due care and prudence in ascertaining the
legal requirements and fiscal soundness of the projects before
As regards petitioner Glenda, the appellate court held that the
improper use of government funds upon the direction of the
mayor and prior advice by the municipal legal officer did not
relieve her of liability for willingly cooperating rather than
registering her written objection[40] as municipal budget officer.
Aside from the lack of competitive bidding, the appellate court,
pointing to the improper itemization of the expense, held that the
funding for the projects should have been taken from the capital
outlays that refer to the appropriations for the purchase of goods
and services, the benefits of which extend beyond the fiscal year
and which add to the assets of the local government unit. It added
that current operating expenditures like MOOE/RMF refer to
appropriations for the purchase of goods and services for the
conduct of normal local government operations within the fiscal
year.[41]
In Office of the Ombudsman v. Tongson,[42] the Court reminded
the therein respondents, who were guilty of simple neglect of
duty, that government funds must be disbursed only upon
compliance with the requirements provided by law and pertinent
rules.
Simple neglect of duty is classified as a less grave offense
punishable by suspension without pay for one month and one day
to six months. Finding no alleged or established circumstance to
warrant the imposition of the maximum penalty of six months,
the Court finds the imposition of suspension without pay for three
months justified.
When a public officer takes an oath of office, he or she binds
himself or herself to faithfully perform the duties of the office and
use reasonable skill and diligence, and to act primarily for the
benefit of the public. Thus, in the discharge of duties, a public
officer is to use that prudence, caution, and attention which
careful persons use in the management of their affairs.[43]
G .R. No. 86564 August 1, 1989
RAMON L. LABO, JR., petitioner,
vs.
THE COMMISSION ON ELECTIONS (COMELEC) EN BANC AND LUIS
L. LARDIZABAL, respondents
CRUZ, J.:
The petitioner asks this Court to restrain the Commission on
Elections from looking into the question of his citizenship as a
qualification for his office as Mayor of Baguio City. The allegation
that he is a foreigner, he says, is not the issue. The issue is
whether or not the public respondent has jurisdiction to conduct
any inquiry into this matter, considering that the petition for quo
warranto against him was not filed on time.
It is noteworthy that this argument is based on the alleged
tardiness not of the petition itself but of the payment of the filing
fee, which the petitioner contends was an indispensable
requirement. The fee is, curiously enough, all of P300.00 only. This
brings to mind the popular verse that for want of a horse the
kingdom was lost. Still, if it is shown that the petition was indeed
filed beyond the reglementary period, there is no question that
this petition must be granted and the challenge abated.
The petitioner's position is simple. He was proclaimed mayor-
elect of Baguio City, on January 20, 1988. The petition for quo
warranto was filed by the private respondent on January 26,
1988, but no filing fee was paid on that date. This fee was finally
paid on February 10, 1988, or twenty-one days after his
proclamation. As the petition by itself alone was ineffectual
without the filing fee, it should be deemed filed only when the fee
was paid. This was done beyond the reglementary period
provided for under Section 253 of the Omnibus Election Code
reading as follows:
SEC. 253. Petition for quo warranto. Any voter
contesting the election of a Member of the
Batasang Pambansa, regional, provincial, or city
officer on the ground of ineligibility or of disloyalty
to the Republic of the Philippines shall file a sworn
petition for quo warranto with the Commission
within ten days after the proclamation of the
result of the election.
The petitioner adds that the payment of the filing fee is required
under Rule 36, Section 5, of the Procedural Rules of the COMELEC
providing that
Sec. 5. No petition for quo warranto shall be
given due course without the payment of a
filing fee in the amount of Three Hundred
Pesos (P300.00) and the legal research fee
as required by law.
and stresses that there is abundant jurisprudence holding that the
payment of the filing fee is essential to the timeliness of the filling
of the petition itself. He cites many rulings of the Court to this
effect, specificallyManchester v. Court of Appeals. 1
For his part, the private respondent denies that the filing fee was
paid out of time. In fact he says, it was fliedahead of time. His
point is that when he filed his "Petition for Quo Warranto with
Prayer for Immediate Annulment of Proclamation and Restraining
Order or Injunction" on January 26, 1988, the COMELEC treated it
as a pre-proclamation controversy and docketed it as SPC Case
No. 88-288. No docket fee was collected although it was offered.
It was only on February 8, 1988, that the COMELEC decided to
treat his petition as solely for quo warranto and re-docketed it as
EPC Case No. 88-19, serving him notice on February 10, 1988. He
immediately paid the filing fee on that date.
The private respondent argues further that during the period
when the COMELEC regarded his petition as a pre-proclamation
controversy, the time for filing an election protest or quo
warranto proceeding was deemed suspended under Section 248
of the Omnibus Election Code. 2 At any rate, he says, Rule 36,
Section 5, of the COMELEC Rules of Procedure cited by the
petitioner, became effective only on November 15, 1988, seven
days after publication of the said Rules in the Official Gazette
pursuant to Section 4, Rule 44 thereof. 3 These rules could not
retroact to January 26,1988, when he filed his petition with the
COMELEC.
In his Reply, the petitioner argues that even if the Omnibus
Election Code did not require it, the payment of filing fees was still
necessary under Res. No. 1996 and, before that, Res. No. 1450 of
the respondent COMELEC, promulgated on January 12, 1988, and
February 26, 1980, respectively. To this, the private respondent
counters that the latter resolution was intended for the local
elections held on January 30, 1980, and did not apply to the 1988
local elections, which were supposed to be governed by the first-
mentioned resolution. However, Res. No. 1996 took effect only on
March 3, 1988, following the lapse of seven days after its
publication as required by RA No. 6646, otherwise known as the
Electoral Reform Law of 1987, which became effective on January
5, 1988. Its Section 30 provides in part:
Sec. 30. Effectivity of Regulations and
Orders of the Commission. The rules and
regulations promulgated by the
Commission shall take effect on the seventh
day after their publication in the Official
Gazette or in at least (2) daily newspapers
of general circulation in the Philippines.
The Court has considered the arguments of the parties and holds
that the petition for quo warranto was filed on time. We agree
with the respondents that the fee was paid during the ten-day
period as extended by the pendency of the petition when it was
treated by the COMELEC as a pre-proclamation proceeding which
did not require the payment of a filing fee. At that, we reach this
conclusion only on the assumption that the requirement for the
payment of the fees in quo warranto proceedings was already
effective. There is no record that Res. No. 1450 was even
published; and as for Res. No. 1996, this took effect only on
March 3, 1988, seven days after its publication in the February 25,
1988 issues of the Manila Chronicle and the Philippine Daily
Inquirer, or after the petition was filed.
The petitioner forgets Ta;ada v. Tuvera 4 when he argues that
the resolutions became effective "immediately upon approval"
simply because it was so provided therein. We held in that case
that publication was still necessary under the due process clause
despite such effectivity clause.
In any event, what is important is that the filing fee was paid, and
whatever delay there may have been is not imputable to the
private respondent's fault or neglect. It is true that in
the Manchester Case, we required the timely payment of the
filing fee as a precondition for the timeliness of the filing of the
case itself. In Sun Insurance Office, Ltd. v. Asuncion, 5 however
this Court, taking into account the special circumstances of that
case, declared:
This Court reiterates the rule that the trial court
acquires jurisdiction over a case only upon the
payment of the prescribed filing fee. However, the
court may allow the payment of the said fee within a
reasonable time. In the event of non-compliance
therewith, the case shall be dismissed.
The same idea is expressed in Rule 42, Section 18, of the
COMELEC Rules of Procedure adopted on June 20, 1988, thus:
Sec. 18. Non-payment of prescribed fees.
If the fees above prescribed are not paid,
theCommission may refuse to take action
thereon until they are paid and may dismiss
the action or the proceeding. (Emphasis
supplied.)
The Court notes that while arguing the technical point that the
petition for quo warranto should be dismissed for failure to pay
the filing fee on time, the petitioner would at the same time
minimize his alleged lack of citizenship as "a futile technicality," It
is regrettable, to say the least, that the requirement of citizenship
as a qualification for public office can be so demeaned. What is
worse is that it is regarded as an even less important
consideration than the reglementary period the petitioner insists
upon.
This matter should normally end here as the sole issue originally
raised by the petitioner is the timeliness of thequo
warranto proceedings against him. However, as his citizenship is
the subject of that proceeding, and considering the necessity for
an early resolution of that more important question clearly and
urgently affecting the public interest, we shall directly address it
now in this same action.
The Court has similarly acted in a notable number of cases, thus:
From the foregoing brief statement of the
nature of the instant case, it would appear
that our sole function in this proceeding
should be to resolve the single issue of
whether or not the Court of Appeals erred
in ruling that the motion for new trial of the
GSIS in question should indeed be
deemedpro forma. But going over the
extended pleadings of both parties, the
Court is immediately impressed that
substantial justice may not be timely
achieved, if we should decide this case
upon such a technical ground alone. We
have carefully read all the allegations and
arguments of the parties, very ably and
comprehensively expounded by evidently
knowledgeable and unusually competent
counsel, and we feel we can better serve
the interests of justice by broadening the
scope of our inquiry, for as the record
before us stands, we see that there is
enough basis for us to end the basic
controversy between the parties here and
now, dispensing, however, with procedural
steps which would not anyway affect
substantially the merits of their respective
claims. 6
xxx
While it is the fault of the petitioner for
appealing to the wrong court and thereby
allowing the period for appeal to lapse, the
more correct procedure was for the
respondent court to forward the case to the
proper court which was the Court of
Appeals for appropriate action. Considering,
however, the length of time that this case
has been pending, we apply the rule in the
case of Del Castillo v. Jaymalin, (112 SCRA
629) and follow the principle enunciated in
Alger Electric, Inc. v. Court of Appeals, (135
SCRA 37) which states:
... it is a cherished
rule of procedure for
this Court to always
strive to settle the
entire controversy in
a single proceeding
leaving no root or
branch to bear the
seeds of future
litigation. No useful
purpose will be
served if this case is
remanded to the trial
court only to have its
decision raised again
to the Intermediate
Appellate Court and
from there to this
Court. (p. 43)
Only recently in the case of Beautifont, Inc.,
et al. v. Court of Appeals, et al. (G.R. No.
50141, January 29, 1988), we stated that:
... But all those relevant facts are now
before this Court. And those facts dictate
the rendition of a verdict in the petitioner's
favor. There is therefore no point in
referring the case back to the Court of
Appeals. The facts and the legal
propositions involved will not change, nor
should the ultimate judgment. Considerable
time has already elapsed and, to serve the
ends of justice, it is time that the
controversy is finally laid to rest. (See Sotto
v. Samson, 5 SCRA 733; Republic v. Paredes,
108 Phil. 57; Lianga Lumber Co. v. Lianga
Timber Co., Inc., 76 SCRA 197; Erico v. Heirs
of Chigas, 98 SCRA 575; Francisco v. City of
Davao, 12 SCRA 628; Valencia v.
Mabilangan, 105 Phil.
162).lwph1.t Sound practice seeks to directly on the merits of this case.
accommodate the theory which avoids
waste of time, effort and expense, both to
the parties and the government, not to
speak of delay in the disposal of the case
(cf. Fernandez v. Garcia, 92 Phil. 592, 597).
A marked characteristic of our judicial set-
up is that where the dictates of justice so
demand ... the Supreme Court should act,
and act with finality.' (Li Siu Liat v. Republic,
21 SCRA 1039, 1046, citing Samal v. CA, 99
Phil. 230 and U.S. v. Gimenez, 34 Phil. 74).
In this case, the dictates of justice do
demand that this Court act, and act with
finality. 7
xxx
Remand of the case to the lower court for
further reception of evidence is not
necessary where the court is in a position to
resolve the dispute based on the records
before it. On many occasions, the Court, in
the public interest and the expeditious
administration of justice, has resolved
actions on the merits instead of remanding
them to the trial court for further
proceedings, such as where the ends of
justice would not be subserved by the
remand of the case or when public interest
demands an early disposition of the case or
where the trial court had already received
all the evidence of the parties. 8
This course of action becomes all the more justified in the present
case where, to repeat for stress, it is claimed that a foreigner is
holding a public office.
We also note in his Reply, the petitioner says:
In adopting private respondent's comment,
respondent COMELEC implicitly adopted as
"its own" private respondent's repeated
assertion that petitioner is no longer a
Filipino citizen. In so doing, has not
respondent COMELEC effectively
disqualified itself, by reason of
prejudgment, from resolving the petition
for quo warranto filed by private
respondent still pending before it? 9
This is still another reason why the Court has seen fit to rule
Going over the record, we find that there are two administrative
decisions on the question of the petitioner's citizenship. The first
was rendered by the Commission on Elections on May 12, 1982,
and found the petitioner to be a citizen of the Philippines. 10 The
second was rendered by the Commission on Immigration and
Deportation on September 13, 1988, and held that the petitioner
was not a citizen of the Philippines. 11
The first decision was penned by then COMELEC Chigas, Vicente
Santiago, Jr., with Commissioners Pabalate Savellano and Opinion
concurring in full and Commissioner Bacungan concurring in the
dismissal of the petition "without prejudice to the issue of the
respondent's citizenship being raised anew in a proper case."
Commissioner Sagadraca reserved his vote, while Commissioner
Felipe was for deferring decision until representations shall have
been made with the Australian Embassy for official verification of
the petitioner's alleged naturalization as an Australian.
The second decision was unanimously rendered by Chairman
Miriam Defensor-Santiago and Commissioners Alano and
Geraldez of the Commission on Immigration and Deportation. It is
important to observe that in the proceeding before the COMELEC,
there was no direct proof that the herein petitioner had been
formally naturalized as a citizen of Australia. This conjecture,
which was eventually rejected, was merely inferred from the fact
that he had married an Australian citizen, obtained an Australian
passport, and registered as an alien with the CID upon his return
to this country in 1980.
On the other hand, the decision of the CID took into account the
official statement of the Australian Government dated August 12,
1984, through its Consul in the Philippines, that the petitioner was
still an Australian citizen as of that date by reason of his
naturalization in 1976. That statement 12 is reproduced in full as
follows:
I, GRAHAM COLIN WEST, Consul of Australia in the Philippines, by
virtue of a certificate of appointment signed and sealed by the
Australian Minister of State for Foreign Affairs on 19 October
1983, and recognized as such by Letter of Patent signed and
sealed by the Philippines Acting Minister of Foreign Affairs on 23
November 1983, do hereby provide the following statement in
response to the subpoena Testificandum dated 9 April 1984 in
regard to the Petition for disqualification against RAMON LABO,
JR. Y LOZANO (SPC No. 84-73), and do hereby certify that the
statement is true and correct.
STATEMENT
A) RAMON LABO, JR. Y LOZANO, date of
birth 23 December 1934, was married in the
Philippines to an Australian citizen. As the
spouse of an Australian citizen, he was not
required to meet normal requirements for
the grant of citizenship and was granted
Australian citizenship by Sydney on 28 July
1976.
B) Any person over the age of 16 years who
is granted Australian citizenship must take
an oath of allegiance or make an
affirmation of allegiance. The wording of
the oath of affirmation is: "I ..., renouncing
all other allegiance ..." etc. This need not
necessarily have any effect on his former
nationality as this would depend on the
citizenship laws of his former country.
C) The marriage was declared void in the
Australian Federal Court in Sydney on 27
June 1980 on the ground that the marriage
had been bigamous.
D) According to our records LABO is still an
Australian citizen.
E) Should he return to Australia, LABO may
face court action in respect of Section 50 of
Australian Citizenship Act 1948 which
relates to the giving of false or misleading
information of a material nature in respect
of an application for Australian citizenship.
If such a prosecution was successful, he
could be deprived of Australian citizenship
under Section 21 of the Act.
F) There are two further ways in which
LABO could divest himself of Australian
citizenship:
(i) He could make a declaration of
Renunciation of Australian citizenship under
Section 18 of the Australian Citizenship Act,
or
(ii) If he acquired another nationality, (for
example, Filipino) by a formal and voluntary
act other than marriage, then he would
automatically lose as Australian citizenship
under Section 17 of the Act.
IN WITNESS WHEREOF, I HAVE HEREUNTO
SET MAY HAND AND SEAL OF THE
AUSTRALIAN EMBASSY, MANILA, THIS 12th
DAY OF APRIL 1984. DONE AT MANILA IN
THE PHILIPPINES.
(Signed) GRAHAM C. WEST Consul
This was affirmed later by the letter of
February 1, 1988, addressed to the private
respondent by the Department of Foreign
Affairs reading as follows: 13
Sir:
With reference to your letter dated 1
February 1988, I wish to inform you that
inquiry made with the Australian
Government through the Embassy of the
Philippines in Canberra has elicited the
following information:
1) That Mr. Ramon L. Labo, Jr. acquired
Australian citizenship on 28 July 1976.
2) That prior to 17 July 1986, a candidate for
Australian citizenship had to either swear an
oath of allegiance or make an affirmation of
allegiance which carries a renunciation of
"all other allegiance.
Very truly yours, For the Secretary of
Foreign Affairs: (SGD) RODOLFO SEVERINO,
JR. Assistant Secretary
The decision also noted the oath of allegiance taken by every
naturalized Australian reading as follows:
OATH OF ALLEGIANCE
I, A.B., renouncing all other allegiance,
swear by Almighty God that I will be faithful
and bear true allegiance to Her Majesty
Elizabeth the Second, Queen of Australia,
Her heirs and successors according to law,
and that I will faithfully observe the laws of
Australia and fulfill my duties as an
Australian citizen. 14
and the Affirmation of Allegiance, which declares:
AFFIRMATION OF ALLEGIANCE
 I, A.B., renouncing all other allegiance,
solemnly and sincerely promise and declare
that I will be faithful and bear true
allegiance to Her Majesty Elizabeth the
Second, Queen of Australia, Her heirs and
successors according to law, and that I will
faithfully observe the Laws of Australia and
fulfill my duties as an Australian citizen. 15
The petitioner does not question the authenticity of the above
evidence. Neither does he deny that he obtained Australian
Passport No. 754705, which he used in coming back to the
Philippines in 1980, when he declared before the immigration
authorities that he was an alien and registered as such under
Alien Certificate of Registration No. B-323985. 16 He later asked
for the change of his status from immigrant to a returning former
Philippine citizen and was granted Immigrant Certificate of
Residence No. 223809. 17 He also categorically declared that he
was a citizen of Australia in a number of sworn statements
voluntarily made by him and. even sought to avoid the jurisdiction
of the barangay court on the ground that he was a foreigner. 18
The decision of the COMELEC in 1982 quaintly dismisses all these
acts as "mistakes" that did not divest the petitioner of his
citizenship, although, as earlier noted, not all the members joined
in this finding. We reject this ruling as totally baseless. The
petitioner is not an unlettered person who was not aware of the
consequences of his acts, let alone the fact that he was assisted
by counsel when he performed these acts.
The private respondent questions the motives of the COMELEC at
that time and stresses Labo's political affiliation with the party in
power then, but we need not go into that now.
There is also the claim that the decision can no longer be reversed
because of the doctrine of res judicata, but this too must be
dismissed. This doctrine does not apply to questions of
citizenship, as the Court has ruled in several cases. 19 Moreover,
it does not appear that it was properly and seasonably pleaded, in
a motion to dismiss or in the answer, having been invoked only
when the petitioner filed his reply 20 to the private respondent's
comment. Besides, one of the requisites of res judicata, to wit,
identity of parties, is not present in this case.
The petitioner's contention that his marriage to an Australian
national in 1976 did not automatically divest him of Philippine
citizenship is irrelevant. There is no claim or finding that he
automatically ceased to be a Filipino because of that marriage. He
became a citizen of Australia because he was naturalized as such
through a formal and positive process, simplified in his case
because he was married to an Australian citizen. As a condition
for such naturalization, he formally took the Oath of Allegiance
and/or made the Affirmation of Allegiance, both quoted above.
Renouncing all other allegiance, he swore "to be faithful and bear
true allegiance to Her Majesty Elizabeth the Second, Queen of
Australia ..." and to fulfill his duties "as an Australian citizen."
The petitioner now claims that his naturalization in Australia
made him at worst only a dual national and did not divest him of
his Philippine citizenship. Such a specious argument cannot stand
against the clear provisions of CA No. 63, which enumerates the
modes by which Philippine citizenship may be lost. Among these
are: (1) naturalization in a foreign country; (2) express
renunciation of citizenship; and (3) subscribing to an oath of
allegiance to support the Constitution or laws of a foreign
country, all of which are applicable to the petitioner. It is also
worth mentioning in this connection that under Article IV, Section
5, of the present Constitution, "Dual allegiance of citizens is
inimical to the national interest and shall be dealt with by law."
Even if it be assumed that, as the petitioner asserts, his
naturalization in Australia was annulled after it was found that his
marriage to the Australian citizen was bigamous, that
circumstance alone did not automatically restore his Philippine
citizenship. His divestiture of Australian citizenship does not
concern us here. That is a matter between him and his adopted
country. What we must consider is the fact that he voluntarily and
freely rejected Philippine citizenship and willingly and knowingly
embraced the citizenship of a foreign country. The possibility that
he may have been subsequently rejected by Australia, as he
claims, does not mean that he has been automatically reinstated
as a citizen of the Philippines.
Under CA No. 63 as amended by PD No. 725, Philippine citizenship
may be reacquired by direct act of Congress, by naturalization, or
by repatriation. It does not appear in the record, nor does the
petitioner claim, that he has reacquired Philippine citizenship by
any of these methods. He does not point to any judicial decree of
naturalization as to any statute directly conferring Philippine
citizenship upon him. Neither has he shown that he has complied
with PD No. 725, providing that:
... (2) natural-born Filipinos who have lost
their Philippine citizenship may reacquire
Philippine citizenship through repatriation
by applying with the Special Committee on
Naturalization created by Letter of
Instruction No. 270, and, if their
applications are approved, taking the
necessary oath of allegiance to the Republic
of the Philippines, after which they shall be
deemed to have reacquired Philippine
citizenship. The Commission on Immigration
and Deportation shall thereupon cancel
their certificate of registration. (Emphasis
supplied.)
That is why the Commission on Immigration and Deportation
rejected his application for the cancellation of his alien certificate
of registration. And that is also the reason we must deny his
present claim for recognition as a citizen of the Philippines.
The petitioner is not now, nor was he on the day of the local
elections on January 18, 1988, a citizen of the Philippines. In fact,
he was not even a qualified voter under the Constitution itself
because of his alienage. 21 He was therefore ineligible as a
candidate for mayor of Baguio City, under Section 42 of the Local
Government Code providing in material part as follows:
Sec. 42. Qualifications. An elective local
official must be a citizen of the Philippines,
at least twenty-three years of age on
election day, a qualified voter registered as
such in the barangay, municipality, city or
province where he proposes to be elected,
a resident therein for at least one year at
the time of the filing of his certificate of
candidacy, and able to read and write
English, Filipino, or any other local language
or dialect.
The petitioner argues that his alleged lack of citizenship is a "futile
technicality" that should not frustrate the will of the electorate of
Baguio City, who elected him by a "resonant and thunderous
majority." To be accurate, it was not as loud as all that, for his
lead over the second-placer was only about 2,100 votes. In any
event, the people of that locality could not have, even
unanimously, changed the requirements of the Local Government
Code and the Constitution. The electorate had no power to permit
a foreigner owing his total allegiance to the Queen of Australia, or
at least a stateless individual owing no allegiance to the Republic
of the Philippines, to preside over them as mayor of their city.
Only citizens of the Philippines have that privilege over their
countrymen.
The probability that many of those who voted for the petitioner
may have done so in the belief that he was qualified only
strengthens the conclusion that the results of the election cannot
nullify the qualifications for the office now held by him. These
qualifications are continuing requirements; once any of them is
lost during incumbency, title to the office itself is deemed
forfeited. In the case at bar, the citizenship and voting
requirements were not subsequently lost but were not possessed
at all in the first place on the day of the election. The petitioner
was disqualified from running as mayor and, although elected, is
not now qualified to serve as such.
Finally, there is the question of whether or not the private
respondent, who filed the quo warranto petition, can replace the
petitioner as mayor. He cannot. The simple reason is that as he
obtained only the second highest number of votes in the election, maintain him there. However, in the
he was obviously not the choice of the people of Baguio city. absence of a statute which clearly asserts a
contrary political and legislative policy on
the matter, if the votes were cast in the
The latest ruling of the Court on this issue is Santos v. Commission
sincere belief that the candidate was alive,
on Elections 22 decided in 1985. In that case, the candidate who
qualified, or eligible, they should not be
placed second was proclaimed elected after the votes for his
treated as stray, void or meaningless.
winning rival, who was disqualified as a turncoat and considered a
non-candidate, were all disregarded as stray. In effect, the second
placer won by default. That decision was supported by eight It remains to stress that the citizen of the Philippines must take
members of the Court then 23 with three dissenting 24 and pride in his status as such and cherish this priceless gift that, out
another two reserving their vote.25 One was on official leave. 26 of more than a hundred other nationalities, God has seen fit to
grant him. Having been so endowed, he must not lightly yield this
precious advantage, rejecting it for another land that may offer
Re-examining that decision, the Court finds, and so holds, that it
him material and other attractions that he may not find in his own
should be reversed in favor of the earlier case ofGeronimo v.
country. To be sure, he has the right to renounce the Philippines if
Ramos, 27 Which represents the more logical and democratic
he sees fit and transfer his allegiance to a state with more
rule. That case, which reiterated the doctrine first announced in
allurements for him. 33 But having done so, he cannot expect to
1912 in Topacio vs. Paredes 28 was supported by ten members of
be welcomed back with open arms once his taste for his adopted
the Court 29 without any dissent, although one reserved his
country turns sour or he is himself disowned by it as an
vote, 30 another took no part 31 and two others were on
undesirable alien.
leave. 32 There the Court held:

