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G.R. No. 170093               April 29, 2009

JOSE PEPITO M. AMORES, M.D., Petitioner, vs.CIVIL SERVICE COMMISSION, BOARD OF TRUSTEES OF THE LUNG CENTER OF THE PHILIPPINES, as represented by Hon. MANUEL M. DAYRIT, and FERNANDO A. MELENDRES, M.D., Respondents.

D E C I S I O N

PERALTA, J.:

In this petition for review under Rule 45 of the Rules of Court, petitioner Jose Pepito M. Amores assails the Decision1 of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, as well as its Resolution2 dated September 20, 2005 which denied reconsideration. The assailed Decision affirmed the October 14, 2003 Resolution3 of the Civil Service Commission which, in turn, ordered petitioner’s separation from service as Deputy Director for Hospital Support Services at the Lung Center of the Philippines on account of his lack of the necessary civil service eligibility.

Well established are the facts of the case.

Petitioner Jose Pepito M. Amores was the Deputy Director for Hospital Support Services at the Lung Center of the Philippines (LCP). His civil service career began in 1982 when he was initially engaged at the LCP as a resident physician.4 In the course of his service, he had been promoted to the position of Medical Specialist,5 then to Department Manager,6 and finally to Deputy Director. Dr. Calixto Zaldivar was then the Executive Director of the LCP and when he retired from service in 1999, petitioner was designated as officer-in-charge of the LCP by the Department of Health (DOH) Secretary Alberto Romualdez, Jr.7

Petitioner had taken charge of the LCP in the interim that the DOH selection board was in the process of selecting a new executive director. In the meantime, Dr. Fernando Melendres (Melendres), one of the respondents in this case, was appointed by then President Joseph Estrada as Executive Director of the LCP. Melendres was holding the office of the Deputy Director for Medical Support Services before his appointment as Executive Director, and although petitioner claims that he was not challenging

Melendres’ right to the office, he nevertheless believed that he himself was the rightful person to be appointed as executive director inasmuch as he had top-billed the evaluation results of the DOH Selection Board, with Melendres tailing behind in second place.8

It seems that the controversy started when petitioner and the other doctors and rank-and-file employees at the LCP drafted a manifesto9 which supposedly ventilated their collective dismay and demoralization at Melendres’ appointment and leadership, and at some of his "unjustified and questionable acts" as Executive Director of the LCP. In a nutshell, the said manifesto boldly exposed the alleged anomalous circumstances surrounding Melendres’ appointment; the reassignment of some of the members of the LCP personnel which amounted to demotion in their rank and status; the anomalies in the procurement of property and supplies; his abusive conduct in publicly accusing some of the doctors of having caused the fire that gutted the center in May 1998; in accusing Zaldivar of having entered into anomalous contracts and negotiations with the DPWH relative to certain projects; and in practicing favoritism and nepotism. The tenor of the manifesto even went as far as to be deeply personal as it likewise questioned Melendres’ fitness to act as executive director on the ground of his previous brush with substance abuse and the fact that he could no longer keep his marriage from failing.10

The seriousness of these allegations led the DOH to create a Fact-finding Committee to conduct an investigation.11 But at the proceedings before the said Committee, Melendres filed charges of dishonesty and double compensation against petitioner alleging that the latter had been engaging in the private practice of medicine within the LCP’s premises during official hours.12 At the close of the investigation, the Fact-finding Committee issued a report declaring Melendres guilty of the charges against him.13 As for petitioner, the Committee absolved him of the charge of receiving double compensation, but nevertheless found him guilty of having committed dishonesty by engaging in the private practice of his profession during the hours that he should be engaging in public service in violation of the Civil Service Law.141avvphil.net

Petitioner was caught by surprise when, on August 27, 2002, he received a letter from the LCP Board of Trustees informing him of his separation from service as Deputy Director effective September 30, 2002.15 To the said letter was attached a copy of the Board’s Resolution16 dated August 23, 2002, principally directing petitioner’s termination from service after consultation with the Career Executive Service Board (CES Board).17 Petitioner brought an appeal from the resolution to the Civil Service Commission (CSC).18

Resolving the appeal, the CSC declared that the LCP Board of Trustees had properly and validly separated petitioner from his post as Deputy Director. In its Resolution No. 031050,19 the CSC declined to pass upon the charge of dishonesty on the ground of pre-maturity as the issue had not yet been finally determined in a proper proceeding and the Board had not yet in fact made a definite finding of guilt from which petitioner might as a matter of course appeal.20 However, it pointed out that petitioner’s separation from service was anchored on his lack of a CES eligibility which is required for the position of deputy director and, as such, he enjoyed no security in his tenure.21

Petitioner lodged an Appeal22 with the Court of Appeals. However, it was dismissed and CSC Resolution No. 031050 was affirmed.23

This present petition for review imputes error to the Court of Appeals. First, in missing the fact that petitioner had been denied due process when his separation from office was ordered on a ground not raised before the DOH Fact-finding Committee24 and, second, in failing to appreciate the fact that his rights to equal protection had likewise been violated inasmuch as he was similarly situated with other department managers in the LCP who had no CES eligibility but who, however, had not been separated from service.25 He theorizes that his right to security of tenure had been breached and that he was entitled to remain as deputy director because his promotion to the said position supposedly issued by Zaldivar — which was a recognition of his competence — was permanent in character.26

The LCP, the CSC and the DOH, all represented by the Office of the Solicitor General, and Melendres, are one in asserting that there can be no question as to the validity of petitioner’s removal from office for the basic fact that he enjoyed no security of tenure on account of his lack of eligibility. In his Comment27 on the petition, Melendres capitalizes on the fact that the LCP Board of Trustees arrived at

the resolution to separate petitioner from service upon consultation with the CES Board and the CSC; thus, concludes Melendres, it can only be surmised that the cause for the removal of petitioner from office is actually his lack of eligibility and not his commission of dishonesty. The LCP, for its part, is more to the point. It posits that petitioner’s separation from office did not result from an administrative disciplinary action, but rather from his failure to qualify for the office of Deputy Director on account of lack of eligibility. For their part, the CSC and the DOH characterizes petitioner as a third-level appointee who, again, must be in possession of the corresponding third-level eligibility; but since petitioner has none, then he enjoys no security of tenure and may thus be removed at a moment’s notice even without cause.

There is merit in the arguments of respondents.

What at the outset weighs heavily on petitioner’s case is the fact that the position of Deputy Director for Hospital Support Services at the LCP belongs to the career executive service appointments to which by law require that the appointees possess the corresponding CES eligibility. Petitioner, however, does not profess that at any time he was holding the said position he was able to acquire the required eligibility therefor by taking the CES examinations and, subsequently, conferred such eligibility upon passing the said examinations. In fact, no slightest suggestion can be derived from the records of this case which would tend to show that in his entire tenure at the LCP he, at any given point, had been conferred a CES eligibility. It is thus as much surprising as it is absurd why petitioner, despite the limitations in his qualifications known to him, would insist that he had served as Deputy Director at the LCP in a permanent capacity.

We begin with the precept, firmly established by law and jurisprudence, that a permanent appointment in the civil service is issued to a person who has met the requirements of the position to which the appointment is made in accordance with law and the rules issued pursuant thereto.28 An appointment is permanent where the appointee meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed, and it is temporary where the appointee meets all the requirements for the position except only the appropriate civil service eligibility.29

Under Section 730 of the Civil Service Law,31 positions in the civil service are classified into open career positions, closed career positions and positions in the career service. In turn, positions in the career service are tiered in three levels as follows:

SECTION 8. Classes of Positions in the Career Service. - (1) Classes of positions in the career service appointment to which requires examinations which shall be grouped into three major levels as follows:

(a) The first level shall include the clerical, trades, crafts and custodial service positions which involve non-professional or subprofessional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies;

(b) The second level shall include professional, technical and scientific positions which involve professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to the Division Chief level; and

(c) The third level shall cover positions in the Career Executive Service.

With particular reference to positions in the career executive service (CES), the requisite civil service eligibility is acquired upon passing the CES examinations administered by the CES Board and the subsequent conferment of such eligibility upon passing the examinations.32 Once a person acquires eligibility, he either earns the status of a permanent appointee to the CES position to which he has previously been appointed, or he becomes qualified for a permanent appointment to that position provided only that he also possesses all the other qualifications for the position.33 Verily, it is clear that the possession of the required CES eligibility is that which will make an appointment in the career executive service a permanent one. Petitioner does not possess such eligibility, however, it cannot be said that his appointment to the position was permanent.

Indeed, the law permits, on many occasions, the appointment of non-CES eligibles to CES positions in the government34 in the absence of appropriate eligibles and when there is necessity in the interest of public service to fill vacancies in the government.35 But in all such cases, the appointment is at best merely temporary36 as it is said to be conditioned on the subsequent obtention of the required CES eligibility.37 This rule, according to De Leon v. Court of Appeals,38 Dimayuga v. Benedicto,39 Caringal v. Philippine Charity Sweepstakes Office,40 and Achacoso v. Macaraig,41 is invariable even though the given appointment may have been designated as permanent by the appointing authority.

We now come to address the issue of whether petitioner’s separation from service violated his right to security of tenure.

Security of tenure in the career executive service, which presupposes a permanent appointment, takes place upon passing the CES examinations administered by the CES Board. It is that which entitles the examinee to conferment of CES eligibility and the inclusion of his name in the roster of CES eligibles.42 Under the rules and regulations promulgated by the CES Board, conferment of the CES eligibility is done by the CES Board through a formal board resolution after an evaluation has been done of the examinee’s performance in the four stages of the CES eligibility examinations. Upon conferment of CES eligibility and compliance with the other requirements prescribed by the Board, an incumbent of a CES position may qualify for appointment to a CES rank. Appointment to a CES rank is made by the President upon the Board’s recommendation. It is this process which completes the official’s membership in the CES and confers on him security of tenure in the CES.43 Petitioner does not seem to have gone through this definitive process.

At this juncture, what comes unmistakably clear is the fact that because petitioner lacked the proper CES eligibility and therefore had not held the subject office in a permanent capacity, there could not have been any violation of petitioner’s supposed right to security of tenure inasmuch as he had never been in possession of the said right at least during his tenure as Deputy Director for Hospital Support Services. Hence, no challenge may be offered against his separation from office even if it be for no cause and at a moment’s notice.44 Not even his own self-serving claim that he was competent to continue serving as Deputy Director may actually and legally give even the slightest semblance of authority to his thesis that he should remain in office. Be that as it may, it bears emphasis that, in any case, the mere fact that an employee is a CES eligible does not automatically operate to vest security of tenure on the appointee inasmuch as the security of tenure of employees in the career executive service, except first and second-level employees, pertains only to rank and not to the office or position to which they may be appointed.45

Anent the other issues raised in this petition, we find the same to be merely petitioner’s last-ditch attempts, futile as they are, to remain in office. Suffice it to say that no further good may be served in needlessly expounding on them.

All told, we reiterate the long-standing rule that the mere fact that a particular position belongs to the career service does not automatically confer security of tenure on its occupant. Such right will have to depend on the nature of his appointment, which in turn depends on his eligibility or lack of it. A person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it in an acting capacity in the absence of appropriate eligibles.46

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 80971, dated September 23, 2004, affirming Resolution No. 031050 of the Civil Service Commission, dated October 14, 2003, is AFFIRMED.