Philippine citizenship is not a cheap commodity that can be easily

... it would be extremely repugnant to the
recovered after its renunciation. It may be restored only after the
basic concept of the constitutionally
returning renegade makes a formal act of re-dedication to the
guaranteed right to suffrage if a candidate
country he has abjured and he solemnly affirms once again his
who has not acquired the majority or
total and exclusive loyalty to the Republic of the Philippines. This
plurality of votes is proclaimed a winner
may not be accomplished by election to public office.
and imposed as the representative of a
constituency, the majority of which have
positively declared through their ballots WHEREFORE, petitioner Ramon J. Labo, Jr. is hereby declared NOT
that they do not choose him. a citizen of the Philippines and therefore DISQUALIFIED from
continuing to serve as Mayor of Baguio City. He is ordered to
VACATE his office and surrender the same to the Vice-Mayor of
Sound policy dictates that public elective
Baguio City, once this decision becomes final and executory. The
offices are filled by those who have
temporary restraining order dated January 31, 1989, is LIFTED.
received the highest number of votes cast
in the election for that office, and it is a
fundamental Idea in all republican forms of
government that no one can be declared
elected and no measure can be declared
carried unless he or it receives a majority or
plurality of the legal votes cast in the
election. (20 Corpus Juris 2nd, S 243, p.
676.)