G.R. No. 179452               June 11, 2009

CIVIL SERVICE COMMISSION, Petitioner, vs.LARRY M. ALFONSO, Respondent.

D E C I S I O N

NACHURA, J.:

This is a Rule 45 petition assailing the May 21, 2007 Decision1 and August 23, 2007 Resolution2 of the Court of Appeals (CA) in CA-G.R. SP No. 97284, which reversed Civil Service Commission (CSC) Resolution Nos. 0618213 and 0619084 dated October 16, 2006 and November 7, 2006, respectively, as well as its Order5 dated December 11, 2006, formally charging respondent Larry Alfonso with Grave Misconduct and Conduct Prejudicial to the Best Interest of the Service and preventively suspending him from his position as Director of the Human Resources Management Department of the Polytechnic University of the Philippines (PUP).

The facts, as summarized by the CA, are as follows:

Respondent Larry M. Alfonso is the Director of the Human Resources Management Department of PUP. On July 6, 2006, Dr. Zenaida Pia, Professor IV in PUP-Sta. Mesa, and Dindo Emmanuel Bautista, President of Unyon ng mga Kawani sa PUP, jointly filed an Affidavit-Complaint against Alfonso for violation of Republic Act (RA) No. 6713, charging the latter with grave misconduct, conduct prejudicial to the best interest of the Service, and violation of Civil Service Law, rules and regulations. The affidavit-complaint was lodged before the Civil Service Commission (CSC). In their affidavit, Dr. Pia and Bautista alleged, among others, that respondent repeatedly abused his authority as head of PUP’s personnel department when the latter prepared and included his name in Special Order Nos. 0960 and 1004 for overnight services, ostensibly authorizing him to work for 24 hours straight from May 16 to 20, May 22 to 27 and May 29 to June 2, 2006. As a result thereof, Alfonso made considerable earnings for allegedly working in humanly impossible conditions 24 hours straight daily, for three consecutive weeks.6

In support of their complaint, Dr. Pia and Bautista submitted the following documentary evidence:

1. Special Order No. 1004, s. 2006;

2. Special Order No. 0960, s. 2006;

3. Daily time records of Saturday and Overnight Services of Alfonso;

4. PUP Perm-OT overnight May 2006 payroll register;

5. Xerox copy of check no. 162833 dated May 31, 2006;

6. Summary of Alfonso’s Saturday, overnight and overtime schedule;

7. Computation of the number of hours, days and weeks that Alfonso allegedly served; and

8. Explanation of official time, night service, Saturday overtime and overnight services rendered by Alfonso for the month of May.7

On August 10, 2006, the Office of Legal Affairs (OLA) of the CSC issued an order directing Alfonso to submit his counter-affidavit/comment within three (3) days from receipt thereof.

In his Counter-Affidavit8 dated August 30, 2006, respondent averred that he only rendered overnight work on May 17, 19, 22, 24, 26, 29 and 31, 2006. He explained that his daily time record explicitly indicates that it covers overnight services pursuant to S.O. No. 1004, series of 2006, and that an entry such as "Day 17, arrival 8:00 PM; Day 18, departure 8:00 AM" connoted only a day of overnight work and not continuous two (2) days of rendition of services.9

The CSC, however, found Alfonso’s explanation wanting. On October 25, 2006, it issued Resolution No. 061821 formally charging Alfonso with grave misconduct and conduct prejudicial to the best interest of the Service, and imposing a 90-day preventive suspension against him.10

Aggrieved, respondent filed an omnibus motion for reconsideration of the preventive suspension order and requested a change of venue11 from the CSC-Central Office to the CSC-National Capital Region (CSC-NCR). In the motion, he argued that it is the CSC-NCR regional office that has jurisdiction over the matter pursuant to Section 6 of CSC Resolution No. 99-1936, and that to hold otherwise may deprive him of his right to appeal.12 The motion was denied.13

Undaunted, Alfonso filed another motion for reconsideration on November 20, 2006, accompanied by a motion to admit his supplemental answer.14 This time, however, respondent argued that the CSC had no jurisdiction to hear and decide the administrative case filed against him. According to him, it is the PUP Board of Regents that has the exclusive authority to appoint and remove PUP employees pursuant to the provisions of R.A. No. 829215 in relation to R.A. No. 4670.16

Without ruling on the motion, Assistant Commissioner Atty. Anicia Marasigan-de Lima, head of CSC-NCR, issued an Order17 dated December 11, 2006 directing the Office of the President of PUP to implement the preventive suspension order against respondent.18

Dissatisfied, respondent sought relief before the CA via a petition for certiorari and prohibition.

On May 21, 2007, the CA rendered a Decision19 in favor of Alfonso. The pertinent portion of the decision declares:

Applying the foregoing provisions, it appears that the CSC may take cognizance of an administrative case in two ways: (1) through a complaint filed by a private citizen against a government official or employee; and (2) appealed cases from the decisions rendered by Secretaries or heads of agencies, instrumentalities, provinces, cities and municipalities in cases filed against officers and employees under their jurisdiction.

Indisputably, the persons who filed the affidavit-complaint against petitioner held positions in and were under the employ of PUP. Hence, they cannot be considered as private citizens in the contemplation of the said provision. It is likewise undisputed that the subject CSC resolutions were not rendered in the exercise of its power to review or its appellate jurisdiction but was an ordinary administrative case. Hence, the present case falls short of the requirement that would otherwise have justified the CSC’s immediate exercise of its jurisdiction over the administrative case against petitioner.

Even assuming that the CSC may directly entertain the complaints filed with it, the doctrine of exhaustion [of] administrative remedies still prevents it from entertaining the present administrative case. If a remedy within the administrative machinery can still be had by giving the administrative officer concerned every opportunity to decide on the matter that comes within his jurisdiction, then such remedy should be priorly exhausted.

The circumstances in this case do not justify the disregard of the doctrine. Hence, the administrative complaint should have been lodged with the PUP board of regents.

x x x

The CA ratiocinated that since Presidential Decree (P.D.) No. 1341, the law creating PUP, is the special law governing PUP, then it is the Board of Regents (BOR) that should carry out the duties of the investigating committee and has the proper authority to discipline PUP personnel corollary to the BOR’s general powers of administration.20 According to the CA, the power of the BOR to hire carries with it the corresponding power to discipline PUP personnel pursuant to Section 7(c) of P.D.1341, to wit:

Section 7. The Board of Regents shall have the following powers and duties in addition to his general powers of administration and the exercise of all the powers of a corporation as provided in Section 13 of Act Numbered fourteen hundred fifty-nine as amended, otherwise known as the Philippine Corporation Law:

x x x x

(c) To appoint, on the recommendation of the President of the University, professors, instructors, lecturers and other members of the faculty, and other officials and employees of the University; to fix their compensation, hours of service, and such, other duties and conditions as it may deem proper, any other provisions of the law to the contrary notwithstanding; to grant to them in his discretion, leave of absence under such regulations as it may promulgate, any other conditions of the law to the contrary notwithstanding, and to remove them for cause after an investigation and hearing shall have been had;

x x x

This provision in the PUP Charter is substantially in accord with Section 4(h) of R.A. 8292,

Section 4. Powers and Duties of Governing Boards. – The governing board shall have the following specific powers and duties in addition to its general powers of administration and the exercise of all the powers granted to the board of directors of a corporation under Section 36 of Batas Pambansa Blg. 68, otherwise known as the Corporation Code of the Philippines:

x x x x

(h) to fix and adjust salaries of faculty members and administrative officials and employees subject to the provisions of the revised compensation and classification system and other pertinent budget and compensation laws governing hours of service, and such other duties and conditions as it may deem proper; to grant them, at its discretion, leaves of absence under such regulations as it may promulgate, any provisions of existing law to the contrary notwithstanding; and to remove them for cause in accordance with the requirements of due process of law.

Given the foregoing antecedents, the pivotal issue we have to resolve is whether the CSC has jurisdiction to hear and decide the complaint filed against Alfonso.

We find in favor of petitioner.

Section 2(1) and Section 3, Article IX-B of our Constitution, are clear, as they provide that:

Sec. 2. (1) The civil service embraces all branches, subdivisions, instrumentalities, and agencies of the Government, including government-owned or controlled corporations with original charters.

Sec. 3. The Civil Service Commission, as the central personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service. It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability. It shall submit to the President and the Congress an annual report on its personnel programs.

As the central personnel agency of the government,21 the CSC has jurisdiction to supervise the performance of and discipline, if need be, all government employees, including those employed in government-owned or controlled corporations with original charters such as PUP. Accordingly, all PUP officers and employees, whether they be classified as teachers or professors pursuant to certain provisions of law, are deemed, first and foremost, civil servants accountable to the people and answerable to the CSC in cases of complaints lodged by a citizen against them as public servants. Admittedly, the CSC has appellate jurisdiction over disciplinary cases decided by government departments, agencies and instrumentalities. However, a complaint may be filed directly with the CSC, and the Commission has the authority to hear and decide the case, although it may opt to deputize a department or an agency to conduct the investigation. Specifically, Sections 9(j) and 37(a) of P.D. 807, otherwise known as the Civil Service Law of 1975, provide:

SECTION 9. Powers and Functions of the Commission. – The Commission shall administer the Civil Service and shall have the following powers and function:

x x x x

(j) Hear and decide administrative disciplinary cases instituted directly with it in accordance with Section 37 or brought to it on appeal;

x x x x

Section 37. Disciplinary Jurisdiction. – (a) The Commission shall decide upon appeal all administrative disciplinary cases involving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from Office. A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation. The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.22

We are not unmindful of certain special laws that allow the creation of disciplinary committees and governing bodies in different branches, subdivisions, agencies and instrumentalities of the government to hear and decide administrative complaints against their respective officers and employees. Be that as it may, we cannot interpret the creation of such bodies nor the passage of laws such as – R.A. Nos. 8292 and 4670 allowing for the creation of such disciplinary bodies – as having divested the CSC of its inherent power to supervise and discipline government employees, including those in the academe. To hold otherwise would not only negate the very purpose for which the CSC was established, i.e. to instill professionalism, integrity, and accountability in our civil service, but would also impliedly amend the Constitution itself.

In Office of the Ombudsman v. Masing,23 we explained that it is error to contend that R.A. No. 4670 conferred exclusive disciplinary authority on the Department of Education, Culture and Sports (DECS, now Department of Education or DepEd) over public school teachers and to have prescribed exclusive procedure in administrative investigations involving them.24 Hence, it is equally erroneous for respondent to argue that the PUP Charter and R.A. No. 8292 in relation to R.A. 4670 confer upon the BOR of PUP exclusive jurisdiction to hear disciplinary cases against university professors and personnel.

In Civil Service Commission v. Sojor,25 an administrative case was filed against a state university president. There, we struck down the argument that the BOR has exclusive jurisdiction to hear and decide an administrative case filed against the respondent. We said:

In light of the other provisions of R.A. No. 9299, respondent’s argument that the BOR has exclusive power to remove its university officials must fail. Section 7 of R.A. No. 9299 states that the power to remove faculty members, employees, and officials of the university is granted to the BOR "in addition to its general powers of administration." This provision is essentially a reproduction of Section 4 of its predecessor, R.A. No. 8292, demonstrating that the intent of the lawmakers did not change even with the enactment of the new law. x x x

x x x x

Verily, the BOR of NORSU has the sole power of administration over the university. But this power is not exclusive in the matter of disciplining and removing its employee and officials.

Although the BOR of NORSU is given the specific power under R.A. No. 9299 to discipline its employees and officials, there is no showing that such power is exclusive. When the law bestows upon a government body the jurisdiction to hear and decide cases involving specific matters, it is to be presumed that such jurisdiction is exclusive unless it be proved that another body is likewise vested

with the same jurisdiction, in which case, both bodies have concurrent jurisdiction over the matter.26 (Emphasis supplied)

But it is not only for this reason that Alfonso’s argument must fail. Equally significant is the fact that he had already submitted himself to the jurisdiction of the CSC when he filed his counter-affidavit27 and his motion for reconsideration and requested for a change of venue, not from the CSC to the BOR of PUP, but from the CSC-Central Office to the CSC-NCR.28 It was only when his motion was denied that he suddenly had a change of heart and raised the question of proper jurisdiction.29 This cannot be allowed because it would violate the doctrine of res judicata, a legal principle that is applicable to administrative cases as well.30 At the very least, respondent’s active participation in the proceedings by seeking affirmative relief before the CSC already bars him from impugning the Commission’s authority under the principle of estoppel by laches.31

In this case, the complaint-affidavits were filed by two PUP employees. These complaints were not lodged before the disciplinary tribunal of PUP, but were instead filed before the CSC, with averments detailing respondent’s alleged violation of civil service laws, rules and regulations. After a fact-finding investigation, the Commission found that a prima facie case existed against Alfonso, prompting the Commission to file a formal charge against the latter.32 Verily, since the complaints were filed directly with the CSC, and the CSC has opted to assume jurisdiction over the complaint, the CSC’s exercise of jurisdiction shall be to the exclusion of other tribunals exercising concurrent jurisdiction. To repeat, it may, however, choose to deputize any department or agency or official or group of officials such as the BOR of PUP to conduct the investigation, or to delegate the investigation to the proper regional office.33 But the same is merely permissive and not mandatory upon the Commission.

We likewise affirm the order of preventive suspension issued by the CSC-NCR against respondent.

There are two kinds of preventive suspension of government employees charged with offenses punishable by removal or suspension, viz: (1) preventive suspension pending investigation; and (2) preventive suspension pending appeal if the penalty imposed by the disciplining authority is suspension or dismissal and, after review, the respondent is exonerated. Preventive suspension pending investigation is not a penalty. It is a measure intended to enable the disciplining authority to investigate charges against respondent by preventing the latter from intimidating or in any way influencing witnesses against him. If the investigation is not finished and a decision is not rendered within that period, the suspension will be lifted and the respondent will automatically be reinstated. If after investigation, respondent is found innocent of the charges and is exonerated, he should be reinstated.34

The first kind, subject of the CSC Order against the respondent, is appropriately covered by Sections 51 and 52 of the Revised Administrative Code of 1987 (Executive Order No. 292) which provide:

SEC. 51. Preventive Suspension. - The proper disciplining authority may preventively suspend any subordinate officer or employee under his authority pending an investigation, if the charge against such officer or employee involves dishonesty, oppression or grave misconduct, or neglect in the performance of duty, or if there are reasons to believe that the respondent is guilty of charges which would warrant his removal from the service.1avvphi1

SEC. 52. Lifting of Preventive Suspension. Pending Administrative Investigation. - When the administrative case against the officer or employee under preventive suspension is not finally decided by the disciplining authority within the period of ninety (90) days after the date of suspension of the respondent who is not a presidential appointee, the respondent shall be automatically reinstated in the service: Provided, That when the delay in the disposition of the case is due to the fault, negligence or petition of the respondent, the period of delay shall not be counted in computing the period of suspension herein provided.1avvphi1

Respondent was charged with grave misconduct and conduct prejudicial to the best interest of the service. A person charged with grave misconduct is put on notice that he stands accused of misconduct coupled with any of the elements of corruption or willful intent to violate the law or established rules.35 Meanwhile, conduct prejudicial to the best interest of the service is classified as a grave offense with a

corresponding penalty of suspension for six (6) months and one (1) day to one (1) year for the first offense, and the penalty of dismissal for the second offense.36

In addition to the gravity of the charges against Alfonso, and equally relevant, is the opportunity available to him to use his position as Director of the Human Resources Management Department of the university to exert undue influence or pressure on the potential witnesses that the complainants may produce, or to tamper with the documentary evidence that may be used against him. Preventive suspension is, therefore, necessary so that respondent’s delicate yet powerful position in the university may not be used to compromise the integrity and impartiality of the entire proceedings.

WHEREFORE, premises considered, the May 21, 2007 Decision37 and August 23, 2007 Resolution38 of the Court of Appeals in CA-G.R. SP No. 97284 are hereby REVERSED and SET ASIDE. Accordingly, Civil Service Commission Resolution Nos. 06182139 and 06190840 dated October 16, 2006 and November 7, 2006, respectively, as well as its Order41 dated December 11, 2006 placing respondent under preventive suspension are hereby REINSTATED. The CSC is ordered to proceed hearing the administrative case against respondent with dispatch.

SO ORDERED.

Bito-Onon vs. Hon. Fernandez

GR No. 139813 Facts:Bito-Onon is the duly elected Barangay Chairman of Tacras, Narra Palawan and is the

Municipal Liga Chapter President for the Municipality of Narra, Palawan. Respondent Quejano Jr., on the other hand, is the duly elected Barangay Chairman of Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President of Magsaysay, Palawan. Both Bito-Onon and Quejano were candidates for the position of Executive Vice- President in the August 23, 1997 election for the Liga ng Brgy Provincial Chapter in the province of Palawan. Bito-Onon was the proclaimed winner prompting Quejano to file a a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him. Not satisfied with the decision of BES Quejano filed a petition for review of the decision of BES. On 1999, Onon filed a petition to dismiss the review raising the issue of jurisdiction. The latter claimed that RTC has no jurisdiction to review the BES’ decision in any post proclamation electoral protest in connection with the 1997 Liga ng mga Brgy Election of Officers and Directors . In his motion to dismiss, Bito-Onon claimed that the Supplemental Guidelines for the 1997 guidelines for the Liga ng Brgy Election issued by the DILG in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an Ultra Vires act and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga’s Internal Org. Issue:1. Whether or not the President’s supervision extend to the Liga ng Baragay which is not an LGU.2. Whether or not the guidelines/provision in the Memorandum issued by the DILG within its supervisory limit.Ruling:1. Yes, DOJ ruled that the Liga ng Brgy is a government org., being an association federation/league/union by law or authority of law whose members are either appointed or elected gov’t officials. The ligas are primarily governed by LGC. However, their respective constitution and by-laws shall govern all matters affecting the internal org of the liga not otherwise provided for in the LGC, provided that such consti and by laws shall be supplementary to Book II Title VI OF LGCode and shall conform to Consti and existing laws.2. No, In authorizing the filing of petition for review of BES decision with regular courts under MC No. 97-193, the DILG Secretary in effect amended and modified the guidelines promulgated by

the Liga which provides that review of BES decision is with Nat’l Liga Board. The amendment of the guidelines is more than the exercise of supervision but is an exercise of the power of control which the President doesn’t have over the Liga

JOELBITO-ONON, petitioner, vs. HON. JUDGE NELIA YAP FERNANDEZ, R.T.C. Br. 50 – Puerto Princesa City and Palawan, and ELEGIO QUEJANO, JR., respondents.

D E C I S I O N

GONZAGA-REYES, J.:

This Petition for Certiorari and Prohibition with prayer for the issuance of a temporary restraining order and writ of injunction seeks the reversal of the Order of the Regional Trial Court of Palawan and Puerto Princesa City,i[1] Branch 50 in SPL. PROC. NO. 1056 entitled “Elegio F. Quejano, Jr., petitioner vs. Joel Bito-Onon, et. al., respondents” which denied herein petitioner’s motion to dismiss the Petition for Review of the Resolution of the Board of Election Supervisors dated August 25, 1997 in case number L-10-97 filed by herein private respondent with said court.

It appears from the records that the petitioner, Joel Bito-Onon is the duly elected Barangay Chairman of Barangay Tacras, Narra, Palawan and is the Municipal Liga Chapter President for the Municipality of Narra, Palawan. The private respondent, Elegio Quejano, Jr. on the other hand, is the duly elected Barangay Chairman of Barangay Rizal, Magsaysay, Palawan and is the Municipal Liga Chapter President for the Municipality of Magsaysay, Palawan. Both Onon and Quejano were candidates for the position of Executive Vice-President in the August 23, 1997 election for the Liga ng Barangay Provincial Chapter of the province of Palawan. Onon was proclaimed the winning candidate in the said election prompting Quejano to file a post proclamation protest with the Board of Election Supervisors (BES), which was decided against him on August 25, 1997.

Not satisfied with the decision of the BES, Quejano filed a Petition for Review of the decision of the BES with the Regional Trial Court of Palawan and Puerto Princesa City (RTC). On April 26, 1999, Onon filed a motion to dismiss the Petition for Review raising the issue of jurisdiction. Onon claimed that the RTC had no jurisdiction to review the decisions rendered by the BES in any post proclamation electoral protest in connection with the 1997 Liga ng mga Barangay election of officers and directors. In his motion to dismiss, Onon claimed that the Supplemental Guidelines for the 1997 Liga ng mga Barangay election issued by the DILG on August 11, 1997 in its Memorandum Circular No. 97-193, providing for review of decisions or resolutions of the BES by the regular courts of law is an ultra vires act and is void for being issued without or in excess of jurisdiction, as its issuance is not a mere act of supervision but rather an exercise of control over the Liga’s internal organization.

On June 22, 1999, the RTC denied Onon’s motion to dismiss. In its order, the RTC ratiocinated that the Secretary of the Department of Interior and Local Governmentii[2] is vested with the power “to establish and prescribe rules, regulations and other issuances and implementing laws on the general supervision of local government units and the promotion of local autonomy and monitor compliance thereof by said units.”iii[3] The RTC added that DILG Circular No. 97-193 was issued by the DILG Secretary pursuant to his rule-making power as provided for under Section 7, Chapter II, Book IV of the Administrative Code.iv[4] Consequently, the RTC ruled that it had jurisdiction over the petition for review filed by Quejada.v[5]

Motion for reconsideration of the aforesaid Order was deniedvi[6] prompting the petitioner to file the present petition wherein the following issues are raised:

iiiiiiivvviDE GUZMAN VS COMELEC

A. WHETHER OR NOT THE QUESTIONED PROVISION IN MEMORANDUM CIRCULAR 97-193 WAS ISSUED BY THE DILG SECRETARY IN EXCESS OF HIS AUTHORITY.