The fact that the candidate who obtained

the highest number of votes is later
declared to be disqualified or not eligible
for the office to which he was elected does
not necessarily entitle the candidate who
obtained the second highest number of
votes to be declared the winner of the
elective office. The votes cast for a dead,
disqualified, or non-eligible person may not
be valid to vote the winner into office or
G.R. No. 120295 June 28, 1996
JUAN G. FRIVALDO, petitioner,
vs.
COMMISSION ON ELECTIONS, and RAUL R. LEE, respondents.
G.R. No. 123755 June 28, 1996
RAUL R. LEE, petitioner,
vs.
COMMISSION ON ELECTIONS and JUAN G.
FRIVALDO, respondents.
PANGANIBAN, J.:p
The ultimate question posed before this Court in these twin cases
is: Who should be declared the rightful governor of Sorsogon -
(i) Juan G. Frivaldo, who unquestionably obtained the highest
number of votes in three successive elections but who was twice
declared by this Court to be disqualified to hold such office due to
his alien citizenship, and who now claims to have re-assumed his
lost Philippine citizenship thru repatriation;
(ii) Raul R. Lee, who was the second placer in the canvass, but
who claims that the votes cast in favor of Frivaldo should be
considered void; that the electorate should be deemed to have
intentionally thrown away their ballots; and that legally, he
secured the most number of valid votes; or
(iii) The incumbent Vice-Governor, Oscar G. Deri, who obviously
was not voted directly to the position of governor, but who
according to prevailing jurisprudence should take over the said
post inasmuch as, by the ineligibility of Frivaldo, a "permanent
vacancy in the contested office has occurred"?
In ruling for Frivaldo, the Court lays down new doctrines on
repatriation, clarifies/reiterates/amplifies existing jurisprudence
on citizenship and elections, and upholds the superiority of
substantial justice over pure legalisms.
G.R. No. 123755
This is a special civil action under Rules 65 and 58 of the Rules of
Court for certiorari and preliminary injunction to review and annul
a Resolution of the respondent Commission on Elections
(Comelec), First Division, 1 promulgated on December 19,
1995 2 and another Resolution of the Comelec en
banc promulgated February 23, 1996 3 denying petitioner's
motion for reconsideration.
The Facts
On March 20, 1995, private respondent Juan G. Frivaldo filed his
Certificate of Candidacy for the office of Governor of Sorsogon in
the May 8, 1995 elections. On March 23, 1995, petitioner Raul R.
Lee, another candidate, filed a petition 4 with the Comelec
docketed as SPA No. 95-028 praying that Frivaldo "be disqualified
from seeking or holding any public office or position by reason of
not yet being a citizen of the Philippines", and that his Certificate
of Candidacy be canceled. On May 1, 1995, the Second Division of
the Comelec promulgated a Resolution 5granting the petition
with the following disposition 6:
WHEREFORE, this Division resolves to
GRANT the petition and declares that
respondent is DISQUALIFIED to run for the
Office of Governor of Sorsogon on the
ground that he is NOT a citizen of the
Philippines. Accordingly, respondent's
certificate of candidacy is canceled.
The Motion for Reconsideration filed by Frivaldo remained
unacted upon until after the May 8, 1995 elections. So, his
candidacy continued and he was voted for during the elections
held on said date. On May 11, 1995, the Comelec en
banc 7 affirmed the aforementioned Resolution of the Second
Division.
The Provincial Board of Canvassers completed the canvass of the
election returns and a Certificate of Votes 8dated May 27, 1995
was issued showing the following votes obtained by the
candidates for the position of Governor of Sorsogon:
Antonio H. Escudero, Jr. 51,060
Juan G. Frivaldo 73,440
Raul R. Lee 53,304
Isagani P. Ocampo 1,925
On June 9, 1995, Lee filed in said SPA No. 95-028, a
(supplemental) petition 9 praying for his proclamation as the duly-
elected Governor of Sorsogon.
In an order 10 dated June 21, 1995, but promulgated according to
the petition "only on June 29, 1995," the Comelec en
banc directed "the Provincial Board of Canvassers of Sorsogon to
reconvene for the purpose of proclaiming candidate Raul Lee as
the winning gubernatorial candidate in the province of Sorsogon
on June 29, 1995 . . ." Accordingly, at 8:30 in the evening of June
30, 1995, Lee was proclaimed governor of Sorsogon.
On July 6, 1995, Frivaldo filed with the Comelec a new
petition, 11 docketed as SPC No. 95-317, praying for the
annulment of the June 30, 1995 proclamation of Lee and for his
own proclamation. He alleged that on June 30, 1995, at 2:00 in
the afternoon, he took his oath of allegiance as a citizen of the
Philippines after "his petition for repatriation under P.D. 725
which he filed with the Special Committee on Naturalization in
September 1994 had been granted". As such, when "the said
order (dated June 21, 1995) (of the Comelec) . . . was released and
received by Frivaldo on June 30, 1995 at 5:30 o'clock in the
evening, there was no more legal impediment to the
proclamation (of Frivaldo) as governor . . ." In the alternative, he
averred that pursuant to the two cases of Labo
vs. Comelec, 12 the Vice-Governor - not Lee - should occupy said
position of governor.
On December 19, 1995, the Comelec First Division promulgated
the herein assailed Resolution 13 holding that Lee, "not having
garnered the highest number of votes," was not legally entitled to
be proclaimed as duly-elected governor; and that Frivaldo,
"having garnered the highest number of votes,
and . . . having reacquired his Filipino citizenship by repatriation
on June 30, 1995 under the provisions of Presidential Decree No.
725 . . . (is) qualified to hold the office of governor of Sorsogon";
thus:
PREMISES CONSIDERED, the Commission
(First Division), therefore RESOLVES to
GRANT the Petition.
Consistent with the decisions of the
Supreme Court, the proclamation of Raul R.
Lee as Governor of Sorsogon is hereby
ordered annulled, being contrary to law, he
not having garnered the highest number of
votes to warrant his proclamation.
Upon the finality of the annulment of the
proclamation of Raul R. Lee, the Provincial
Board of Canvassers is directed to
immediately reconvene and, on the basis of
the completed canvass, proclaim petitioner
Juan G. Frivaldo as the duly elected
Governor of Sorsogon having garnered the
highest number of votes, and he having
reacquired his Filipino citizenship by
repatriation on June 30, 1995 under the
provisions of Presidential Decree No. 725
and, thus, qualified to hold the office of
Governor of Sorsogon.
 Conformably with Section 260 of the
Omnibus Election Code (B.P. Blg. 881), the
Clerk of the Commission is directed to
notify His Excellency the President of the
Philippines, and the Secretary of the
Sangguniang Panlalawigan of the Province
of Sorsogon of this resolution immediately
upon the due implementation thereof.
On December 26, 1995, Lee filed a motion for reconsideration
which was denied by the Comelec en banc in its
Resolution 14 promulgated on February 23, 1996. On February 26,
1996, the present petition was filed. Acting on the prayer for a
temporary restraining order, this Court issued on February 27,
1996 a Resolution which inter alia directed the parties "to
maintain the status quo prevailing prior to the filing of this
petition."
The Issues in G.R. No. 123755
Petitioner Lee's "position on the matter at hand may briefly be
capsulized in the following propositions" 15:
First -- The initiatory petition below was so
far insufficient in form and substance to
warrant the exercise by the COMELEC of its
jurisdiction with the result that, in effect,
the COMELEC acted without jurisdiction in
taking cognizance of and deciding said
petition;
Second -- The judicially declared
disqualification of respondent was a
continuing condition and rendered him
ineligible to run for, to be elected to and to
hold the Office of Governor;
Third -- The alleged repatriation of
respondent was neither valid nor is the
effect thereof retroactive as to cure his
ineligibility and qualify him to hold the
Office of Governor; and
Fourth -- Correctly read and applied, the
Labo Doctrine fully supports the validity of
petitioner's proclamation as duly elected
Governor of Sorsogon.
G.R. No. 120295
This is a petition to annul three Resolutions of the respondent
Comelec, the first two of which are also at issue in G.R. No.
123755, as follows:
1. Resolution 16 of the Second Division,
promulgated on May 1, 1995, disqualifying
Frivaldo from running for governor of
Sorsogon in the May 8, 1995 elections "on
the ground that he is not a citizen of the
Philippines";
2. Resolution 17 of the Comelec en banc,
promulgated on May 11, 1995; and
3. Resolution 18 of the Comelec en banc,
promulgated also on May 11, 1995
suspending the proclamation of, among
others, Frivaldo.
The Facts and the Issue
The facts of this case are essentially the same as those in G.R. No.
123755. However, Frivaldo assails the above-mentioned
resolutions on a different ground: that under Section 78 of the
Omnibus Election Code, which is reproduced hereinunder:
Sec. 78. Petition to deny due course or to
cancel a certificate of candidacy. -- A
verified petition seeking to deny due course
or to cancel a certificate of candidacy may
be filed by any person exclusively on the
ground that any material representation
contained therein as required under Section
74 hereof is false. The petition may be filed
at any time not later than twenty-five days
from the time of the filing of the certificate
of candidacy and shall be decided, after
notice and hearing, not later than fifteen
days before the election. (Emphasis
supplied.)
the Comelec had no jurisdiction to issue said
Resolutions because they were not rendered "within
the period allowed by law" i.e., "not later than fifteen
days before the election."
Otherwise stated, Frivaldo contends that the failure of the
Comelec to act on the petition for disqualification within the
period of fifteen days prior to the election as provided by law is a
jurisdictional defect which renders the said Resolutions null and
void.
By Resolution on March 12, 1996, the Court consolidated G.R.
Nos. 120295 and 123755 since they are intimately related in their
factual environment and are identical in the ultimate question
raised, viz., who should occupy the position of governor of the
province of Sorsogon.
On March 19, 1995, the Court heard oral argument from the
parties and required them thereafter to file simultaneously their
respective memoranda.
The Consolidated Issues
From the foregoing submissions, the consolidated issues may be
restated as follows:
1. Was the repatriation of Frivaldo valid and legal? If so, did it
seasonably cure his lack of citizenship as to qualify him to be
proclaimed and to hold the Office of Governor? If not, may it be
given retroactive effect? If so, from when?
2. Is Frivaldo's "judicially declared" disqualification for lack of
Filipino citizenship a continuing bar to his eligibility to run for, be
elected to or hold the governorship of Sorsogon?
3. Did the respondent Comelec have jurisdiction over the
initiatory petition in SPC No. 95-317 considering that said petition
is not "a pre-proclamation case, an election protest or a quo
warranto case"?
4. Was the proclamation of Lee, a runner-up in the election, valid
and legal in light of existing jurisprudence?
5. Did the respondent Commission on Elections exceed its
jurisdiction in promulgating the assailed Resolutions, all of which
prevented Frivaldo from assuming the governorship of Sorsogon,
considering that they were not rendered within the period
referred to in Section 78 of the Omnibus Election Code, viz., "not
later than fifteen days before the elections"?
The First Issue: Frivaldo's Repatriation
The validity and effectivity of Frivaldo's repatriation is the lis
mota, the threshold legal issue in this case. All the other matters
raised are secondary to this.
The Local Government Code of 1991 19 expressly requires
Philippine citizenship as a qualification for elective local officials,
including that of provincial governor, thus:
 Sec. 39. Qualifications. -- (a) An elective
local official must be a citizen of the
Philippines; a registered voter in the
barangay, municipality, city, or province or,
in the case of a member of the sangguniang
panlalawigan, sangguniang panlungsod, or
sangguniang bayan, the district where he
intends to be elected; a resident therein for
at least one (1) year immediately preceding
the day of the election; and able to read
and write Filipino or any other local
language or dialect.
(b) Candidates for the position of governor,
vice governor or member of the
sangguniang panlalawigan, or mayor, vice
mayor or member of the sangguniang
panlungsod of highly urbanized cities must
be at least twenty-three (23) years of age
on election day.
xxx xxx xxx
Inasmuch as Frivaldo had been declared by this Court 20 as a non-
citizen, it is therefore incumbent upon him to show that he has
reacquired citizenship; in fine, that he possesses the qualifications
prescribed under the said statute (R.A. 7160).
Under Philippine law, 21 citizenship may be reacquired by direct
act of Congress, by naturalization or by repatriation. Frivaldo told
this Court in G.R. No. 104654 22 and during the oral argument in
this case that he tried to resume his citizenship by direct act of
Congress, but that the bill allowing him to do so "failed to
materialize, notwithstanding the endorsement of several
members of the House of Representatives" due, according to him,
to the "maneuvers of his political rivals." In the same case, his
attempt at naturalization was rejected by this Court because of
jurisdictional, substantial and procedural defects.
Despite his lack of Philippine citizenship, Frivaldo was
overwhelmingly elected governor by the electorate of Sorsogon,
with a margin of 27,000 votes in the 1988 elections, 57,000 in
1992, and 20,000 in 1995 over the same opponent Raul Lee.
Twice, he was judicially declared a non-Filipino and thus twice
disqualified from holding and discharging his popular mandate.
Now, he comes to us a third time, with a fresh vote from the
people of Sorsogon and a favorable decision from the Commission
on Elections to boot. Moreover, he now boasts of having
successfully passed through the third and last mode of reacquiring
citizenship: by repatriation under P.D. No. 725, with no less than
the Solicitor General himself, who was the prime opposing
counsel in the previous cases he lost, this time, as counsel for co-
respondent Comelec, arguing the validity of his cause (in addition
to his able private counsel Sixto S. Brillantes, Jr.). That he took his
oath of allegiance under the provisions of said Decree at 2:00 p.m.
on June 30, 1995 is not disputed. Hence, he insists that he -- not
Lee -- should have been proclaimed as the duly-elected governor
of Sorsogon when the Provincial Board of Canvassers met at 8:30
p.m. on the said date since, clearly and unquestionably, he
garnered the highest number of votes in the elections and since at
that time, he already reacquired his citizenship.
En contrario, Lee argues that Frivaldo's repatriation is tainted with
serious defects, which we shall now discuss in seriatim.
First, Lee tells us that P.D. No. 725 had "been effectively
repealed", asserting that "then President Corazon Aquino
exercising legislative powers under the Transitory Provisions of
the 1987 Constitution, forbade the grant of citizenship by
Presidential Decree or Executive Issuances as the same poses a
serious and contentious issue of policy which the present
government, in the exercise of prudence and sound discretion,
should best leave to the judgment of the first Congress under the
1987 Constitution", adding that in her memorandum dated March
27, 1987 to the members of the Special Committee on
Naturalization constituted for purposes of Presidential Decree No.
725, President Aquino directed them "to cease and desist from
undertaking any and all proceedings within your functional area of
responsibility as defined under Letter of Instructions (LOI) No. 270
dated April 11, 1975, as amended." 23
This memorandum dated March 27, 1987 24 cannot by any
stretch of legal hermeneutics be construed as a law sanctioning or
authorizing a repeal of P.D. No. 725. Laws are repealed only by
subsequent ones 25 and a repeal may be express or implied. It is
obvious that no express repeal was made because then President
Aquino in her memorandum -- based on the copy furnished us by
Lee -- did not categorically and/or impliedly state that P.D. 725
was being repealed or was being rendered without any legal
effect. In fact, she did not even mention it specifically by its
number or text. On the other hand, it is a basic rule of statutory
construction that repeals by implication are not favored. An
implied repeal will not be allowed "unless it is convincingly and
unambiguously demonstrated that the two laws are clearly
repugnant and patently inconsistent that they cannot co-exist". 26
The memorandum of then President Aquino cannot even be
regarded as a legislative enactment, for not every pronouncement
of the Chief Executive even under the Transitory Provisions of the
1987 Constitution can nor should be regarded as an exercise of
her law-making powers. At best, it could be treated as an
executive policy addressed to the Special Committee to halt the
acceptance and processing of applications for repatriation
pending whatever "judgment the first Congress under the 1987
Constitution" might make. In other words, the former President
did not repeal P.D. 725 but left it to the first Congress -- once
created -- to deal with the matter. If she had intended to repeal
such law, she should have unequivocally said so instead of
referring the matter to Congress. The fact is she carefully couched
her presidential issuance in terms that clearly indicated the
intention of "the present government, in the exercise of prudence
and sound discretion" to leave the matter of repeal to the new
Congress. Any other interpretation of the said Presidential
Memorandum, such as is now being proffered to the Court by
Lee, would visit unmitigated violence not only upon statutory
construction but on common sense as well.
Second, Lee also argues that "serious congenital irregularities
flawed the repatriation proceedings," asserting that Frivaldo's
application therefor was "filed on June 29, 1995 . . . (and) was
approved in just one day or on June 30, 1995 . . .", which
"prevented a judicious review and evaluation of the merits
thereof." Frivaldo counters that he filed his application for
repatriation with the Office of the President in Malacaang Palace
on August 17, 1994. This is confirmed by the Solicitor General.
However, the Special Committee was reactivated only on June 8,
1995, when presumably the said Committee started processing
his application. On June 29, 1995, he filled up and re-submitted
the FORM that the Committee required. Under these
circumstances, it could not be said that there was "indecent
haste" in the processing of his application.
Anent Lee's charge that the "sudden reconstitution of the Special
Committee on Naturalization was intended solely for the personal
interest of respondent," 27 the Solicitor General explained during
the oral argument on March 19, 1996 that such allegation is
simply baseless as there were many others who applied and were
considered for repatriation, a list of whom was submitted by him
to this Court, through a Manifestation 28 filed on April 3, 1996.
On the basis of the parties' submissions, we are convinced that
the presumption of regularity in the performance of official duty
and the presumption of legality in the repatriation of Frivaldo
have not been successfully rebutted by Lee. The mere fact that
the proceedings were speeded up is by itself not a ground to
conclude that such proceedings were necessarily tainted. After all,
the requirements of repatriation under P.D. No. 725 are not
difficult to comply with, nor are they tedious and cumbersome. In
fact, P.D.
725 29 itself requires very little of an applicant, and even the rules
and regulations to implement the said decree were left to the
Special Committee to promulgate. This is not unusual since, unlike
in naturalization where an alien covets a first-timeentry into
Philippine political life, in repatriation the applicant is a former
natural-born Filipino who is merely seeking to reacquire his
previous citizenship. In the case of Frivaldo, he was undoubtedly a
natural-born citizen who openly and faithfully served his country
and his province prior to his naturalization in the United States --
a naturalization he insists was made necessary only to escape the
iron clutches of a dictatorship he abhorred and could not in
conscience embrace -- and who, after the fall of the dictator and
the re-establishment of democratic space, wasted no time in
returning to his country of birth to offer once more his talent and
services to his people.
So too, the fact that ten other persons, as certified to by the
Solicitor General, were granted repatriation argues convincingly
and conclusively against the existence of favoritism vehemently
posited by Raul Lee. At any rate, any contest on the legality of
Frivaldo's repatriation should have been pursued before the
Committee itself, and, failing there, in the Office of the President,
pursuant to the doctrine of exhaustion of administrative
remedies.
Third, Lee further contends that assuming the assailed
repatriation to be valid, nevertheless it could only be effective as
at 2:00 p.m. of June 30, 1995 whereas the citizenship qualification
prescribed by the Local Government Code "must exist on the date
of his election, if not when the certificate of candidacy is filed,"
citing our decision in G.R. 104654 30 which held that "both the
Local Government Code and the Constitution require that only
Philippine citizens can run and be elected to public office."
Obviously, however, this was a mere obiter as the only issue in
said case was whether Frivaldo's naturalization was valid or not --
and NOT the effective date thereof. Since the Court held his
naturalization to be invalid, then the issue of when an aspirant for
public office should be a citizen was NOT resolved at all by the
Court. Which question we shall now directly rule on.
Under Sec. 39 of the Local Government Code, "(a)n elective local
official must be:
* a citizen of the Philippines;
* a registered voter in the barangay,
municipality, city, or province . . . where he
intends to be elected;
* a resident therein for at least one (1) year
immediately preceding the day of the
election;
* able to read and write Filipino or any
other local language or dialect.
* In addition, "candidates for the position of
governor . . . must be at least twenty-three
(23) years of age on election day.
From the above, it will be noted that the law does not specify any
particular date or time when the candidate must possess
citizenship, unlike that for residence (which must consist of at
least one year's residency immediately preceding the day of
election) and age (at least twenty three years of age on election
day).
Philippine citizenship is an indispensable requirement for holding
an elective public office, 31 and the purpose of the citizenship
qualification is none other than to ensure that no alien, i.e., no
person owing allegiance to another nation, shall govern our
people and our country or a unit of territory thereof. Now, an
official begins to govern or to discharge his functions only upon
his proclamation and on the day the law mandates his term of
office to begin. Since Frivaldo re-assumed his citizenship on June
30, 1995 -- the very day 32 the term of office of governor (and
other elective officials) began -- he was therefore already
qualified to be proclaimed, to hold such office and to discharge
the functions and responsibilities thereof as of said date. In short,
at that time, he was already qualified to govern his native
Sorsogon. This is the liberal interpretation that should give spirit,
life and meaning to our law on qualifications consistent with the
purpose for which such law was enacted. So too, even from
a literal (as distinguished from liberal) construction, it should be
noted that Section 39 of the Local Government Code speaks of
"Qualifications" of "ELECTIVE OFFICIALS", not of candidates. Why
then should such qualification be required at the time of election
or at the time of the filing of the certificates of candidacies, as Lee
insists? Literally, such qualifications -- unless otherwise expressly
conditioned, as in the case of age and residence -- should thus be
possessed when the "elective [or elected] official" begins to
govern, i.e., at the time he is proclaimed and at the start of his
term -- in this case, on June 30, 1995. Paraphrasing this Court's
ruling in Vasquez vs. Giap and Li Seng Giap & Sons, 33 if the
purpose of the citizenship requirement is to ensure that our
people and country do not end up being governed by aliens,i.e.,
persons owing allegiance to another nation, that aim or purpose
would not be thwarted but instead achieved by construing the
citizenship qualification as applying to the time of proclamation of
the elected official and at the start of his term.
But perhaps the more difficult objection was the one raised
during the oral argument 34 to the effect that the citizenship
qualification should be possessed at the time the candidate (or for
that matter the elected official) registered as a voter. After all,
Section 39, apart from requiring the official to be a citizen, also
specifies as another item of qualification, that he be a "registered
voter". And, under the law 35 a "voter" must be a citizen of the
Philippines. So therefore, Frivaldo could not have been a voter --
much less a validly registered one -- if he was not a citizen at the
time of such registration.
The answer to this problem again lies in discerning the purpose of
the requirement. If the law intended thecitizenship qualification
to be possessed prior to election consistent with the requirement
of being a registered voter, then it would not have made
citizenship a SEPARATE qualification. The law abhors a
redundancy. It therefore stands to reason that the law intended
CITIZENSHIP to be a qualification distinct from being a VOTER,
even if being a voter presumes being a citizen first. It also stands
to reason that the voter requirement was included as another
qualification (aside from "citizenship"), not to reiterate the need
for nationality but to require that the official be registered as a
voter IN THE AREA OR TERRITORY he seeks to govern, i.e., the law
states: "a registered voter in the barangay, municipality, city, or
province . . . where he intends to be elected." It should be
emphasized that the Local Government Code requires an elective
official to be a registered voter. It does not require him to
vote actually. Hence, registration -- not the actual voting -- is the
core of this "qualification". In other words, the law's purpose in
this second requirement is to ensure that the prospective official
is actually registered in the area he seeks to govern -- and not
anywhere else.
Before this Court, Frivaldo has repeatedly emphasized -- and Lee
has not disputed -- that he "was and is a registered voter of
Sorsogon, and his registration as a voter has been sustained as
valid by judicial declaration . . . In fact, he cast his vote in his
precinct on May 8, 1995." 36
So too, during the oral argument, his counsel steadfastly
maintained that "Mr. Frivaldo has always been a registered voter
of Sorsogon. He has voted in 1987, 1988, 1992, then he voted
again in 1995. In fact, his eligibility as a voter was questioned, but
the court dismissed (sic) his eligibility as a voter and he was
allowed to vote as in fact, he voted in all the previous elections
including on May 8, 1995." 37
It is thus clear that Frivaldo is a registered voter in the
province where he intended to be elected.
There is yet another reason why the prime issue
of citizenship should be reckoned from the date of proclamation,
not necessarily the date of election or date of filing of the
certificate of candidacy. Section 253 of the Omnibus Election
Code 38 gives any voter, presumably including the defeated
candidate, the opportunity to question the ELIGIBILITY (or the
disloyalty) of a candidate. This is the only provision of the Code
that authorizes a remedy on how to contest before the Comelec
an incumbent's ineligibility arising from failure to meet the
qualifications enumerated under Sec. 39 of the Local Government
Code. Such remedy of Quo Warranto can be availed of "within ten
days after proclamation" of the winning candidate. Hence, it
is only at such time that the issue of ineligibility may be taken
cognizance of by the Commission. And since, at the very moment
of Lee's proclamation (8:30 p.m., June 30, 1995), Juan G. Frivaldo
was already and indubitably a citizen, having taken his oath of
allegiance earlier in the afternoon of the same day, then he
should have been the candidate proclaimed as he unquestionably
garnered the highest number of votes in the immediately
preceding elections and such oath had already cured his previous
"judicially-declared" alienage. Hence, at such time, he was no
longer ineligible.
But to remove all doubts on this important issue, we also hold
that the repatriation of Frivaldo RETROACTED to the date of the
filing of his application on August 17, 1994.
It is true that under the Civil Code of the Philippines, 39 "(l)aws
shall have no retroactive effect, unless the contrary is provided."
But there are settled exceptions 40 to this general rule, such as
when the statute is CURATIVE or REMEDIAL in nature or when it
CREATES NEW RIGHTS.
According to Tolentino, 41 curative statutes are those which
undertake to cure errors and irregularities, thereby validating
judicial or administrative proceedings, acts of public officers, or
private deeds and contracts which otherwise would not produce
their intended consequences by reason of some statutory disability
or failure to comply with some technical requirement. They
operate on conditions already existing, and are necessarily
retroactive in operation. Agpalo, 42 on the other hand, says that
curative statutes are
"healing acts . . . curing defects and adding to the means of
enforcing existing obligations . . . (and) are intended to supply
defects, abridge superfluities in existing laws, and curb certain
evils. . . . By their very nature, curative statutes are retroactive . . .
(and) reach back to past events to correct errors or irregularities
and to render valid and effective attempted acts which would be
otherwise ineffective for the purpose the parties intended."
On the other hand, remedial or procedural laws, i.e., those
statutes relating to remedies or modes of procedure, which do
not create new or take away vested rights, but only operate in
furtherance of the remedy or confirmation of such rights,
ordinarily do not come within the legal meaning of a retrospective
law, nor within the general rule against the retrospective
operation of statutes. 43
A reading of P.D. 725 immediately shows that it creates a new
right, and also provides for a new remedy, thereby filling certain
voids in our laws. Thus, in its preamble, P.D. 725 expressly
recognizes the plight of "many Filipino women (who) had lost
their Philippine citizenship by marriage to aliens" and who could
not, under the existing law (C.A. No. 63, as amended) avail of
repatriation until "after the death of their husbands or the
termination of their marital status" and who could neither be
benefitted by the 1973 Constitution's new provision allowing "a
Filipino woman who marries an alien to retain her Philippine
citizenship . . ." because "such provision of the new Constitution
does not apply to Filipino women who had married aliens before
said constitution took effect." Thus, P.D. 725 granted a new
right to these women -- the right to re-acquire Filipino citizenship
even during their marital coverture, which right did not exist prior
to P.D. 725. On the other hand, said statute also provided a new
remedyand a new right in favor of other "natural born Filipinos
who (had) lost their Philippine citizenship but now desire to re-
acquire Philippine citizenship", because prior to the promulgation
of P.D. 725 such former Filipinos would have had to undergo the
tedious and cumbersome process of naturalization, but with the
advent of P.D. 725 they could now re-acquire their Philippine
citizenship under the simplified procedure of repatriation.
The Solicitor General 44 argues:
By their very nature, curative statutes are
retroactive, (DBP vs. CA, 96 SCRA 342),
since they are intended to supply defects,
abridge superfluities in existing laws (Del
Castillo vs. Securities and Exchange
Commission, 96 Phil. 119) and curb certain
evils (Santos vs. Duata, 14 SCRA 1041).
In this case, P.D. No. 725 was enacted to
cure the defect in the existing naturalization
law, specifically C.A. No. 63 wherein
married Filipino women are allowed to
repatriate only upon the death of their
husbands, and natural-born Filipinos who
lost their citizenship by naturalization and
other causes faced the difficulty of
undergoing the rigid procedures of C.A. 63
for reacquisition of Filipino citizenship by
naturalization.
Presidential Decree No. 725 provided a
remedy for the aforementioned legal
aberrations and thus its provisions are
considered essentially remedial and
curative.
In light of the foregoing, and prescinding from the wording of the
preamble, it is unarguable that the legislative intent was precisely
to give the statute retroactive operation. "(A) retrospective
operation is given to a statute or amendment where the intent
that it should so operate clearly appears from a consideration of
the act as a whole, or from the terms thereof." 45 It is obvious to
the Court that the statute was meant to "reach back" to those
persons, events and transactions not otherwise covered by
prevailing law and jurisprudence. And inasmuch as it has been
held that citizenship is a political and civil right equally as
important as the freedom of speech, liberty of abode, the right
against unreasonable searches and seizures and other guarantees
enshrined in the Bill of Rights, therefore the legislative intent to
give retrospective operation to P.D. 725 must be given the fullest
effect possible. "(I)t has been said that a remedial statute must be
so construed as to make it effect the evident purpose for which it
was enacted, so that if the reason of the statute extends to past
transactions, as well as to those in the future, then it will be so
applied although the statute does not in terms so direct, unless to
do so would impair some vested right or violate some
constitutional guaranty." 46 This is all the more true of P.D. 725,
which did not specify any restrictions on or delimit or qualify the
right of repatriation granted therein.
At this point, a valid question may be raised: How can the
retroactivity of P.D. 725 benefit Frivaldo considering that said law
was enacted on June 5, 1975, while Frivaldo lost his Filipino
citizenship much later, on January 20, 1983, and applied for
repatriation even later, on August 17, 1994?
While it is true that the law was already in effect at the time that
Frivaldo became an American citizen, nevertheless, it is not only
the law itself (P.D. 725) which is to be given retroactive effect, but
even the repatriation granted under said law to Frivaldo on June
30, 1995 is to be deemed to have retroacted to the date of his
application therefor, August 17, 1994. The reason for this is simply
that if, as in this case, it was the intent of the legislative authority
that the law should apply to past events -- i.e., situations and
transactions existing even before the law came into being -- in
order to benefit the greatest number of former Filipinos possible
thereby enabling them to enjoy and exercise the constitutionally
guaranteed right of citizenship, and such legislative intention is to
be given the fullest effect and expression, then there is all the
more reason to have the law apply in a retroactive or
retrospective manner to situations, events and transactions
subsequent to the passage of such law. That is, the repatriation
granted to Frivaldo on June 30, 1995 can and should be made to
take effect as of date of his application. As earlier mentioned,
there is nothing in the law that would bar this or would show a
contrary intention on the part of the legislative authority; and
there is no showing that damage or prejudice to anyone, or
anything unjust or injurious would result from giving retroactivity
to his repatriation. Neither has Lee shown that there will result
the impairment of any contractual obligation, disturbance of any
vested right or breach of some constitutional guaranty.
Being a former Filipino who has served the people repeatedly,
Frivaldo deserves a liberal interpretation of Philippine laws and
whatever defects there were in his nationality should now be
deemed mooted by his repatriation.
Another argument for retroactivity to the date of filing is that it
would prevent prejudice to applicants. If P.D. 725 were not to be
given retroactive effect, and the Special Committee decides not to
act, i.e., to delay the processing of applications for any substantial
length of time, then the former Filipinos who may be stateless, as
Frivaldo -- having already renounced his American citizenship --
was, may be prejudiced for causes outside their control. This
should not be. In case of doubt in the interpretation or application
of laws, it is to be presumed that the law-making body intended
right and justice to prevail. 47
And as experience will show, the Special Committee was able to
process, act upon and grant applications for repatriation within
relatively short spans of time after the same were filed. 48 The
fact that such interregna were relatively insignificant minimizes
the likelihood of prejudice to the government as a result of giving
retroactivity to repatriation. Besides, to the mind of the Court,
direct prejudice to the government is possible only where a
person's repatriation has the effect of wiping out a liability of his
to the government arising in connection with or as a result of his
being an alien, and accruing only during the interregnum between
application and approval, a situation that is not present in the
instant case.
And it is but right and just that the mandate of the people, already
twice frustrated, should now prevail. Under the circumstances,
there is nothing unjust or iniquitous in treating Frivaldo's
repatriation as having become effective as of the date of his
application, i.e., on August 17, 1994. This being so, all questions
about his possession of the nationality qualification -- whether at
the date of proclamation (June 30, 1995) or the date of election
(May 8, 1995) or date of filing his certificate of candidacy (March
20, 1995) would become moot.
Based on the foregoing, any question regarding Frivaldo's status
as a registered voter would also be deemed settled. Inasmuch as
he is considered as having been repatriated -- i.e., his Filipino
citizenship restored -- as of August 17, 1994, his previous
registration as a voter is likewise deemed validated as of said
date.
It is not disputed that on January 20, 1983 Frivaldo became an
American. Would the retroactivity of his repatriation not
effectively give him dual citizenship, which under Sec. 40 of the
Local Government Code would disqualify him "from running for
any elective local position?" 49 We answer this question in the
negative, as there is cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of allegiance and even
before that, when he ran for governor in 1988. In his Comment,
Frivaldo wrote that he "had long renounced and had long
abandoned his American citizenship -- long before May 8, 1995.
At best, Frivaldo was stateless in the interim -- when he
abandoned and renounced his US citizenship but before he was
repatriated to his Filipino citizenship." 50
On this point, we quote from the assailed Resolution dated
December 19, 1995: 51
By the laws of the United States, petitioner
Frivaldo lost his American citizenship when
he took his oath of allegiance to the
Philippine Government when he ran for
Governor in 1988, in 1992, and in 1995.
Every certificate of candidacy contains an
oath of allegiance to the Philippine
Government."
These factual findings that Frivaldo has lost his foreign nationality
long before the elections of 1995 have not been effectively
rebutted by Lee. Furthermore, it is basic that such findings of the
Commission are conclusive upon this Court, absent any showing
of capriciousness or arbitrariness or
abuse. 52
The Second Issue: Is Lack of Citizenship
a Continuing Disqualification?
Lee contends that the May 1, 1995 Resolution 53 of the Comelec
Second Division in SPA No. 95-028 as affirmed in toto by
Comelec En Banc in its Resolution of May 11, 1995 "became final
and executory after five (5) days or on May 17, 1995, no
restraining order having been issued by this Honorable
Court. 54 Hence, before Lee "was proclaimed as the elected
governor on June 30, 1995, there was already a final and
executory judgment disqualifying" Frivaldo. Lee adds that this
Court's two rulings (which Frivaldo now concedes were legally
"correct") declaring Frivaldo an alien have also become final and
executory way before the 1995 elections, and these "judicial
pronouncements of his political status as an American citizen
absolutely and for all time disqualified (him) from running for, and
holding any public office in the Philippines."
We do not agree.
It should be noted that our first ruling in G.R. No. 87193
disqualifying Frivaldo was rendered in connection with the 1988
elections while that in G.R. No. 104654 was in connection with the
1992 elections. That he was disqualified for such elections is final
and can no longer be changed. In the words of the respondent
Commission (Second Division) in its assailed Resolution: 55
The records show that the Honorable
Supreme Court had decided that Frivaldo
was not a Filipino citizen and thus
disqualified for the purpose of the 1988 and
1992 elections. However, there is no record
of any "final judgment" of the
disqualification of Frivaldo as a candidate
for the May 8, 1995 elections. What the
Commission said in its Order of June 21,
1995 (implemented on June 30, 1995),
directing the proclamation of Raul R. Lee,
was that Frivaldo was not a Filipino citizen
"having been declared by the Supreme
Court in its Order dated March 25, 1995, not
a citizen of the Philippines." This declaration
of the Supreme Court, however, was in
connection with the 1992 elections.
Indeed, decisions declaring the acquisition or denial of citizenship
cannot govern a person's future status with finality. This is
because a person may subsequently reacquire, or for that matter
lose, his citizenship under any of the modes recognized by law for
the purpose. Hence, in Lee vs. Commissioner of
Immigration, 56 we held:
Everytime the citizenship of a person is
material or indispensable in a judicial or
administrative case, whatever the
corresponding court or administrative
authority decides therein as to such
citizenship is generally not considered res
judicata, hence it has to be threshed out
again and again, as the occasion demands.
The Third Issue: Comelec's Jurisdiction
Over The Petition in SPC No. 95-317
Lee also avers that respondent Comelec had no jurisdiction to
entertain the petition in SPC No. 95-317 because the only
"possible types of proceedings that may be entertained by the
Comelec are a pre-proclamation case, an election protest or a quo
warranto case". Again, Lee reminds us that he was proclaimed on
June 30, 1995 but that Frivaldo filed SPC No. 95-317 questioning
his (Lee's) proclamation only on July 6, 1995 -- "beyond the 5-day
reglementary period." Hence, according to him, Frivaldo's
"recourse was to file either an election protest or a quo
warranto action."
This argument is not meritorious. The Constitution 57 has given
the Comelec ample power to "exercise exclusive original
jurisdiction over all contests relating to the elections, returns and
qualifications of all elective . . . provincial . . . officials." Instead of
dwelling at length on the various petitions that Comelec, in the
exercise of its constitutional prerogatives, may entertain, suffice it
to say that this Court has invariably recognized the Commission's
authority to hear and decide petitions for annulment of
proclamations -- of which SPC No. 95-317 obviously is
one. 58 Thus, in Mentang vs.COMELEC, 59 we ruled:
 The petitioner argues that after
proclamation and assumption of office, a
pre-proclamation controversy is no longer
viable. Indeed, we are aware of cases
holding that pre-proclamation controversies
may no longer be entertained by the
COMELEC after the winning candidate has
been proclaimed. (citing Gallardo vs.
Rimando, 187 SCRA 463; Salvacion vs.
COMELEC, 170 SCRA 513; Casimiro vs.
COMELEC, 171 SCRA 468.) This rule,
however, is premised on an assumption
that the proclamation is no proclamation at
all and the proclaimed candidate's
assumption of office cannot deprive the
COMELEC of the power to make such
declaration of nullity. (citing Aguam vs.
COMELEC, 23 SCRA 883; Agbayani vs.
COMELEC, 186 SCRA 484.)
The Court however cautioned that such power to annul a
proclamation must "be done within ten (10) days following the
proclamation." Inasmuch as Frivaldo's petition was filed only six
(6) days after Lee's proclamation, there is no question that the
Comelec correctly acquired jurisdiction over the same.
The Fourth Issue: Was Lee's Proclamation Valid?
Frivaldo assails the validity of the Lee proclamation. We uphold
him for the following reasons:
First. To paraphrase this Court in Labo vs. COMELEC, 60 "the fact
remains that he (Lee) was not the choice of the sovereign will,"
and in Aquino vs. COMELEC, 61 Lee is "a second placer, . . . just
that, a second placer."
In spite of this, Lee anchors his claim to the governorship on the
pronouncement of this Court in the aforesaid Labo 62 case, as
follows:
The rule would have been different if the
electorate fully aware in fact and in law of a
candidate's disqualification so as to bring
such awareness within the realm of
notoriety, would nonetheless cast their
votes in favor of the ineligible candidate. In
such case, the electorate may be said to
have waived the validity and efficacy of
their votes by notoriously misapplying their
franchise or throwing away their votes, in
which case, the eligible candidate obtaining
the next higher number of votes may be
deemed elected.
But such holding is qualified by the next paragraph, thus:
But this is not the situation obtaining in the
instant dispute. It has not been shown, and
none was alleged, that petitioner Labo was
notoriously known as an ineligible
candidate, much less the electorate as
having known of such fact. On the contrary,
petitioner Labo was even allowed by no less
than the Comelec itself in its resolution
dated May 10, 1992 to be voted for the
office of the city Payor as its resolution
dated May 9, 1992 denying due course to
petitioner Labo's certificate of candidacy
had not yet become final and subject to the
final outcome of this case.
The last-quoted paragraph in Labo, unfortunately for Lee, is the
ruling appropriate in this case because Frivaldo was in 1995 in an
identical situation as Labo was in 1992 when the Comelec's
cancellation of his certificate of candidacy was not yet final on
election day as there was in both cases a pending motion for
reconsideration, for which reason Comelec issued an (omnibus)
resolution declaring that Frivaldo (like Labo in 1992) and several
others can still be voted for in the May 8, 1995 election, as in fact,
he was.
Furthermore, there has been no sufficient evidence presented to
show that the electorate of Sorsogon was "fully aware in fact and
in law" of Frivaldo's alleged disqualification as to "bring such
awareness within the realm of notoriety;" in other words, that the
voters intentionally wasted their ballots knowing that, in spite of