B. WHETHER OR NOT THE RESPONDENT JUDGE COMMITTED GRAVE ABUSE OF DISCRETION IN ISSUING THE QUESTIONED ORDERS.vii[7]

In support of his petition, Onon argues that the “Supplemental Guidelines for the 1997 Synchronized Election of the Provincial and Metropolitan Chapters and for the Election of the National Chapter of the Liga ng mga Barangay” contradicts the “Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors” and is therefore invalid. Onon alleges that the Liga ng mga Barangay (LIGA) is not a local government unit considering that a local government unit must have its own source of income, a certain number of population, and a specific land area in order to exist or be created as such. Consequently, the DILG only has a limited

On March 31, 2004, the Sangguniang Panlungsod of Tuguegarao City passed Resolution No. 048-2004 to authorize City Mayor Ting to acquire two parcels of land for use as a public cemetery of the City. Pursuant to the resolution, City Mayor Ting purchased the two parcels of land, identified as Lot Nos. 5860 and 5861 and located at Atulayan Sur, Tuguegarao City, with an aggregate area of 24,816 square meters (covered by Transfer Certificates of Title [TCT] No. T-36942 and TCT No. T-36943 of the Register of Deeds in Tuguegarao City), from Anselmo Almazan, Angelo Almazan and Anselmo Almazan III. As payment, City Treasurer Garcia issued and released Treasury Warrant No. 0001534514 dated April 20, 2004 in the sum of P8,486,027.00. On May 5, 2004, the City Government of Tuguegarao caused the registration of the sale and the issuance of new certificates in its name (i.e., TCT No. T-144428 and TCT No. T-144429).

Based on the transaction, the petitioner filed a complaint in the Office of the Provincial Election Supervisor of Cagayan Province against City Mayor Ting and City Treasurer Garcia, charging them with a violation of Section 261, paragraphs (v) and (w), of the Omnibus Election Code, for having undertaken to construct a public cemetery and for having released, disbursed and expended public funds within 45 days prior to the May 9, 2004 election, in disregard of the prohibitions under said provisions due to the election ban period having commenced on March 26, 2004 and ended on May 9, 2004.

Issues

The issues to be resolved are:

(2) Whether or not the acquisition of Lots 5860 and 5881 during the period of the election ban was covered by the term public works as to be in violation of Section 261 (v) of the Omnibus Election Code; and

(3) Whether or not the issuance of Treasury Warrant No. 0001534514 during the period of the election ban was in violation of Section 261 (w) of the Omnibus Election Code.

The COMELEC held in its resolution dated February 18, 2008 that:

To be liable for violation of Section 261 (v), supra, four (4) essential elements must concur and they are:

1. A public official or employee releases, disburses, or expends any public funds;

2. The release, disbursement or expenditure of such funds must be within forty-five days before regular election;

3. The release, disbursement or expenditure of said public funds is for any and all kinds of public works; and

supervisory authority over the LIGA. Moreover, Onon argues that even if the DILG has supervisory authority over the LIGA, the act of the DILG in issuing Memorandum Circular No. 97-193 or the supplemental rules and guidelines for the conduct of the 1997 LIGA elections had the effect of modifying, altering and nullifying the rules prescribed by the National Liga Board. Onon posits that the issuance of said guidelines allowing an appeal of the decision of the BES to the regular courts rather than to the National Liga Board is no longer an exercise of supervision but an exercise of control.viii[8]

In his comment to the petition, private respondent Quejano argues that the Secretary of the DILG has competent authority to issue rules and regulations like Memorandum Circular No. 97-893. The Secretary of DILG’s rule-making power is conferred by the Administrative Code. Considering that the

4. The release, disbursement or expenditure of the public funds should not cover any exceptions of Section 261 (v). (Underscoring supplied).

Applying the foregoing as guideline, it is clear that what is prohibited by law is the release, disbursement or expenditure of public funds for any and all kinds of public works. Public works is defined as fixed works (as schools, highways, docks) constructed for public use or enjoyment esp. when financed and owned by the government. From this definition, the purchase of the lots purportedly to be utilized as cemetery by the City Government of Tuguegarao cannot by any stretch of imagination be considered as public works, hence it could not fall within the proscription as mandated under the aforementioned section of the Omnibus Election Code. And since the purchase of the lots is not within the contemplation of the word public works, the third of the elements stated in the foregoing guideline is not present in this case. Hence since not all the elements concurred, the respondents are not liable for violation of Section 261 (v) of the Omnibus Election Code.

Accordingly, absent an indication of any contrary legislative intention, the term public works as used in Section 261 (v) of the Omnibus Election Code is properly construed to refer to any building or structure on land or to structures (such as roads or dams) built by the Government for public use and paid for by public funds. Public works are clearly works, whether of construction or adaptation undertaken and carried out by the national, state, or municipal authorities, designed to subserve some purpose of public necessity, use or convenience, such as public buildings, roads, aqueducts, parks, etc.; or, in other words, all fixed works constructed for public use.12

It becomes inevitable to conclude, therefore, that the petitioner's insistence − that the acquisition of Lots 5860 and 5881 for use as a public cemetery be considered a disbursement of the public funds for public works in violation of Section 261(v) of the Omnibus Election Code − was unfounded and unwarranted.

Issuance of the Treasury Warrant During the Period of the Election Ban

Violated Section 261 (w), Omnibus Election Code

Section 261(w) of the Omnibus Election Code reads thus:

(w) Prohibition against construction of public works, delivery of materials for public works and issuance of treasury warrants and similar devices.- During the period of forty five days preceding a regular election and thirty days before a special election, any person who: (a) undertakes the construction of any public works, except for projects or works exempted in the preceding paragraph; or (b) issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds.

The OSG posits that the foregoing provision is violated in either of two ways: (a) by any person who, within 45 days preceding a regular election and 30 days before a special election, undertakes the construction of any public works except those enumerated in the preceding paragraph; or (b) by any person who issues, uses or avails of treasury warrants or any device undertaking future delivery of money, goods or other things of value chargeable against public funds within 45 days preceding a

Memorandum Circular was issued pursuant to his rule making power, Quejano insists that the lower court did not commit any reversible error when it denied Onon’s motion to dismiss.ix[9]

On the other hand, the public respondent represented herein by the Solicitor General, filed a separate Manifestation and Motion in Lieu of Comment agreeing with the position of petitioner Onon. The Solicitor General affirms Onon’s claim that in issuing the questioned Memorandum Circular, the Secretary of the DILG effectively amended the rules and guidelines promulgated by National Liga Board. This act was no longer a mere act of supervision but one of control. The Solicitor General submits that the RTC committed grave abuse of discretion in not dismissing the petition for review of the BES decision filed before it for failure of the petitioner to exhaust the rightful remedy which was to appeal to the National Liga Board.x[10]

regular election and 30 days before a special election.

We concur with the OSG’s position.

Section 261 (w) covers not only one act but two, i.e., the act under subparagraph (a) above and that under subparagraph (b) above. For purposes of the prohibition, the acts are separate and distinct, considering that Section 261(w) uses the disjunctive or to separate subparagraphs (a) and (b). In legal hermeneutics, or is a disjunctive that expresses an alternative or gives a choice of one among two or more things.13 The word signifies disassociation and independence of one thing from another thing in an enumeration. It should be construed, as a rule, in the sense that it ordinarily implies as a disjunctive word.14 According to Black,15 too, the word and can never be read as or, or vice versa, in criminal and penal statutes, where the rule of strict construction prevails. Consequently, whether or not the treasury warrant in question was intended for public works was even of no moment in determining if the legal provision was violated.

There was a probable cause to believe that Section 261(w), subparagraph (b), of the Omnibus Election Code was violated when City Mayor Ting and City Treasurer Garcia issued Treasury Warrant No. 0001534514 during the election ban period. For this reason, our conclusion that the COMELEC en banc gravely abused its discretion in dismissing E.O. Case No. 06-14 for lack of merit is inevitable and irrefragable.

True, the COMELEC, as the body tasked by no less than the 1987 Constitution to investigate and prosecute violations of election laws,16 has the full discretion to determine whether or not an election case is to be filed against a person and, consequently, its findings as to the existence of probable cause are not subject to review by courts. Yet, this policy of non-interference does not apply where the COMELEC, as the prosecuting or investigating body, was acting arbitrarily and capriciously, like herein, in reaching a different but patently erroneous result.17 The COMELEC was plainly guilty of grave abuse of discretion.

Grave abuse of discretion is present "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."18

WHEREFORE, WE grant the petition for certiorari and set aside the resolution dated February 18, 2008 issued in E.O. Case No. 06-14 by the Commission of Elections en banc.

The Commission on Elections is ordered to file the appropriate criminal information against respondents City Mayor Randolph S. Ting and City Treasurer Salvacion Garcia of Tuguegarao City for violation of Section 261 (w), subparagraph (b), of the Omnibus Election Code.

Costs of suit to be paid by the private respondents.

On October 27, 1999, this Court denied petitioner Onon’s motion for the issuance of restraining order for lack of merit.

After a careful review of the case, we sustain the position of the petitioner.

The resolution of the present controversy requires an examination of the questioned provision of Memorandum Circular No. 97-193 and the Implementing Rules and Guidelines for the 1997 General Elections of the Liga ng mga Barangay Officers and Directors (GUIDELINES). The memorandum circular reads, insofar as pertinent, as follows:

“Any post-proclamation protest must be filed with the BES within twenty-four (24) hours from the closing of the election. The BES shall decide the same within forty-eight (48) hours from receipt thereof. The decision of the BES shall be final and immediately executory without prejudice to the filing of a Petition for Review with the regular courts of law.”xi[11] (emphasis supplied)

SO ORDERED.

x-----------------------------------------------------------------------------------------x

PANLAQUI VS COMELEC 

 

 Petitioner Mozart Panlaqui (Panlaqui) assails the Commission on Elections (Comelec) En Banc Resolution of June 17, 2009 denying his motion for proclamation, which he filed after this Court affirmed in G.R. No. 180051?[1] the nullification of the proclamation of private respondent Nardo Velasco (Velasco) as mayor of Sasmuan, Pampanga.

On the other hand, the GUIDELINES provides that the BES shall have the following among its duties:

“To resolve any post-proclamation electoral protest which must be submitted in writing to this Board within twenty-four (24) hours from the close of election; provided said Board shall render its decision within forty-eight (48) hours from receipt hereof; and provided further that the decision must be submitted to the National Liga Headquarters within twenty-four (24) hours from the said decision. The decision of the Board of Election Supervisors in this respect shall be subject to review by the National Liga Board the decision of which shall be final and executory.”xii[12] (emphasis supplied)

Memorandum Circular No. 97-193 was issued by the DILG Secretary pursuant to the power of general supervision of the President over all local government units which was delegated to the DILG Secretary by virtue of Administrative Order No. 267 dated February 18, 1992.xiii[13] The President’s power of general supervision over local government units is conferred upon him by the Constitution.xiv

[14] The power of supervision is defined as “the power of a superior officer to see to it that lower

Velasco was born in Sasmuan on June 22, 1952 to Filipino parents. He married Evelyn

Castillo on June 29, 1975. In 1983, he moved to the United States where he subsequently became a

citizen.

Upon Velasco’s application for dual citizenship under Republic Act No. 9225?[2] was

approved on July 31, 2006, he took on even date his oath of allegiance to the Republic of the

Philippines and returned to the Philippines on September 14, 2006.

On October 13, 2006, Velasco applied for registration as a voter of Sasmuan, which

application was denied by the Election Registration Board (ERB). He thus filed a petition for the

inclusion of his name in the list of voters before the Municipal Trial Court (MTC) of Sasmuan which,

by Decision of February 9, 2007, reversed the ERB’s decision and ordered his inclusion in the list of

voters of Sasmuan.