their voting for him, he was ineligible. If Labo has any relevance at
all, it is that the vice-governor -- and not Lee -- should be pro-
claimed, since in losing the election, Lee was, to
paraphrase Labo again, "obviously not the choice of the people"
of Sorsogon. This is the emphatic teaching of Labo:
The rule, therefore, is: the ineligibility of a
candidate receiving majority votes does not
entitle the eligible candidate receiving the
next highest number of votes to be
declared elected. A minority or defeated
candidate cannot be deemed elected to the
office.
Second. As we have earlier declared Frivaldo to have seasonably
reacquired his citizenship and inasmuch as he obtained the
highest number of votes in the 1995 elections, he -- not Lee --
should be proclaimed. Hence, Lee's proclamation was patently
erroneous and should now be corrected.
The Fifth Issue: Is Section 78 of the
Election Code Mandatory?
In G.R. No. 120295, Frivaldo claims that the assailed Resolution of
the Comelec (Second Division) dated May 1, 1995 and the
confirmatory en banc Resolution of May 11, 1995 disqualifying
him for want of citizenship should be annulled because they were
rendered beyond the fifteen (15) day period prescribed by Section
78, of the Omnibus Election Code which reads as follows:
Sec. 78. Petition to deny due course or to
cancel a certificate of candidacy. -- A
verified petition seeking to deny due course
or to cancel a certificate of candidacy may
be filed by any person exclusively on the
ground that any material representation
contained therein as required under Section
74 hereof is false. The petition may be filed
at any time not later than twenty-five days
from the time of the filing of the certificate
of candidacy and shall be decided after
notice and hearing, not later than fifteen
days before the election. (Emphasis
supplied.)
This claim is now moot and academic inasmuch as these
resolutions are deemed superseded by the subsequent ones
issued by the Commission (First Division) on December 19, 1995,
affirmed en banc 63 on February 23, 1996; which both upheld his
election. At any rate, it is obvious that Section 78 is merely
directory as Section 6 of R.A. No. 6646 authorizes the Commission
to try and decide petitions for disqualifications even after the
elections, thus:
Sec. 6. Effect of Disqualification Case. -- Any
candidate who has been declared by final
judgment to be disqualified shall not be
voted for, and the votes cast for him shall
not be counted. If for any reason a
candidate is not declared by final judgment
before an election to be disqualified and he
is voted for and receives the winning
number of votes in such election, the Court
or Commission shall continue with the trial
and hearing of the action, inquiry or protest
and upon motion of the complainant or any
intervenor, may during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
 the evidence of his guilt is strong. (emphasis
supplied)
Refutation of
Mr. Justice Davide's Dissent
In his dissenting opinion, the esteemed Mr. Justice Hilario G.
Davide, Jr. argues that President Aquino's memorandum dated
March 27, 1987 should be viewed as a suspension (not a repeal,
as urged by Lee) of P.D. 725. But whether it decrees a suspension
or a repeal is a purely academic distinction because the said
issuance is not a statute that can amend or abrogate an existing
law.
The existence and subsistence of P.D. 725 were recognized in the
first Frivaldo case; 64 viz., "(u)nder CA No. 63 as amended by CA
No. 473 and P.D. No. 725, Philippine citizenship maybe reacquired
by . . . repatriation". He also contends that by allowing Frivaldo to
register and to remain as a registered voter, the Comelec and in
effect this Court abetted a "mockery" of our two previous
judgments declaring him a non-citizen. We do not see such
abetting or mockery. The retroactivity of his repatriation, as
discussed earlier, legally cured whatever defects there may have
been in his registration as a voter for the purpose of the 1995
elections. Such retroactivity did not change his disqualifications in
1988 and 1992, which were the subjects of such previous rulings.
Mr. Justice Davide also believes that Quo Warranto is not the sole
remedy to question the ineligibility of a candidate, citing the
Comelec's authority under Section 78 of the Omnibus Election
Code allowing the denial of a certificate of candidacy on the
ground of a false material representation therein as required by
Section 74. Citing Loong, he then states his disagreement with our
holding that Section 78 is merely directory. We really have no
quarrel. Our point is that Frivaldo was in error in his claim in G.R.
No. 120295 that the Comelec Resolutions promulgated on May 1,
1995 and May 11, 1995 were invalid because they were issued
"not later than fifteen days before the election" as prescribed by
Section 78. In dismissing the petition in G.R. No. 120295, we hold
that the Comelec did not commit grave abuse of discretion
because "Section 6 of R.A. 6646 authorizes the Comelec to try and
decide disqualifications even after the elections." In spite of his
disagreement with us on this point, i.e., that Section 78 "is merely
directory", we note that just like us, Mr. Justice Davide
nonetheless votes to "DISMISS G.R. No. 120295". One other
point. Loong, as quoted in the dissent, teaches that a petition to
deny due course under Section 78 must be filed within the 25-
day period prescribed therein. The present case however deals
with the period during which the Comelec may decide such
petition. And we hold that it may be decided even after thefifteen
day period mentioned in Section 78. Here, we rule that a
decision promulgated by the Comelec even after the elections is
valid but Loong held that a petition filed beyond the 25-day period
is out of time. There is no inconsistency nor conflict.
Mr. Justice Davide also disagrees with the Court's holding that,
given the unique factual circumstances of Frivaldo, repatriation
may be given retroactive effect. He argues that such retroactivity
"dilutes" our holding in the first Frivaldo case. But the first (and
even the second Frivaldo) decision did not directly involve
repatriation as a mode of acquiring citizenship. If we may repeat,
there is no question that Frivaldo was not a Filipino for purposes
of determining his qualifications in the 1988 and 1992 elections.
That is settled. But his supervening repatriation has changed his
political status -- not in 1988 or 1992, but only in the 1995
elections.
Our learned colleague also disputes our holding that Frivaldo was
stateless prior to his repatriation, saying that "informal
renunciation or abandonment is not a ground to lose American
citizenship". Since our courts are charged only with the duty of
determining who are Philippine nationals, we cannot rule on the
legal question of who are or who are not Americans. It is basic in
international law that a State determines ONLY those who are its
own citizens -- not who are the citizens of other countries. 65 The
issue here is: the Comelec made a finding of fact that Frivaldo was
stateless and such finding has not been shown by Lee to be
arbitrary or whimsical. Thus, following settled case law, such
finding is binding and final.
The dissenting opinion also submits that Lee who lost by chasmic
margins to Frivaldo in all three previous elections, should be
declared winner because "Frivaldo's ineligibility for being an
American was publicly known". First, there is absolutely no
empirical evidence for such "public" knowledge. Second, even if
there is, such knowledge can be true post facto only of the last
two previous elections. Third, even the Comelec and now this
Court were/are still deliberating on his nationality before, during
and after the 1995 elections. How then can there be such "public"
knowledge?
Mr. Justice Davide submits that Section 39 of the Local
Government Code refers to the qualifications of electivelocal
officials, i.e., candidates, and not elected officials, and that the
citizenship qualification [under par. (a) of that section] must be
possessed by candidates, not merely at the commencement of
the term, but by election day at the latest. We see it differently.
Section 39, par. (a) thereof speaks of "elective local official" while
par. (b) to (f) refer to "candidates". If the qualifications under par.
(a) were intended to apply to "candidates" and not elected
officials, the legislature would have said so, instead of
differentiating par. (a) from the rest of the paragraphs. Secondly,
if Congress had meant that the citizenship qualification should be
possessed at election day or prior thereto, it would have
specifically stated such detail, the same way it did in pars. (b) to (f)
far other qualifications of candidates for governor, mayor, etc.
Mr. Justice Davide also questions the giving of retroactive effect
to Frivaldo's repatriation on the ground, among others, that the
law specifically provides that it is only after taking the oath of
allegiance that applicants shall be deemed to have reacquired
Philippine citizenship. We do not question what the provision
states. We hold however that the provision should be understood
thus: that after taking the oath of allegiance the applicant is
deemed to have reacquired Philippine citizenship, which
reacquisition (or repatriation) is deemed for all purposes and
intents to have retroacted to the date of his application therefor.
In any event, our "so too" argument regarding the literal meaning
of the word "elective" in reference to Section 39 of the Local
Authority Code, as well as regarding Mr. Justice Davide's thesis
that the very wordings of P.D. 725 suggest non-retroactivity, were
already taken up rather extensively earlier in this Decision.
Mr. Justice Davide caps his paper with a clarion call: "This Court
must be the first to uphold the Rule of Law." We agree -- we must
all follow the rule of law. But that is NOT the issue here. The issue
is how should the law be interpreted and applied in this case so it
can be followed, so it can rule!
At balance, the question really boils down to a choice of
philosophy and perception of how to interpret and apply laws
relating to elections: literal or liberal; the letter or the spirit, the
naked provision or its ultimate purpose; legal syllogism or
substantial justice; in isolation or in the context of social
conditions; harshly against or gently in favor of the voters'
obvious choice. In applying election laws, it would be far better to
err in favor of popular sovereignty than to be right in complex but
little understood legalisms. Indeed, to inflict a thrice rejected
candidate upon the electorate of Sorsogon would constitute
unmitigated judicial tyranny and an unacceptable assault upon
this Court's conscience.
EPILOGUE
In sum, we rule that the citizenship requirement in the Local
Government Code is to be possessed by an elective official at the
latest as of the time he is proclaimed and at the start of the term
of office to which he has been elected. We further hold P.D. No.
725 to be in full force and effect up to the present, not having
been suspended or repealed expressly nor impliedly at any time,
and Frivaldo's repatriation by virtue thereof to have been
properly granted and thus valid and effective. Moreover, by
reason of the remedial or curative nature of the law granting him
a new right to resume his political status and the legislative intent
behind it, as well as his unique situation of having been forced to
give up his citizenship and political aspiration as his means of
escaping a regime he abhorred, his repatriation is to be given
retroactive effect as of the date of his application therefor, during
the pendency of which he was stateless, he having given up his
U.S. nationality. Thus, in contemplation of law, he possessed the
vital requirement of Filipino citizenship as of the start of the term
of office of governor, and should have been proclaimed instead of
Lee. Furthermore, since his reacquisition of citizenship retroacted
to August 17, 1994, his registration as a voter of Sorsogon is
deemed to have been validated as of said date as well. The
foregoing, of course, are precisely consistent with our holding that
lack of the citizenship requirement is not a continuing disability or
disqualification to run for and hold public office. And once again,
we emphasize herein our previous rulings recognizing the
Comelec's authority and jurisdiction to hear and decide petitions
for annulment of proclamations.
This Court has time and again liberally and equitably construed
the electoral laws of our country to give fullest effect to the
manifest will of our people, 66 for in case of doubt, political laws
must be interpreted to give life and spirit to the popular mandate
freely expressed through the ballot. Otherwise stated, legal
niceties and technicalities cannot stand in the way of the
sovereign will. Consistently, we have held:
. . . (L)aws governing election contests must
be liberally construed to the end that the
will of the people in the choice of public
officials may not be defeated by mere
technical objections (citations omitted). 67
The law and the courts must accord Frivaldo every possible
protection, defense and refuge, in deference to the popular will.
Indeed, this Court has repeatedly stressed the importance of
giving effect to the sovereign will in order to ensure the survival of
our democracy. In any action involving the possibility of a reversal
of the popular electoral choice, this Court must exert utmost
effort to resolve the issues in a manner that would give effect to
the will of the majority, for it is merely sound public policy to
cause elective offices to be filled by those who are the choice of
the majority. To successfully challenge a winning candidate's
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic 68 to constitutional and
legal principles that overriding such ineligibility and thereby giving
effect to the apparent will of the people, would ultimately create
greater prejudice to the very democratic institutions and juristic
traditions that our Constitution and laws so zealously protect and
promote. In this undertaking, Lee has miserably failed.
In Frivaldo's case. it would have been technically easy to find fault
with his cause. The Court could have refused to grant retroactivity
to the effects of his repatriation and hold him still ineligible due to
his failure to show his citizenship at the time he registered as a
voter before the 1995 elections. Or, it could have disputed the
factual findings of the Comelec that he was stateless at the time
of repatriation and thus hold his consequent dual citizenship as a
disqualification "from running for any elective local position." But
the real essence of justice does not emanate from quibblings over
patchwork legal technicality. It proceeds from the spirit's gut
consciousness of the dynamic role of law as a brick in the ultimate
development of the social edifice. Thus, the Court struggled
against and eschewed the easy, legalistic, technical and
sometimes harsh anachronisms of the law in order to evoke
substantial justice in the larger social context consistent with
Frivaldo's unique situation approximating venerability in
Philippine political life. Concededly, he sought American
citizenship only to escape the clutches of the dictatorship. At this
stage, we cannot seriously entertain any doubt about his loyalty
and dedication to this country. At the first opportunity, he
returned to this land, and sought to serve his people once more.
The people of Sorsogon overwhelmingly voted for him three
times. He took an oath of allegiance to this Republic every time he
filed his certificate of candidacy and during his failed
naturalization bid. And let it not be overlooked, his demonstrated
tenacity and sheer determination to re-assume his nationality of
birth despite several legal set-backs speak more loudly, in spirit, in
fact and in truth than any legal technicality, of his consuming
intention and burning desire to re-embrace his native Philippines
even now at the ripe old age of 81 years. Such loyalty to and love
of country as well as nobility of purpose cannot be lost on this
Court of justice and equity. Mortals of lesser mettle would have
given up. After all, Frivaldo was assured of a life of ease and
plenty as a citizen of the most powerful country in the world. But
he opted, nay, single-mindedly insisted on returning to and
serving once more his struggling but beloved land of birth. He
therefore deserves every liberal interpretation of the law which
can be applied in his favor. And in the final analysis, over and
above Frivaldo himself, the indomitable people of Sorsogon most
certainly deserve to be governed by a leader of their
overwhelming choice.
WHEREFORE, in consideration of the foregoing:
(1) The petition in G.R. No. 123755 is hereby DISMISSED. The
assailed Resolutions of the respondent Commission are
AFFIRMED.
(2) The petition in G.R. No. 120295 is also DISMISSED for being
moot and academic. In any event, it has no merit.
No costs.
SO ORDERED.
G.R. No. 135083 May 26, 1999
ERNESTO S. MERCADO, petitioner,
vs.
EDUARDO BARRIOS MANZANO and the COMMISSION ON
ELECTIONS, respondents.
MENDOZA, J.:
Petitioner Ernesto S. Mercado and private respondent Eduardo B.
Manzano were candidates for vice mayor of the City of Makati in
the May 11, 1998 elections. The other one was Gabriel V. Daza III.
The results of the election were as follows:
Eduardo B. Manzano 103,853
Ernesto S. Mercado 100,894
Gabriel V. Daza III 54,275 1
The proclamation of private respondent was suspended in view of
a pending petition for disqualification filed by a certain Ernesto
Mamaril who alleged that private respondent was not a citizen of
the Philippines but of the United States.
In its resolution, dated May 7, 1998, 2 the Second Division of the
COMELEC granted the petition of Mamaril and ordered the
cancellation of the certificate of candidacy of private respondent
on the ground that he is a dual citizen and, under 40(d) of the
Local Government Code, persons with dual citizenship are
disqualified from running for any elective position. The
COMELEC's Second Division said:
What is presented before the Commission is
a petition for disqualification of Eduardo
Barrios Manzano as candidate for the office
of Vice-Mayor of Makati City in the May 11,
1998 elections. The petition is based on the
ground that the respondent is an American
citizen based on the record of the Bureau of
Immigration and misrepresented himself as
a natural-born Filipino citizen.
In his answer to the petition filed on April
27, 1998, the respondent admitted that he
is registered as a foreigner with the Bureau
of Immigration under Alien Certificate of
Registration No. B-31632 and alleged that
he is a Filipino citizen because he was born
in 1955 of a Filipino father and a Filipino
mother. He was born in the United States,
San Francisco, California, September 14,
1955, and is considered in American citizen
under US Laws. But notwithstanding his
registration as an American citizen, he did
not lose his Filipino citizenship.
Judging from the foregoing facts, it would
appear that respondent Manzano is born a
Filipino and a US citizen. In other words, he
holds dual citizenship.
The question presented is whether under
our laws, he is disqualified from the
position for which he filed his certificate of
candidacy. Is he eligible for the office he
seeks to be elected?
Under Section 40(d) of the Local
Government Code, those holding dual
citizenship are disqualified from running for
any elective local position.
WHEREFORE, the Commission hereby
declares the respondent Eduardo Barrios
Manzano DISQUALIFIED as candidate for
Vice-Mayor of Makati City.
On May 8, 1998, private respondent filed a motion for
reconsideration. 3 The motion remained pending even until after
the election held on May 11, 1998.
Accordingly, pursuant to Omnibus Resolution No. 3044, dated
May 10, 1998, of the COMELEC, the board of canvassers tabulated
the votes cast for vice mayor of Makati City but suspended the
proclamation of the winner.
On May 19, 1998, petitioner sought to intervene in the case for
disqualification. 4 Petitioner's motion was opposed by private
respondent.
The motion was not resolved. Instead, on August 31, 1998, the
COMELEC en banc rendered its resolution. Voting 4 to 1, with one
commissioner abstaining, the COMELEC en banc reversed the
ruling of its Second Division and declared private respondent
qualified to run for vice mayor of the City of Makati in the May 11,
1998 elections. 5The pertinent portions of the resolution of the
COMELEC en banc read:
As aforesaid, respondent Eduardo Barrios
Manzano was born in San Francisco,
California, U.S.A. He acquired US citizenship
by operation of the United States
Constitution and laws under the principle
ofjus soli.
He was also a natural born Filipino citizen
by operation of the 1935 Philippine
Constitution, as his father and mother were
Filipinos at the time of his birth. At the age
of six (6), his parents brought him to the
Philippines using an American passport as
travel document. His parents also registered
him as an alien with the Philippine Bureau
of Immigration. He was issued an alien
certificate of registration. This, however,
did not result in the loss of his Philippine
citizenship, as he did not renounce
Philippine citizenship and did not take an
oath of allegiance to the United States.
It is an undisputed fact that when
respondent attained the age of majority, he
registered himself as a voter, and voted in
the elections of 1992, 1995 and 1998, which
effectively renounced his US citizenship
under American law. Under Philippine law,
he no longer had U.S. citizenship.
At the time of the May 11, 1998 elections,
the resolution of the Second Division,
adopted on May 7, 1998, was not yet final.
Respondent Manzano obtained the highest
number of votes among the candidates for
vice-mayor of Makati City, garnering one
hundred three thousand eight hundred fifty
three (103,853) votes over his closest rival,
Ernesto S. Mercado, who obtained one
hundred thousand eight hundred ninety
four (100,894) votes, or a margin of two
thousand nine hundred fifty nine (2,959)
votes. Gabriel Daza III obtained third place
with fifty four thousand two hundred
seventy five (54,275) votes. In applying
election laws, it would be far better to err in
favor of the popular choice than be
embroiled in complex legal issues involving
private international law which may well be
settled before the highest court (Cf. Frivaldo
vs. Commission on Elections, 257 SCRA
727).
WHEREFORE, the Commission en
banc hereby REVERSES the resolution of the
 Second Division, adopted on May 7, 1998,
ordering the cancellation of the
respondent's certificate of candidacy.
We declare respondent Eduardo Luis
Barrios Manzano to be QUALIFIED as a
candidate for the position of vice-mayor of
Makati City in the May 11, 1998, elections.
ACCORDINGLY, the Commission directs the
Makati City Board of Canvassers, upon
proper notice to the parties, to reconvene
and proclaim the respondent Eduardo Luis
Barrios Manzano as the winning candidate
for vice-mayor of Makati City.
Pursuant to the resolution of the COMELEC en banc, the board of
canvassers, on the evening of August 31, 1998, proclaimed private
respondent as vice mayor of the City of Makati.
This is a petition for certiorari seeking to set aside the aforesaid
resolution of the COMELEC en banc and to declare private
respondent disqualified to hold the office of vice mayor of Makati
City. Petitioner contends that
[T]he COMELEC en banc ERRED in holding
that:
A. Under Philippine law, Manzano was no
longer a U.S. citizen when he:
1. He renounced his U.S. citizenship
when he attained the age of
majority when he was already 37
years old; and,
2. He renounced his U.S. citizenship
when he (merely) registered
himself as a voter and voted in the
elections of 1992, 1995 and 1998.
B. Manzano is qualified to run for and or
hold the elective office of Vice-Mayor of the
City of Makati;
C. At the time of the May 11, 1998
elections, the resolution of the Second
Division adopted on 7 May 1998 was not
yet final so that, effectively, petitioner may
not be declared the winner even assuming
that Manzano is disqualified to run for and
hold the elective office of Vice-Mayor of the
City of Makati.
We first consider the threshold procedural issue raised by private
respondent Manzano whether petitioner Mercado his
personality to bring this suit considering that he was not an
original party in the case for disqualification filed by Ernesto
Mamaril nor was petitioner's motion for leave to intervene
granted.
I. PETITIONER'S RIGHT TO BRING THIS SUIT
Private respondent cites the following provisions of Rule 8 of the
Rules of Procedure of the COMELEC in support of his claim that
petitioner has no right to intervene and, therefore, cannot bring
this suit to set aside the ruling denying his motion for
intervention:
Sec. 1. When proper and when may be
permitted to intervene. Any person
allowed to initiate an action or proceeding
may, before or during the trial of an action
or proceeding, be permitted by the
Commission, in its discretion to intervene in
such action or proceeding, if he has legal
interest in the matter in litigation, or in the
success of either of the parties, or an
interest against both, or when he is so
situated as to be adversely affected by such
action or proceeding.
xxx xxx xxx
Sec. 3. Discretion of Commission. In
allowing or disallowing a motion for
intervention, the Commission or the
Division, in the exercise of its discretion,
shall consider whether or not the
intervention will unduly delay or prejudice
the adjudication of the rights of the original
parties and whether or not the intervenor's
rights may be fully protected in a separate
action or proceeding.
Private respondent argues that petitioner has neither
legal interest in the matter in litigation nor an interest
to protect because he is "a defeated candidate for the
vice-mayoralty post of Makati City [who] cannot be
proclaimed as the Vice-Mayor of Makati City if the
private respondent be ultimately disqualified by final
and executory judgment."
The flaw in this argument is it assumes that, at the time petitioner
sought to intervene in the proceedings before the COMELEC,
there had already been a proclamation of the results of the
election for the vice mayoralty contest for Makati City, on the
basis of which petitioner came out only second to private
respondent. The fact, however, is that there had been no
proclamation at that time. Certainly, petitioner had, and still has,
an interest in ousting private respondent from the race at the
time he sought to intervene. The rule in Labo v.
COMELEC, 6 reiterated in several cases, 7 only applies to cases in
which the election of the respondent is contested, and the
question is whether one who placed second to the disqualified
candidate may be declared the winner. In the present case, at the
time petitioner filed a "Motion for Leave to File Intervention" on
May 20, 1998, there had been no proclamation of the winner, and
petitioner's purpose was precisely to have private respondent
disqualified "from running for [an] elective local position" under
40(d) of R.A. No. 7160. If Ernesto Mamaril (who originally
instituted the disqualification proceedings), a registered voter of
Makati City, was competent to bring the action, so was petitioner
since the latter was a rival candidate for vice mayor of Makati
City.
Nor is petitioner's interest in the matter in litigation any less
because he filed a motion for intervention only on May 20, 1998,
after private respondent had been shown to have garnered the
highest number of votes among the candidates for vice mayor.
That petitioner had a right to intervene at that stage of the
proceedings for the disqualification against private respondent is
clear from 6 of R.A. No. 6646, otherwise known as the Electoral
Reform Law of 1987, which provides:
Any candidate who his been declared by
final judgment to be disqualified shall not
be voted for, and the votes cast for him
shall not be counted. If for any reason a
candidate is not declared by final judgment
before an election to be disqualified and he
is voted for and receives the winning
number of votes in such election, the Court
or Commission shall continue with the trial
and hearing of action, inquiry, or protest
and, upon motion of the complainant or
any intervenor, may during the pendency
thereof order the suspension of the
proclamation of such candidate whenever
the evidence of guilt is strong.
Under this provision, intervention may be allowed in proceedings
for disqualification even after election if there has yet been no
final judgment rendered.
The failure of the COMELEC en banc to resolve petitioner's motion
for intervention was tantamount to a denial of the motion,
justifying petitioner in filing the instant petition for certiorari. As
the COMELEC en banc instead decided the merits of the case, the
present petition properly deals not only with the denial of
petitioner's motion for intervention but also with the substantive
issues respecting private respondent's alleged disqualification on
the ground of dual citizenship.
This brings us to the next question, namely, whether private
respondent Manzano possesses dual citizenship and, if so,
whether he is disqualified from being a candidate for vice mayor
of Makati City.
II. DUAL CITIZENSHIP AS A GROUND FOR
DISQUALIFICATION
The disqualification of private respondent Manzano is being
sought under 40 of the Local Government Code of 1991 (R.A. No.
7160), which declares as "disqualified from running for any
elective local position: . . . (d) Those with dual citizenship." This
provision is incorporated in the Charter of the City of Makati. 8
Invoking the maxim dura lex sed lex, petitioner, as well as the
Solicitor General, who sides with him in this case, contends that
through 40(d) of the Local Government Code, Congress has
"command[ed] in explicit terms the ineligibility of persons
possessing dual allegiance to hold local elective office."
To begin with, dual citizenship is different from dual allegiance.
The former arises when, as a result of the concurrent application
of the different laws of two or more states, a person is
simultaneously considered a national by the said states. 9 For
instance, such a situation may arise when a person whose parents
are citizens of a state which adheres to the principle of jus
sanguinis is born in a state which follows the doctrine of jus soli.
Such a person,ipso facto and without any voluntary act on his
part, is concurrently considered a citizen of both states.
Considering the citizenship clause (Art. IV) of our Constitution, it is
possible for the following classes of citizens of the Philippines to
possess dual citizenship:
(1) Those born of Filipino fathers and/or
mothers in foreign countries which follow
the principle of jus soli;
(2) Those born in the Philippines of Filipino
mothers and alien fathers if by the laws of
their father's' country such children are
citizens of that country;
(3) Those who marry aliens if by the laws of
the latter's country the former are
considered citizens, unless by their act or
omission they are deemed to have
renounced Philippine citizenship.
There may be other situations in which a citizen of the Philippines
may, without performing any act, be also a citizen of another
state; but the above cases are clearly possible given the
constitutional provisions on citizenship.
Dual allegiance, on the other hand, refers to the situation in which
a person simultaneously owes, by some positive act, loyalty to
two or more states. While dual citizenship is involuntary, dual
allegiance is the result of an individual's volition.
With respect to dual allegiance, Article IV, 5 of the Constitution
provides: "Dual allegiance of citizens is inimical to the national
interest and shall be dealt with by law." This provision was
included in the 1987 Constitution at the instance of Commissioner
Blas F. Ople who explained its necessity as follows: 10
. . . I want to draw attention to the fact that
dual allegiance is not dual citizenship. I have
circulated a memorandum to the Bernas
Committee according to which a dual
allegiance and I reiterate a dual
allegiance is larger and more threatening
than that of mere double citizenship which
is seldom intentional and, perhaps, never
insidious. That is often a function of the
accident of mixed marriages or of birth on
foreign soil. And so, I do not question
double citizenship at all.
What we would like the Committee to
consider is to take constitutional cognizance
of the problem of dual allegiance. For
example, we all know what happens in the
triennial elections of the Federation of
In another session of the Commission, Ople spoke on the problem
Filipino-Chinese Chambers of Commerce
of these citizens with dual allegiance, thus: 11
which consists of about 600 chapters all
over the country. There is a Peking ticket, as
well as a Taipei ticket. Not widely known is
the fact chat the Filipino-Chinese
community is represented in the Legislative
Yuan of the Republic of China in Taiwan.
And until recently, sponsor might recall, in
Mainland China in the People's Republic of
China, they have the Associated Legislative
Council for overseas Chinese wherein all of
Southeast Asia including some European
and Latin countries were represented,
which was dissolved after several years
because of diplomatic friction. At that time,
the Filipino-Chinese were also represented
in that Overseas Council.
When I speak of double allegiance,
therefore, I speak of this unsettled kind of
allegiance of Filipinos, of citizens who are
already Filipinos but who, by their acts, may
be said to be bound by a second allegiance,
either to Peking or Taiwan. I also took close
note of the concern expressed by some
Commissioners yesterday, including
Commissioner Villacorta, who were
concerned about the lack of guarantees of
thorough assimilation, and especially
Commissioner Concepcion who has always
been worried about minority claims on our
natural resources.
Dull allegiance can actually siphon scarce
national capital to Taiwan, Singapore, China
or Malaysia, and this is already happening.
Some of the great commercial places in
downtown Taipei are Filipino-owned,
owned by Filipino-Chinese it is of
common knowledge in Manila. It can mean
a tragic capital outflow when we have to
endure a capital famine which also means
economic stagnation, worsening
unemployment and social unrest.
And so, this is exactly what we ask that
the Committee kindly consider
incorporating a new section, probably
Section 5, in the article on Citizenship which
will read as follows: DUAL ALLEGIANCE IS
INIMICAL TO CITIZENSHIP AND SHALL BE
DEALT WITH ACCORDING TO LAW.
. . . A significant number of Commissioners
expressed their concern about dual
citizenship in the sense that it implies a
double allegiance under a double
sovereignty which some of us who spoke
then in a freewheeling debate thought
would be repugnant to the sovereignty
which pervades the Constitution and to
citizenship itself which implies a uniqueness
and which elsewhere in the Constitution is
 defined in terms of rights and obligations
exclusive to that citizenship including, of
course, the obligation to rise to the defense
of the State when it is threatened, and back
of this, Commissioner Bernas, is, of course,
the concern for national security. In the
course of those debates, I think some noted
the fact that as a result of the wave of
naturalizations since the decision to
establish diplomatic relations with the
People's Republic of China was made in
1975, a good number of these naturalized
Filipinos still routinely go to Taipei every
October 10; and it is asserted that some of
them do renew their oath of allegiance to a
foreign government maybe just to enter
into the spirit of the occasion when the
anniversary of the Sun Yat-Sen Republic is
commemorated. And so, I have detected a
genuine and deep concern about double
citizenship, with its attendant risk of double
allegiance which is repugnant to our
sovereignty and national security. I
appreciate what the Committee said that
this could be left to the determination of a
future legislature. But considering the scale
of the problem, the real impact on the
security of this country, arising from, let us
say, potentially great numbers of double
citizens professing double allegiance, will
the Committee entertain a proposed
amendment at the proper time that will
prohibit, in effect, or regulate double
citizenship?
Clearly, in including 5 in Article IV on citizenship, the concern of
the Constitutional Commission was not with dual citizens per
se but with naturalized citizens who maintain their allegiance to
their countries of origin even after their naturalization. Hence, the
phrase "dual citizenship" in R.A. No. 7160, 40(d) and in R.A. No.
7854, 20 must be understood as referring to "dual allegiance."
Consequently, persons with mere dual citizenship do not fall
under this disqualification. Unlike those with dual allegiance, who
must, therefore, be subject to strict process with respect to the
termination of their status, for candidates with dual citizenship, it
should suffice if, upon the filing of their certificates of candidacy,
they elect Philippine citizenship to terminate their status as
persons with dual citizenship considering that their condition is
the unavoidable consequence of conflicting laws of different
states. As Joaquin G. Bernas, one of the most perceptive members
of the Constitutional Commission, pointed out: "[D]ual citizenship
is just a reality imposed on us because we have no control of the
laws on citizenship of other countries. We recognize a child of a
Filipino mother. But whether she is considered a citizen of
another country is something completely beyond our control." 12
By electing Philippine citizenship, such candidates at the same
time forswear allegiance to the other country of which they are
also citizens and thereby terminate their status as dual citizens. It
may be that, from the point of view of the foreign state and of its
laws, such an individual has not effectively renounced his foreign
citizenship. That is of no moment as the following discussion on
40(d) between Senators Enrile and Pimentel clearly shows:13
SENATOR ENRILE. Mr. President, I would
like to ask clarification of line 41, page 17:
"Any person with dual citizenship" is
disqualified to run for any elective local
position. Under the present Constitution,
Mr. President, someone whose mother is a
citizen of the Philippines but his father is a
foreigner is a natural-born citizen of the
Republic. There is no requirement that such
a natural born citizen, upon reaching the
age of majority, must elect or give up
Philippine citizenship.
On the assumption that this person would
carry two passports, one belonging to the
country of his or her father and one
belonging to the Republic of the Philippines,
may such a situation disqualify the person
to run for a local government position?
SENATOR PIMENTEL. To my mind, Mr.
President, it only means that at the
moment when he would want to run for
public office, he has to repudiate one of his
citizenships.
SENATOR ENRILE. Suppose he carries only a
Philippine passport but the country of origin
or the country of the father claims that
person, nevertheless, as a citizen? No one
can renounce. There are such countries in
the world.
SENATOR PIMENTEL. Well, the very fact
that he is running for public office would, in
effect, be an election for him of his desire
to be considered as a Filipino citizen.
SENATOR ENRILE. But, precisely, Mr.
President, the Constitution does not require
an election. Under the Constitution, a
person whose mother is a citizen of the
Philippines is, at birth, a citizen without any
overt act to claim the citizenship.
SENATOR PIMENTEL. Yes. What we are
saying, Mr. President, is: Under the
Gentleman's example, if he does not
renounce his other citizenship, then he is
opening himself to question. So, if he is
really interested to run, the first thing he
should do is to say in the Certificate of
Candidacy that: "I am a Filipino citizen, and I
have only one citizenship."
SENATOR ENRILE. But we are talking from
the viewpoint of Philippine law, Mr.
President. He will always have one
citizenship, and that is the citizenship
invested upon him or her in the
Constitution of the Republic.
SENATOR PIMENTEL. That is true, Mr.
President. But if he exercises acts that will
prove that he also acknowledges other
citizenships, then he will probably fall under
this disqualification.
This is similar to the requirement that an applicant for
naturalization must renounce "all allegiance and fidelity to any
foreign prince, potentate, state, or sovereignty" 14 of which at the
time he is a subject or citizen before he can be issued a certificate
of naturalization as a citizen of the Philippines. In Parado
v. Republic, 15 it was held:
[W]hen a person applying for citizenship by
naturalization takes an oath that he
renounce, his loyalty to any other country
or government and solemnly declares that
he owes his allegiance to the Republic of
the Philippines, the condition imposed by
law is satisfied and compiled with. The
determination whether such renunciation is
valid or fully complies with the provisions of
our Naturalization Law lies within the
province and is an exclusive prerogative of
our courts. The latter should apply the law
duly enacted by the legislative department
of the Republic. No foreign law may or
should interfere with its operation and
application. If the requirement of the
Chinese Law of Nationality were to be read
into our Naturalization Law, we would be
applying not what our legislative
 department has deemed it wise to require,
but what a foreign government has thought
or intended to exact. That, of course, is
absurd. It must be resisted by all means and
at all cost. It would be a brazen
encroachment upon the sovereign will and
power of the people of this Republic.
III. PETITIONER'S ELECTION OF PHILIPPINE CITIZENSHIP
The record shows that private respondent was born in San
Francisco, California on September 4, 1955, of Filipino parents.
Since the Philippines adheres to the principle of jus sanguinis,
while the United States follows the doctrine of jus soli, the parties
agree that, at birth at least, he was a national both of the
Philippines and of the United States. However, the COMELEC en
banc held that, by participating in Philippine elections in 1992,
1995, and 1998, private respondent "effectively renounced his
U.S. citizenship under American law," so that now he is solely a
Philippine national.
Petitioner challenges this ruling. He argues that merely taking part
in Philippine elections is not sufficient evidence of renunciation
and that, in any event, as the alleged renunciation was made
when private respondent was already 37 years old, it was
ineffective as it should have been made when he reached the age
of majority.
In holding that by voting in Philippine elections private
respondent renounced his American citizenship, the COMELEC
must have in mind 349 of the Immigration and Nationality Act of
the United States, which provided that "A person who is a
national of the United States, whether by birth or naturalization,
shall lose his nationality by: . . . (e) Voting in a political election in
a foreign state or participating in an election or plebiscite to
determine the sovereignty over foreign territory." To be sure this
provision was declared unconstitutional by the U.S. Supreme
Court in Afroyim v. Rusk 16 as beyond the power given to the U.S.
Congress to regulate foreign relations. However, by filing a
certificate of candidacy when he ran for his present post, private
respondent elected Philippine citizenship and in effect renounced
his American citizenship. Private respondent's certificate of
candidacy, filed on March 27, 1998, contained the following
statements made under oath:
6. I AM A FILIPINO CITIZEN (STATE IF
"NATURAL-BORN" OR "NATURALIZED")
NATURAL-BORN
xxx xxx xxx
10. I AM A REGISTERED VOTER OF PRECINCT
NO. 747-A, BARANGAY SAN LORENZO,
CITY/MUNICIPALITY OF MAKATI, PROVINCE
OF NCR.
11. I AM NOT A PERMANENT RESIDENT OF,
OR IMMIGRANT TO, A FOREIGN COUNTRY.
12. I AM ELIGIBLE FOR THE OFFICE I SEEK TO
BE ELECTED. I WILL SUPPORT AND DEFEND
THE CONSTITUTION OF THE PHILIPPINES
AND WILL MAINTAIN TRUE FAITH AND
ALLEGIANCE THERETO; THAT I WILL OBEY
THE LAWS, LEGAL ORDERS AND DECREES
PROMULGATED BY THE DULY CONSTITUTED
AUTHORITIES OF THE REPUBLIC OF THE
PHILIPPINES; AND THAT I IMPOSE THIS
OBLIGATION UPON MYSELF VOLUNTARILY,
WITHOUT MENTAL RESERVATION OR
PURPOSE OF EVASION. I HEREBY CERTIFY
THAT THE FACTS STATED HEREIN ARE TRUE
AND CORRECT OF MY OWN PERSONAL
KNOWLEDGE.
The filing of such certificate of candidacy sufficed to renounce his
American citizenship, effectively removing any disqualification he
might have as a dual citizen. Thus, in Frivaldo v. COMELEC it was
held: 17
It is not disputed that on January 20, 1983 Frivaldo
became an American. Would the retroactivity of
his repatriation not effectively give him dual
citizenship, which under Sec. 40 of the Local
Government Code would disqualify him "from
running for any elective local position?" We
answer this question in the negative, as there is
cogent reason to hold that Frivaldo was really
STATELESS at the time he took said oath of
allegiance and even before that, when he ran for
governor in 1988. In his Comment, Frivaldo wrote
that he "had long renounced and had long
abandoned his American citizenship long
before May 8, 1995. At best, Frivaldo was
stateless in the interim when he abandoned
and renounced his US citizenship but before he
was repatriated to his Filipino citizenship."
On this point, we quote from the assailed
Resolution dated December 19, 1995:
By the laws of the
United States,
petitioner Frivaldo
lost his American
citizenship when he
took his oath of
allegiance to the
Philippine
Government when he
ran for Governor in
1988, in 1992, and in
1995. Every
certificate of
candidacy contains an
oath of allegiance to
the Philippine
Government.
These factual findings that Frivaldo has lost
his foreign nationality long before the
elections of 1995 have not been effectively
rebutted by Lee. Furthermore, it is basic
that such findings of the Commission are
conclusive upon this Court, absent any
showing of capriciousness or arbitrariness
or abuse.
There is, therefore, no merit in petitioner's contention that the
oath of allegiance contained in private respondent's certificate of
candidacy is insufficient to constitute renunciation that, to be
effective, such renunciation should have been made upon private
respondent reaching the age of majority since no law requires the
election of Philippine citizenship to be made upon majority age.
Finally, much is made of the fact that private respondent
admitted that he is registered as an American citizen in the
Bureau of Immigration and Deportation and that he holds an
American passport which he used in his last travel to the United
States on April 22, 1997. There is no merit in this. Until the filing
of his certificate of candidacy on March 21, 1998, he had dual
citizenship. The acts attributed to him can be considered simply as
the assertion of his American nationality before the termination
of his American citizenship. What this Court said in Aznar
v.COMELEC 18 applies mutatis mundatis to private respondent in
the case at bar:
. . . Considering the fact that admittedly
Osmea was both a Filipino and an
American, the mere fact that he has a
Certificate staring he is an American does
not mean that he is not still a Filipino. . . .
[T]he Certification that he is an American
does not mean that he is not still a Filipino,
possessed as he is, of both nationalities or
citizenships. Indeed, there is no express
 renunciation here of Philippine citizenship;
truth to tell, there is even no implied
renunciation of said citizenship. When We
consider that the renunciation needed to
lose Philippine citizenship must be
"express," it stands to reason that there can
be no such loss of Philippine citizenship
when there is no renunciation, either
"express" or "implied."