  On appeal, the Regional Trial Court (RTC) of Guagua, Pampanga, by Decision of March 1,

2007, reversed?[3] the MTC Decision, drawing Velasco to elevate the matter via Rule 42 to the Court

of Appeals which, by Amended Decision?[4] of August 19, 2008, dismissed the appeal for lack of

jurisdiction. In the meantime, Velasco filed on March 28, 2007 his Certificate of Candidacy

(COC) for mayor of Sasmuan, therein claiming his status as a registered voter. Panlaqui, who vied for

the same position, thereupon filed before the Comelec a Petition to Deny Due Course To and/or To

Cancel Velasco’s COC based on gross material misrepresentation as to his residency and,

consequently, his qualification to vote.

In the electoral bout of May 2007, Velasco won over Panlaqui as mayor of

Sasmuan. As the Comelec failed to resolve Panlaqui’s petition prior to the elections,

Velasco took his oath of office and assumed the duties of the office. Finding

material misrepresentation on the part of Velasco, the Comelec cancelled his COC

and nullified his proclamation, by Resolutions of July 6, 2007 and October 15, 2007,

which this Court affirmed in G.R. No. 180051.

officers perform their functions in accordance with law.”xv[15] This is distinguished from the power of control or “the power of an officer to alter or modify or set aside what a subordinate officer had done in the performance of his duties and to substitute the judgment of the former for the latter.”xvi[16]

On many occasions in the past, this court has had the opportunity to distinguish the power of supervision from the power of control. In Taule vs. Santos,xvii[17] we held that the Chief Executive wielded no more authority than that of checking whether a local government or the officers thereof perform their duties as provided by statutory enactments. He cannot interfere with local governments provided that the same or its officers act within the scope of their authority. Supervisory power, when contrasted with control, is the power of mere oversight over an inferior body; it does not include any restraining authority over such body.xviii[18] Officers in control lay down the rules in the doing of an act. If they are not followed, it is discretionary on his part to order the act undone or re-done by his

Panlaqui thereafter filed a motion for proclamation which the Comelec denied by the assailed

Resolution, pointing out that the rule on succession does not operate in favor of Panlaqui as the second

placer because Velasco was not disqualified by final judgment before election day.

Hence, the present petition which imputes grave abuse of discretion on the part of the

Comelec for not regarding the RTC March 1, 2007 Decision as the final judgment of disqualification

against Velasco prior to the elections, so as to fall within the ambit of Cayat v. Commission on

Elections?[5] on the exception to the doctrine on the rejection of the second placer.

Velasco filed his Comment of September 18, 2009 with motion to consolidate the present case

with G.R. No. 189336, his petition challenging the Comelec’s September 8, 2009 Order which directed

him to vacate his mayoralty post for the incumbent vice-mayor to assume office as mayor. A perusal

of the records of the petition shows, however, that it had already been dismissed by the Court by

Resolution of October 6, 2009.?[6]

In his present petition, Panlaqui implores this Court to apply in his favor the case of Cayat

where the Court affirmed, inter alia, the Comelec Order directing the proclamation of the second placer

as Mayor of Buguias, Benguet in this wise:

There is no doubt as to the propriety of Palileng’s proclamation for two basic reasons. 

First, the COMELEC First Division’s Resolution of 12 April 2004 cancelling Cayat’s certificate of candidacy due to disqualification became final and executory on 17 April 2004 when Cayat failed to pay the prescribed filing fee. Thus, Palileng was the only candidate for Mayor of Buguias, Benguet in the 10 May 2004 elections. Twenty–three days before election day, Cayat was already disqualified by final judgment to run for Mayor in the 10 May 2004 elections. As the only candidate, Palileng was not a second placer. On the contrary, Palileng was the sole and only placer, second to none . The doctrine on the rejection of the second placer, which triggers the rule on succession, does not apply in the present case because Palileng is not a second-placer but the only placer. Consequently, Palileng’s proclamation as Mayor of Buguias, Benguet is beyond question.  

Second, there are specific requirements for the application of the doctrine on the rejection of the second placer. The doctrine will apply in Bayacsan’s favor, regardless of his intervention in the present case, if two conditions concur: (1) the decision on Cayat’s disqualification remained pending on election day , 10 May

subordinate or he may even decide to do it himself. Supervision does not cover such authority. Supervising officers merely sees to it that the rules are followed, but he himself does not lay down such rules, nor does he have the discretion to modify or replace them. If the rules are not observed, he may order the work done or re-done to conform to the prescribed rules. He cannot prescribe his own manner for the doing of the act.xix[19]

Does the President’s power of general supervision extend to the liga ng mga barangay, which is not a local government unit?xx[20]

We rule in the affirmative. In Opinion No. 41, Series of 1995, the Department of Justice ruled that the liga ng mga barangay is a government organization, being an association, federation, league or union

2004, resulting in the presence of two mayoralty candidates for Buguias, Benguet in the elections; and (2) the decision on Cayat’s disqualification became final only after the elections .?[7] (emphasis and italics in the original; underscoring supplied)

 Repackaging the present petition in Cayat’s fashion, Panlaqui asserts that the RTC March 1, 2007 Decision in the voter’s inclusion proceedings must be considered as the final judgment of disqualification against Velasco, which decision was issued more than two months prior to the elections. Panlaqui posits that when Velasco’s petition for inclusion was denied, he was also declared as disqualified to run for public office.

Unwrapping the present petition, the Court finds that the true color of the issue of distinction

between a petition for inclusion of voters in the list and a petition to deny due course to or cancel a

certificate of candidacy has already been defined in Velasco v. Commission on Elections?[8] where the

Court held that the two proceedings may ultimately have common factual bases but they are poles apart

in terms of the issues, reliefs and remedies involved, thus:

In terms of purpose, voters’ inclusion/exclusion and COC denial/cancellation are different proceedings; one refers to the application to be registered as a voter to be eligible to vote, while the other refers to the application to be a candidate. Because of their differing purposes, they also involve different issues and entail different reliefs, although the facts on which they rest may have commonalities where they may be said to converge or interface. x x x?[9] (underscoring supplied)

Voters’ inclusion/exclusion proceedings, on the one hand, essentially involve the issue of

whether a petitioner shall be included in or excluded from the list of voters based on the qualifications

required by law and the facts presented to show possession of these qualifications.?[10]

 On the other hand, COC denial/cancellation proceedings involve the issue of whether there is a false

representation of a material fact. The false representation must necessarily pertain not to a mere

innocuous mistake but to a material fact or those that refer to a candidate’s qualifications for elective

office. Apart from the requirement of materiality, the false representation must consist of a deliberate

attempt to mislead, misinform, or hide a fact which would otherwise render a candidate ineligible or,

otherwise stated, with the intention to deceive the electorate as to the would-be candidate’s

qualifications for public office.?[11]

 In Velasco, the Court rejected Velasco’s contention that the Comelec improperly ruled on the right to

vote when it cancelled his COC. The Court stated that the Comelec merely relied on or recognized the

RTC’s final and executory decision on the matter of the right to vote in the precinct within its territorial

created by law or by authority of law, whose members are either appointed or elected government officials. The Local Government Codexxi[21] defines the liga ng mga barangay as an organization of all barangays for the primary purpose of determining the representation of the liga in the sanggunians, and for ventilating, articulating and crystallizing issues affecting barangay government administration and securing, through proper and legal means, solutions thereto.xxii[22] The liga shall have chapters at the municipal, city, provincial and metropolitan political subdivision levels. The municipal and city chapters of the liga shall be composed of the barangay representatives of the municipal and city barangays respectively. The duly elected presidents of the component municipal and city chapters shall constitute the provincial chapter or the metropolitan political subdivision chapter. The duly elected presidents of highly urbanized cities, provincial chapters, the Metropolitan Manila chapter and metropolitan political subdivision chapters shall constitute the National Liga ng mga Barangay.xxiii[23]

jurisdiction. In the present petition, it is Panlaqui’s turn to proffer the novel interpretation that the RTC

properly cancelled Velasco’s COC when it ruled on his right to vote. The Court rejects the same.

 It is not within the province of the RTC in a voter’s inclusion/exclusion proceedings to take

cognizance of and determine the presence of a false representation of a material fact. It has no

jurisdiction to try the issues of whether the misrepresentation relates to material fact and whether there

was an intention to deceive the electorate in terms of one’s qualifications for public office. The finding

that Velasco was not qualified to vote due to lack of residency requirement does not translate into a

finding of a deliberate attempt to mislead, misinform, or hide a fact which would otherwise render him

ineligible.  Assuming arguendo the plausibility of Panlaqui’s theory, the Comelec correctly observed

that when the RTC issued its March 1, 2007 Decision, there was yet no COC to cancel because

Velasco’s COC was filed only on March 28, 2007. Indeed, not only would it be in excess of

jurisdiction but also beyond the realm of possibility for the RTC to rule that there was deliberate

concealment on the part of Velasco when he stated under oath in his COC that he is a registered voter

of Sasmuan despite his knowledge of the RTC decision which was yet forthcoming.

 IN FINE, the Comelec did not gravely abuse its discretion when it denied Panlaqui’s motion for

proclamation. Since Velasco’s disqualification

as a candidate had not become final before the elections, the Comelec properly applied the rule on

succession.

x x x To simplistically assume that the second placer would have received the other votes would be to substitute our judgment for the mind of the voter. The second placer is just that, a second placer. He lost the elections. He was repudiated by either a majority or plurality of voters. He could not be considered the first among qualified candidates because in a field which excludes the disqualified candidate, the conditions would have substantially changed. We are not prepared to extrapolate the results under such circumstances.

 To allow the defeated and repudiated candidate to take over the mayoralty

despite his rejection by the electorate is to disenfranchise them through no fault on their part, and to undermine the importance and the meaning of democracy and the right of the people to elect officials of their choice. 

The liga at the municipal, city, provincial, metropolitan political subdivision, and national levels directly elect a president, a vice-president and five (5) members of the board of directors. The board shall appoint its secretary and treasurer and create such other positions as it may deem necessary for the management of the chapter.xxiv[24]

The ligas are primarily governed by the provisions of the Local Government Code.xxv[25] However, their respective constitution and by-laws shall govern all other matters affecting the internal organization of the liga not otherwise provided for in the Local Government Code provided that the constitution and by-laws shall be suppletory to the provisions of Book III, Title VI of the Local Government Code and shall always conform to the provisions of the Constitution and existing laws.xxvi

[26]

Theoretically, the second placer could receive just one vote. In such a case, it would be absurd to proclaim the totally repudiated candidate as the voters’ choice. x x x?[12]

 WHEREFORE, the petition is DISMISSED. The assailed June 17, 2009 Resolution of the

Commission on Elections is AFFIRMED.

viiviiiixx

ROQUE VS COMELEC

Having in mind the foregoing principles, we rule that Memorandum Circular No. 97-193 of the DILG insofar as it authorizes the filing a Petition for Review of the decision of the BES with the regular courts in a post proclamation electoral protest is of doubtful constitutionality. We agree with both the petitioner and the Solicitor General that in authorizing the filing of the petition for review of the decision of the BES with the regular courts, the DILG Secretary in effect amended and modified the GUIDELINES promulgated by the National Liga Board and adopted by the LIGA which provides that the decision of the BES shall be subject to review by the National Liga Board. The amendment of the GUIDELINES is more than an exercise of the power of supervision but is an exercise of the power of control, which the President does not have over the LIGA. Although the DILG is given the power to prescribe rules, regulations and other issuances, the Administrative Code limits its authority to merely “monitoring compliance” by local government units of such issuances.xxvii[27] To monitor means “to watch, observe or check” and is compatible with the power of supervision of the DILG Secretary over

 Facts:

            This case is a motion for reconsideration filed by the petitioners of the September 10, 2009 ruling of the Supreme Court, which denied the petition of H. Harry L. Roque, Jr., et al. for certiorari, prohibition, and mandamus to nullify the contract-award of the 2010 Election Automation Project to the joint venture of Total Information Management Corporation (TIM) and Smartmatic International Corporation (Smartmatic).