To recapitulate, by declaring in his certificate of candidacy that he

is a Filipino citizen; that he is not a permanent resident or
immigrant of another country; that he will defend and support the
Constitution of the Philippines and bear true faith and allegiance
thereto and that he does so without mental reservation, private
respondent has, as far as the laws of this country are concerned,
effectively repudiated his American citizenship and anything
which he may have said before as a dual citizen.

On the other hand, private respondent's oath of allegiance to the

Philippines, when considered with the fact that he has spent his
youth and adulthood, received his education, practiced his
profession as an artist, and taken part in past elections in this
country, leaves no doubt of his election of Philippine citizenship.

His declarations will be taken upon the faith that he will fulfill his
undertaking made under oath. Should he betray that trust, there
are enough sanctions for declaring the loss of his Philippine
citizenship through expatriation in appropriate proceedings. In Yu
v. Defensor-Santiago, 19 we sustained the denial of entry into the
country of petitioner on the ground that, after taking his oath as a
naturalized citizen, he applied for the renewal of his Portuguese
passport and declared in commercial documents executed abroad
that he was a Portuguese national. A similar sanction can be taken
against any one who, in electing Philippine citizenship, renounces
his foreign nationality, but subsequently does some act
constituting renunciation of his Philippine citizenship.

WHEREFORE, the petition for certiorari is DISMISSED for lack of

merit.1wphi1.nt

SO ORDERED.
G.R. No. 137329 August 9, 2000
ROGELIO M. TORAYNO SR., GENEROSO ELIGAN and JACQUELINE
M. SERIO, petitioners,
vs.
COMMISSION ON ELECTIONS and VICENTE Y.
EMANO, respondents.
DECISION
PANGANIBAN, J.:
The Constitution and the law requires residence as a qualification
for seeking and holding elective public office, in order to give
candidates the opportunity to be familiar with the needs,
difficulties, aspirations, potentials for growth and all matters vital
to the welfare of their constituencies; likewise, it enables the
electorate to evaluate the office seekers' qualifications and fitness
for the job they aspire for. Inasmuch as Vicente Y. Emano has
proven that he, together with his family, (1) had actually resided
in a house he bought in 1973 in Cagayan de Oro City; (2) had
actually held office there during his three terms as provincial
governor of Misamis Oriental, the provincial capitol being located
therein; and (3) has registered as voter in the city during the
period required by law, he could not be deemed "a stranger or
newcomer" when he ran for and was overwhelmingly voted as
city mayor. Election laws must be liberally construed to give effect
to the popular mandate.
The Case
Before us is a Petition for Certiorari under Rule 65 of the Rules of
Court seeking to set aside the January 18, 1999 Resolution1 of the
Commission on Elections (Comelec) en banc in SPA No. 98-298,
which upheld the July 14, 1998 Resolution2 of the Comelec First
Division. The assailed Resolutions ruled that Private Respondent
Vicente Y. Emano possessed the minimum period of residence to
be eligible to vote in Cagayan de Oro City, as well as be voted
mayor thereof.
The Facts
The pertinent facts of the case, as culled from the records, are as
follows.
During the 1995 elections, Vicente Y. Emano ran for, was elected,
and proclaimed provincial governor of Misamis Oriental. It was his
third consecutive term as governor of the province. In his
Certificate of Candidacy dated March 12, 1995, his residence was
declared to be in Tagoloan, Misamis Oriental.
On June 14, 1997, while still the governor of Misamis Oriental,
Emano executed a Voter Registration Record in Cagayan de Oro
City (geographically located in the Province of Misamis Oriental), a
highly urbanized city, in which he claimed 20 years of residence.
On March 25, 1998, he filed his Certificate of Candidacy for mayor
of the city, stating therein that his residence for the preceding
two years and five months was at 1409 San Jose Street,
Capistrano Subdivision, Gusa, Cagayan de Oro City.
Among those who ran for the mayorship of the city in 1998, along
with Emano, was Erasmo B. Damasing, counsel of herein
petitioners. On May 15, 1998, Petitioners Rogelio M. Torayno Sr.,
Generoso Q. Eligan and Jacqueline M. Serio, all residents of
Cagayan de Oro City, filed a Petition before the Comelec,
docketed as SPA No. 98-298, in which they sought the
disqualification of Emano as mayoral candidate, on the ground
that he had allegedly failed to meet the one-year residence
requirement. Prior to the resolution of their Petition, the Comelec
proclaimed private respondent as the duly elected city mayor.
Thus, on May 29, 1998, petitioners filed another Petition before
the Comelec, this time for quo warranto,3 in which they sought
(1) the annulment of the election of private respondent; and (2)
the proclamation of Erasmo B. Damasing, who had garnered the
next highest number of votes, as the duly elected mayor of the
city.
In its Resolution dated July 14, 1998, the Comelec First Division
denied the Petition for Disqualification. Upon petitioners' Motion
for Reconsideration and Motion for Consolidation, the two cases
were consolidated.4
Ruling of the Comelec
As earlier stated, the Comelec en banc upheld the findings and
conclusions of the First Division, holding that "[t]he records clearly
show that the respondent is an actual resident of Cagayan de Oro
City for such a period of time necessary to qualify him to run for
mayor therein. This fact is clearly established by the respondent
having a house in the city which has been existing therein since
1973 and where his family has been living since then."
Additionally, it ruled:
"There is nothing in the law which bars an elected provincial
official from residing and/or registering as a voter in a highly
urbanized city whose residents are not given the right to vote for
and be elected to a position in the province embracing such highly
urbanized city as long as he has complied with the requirements
prescribed by law in the case of a qualified voter.
"Neither can the list of voters submitted as evidence for the
petitioners showing that the respondent was a registered voter as
of March 13, 1995 in Precinct No. 12, Barangay Poblacion,
Tagoloan, Misamis Oriental bolster the petitioner's argument that
the respondent is not a resident [or a] registered voter in Cagayan
de Oro City since registration in said Precinct No. 12 does not
preclude the respondent from registering anew in another place."
Hence, this recourse5 before this Court.
Issues
In their Memorandum,6 petitioners submit that the main issue is
whether the "Comelec gravely abused its discretion amounting to
lack of jurisdiction in issuing the questioned Resolutions."
Allegedly, the resolution of this issue would depend on the
following:7
"1. Whether or not private respondent Emano's
(a) remaining as governor of Misamis
Oriental until he filed his certificate of
candidacy for mayor of Cagayan de Oro City
on March 25, 1998 in the May 11, 1998
election;
(b) asserting under oath [that he was]
qualified to act as governor of said province
until said date; and
(c) admitting, in sworn statements, [that he
was] a resident of Misamis Oriental,
precluded him from acquiring a bona fide domicile of
choice for at least one (1) year in Cagayan de Oro City
prior to the May 11, 1998 elections, as to disqualify
him for being a candidate for city mayor of said City.
2. Differently stated, whether or not Emano's securing
a residence certificate in Cagayan de Oro City, holding
offices as governor of Misamis Oriental in the Capitol
Building located in Cagayan de Oro City and having a
house therein where [he had] stay[ed] during his
tenure as governor, and registering as a voter in said
City in June 1997, would be legally sufficient, as against
the undisputed facts above enumerated, to constitute
a change of his domicile of birth in Tagoloan, Misamis
Oriental in favor of a new domicile of choice in
Cagayan de Oro City for at least one (1) year for
purposes of qualifying him to run for city mayor in the
May 11, 1998 elections.
 3. Whether or not Erasmo Damasing, the candidate for
mayor of Cagayan de Oro City in the May 11, 1998
elections, who received the second highest number of
votes, can be declared winner, considering that
respondent Emano was disqualified to run for and hold
said office and considering that his disqualification or
ineligibility had been extensively brought to the
attention and consciousness of the voters prior to the
May 11, 1998 election as to attain notoriety,
notwithstanding which they still voted for him."
Petitioners are seeking the resolution of essentially two
questions: (1) whether private respondent had duly established
his residence in Cagayan de Oro City at least one year prior to the
May 11, 1998 elections to qualify him to run for the mayorship
thereof; and (2) if not, whether Erasmo Damasing, the candidate
who had received the second highest number of votes, should be
proclaimed mayor of the city.
The Courts Ruling
The Petition has no merit.
Preliminary Matter: Locus Standi of Petitioners
Although not raised by the parties, the legal standing of the
petitioners was deliberated upon by the Court. We note that
petitioners pray, among others, for judgment "declaring Atty.
Erasmo B. Damasing as entitled to be proclaimed winner as mayor
in the May 11, 1998 elections in Cagayan de Oro City."8 And yet,
Damasing is not a party to the instant "Petition
for Certiorari pursuant to Rule[s] 64 and 65" brought before us.
Under the Rules of Court, a quo warranto may be brought only by
(1) the solicitor general or (2) a public prosecutor or (3) a person
claiming to be entitled to the public office or position usurped or
unlawfully held or exercised by another.9 A reading of the Rules
shows that petitioners, none of whom qualify under any of the
above three categories, are without legal standing to bring this
suit.
However, the present Petition finds its root in two separate cases
filed before the Comelec: (1) SPC 98-298 for disqualification and
(2) EPC 98-62 for quo warranto. Under our election laws and the
Comelec Rules of Procedure, any voter may file a petition to
disqualify a candidate on grounds provided by law,10 or to
contest the election of a city officer on the ground of ineligibility
or disloyalty to the Republic.11 The petitioners herein, being
"duly-registered voters" of Cagayan de Oro City, therefore satisfy
the requirement of said laws and rules.12
Main Issue: Residence Qualification for Candidacy
Petitioners argue that private respondent maintains his domicile
in Tagoloan, Misamis Oriental, not in Cagayan de Oro City, as
allegedly shown by the following facts: (1) he had run and won as
governor of the province of Misamis Oriental for three
consecutive terms immediately preceding the 1998 elections; (2)
in the pleadings he filed in connection with an election protest
against him relating to the 1995 election, he had stated that he
was a resident of Tagoloan, Misamis Oriental; (3) he had fully
exercised the powers and prerogatives of governor until he filed
his Certificate of Candidacy for mayor on March 25, 1998.
Petitioners claim that in discharging his duties as provincial
governor, private respondent remained a resident of the
province. They aver that residence is a continuing qualification
that an elective official must possess throughout his term. Thus,
private respondent could not have changed his residence to
Cagayan de Oro City while he was still governor of Misamis
Oriental.
Petitioners further contend that the following were not sufficient
to constitute a change of domicile: having a house in Cagayan de
Oro City, residing therein while exercising one's office as governor
(the city being the seat of government of the province), securing a
residence certificate and registering as voter therein.
Private respondent, on the other hand, alleges that he actually
and physically resided in Cagayan de Oro City while serving as
provincial governor for three consecutive terms, since the seat of
the provincial government was located at the heart of that
city.13 He also avers that one's choice of domicile is a matter of
intention, and it is the person concerned who would be in the
best position to make a choice. In this case, Emano decided to
adopt Cagayan de Oro City as his place of residence after the May
1995 elections. In fact, in January 1997, he secured his
Community Tax Certificate at the City Treasurer's Office, stating
therein that he was a resident of 1409 San Jose Street, Capistrano
Subdivision, Gusa, Cagayan de Oro City. During the general
registration of voters in June 1997, he registered in one of the
precincts of Gusa, Cagayan de Oro City. This meant that, at the
time, Emano had been a voter of the city for the minimum period
required by law. No one has ever challenged this fact before any
tribunal.
Private respondent contends further that his transfer of legal
residence did not ipso facto divest him of his position as provincial
governor. First, there is no law that prevents an elected official
from transferring residence while in office. Second, an elective
official's transfer of residence does not prevent the performance
of that official's duties, especially in private respondent's case in
which the seat of government became his adopted place of
residence.Third, as ruled in Frivaldo v. Comelec,14 the loss of any
of the required qualifications for election merely renders the
official's title or right to office open to challenge. In Emano's case,
no one challenged his right to the Office of Provincial Governor
when he transferred his residence to Cagayan de Oro City.
Naturally, he continued to discharge his functions as such, until he
filed his candidacy for mayor in March 1998.
Lastly, Emano urges that the sanctity of the people's will, as
expressed in the election result, must be respected. He is not,
after all, a stranger to the city, much less to its voters. During his
three terms as governor of Misamis Oriental, his life and
actuations have been closely interwoven with the pulse and beat
of Cagayan de Oro City.
Public Respondent Comelec relies essentially on Romualdez-
Marcos v. Comelec15 in its Memorandum16 which supports the
assailed Resolutions, and which has been filed in view of the
solicitor general's Manifestation and Motion in Lieu of
Comment.17 Thus, the poll body argues that "x x x the fact of
residence x x x ought to be decisive in determining whether or not
an individual has satisfied the Constitution's residency
qualification requirement."
Law on Qualifications of Local Elective Officials
The pertinent provision sought to be enforced is Section 39 of the
Local Government Code (LGC) of 1991,18which provides for the
qualifications of local elective officials, as follows:
"SEC. 39. Qualifications. - (a) An elective local official must be a
citizen of the Philippines; a registered voter in the barangay,
municipality, city, or province x x x where he intends to be
elected; a resident therein for at least one (1) year immediately
preceding the day of the election; and able to read and write
Filipino or any other local language or dialect."
Generally, in requiring candidates to have a minimum period of
residence in the area in which they seek to be elected, the
Constitution or the law intends to prevent the possibility of a
"stranger or newcomer unacquainted with the conditions and
needs of a community and not identified with the latter from
[seeking] an elective office to serve that community."19 Such
provision is aimed at excluding outsiders "from taking advantage
of favorable circumstances existing in that community for
electoral gain."20 Establishing residence in a community merely
to meet an election law requirement defeats the purpose of
representation: to elect through the assent of voters those most
cognizant and sensitive to the needs of the community. This
purpose is "best met by individuals who have either had actual
residence in the area for a given period or who have been
domiciled in the same area either by origin or by choice."21
Facts Showing Change of Residence
In the recent en banc case Mamba-Perez v. Comelec,22 this Court
ruled that private respondent therein, now Representative
Rodolfo E. Aguinaldo of the Third District of Cagayan, had duly
proven his change of residence from Gattaran, Cagayan (part of
the First District) to Tuguegarao, Cagayan (part of the Third
District in which he sought election as congressman). He proved it
with the following facts: (1) in July 1990, he leased and lived in a
residential apartment in Magallanes Street, Tuguegarao, Cagayan;
(2) in July 1995, he leased another residential apartment in
Kamias Street, Tanza, Tuguegarao, Cagayan; (3) the January 18,
1998 Certificate of Marriage between Aguinaldo and his second
wife, Lerma Dumaguit; (4) the Certificate of Live Birth of his
second daughter; and (5) various letters addressed to him and his
family showed that he had been a resident of Tuguegarao for at
least one year immediately preceding the May 1998 elections.
The Court also stated that it was not "of much importance that in
his [Aguinaldo's] certificates of candidacy for provincial governor
in the elections of 1988, 1992, and 1995, private respondent
stated that he was a resident of Gattaran."23
In the case at bar, the Comelec found that private respondent and
his family had actually been residing in Capistrano Subdivision,
Gusa, Cagayan de Oro City, in a house he had bought in 1973.
Furthermore, during the three terms (1988-1998) that he was
governor of Misamis Oriental, he physically lived in that city,
where the seat of the provincial government was located. In June
1997, he also registered as voter of the same city. Based on our
ruling in Mamba-Perez, these facts indubitably prove that Vicente
Y. Emano was a resident of Cagayan de Oro City for a period of
time sufficient to qualify him to run for public office therein.
Moreover, the Comelec did not find any bad faith on the part of
Emano in his choice of residence.
Petitioners put much emphasis on the fact that Cagayan de Oro
City is a highly urbanized city whose voters cannot participate in
the provincial elections. Such political subdivisions and voting
restrictions, however, are simply for the purpose of parity in
representation. The classification of an area as a highly urbanized
or independent component city, for that matter, does not
completely isolate its residents, politics, commerce and other
businesses from the entire province -- and vice versa -- especially
when the city is located at the very heart of the province itself, as
in this case.
Undeniably, Cagayan de Oro City was once an integral part of
Misamis Oriental and remains a geographical part of the province.
Not only is it at the center of the province; more important, it is
itself the seat of the provincial government. As a consequence,
the provincial officials who carry out their functions in the city
cannot avoid residing therein; much less, getting acquainted with
its concerns and interests. Vicente Y. Emano, having been the
governor of Misamis Oriental for three terms and consequently enough to show his intention to fulfill the duties of mayor and for
residing in Cagayan de Oro City within that period, could not be the voters to evaluate his qualifications for the mayorship.
said to be a stranger or newcomer to the city in the last year of his Petitioners' very legalistic, academic and technical approach to
third term, when he decided to adopt it as his permanent place of the residence requirement does not satisfy this simple, practical
residence. and common-sense rationale for the residence requirement.
Significantly, the Court also declared in Mamba-Perez that Interpretation to Favor Popular Mandate
"although private respondent declared in his certificates of
candidacy prior to the May 11, 1998 elections that he was a
There is no question that private respondent was the
resident of Gattaran, Cagayan, the fact is that he was actually a
overwhelming choice of the people of Cagayan de Oro
resident of the Third District not just for one (1) year prior to the
City.1wphi1 He won by a margin of about 30,000 votes.24 Thus,
May 11, 1998 elections but for more than seven (7) years since
we find it apt to reiterate the principle that the manifest will of
July 1990. His claim that he ha[s] been a resident of Tuguegarao
the people as expressed through the ballot must be given fullest
since July 1990 is credible considering that he was governor from
effect. In case of doubt, political laws must be interpreted to give
1988 to 1998 and, therefore, it would be convenient for him to
life and spirit to the popular mandate.25 Verily, in Frivaldo v.
maintain his residence in Tuguegarao, which is the capital of the
Comelec,26 the Court held:
province of Cagayan."
"x x x [T]his Court has repeatedly stressed the importance of
Similarly in the instant case, private respondent was actually and
giving effect to the sovereign will in order to ensure the survival of
physically residing in Cagayan de Oro City while discharging his
our democracy. In any action involving the possibility of a reversal
duties as governor of Misamis Oriental. He owned a house in the
of the popular electoral choice, this Court must exert utmost
city and resided there together with his family. He even paid his
effort to resolve the issues in a manner that would give effect to
1998 community tax and registered as a voter therein. To all
the will of the majority, for it is merely sound public policy to
intents and purposes of the Constitution and the law, he is a
cause elective offices to be filled by those who are the choice of
resident of Cagayan de Oro City and eligible to run for mayor
the majority. To successfully challenge a winning candidate's
thereof.
qualifications, the petitioner must clearly demonstrate that the
ineligibility is so patently antagonistic to constitutional and legal
To petitioners' argument that Emano could not have continued to principles that overriding such ineligibility and thereby giving
qualify as provincial governor if he was indeed a resident of effect to the apparent will of the people would ultimately create
Cagayan de Oro City, we respond that the issue before this Court greater prejudice to the very democratic institutions and juristic
is whether Emano's residence in the city qualifies him to run for traditions that our Constitution and laws so zealously protect and
and be elected as mayor, not whether he could have continued promote."
sitting as governor of the province. There was no challenge to his
eligibility to continue running the province; hence, this Court
In the same vein, we stated in Alberto v. Comelec27 that "election
cannot make any pronouncement on such issue. Considerations of
cases involve public interest; thus, laws governing election
due process prevent us from adjudging matters not properly
contests must be liberally construed to the end that the will of the
brought to us. On the basis, however, of the facts proven before
people in the choice of public officials may not be defeated by
the Comelec, we hold that he has satisfied the residence
mere technical objections."
qualification required by law for the mayorship of the city.
Indeed, "it would be far better to err in favor of popular
We stress that the residence requirement is rooted in the desire
sovereignty than to be right in complex but little understood
that officials of districts or localities be acquainted not only with
legalisms."28
the metes and bounds of their constituencies but, more
important, with the constituents themselves -- their needs,
In sum, we hold that Respondent Comelec cannot be faulted with
difficulties, aspirations, potentials for growth and development,
and all matters vital to their common welfare. The requisite abuse, much less grave abuse, of discretion in upholding private
period would give candidates the opportunity to be familiar with respondent's election.
their desired constituencies, and likewise for the electorate to
evaluate the former's qualifications and fitness for the offices they Corollary Issue: Effect of Disqualification of Winner on Second
seek. Placer
In other words, the actual, physical and personal presence of
herein private respondent in Cagayan de Oro City is substantial
With the resolution of the first issue in the positive, it is obvious
that the second one posited by petitioners has become academic
and need not be ruled upon.

WHEREFORE, the Petition is DISMISSED and the assailed Comelec

Resolutions AFFIRMED. Costs against petitioners.