In this MR, petitioners Roque, et al. are again before the Supreme Court asking that the contract award be declared null and void on the stated ground that it was made in violation of the Constitution, statutes, and jurisprudence. Intervening petitioner also interposed a similar motion, but only to pray that the Board of Election Inspectors be ordered to manually count the ballots after the printing and electronic transmission of the election returns.

Petitioners Roque, et al., as movants herein, seek a reconsideration of the September 10, 2009 Decision on the following issues or grounds:

 

1. The Comelec’s public pronouncements show that there is a "high probability" that there will be failure of automated elections;

 2. Comelec abdicated its constitutional functions in favor of Smartmatic; 3. There is no legal framework to guide the Comelec in appreciating automated ballots in case the PCOS machines fail;

4. Respondents cannot comply with the requirements of RA 8436 for a source code review; 5. Certifications submitted by private respondents as to the successful use of the machines in elections abroad do not fulfill the requirement of Sec. 12 of RA 8436; 6. Private respondents will not be able to provide telecommunications facilities that will assure 100% communications coverage at all times during the conduct of the 2010 elections; and 7. Subcontracting the manufacture of PCOS machines to Quisdi violates the Comelec’s bidding rules.

 Issue: Is the motion for reconsideration meritorious?

local governments, which is limited to checking whether the local government unit concerned or the officers thereof perform their duties as per statutory enactments.xxviii[28] Besides, any doubt as to the power of the DILG Secretary to interfere with local affairs should be resolved in favor of the greater autonomy of the local government.xxix[29]

The public respondent judge therefore committed grave abuse of discretion amounting to lack or excess of jurisdiction in not dismissing the respondent’s Petition for Review for failure to exhaust all administrative remedies and for lack of jurisdiction.

Ruling:            No.

Upon taking a second hard look into the issues in the case at bar and the arguments earnestly pressed in the instant motions, the Court cannot grant the desired reconsideration.

Petitioners’ threshold argument delves on possibilities, on matters that may or may not occur. The conjectural and speculative nature of the first issue raised is reflected in the very manner of its formulation and by statements, such as "the public pronouncements of public respondent COMELEC x x x clearly show that there is a high probability that there will be automated failure of elections"; "there is a high probability that the use of PCOS machines in the May 2010 elections will result in failure of elections"; "the unaddressed logistical nightmares—and the lack of contingency plans that should have been crafted as a result of a pilot test—make an automated failure of elections very probable"; and "COMELEC committed grave abuse of discretion when it signed x x x the contract for full automation x x x despite the likelihood of a failure of elections."

Speculations and conjectures are not equivalent to proof; they have little, if any, probative value and, surely, cannot be the basis of a sound judgment.

Petitioners, to support their speculative venture vis-à-vis the possibility of Comelec going manual, have attributed certain statements to respondent Comelec Chairman Melo, citing for the purpose a news item on Inquirer.net, posted September 16, 2009.

Reacting to the attribution, however, respondents TIM and Smartmatic, in their comment, described the Melo pronouncements as made in the context of Comelec’s contingency plan. Petitioners, however, the same respondents added, put a misleading spin to the Melo pronouncements by reproducing part of the news item, but omitting to make reference to his succeeding statements to arrive at a clearer and true picture.

Private respondents’ observation is well-taken. Indeed, it is easy to selectively cite portions of what has been said, sometimes out of their proper context, in order to assert a misleading conclusion. The effect can be dangerous. Improper meaning may be deliberately attached to innocent views or even occasional crude comments by the simple expediency of lifting them out of context from any publication.

Petitioners’ posture anent the third issue, i.e, there no is legal framework to guide

WHEREFORE, the instant petition is hereby GRANTED. The Order of the Regional Trial Court dated June 22, 1999 is REVERSED and SET ASIDE. The Petition for Review filed by the private respondent docketed as SPL. PROC. NO. 1056 is DISMISSED.

Comelec in the appreciation of automated ballots or to govern manual count should PCOS machines fail, cannot be accorded cogency. First, it glosses over the continuity and back-up plans that would be implemented in case the PCOS machines falter during the 2010 elections. The overall fallback strategy and options to address even the worst-case scenario—the wholesale breakdown of the 80,000 needed machines nationwide and of the 2,000 reserved units—have been discussed in some detail in the Decision subject of this recourse. The Court need not belabor them again.

While a motion for reconsideration may tend to dwell on issues already resolved in the decision sought to be reconsidered—and this should not be an obstacle for a reconsideration—the hard reality is that petitioners have failed to raise matters substantially plausible or compellingly persuasive to warrant the desired course of action.

Significantly, petitioners, in support of their position on the lack-of-legal-framework issue, invoke the opinion of Associate, later Chief, Justice Artemio Panganiban in Loong v. Comelec, where he made the following observations: "Resort to manual appreciation of the ballots is precluded by the basic features of the automated election system," and "the rules laid down in the Omnibus Election Code (OEC) for the appreciation and counting of ballots cast in a manual election x x x are inappropriate, if not downright useless, to the proper appreciation and reading of the ballots used in the automated system." Without delving on its wisdom and validity, the view of Justice Panganiban thus cited came by way of a dissenting opinion. As such, it is without binding effect, a dissenting opinion being a mere expression of the individual view of a member of the Court or other collegial adjudicating body, while disagreeing with the conclusion held by the majority.

And going to another but recycled issue, petitioners would have the Court invalidate the automation contract on the ground that the certifications submitted by Smartmatic during the bidding, showing that the PCOS technology has been used in elections abroad, do not comply with Sec. 1222 of RA 8436. Presently, petitioners assert that the system certified as having been used in New York was the Dominion Image Cast, a ballot marking device.

Petitioners have obviously inserted, at this stage of the case, an entirely new factual dimension to their cause. This we cannot allow for compelling reasons. For starters, the Court cannot plausibly validate this factual assertion of petitioners. As it is, private respondents have even questioned the reliability of the website24 whence petitioners base their assertion, albeit the former, citing the same website, state that the Image Cast Precinct tabulation device refers to the Dominion’s PCOS machines.

Moreover, as a matter of sound established practice, points of law, theories, issues, and arguments not raised in the original proceedings cannot be brought out on review. Basic considerations of fair play impel this rule. The imperatives of orderly, if not speedy, justice frown on a piecemeal presentation of evidence and on the practice of parties of going to trial haphazardly.

Moving still to another issue, petitioners claim that "there are very strong indications that Private Respondents will not be able to provide for telecommunication facilities for areas without these facilities." This argument, being again highly speculative, is without evidentiary value and hardly provides a ground for the Court to nullify the automation contract. Surely, a possible breach of a contractual stipulation is not a legal reason to prematurely rescind, much less annul, the contract.

Finally, petitioners argue that, based on news reports,28 the TIM-Smartmatic joint venture has entered into a new contract with Quisdi, a Shanghai-based company, to manufacture on its behalf the needed PCOS machines to fully automate the 2010 elections.29 This arrangement, petitioners aver, violates the bid rules proscribing sub-contracting of significant components of the automation project.

The argument is untenable, based as it is again on news reports. Surely, petitioners cannot expect the Court to act on unverified reports foisted on it.

G.R. No. 204828               December 3, 2013

JAIME C. REGIO, Petitioner, vs.COMMISSION ON ELECTIONS and RONNIE C. CO, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

This petition for certiorari filed under Rule 64, in relation to Rule 65, seeks to nullify and set aside the Resolution dated December 7, 2012 of the Commission on Elections

(COMELEC_ EN Banc in EAC (BRGY-SK) No. 161-2011. The assailed Resolution reversed and set aside the Resolution of the COMELEC First Division dated August 23, 2011, which, in turn, affirmed the May 4, 2011 Decision in Election Case No. 02480-EC of the Metropolitan Trial Court (MeTC), Branch 4 in Manila.

The Facts

Petitioner Jaime C. Regio (Regio) and private respondent Ronnie C. Co (Co), among other candidates, ran in the October 25, 2010 barangay elections in Barangay 296, Zone 28, District III of the City of Manila for the position of punong barangay. Immediately following the counting and canvassing of the votes from seven clustered precincts in the adverted barangay, Regio, who garnered four hundred seventy-eight (478) votes, as against the three hundred thirty-six (336) votes obtained by Co, was proclaimed winner for the contested post of punong barangay. The detailed tally of the votes per precinct, as reflected in the Statement of Votes, is as follows:1

CandidateClustered Precinct NumberTotal1302A 1303A1304A 1305A1306A1307A 1307BCo, Ronnie C.761134899336Regio, Jaime C.1711517383478On November 4, 2010, Co filed an election protest before the MeTC. He claimed, among other things, that the Board of Election Tellers (BET) did not follow COMELEC Resolution No. 9030, as it: (1) did not permit his supporters to vote; (2) allowed "flying voters" to cast votes; and (3) ignored the rules on appreciation of ballots, resulting in misreading, miscounting, and misappreciation of ballots. Additionally, he alleged that Regio committed vote-buying, and engaged in distribution of sample ballots inside the polling centers during the day of the elections.2

Of the seven clustered precincts (CPs) initially protested, Co would later exclude CP Nos. 1304A and 1305A from the protest. During the preliminary conference, the trial court allowed the revision of ballots. The revision of ballots occurred on January 13-14, 2011.3 Per the report of the revision committee, the number of votes obtained by both candidates in the contested precincts, as shown below, indicated a substantial recovery on the part of Co:

CandidateClustered Precinct NumberTotal1302A 1303A1304A 1305A1306A1307A 1307BCo, Ronnie C.160--6398321Regio, Jaime C.86--6284232During his turn to present evidence, Co limited his offer to the revision committee report, showing that he garnered the highest number of votes. Regio, on the other hand, denied that the

elections were tainted with irregularities. He claimed that the results of the revision are products of post-elections operations, as the ballots were tampered with, switched, and altered drastically to change the results of the elections. He presented as witnesses the following: poll watchers Evangeline Garcia, Cezar Regio, and Ruben Merilles, who all testified that there were no instances of electoral fraud, irregularities, and anomalies during the day of the elections. Presented too were volunteers Love Agpaoa and Romy Que, who belied allegations of miscounting, misreading, and misappreciation of the ballots during the counting, and Dominador Dela Cruz, Chairperson of the BET for CP Nos. 1302A/1303A, as well as Erlina Hernandez, Chairperson of the BET for CP No. 1306A, who both testified that they followed the rules and regulations in conducting the elections in Barangay 296, and that each ballot was correctly tabulated.4

The results of the revision notwithstanding, the trial court, in its Decision of May 4, 2011, dismissed Co’s protest and declared Regio as the duly-elected punong barangay of Barangay 296. It disposed of the case, as follows:

WHEREFORE, the proclamation of protestee Jaime C. Regio as the duly elected "Punong Barangay" or "Barangay Chairman" of Barangay 296, District III, Manila by the Barangay Board of Canvassers is affirmed by this court. The election protest filed by the protestant Ronnie C. Co is dismissed for lack of merit.5

According to the trial court, before it can accord credence to the results of the revision, it should first be ascertained that the ballots found in the box during the revision are the same ballots deposited by the voters. In fine, the court "should first be convinced that the ballots counted during the revision have not been tampered with before it can declare the ballots a) as superior evidence of how the electorate voted, and b) as sufficient evidence to set aside the election returns. For the ballots to be considered the best evidence of how the voters voted, their integrity should be satisfactorily established."6 Invoking Rosal v. COMELEC,7 the trial court ruled that Co failed to sufficiently show that the integrity of the contested ballots had been preserved. It then cited the presumption that election returns are genuine, and that the data and information supplied by the board of election inspectors are true and correct.8

The trial court said:

A closer scrutiny of the premise made by the protestant will reveal that he is trying to prove the misreading, miscounting, and misappreciation of ballots by introducing as

evidence the marked difference of the results of the revision and of the results in the election returns. This premise is too presumptuous. The marked difference cannot be used to prove the misreading, miscounting, and misappreciation of ballots because the misreading, miscounting, and misappreciation of ballots is precisely what the protestant needs to prove to justify the marked difference in the results. Prudence dictates that the protestant should first explain where this huge discrepancy is coming from before using it as evidence. In other words, the misreading, miscounting, and misappreciation of ballots should be proven by other independent evidence. Without any evidence, the allegation of misreading, miscounting, and misappreciation of ballots remains a mere allegation without any probative value.9

Traversing the allegations of post-elections tampering, the trial court rejected Co’s allegation that the ballot boxes were properly locked and sealed. In fact, the trial court said, the envelope containing the ballots for CP Nos. 1302A/1303A was glued on both sides, prompting protestee’s revisor to comment that the envelope appears to be re-pasted and tampered. In CP No. 1306A, the report stated that the ballots were not placed in a sealed envelope.10 Corollarily, the trial court stated the observation that Regio has presented credible witnesses to prove that there were no irregularities or anomalies during the casting and counting of votes. Aggrieved, Co filed an appeal before the COMELEC, arguing that the trial court erred:

1.) In disregarding the result of the physical count of the revised ballots found in Precinct Nos. 1302A/1303A and 1306A;

2.) In declaring that the protestant appellant was not able to sufficiently show that the integrity of the contested ballots in Precinct Nos. 1302A/1303A and 1306A was preserved;

3.) In declaring that protestant-appellant was not able to overcome the presumption of regularity of the election, counting, and canvassing proceedings in the protested precincts of Barangay 296, Manila;

4.) In declaring that the votes obtained by the parties in Precinct Nos. 1302A/1303A and 1306A as reflected in their respective Election Returns are [the] true and actual results of the elections;

5.) In giving weight to the incredulous and conflicting testimonies of the obviously biased witnesses of the protestee-appellee;

6.) In refusing to lend credence to the testimony of the expert witness from the Commission on Elections that the ballots obtained from Precinct Nos. 1302A/1303A and 1306A are genuine ballots; and

7.) In refusing to appreciate the contested and revised ballots for Precinct Nos. 1302A/1303A and 1306A and the appreciation of the contested ballots found in Precinct No. 1307A/1307B.11

In a Resolution dated August 23, 2011, the COMELEC First Division12 dismissed the appeal, noting, as the MeTC did, that Co failed to show that the integrity of the ballots in question was in fact preserved. Echoing the trial court, the COMELEC First Division ruled that the absence of any report or record of tampering of the ballot boxes does not preclude the possibility of ballot tampering.13

It also affirmed the rejection of Co’s reliance on the revision committee report as proof that no post-election tampering occurred. The COMELEC First Division observed:

We note that protestant-appellant did not offer any evidence to prove his claims of misreading, miscounting, and misappreciation of the ballots; he posits that the variance between the election results according to the election documents and the revision of the ballots is in itself enough to prove his allegations of misreading, miscounting, and misappreciation of the ballots by the Board of Election Tellers. Protestant-appellant begs the question instead of laying support to his claims. x x x x Since it could not divine the will of the electorate from the ballots, the trial court had no other recourse other than to rely on the available election documents. And, We cannot fault the trial court for doing so when there was no question as to the election documents’ authenticity and validity. Protestant-appellant harps that the election documents are "mere by-products of the electoral fraud committed to benefit (protestee-appellee) including but not limited to misreading, miscounting, and misappreciation of ballots by the Chairpersons of the Board of Election Tellers in order to increase the votes of the Protestee-Appellee and decrease the votes that should have been properly credited to Protestant-Appellant Co."

(emphasis in the original)

As previously mentioned, protestant-appellant’s assertion is specious x x x. The records of the case is bereft of any evidence supporting protestant-appellant’s claims

of electoral fraud and, thus, We concur with the trial court stating, "(w)ithout any evidence, the allegation of misreading, miscounting, and misappreciation of ballots remains a mere allegation without probative value."14

The COMELEC First Division noted that Co could have, but did not, presented testimonies of witnesses to substantiate his claims of electoral fraud, albeit he attached affidavits of various witnesses in his protest. The affidavits, the COMELEC First Division said, asserted, in one form or another, the electoral malfeasance or misfeasance allegedly committed by the BET. In dismissing the arguments of Co for his failure to present evidence, the COMELEC commented, "[I]t appears that protestant-appellant [Co] rested on laurels after seeing the result of the physical count of the revised ballots and the conclusion of the Technical Examination. In fine, protestant-appellant proverbially lost the war for want of a nail."15

The fallo of the COMELEC First Division Resolution reads:

WHEREFORE, premises considered, the Commission (First Division) RESOLVED, as it hereby RESOLVES, to DENY the protestant’s Appeal for LACK OF MERIT. The Decision dated 04 May 2011 by Metropolitan Trial Court – Branch 04 City of Manila is hereby AFFIRMED.16

Co then filed a Motion for Reconsideration. In its assailed December 7, 2012 Resolution, the COMELEC En Banc17 reconsidered the August 23, 2011 Resolution of the First Division, and accordingly declared Co as the duly elected punong barangay. Vital to the En Banc’s disposition is its finding that the ballots subjected to revision were genuine. The En Banc found:

x x x [W]e find merit in appellant’s motion for reconsideration. For, protestant [Co] has sufficiently established that no untoward incident had attended the preservation of the ballots after the termination of the proceedings of the Board of Election Tellers or from the time the custody of the ballot boxes is transferred from the BET to the City Treasurer and finally to the trial court. Protestee who cried post-election fraud is duty- bound to establish that the genuine ballots found inside the boxes were compromised and tampered at any time during that period and before the revision. However, no such proof has been adduced by protestee except the discrepancy between the figures in the ERs and the physical count on revision. But then, said discrepancy could have been caused by errors in the transposition of the numbers from the ballots to the ERs during the canvassing and not due to tampering. As earlier intimated, the discrepancy

could be attributed to ER manipulation during the canvassing and not because of the tampering of the ballots which were already found by an expert and independent body to be genuine and authentic.18

The fallo of the COMELEC En Banc’s Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED as it hereby RESOLVES to reconsider its Resolution dated August 23, 2011 and proclaim protestant-appellant as the duly elected Punong Barangay of Barangay 296, District III, Manila.19

Thus, the present recourse, on the argument that the COMELEC En Banc committed grave abuse of discretion amounting to lack or excess of jurisdiction when it arbitrarily set aside the Decision of the MeTC and the Resolution of the COMELEC First Division, in the choice between the revision results in the protested precincts and the official vote count recorded in the election returns. Petitioner further argues that the COMELEC gravely abused its discretion when it demanded from protestee direct proof of actual tampering of ballots to justify consideration of the use of the election returns in determining the winning candidate in the elections. In fine, petitioner questions the ruling of the COMELEC giving precedence to the results of the revision over the official canvassing results.

The Issues

I. WHETHER THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN RULING THAT PRIVATE RESPONDENT CO HAD SUCCESSFULLY DISCHARGED THE BURDEN OF PROVING THE INTEGRITY OF THE BALLOTS SUBJECTED TO REVISION. II. WHETHER THE RESPONDENT COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN REVERSING THE RULING OF THE COMELEC FIRST DIVISION, TO THE EFFECT THAT PETITIONER REGIO IS THE DULY-ELECTED PUNONG BARANGAY.

The Court’s Ruling

At the outset, it must be noted that the protest case is dismissible for being moot and academic. A case becomes moot when there is no more actual controversy between the parties or no useful purpose can be served in passing upon the merits. Generally, courts will not determine a moot question in a case in which no practical relief can be granted.20

In Malaluan v. COMELEC,21 this Court settled the matter on when an election protest case becomes moot and academic:

When the appeal from a decision in an election case has already become moot, the case being an election protest involving the office of mayor the term of which had expired, the appeal is dismissible on that ground, unless the rendering of a decision on the merits would be of practical value. (emphasis added)

In the case now before the Court, the position involved is that of a punong barangay. The governing law, therefore, is Republic Act No. (RA) 9164, as amended by RA 9340. Sec. 4 of the law states:

Sec. 4. Assumption of Office. - The term of office of the barangay and sangguniang kabataan officials elected under this Act shall commence on August 15, 2002, next following their elections. The term of office of the barangay and sangguniang kabataan officials elected in the October 2007 election and subsequent elections shall commence at noon of November 30 next following their election. (emphasis added)

The court takes judicial notice of the holding of barangay elections last October 28, 2013. Following the elections, the new set of barangay officials already assumed office as of noon of November 30, 2013. It goes without saying, then, that the term of office of those who were elected during the October 2010 barangay elections also expired by noon on November 30, 2013. In fine, with the election of a new punong barangay during the October 28, 2013 elections, the issue of who the rightful winner of the 2010 barangay elections has already been rendered moot and academic. Notwithstanding the mootness of the case, We find the need to decide the petition on its merits, in view of the finding of the COMELEC En Banc that protestant Co should have been declared the winner for the post of punong barangay for the term 2010-2013. We find that the grave abuse of discretion committed by the COMELEC En Banc, specifically in ignoring the rules on evidence, merits consideration. Still in line with the Court’s decision in Malaluan22 to the effect that the Court can decide on the merits a moot protest if there is practical value in so doing, We find that the

nullification of the COMELEC En Banc’s Resolution is in order, due to its gross contravention of established rules on evidence in election protest cases. We shall discuss the issues jointly, related as they are to the finding of the COMELEC En Banc giving primacy to the results of the revision proceedings over the results of the canvassing as reflected in the election returns.