SO ORDERED.
G.R. No. 207900 April 22, 2014
MAYOR GAMAL S. HAYUDINI, Petitioner,
vs.
COMMISSION ON ELECTIONS and MUSTAPHA J.
OMAR, Respondents.
DECISION
PERALTA, J.:
For the Court's resolution is a Petition for Certiorari and
Prohibition1 under Rule 65, which petitioner Gamal S. Hayudini
(Hayudini) filed to set aside and annul the assailed Resolutions of
the Commission on Elections (COMELEC), dated June 20,
20132 and July 10, 2013,3 which cancelled his Certificate of
Candidacy for the mayoralty seat in the 2013 local elections in
South Ubian, Tawi-Tawi, for having been issued with grave abuse
of discretion amounting to lack or in excess of jurisdiction.
The antecedent facts are:
On October 5, 2012, Hayudini filed his Certificate of
Candidacy4 (CoC) for the position of Municipal Mayor of South
Ubian, Tawi-Tawi in the May 13, 2013 National and Local Elections
held in the Autonomous Region in Muslim Mindanao. Ten days
after, or on October 15, 2012, Mustapha J. Omar (Omar) filed a
Petition to Deny Due Course or Cancel Hayudinis CoC, entitled
Mustapha J. Omar v. Gamal S. Hayudini, docketed as SPA No. 13-
106(DC)(F).5 Omar basically asserted that Hayudini should be
disqualified for making false representation regarding his
residence. He claimed that Hayudini declared in his CoC that he is
a resident of the Municipality of South Ubian when, in fact, he
resides in Zamboanga City.
Thereafter, on November 30, 2012, Hayudini filed a Petition for
Inclusion in the Permanent List of Voters in Barangay Bintawlan,
South Ubian before the Municipal Circuit Trial Court (MCTC).
Despite the opposition of Ignacio Aguilar Baki, the MCTC granted
Hayudinis petition on January 31, 2013.6 On that same day, the
COMELECs First Division dismissed7 Omars earlier petition to
cancel Hayudinis CoC in SPA No. 13-106(DC)(F) for lack of
substantial evidence that Hayudini committed false
representation as to his residency.
Oppositor Baki, subsequently, elevated the case to the Bongao
Regional Trial Court (RTC), Branch 5. The RTC, on March 8, 2013,
Reversed8 the MCTC ruling and ordered the deletion of Hayudinis
name in Barangay Bintawlans permanent list of voters. In view of
said decision, Omar filed before the COMELEC a Petition to Cancel
the Certificate of Candidacy of Gamal S. Hayudini by Virtue of a
Supervening Event on March 26, 2013. The petition was docketed "Ergo, since respondent Lonzanida was never a candidate for the
as SPA No. 13-249(DC)(F).9 Hayudini appealed the March 8, 2013 position of mayor [of] San Antonio, Zambales, the votes cast for
RTC decision to the Court of Appeals (CA), but on April 17, 2013, him should be considered stray votes. Consequently, Intervenor
in CA-G.R. SP No. 05426,10 the same was denied. Antipolo, who remains as the sole candidate for the mayoralty
post and obtained the highest number of votes, should now be
proclaimed as the duly-elected Mayor of San Antonio, Zambales.
On May 13, 2013, Hayudini won the mayoralty race in South
Ubian, Tawi-Tawi. He was proclaimed and, consequently, took his
oath of office. Lonzanida's certificate of candidacy was cancelled, because he
was ineligible or not qualified to run for Mayor. Whether his
certificate of candidacy is cancelled before or after elections is
On June 20, 2013, the COMELEC Second Division issued a
immaterial because the cancellation on such ground means he
Resolution11 granting Omars second petition to cancel
was never a candidate from the very beginning, his certificate of
Hayudinis CoC. The dispositive portion of the COMELEC
candidacy being void ab initio. There was only one qualified
Resolution reads:
candidate for Mayor in the May 2010 elections - Antipolo, who
therefore received the highest number of votes."
WHEREFORE, premises considered, the instant petition is hereby
GRANTED. Accordingly, the Certificate of Candidacy filed by Gamal
The Office of the Deputy Executive Director for Operations is
S. Hayudini as Mayor of South Ubian, Tawi-Tawi, in the 13 May
hereby directed to constitute a Special Board of Canvassers for
2013 elections, is hereby CANCELLED.
the purpose of proclaiming SALMA OMAR as the winning
candidate for mayoralty position in South Ubian, Tawi-Tawi during
The Office of the Deputy Executive Director for Operations is the May 13, 2013 elections.
hereby directed to constitute a Special Board of Canvassers for
the purpose of proclaiming the lawful winner for mayoralty
SO ORDERED.14
position in South Ubian, Tawi-Tawi during the 13 May 2013
elections.
Thus, Hayudini filed the instant petition for certiorari and
prohibition.
SO ORDERED.12
Hayudini mainly advances the following arguments:
Hayudini, thus, filed a Motion for Reconsideration with the
COMELEC En Banc, arguing that its Second Division committed
grave error when it gave due course to a belatedly filed petition A.
and treated the March 8, 2013 RTC Decision as a supervening
event.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
On July 10, 2013, the COMELEC En Banc denied Hayudinis Motion JURISDICTION WHEN IT FAILED TO OUTRIGHTLY DISMISS THE
for Reconsideration for lack of merit. The decretal portion of the INSTANT PETITION TO CANCEL CERTIFICATE OF CANDIDACY DUE
En Bancs assailed Resolution states: TO SUPERVENING EVENT (SPA. NO. 13-249(DC)(F), DESPITE THE
FAILURE OF RESPONDENT OMAR TO COMPLY WITH THE
MANDATORY REQUIREMENTS OF SECTIONS 2 AND 4 OF THE
WHEREFORE, premises considered, the Commission RESOLVED, as
COMELEC RESOLUTION NO. 9532.
it hereby RESOLVES to DENY this Motion for Reconsideration for
LACK OF MERIT. Consequently, the June 20, 2013 Resolution of
the Commission (Second Division) is hereby affirmed. xxxx
Corollary thereto, the proclamation of respondent GAMAL S. C.
HAYUDINI is hereby declared null and void and without any legal
force and effect. SALMA A. OMAR is hereby proclaimed as the
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
duly-elected Mayor for South Ubian, Tawi-Tawi, being the
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
qualified candidate obtaining the highest number of votes,
JURISDICTION WHEN IT REVISITED AND MODIFIED THE FINAL AND
considering the doctrine laid down by the case Aratea v.
EXECUTORY RESOLUTION ISSUED BY THE FIRST DIVISION IN THE
Comelec13 that a cancelled CoC cannot give rise to a valid
SPA NO. 13-106(DC)(F).
candidacy, and much less, to a valid vote, to wit:
III.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT RESOLVED TO CANCEL PETITIONER
HAYUDINIS CERTIFICATE OF CANDIDACY AND DECLARE HIS
PROCLAMATION AS NULL AND VOID.
xxxx
L.
THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR IN EXCESS OF
JURISDICTION WHEN IT DECREED THE PROCLAMATION OF SALMA
A. OMAR AS THE DULY-ELECTED MAYOR FOR SOUTH UBIAN,
TAWI-TAWI.15
The Court finds the petition to be without merit.
A special civil action for certiorari under Rule 65 is an independent
action based on thespecific grounds and available only if there is
no appeal or any other plain, speedy, and adequate remedy in the
ordinary course of law. It will only prosper if grave abuse of
discretion is alleged and is actually proved to exist. Grave abuse of
discretion has been defined as the arbitrary exercise of power due
to passion, prejudice or personal hostility; or the whimsical,
arbitrary, or capricious exercise of power that amounts to an
evasion or refusal to perform a positive duty enjoined by law or to
act at all in contemplation of law. For an act to be condemned as
having been done with grave abuse of discretion, such an abuse
must be patent and gross.16 Here, Hayudini miserably failed to
prove that the COMELEC rendered its assailed Resolutions with
grave abuse of discretion.
Hayudini contends that the COMELEC committed grave abuse of
discretion when it admitted, and later granted, Omars petition
despite failure to comply with Sections 2 and 4 of Rule 23 of the
COMELEC Rules of Procedure, as amended by Resolution No.
9523. The subject sections read:
Section 2. Period to File Petition. The Petition must be filed
within five (5) days from the last day for filing of certificate of
candidacy; but not later than twenty five (25) days from the time
of filing of the certificate of candidacy subject of the Petition. In
case of a substitute candidate, the Petition must be filed within
five (5) days from the time the substitute candidate filed his
certificate of candidacy.
xxxx
Section 4. Procedure to be observed. Both parties shall observe
the following procedure:
1. The petitioner shall, before filing of the Petition, furnish a copy
of the Petition, through personal service to the respondent. In
cases where personal service is not feasible, or the respondent
refuses to receive the Petition, or the respondents whereabouts
cannot be ascertained, the petitioner shall execute an affidavit
stating the reason or circumstances therefor and resort to
registered mail as a mode of service. The proof of service or the
affidavit shall be attached to the Petition to be filed;17
Here, Hayudini filed his CoC on October 5, 2012, which was also
the last day of filing of CoC for the May 13, 2013 elections. Omar,
on the other hand, filed the subject petition only on March 26,
2013. Under the COMELEC Rules, a Petition to Deny Due Course
or Cancel CoC must be filed within five days from the last day for
filing a certificate of candidacy, but not later than twenty-five
days from the time of filing of the CoC subject of the petition.
Clearly, Omars petition was filed way beyond the prescribed
period. Likewise, he failed to provide sufficient explanation as to
why his petition was not served personally to Hayudini.
Notwithstanding the aforementioned procedural missteps, the
Court sustains the COMELECs liberal treatment of Omars
petition.
As a general rule, statutes providing for election contests are to
be liberally construed in order that the will of the people in the
choice of public officers may not be defeated by mere technical
objections. Moreover, it is neither fair nor just to keep in office,
for an indefinite period, one whose right to it is uncertain and
under suspicion. It is imperative that his claim be immediately
cleared, not only for the benefit of the winner but for the sake of
public interest, which can only be achieved by brushing aside
technicalities of procedure that protract and delay the trial of an
ordinary action. This principle was reiterated in the cases of
Tolentino v. Commission on Elections18 and De Castro v.
Commission on Elections,19 where the Court held that "in
exercising its powers and jurisdiction, as defined by its mandate to
protect the integrity of elections, the COMELEC must not be
straitjacketed by procedural rules in resolving election
disputes."20
Settled is the rule that the COMELEC Rules of Procedure are
subject to liberal construction.1wphi1 The COMELEC has the
power to liberally interpret or even suspend its rules of procedure
in the interest of justice, including obtaining a speedy disposition
of all matters pending before it. This liberality is for the purpose
of promoting the effective and efficient implementation of its
objectives ensuring the holding of free, orderly, honest,
peaceful, and credible elections, as well as achieving just,
expeditious, and inexpensive determination and disposition of
every action and proceeding brought before the COMELEC. Unlike
an ordinary civil action, an election contest is imbued with public
interest. It involves not only the adjudication of private and
pecuniary interests of rival candidates, but also the paramount
need of dispelling the uncertainty which beclouds the real choice
of the electorate. And the tribunal has the corresponding duty to
ascertain, by all means within its command, whom the people
truly chose as their rightful leader.21
Indeed, Omar had previously filed a Petition to Deny Due Course
or Cancel Hayudinis CoC on October 15, 2012, docketed as SPA
No. 13-106(DC)(F). This was dismissed on January 31, 2013, or the
same day the MCTC granted Hayudinis petition to be included in
the list of voters. However, on March 8, 2013, the RTC reversed
the MCTC ruling and, consequently, ordered the deletion of
Hayudinis name in Barangay Bintawlans permanent list of voters.
Said deletion was already final and executory under the
law.22 Hayudini, however, still appealed the case to the CA, which
was subsequently denied. Notably, thereafter, he went to the CA
again, this time to file a petition for certiorari, docketed as CA-
G.R. SP No. 05499.23 In a Resolution dated July 9, 2013, the CA
also denied said petition primarily because of Hayudinis act of
engaging in the pernicious practice of forum shopping by filing
two modes of appeal before said court.24 Hence, by virtue of the
finality of said RTC decision deleting his name from the voters list,
Hayudini, who had been previously qualified under the law25 to
run for an elective position, was then rendered ineligible.
Given the finality of the RTC decision, the same should be
considered a valid supervening event. A supervening event refers
to facts and events transpiring after the judgment or order had
become executory. These circumstances affect or change the
substance of the judgment and render its execution
inequitable.26 Here, the RTCs March 8, 2013 decision, ordering
the deletion of Hayudinis name in the list of voters, which came
after the dismissal of Omars first petition, is indubitably a
supervening event which would render the execution of the ruling
in SPA No. 13-106(DC)(F) iniquitous and unjust. As the COMELEC
aptly ruled, the decision to exclude Hayudini was still non-existent
when the COMELEC first promulgated the Resolution in SPA No.
13-106(DC)(F) on January 31, 2013, or when the issues involved
therein were passed upon.27 The First Division even expressed
that although the Election Registration Board (ERB) denied
Hayudinis application for registration, it could not adopt the
same because it was not yet final as Hayudini was still to file a
Petition for Inclusion before the MCTC.28 Thus, it is not far-
fetched to say that had this final RTC finding been existent before,
the COMELEC First Division could have taken judicial notice of it
and issued a substantially different ruling in SPA No. 13-
106(DC)(F).29
The same ruling adequately equipped Omar with the necessary
ground to successfully have Hayudinis CoC struck down. Under
the rules, a statement in a certificate of candidacy claiming that a
candidate is eligible to run for public office when in truth he is
not, is a false material representation, a ground for a petition
under Section 78 of the Omnibus Election Code.
Sections 74 and 78 read:
Sec. 74. Contents of certificate of candidacy. The certificate of
candidacy shall state that the person filing it is announcing his
candidacy for the office stated therein and that he is eligible for
said office; if for Member of the Batasang Pambansa, the
province, including its component cities, highly urbanized city or
district or sector which he seeks to represent; the political party
to which he belongs; civil status; his date of birth; residence; his
post office address for all election purposes; his profession or
occupation; that he will support and defend the Constitution of
the Philippines and will maintain true faith and allegiance thereto;
that he will obey the laws, legal orders, and decrees promulgated
by the duly constituted authorities; that he is not a permanent
resident or immigrant to a foreign country; that the obligation
imposed by his oath is assumed voluntarily, without mental
reservation or purpose of evasion; and that the facts stated in the
certificate of candidacy are true to the best of his knowledge.
xxxx
Sec. 78. Petition to deny due course to or cancel a certificate of
candidacy. A verified petition seeking to deny due course or to
cancel a certificate of candidacy may be filed by the person
exclusively on the ground that any material representation
contained therein as required under Section 74 hereof is false.
The petition may be filed at any time not later than twenty-five
days from the time of the filing of the certificate of candidacy and
shall be decided, after due notice and hearing, not later than
fifteen days before the election.
The false representation mentioned in these provisions must
pertain to a material fact, not to a mere innocuous mistake. A
candidate who falsifies a material fact cannot run; if he runs and is
elected, cannot serve; in both cases, he or she can be prosecuted
for violation of the election laws. These facts pertain to a
candidate's qualification for elective office, such as his or her
citizenship and residence. Similarly, the candidate's status as a
registered voter falls under this classification as it is a legal
requirement which must be reflected in the CoC. The reason for
this is obvious: the candidate, if he or she wins, will work for and
represent the local government under which he or she is
running.30 Even the will of the people, as expressed through the
ballot, cannot cure the vice of ineligibility, especially if they
mistakenly believed, as in the instant case, that the candidate was
qualified.31
Aside from the requirement of materiality, a false representation
under Section 78 must consist of a "deliberate attempt to
mislead, misinform, or hide a fact which would otherwise render a
candidate ineligible." Simply put, it must be made with a malicious
intent to deceive the electorate as to the potential candidate's
qualifications for public office.32
Section 74 requires the candidate to state under oath in his CoC
"that he is eligible for said office." A candidate is eligible if he has
a right to run for the public office. If a candidate is not actually
eligible because he is not a registered voter in the municipality
where he intends to be elected, but still he states under oath in
his certificate of candidacy that he is eligible to run for public
office, then the candidate clearly makes a false material
representation, a ground to support a petition under Section
78.33 It is interesting to note that Hayudini was, in fact, initially
excluded by the ERB as a voter. On November 30, 2012, the ERB
issued a certificate confirming the disapproval of Hayudinis
petition for registration.34 This is precisely the reason why he
needed to file a Petition for Inclusion in the Permanent List of
Voters in Barangay Bintawlan before the MCTC. Thus, when he
stated in his CoC that "he is eligible for said office," Hayudini
made a clear and material misrepresentation as to his eligibility,
because he was not, in fact, registered as a voter in Barangay
Bintawlan.
Had the COMELEC not given due course to Omars petition solely
based on procedural deficiencies, South Ubian would have a
mayor who is not even a registered voter in the locality he is
supposed to govern, thereby creating a ridiculously absurd and
outrageous situation. Hence, the COMELEC was accurate in
cancelling Hayudinis certificate of candidacy. Hayudini likewise
protests that it was a grave error on the part of the COMELEC to
have declared his proclamation null and void when no petition for
annulment of his proclamation was ever filed. What petitioner
seems to miss, however, is that the nullification of his
proclamation as a winning candidate is also a legitimate outcome
a necessary legal consequence of the cancellation of his CoC
pursuant to Section 78. A CoC cancellation proceeding essentially
partakes of the nature of a disqualification case.35 The
cancellation of a CoC essentially renders the votes cast for the
candidate whose certificate of candidacy has been cancelled as
stray votes.36 If the disqualification or CoC cancellation or denial
case is not resolved before the election day, the proceedings shall
continue even after the election and the proclamation of the
winner. Meanwhile, the candidate may be voted for and even be
proclaimed as the winner, but the COMELEC's jurisdiction to deny
due course and cancel his or her CoC continues. This rule likewise
applies even if the candidate facing disqualification has already
taken his oath of office.37 The only exception to this rule is in the
case of congressional and senatorial candidates where the
COMELEC ipso jure loses jurisdiction in favor of either the Senate
or the House of Representatives Electoral Tribunal after the
candidates have been proclaimed, taken the proper oath, and also
assumed office.38
It bears stressing that one of the requirements for a mayoralty
candidate is that he must be a resident of the city or municipality
where he intends to be elected. Thus, under Section 74 of the
Omnibus Election Code, it is required that a candidate must
certify under oath that he is eligible for the public office he seeks
election. In this case, when petitioner stated in his CoC that he is a
resident of Barangay Bintawlan, South Ubian, Tawi Tawi and
eligible for a public office, but it turned out that he was declared
to be a non-resident thereof in a petition for his inclusion in the
list of registered voters, he therefore committed a false
representation in his CoC which pertained to a material fact which
is a ground for the cancellation of his CoC under Section 78 of the
Omnibus Election Code. Petitioner's ineligibility for not being a
resident of the place he sought election is not a ground for a
petition for disqualification, since the grounds enumerated under
Section 6839 of the Omnibus Election Code specifically refer to
the commission of prohibited acts, and possession of a permanent
resident status in a foreign country.
As held in Aratea v. COMELEC,40 which is a case for cancellation
of CoC under Section 78 of the Omnibus Election Code, a
cancelled certificate of candidacy void ab initio cannot give rise to
a valid candidacy, and much less to valid votes. Whether a
certificate of candidacy is cancelled before or after the elections is
immaterial, because the cancellation on such ground means he
was never a candidate from the very beginning, his certificate of
candidacy being void ab initio. We then found that since the
winning mayoralty candidate's certificate of candidacy was void
ab initio, he was never a candidate at all and all his votes were
considered stray votes, and thus, proclaimed the second placer,
the only qualified candidate, who actually garnered the highest
number of votes, for the position of Mayor.
We find the factual mileu of the Aratea case applicable in the
instant case, since this is also a case for a petition to deny due
course or cancel a certificate of candidacy. Since Hayudini was
never a valid candidate for the position of the Municipal Mayor of
South Ubian, Tawi-Tawi, the votes cast for him should be
considered stray votes, Consequently, the COMELEC properly
proclaimed Salma Omar, who garnered the highest number of
votes in the remaining qualified candidates for the mayoralty
post, as the duly-elected Mayor of South Ubian, Tawi Tawi.
Codilla v. De Venecia case has no application in this case, since it
dealt with a petition for disqualification under Section 68 of the
Omnibus Election Code and not a petition to deny due course or
cancel certificate of candidacy under Section 78 which is the case
at bar.
Finally, contrary to Hayudini's belief, the will of the electorate is
still actually respected even when the votes for the ineligible
candidate are disregarded. The votes cast in favor of the ineligible
candidate are not considered at all in determining the winner of
an election for these do not constitute the sole and total
expression of the sovereign voice. On the other hand, those votes
for the eligible and legitimate candidates form an integral part of
said voice, which must equally be given due respect , if not
more.41

WHEREFORE, the petition is DISMISSED. The COMELEC

Resolutions dated June 20, 2013 and July 10, 2013 are hereby
AFFIRMED. No pronouncement as to costs.

SO ORDERED.