The doctrine in Rosal v. COMELEC23 and considering the results of the revision vis-à-vis the results reflected in the official canvassing In Rosal, this Court summarized the standards to be observed in an election contest predicated on the theory that the election returns do not accurately reflect the will of the voters due to alleged irregularities in the appreciation and counting of ballots. These guiding standards are:

(1) The ballots cannot be used to overturn the official count as reflected in the election returns unless it is first shown affirmatively that the ballots have been preserved with a care which precludes the opportunity of tampering and suspicion of change, abstraction or substitution;

(2) The burden of proving that the integrity of the ballots has been preserved in such a manner is on the protestant;

(3) Where a mode of preserving the ballots is enjoined by law, proof must be made of such substantial compliance with the requirements of that mode as would provide assurance that the ballots have been kept inviolate notwithstanding slight deviations from the precise mode of achieving that end;

(4) It is only when the protestant has shown substantial compliance with the provisions of law on the preservation of ballots that the burden of proving actual tampering or likelihood thereof shifts to the protestee; and

(5) Only if it appears to the satisfaction of the court of COMELEC that the integrity of the ballots has been preserved should it adopt the result as shown by the recount and not as reflected in the election returns. In the same case, the Court referred to various provisions in the Omnibus Election Code providing for the safe-keeping and preservation of the ballots, more specifically Secs. 160, 217, 219, and 220 of the Code.

Rosal was promulgated precisely to honor the presumption of regularity in the performance of official functions. Following Rosal, it is presumed that the BET and

Board of Canvassers had faithfully performed the solemn duty reposed unto them during the day of the elections. Thus, primacy is given to the official results of the canvassing, even in cases where there is a discrepancy between such results and the results of the revision proceedings. It is only when the protestant has successfully discharged the burden of proving that the re-counted ballots are the very same ones counted during the revision proceedings, will the court or the Commission, as the case may be, even consider the revision results. Even then, the results of the revision will not automatically be given more weight over the official canvassing results or the election returns. What happens in the event of discrepancy between the revision results and the election returns is that the burden of proof shifts to the protestee to provide evidence of actual tampering of the ballots, or at least a likelihood of tampering. It is only when the court or the COMELEC is fully satisfied that the ballots have been well preserved, and that there had been no tampering of the ballots, that it will accord credibility to the results of the revision. In Varias v. COMELEC, the Court said:

The Rosal ruling, to be sure, does not involve issues merely related to the appreciation or calibration of evidence; its critical ruling is on the propriety of relying on the revision of ballot results instead of the election returns in the proclamation of a winning candidate. In deciding this issue, what it notably established was a critical guide in arriving at its conclusion – the need to determine whether the court or the COMELEC looked at the correct considerations in making its ruling.24 This Court had long stated that "[u]pholding the sovereignty of the people is what democracy is all about. When the sovereignty of the people expressed thru the ballot is at stake, it is not enough for this Court to make a statement but it should do everything to have that sovereignty obeyed by all. Well done is always better than well said."25

This is really what the Rosal doctrine is all about. The Rosal doctrine ensures that in election protest cases, the supreme mandate of the people is ultimately determined. In laying down the rules in appreciating the conflicting results of the canvassing and the results of a revision later made, the Court has no other intention but to determine the will of the electorate. The Rosal doctrine is also supplemented by A.M. No. 07-4-15-SC,26 establishing the following disputable presumptions:

SEC. 6. Disputable presumptions. - The following presumptions are considered as facts, unless contradicted and overcome by other evidence: (a) On the election procedure: (1) The election of candidates was held on the date and time set and in the polling place determined by the Commission on Elections; (2) The Boards of Election

Inspectors were duly constituted and organized; (3) Political parties and candidates were duly represented by pollwatchers; (4) Pollwatchers were able to perform their functions; and (5) The Minutes of Voting and Counting contains all the incidents that transpired before the Board of Election Inspectors. (b) On election paraphernalia: (1) Ballots and election returns that bear the security markings and features prescribed by the Commission on Elections are genuine; (2) The data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct; and (3) The allocation, packing and distribution of election documents or paraphernalia were properly and timely done. (c) On appreciation of ballots: (1) A ballot with appropriate security markings is valid; (2) The ballot reflects the intent of the voter; (3) The ballot is properly accomplished; (4) A voter personally prepared one ballot, except in the case of assistors; and (5) The exercise of one’s right to vote was voluntary and free.

Private respondent Co has not proved that the integrity of the ballots has been preserved Applying Rosal, viewed in conjunction with A.M. No. 07-4-15-SC, this Court rules that the COMELEC En Banc committed grave abuse of discretion in ruling that private respondent had successfully discharged the burden of proving that the ballots counted during the revision proceedings are the same ballots cast and counted during the day of the elections. That is the essence of the second paragraph in the Rosal doctrine. It is well to note that the respondent Co did not present any testimonial evidence to prove that the election paraphernalia inside the protested ballot boxes had been preserved. He mainly relied on the report of the revision committee. There was no independent, direct or indirect, evidence to prove the preservation of the ballots and other election paraphernalia. This leads Us to no other conclusion but that respondent Co failed to discharge his burden under the Rosal doctrine. With no independent evidence to speak of, respondent Co cannot simply rely on the report of the revision committee, and from there conclude that the report itself is proof of the preservation of the ballots. What he needs to provide is evidence independent of the revision proceedings. Without any such evidence, the Court or the COMELEC, as the case may be, will be constrained to honor the presumption established in A.M. No. 07-4-15-SC, that the data and information supplied by the members of the Boards of Election Inspectors in the accountable forms are true and correct.

Respondent Co admits having, under the Rosal doctrine, the burden of proving the preservation of the ballots, and corollarily, that their integrity have not been compromised before the revision proceedings. He, however, argues that he had

successfully discharged that burden. And how? First, he pointed out that from the moment the various BETs placed the counted official ballots inside the ballot boxes until they were transported for canvassing, and until they were transmitted to the Election Officer/City Treasurer of Manila for storage and custody, no irregularities or ballot-box snatching were reported; neither was there any news or record of ballot box tampering in the protested precincts. Second, no untoward incident or irregularity which may taint or affect the integrity of the ballot boxes was ever reported when they were transported to the storage area of the trial court. Third, the storage place of the ballot boxes was at all times tightly secured, properly protected, and well safeguarded. Fourth, all the protested ballot boxes were properly locked and sealed. Fifth, the petitioner never questioned or raised any issue on the preservation of the integrity of the protested ballot boxes. And sixth, the Technical Examination Report signed by the COMELEC representative confirmed the genuineness, authenticity, and integrity of all the ballots found during the revision.27

We hold, however, that the foregoing statements do not, by themselves, constitute sufficient evidence that the ballots have been preserved. Respondent Co cannot simply rely on the alleged absence of evidence of reports of untoward incidents, and from there immediately conclude that the ballots have been preserved. What he should have presented are concrete pieces of evidence, independent of the revision proceedings that will tend to show that the ballots counted during the revision proceedings were the very same ones counted by the BETs during the elections, and the very same ones cast by the public. He cannot evade his duty by simply relying on the absence of reports of untoward incidents that happened to the ballot boxes. At best, this reliance on the condition of the ballot boxes themselves is speculative; at worst, it is self-serving. Without presenting to the court any evidence outside of the proceedings, respondent Co as protestant may simply claim that the ballot boxes themselves are the proof that they were properly preserved. This goes contrary to the doctrine in Rosal.

The respective custodians of the ballot boxes, from the time they were used in the elections until they were delivered to the court, were not, to stress, presented in court. They could have testified as to the security afforded the ballot boxes while in their custody. Moreover, no witness at all was presented by respondent Co during the proceedings in the trial court. The Court reminds respondent Co that the trial court’s consideration of the case is confined to whatever evidence is presented before it. This is amply stated in Rule 13, Sec. 2 of A.M. No. 07-4-15-SC:

Sec. 2. Offer of evidence. – The court shall consider no evidence that has not been formally offered. Offer of evidence shall be done orally on the last day of hearing allowed for each party after the presentation of the last witness. The opposing party shall be required to immediately interpose objections thereto. The court shall rule on the offer of evidence in open court. However, the court may, at its discretion, allow the party to make an offer of evidence in writing, which shall be submitted within three days. If the court rejects any evidence offered, the party may make a tender of excluded evidence.

Unfortunately for respondent Co, the witnesses whose affidavits he attached to his Protest were never presented during trial. While he again raised the tenor of these affidavits in his Comment filed before Us, those cannot be considered anymore due to his failure to present them before the trial court. Respondent cannot simplistically insist on the consideration of said affidavits, the trial court not having been given the opportunity to observe their testimonies, and petitioner not having been accorded the opportunity to cross-examine them. The fact that respondent attached the affidavits in his Protest does not mean that the trial court is bound to consider them, precisely because they have not been formally offered before the court. The attachments to the Protest will not be considered unless formally offered. The Court notes that respondent Co has offered no explanation whatsoever why he failed to present his witnesses. Nevertheless, he would have this Court consider as evidence their purported testimonies. This would be incongruously unfair to petitioner, who endeavored to prove his case by presenting evidence before the trial court. Neither can respondent Co disclaim responsibility on the argument that the petitioner never raised as an issue the preservation of the ballot boxes. Inherent in all election protest cases is the duty of the protestant to provide evidence of such preservation. The failure of the protestee to raise that as an issue will not ipso facto mean that protestant need not present evidence to that effect. Moreover, the Technical Examination Report, is not, without more, evidence of preservation. The Report merely states that the ballots are genuine. What the protestant should endeavor to prove, however, in presenting evidence of preservation, is not that the ballots themselves are genuine or official, but that they are the very same ones cast by the electorate. The Report cannot possibly determine that. While it may be that the ballots themselves are official ballots, there is still a dearth of evidence on whether or not they were the same official ballots cast by the public during the elections. The Report, therefore, cannot be considered as evidence of the preservation, as required by Rosal. The fact of preservation is not, as respondent Co claims, "incontrovertible." In fact, there is total absence of evidence to that effect. The incontrovertible fact is that private respondent, during the proceedings

before the trial court, did not present any independent evidence to prove his claim. Without any independent evidence, the trial court, the COMELEC, as well as this Court, is constrained to affirm as a fact the disputable presumption that the ballots were properly counted during the counting and canvassing of votes. In sum, We find that the COMELEC gravely abused its discretion in ruling that private respondent had discharged the burden of proving the integrity of the ballots. We rule, on the contrary, that there is utter lack of evidence to that effect.

Petitioner need not prove actual tampering of the ballots Corollarily, the COMELEC En Banc had ruled that petitioner, as protestee, failed to adduce evidence that the ballots found inside the ballot boxes were compromised and tampered. This strikes us as baseless and a clear departure from the teachings of Rosal.

The duty of the protestee in an election contest to provide evidence of actual tampering or any likelihood arises only when the protestant has first successfully discharge the burden or providing that the ballots have been secured to prevent tampering or susceptibility of charge, abstraction or substitution. Such need to present proof of tampering did not arise since protestant himself failed to provide evidence of the integrity of the ballots.

A candidate for a public elective position ought to familiarize himself with election laws, pertinent jurisprudence, and COMELEC resolutions, rules and regulations. Alternatively, he should have an experienced and knowledgeable election lawyer to guide him on the different aspects of election. Sans comment legal advice and representation a victory in the elections may turn out to be a crushing defeat for the candidate who actually got the nod of the electorate. Unfortunately for respondent Co, he committed several miscues that eventually led to his debacle in the instant election protest.

WHEREFORE, premises considered, this Petition for Certiorari is GRANTED. The Resolution dated December 7, 2012 of the COMELEC En Banc in EAC (BRGY-SK) No. 161-2011 is hereby NULLIFIED and SET ASIDE. The Resolution of the COMELEC First Division dated August 23, 2011, affirming the Decision in Election Case No. 02480-EC of the MeTC. Branch 4 in Manila is hereby REINSTATED.

SO ORDERED.

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